mmw Hi ^i»!lik jl^ iiliiii UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ft selectio:n' of cases ON SALES OF PERSONAL PROPERTY. UnAc^c^o. ^Vvntl„Ae.r ^o\A«<^b-*^ SELECTION OF CASES ON SALES OF PERSONAL PROPERTY, WITH REFERENCES AND CITATIONS. By C. C. LxlNGDELL, DANE PEOFESSOK OP LAW IN HAKVAKD UNIVEESITY. PREPARED FOR USE AS A TEXT-BOOK IN HARVARD LAW SCHOOL. " It is ever good to rely upon the book at large, for many times eoynpendia sunt dispendia, and 7nelius est petere fontes guatn sectari rivulos.'''' — Co. Litt. 305 b. •'The advised and orderly reading over of the books at large, I absolutely determine to be the right way to enduring and perfect knowledge." — Pref. to 4 Rep. VOL. L BOSTON: LITTLE, BROWN, AND COMPANY. , 1872. T Entered according to Act of Congress, in the year 1871, by C. C. LANGDELI., In the Office of the Librarian of Congress at Washington. c<7 4 CAMBRIDGE: PKESS OF JOHN WILSON AND SON. The topics embraced in this volume are the same that are treated of in the first and second parts of Blackburn on Sale, and in the second book and the second part of the first book of Ben- jamin on Sale. Before proceeding further with the subject of Sales, it is my intention to bring out a second volume of Select Cases on Contracts. C. C. LANGDELL. Cambridge, May 15, 1872. CONTENTS. CHAPTER I. Page Statute of Frauds 1 Section I. "Contract for the Sale of" 1 Section II. " Goods, Wares, and Merchandises " 42 Section m. " For the Price of Ten Pounds Sterling or upwards " .... 85 Section IV. " Except the Buyer shall accept Part of the Goods so sold, and actually receive the same " 95 Section V. " Give Something in Earnest to bind the Bargain or in Part of Payment" 326 Section VI. " Or that some Note or Memorandum in Writing of the said Bar- gain he made and signed by the Parties to be charged by such Contract, or their Agents thereunto lawfully author- ized" 337 Viii CONTENTS. CHAPTER II. Page Executory and Executed Sales 621 Section I. Unconditional Sales of Specific Goods to which Nothing remains to be done 621 Section II. Sales of Specific Goods to which Something remains to be done . 639 Section III. Sales of Specific Goods, conditional upon paying or securing the Price 710 Section TV. Sales of Goods not specified 734 Section V. Specification of the Goods by Subsequent Appropriation . . . 792 Section VI. Appropriation, conditional upon paying or securing the Price . 911 TABLE OF CASES. A. Acebal v. Levy Acraman v. Morrice Alilridge v. Johnson Alexander v. Comber Alexander v. Gardner Allen V. Bennet Anderson v. Scot Andrews v. Durant Anonymous Archer v. Baynes Artcher v. Zeh Ashcroft V. Morrin Astey V. Emery Atkinson v. Bell Austen v. Craven B. Bailey v. Ogden Bailey v. Sweeting Baines v. Jevons Baldey v. Parker Baldwin v. Williams Ballard v. Burgett Battersby i". Gale Beaumont v. Brengeri Benient v. Smith Bennett v. Hull Bentall r. Burn Bigg V. Whisking Bill V. Bament Bird V. Boulter Bishop V. Shillito Blenkinsop i'. Clayton Boanlman v. Spooner Brandt v. Bowlby Browne v. Hare Basliel V. Wheeler Busk V. Uavis Bussey v. Barnett c. 588, n. 821, n. Page Page 399 Campbell r. The Mersey Docks, 676 &c. 873 859 Carter v. Toussaint 126 3 Castle V. Sworder 257 810 Champion v. Plummer 343 350 Chaplin v. Rogers 97 101 Clark V. Mumford 8 894 Clarke v. Spence 816 42 Clason V. Bailey 541 449 Clay V. Yates 15 330 Clayton v. Andrews 9 440 Coddington v. Goddard 614 114 Coggill V. Hartford & New Haven 801 R. R. Co. 713 741 Coleman v. Gibson 141 Coombs V. The Bristol & Exeter Railway Co. 242 Cooper V. Elston 6 Cooper V. Smith 355 0) Coxe r. Harden 916 480 Crofoot V. Bennett 772 144 Crookshank v. Burrell 32 85 Cuir V. Penn 358 82 Gumming v. Roebuck 366, n. (1) 730 Cummings v. Arnold 575 (-^) CuniifFe v. Harrison 844 185 Currie v. Anderson 252 889 Curtis V. Pugh 183 31 Cusack V. Robinson 266 132 Gushing V. Breed 788 212 161 395 D. 710 117 Davis V. Shields 558 610 Dickenson i'. Lilwal 366 925 Dodsley v. Varlcy 155 976 Downer r. Tliompson 893 168 Downs V. Ross 34 747 Dunne v. Ferguson 73 711 Durrell v. Evans 494 TABLE OF CASES. E. Edan v. Dudfield Edgerton v. Hodge Egerton v. Matbews Eichelberger v. M'Cauley EUershaw v. Magniac Elliott V. Pybus Elliott V. Thomas Elmore v. Kingscote Elmore v. Stone Evans v. Roberts F. 157 333 342 39 835 806 145 378 111 46 Falke v. Fletcher 990 Farebrother v. Simmons 370 Farina v. Home 180 Farlow v. Ellis 720 Farmer v. Robinson 349, n (1) Fragano v. Long 798 Frostl)urg Mining Co. V. Ne wEng- land Glass Co. 304 G. Garbutt V. Watson Gardner v. Grout Gardner v. Joy Gibson v. Holland Gillett V. Hill Giimour v. Supple Godts V. Rose Goodman ii. Griffiths Goom V. Aflalo Grafton v, Armitage Graham v. Fretwell Graham v. Musson Grant v. Fletcher Groves v. Buck H. Hanson v. Armitage Hanson v. Meyer Hannan v. Reeve Hart V. Bush Hart V. Sattley Hawes v. Forster Hawes v. Watson Hawkins v. Chace Henderson v. Barnewall Hey man v. Neale Hiiide V. Whitehouse Hoadly v. M'Laine Hodgson V. Le Bret 10 237 29 513 755 624 970 478 379 11 433 425 377 9 125 639 90 239 113 410 656 554 384 348 102 405 110 Holmes v. Hoskins Howe V. Palmer Humble v. Mitchell Hunt V. Hecht Jackson v. Lowe Jacob V. Kirk Jenkyns v. Brown Jenner v. Smith Johnson v. Dodgson Johnson v. Hunt Jones V. Flint K. Kent V. Huskinson Kenworthy v. Schofield Kershaw v. Ogden Key V. Cotesworth Kimberly v. Patchin Kliuitz r. Surry Knights V. Wiffen Laidler v. Burlinson Langton v. Higgins Lee V. Griffin Lerned v. Wannemacher Lillywhite v. Devereux Loiian V. Le Mesurier M. IMaberley v. Sheppard Maclean v. Dunn Marsh v. Hyde Marshall v. Lynn Marvin v. Wallis MoKnight v. Dunlop M'Lean v. Nicoll Meredith v. Meigh Merritt v. Clason Merritt v. Johnson Mews V. Carr Mills V. Hunt Mixer v. Howarth Moakes v. Nicholson Moody V. Brown Moore v. Campbell Morton V. Til)l)ett Mucklow V. Mangles 215 118 70 208 371 424 948 877 413 885 66 99 373 700 963 775 345 766 664 867 20 699 175 681 142 390 313 429 228 308 487 203 537 883 475 285 25 992 909 4(>5 195 792 TABLE OF CASES. XI Newell V. Radford Nifholle v. Plume Nicholson V. Bower Nol)le V. Ward Norman v. Phillips o. Ogle V. Atkinson Olyphant v. Baker Parker v. Staniland Parker v. Wallis Parton v. Crofts Peltier v. Collins Phillimore v. Barry Phillips v. BistoUi Pitts V. Beckett Price V. Lea Proctor V. Jones R. Rayner v. Linthorne Riciiards v. Porter Rodgers v. Phillips Rohde V. Thwaites Rondeau v. W}att Rowe V. Osborne Rucker i\ ( 'ammeyer Rugg V. Minett S. Sainsbury v. INIatthews Salmon Falls Manuf. Co. v. God- da rd Sanborn v. Flagler Sari V. Bourdillon Saunders v. Topp Saunderson v. Jackson Schneider v. Norris Scott V. The Eastern Counties Rail- way Co. Scudder v. Worster Searle v. Keeves Sewall V. Fitch Seymour v. Davis Shepherd v. Harrison Shepley V. Davis Shindler v. Houston 534 131 248 620 171 922 635 42 218 508 548 346 134 443 129 136 376 383 316 138 3 367 339 647 64 583 604 472 190 340 362 164 783 95 33 299 996 752 290 Sievewright v. Archibald Simmonds v. Humble Simmons v. Swift Simon v. Metivier Smith v. Hudson Smith V. Lyncs Smith V. Surman Soames v. Spencer Spencer tv Cone Stead V. lAwber Stonard v. Dunkin Suydani v. Clark Swain v. Shepherd Swanwick v. Sothern T. 452 272 659 337 275 724 54 368 29 418 653 581 805 673 Talver v. West 116 Tarling v. Baxter 621 Taylor v. Wakefield 234 Tempest v. Fitzgerald 121 Terr}' v. Wheeler 706 Thompson v. Alger 326, n. (1) Thompson v. Maceroni 131 Thornton v. Charles 436 Thornton v. Kempster 364 Tliornton v. Meux 382 Tisdale i'. Harris 75 Tomkinson i\ Staight 223 Towers v. Osborne 1 Townend v. Drakeford 441 Tripp V. Armitage 829 Turley v. Bates 692 Turner v. Trustees of Liverpool Docks 952 Tyler v. Freeman 712 Vandenbergh r. Spooner Vincent v. Germond w. Wait V. Baker Wait V. Green Walker v. Nussey Wallace v. Breeds Walley r. Montgomery Ward V. Shaw Warwick v. Bruce Watts r. Ains worth Watts V. Friend White V. Wilks Wliitehouse i\ Frost AAhitmarsh v. Walker 531 284 942 728 326 739 911 703 45 489 63 744 734 80 xn TABLE OF CASES. Whitney, v. Eaton Whittier v. Dana Wilkins v. Bromhead Wilkinson v. Evans Williams v. Bacon Williams v. Burgess Williams v- Jackman Wilmshurst v. Bowker Withers v. Lyss Wood V. Bell Woodley v. Coventry Woods V. Russell / 717 608 838 528 594 151 906 930 654 847 760 794 Wright V. Dannah Wright V. Percival Y. Young V. Matthews Zagury v. Furnell 348 153 875 652 SELECT CASES ON SALES. 157 CHAPTER I. STATUTE OF FRAUDS. [29 Car. II. c. 3, § 17.] "And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June [a. d. 1677] no contract for tlie sale of any goods, wares, and merchandises, for the price of ten pounds sterhng or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actu- ally receive the same, or give something in earnest to bind the bargain or in part of payment, or that 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 authorized." SECTION I. " Contract for the Sale ofT TOWERS V. SIR JOHN OSBORNE. At Guildhall, coram Pratt, C. J., 1722. [Reported in 1 Strange, 506.] The defendant iDespol^e a cliariot, and wlien it was made refused to talce it ; and in an action for the value it was objected that tliey should l)rove something given in earnest, or a note in writing, since there was no deUvery of any part of the goods. But the Chief Justice ruled this not to be a case within the Statute of Frauds, which relates only to contracts for the actual sale of goods, where the buyer is immedi- ately answerable without time given him by special agreement, and the seller is to deliver the goods immediately. VOL. I. 1 CLAYTON V. ANDREWS. [CHAP. I. CLAYTON" THE Younger v. ANDREWS. In the King's Bench, June 23, 1767. [Reported in 4 Burrow, 2101.] Assumpsit, for non-jierformance of a contract for sale of corn. JVbn assum2:)sU pleaded. On a trial at Sussex assizes a verdict was found for the plaintiff; subject to the opinion of this court u^ion the following case and question : — The defendant, on 13th October, 1776, agreed to deliver one load and a half of wheat to the j^laintiff, "vrithin three weeks or a month from the said agreement, at the rate of twelve guineas a load, to be paid on deUvery : which wheat was understood by both jaarties to be at that time unthrashed. No part of the said wheat so sold was deliv- ered ; nor any money paid by way of earnest for the same ; nor any memorandum thereof made in writing. And "Whether this agree- ment be within the Statute of Frauds," is the question.^ . . . [Mr. Baron Smythe, who tried the cause, thought this case to be like that of Towers v. Sir John Osborne in 1 Strange, 506.] Lord Mansfield directed the counsel for the defendant to begin. Mr. JBurrell, for the defendant, having finished what he had to say, Mr. Harvey was beginnmg for the plaintiff, when Lord Mansfield stopped him, saying the case was clear : that case in 1 Str. 506, of Towers v. Sir John Osborne, Hil. 8 G. 1, at Guildhall, before Pratt, Chief Justice, is directly in point. There, the defendant bespoke a chariot ; and when it was made, refused to take it. And in an action for the value it was objected that they should prove some- thing given in earnest, or a note in writing, since there was no delivery of any part of the goods. But the Chief Justice ruled it not to be a case within the Statute of Frauds ; Tvhich relates only to con- tracts for the actual sale of goods, where the buyer is immediately answerable without time given him by special agreement, and the seller is to deliver the goods immediately. ' ' ' '•'^•♦-^•^-^■" Mr. Justice Yates. That clause of the statute relates only to executed contracts. Here, wheat was sold, to be delivered at a future time. It was unthrashed at the time when the contract was made : therefore it could not be delivered at that time. The case mentioned out of Sir John Strange is in point. Mr. Justice Aston concurred, and added that the case in 1 Str. 506 has always been considered as an authority in point upon ques- tions of this kind. Per Curiam, unanimously, ordered that the postea be delivered to the plaintiff or his attorney. 1 The reporter here quotes the 17th section of the statute. — Ed. SECT. I.] RONDEAU V. WYATT. 3 ALEXANDER v. COMBEK. In the Common Pleas, Trinity Term, 1788. [Repmtcd in 1 Ileiui/ Blackstone, 20.] Trover for sheep. Tried before Mr. Justice Grose at the last assizes at East Grinstcad. It appeared that the plaintiff had agreed to buy the sheep of the defendant at Lewes fair, and to take them away at a certain hour. There was no money paid, nor any sheep delivered. The plaintiff not coming at the appointed time, nor sending to take the sheep, the defendant sold them to another person. Verdict for the plaintiff. A rule having been obtained to shew cause why the verdict should not be set aside and a nonsuit entered. Bond, Serjt., argued against the rule that, as the sheep were sold to the plaintiff, there was a sufficient property in him to maintain the action ; and as they were resold by the defendant, a sufficient conver- sion on his part. But the Court held that the Statute of Frauds prevented any prop- erty from vesting in the jilaintiff so as to enable him to maintain trover, there being neither earnest, delivery, nor agreement in writing. "^"""'^ Wilson, J., observed that, where a sale is not immediate, it is not within the Statute of Frauds, such as a contract to purchase a carriage when it shall be built, and the like. Bule absolute. RONDEAU V. WYATT 1 !V fs/l/^^ "^^^ Common Pleas, June 27, 1702. * [Reported in 2 Henry Blackstone, 63.^ "1}''' This was an action on the case for the non-performance of a special agreement.-^ At the trial, which came on before Lord Loughborough at Guildhall, at the sittings after last Michaelmas term, it appeared that tlie defend- ant, who was one of the proprietors of the Albion Mill, had entered into a verbal ao-reement to sell and deliver three tliousand sacks of flour to the plaintiff, to be put in sacks which the jtlaintiff was to send 1 The report of this case has been modified by the omission of irrelevant mat- ter. — Ed. 4 RONDEAU V. WYATT. [CHAP. I. to the mill, and shipped on board vessels to be provided by him in the river Thames. The defendant having refused to perform the contract, the plaintiff filed a bill in chancery for a discovery in aid of an action at law. In his answer to the bill the defendant admitted the agreement, but pleaded the Statute of Frauds. That plea being overruled, the present action was brought, in which the plaintiff obtained a verdict contrary to the opinion of Lord Loughborough, who thought, because the con- tract seemed to him to be within the Statute of Frauds, the plaintiff was not entitled to recover. And now, a rule having been granted to shew cause why the verdict should not be set aside and a nonsuit entered, Adair and Bond^ Serjts., shewed cause, contending that the con- tract did not come within the Statute of Frauds, because it was executory. The agreement being to deliver the flour on board some ships in the river, it could not be performed till the time and place of delivery were fixed; it was therefore clearly executory, and being executory it was not within the statute, according to a series of author- ities. Simon v. Metivier, 3 Burr. 1921, 1 Black. 599, Bull. N. P. 280 ; Towers v. Osborne, 1 Stra. 506 ; Clayton v. Andrews, 4 Bm-r. 2101 ; Alexander v. Comber, 1 H. Bl. 20. Laxcrence and Marshall, Serjts., in support of the rule. Though by the terms of the agreement the flour was to be delivered on the river, yet it was not necessarily executory, for the delivery might have been immediate if the ships had been ready. But admitting that the deliv- ery was to be at a future period, the contract was not on that account without the statute, the words of which are fully sufiicient to compre- hend it. There can be no good reason why the future delivery of goods should i^revent the operation of the statute ; on the contrary, there is much more danger of perjury being committed and mistakes happening, where a verbal agreement is not to be executed till a dis- ' tant pei'iod, than where it is to be completed as soon as it is entered into. With respect to the case of Towers v. Osborne, there was some- thing in the contract besides the mere sale of goods, namely, the work and labor of making the chariot; but at best it is a, loose note of a decision at nisi ^yrius, and on that case the opinion of the court in Clayton v. Andrews was founded, as also in Alexander v. Comber. As to Simon v. Metivier, the principle of that case was that the auctioneer was the agent of both the buyer and seller. And when the present case came before Lord Thurlow in chancery, his Lordship said, " I should have thought that the mere fact of the corn not being to be delivered immediately would not have taken it out of the statute ; " and afterwards, " I do not go upon its being out of the statute ; but if it is a measuring cast, and upon cases at law (which must stand till they are revised by a court of law) it is held to be out of the statute, I SECT. I.] RONDEAU V. WYATT. 5 cannot, sitting in a court of equity, say that the cases are improperly settled at law." 3 Brown's Cas. in Chan. 155. It is plain therefore that his Lordship doubted the validity of those cases. Cz(r. advis. vult. On this day Lord Loughbokough, after stating the facts of the case, pronounced the judgment of the court ^ to the follo^nng effect : — The only point to be decided is that which arises on the Statute of Frauds; and we M'ho are now in court think that the objection made on that statute is well grounded, and therefore that the i»laintiff ought to be nonsuited. It was sai \ the argument that the statute does not extend to cases of executory contracts. To try the validity of this objection, it will be necessary to advert to that clause ^ of the statute on which the question arises and which directs [quoting it]. Now it is singular that an idea could ever prevail that this section of the statute was only applicable to cases Avhere the bargain was immediate ; for it seems plain from the words made use of that it was meant to regulate executory as well as other contracts. The words are, " No contract for the sale of any goods," &c. And indeed it seems that this provision of the statute would not be of much use, unless it were to extend to executory contracts ; for it is from bargains to be com- pleted at a future period that the uncertainty and confusion Avill prob- ably arise which the statute was designed to prevent. The case of Simon v. Meti\'ier was decided on the ground that the auctioneer was the agent as well for the defendant as the plaintiff; and therefore that the contract was sufficiently reduced into writing. The case of Towers V. Sir John Osborne Avas plainly out of the statute, not because it was an executory contract, as it has been said, but because it Avas for work and labor to be done, and materials and other necessary things to be found, which is different from a mere contract of sale, to which species of contract alone the statute is applicable. In Clayton v. Andrews, which was on an agreement to deliver corn at a future period, there was also some work to be performed, for it was necessary that the corn should be thrashed before the delivery. This perhaps may seem to be a very nice distinction, but still the work to be performed in thrashing made, though in a small degree, a part of the contract. Eule absolute to enter a oionsuit. 1 In which his Lordship, Mr. Justice Gould, and Mr. Justice Heath were unanimous. But his Lordship mentioned a few days before that Mr. Justice Wilson, who was now sitting in chancery as one of tlie lords commissioners of the great seal, had declared himself to be of a different opinion. 2 Sect. 17. COOPER V. ELSTON. [CHAP. I. COOPER V. ELSTOK In the King's Bench, November 15, 1796. [Reported in 7 Term Reports, 14.] This action, which was tried before .Mr. Justice Rooke at the assizes at Nottingham, was brought to recover the damages sustained by the j^laintiff in consequence of the defendant's not delivering fifty quarters of wheat pursuant to his contract with the i)laintiiF. The jury found a verdict for the phiintiff, damages £50, subject to the opinion of this court on the follomng case : — The defendant on the 4th of July, 1795, at Nottingham, sold to the plaintiff by samj^le fifty quarters of wheat at four guineas per quarter ; the wheat to be delivered by the defendant to the plaintiff at Gains- borough. Two days afterwards the defendant delivered to the plaintiff at Nottingham the sample by which he had sold the wheat to him ; but such sample was no part of the fifty quarters to be delivered at Gainsborough. No money was paid by the plaintiff to the defendant on account of the wheat ; nor was there any memorandum in writing signed by the parties. The defendant afterwards refused to dehver the wheat. The question turned on the 17th section of the Statute of Frauds, 29 Car. 2, c. 3, which enacts [stating it]. Clarke, for the plaintiff, contended that, by the construction put upon the above clause in Towers v. Osborne ^ and in Clayton v. Andrews,- it is confined to contracts for the immediate sale and delivery of goods, and does not extend to _such as are executory or to be performed at some future period. And therefore it was held in the latter of these cases that an agreement to deliver so much wheat, then unthrashed, within a month, to be paid for on delivery at a stipulated jH'ice, was not within the act. The statute was meant to guard against frauds and 2)erjviries by setting up pretended contracts of sale, where no evi- dence of notoriety existed, and the circumstances of the case justified a suspicion of the truth of it. As where the thing supposed to be sold was ready for delivery at the time, and- there was no apparent reason why the buyer should not then have taken it, the very circumstance of his not taking it or any jxirt of it, or not gi^^ng any thing in earnest to bind the bargain, or having some memorandxim of it in writing, afforded a presumption against the existence of the contract. But upon this ground executory contracts could not have been within the contemplation of the Legislature ; because the non-execution of that which the parties did not intend to execute, and could not have 1 1 Stra. 506. 24 gurr. 2101. SECT. I.] COOPER V. ELSTON. 7 executed at the time, cannot warrant such a presumption. It is true that a contrary rule was laid down in a late case of Rondeau r. "Wyatt,^ in the court of C. B., where three of the judges against one, under somewhat similar circumstances to the present, held that there was no difference between contracts executory and executed as to the opera- tion of the statute. But besides that that determination was upon the general principle contrary to the current of authorities, there were two circumstances which distinguish it from the present case, the one, that the contract there was founded in apparent fraud, and an illegal com- bination between the parties to affect the price of the corn market, in order to evade the law ; the other, that there was no just reason why the delivery might not have taken place at the time of the contract. But here the corn being sold by sample, the delivery could not have taken place at the time, and therefore it does not come within the reason of the statute, the requisites of which could not in this view of the case have been all complied with. But supposing the contract not to be considered as executory or to be performed in future, and the sale by sample to be the same as an immediate sale of the goods them- selves if they had been on the spot, then as the buyer was necessarily entitled to the sample, it may be considered as an acceptance by him of part of the goods sold ; and this brings the case within one of the exceptions of the act. /Sutton, contra, was stopped by the court. Lord Keits-on, C. J. After this question has been afloat so long in the courts, I am glad that by the very able decision of the Court of Common Pleas, in the case of Rondeau v. Wyatt, the construction of this clause of the Statute of Frauds is brought back to the manifest intention of the Legislature in making that provision. To the authority of that case I entirely subscribe, and in my opinion it governs the pres- ent. The doctrine which was laid down in Clayton v. Andrews, as to executory contracts not being within the statute, was taken from Towers w. Osborae. I will not pretend to say that those cases were not rightly decided upon their particular circumstances. The latter was a mere contract for work and labor ; the thing contracted for did not exist at the time. In the former also something was required to be done in order to put it in the state in which it was contracted to be sold. But at any rate I am at a loss to discover how this can be called an executory contract for the sale of the goods in question. The thing sold existed' ?« solido at the time of the contract of sale. I am not able to distinguish this case from that of Rondeau v. Wyatt ; and the grounds and principles of that decision are so amply detailed in the report of it, that it is unnecessary to add any thing more. With respect to this coming Avithin one of the exceptions of tlie statute on account of the acceptance of the sample, there is no pretence for it ; tor the 1 2 H. Black. Rep. 63. 8- CLARK V. MUMFORD. [CHAP. I. case expressly states that the samiDle was no jiart of the goods con- tracted to be delivered. AsHHURST, J., was of the same opinion. Grose, J. The case of Towers v. Osborne went upon the general principle that executory conti-acts were not within the meaning of the statute. If by that were meant contracts for the sale of goods to be executed on a future day, such a construction would be a repeal of the act ; but if it only meant such contracts as were incapable of being executed at the time, then the decision was right ; and such was the case then in judgment. But in this sense the contract here cannot be said to be executory, for the thing existed and was capable of being delivered. It is much to be lamented that the excellent iDro"\^sions of the Statute of Frauds should ever have been infringed or weakened by construction ; but if in this instance it has been so, I am glad that the decision in the case of Rondeau v. Wyatt has brought us back to the letter and true sj^irit of that law. Lawee]s"ce, J. The case of Towers v. Osborne, when truly con- sidered, was not a contract for the j^virchase of goods, but for the makino; of something: which had no existence at the time. The case of Clayton v. Andrews went indeed somewhat farther ; but still there was to be some alteration in the state of the commodity before it was to be delivered. The cases which have been determined in the Court of Chancery in aid of contracts of this kind Avere all founded upon the decisions wliich had been made at law, and considered as necessarily consequent upon them. But it is not difficult to collect what opinion was entertained of these decisions by Lord Ch. Thurlow, when the case of Rondeau v. Wyatt came before him in the Court of Chancery,^ upon a bill filed to discover the facts and names of the parties in the under- taking, in order to found the action at law : he thought that the mere fact of the corn not being to be delivered immediately would not have taken the case out of the statute, if the point had been new ; but he thought himself bound by the cases at law till they were revised by a court of law. Postea to the defendant. CLARK V. MUMFORD. At Nisi Prius, coram Lord Ellenborough, July 10, 1811. [Reported in 3 Campbell, 37.] Indebitatus assumpsit for work, labor, and materials. The action was brought on a farrier's bill, for attendance on two horses of the plaintiff, and medicines administei'ed to them. 1 3 Bro. C. C. 154. SECT. I.] GROVES V. BUCK. 9 Garroio contended that the plaintiff could not recover upon such a count, which conveyed no information of the nature of his demand ; and that at any rate the medicines must be considered as goods sold to the defendant, and ought to have been declared for accordingly. LoRU ELLENBOROUGn. Any species of work and labor may be given in evidence under such a general count ; and the medicines here may be considered materials employed by the plaintiff in and about the business of the defendant. The plaintiff had a verdict for his whole demand. GROVES V. BUCK. ^^^j^ //^>P^ In the King's Bench, November 11, 1814. Z- / - x>^~ \B.eported in 3 3£aule ^ Selwyn, 178.] /^^^^^^^^^ ^ Case for not accepting a quantity of oak pins. Plea, General issue. At the trial before Gibbs, C. J., at the last Dorsetshu-e assizes, it appeared that in April, 1813, the defendant agreed by parol to purchase of the plaintiff, for a sum exceeding £10, a quantity of oak pins, which were not then made, but were to be cut out of slabs, and delivered "to tEe deFendant at Wepnouth. And the question made at the trial was whether this contract was, void by stat. 29 Car. 2, c. 3, § 17, which enacts [stating it]. It was urged for the plaintiff that, inasmuch as the \ goods were not capable of being delivered at the time of the contract, | not beins: then in existence, the contract was not within this clause of the statute. And of that opinion was the Chief Justice, and ruled accordingly, comparing it to the case of Towers v. Osborne ; ^ and a verdict was found for the plaintiff. Gaselee noAv moved to enter a nonsuit, and he said that, if it were res nova^ the true reading of this clause of the statute should be divi- sim^ reddendo singula singulis; that is, that the buyer shall accept part of the goods, if the contract be for the sale of goods capable of delivery ; but if not, then there shall be earnest, or a memorandum in writing. And this construction will include every contract for the sale of goods, as well of goods to be made as of goods made, which are cer- tainly within the same mischief. And though Towers v. Osborne was recognized in Clayton v. Audrews,^ it may be said of the latter case that it went upon a very refined distinction, such as would leave scarce any case of future delivery within this clause of the statute. But the authority of both those cases seems to be narrowed by the subsequent case of Rondeau v. Wyatt.^ 1 1 Str. 50G. '•2 4 Burr. 2101. ' 2 H. Bl. G3. 10 GAEBUTT V. WATSON. [chap. I. Lord Ellenboeough, C. J. The subject-matter of this contract did not exist in rerutn natura / it was incapable of delivery and of part acceptance, and where that is the case the contract has been considered as not within the Statute of Frauds. In Rondeau v. Wyatt the thing contracted for existed in the very shape and substance in which it was to be delivered ; and it was held that the circumstance of its being to be shipped on board vessels j^rovided by the buyer for exportation, did not take the case out of the statute. And that is very good sense ; for if the thing be capable of delivery at the time, why is it not done ? but the same reason does not apj^ly where the goods are not deliver- able. Dampiee, J. The court in Rondeau v. Wyatt distinguished it from the two former cases, by saying that in those cases some work was to be performed. Per Curiam, rule refused} GARBUTT AND Another v. WATSON. In the King's Bench, April 26, 1822. [Reported in 5 Barnewall ^- Alderson, 613.] Assumpsit for the non-performance by the defendant of a special agreement relating to the sale of 100 sacks of flour. Plea, general issue. At the trial at the last assizes for the county of. York, before Bayley, J., it appeared that the plaintiffs, who were millers near Hull, on the 22d of October, 1821, made an agreement with the defendant, a corn merchant, for the sale of 100 sacks of flour at 50s. per sack, to be got ready by the plaintiff's to ship to the defendant's order free on board at Hull within three weeks, to be paid for by a bill on London at two months' date on receipt of invoice. There was no memorandum in writing of the contract, nor any earnest j^aid. The flour at the time of the bargain was not prepared, so as to be cai:)able of being immedi- ately delivered to the defendant. The learned judge at the trial was 1 In Blackburn on Sale, p. 7, after citing Towers v. Osborne, Clayton v. Andrews, and Groves v. Buck, the author says : " The principle of these cases, decided by great judges, including Pratt, C. J., Lord Mansfield, and Lord Ellenborough, seems to have been either that the word ' bargain ' in the statute must be taken in the strict technical sense, so as to exclude all executory contracts not amounting to a bargain and sale, or else that, as the statute said the contract was to be good if the buyer ' accepted and actually received ' part of the goods, it could only be meant to apply to contracts where it was possible to accept and receive part of the goods. It is clear that the buyer could neither accept nor receive the chariot before it was built, thf. corn befpre it was thrashed, or the oak pins before they were cut out." — Ed. ^ V SECT. I.] GRAFTON V. ARMITAGE. 11 of opinion tliat the case fell within the 17th section of the Statute of Frauds, and the i)laintiffs were accordingly nonsuited. And now Scarlett, by leave, moved to enter a verdict for the jdaintifF. This case falls within the authority of Towers v. Osborne,^ Clayton v. An- drews,^ and Gi'oves v. Buck.^ In all these cases the court held that where the goods were not capable of immediate delivery, the sale did not fall within the Statute of Frauds. Eondeau v. AVyatf* is dis- tinguishable, for there the flour was fully prepared, but here it only existed in the shape of unground Avheat, at the time of the sale. Abbott, C. J. In Towers v. Osborne the chariot Avhich Avas ordered to be made Avould never but for that order have had any existence. But here the plaintifts were proceeding to grind the flour for the pur- poses of general sale, and sold this quantity to the defendant as part of theii' general stock. The distinction is indeed somewhat nice, but the case of Towers v. Osborne is an extreme case, and ought not to be carried further. I think this case was rightly decided, the contract being one for the sale of goods, and foiling within the 17th section of the Statute of Frauds. Bayley, J. The nearest case to this is Clayton v. Andrews. But that decision was, as it seems to me, corrected by Rondeau v. Wyatt. This was substantially a contract for the sale of flour, and it seems to me immaterial whether the flour was at the time ground or not. The question is, whether this was a contract for goods, or for work and labor and materials found. I think it was the former; and if so, it falls within the Statute of Frauds. HoLROYD, J. I am of the same ojiinion. I cannot agree with the judgment of .the court in Clayton v. Andrews. This was a contract for the sale of goods, and therefore the verdict is right. Best, J., concurred. Mule refused. ^' ^ GRAFTON V. ARMITAGE. ^^ In the CoxAimon Pleas, November 24, 1845. ^''^-X^ \Reported in 2 Common Bench Reports, 33G.] Debt for work and labor and materials, and for money due upon an account stated. Plea, mmquam indebitatus. At the trial before the under-sherifl' of Middlesex, it appeared that the plaintiff" claimed £5 5s. for work and labor and materials employed in the devising and constructing a machine or apparatus for the cui-v- 1 1 Str. 506. 2 4 Burr. 2101. 3 3 M. & S. 179. * 2 H. 131. 63. 1 5 12 5 £5 5s. , Od. 12 GRAFTON V. ARMITAGE. [CHAP. I. ing of metal tubing, to be apiolied in the construction of a life-buoy of which the defendant was the patentee. The particulars of the plain- tiff's demand were as follows : — 1844, December. For scheming and experimenting for, and making a plan drawing of, a machine for the purpose of constructing and forming tubing, to be applied to and in the manufacture of patent life-buoys for the safety and preservation of boats and shipwrecked men, with specifications : engaged three days, at one guinea per day £3 3s. Od. 1845, January 8. For workmen's time in making and fitting up a drum or mandrel, with nut and staple, and attaching same to lathe, in accordance with plan, and experimenting therewith, when the same was found to answer most satisfactorily . . For the use of the lathe one week For wood and iron to make the drum, ard for brass tubing for the experiments The defendant having announced his intention of attending the experiments on the 8th of January, 1845, and every thing being got ready for the purpose, they remained in that state for upwards of a week, during which time the use of a costly and valuable lathe was lost to the plaintiff. The plaintiff, it appeared, was a working engineer, and was employed by the defendant to devise some j^lan for a machine for curving metal tubes for the manufacture of a life-buoy of which the defendant was the inventor; that the plaintiff prepared a dramng, and ultimately produced a ring or mandrel, which according to the evidence answered the purpose intended ; and that models of air-tubes were made, and of a machine for making them. On the part of the defendant it was insisted, on the authority of Atkinson v. Bell,^ that an action for work and labor was not under the circumstances maintainable, but that the action should have been for not accepting the goods. For the plaintiff Clark v. Mumford ^ was cited, where Lord Ellen- borough ruled that, under a genei'al count in indebitatus assumjysit for • work and labor and materials, the plaintiff might recover for attend- ances as a farrier, and for medicines administered in the cure of the defendant's horses. A verdict was found for the plaintiff, damages £5 5s., mth leave to the defendant to enter a nonsuit, if the court should be of opinion that the action was misconceived. Doioling, Seijt., on a former day in this term, accordingly obtained a rule nisi. 1 8 B. & C. 277, 2 M. & R. 292. 2 3 Campb. 87. SECT. I.] GRAFTON V. ARMITAGE. 13 Byles^ Sei-jt., shewed cause. There was no contract in tliis case for the sale of any goods. The phiintifF's claim consists wholly of a demand for the application of labor and skill in the invention of a machine for the more perfectly carrying into ciFect the ohject the defendant had in view. The case is not distinguishable from Clark v. Mumford. Lord Ellenborough there says : " Any species of work and labor may be given in evidence under such a general count ; and the medicines here may be considered materials employed by the plaintiff in and about the business of the defendant." So here, the avooiI, iron, and brass tubing may properly be considered materials employed in the experiments made by the plaintiff for the defendant. Atkinson v. Bell is altogether a different case. That was a contract for the sale of goods : this is a mere contract for the exercise of the plaintiff's skill and ingenuity as a machinist, the materials being only accessory. Doxdinf)^ Serjt., in support of his rule. If the evidence shews, as it clearly does, that the work and labor were bestowed upon the plain- tiff's own materials, it is properly a .contract for the sale of goods, and not work and labor. It is distinctly laid down in Atkinson v. Bell that, to support an action for work and labor, that on which the work is perfoi-med must be the property of the defendant. Bayley, J., says : "In order to sustain an action for work, labor, and materials, the materials upon which the work and labor are performed must be the property of the employer. If a man by my order works on my land, or my house, or my furniture, it is my work, and I am at once liable to pay for it. But here Sheddon was working upon his own materials, and the contract between him and the defendants was properiy a contract for the sale of goods, and not for work and labor." [Maule, J. In order to sustain a count for work and labor, it is not necessary that the work and labor should be performed upon materials that are the property of the plaintiff [defendant?] or that are to be handed over to him. Eele, J. Suppose an attorney were employed to prei)are a partnership or other deed : the draft would be upon his own paper, and made with his own pen and ink ; might he not maintain an action for work and labor in preparing it ?] Here the contract was a contract for a machine, for goods : what difference can it make that the plaintiff was not sufficiently skilled in his business to make the article without previous experiments? Those experiments were not made at the instance of the defendant. TiNDAL, C. J. It appears to me that the present case is clearly dis- tinguishable from Atkinson v. Bell, upon which the learned counsel for the defendant has placed his whole reliance. It is true that Bayley, J., there lays it down broadly, that " if you employ another to work up his own materials in making a chattel, then he may dispose of the produce of that labor and those materials to any otlier person. No right to maintain any action vests in him during the progress of the 14 GRAFTON V. ARMITAGE. [CHAP. I. work ; but when the chattel has assumed the character bargained for, and the employer has acceiDted it, the party employed may maintain an action for goods sold and delivered ; 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 I on his own materials and for himself, and not for the person who I employed him," In the application of those obseiwations regard must J be had to the particular facts of that case. There, Sheddon (whose assignees the plaintiffs were), a manufacturer of machinery, was em- ployed by the defendants to make two spinning-frames. These spinning-frames were completed and j^acked, ready to be delivered to the defendants : but it was held that, as the appropriation was not assented to by the defendants, there was no change of property so as to entitle the plaintiffs to maintain an action for goods sold and dehv- ered ; ^ and that a count for work and labor and materials could not be sustained for the reason already stated, viz., that the work was done upon the bankrupt's own materials, which still remained his property. The substance of the contract in that case was goods to be sold and delivered by the one party to the other. Here, however, there never was any intention to make any thing that could properly become the subject of an action for goods sold and delivered. But the plaintiff was applied to to point out the proper mode of attaining a given object, and he brings his action for work and labor done by him, and the materials used in the performance of that which he undertook to do, and which appears from the evidence to have been successfully done. I think it quite clear that the count for work and labor is the proper one to cover such a claim, and that the plaintiff is as much entitled to recover in respect of the application of his skill and scien- tific knowledge as he would have been for mere manual work and labor. For these reasons I think the rule for entering a nonsuit must be discharged. CoLTMAK, J. I am of the same opinion. Atkinson v. Bell is clearly distinguishable fi-om the present case. The order there was for tAvo spinning-frames to be made for the defendants ; and though the mere undertaking of the bankrupt to make tAvo spinning-frames in i^ursuance of that order did not vest in them the property in the identical frames when completed, in the absence of any assent on their part to the appropriation, still the contract was not a contract for work and labor. Bayley, J., puts that case upon precisely the same ground on which the Lord Chief Justice puts this case. The claim of a tailor or a shoe- maker is for the price of goods when delivered, and not for the Avork and labor bestowed by him in the fabrication of them. Littledale, J., says : " As to the count for Avork and labor and materials, the labor was bestowed and the materials were found for the purpose of ultimately 1 Sed vide Wilkins v. Bromhead, 6 M. & G. 963, 7 Scott, N. R. 921. SECT. I.] CLAY V. YATES. 15 effecting a sale ; and if that purpose was never completecl, the contract was not executed." So here, if this liad been a contract by the phiin- tiff to make a machine for the defendant, the proper remedy would have been by an action for goods sold and delivered, or an action for not accepting the machine. Under those circumstances Atkinson v. Bell would have been an authority. But here it appears that the plaintiff was merely employed to use his skill in devising a mode for carrying out the defendant's invention. Maule, J., concurred. Erle, .7. I also am of opinion that the rule for entering a nonsuit in this case should be discharged. The fair result of the evidence is that the plaintiff was employed to exert his skill and ingenuity in discovering a mode by which the cur\dng of metal tubes might be effected for the better carrying out the defendant's invention. It appears to me to be qiute clear that the proper form of declaring in such a case is for work and labor. -^w^e discharged. C^^^O^ ^ CLAY V. YATES. L/yJ^*^ ^^-^ ^^^^,^^^>^ y-^^fetiifefe- Exchequer, May 3, 1856. //-TZ^ /i^^^ y 't> ^ [Reported in 1 Hurlstone ^ Norman, 73.] -Jf — y^ 7cVC^£. <■ r < l l < Declaration for goods sold and delivered, and work and labor and /^^v^aterials. Plea, never indebted. *^'T^^y^ At the trial before Pollock, C. B., at the London sittings after last /J- -4^Hilary term, it appeared that the defendant applied to the plaintiff, a '^ i^^ printer, to print a second edition of a treatise called " Military Tactics." This edition was to contain a dedication to Sir William Napier. The _ plaintiff verbally agreed to find the paper and print 500 copies for £4 10s. a sheet. At the time the plaintiff commenced printing the treirtise" fh'e^cTecTication was not written, but it was afterwards sent to him, and the type set up without his having any knowledge of its con- tents. After the prool-sheets of the dedication had been revised by the defendant and returned to the plaintiff, he for the first time dis- covered that the dedication contained libellous matter, and he refused to complete the printing of it. The defendant would not pay for the treatise without the dedication, whereupon the present action Avas brought to recover for printing the treatise. It was objected, on behalf of the defendant : first, that this was a contract for the sale of goods within tlie 17th section of the Statute of Frauds, 29 Car. 2, c. 3, as extended by 9 Geo. 4, c. 14, § 7 ; ^ sec- ondly, that the contract was an entire one, viz., to print the treatise 1 " And whereas by an act passed in England in the twenty-nintli year of the reign of King Charles the Second, intituled An Act for the Prevcntiou of Frauds and Perjuries, 16 CLAY V. YATES. [CHAP. I. and the dedication, and that the plaintifl" having refused to print the dedication was not entitled to recover in respect of the treatise. The learned judge left it to the jury to say: first, whether work and labor Avas the essence of the contract, and the materials merely ancillary ; secondly, whether the dedication was Ubellous. The jury found both questions in the affirmative, whereupon a verdict was entered for the plaintiff, leave being reserved to the defendant [to move] to enter a verdict for him. Qtcain, in the present term, obtained a rule nisi accordingly, against which, 3fontague Smith and Hannen now shewed cause. This is not a contract for the sale of goods, but for work, labor, and materials. The printer bestows his skill and labor in printing the work, and the mate- rials are merely ancillary. In Grafton v. Armitage ^ the plaintiff was employed by the defendant to devise a me+^^hod of curving metal tubing for the pm-pose of manufacturing life-buoys, and it was held that the plaintiff might recover under a count for work, labor, and materials. In Clark V. Muniford,^ which was an action on a farrier's bill, Lord Ellen- borough said : " Any species of work and labor may be given in evidence under such a general count ; and the medicines here may be considered materials employed by the plaintiff in and about the business of the v --y defendant." It is true that in Atkinson v. Bell ^ Bayley, J., expressed an opinion that, where a person is employed to work up his own mate- ^ rials into a chattel, he cannot recover for work and labor ; but in Gi'af- ton V. Armitage Maule, J., says, " In order to sustain a count for work and labor, it is not necessary that the work and labor should be per- . formed upon materials that are the property of the plaintiff [defend- ^ ant ?] ; " and Erie, J., adds : " Suppose an attorney were employed to prepare a partnership or other deed : the draft would be upon his own it is, among other things, enacted, that from and after the twenty -fourth day of June, one thousand six hundred and seventy-seven, no contract for the sale of any goods, wares, and merchandises, for the price often pounds sterling or upwards, shall be allowed to he good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that 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 authorized : And whereas a similar enactment is contained in an act passed in Ireland, in the seventh year of the reign of King William the Third : And whereas it has been held that the said recited enactments do not extend to certain executory contracts for the sale of goods, which nevertheless are within the mischief thereby intended to be remedied ; and it is expedient to extend the said enactments ' to such executory con- tracts : ' — Be it enacted that the said enactments shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." — Lord Tenterden's Act, 9 Geo. IV. c. 14, § 7. — Ed. 1 2 C. B. 336. 2 3 Campb. 37. » 8 B. & C. 277. SECT. I.] CLAY V. YATES. 17 paper, and made with his own pen and ink ; might he not maintain an action for work and labor in preparing it ? " [Aldersox, B. If the defendant had found the paper and ink, it woukl ha^e Ijeen a contract for work and labor •si7)i2^Uciter ; and the fact of the plaintift" liaving found tlie.jjaper and ink only makes it a contract for work, labor, and materials.] Secondly, the plaintiff is entitled to recover for printing the treatise, notwithstanding he refused to deliver the dedication. When the plaintiff discovered that the dedication was libellous, he was justified in refusing to complete the printing of it. In Poplett v. Stockdale ^ Best, C. J., ruled that the printer of an immoral and libellous work cannot maintain an action for his bill against the piiblisher who em- ployed him. Quain, in sup2:)ort of the rule. This is a contract for the sale of goods within the ITth section of the Statute of Frauds. Suppose a printer is employed to print a hundred visiting cards, would that be a contract for work and labor ? [Martix, B., referred to Bensley v. Bignold,- where it was held that a printer could not recover for labor or materials used in printing a work to which his name was not atHxed pursuant to the 39 Geo. 3, c. 79, § 27.] In Addison on Contracts, p. 223, 4th ed., it is said : " Thei'e is a great analogy, it has been observed by civilians, between this class and description of contract of sale, and the contract of letting and hiring of work and labor ; and we are told, in the Digest and in the Institutes, how to discriminate between the one and the other. If, it is said, the materials for the work, as well as the work itself, have been furnished by the workman, then the contract is a contract of sale. If, on the other hand, the employer has furnished the materials, and the undertaker of the Avork contributes his labor merely, the contract is a contract of letting and hiring of labor." Again, the same author says, p. 443 : " If the ground-work of the labor or the princij^al material entering into its composition has been pro- vided by the employe]', the contract is a contract for the letting and hiring of work, although the undertaker of the work may have fur- nished the accessorial materials necessary for its completion. If a man, for instance, sends his own cloth to a tailor to be made into a coat, and the tailor furnishes the buttons, the thread, and the trimmings, the contract is nevertheless a letting and hiring of work, and not a con- tract of buying and selling." In support of that position the author cites Pothier, Louage cV Ouvrage, No. 394. [M.aiTix, B. Su2)i)ose an artist paints a portrait for 300 guineas, and supplies the canvas for it, which is worth 10s., surely he might recover under a count for Avork and labor.] Xo certain rule can be deduced fi-om the comparative value of the labor and materials. In Atkinson r. Bell, Bayley, B., says : " If you employ a man to build a house on your land, or to make a chattel, with your materials, the party who docs the work has no 1 Ry. & Moo. 337. 2 5 jj. & Aid. 335. VOL. I. 2 18 CLAY V. YATES. [CHAP. I. power to appropriate the produce of his labor and yoiir materials 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 mate- rials 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 emi^loyer accepted it, the party employed may maintain an action for goods sold and delivered." Graf- ton V. Armitage is distinguishable, for there the contract was not to deliver any thing in a manufactured state, but merely to make experi- ments. [Martix, B. The work, when printed, may not be worth as a book one halfpenny, or it may be worth £100 ; then, if there has been no express stipulation as to payment, in what way is the printer to be paid ?] Secondly, this was an entire contract to print both the dedication and the treatise, and the plaintiff is not entitled to charge for printing the treatise without the dedication. In such a case no implied contract arises. Pollock, C. B. The rule must be discharged. The first question is, whether this is a contract for the sale of goods within the 17th section of the Statute of Frauds, and I am of opinion that it is properly a contract for work, labor, and materials. It appears from Chitty on Pleading ^ that a count for work, labor, and materials may be resorted to by farriers, medical men, and surveyors, and that such is the form in which they are in the habit of suing. Against the opinion of Bayley, J., in Atkinson v. Bell, we may set off the opinions of Maule, J., and Eric, J., in the case of Grafton v. Armitage, and then we have to decide the point as if it were quite new and without authority. It may hap- pen that part of the materials is found by the person for whom the work is done, and part by the person who does the work ; for instance, the paper for printing may be found by the one party, while the ink is found by the printer. In such cases it seems to me that the true crite- rion is, whether work is the essence of the contract, or whether it is the materials supplied. My impression is, that in the case of a work of art, whether in gold, silver, marble, or plaster, where the apphcation of skill and labor is of the highest description, and the material is of no importance as compared with the labor, the price may be recovered as work, labor, and materials. No doubt it is a chattel that was bar- gained for, and, if delivered, might be recovered as goods sold and deliv- ered ; still it may also be recovered as work, labor, and materials. Therefore it appears to me that this is properly a contract for work, labor, and materials. I am inclined to think that it is only where the bargain is for goods thereafter to be made, and not where it is a mixed contract for work and materials to be found, that Lord Tenterden's Act, 9 Geo. 4, c, 14, ai^plies ; and the reason why no cases on this sub- 1 Vol. i. p. 359 ; vol. ii. p. 61, 62, 7th ed. SECT. I.] CLAY V. YATES. 19 ject are found in the books is, that before Lord Tentcrden's Act passed the Statute of Frauds did not apply to the case of goods not actually made, or fit for delivery. I think therefore that tlie objection does not arise. Then with respect to the other point, I entertain no doubt. I told the jury that if tlie plaintifl" agreed to print' the dedication and the treatise, and so undertook to print that which he knew to be libellous, and afterwards said that he would not print both ; in such case he could not recover. I think his right to recover rests entirely on this ground, that he had been furnished with the treatise without the dedi- cation. The dedication was afterwards sent, but he had no opportu- nity of reading it until after it was printed ; he then discovered that it was libellous, and refused to permit the defendant to have it. I think that if a contract is hoiui fide entered into by a printer to print a work consisting of two parts, and at the time he enters into the contract he has no nieans of knowing that one part is unlawful, and he executes both, but afterw-ards suppresses that Avhich is unlawful, there is an implied undertaking on tlie i)art of the person employing him to pay for so much of the Avork as is h\\yi\\\. For these reasons I think that the rule ought to be discharged. Aldeksox, B. I am of the same opinion, and have nothing to add. Martix, B. I am of the same opinion. There are three matters of charge well known to the law, viz., for labor simi)ly, for labor and materials, and for goods sold and delivered. Now^ every case must be judged of by itself; and Avhat is the present case? The defendant having a manuscript, takes it to a printer to print for him. Then what does he intend shall be done? He intends that the printer shall use his type, shall set it up in a frame and impress it on paper, tliat the paper shall be submitted to the author, that the author having cor- rected it shall send it back to the printer, who shall again exercise labor and make it into a complete tiling in the shape of a book. That being so, I think that the plaintift' was employed to do work and labor, and supply materials, and for that he is entitled to be paid. It seems to me that the true criterion is this: Suppose there was no contract as to payment, and the printer brought an action to recover what he was by law entitled to receive, Avould that be the value of the book as a book? I apprehend not; for the book might not be worth half the value of the paper on which it was printed, but he would be entitled to recover for his work, labor, and materials supplied ; therefore this is in strictness work, labor, and materials done and provided by tlie plaintitf for the defendant. In the case of Bensley v. Bignold, where the defence w\as that the prhiter had not affixed his name to the book as required by the 39 Geo. 3, c. 79, § 27, it was treated by Abbott, C. J., Bayley, J., and Ilolroyd, J., as a contract for work, labor, and mate- rials ; and concurring in opinion with them, I do not think it profitable to go into an examination of the other cases. 20 LEE V. GRIFFIN. [chap. I. With respect to the other point, I agree that as soon as a printer discovers the objectionable nature of the work which he is employed to print, he ought to stop, and that he would not be entitled to recover for work done after he made the discovery. But I cannot doubt that in this case, although the contract has never been performed, yet as the work was commenced on the retainer of the defendant, and in igno- rance that part of it was unlawful, a duty arises to pay the plaintiif for that part which he has performed. It is like one of those transactions where a person accepts goods not made according to contract, in which case the law imphes a promise to pay for them ; though perhaps the better expression would be, " a duty arises to pay for them," for the true o-round of the right to recover is, that such a state of cu'cum- stances has arisen that in point of law there is a duty to pay. Beasiwell, B. I did not hear the whole of the argument, and will not therefore give a decided opinion ; but I am inclined to think that the plaintiff is entitled to recover, even assuming Mr. Quain's argu- ment to be right. The contract is to print a treatise and a dedication, the latter to be thereafter furnished. That imposed on the defendant the obligation of furnishing a dedication such as the plaintiff could by law print. It may be true, as Mr. Quain says, that the entire article was not produced, and the defendant was not bound to accept a partial one; but then the plaintiff might maintain an action against the defendant on his implied contract to furnish a lawftd dedication, or instead of that he may rely upon an implied contract to be paid for what he could lawfully print. However, for the reason before stated I give no decisive judgment on the point. Bide discharged. a LEE V. GRIFFIN. '" '^ In the Queen's Bench, May 9, 1861. [Reported in 1 Best Sr Smith, 272.] DECLAEATio]sr agaiust the defendant, as the executor of one Frances P., for goods bargained and sold, goods sold and dehvered, and for work and labor done and materials provided by the plaintiff as a surgeon-dentist for the said Frances P. Plea, that the said Frances P. never was indebted as alleged. The action was brought to recover the sum of £21 for two sets of artificial teeth ordered by the deceased. At the trial, before Crompton, J., at the sittings for Middlesex after Michaelmas tenn, 1860, it was proved by the plaintiff that he had, in pursuance of an order from the deceased, prepared a model of her SECT. I.] LEE V. GRIFFIN. 21 mouth, and made two sets of artificial teeth ; as soon as they Avere ready he wrote a letter to the deceased, requesting her to ai)])oint a day when he could see her for the j^urpose of fitting them. To this communication the deceased replied as follows : — My dear Sir, — I regret, after your kind effort to oblige me, my health will prevent my taking advantage of the early day. I fear I may not be able for some days. Yours, &c., Fr.vnx'ES P. Shortly after writing the above letter Frances P. died. On these facts the defendant's counsel contended. that the plaintiflf ought to be nonsuited, on the ground that there was no evidence of a delivery and acceptance of the goods by the deceased, nor any memorandum in A\Titing of a contract within the meaning of the 17th section of the Statute of Frauds, 29 Car. 2, c. 3, and the learned judge was of that opinion. The plaintiff's counsel then contended that, on the authority of Clay V. Yates,^ the plaintift' could recover in the action on the count for work and labor done, and materials provided. The learned judge declined to nonsuit, and directed a verdict for the amount claimed to be entered for the plaiutift", with leave to the defendant to move to enter a nonsuit or verdict. In Hilary tenn following a rule nisi having been obtained accord- Fatchett now shewed cause. 1. The principal question ni this case is, whether the essence of the contract in the second count is in the work and labor, or in the materials that were found. The deceased in truth contracted for the skill of the dentist, and the materials are merely ancillary to the work and labor. Clay v. Yates. [Hill, J. The circumstances in Clay i'. Yates are peculiar. It was a case of a printer employed to print a book. If I employ a man to print for me, I must give him something to print from, and he does his Avork with my materials ; he also, to a certain extent, supplies his o\ra materials, but they are only accessorial. The present case, is more like Towers V. Osborne,^ and other similar cases, which were decided on the Statute of Frauds before tlie passing of Lord Tenterden's Act, 9 G. 4, c, 14.] This case is not to be distinguished from that of an artist employed to paint a picture. In Clay v. Yates, Martin, B., says, " Suppose an artist paints a portrait for 300 guineas, and suj^plies the canvass for it worth ten shillings, surely he might recover under a count for work and labor;" and Pollock, C. B.,^iii his judgment, says, "In the case of a work of art, Avhcther in gold, silver, marble, or i)lastcr, where the ai)pli. cation of skill and labor is of the highest description, and the material is of no importance as compared with the labor, the price may be recovered as work, labor, and materials." So here the ivory used in the work was of insignificant value compared to the skill employed. 1 1 H. & N. 73. 2 1 Sir. 506. 22 LEE V. GRIFFIN. [CHAP. I. [Blackburn, J. Atkinson v. Bell ^ is an express authority against you ; though the dictum of Bayley, J.,^ that a plaintiff cannot main- tain an action for work and labor where the labor was bestowed on his own materials, is not law, and has been dissented from in Grafton V. Armitage,^ and also in Clay v. Yates.] 2. If the plaintiff cannot recover on the count for work and labor, he can maintain his action on the count for goods bargained and sold. The letter written by the deceased is a sufficient memorandum of a contract under the Statute of Frauds. Ridgway v. Wharton.^ Griffits^ in support of the rule, was not called upon to argue. Ckomptox, J. I think that this rule ought to be made absolute. On the second point I am of the same opinion as I was at the trial. There is not any siifficient memorandum in writing of a contract to satisfy the Statute of Frauds. The case decided in the House of Lords, to which reference has been made during the argument, is clearly dis- tinguishable. That case only decided that if a document, which is silent as to the particulars of a contract, refers to another document which contains such particulars, ])^vo\ evidence is admissible for the purpose of shewing what document is referred to. Assuming, in this case, that the two documents were sufficiently connected, still there Avould not be any sufficient evidence of the contract. The contract in question was to deliver some particular teeth to be made in a particu- lar way, but these letters do not refer to any particular bargain, nor in any manner disclose its terms. The main question which arose at the trial was, whether the contract in the second count could be treated as one for Avork and labor, or whether it was a contract for goods sold and delivered. The distinc- tion between these two causes of action is sometimes very fine ; but where the contract is for a chattel to be made and deliA^ered, it clearly is a contract for the sale of goods. There are some cases in which the supply of the materials is ancillary to the contract, as in the case of a l^rinter supplying the paper on which a book is i:)rinted. In such a case an action might j^erhaps be brought for work and labor done and materials provided, as it could hardly be said that the subject-matter of the contract was the sale of a chattel : perhaps it is more in the nature of a contract merely to exercise skill and labor. Clay v. Yates turned on its own peculiar circumstances. I entertain some doubt as to the correctness of that decision ; but I certainly do not agree to the proposition that tlie value of the skill and labor, as com2:)ared to that dnttc maUrial supplii'il, is ;i criteribn tjy which to decide whether the contract be for work and labm\.04:.,Y^ of the chattel. Here, however^The subject-matter of the contract was the supply of goods. The case bears a strong resemblance to that of a tailor supplying a 1 8 B. & C. 277. 2 pp. 283-4. 3 2 C. B. 336. 4 6 II. L. Ca. 238. SECT. I.] LEE V. GRIFFIN. 23 coat, the measurement of the mouth and fitting of the teeth being analogous to the measurement and fitting of tlie garment. Hill, J. I am of the same opinion. 1 tliink that the decision in Clay V. Yates is perfectly right. That was not a case in -which a party ordered a chattel of another which was afterwards to be made and delivered, but a case in which the subject-matter of the contract was the exercise of skill and labor. W]icn;ever.a„CQUti:act^ Is entered into io^JJiU.Hi!mufacture of a chattel, tliei-e the subject-matter of the < mii- tract. ^Jbe sale and ctclivcry of the chattel, and the party supplying it cannot recovei- for wort and labor. Atkinson v. Bell is, in my opinion, "gooctlaWj^^Avith the exeeption of the dictum of Bayley, J., which is reinidiated by Maule, J., in Grafton v. Armitage, where he says : " In order to sustain a count for work and labor, it is not necessary that the work and labor should be performed upon materials that are the prop- erty of the plaintift^ [defendant?]." And Tindal, C. J., in his judgment in the same case, page 340, points out that in the application of the observations of Bayley, J., regard must be had to the particular focts of the case. In every other respect, therefore, the case of Atkinson v. Bell is law. I think that these authorities are a complete answer to the point taken at the trial on behalf of the plaintift". When, however, the facts of this case are looked at, I cannot see how, wholly irrespective of the question arising under the Statute of Frauds, this action can be maintained. The contract entered into by the i)laintiff with the deceased was to supply two sets of teeth, which were to be made for her and fitted to her mouth, and then to be paid for. Through no defiiult on her part, she having died, they never were fitted ; no action can therefore be brought by the plaintiff. Blackbuej^, J. On the second point, I am of opinion that the letter is not a sufiicient memorandum in writing to take the case out of the Statute of Frauds. On the other point, the question is whether the contract was one for the sale of goods or for work and labor. I think that in all cases, in order to ascertain Avhether the action ought to be brought for goods sold and delivered, or for work and labor done and materials provided, \, we must look at the particular contract entered into between the parties. If the contract be such that, when caiTied out, it would result 'l in the sale oT a chattel^ the party cannot sue for work and labor; but a V 1^ ' if tiie result of the contract IS that the'party lias done work and labor \^^ .j\ •^ which cuds in ii< iiliing that can"l)ecome the subject of a sale, the party (cannot sue fur guods sold and delivered. The case of an attorney em- ! ployed to prepare a deed is an illustration of this latter proposition. It cannot be said that the paper and ink he uses in the preparation of the deed are goods sold and delivered. The case of a printer printing a book would most prol>ably fall within the same category. In Atkin- son V. Bell the contract, if carried out, would have resulted in the sale \ ^ 24 LEE V. GRIFFIN. [CHAP. I. of a chattel. In Grafton v. Armitage, Tindal, C. J., lays down this very principle. He draws a distinction between the case of Atkinson V. Bell and that before him. The reason he gives is that, in the former case " the substance of the contract was goods to be sold and delivered by the one party to the other ; " in the latter, " there never was any intention to make any thing that coiild properly become the subject of an action for goods sold and delivered." I think that distinction recon- ciles those two cases, and the decision of Clay v. Yates is not incon- sistent with them. In the jDresent case the contract was to deliver a thing which, when completed, would have resulted in the sale of a chattel ; in other words, the substance of the contract was goods sold and delivered. I do not think that the test to ajiply to these cases is whether the value of the work exceeds that of the materials used in its execution ; for, if a sculptor were employed to execute a work of art, greatly as his skill and labor, supj^osing it to be of the highest description, might exceed the value of the marble on which he Avorked, the contract would, in my opinion, nevertheless be a contract for the sale of a chattel. Hide absolute} 1 In Benjamin on Sale, after citing the foregoing cases, the learned author says (p. 79) : " In reviewing these decisions, it is surprising to find that a rule so satisfac- tory and apparently so obvious as that laid down in Lee v. Griffin, in 1861, should not have been earher suggested by some of the eminent judges who had been called on to consider the subject, beginning with Lord Ellenborough, in 1814, and closing M'ith Pollock, C. B., in 1856. From the very definition of a sale, the rule would seem to be at once deducible, that if the contract is intended to result in transferring for a price from B. to A. a chattel in which A. had no previous property, it is a contract for the sale of a chattel, and unless that be the case, there can be no sale. In several of the opinions this idea was evidently in the mindsof the judges. Especially was this mani- fest in the decision of Bayley, J., in Atkinson v. Bell, 8 B. & C. 277, and Tindal, C. J., in Grafton v. Armitage ; but it was not clearly and distinctly brought into view before the decision in Lee v. Griffin. The same tentative process for arriving at the proper distinctive test between these two contracts has been gone through in America, but without a satisfactory result, as will subsequently appear. " The principles suggested as afibrding a test on this subject prior to the case of Lee I". Griffin were the following: — " 1. Tliat if the subject-matter of the contract was not in existence, not in rerum natura, as Lord Ellenborough expressed it, the contract was not 'for the sale of goods.' This was tlie opinion of Lord Ellenborough in Groves r. Buck ; of Abbott, C. J., as shown by his comment on Towers i\ Osborne in the opinion delivered in Garbutt v. "Watson ; and may be inferred from Eondeau v. "Wyatt to have been the opinion of Lord Loughborough. " That the decision in Towers v. Osborne was wrong, if it went upon the ground that Lord Loughborough states, viz., that the order for the chariot was not a contract or agreement for the sale of a chattel, is no longer questionable. The fiimiliar example put by the judges in several of the cases, of an order to a tailor or shoemaker for a garment or pair of shoes, both of which are treated as undoubted cases of contracts for the sale of chattels, is exactly the same as the order in Towers v. Osborne. The intention of the parties was that the result should be a transfer for a price, by Towers to Sir John Osborne, of a chattel in which Sir John had no previous property, and this was clearly a contract for a sale. SECT. I.] MIXER V. HOWARTH. 26 JOHN MIXER V. JOHN HOWARTII. Supreme Judicial Court of Massachusetts, January 24, February 1, 1839. [Reported in 21 Pickering, 205.] Assumpsit. Trial before Wikle, J. The A\Tit contained the com- mon counts for work and labor, and materials found, &c. In the Common Pleas the plaintiff filed a specification, claiming to recover $250, the price of a buggy sold and delivered to the defendant. In " 2. The second principle suggested as the true test was hy Bayley, J., first in Smith V. Surman, 9 B. & C. 5G8, afterwards more fully developed in Atkinson r. Bell, viz., that if the materials be furnished by the employer, the contract is for work and labor, not for a sale ; but if the material be furnished by the workman who makes up a chat- tel, he cannot maintain ' work and labor,' because his labor was bestowed on his own materials and for himself, and not for the person who employed him. The first branch of this rule is undoubtedly correct, as shown by the principles settled in Lee r. Griffin, because where the materials are furnished by the employer, there can be no transfer to him of the property in the chattel, he being previously possessed of the title to the materials, so that nothing can be due from him save compensation for labor ; and this will be equally true where the employer has furnished only part of the materials, for the contract in such case cannot result in a sale to him of what is already his, and the only other action possible would be for work and labor done, and materials furnished. But the second part of the rule is inaccurate, as pointed out in Grafton v. Armitage and Lee v. Griffin. A man may be responsible for damage done to another's cliattel, as for example, to a coachmaker's vehicle, and may employ the latter to repair the injury, in which case an action would plainly lie against the employer for the work and labor done and materials furnished by the coach-builder, although bestowed on a thing which is his, and is to remain his after being repaired at another's expense. " 3. The third attempt to supply the true test on this matter, previously to its satisfactory settlement in Lee v. Griffin, was made by Pollock, C. B., in Clay v. Y^ates. The proper rule, in his opinion, is this : ' Whether the work and labor is of the essence of the contract, or whether it is the materials that are found.' This test was decisively rejected by Crompton and Blackburn, JJ., in Lee v. Griffin. It cannot be supported, even in the extreme case put by Martin, B., of a portrait worth 300 guineas on a canvas wortli 10s. If the employer owned nothing whatever that went into the composition of the picture— if neither materials, nor skill, nor labor were supplied by him, it is obvious that he cannot get title to the picture or any property in it, except through a transfer of the chattel to him by the artist for a price, and this is in law a contract of sale. It cannot make the slightest difference in what proportions the elements that compose the chattel, viz., the raw material and the skill, are divided ; it is not the less true that none of these elements were owned by the employer before the contract, and that the chattel composed of them is by the terms of the contract to be transferred for a price by the former owner to the employer. The test suggested by Martin, B., in his opinion as found in the Law Journ.al Report, is accurate as far as it goes, but it does not cover more than the point in the case before the court. The learned Baron said : ' Suppose the plaintiff had brought an action to recover the value of that which he had delivered, would that be the value of the book ? I apprehend not, for the book might not be worth half the value of the paper it was written on.' 26 MIXER V. HOWARTH. [CHAP. I. this court he filed an additional specification, claiming for work and labor, and materials furnished the defendant, at his request, upon the same article, S250 ; and likewise a count setting forth a special con- tract that the plaintiff' should build a buggy, and that the defendant should take and pay for the same, with the usual necessary averments. To this last count the defendant objected, because it was not for the same cause of action and not consistent with the original declaration ; but the amendment was allowed without terms. Tlie testimony of witnesses produced by the plaintiff" had a tendency to prove that in September, 1836, the defendant came into the plain- tiif's shop and selected a piece of cloth for the lining of a buggy ; that the plaintiff" then had on hand the body of a buggy, nearly finished, but not lined; that by a conversation between the parties it was understood that the plaintiff" was to finish a buggy for the defendant in a fortnight from that time ; and that the unfinished buggy was com- pleted accordingly, and the defendant had notice thereof and was requested to take it away, but he declined so to do. The witnesses were allowed to testify as to the estimated value of the trimmings and other materials used in finishing the buggy, and of the plaintiff''s work and labor thereon. A witness named Scadding testified that, at the time when the defendant went to the plaintiff"'s sliop, the plaintiff" had but ope carriage-body on hand not lined ; that the plaintiff" had on hand several buggies partly finished ; that the witness did not know of any thing done in consequence of any application made by the defend- ant, except that the plaintiff" had before that time told him that he should not complete any more buggies that fall unless ordered, and after this a buggy was finished ; that no account was kept of any labor or materials ; and that the witness knew nothing of any work done except upon the body. The defendant moved for a nonsuit, because the contract, if any, was void by the Revised Stat., c. 74, § 4 (of frauds) ; but the judge intimat- ing a diff"erent opinion, a verdict was taken for the plaintiff", subject to the opinion of the whole court. This is true, and why ? Because a part of the materials of the book — its chief mate- rials indeed, to wit, the composition — had been furnished by the employer, belonged to him already, and therefore could not be sold to him by the printer. The only remedy then remaining was an action for work and labor and materials. " Cases are sometimes put, as a test of principles, that are so extreme as to be best disposed of by the application of the familiar rule, De minimis non curat lex. Thus the example of an attorney employed to draw a deed, is dismissed by Blackburn, J., in Lee v. Griffin, with the simple remark that it is an abuse of language to say that the paper or parchment are goods sold and delivered. So if a man send a button or a skein of silk to be used in making a coat, it would be mere trifling to say that he ■was part owner of the materials, and that an action for goods sold would not therefore lie in favor of the tailor who furnished the garment. Such matters cannot be con- sidered as having entered into the contemplation of parties when contracting, nor as forming any real part of the consideration for the mutual stipulations." — Ed. SECT. I.] MIXER V. HOWARTH. 27 ilazen and Cummins, for the (Icfbiidant, insisted that tlie contract •was substantially a sale ; that the work to be done had reference to the sale, and no account Avas kept of the labor and materials ; and that as a sale the contract was void by the Statute of Frauds. Revised Stat., c. 74, § 4; Garbutt v. Watson, 5 Barn. & Aid. 613; Atkinson v. Bell, 8 Barn. & Cressw. 288; St. 9 Geo. 4, c. 14, § 7 ; Maberley r. Sheppard, 10 Bingh. 99 ; Dole v. Stimpson, 21 Pick. 384 ; Rondeau v. Wyatt, 2 II. Bl. 66. If viewed as a contract for labor and as a sale, being void as to the sale, it is wholly void. Chater v. Beckett, 7 T. R. 201 ; Loomis V. Newhall, 15 Pick. 169. X. Williams, for the plaintiff, argued that the contract was not Avithin the statute. Towers v. Osborne, 1 Str. 506; Cooper v. Elston, 7 T. R. 16; Groves v. Buck, 3 Maule & Selw. 178; Crookshank v. Burrell, 18 Johns. R. 58; Scwall v. Fitch, 8 Cowen, 215; Eichelberger V. M'Cauley, 5 Harr. & Johns. 214. Shaw, C. J., delivered the opinion of the court. The first question is, whether the amendment was rightly allowed. The original count was for a carriao-e sold and delivered, with counts for labor and mate- rials, etc. And in the specification the plaintiff claimed the price of the carriage. The new count was upon an agreement by the defend- ant to take and pay for a carriage to be built by his order and request. The court are of opinion that these were for the same substantive cause of action, and that the amendment was admissible and rightly allowed. And in a similar case recently decided in England, Bayley, J., stated that in his opinion the plaintiff could not recover as for goods sold, because the property had not passed ; but he also expressed his opinion that, on payment of costs, the nonsuit ought to be set aside, and the plaintiff allowed to amend by adding counts on the agreement and for not accepting the goods. Atkinson v. Bell, 8 Barn. & Cressw. 277. But the main question is, whether this contract for the sale of the carriage was within the Statute of Frauds, and so void if not proved by a note or memorandum in writing. Revised Stat., c. 74, § 4. It is very clear, wc think, that by this contract no property passed to the defendant. The carriage contemplated to be sold by the plain- tifl' to the defendant did not then exist. It was to be constructed from materials, partly wrought indeed, but not put together. It was there- fore essentially an agreement by the defendant Avith the plaintiff to build a carriage for him, and on his part to take it Avhen finished and pay for it at an agreed or at the reasonable value. This is a valid contract and made on a good consideration, and therefore binding on the defendant. But it was not a contract of sale, \\ ithiu the meaning of the Statute of Frauds, and therefore need not be proved by a note in writing. When the contract is a contract of sale, cither of an article then 28 SPENCEK V. CONE. [CHAP. I. existing, or of articles which the vendor usually has for sale in 'the course of his business, the statute apjilies to the contract, as well where it is to be executed at a future time as where it is to be executed immediately. Cooper v. Elston, 7 T. R. 14 ; Sewall u. Fitch, 8 Cowen, 215. But where it is an agreement with a workman to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article, to be completed in futuro, it is not a sale until an actual or constructive delivery and accej^tance ; and the remedy for not accej)ting is on the agreement. Judgment on the verdict. THOMAS H. SPENCER axd A^-other v. ROGER CONE AND AnOTHEK. Supreme Judicial Court of Massachusetts, September Term, 1840. [Reported in 1 Metcalf, 283.] Assumpsit. The declaration alleged, and the evidence at the trial tended to prove, a special agreement between the parties, by which the plaintiffs undertook to make for the defendants ten stave machines, and find the materials therefor, for the price of $150 each, to be paid there- for by the defendants, and that the plaintiffs made and tendered the same to the defendants, who refused to accept or pay for them. Said agreement not being in writing, the defendants objected that it was within the Statute of Frauds ; but Wilde, J., before whom the trial was had, overruled this objection, and the plaintiffs obtained a verdict. The defendants alleged exceptions to this ruling. Sishojy and Sumner, for the defendants, referred to the opinion of Littledale, J., in the case of Smith v. Surman, 9 Barn. & Cres. 573-575 ; and to Dole v. Stimpson, 21 Pick. 384. Byington, for the plaintiffs, relied on Mixer v. Howarth, 21 Pick. 205. Per Curiam. This case is not distinguishable in principle from that of Mixer v. Howarth, 21 Pick. 205. The agreement was in substance for the furnishing of labor and materials, and not a contract of sale. It was therefore not required by the Statute of Frauds (Rev. Sts., c. 74, § 4) to be in writing. Judgment on the verdict. SECT. I.] GARDNER V. JOY. 29 CHARLES F. GARDNEK and Axother v. DAVID JOY. Supreme Judicial Court of Massachusetts, March Term, 1845. [Reported in 9 Mctcalf, 177.] In an action of assumpsit, the plaintiffs alleged, in the first count in their declaration, that the defendant, on the 20th of April, 1843, in consideration that the plaintiffs then promised him to pay him twenty one cents per pomid for one hundred hoxes of good merchantable sperm candles, each box to contain 33^ pounds, when said candles should be manufoctured by the defendant and delivered to the plain- tiffs, undertook and promised the plaintiffs that he would manufacture and dehver to them one hundred boxes of sucli candles, each box of the weight aforesaid, and that the same should be manufictured and delivered to them in the summer following, viz., in the months of July and August then next ; that the plaintiffs were ready to receive and pay for said candles; that they tendered the price thereof to the defendant, and demanded of him a deUvery thereof; and that he refused to manufacture and deliver them to the plaintiffs. The plaintiffs' second count set out a bargain, on the same 20th of April, 1843, by the plaintiffs w^ith the defendant, to buy of him, and that he then sold to them, one hundred boxes of candles (describing them as in the first count), to be delivered by the defendant during the summer following, to be paid for by the plaintiffs on delivery thereof; that the plaintiffs had always been ready to receive and pay for said candles according to their said bargain ; yet that the defendant had refused to deliver said candles or any part thereof to the plaintiffs. The trial was in the county of Nantucket, before Hubbard, J., Avho made the following report thereof: To sustain their action, the plain- tiffs called Edward G. Dillingham as a witness, who testified that he was present at a conversation betAveen Gardner, one of the plaintlfts, and Joy, the defendant ; that Gardner asked Joy what he would take for candles, and he said twenty-one cents ; and that Gardner said he would take one hundred boxes ; and the witness understood that the bargain was completed ; that the precise time for their delivery was not stated ; that Joy said they were not manufocturcd, but he should or would manufacture them and deliver them to him in tlie course of the Slimmer. The plaintiffs also called Nathaniel Ruggles, who testified that he was at the defendant's house in the autumn of 1843, and asked the defendant when the bargain was made between him and Gardner; and that the defendant, on examining a memorandum book, said that some time in April, 1843, he sold Gardner & Cottle (the plaintiffs) one hun- 30 GARDNER V. JOY. [CHAP. I. drecl boxes of candles, to be delivered to them some time in the smn- mer, at twenty-one cents per jDound. The jury Avere instructed that, if they were satisfied that there Avas no note or memorandum in writing of the bargain, signed by the party to be charged thereby, the action could not be sustained upon the evi- dence, as the case was within the Statute of Frauds, Rev. Sts., c. 74, § 4 ; that this was a contract for the sale and delivery of goods, and not for the manufacture and sale of goods ; and that it would have been a sufficient comphance with the contract, if the defendant had been ready and offered to deliver one hundred boxes of good merchantable sperm candles of 33 J pounds to the box, though they had not been of his own manufacture. A verdict was returned for the defendant. Judgment to be entered on the verdict, if the said instruction was right ; otherwise, a new trial to be ordered. Coffin, for the plaintiffs. CoJby, for the defendant. Shaw, C. J. Difficult questions frequently anse under the clause, in the Statute of Frauds (Rev. Sts., c. 74, § 4), Avhich provides that " no contract for the sale of any goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless " (among things not material in this case) " some note or memorandum in writing of the bargain be made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." But the difficulty arises, not so much from any uncertainty in the rule, as from the infinitely various shades of different contracts. If it is a contract to sell and deliver goods, whether they are then completed or not it is within the statiite. But if it is a contract to make and deliver an article or quantity of goods, it is not within the statute. Spencer V. Cone, 1 Met. 283 ; Mixer v. Howarth, 21 Pick. 205. In the present case, the question as to the nature and terms of the contract depends on the testimony of one witness, who testified as fol- lows : [Here the Chief Justice recited the testimony of Dillingham, as stated in the report of the trial.] The presiding judge instructed the jury that, if they were satisfied that there was no note or memorandum in Avriting (a fact to be decided by them on tlie evidence), the action could not be sustained, being within the Statute of Frauds. The court are of opinion that this instruction was right. It was essentially a contract of sale. The inquiry Avas for the price of candles ; the quantity, price, and terms of sale were fixed, and the mode in which they should be put up. The only reference to the fact that they Avere not then made and ready for delivery was in regard to the time at which they would be ready for delivery ; and the fact that they Avere to be manufactm-ed Avas stated as an indication of the time of deliA'ery, which was otherwise lefb uncertain. There Avas some question Avhether Joy used the term loould or should manufacture them in the course of SECT. I.] BENNETT V. HULL. 31 the summer ; but the meaning, we think, is the same. Whether, after stipulating for tlic terms of sale, except the time, the question was at what time they would be delivered, and he said, I irill manufacture them, or s/tall manufacture them, in the course of the summer ; either would be the annunciation of a fact indicating and fixing the time of delivery. The case seems not to be distinguishable from that of Gar- butt V. Watson, 5 Barn. & Aid. 613, where the contract by the plain- tiffs, who were millers, Avas for the sale of one hundred sacks of flour, to be got ready in three weeks, the flour not being prepared at the time so as to be capable of delivery. It was held to be a contract of sale, and within the statute. Judgment on the verdict} BENNETT V. HULL. Supreme Court of New York, August Term, 1813. [Reported in 10 Johnson, 3G4.] In error, on certiorari^ from a Justice's Court. Hull sued Bennett before the justice for a breach of promise, in not delivering to the plaintiff, on board of his vessel, 100 ban-els of apples, whenever the vessel should be ready to receive them, and the defendant was then to receive paJ^l'lent in liquors, 'sox, and Doksey, JJ. 40 EICHELBERGER V. M'CAULEY. [CHAP. I. H. Johnson and Schley^ for the appellant, referred to the Statute of Frauds, 29 Car. 2, c. 3, § 17 ; Towers v. Osborne, 1 Stra. 506; Clay- ton V. Andrews, 4 Burr. 2101 ; Rondeau v. Wyatt, 2 H. Blk. 63 ; Alex- ander V. Comber, 1 H. Blk. 20 ; Cooper v. Elston, 7 T. R. 14 ; 1 Com. on Cont. 93; Rob. on Frauds, iii. 172, 173; Egerton v. Matthews, 6 East, 808, note; and Groves v. Buck, 3 Maule & Selw, 179. Taney and Magruder, for the apj^ellee, cited Davis & Buckey v. Harding, in this court at June term, 1816; and Newman v. Morris, 4 Harr. & M'Hen. 421. Cur. adv. vult. At this term the opinion of the court was delivered by Earle, J. The facts of this case appear as follows : On the 14th of November, 1816, M'Cauley entered into a verbal contract with Eichel- berger to deliver to him 800 bushels of wheat, which was then unthrashed and in the straw, and so understood between the parties, by or before the Christmas following, if the weather would admit of the said Avheat being got out by that time, for which Eichelberger was to pay at the rate and price of one dollar and sixty-five cents per bvishel on the delivery, and give M'Cauley the offal thereof The weather did admit of the wheat being thrashed out by or before Christmas, but M'Cauley neglected to deliver the same or any part thereof Such being the facts in the case, and it being admitted that Eichelberger accepted no part of the grain so sold, nor actually received the same, nor gave any thing in earnest to bind the bargain or in part payment, and that no note or memorandum in writing was signed by the parties or their agents thereto lawfully authorized, the court beloAV was called upon to decide whether this Avas a case within the operation of the Statute of Frauds and Perjuries, and having exjiressed an opinion to that effect, it has become the duty of this court to revise the opinion, and correct it if erroneous. Since the adjudication of Rondeau and Wyatt by Lord Loughbor- ough in the year 1792, it has been considered established law that ver- bal execvitory contracts for the sale of goods, wares, and merchandises, where no part of the goods sold has been accej^ted or received by the buyer, nor any thing has been given by him in earnest to bind the bar- gain or in part payment, and where no note or memorandum of the bargain has been signed by the parties or their agents thereto lawfully authorized, are within the operation of the statute and are void. The contract here being of this character, to be pei'formed at a future time, and in its nature executory, is avoided by the statute, unless there are circumstances in it to distinguish it from ordinary executory contracts. It is alleged there are such circumstances, and that the wheat being unthrashed and in the straw at the time of the bargain, and work and labor being necessary to prepare it for delivery, it is not a sale of goods, wares, and merchandise, within the meaning of the 17th section of this statute. SECT. I.] EICHELBERGER V. M'CAULEY. 41 Whatever opinion may be entertained of the true meaning of the 17th section of the statute, the court think the distinction between mere contracts of sale of goods, and those contracts for the sale of goods where work and labor is to be bestowed on them previ- ous to delivery, and sulyccts are blended together, some of Avliich are not in the contemplation of the statute, has too long ]>revailed to be at this day questioned. It is enforced by Lord Loughborough in the before-mentioned case of Rondeau and Wyatt, and has since been acted on by several most respectable judges. The case of Clayton v. Andrews, decided by Lord Mansfield in 17G7, a case in all its circura- Rtances exactly parallel with the present, has been used as an authority . upon this distinction. It is said to be a case without the statute, because work is to be done in thrashing out the wheat, which makes a part of the contract, and is different from a mere contract of sale, to which kind of contract alone the statute is applicable. It is not known whether this distinction has been expressly recognized by any of the adjudications of the courts of justice in this State ; but the case of Ron- deau V. Wyatt, which insists on the doctrine, has been acknowledged as authority in the late General Court, in the case quoted on the argu- ment of Newman* v. Morris, 4 Harris & M'Henry, 42L It was a con- ti-act for the delivery of cheese at a future time, and on the authority of Rondeau v. Wyatt it was determined to be an executory contract, and void under the statute. The distinction thus recognized the court do not intend shall be pushed farther than the circumstances of the case of Clayton v. Andrews will justify ; and they must not therefore be understood to extend it to cases where the articles sold are not to be prepared for deliveiy by work and labor, and where the work and labor may not be considered in some measure a part of the contract. Thus understood, the court reverse the decision of the court below, and order a procedendo. Chase, C. J., and Martix, J., were absent at the argument, but they concurred in the opinion of the court. Judgment reversed. In the case of Brian v. M'Eldcry, Judgment affirmed.^ 1 Followed in Rentcli v. Long, 27 Md. 188. — Ed. PARKER V. STANILAND. [chap. I. SECTION II. ^^ Goods, Wares, and llerchandises.''^ ANONYMOUS. In the Common Pleas, 1697. [Reported in 1 Lord Raymond, 182.] ^ Teeby, C. J., reported to the other justices that it was a question before him at a trial at 7iisi prius at Guildhall, whether the sale of timber growing upon the land ought to be in writing by the Statute of Frauds, or might be by parol? And he was of opinion, and gave the rule accordingly, that it might be by parol, because it is but a bare chattelu^ And to this opinion Poavell, J., agreed. PAPJvER V. STANILAND. THE King's Bench, June 13, 1809. [Reported in 11 East, 362.] A V^ '^^^ plaintiiF 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 the 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 j^romised to pay, &c. There was another similar count on a quantum mermt, and other gen- eral counts for goods sold and delivered, &c. The defendant pleaded the general issue, and paid £22 Is. dd. into court. It appeared at the trial before Bayley, 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. Qd. a sack. The defendant was to get tliem himsel?, and to get them immediately. The defendant emi)loyed men to dig the potatoes on the 25th, 2Gth, and 27th of the same month, and got twenty-one, twenty-four, and thirty-three sacks full, and on the 4th of December he got seven sacks more, and fourteen about Lady-day, the value of which was covered by the money paid into court. But there SECT. II.] PARKER V. STANILAND. 43 remained about three roods of potatoes which were not dug up, and which were spoilt by the frost; and the action was brought to recover the vahie of these. The objection taken at tlie trial was, tliat this was an .igrecment for an interest in land, which, not having been reduced to writing, Avas void by the Statute of Frauds, 29 Car. '2, c. 3, § 4. But the learned judge overruled the objection, and permitted the plaintift' to take a verdict for the amount ; reserving leave to the de- fendant to move to enter a nonsuit, if the court should think the objection well founded. The motion was accordingly made by Balguy, Jr., in the last term, who referred to Crosby v. Wadsworth,^ where a contract for the purchase of a growing crop of grass in a close, for the purpose of being moAvn and made into hay by the vendee, was held to convey to him an interest in the land itself, and therefore avoided by the statute, if not reduced into \\Titing. Lord Ellexbokougii, C. J., observed that there was this difference between the cases, that in Crosby v. Wadsworth the contract was made while the grass was then in a growing state, which was afterwards to be mown at maturity and made into hay ; whereas here the contract was for the potatoes in a matured state of growth, which were then ' ready to be taken, and were agreed to be taken immediately. There was a delivery of the whole at the time, as much as the subject-matter was then capable of delivery, and the defendant did actually take away a great part of them. However, a rule nisi was granted for further consideration of this point. But with respect to another objection which was now started, that the money paid into court covered the value of all the potatoes which had been taken, and that the remainder, which were left in the i)laintiff's ground, could not be recovered in value under counts stating that they had been " bargained and sold, gathered, dug up, taken, and carried away," or " sold and delivered : " his Lordship answered that the objection had not been taken at the trial ; and that, besides, it was enough to prove that they were bargained and sold, without proving that they were taken aAvay. Clarke and Ilemminr/ now shewed cause against the rule, and con- tended that the potatoes were sold merely as goods in a warehouse ready for delivery at the time and to be taken immediately, though they were permitted to remain there till it suited the defendant's con- venience to remove them. Potatoes are often kept in the ground. [Grose, J. That is after they have been severed.] All benefit to them from the soil was at an end, nor was it contemjdated by the con- tracting parties. This differs the case materially from AVaddington v. Bristow 2 and Crosby v. Wadsworth, Avhere the continuing growth and nourishment of the hops in the one case, and of the grass in the other, were in contemplation. The right to the soil continued all the time in the plaintiff, and the defendant would have been a trespasser if he 1 6 East, 602. 2 2 Bos. & PuU. 452. 44 PARKER V. STANILAND. [CHAP. I, had medcllecl with it otherwise than for the special purpose of taking up the potatoes. The nature of the contract shews this ; for the con- tract was merely for the potatoes, and they were to be sold by the sack. The defendant could not have maintained trespass against any person going on the ground : he himself had only an easement to take the crop. JBcdguy^ and Bcdguy, Jr., in support of the rule, contended that if the land had been devised in this state, the devisee Avould have taken the jjotatoes against the executor ; whicli shews that the contract Avas for an intei*est in the land. Nor can this be distinguished in principle from Crosby v. Wadsworth, ujjon the presumption (probably not founded in fact) that the potatoes had done growing and had ceased to derive any nourishment from the land ; but it is enough that they were not severed from it when the contract was made, and therefore did not exist separately as goods ; that is the only distinction recog- nized in the books. Larceny could not have been committed of them. This case is even stronger in one respect ; for the crop could not be taken up without breaking the soil, which was to be done by the defendant ; and therefore it cannot be considered as a mere easement. The defendant Avas entitled to the possession of the close \intil the crop was taken ; for without that the contract could not have been exe- cuted ; and therefore he must have been entitled to all the possessory remedies against a wrong-doer invading his possession. LoKD Ellexborough, C. J. It does not folloAV that because the potatoes were not at the time of the contract in the shajic 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 Avas in the contemplation of the parties. It is prob- able that in the course of nature the A-egetation Avas at an end ; but be that as it may, they were to be taken by the defendant immediately, and it Avas quite accidental if they derived any further advantage from being in the land. This differs the j^resent case from those AA'hich have been cited. The lessee primm vesturce may maintain trespass quare clausnm 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. WadsAvorth further, so as to bring such a contract as this within the Statute of Frauds as passing an int'erest in land. Geose and Le Blanc, JJ., agreed. Bayley, J. I do not think that this contract passed an interest in SECT. II.] WAR^VICK V. CRUCE. 45 the laiiil Avithin the meaning of the 4th section of the Statute of Frauds. In the cases of Crosby v. .Wadsworth and Waddington v. Bristow the contracts were made for the growing crops of grass and hops, and therefore tlie purchasers of the crops had an intermediate interest in the land while the crops were growing to maturity before they Avcre gathered : but here the land was considered as a mere Avare- house for the potatoes till the defendant could remove them, which he was to do immediately ; and therefore I do not think that the case is within the statute. ^ Jiule discharged. ,^xv. . ^v.-i InFAXT, by J. MONTEITII, HIS KEXT FeIEXD, V. M^ BRUCE. 'Viw In the King's Bench, November 24, 1813. V [Reported iti 2JIaule ^- Se!w!/)i, 205.] V \^ Assumpsit. The plaintiff declares that on the 12th of October, 1812, &c., at the request of the defendant, he agreed to buy of the defendant, and the defendant agreed to sell to him, all the potatoes then growing on three acres and a half of land of the defendant, at the rate or price of £25 per acre, and so in proportion for the half acre, amounting to the sum of £87 10s., to be dug up and carried away by the plaintiff, and to be paid for by him as hereinafter mentioned ; and in consideration thereof, and also in consideration that the plaintiff at the request of the defendant then and there paid to the defendant the sum of £40 in part payment of the said price, and then and there promised the defendant to dig up and carry away the potatoes, and to pay the defendant the residue of the price agreed on, on the first half of the potatoes being taken and cleared from the land, the defendant then and there undertook and promised the plaintiff to suffer and per- mit him to dig up and carry away the i)otatoes. And then the ])lain- tiff avers that he did afterwards dig up a part of the potatoes, and carry away a part of those which were so dug, and was ready and willing and offered to dig up and carry away the residue, and to pay the defendant the residue of the price agreed on ; but the defendant did not nor would suffer him to dig or carry away any more ; on the contrary, the defendant afterwards took and carried away a great part of the potatoes so dug as aforesaid, and converted and disposed thereof, and of the residue which Avere not dug up by the plaintiff, to his own use. Whereby the plaintiff Avas put to great trouble and expense in the digging up a part of the potatoes, and also lost all the profits Avhich might and Avould otherAvise have accrued to him from the 46 EVANS V. ROBERTS. [CHAP. I. performance of the said promise of the defendant, &c. There were three other special counts upon this agreement, and the common money- counts. Plea, general issue, and notice of set-off. At the trial before Lord Ellenborough, 0. J., at the Middlesex sittings after last term, it was objected: first, that this contract (being by parol) was within the 4th section of the Statute of Frauds ; and secondly, that the plain- tiff being an infant could not sue upon it. His Lordship overruled the first objection, but upon the last he directed a nonsuit, giving the plaintiff leave to move to set it aside. The Attorney- General accordingly obtained a rale nisi for that pur- pose. . . } SpanJiie and JD. F. Jones^ who shewed cause, insisted that this was a contract or sale of an interest in or concerning land, and distin- guished it from Parker v. Staniland,- because there the crop at the time of sale, though it was then in the ground, had reached its full growth, and was to be taken up immediately, and so the land was considered as nothing more than a warehouse ; but here the contract Was at a season when the potatoes had yet to grow; and upon this distinction it was resolved in Emmerson v. Heelis^ that a sale of growing turnips was " a sale of an interest in land ; " and the same was held in Crosby V. Wadsworth.* The Attorney- General, contra, was stopped by the court. Lord Ellenborough, C. J. As to the last objection, if this had been a contract conferring an exclusive right to the land for a time for the purpose of making a profit of the growing surface, it would be a contract for the sale of an interest in or concerning lands, and would then fall unquestionably within the range of Crosby v. Wadsworth. 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 Avith earth in the field, or in a box, still it was a sale of a mere chattel. It falls therefore within the case of Parker v. Stani- land ; a^*0^that disposes of the point on the Statute of Frauds. . . . t/1 ir I . I Mule absolute. H''^^ EVANS V. ROBERTS. In the King's Bench, Trinity Term, 1826. [Reported in 5 Barnewall Sf Cresswell, 829.] Indebitatus assumpsit, for crops of potatoes bargained and sold. Plea, the general issue. At the trial before Garrow, B., at the spring 1 The arguments and decision upon the second question are omitted. — Ed. 2 11 East, 362. ^ 2 Taunt. 38. " 6 East, 602. SECT. II.] EVANS V. ROBERTS, 47 assizes for the coimty of Monmouth, 182G, it appearefl that on the' 25th of September a verbal agreement was made between the plaintiff and defendant, by M'hich the defendant agreed to ]»urchase of the plain- tiif a cover of potatoes then in the ground, to be turned uj) by 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 tlie meaning of the 4th section of the Statute of Frauds. The learned judge was of opinion that, as the seller was to turn up the potatoes, the contract did not give the buyer any inter- est in the land ; and he directed a verdict to be found for the plaintifii but reserved liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained accordingly. Justice now shewed cause. By the terms of this contract the seller was to dig up the potatoes, and the buyer only to take them aAvay. This contract did not confer upon the buyer of the potatoes any exclu- sive right to the land for a time, for the purpose of making a profit of the growing surface ; and if that be so, then, according to Warwick V. Bruce,^ this was not a contract for the sale of an interest in or con- cerning lands, within the meaning of the 4th section of the Statute of Frauds. If the vendee had entered to dig up the potatoes, and the vendor had brought trespass against him, he could not have pleaded the general issue, and have given his title in evidence under the plea of not guilty ; he must have pleaded his contract, as a license to enter for a special pui-pose merely, viz., to take away what he had bought ; and if that be so, then he had no interest in the land any more than the owner of potatoes or of a rick of hay placed in a warehouse or barn or raised in a heap on the land. In those cases the owner of the chattel has no interest in the land where* the chattel is. This case must be governed by the cases of Warwick v. Bruce,- and Parker V. Staniland.'^ It is distinguishable from Crosby ?j. Wadsworth,* because in that case the contract was for growing grass to be made into hay. The grass, by the terms of the contract, was to continue growing until it was ripe and fit to cut. That was a grant of the whole vesture of the land ; and the purchaser had such an exclusive possession as would entitle him to maintain trespass. Ludlow, contra. The authorities show that a sale of any growing product of the earth, which is not to be severed immediately, gives to the vendee an interest in or concerning the land, within the meaning of the 4th section of the Statute of Frauds. Crosby v. Wadsworth,^ Parker v. Staniland.'' The very right to have the subject-matter of the sale continue in the land constitutes an interest. Waddington v. Bris- tow^ and Emmerson v. Heelis^ are authorities in point. In the latter 1 2 M. & S. 205. 2 2 M. & S. 205. ^ n East, 362. * G East, 602. » 6 East, 602. ^ 11 East, 362. "J 2 Bos. & Pul. 452. 8 2 Taunt. 38. 48 EVANS V. ROBERTS. [CHAP. I. case, a sale of growing turnips, no time being stipnlated for their removal, and the degree of their maturity not being found, was held to be a sale of an interest in land. Batley, 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 delivery, should be goods and chattels. It appears that the contract was for a cover of pota- toes; the 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 ^ 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 that purpose. Besides, in that case the contract was for the growing grass, which is the natural and permanent produce of the land, renewed from time to time without cultivation. Now, growing grass does not come within the description of goods and chattels, and cannot be seized as such under a Ji. fa. ; it goes to tlie heir and not to the executor ; but growing potatoes come within the description of emblements, and are deemed chattels, by reason of their being raised by labor and manurance. They 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 Avhich the sheriff is com- manded to levy the debt of the goods and chattels of the defendant ; and if a growing croj) 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 con- cerning them. In Parker v. Staniland ^ 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,* the potatoes had ceased to groAV ; and therefore they are dis- tinguishable from the present ; but the reasoning of Lord Ellenborough in the latter case may assist us in coming to a right conclusion in the present ; he there says : " If this had been a contract conferiing an 1 6 East, 602. 2 See Corn. Dig., tit. Biens (G.), and Gilbert's Law of Evidence, 214. 3 11 East, 362. * 2 M. & S. 205. SECT. II.] EVANS V. ROBERTS. 49 exclusive right to the land for a time, for the purpose of making a profit of the growing surface, it would be a contract for the sale of an interest in or concerning lands, and would then fall unquestionably within the range of Crosby v. Wadsworth.^ 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 tliey 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 tliat 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 Emmerson v. Heelis,^ is certainly at variance with our judgment in the present case. But it is first to be observed that it Mas not necessary 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 Avhether it was for a sale of goods and chattels or of an interest in land. The plaintifi^ there put up to sale on the 25th of September, by j)ublic auction, a crop of turnips then growing on his land, in sejiarate lots, and under certain conditions of sale. The defendant, by his agent, attended at the sale, and being the highest bidder for twenty-seven difl:erent lots, was declared to be the pm-chaser ; 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 savs : " As to this being 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 Frauds is satisfied, because the memorandum in Avriting is signed by an agent for the party to be charged therewith." The ground of the Lord Chief Justice's opinion, as to the contract giving the purcliaser'an interest in land, was that the case could not be distinguished from that of Wad- dington v. Bristow.^ It becomes necessary therefore to consider whether the two cases be similar. In the latter case the contract was made in November for all the hops Avhich should be grown in the ensuing year upon a given number of acres of land. At that time tlie hops which were the subject of the contract were not in existence; there was nothing but the root of the plant, and the puix-haser was not to have that. The question in that case was, not whether the agreement, which was in writing, was for an interest in the land, but Avlu'ther it ought to have been stamped. It was contended that it was, within the exception in the stamp act, an agTcement made for anIn the King's Bench, Easter Term, 1829. [Reported in 9 Barnewall Sf Cresswell, 561.] V Declaratig^t 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 uj)on certain lands of the plaintiff, at a certain rate or price, to wit, at the rate or price of eighteen i^ence 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 afore- said within a reasonable time then next following: and in considera- tion 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 foithfully 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 Vaiighan, B., at the summer assizes for the county of Worcester, 1828, it ap])eared that this action Avas brought to recover i:i7 3s. 6f?., the value of 229 feet of ash timber at Is. 6c?. pei'foot, which the plain- tiff had agreed to sell to the defendant under the following circum- stances : The plaintiff, the proprietor of a coppice, liad giA^en orders to have some ash trees cut doAvn ; and the defendant on the 7th of Ai^ril, Avhile the trees were in the course of being cut, and after tAvo of them had been actually felled, came to. the coppice, and the plaintiff pointed out to him the trees, Avhich were numbered. The defendant, after he had looked at them, said to one of the bystanders that he had made a good bargain, and told one of the persons A\'ho was cutting SECT. II.] SMITH V. SURMAN. 55 them, to tell the otlier men to cross-cut them fair, and they were cut accordingly. The defendant afterwards said he had hought 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 hnn if he had measured the timber at Mr. Smith's, and receiving an answer in the affirmative, the defendant oflVred to sell him the butts (which he alleged he had bought of Mr. Smith) ; but tltis not being acceded to, the defendant 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 building stuff. The defendant not having taken the timber away, the attorney of the plaintiff, by his direction, wrote the follow- ing letter to the defendant upon the subject : — Siu, —I am directed by Mr. Smith, of Norton Ilall, to request you -will forth- Avith pay for the ash timber which you purchased of him. The trees are num- bered 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 3.s'. 6d. I understand your objection to complete your contract is on the ground that tlie 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 understand you object to the manner in which the trees were cross-cut, but there is also evidence to prove they were so cut by your direction. Unless the debt is immediately discharged, I have instructions to commence an action against you. In answer to this letter the defendant wrote to the plaintiff's attor- ney 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 should 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 by 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 ; ^ or assum- ing that it was a contract for the sale of goods, wares, and merchan- dises, the price being £10 and upAvards, and there being no note or memorandum of the contract in writing, the action was not maintain- able. The learned judge directed the jury to find a verdict for the plaintiff for £17 3.9. Gel, but reserved liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained for this pur- pose, Biissell, Serjt., and Shiitt, now showed cause. There Avas not in this case any contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them, within the meaning of the 4th 1 1 Younge & Jervis, 3U0. 56 SMITH V. SURMAN. [CHAP. I. section of the Statute of Frauds. The trees were in the course of being felled at the time of the bargain and sale ; some of them Avere felled when the bargain was concluded. The bargain therefore was not for standing trees, but for the jjroduce of the standing trees, "viz., timber at so much per foot. The word " timber," strictly speaking, does not import growing trees, but that portion of the trees (when felled) which makes wood fit for building. Scorell v. Boxall ^ was an action of trespass by the vendee of standing underwood, which was to be cut by the vendee, and the question was, whether a mere verbal contract for the sale of such underwood gave such a possession to the vendee as would entitle him to maintain trespass against the defendant for cutting and carrying it away ; and the Coiut of Exchequer held that it was a contract for the sale of an interest in land, and therefore that it ought to have been in Avriting to give an interest to the vendee. Here the contract was not for land, or any interest in land, but for the timber which would be produced by the trees when they should be cut and severed from the fi-eehold. The defendant in this case could not have entered on the land and cut a single tree ; and that is the test to try whether the standing trees were sold, or that only which the standing trees should when cut produce. If the trees had been sold there might have been some ground for saying that the vendee took an interest in the land ; but the timber only being sold, then the produce of the trees when cut down and severed from the fi-eehold is the thing contracted for. Considering the Avord " timber " to denote only trees when severed from the freehold, will reconcile with the modern cases the opinion of Treby, C. J., and Powell, J., in 1 Ld. Raym. 182, viz., that a sale of timber growing upon the land may be by parol, because it is but a bare chattel. That opinion is cited as an authority in Buller's N. P. 282, and without disq^probation by Holroyd, J., in Mayfield v. Wadsley,^ where the question was, whether a (jontract for the sale of a crop of wheat was one for the sale of an interest in land within the 4th section of the Statute of Frauds. It is not the circumstance of a thing existing in a grooving state in the soil at the time of the contract that will make it an interest in the land. That must depend on circum- stances. A sale of crops, or trees, or other matters existing in a grow- ing state in 'the land, may or may not be an interest in land according to the nature of the agreement between the parties, and the rights which such an agreement may give. If it give to the vendee an exclu- sive right to the land for a term, for the purpose of making a profit of the growing surfiice, it will constitute an interest in the land. In Crosby V. Wadsworth^ the vendee of the crop of grass might have maintained trespass, for by the terms of the contract he was to mow the grass, and must therefore have had the possession of the land for that purpose. In Emmerson v. Heelis* no time was stipulated for the removal of the 1 1 Younge & Jervis, 396. 2 3 b. & C. 364. 3 6 East, 602. 4 2 Taunt. 38. SECT. II.] SMITH V. SURMAN, o7 turnips ; and Bayley, .T., in Evajiis v. Roberts,^ stated that in his opinion the turnips at the time of the sale were chattels. In Parker v. Stani- land '" the owner of the 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 contract was hold not to give the vendee any interest in or concerning the land. In Warwick v. Bruce ^ the ])rinciple was recognized that a contract giving an interest in land within the Statute of Frauds must confer an exclusive right to the land for a time, for the purpose of mak- ing a profit of the growing surface. All the authorities were reviewed in Evans v. Roberts,-* where it Avas held that a verbal agreement made on the 25tli of September tor the sale of a then growing crop of pota- toes was not a contract for the sale of any lands, tenements, or here- ditaments, or any interest in or concerning them, within the 4th sec- tion of the Statute of Frauds. But it will be said that this was a contract for the sale of goods, wares, and merchandise, for the price of £10 and upwards, within the 17th section, and that there has been no part acceptance nor memorandum in writing of the bargam. But that section of the statute does not apply to a sale of timber in a course of being felled or to be felled. It is an executory contract for so much timber, to be produced out of trees upon which work and labor is to be bestowed by the vendor for the benefit of the vendee. Some- thing was required to be done to put the subject-matter into the state in which it was to be in order to be delivered according to the contract. It was not a contract therefore for the sale of goods, wares, and merchan- dise, but for work and labor and materials found and provided. Towers V. Osborne,^ Clayton v. Andrews,^ Groves v. Buck," Buxton v. Bedall.^ Assuming, however, that there was a contract for the sale of goods, wares, and merchandise, there was in this case a sufficient acceptance of part of the goods sold. The principle is, that if the purchaser deals with the commodity as if it were in his actual possession, this will super- sede the necessity of proving actual acceptance. Chaplin v. Rogers,^ Elmore v. Stone.^° Here the defendant dealt Avith the timber as if it was in his possession, for he gave directions as to cross-cutting, which might make the timber less salable, and he ofiered to sell the butts. It is in this respect like Blenkinsop v. Clayton," Avhere a person had bar- gained for a horse then in the stable, and soon afterwards brought in a third person, and stated to him that he had bought the horse, and offered to sell it to such third person for a i)rofit of £5. Lastly, the answer of the defendant to the attorney's letter was a sufficient mem- orandum in writing of the contract ; for it is clear that two distinct AATit- 1 5 B. & C. 838. 2 11 East, 362. ' 2 M. & S. 205. * 5 B. & C. 829. 6 1 Stra. 506. « 4 Burr. 2101. 7 3 M. & S. 178. 8 3 East, 303. ^ 1 East, iy2. 10 1 Taunt, 458. " 7 Taunt. uUT. ] 58 SMITH V. SURMAN. [CHAP. I. ings may be coupled together, and constitute a memorandum within the intention of the statute. Saunderson v. Jackson,^ Schneider v. Nor- ris." Tlie letter of the plaintiff's attorney contained an assertion of the contract, specifying the quantity, quality, and price of the timber, and the answer confirms it. This case is distino-uishable from Richards V. Porter.^ There the letter of the purchaser falsified the contract, for he wrote that the hops had not been sent at the time required by the contract. Jervis, contra, was stopped by the court. Bayley, J. I am of opinion that there was not in this case any con- tract for the sale of lands, tenements, or hereditaments, or any inter- est in or concerning them, within the meaning of the 4th section of the Statute of Frauds. The contract was not for the growing trees, but for the timber at so mxich per foot ; i. e. the jn'oduce of the trees when they should be cut down and severed from the freehold. But indej^endently of the point made on that section, there were three other questions made : first, it was said that this was a mixed contract for goods and chattels and for work and labor to be bestowed and per- formed by the plaintiff for the defendant. It seems to me that the true construction of the bargain is, that it is a contract for the future sale of the timber when it should be in a state fit for delivery. The vendor, so long as he was felling it and preparing it for delivery, was doing work for himself and not for the defendant. Garbutt and Another V. Watson * is in point. There the plaintiffs, who wei'e millers, agreed to sell to the defendant, a corn merchant, 100 sacks of flour at fifty shillings ])er sack, to be got ready by the plaintiffs to ship within three weeks. There was no memorandum in writinsr of the contract. The flour was not at that time prepared, and it was there held that it Avas a contract for the sale of goods, wares, and merchandise, Avithin the meaning of the 17th section of the Statute of Frauds. I think there- fore that the contract in this case was only a contract for the sale of goods, wares, and merchandise, within the 17th section of the statute, and tliat there ought to have been a note or memorandum of it in writing, or a part acceptance, earnest, or part payment. But it is said that the defendant has recognized in writing the contract stated in the letter of the plaintiff's attorney. I agree that if there hadjbeen a letter Avritten by the seller (or his agOTTpto" the buyer, specifying tKe terms of a' contract, a,nd the buyer in his answer had recognized tBTat contract, tliere would have been a note in writing of the bai;gciin, sufficient to satisfy the statute. But the defendant in this case does not recognize file contract stated in the letter of the plaintiff's attor- ney. The contract as described in the two letters differs essentially as to the quality of the things to be sold. In the letter of the plaintiff's J 2 Bos. & Pul. 238. 2 2 M. & S. 286. 3 U B. & C. 437. 4 5 B. & A. 618. SECT, ir.] SMITH V. SURMAN. 59 attoniey the contract is spoken of as one for the absohite purchase of trees at Is. 6^?. per foot, witliout reference to quality; the defendant says that it was part of tlie contract that the timber shouhl be sound and good ; that Mr. Smith denied it, and refused to let him have jiart without all, and that he had expected he would have sold it again. It is clear therefore that the vendee did not consider it a binding bar- gain. What the real terms of the contract were is left in doubt, and must be ascertained by verbal testimony. The object of the statute was, that the note in Avriting should exclude all doubt as to the terms of the contract,^ and that object is not' satisfied by the defendant's letter. I think therefore there was no note in writing of the contract sufficient to satisfy the statute. The next question is. Whether there was any acceptance or actual receipt of part of the property sold, so as to bring the case within the exception in the 17th section? and I think that there was no such acceptance or actual receipt. In all the cases cited, there has been something equivalent to an acceptance. In Chaplin v. Rogers ^ the vendee had sold the hay again, and the jury from thence drew the conclusion that there had been an actual acceptance. In Elmore V. Stone « the horses were purchased of a horse-dealer who kept a livery-stable. The buyer directed the seller to keep the horses at livery, and they were transferred from the sale to the livery-stable. The purchaser became liable to the livery-stable keeper for the keep, which could not have been tlie case unless the horses were supposed to have gone into his possession. The direction given by the vendee was considered equivalent to an acceptance or actual receipt of the horses. The vendor was converted into the agent of the vendee for the keep of the horses; and they might be considered as much in the possession of the vendee as if they had been in his own stable. For these reasons I am of opinion that there was not in this case any contract for the sale of an interest in land within the meaning of the 4th section of the statute, but that the contract was for the sale of goods, wares, aiK^ mer- chandise ; that there was no sufficient note in writing of the bargain, nor any part acceptance of the goods sold. The rule for entering a nonsuit must therefore be made absolute. LiTTLEDALE, J. I am of the same opinion. The intention of the Legislature in making the statute in question appears by the preamble to have been to prevent fraudulent practices, commonly endeavored to be upheld by perjury and subornation of perjury ; and for that purpose, in order to prevent them, it requires that the terms of contract shall be reduced to writing, or that some other requisite should be comidied ■with to show manifestly that the contract Avas completed. I infer from 1 See Seagood v. Meale, Prec. Chan. 500 ; Clerk v. Wright, 1 Atk. 12 ; Ayliffe i'. Tracy, 2 P. Wnis. 64. 2 1 East, 194. 8 1 Taunt. 458. 60 SMITH V. SURMAN. [CHAP. I. the iDreamble 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 exceeding three years, where the rent reserved dviring 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 those parol promises or agreements which, before the statute, were probably in most instances reduced into writing, but which need not have been so. Tliat section enacts that no action shall be brought in such cases, unless the agreement, or some note or memorandum thereof, shall be reduced into w^riting. The agreements therein described are a special promise by 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 making thereof 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 6th sections apply to devises of land. The 7th, 8th, 9th, 10th, and 11th, apply to declarations of trusts, and they are also required to be in writ- ing. The 12th section makes estates joer auter vie devisable. The 13th, 14th, 15th, and 16th sections apply to judgments and executions. The 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 something 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 properly authorized. Now, looking to the object of the statute as recited in the preamble, I collect it was the intention of the Legislature to comprehend within the 4th and 17th sections the subject-matter of evexy parol contract, the uncer- tainty in the terms of which was likely to produce peijury or suborna- tion of perjury. A contract for mere work and labor is not specifically mentioned in those clauses; such a contract therefore may not be within the statute. But where the contracting i^arties 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 SECT. IT.] SMITH V. SURMAN. 61 bestowing work and labor on his own raw materials : that is a case Avithin 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 tliat 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 moaning 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 tlie use of the land for a specific ])eriod. If in this case the contract had been for the sale of the trees, Avith 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 by 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 established that such a contract, whetlier 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 the ITtli section can at the time of the contract be earned into effect, the case is within it, although one cannot be complied Avith. There is another cliTss of cases,'- where the article contractetl for has not existed at the time of the contract, but is to be produced by Avork and labor to be bestowed by the Acndor; as Avhere the contract Avas for a quan- 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 Avithin the statute. The impression on my mind hoAVCA'cr is, that whercA^er the subject-matter at the time of the comjiletion of the contract is goods, wares, and merchandise, this section of the statute attaches upon it, although it 1 Rondeau v. Wyatt, 2 H. Bl. 67 ; Cooper v. Elston, 7 T. R. 14 ; Alexander v. Comber, 1 11. Bl. 21. 2 Towers v. Osborne, 1 Stra. 506 ; Groves v. Buck, 3 M. & S. 179. 62 SMITH V. SURMAN. [CHAP. I. 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 uncertainty in the terms of bargains to be completed at a future period, disputes are more likely to arise, and the consequent perjury which it was the object of the statute to jDrevent. In the case of the chariot, for instance, a dispute might at any time before its completion have arisen respecting the quality of the mate- rials 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 testimony 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 qual- ity. The defendant in his letter states that it was a contract, with a condition that the timber should be sound and good, though the plain- tifi" had subsequently denied that that was one of the terms of the conti-act. I tliink also, for the reasons stated by my brother Bayley, that there was no jiart acceptance of the goods to satisfy the statute. Park, J. Tlie defendant could take no interest in the land by this contract, because he could not acquire any property in the trees till they were cut. The contract was for the sale of goods, wares, and merchandise, Avithin the 17th section. In Groves v. Buck^ it was said that that section did n'ot apply to a sale of goods, which at the time of the contract were not capable of delivery and part acceptance. But that case was overruled by Garbutt v. Watson.^ It was there held that a contract by millers for the sale of a qiiantity of flouv, which at the time of the contract was not prepared and in a state capable of immediate delivery, was substantially a contract for the sale of flour, and not a contract for work and labor and materials found and pro- vided. The true question in such cases is as to whether the contract be substantially a contract for the sale of goods, or for work and labor and materials found. In this case the contract was substantially a sale of goods, viz., timber at so much per foot. Then assuming that there was a contract for the sale of goods within the 17th section, the ques- tion is. Whether there was any note or memorandum in writing of that contract, or any part acceptance of the goods ? The two letters do 1 See Ellison v. Brighara, 38 Vt. 64. — Ed. ^ 3 M. & S. 178. 3 5 B. & A. 613. SECT. II.] WATTS V. FRIEND. 63 not, in my judgment, amount to a note in writing of the contract; because the contract stated in the letter of the j)hiintiff's attorney is not adopted by the defendant in his. On tlie contrary, it is evident that the defenchmt has not assented to the contract stated by tlic phiin- tilil Then the only question is, Whether there has been a jtart accept- ance of tlie goods sold, and actual recei2)t of the same? In the older cases the court did not advert to the words of the statute. But the later cases ^ have established that, unless there has been such a dealing on the part of the purchaser as to dei)rive 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. Here there was nothing to show that the vendor had lost his lien for the price, or that the purchaser had lost his right to object to the quality. The rule for entering a nonsuit muj>* therefore be made absolute. d^^ l^"^! J'^^^'^^^^'lt ^- FRIEND. ^^ )J^^ ^^J'the King's Bench, January 28, 1830. r^^ yy [Reported in 10 Barnewall ^' Cresswell, 446.] 7^ Assumpsit on a special agreement between the plamtifl and defend- ant, that the former should furnish the latter with a certain quantity of turnip-seed, which he (defendant) should sow on his own land, and sell and deliver the whole of the seed produced therefrom to the plaintiff at the price of £1 Is. the Winchester bushel. Averment, that i)laintiff supplied the seed; that defendant sowed it, and harvested the croji, but did not sell and deliver the seed produced to the plaintiff, but wholly refused, &c. Plea, the general issue. At the trial before Lord Tenterden, C. J., at the Kent summer assizes, 1828, the facts stated in the declaration were proved ; and also that the seed produced was 240 bushels, and that the plaintiff could not at that time obtain it for less than £1 10s. the bushel ; but it was objected that the contract, which was verbal only, was within the 17th section of the Statute of Frauds, and therefore void.'' . . . 1 Howe V. Palmer, 3 B. & A. 321 ; Hanson v. Arniitage, 5 B. & A. 659 ; Carter v. Toussaint, 5 B. & A. S55 ; Tempest v. Fitzgerald, 3 B. & A. 680. 2 lu Rodwell r. riiillips, 'J M. & W. 501, d03, 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 land, hut 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 tlie parties had contracted for the sale of timber already felled." — Ed. 3 Only so mucli of this case is given as relates to the Statute of Frauds. — Ed. 64 SAINSBURY V. MATTHEWS. [CHAP. I. Lord Tenterden c-ave the defendant leave to move for a nonsuit on that point ; and the plaintiff having obtained a verdict, a rule nisi for a nonsuit was granted in Michaelmas term, 1828. Gurney and Comyn now shewed cause, and contended that the case did not fall within the 17th section of the Statute of Frauds. It was not a contract for goods and chattels, but for the crop to be pro- duced from seed which was not even sown at the time when the bar- gain was made. This is a stronger case than Towers v. Osborne,^ Clayton v. Andrews,^ or Groves v. Buck ; ^ for there the contract was for the sale of some articles to be made, the materials of which then existed. Here the bargain was for a thing of which no part was in existence at the time. Garbutt v. Watson* is distinguishable; that was a contract for the sale of flour ; the wheat from which it was to be made was in existence, and grinding was the only thing necessary to be done before the contract was performed. . . . SjKOikie, Serjt., contra, was stopped by the court. LoKD Tekterden, C. J. The rule for entering a nonsuit must be made absolute. According to good common sense, this must be con- sidered as substantially a contract for goods and chattels, for the thing to be delivered would, at the time of delivery, be a personal chattel.^ The case therefore axme ^\-ithin the 17th section of the Statute of Frauds ; and the contract being verbal only, and for goods of more than £10 value,.was not binding. . . . JRide absolute.^ SAINSBURY V. MATTHEWS. In the Exchequer, Michaelmas Term, 1838. [Reported in 4 Meeson vv SECT. II.] SAINSBURY V. MATTHEWS. 65 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, 1S:J6, the defendant said he had got 100 lugs of jtota- toes, and he would sell them at two shillings a sack. The plaintiff said he 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 accordingly sent diggers to take them up ; but the defendant refused to permit them to do so. The jury having found for the plaintiff, damages £5 10s., Croxcder now moved, pursuant to leave reserved by the learned judge, to enter a nonsuit, on the ground that this was the sale of an interest in land within tlie 4th section of the Statute of Frauds, and therefore required a note or memorandum in writing. The potatoes were not in such a shape at the time of the contract as that they could be transferred as chattels ; they were to be taken up when ripe by the vendee ; and he must necessarily have the benefit of the land for the three intervening months. [Parke, B. He was not to have them until he dug them up. Suppose a tempest had destroyed them in the mean time, whose would the loss have been ? It is only a contract to sell at a future day so many sacks of i)Otatoes, the produce of certain land.] In Parker v. Staniland ^ a similar contract for the sale of m-ow- ing potatoes at so much a sack was held not to be a sale of an interest in land, on the express ground that they were to be taken up by the defendant immediately, and it was therefore quite accidental if they derived any further advantage fi'om being in the land. Evans V. Koberts-is distinguished by the circumstance that there the })ota- toes were to be raised by the vendor for the vendee. The distinction taken in that case between crops which would be emblements, and the ordinary annual produce of land, appears hardly to be maintainable. In Earl of Falmouth v. Thomas ^ it was held that a contract to let with a farm certain growing crops upon it, at a valuation, was a contract for the sale of an interest in land. In Carriugton v. Koots ■* the same Avas held with respect to a contract for the sale of a growing crop of grass with liberty to the buyer to go upon the land to cut and carry it away. Lord Aiuxger, C. B. I think this was not a contract £rivino- an interest in the land ; it is only a contract to sell potatoes at so much a sack on a future day, to be taken up at the expense of the vendee. He must give notice to the defendant lor that purpose, and cannot come upon the land wlien he pleases. Parke, B. This is a contract for the sale of goods and chattels at a future day, the ])roduce 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 1 11 East, 362. 2 5 jj. & Cr. 829. 3 1 C. & M. 89. •« 2 M. & W. 248. VOL. I. 5 66 JONES V. FLINT. [chap. I. 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 pay 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 the authorities were reviewed, and the result of them clearly laid down. Gurnet, B., concurred. Hule refused. / I JONES V. FLINT. //^'^^^^^ 7^ In the Queen's Bench, June 21, 1839. ^ ^^^ [Reported in 10 Adolphus Sf Ellis, 753.] Debt for certain crops of growing wheat, barley, and potatoes^ bar- gained and sold by the plaintiff to the defendant; also for the use of certain land of plaintiff, and the eatage of grass, clover, and stubble thereon growing; and for £45 due to the" plaintiff on an account stated. On the trial before Bosanquet, J., at the Denbighshire spring assizes, 1837, it was proved that in August, 1835, the plaintiff and defendant agreed orally that the defendant should give £45 for the crop of com on the plaintiff's land, and the profit of the stubble afterwards ; that plaintiff was to have liberty for his cattle to run with the defendant's ; that defendant was also to have some potatoes growing on the land, and whatever lay grass was in the fields. Defendant was to harvest the corn and dig up the potatoes ; and plaintiff was to pay the tithe. It did not distinctly appear whether the sale was by the acre or not. The crops, &c., were taken by the defendant in conformity with the agreement. The defendant's counsel contended that the plaintiff was not entitled to recover, because the contract proved was for an interest in land within § 4 of the Statute of Frauds. The learned judge directed a verdict for the plaintiff, reserving leave to move for a nonsuit. In Easter term, 1837, Jervis obtained a rule accordingly.^ In Hilary term last ^ £elly and Welsby shewed cause. No interest in land passed by this contract. Nothing was sold but crops which at the time of the deliv- ery -would be goods within § 17 of stat. 29 C. 2, c. 3 ; and, as there has been acceptance, no writing was necessary. In Evans v. Roberts ^ it was held that a sale of growing potatoes was not a sale of an interest 1 The statement of the case has been somewhat curtailed. — Ed. 2 Tlmrsday, January 24th, 1839, before Lord Denman, C. J., Littledale, Williams, and Coleridge, JJ. 3 5 B. & C. 829. SECT. II,] JONES V. FLINT. 67 in land. In Crosby v. Wadsworth ^ tlie sale of a growing crop of hay was held to be a sale of an interest in land ; but there the vendee was to mow the hay. The doctrine ought not to be extended beyond the authorities ; for it is notorious that occupiers of land continually make such bargains without any notion of parting with an interest in the land, or of giving at the utmost more than a license. The buyer here would have been a trespasser if he had done more than carry away the crop. The inclination of the courts has latterly been to hold similar bargains not to be for interests in land. It was so held in Sainsbury v. Matthews,^ though the vendee was to find diggers. Parker v. Staniland ^ is in favor of the j)laintiif. Jervis and 3feeson, contra. Sainsbury v. Matthews* (as Parke, B., pointed out) was a mere case of a sale to the plaintiff of potatoes ; and the plaintiff, had the potatoes been destroyed before the time for digging arrived, would have had no other right to the land, though till that time the agreement was not perfected, because till then it would not be known what was sold. In Evans v. Roberts^ the vendor was to dig the potatoes : he could not therefore have parted with the interest in the land. In Parker v. Staniland '^ the land was a mere place of deposit, as the potatoes were to be taken immediately ; the land con- tributed nothing to the value of the article sold after the sale. Here the crops, which include the grass growing, were to continue on the land ; and the case therefore resembles Earl of Falmouth v. Thomas ^ and Carrington v. Roots,® where the contract was held to be for an interest in land. [Coleridge, J. In Earl of Falmouth v. Thomas ^ the plead- ings expressly connected the bargain as to the crops with an interest in land.] The decision proceeds on general grounds. In Carrington V. Roots ^° the question arose incidentally; and it was held that the vendee could not insist on his right to enter the land and take the crops, because by so doing he claimed an interest in land to which he was not entitled according to the Statute of Frauds. Cur. adv. vuli. Lord Denman, C. J., in this vacation (June 21st) delivered the judgment of the court. After stating the nature of the action, his Lordship proceeded as follows : — A motion for a nonsuit was made by leave, on the ground that the contract proved, which was oral only, was for an interest in land ; this was denied in answer ; and it was also contended that the state of the pleadings precluded the defendant from taking the objection. The contract was made in August, when the crops were not ripe, 1 6 East, 602. 2 4 m. & W. 343. » 11 East, 362. < 4 M. & W. 343. 5 5 B. & C. 829. 6 n East, 362. •J 1 C. &. M. 89 ; s. c. 3 Tyrwh. 26. 8 2 M. & \V. 248. 8 1 C. & M. 89 ; 8. c. 3 Tyrwh. 26. »0 2 M. & W. 248. 68 JONES V. FLINT. [CHAP. I. though nearly so ; and the witnesses who proved it stated it thus. [His Lordsliip then stated the terms of the contract as they are already given.] There was some dispute, upon the evidence, whether it was a sale by the acre or not. Nothing, it will be observed, was expressly agreed on as to the pos- session of the land. It will be our duty therefore in construing the contract as to this particular, to have regard to its subject-matter, and to imply so much, and only so much, as is necessary to give full effect to its expressed terms, nothing appearing in the subsequent acts of the parties to influence our construction either way. Three things were the subject-matter of the contract: crops of corn, potatoes, and the after eatage of stubble and lay grass. Of these all but the lay grass sirefructics industriales ; as such, they are seizable by the sheriff under r fieri facias, and go to the executor, not to the heir. If they had been ripe at the date of the contract, it may be considered now as quite settled that the contract would have been held to be a contract merely for the sale of goods and chattels. And, although they had still to derive nutriment from the land, yet a contract for the sale of them has been determined, fi-om this their original character, not to be on that account a contract for the sale of any interest in land. Evans v. Roberts ^ proceeds on this principle. That was a sale of grow- ino- potatoes. Holroyd, J., says : ^ " This is to be considered a contract for the sale of goods and chattels to be delivered at a future period. Although the vendee might have an incidental right, by virtue of his contract, to some benefit fi-om the land while the potatoes were arriv- ing at maturity, yet I think he had not an interest in the land within the meaning of this statute." And Littledale, J., says : ^ " I think that a sale of any growing produce of the earth (reared by labor and expense), in actual existence at the time of the contract, whether it be in a state of maturity or not, is not to be considered a sale of an inter- est in or concerning land, within the meaning of the 4th section of the Statute of Frauds." Bayley, J., lays down the same principle, and qualifies, not the judgment, but the dictum, of Mansfield, C. J., in Emmerson v. Heelis,'* which certainly is at variance with the decision of the Court of King's Bench in Evans v. Roberts.^ It was a dictum, however, unnecessary to the decision. The present case differs fi-om Evans v. Roberts ^ in this, that there the potatoes were to be dug up by the seller ; the judgments, how- ever, do not proceed on this distinction, although it was not unnoticed. Holroyd, J., expressly says '^ that, even if they were to be dug up by the buyer, " I think he would not have had an intersst in the land." And we agree that the safer grounds of decision are the legal character 1 5 B. & C. 829. 2 Page 837. ^ Page 840. * 2 Taunt. 47. » 5 B. & C. 829. 6 5 b. & C. 829. 1 Page 838. / SECT. II.] JONES V. FLINT. 69 of the principal subject-matter of sale, and the consideration whether, in order to effectuate the intentions of the parties, it be necessary to give the vendee an interest in the land.^ Tried by these tests, we think that, if the lay grass be excluded, the parties must be taken to have been dealino; about goods and chattels, and that an easement of the right to enter the land for the jtui-jiose of harvesting and carrying them away is all that was intended to be granted to the purchaser. It is very difficult to reconcile all the cases, and still more so all the dicta^ on this subject, from the case of Waddington v. Bristow^ to the present time ; and we are therefore left at liberty to abide by a general principle. Upon this principle, however, we are to examine whether the intro- \ duction of the lay grass into the contract ought to vary the decision. \ This is the natural produce of the land, not distinguishable from the land itself in legal contemplation until actual severance ; it passes accordingly to the heir, not to the executor ; and in Crosby v. Wads- worth* it was decided that the purchaser of a crop of mowing grass, unripe, and which he was to cut, took an exclusive interest in the land before severance. If therefore this be a case in which the parties intended a sale and purchase of the grass to be mowed or fed by the buyer, both on prin- ciple and authority the objection of the defendant must prevail. Looking however at the focts, we think this was not such a bargain. It may well be doubted, upon all the evidence, whether any thing that could be called a crop of grass w^as in the ground, or in the contempla- tion of the parties at all : for it does not appear that any clover or, other grass had been sown with the corn ; and the word " grass " seems mei-ely to have been adopted by the witness in cross-examination from the defendant's counsel. But, not relj-ing upon this, we find that the plaintiff was to pay the tithe, and that after the harvesting he reserved to himself the right of turning his own cattle into the fields ; and we think that, however expressed, the more reasonable construction of the contract is, that the possession of the field still remained with the owner "after the harvesting, as before ; it was not necessary to the vendee before, on account of the grass, because that, whatever it was, could not then be got at ; nor did it need preservation ; and afterwards it is more reasonable to consider the owner as agisting the vendee's 1 " When a sale of growing crops does, and when it does not, confer an interest in land, is often a question of much nicety ; but certainly, when the owner of the soil sells what is growing on the land, whether natural produce, as timber, grass, or apples, or friictus itidustriules, as corn, pulse, or the like, on the terms that he is to cut or sever them from the land, and then deliver them to the purchaser, the purchaser acquires no interest in the soil, which in such case is only in the nature of a warehouse for what is to come to him merely as a personal chattel." Per Kolfe, B., Wasiibourn v. Burrows, 1 Exch. 107, 115. — Ed.. 2 B. & r. 452. 3 6 East, 602. 70 HUMBLE V. MITCHELL. [CHAP. I. cattle, than as having his own cattle agisted by him whose interest at the best was of so very limited a nature. Upon these grounds, not impeaching the pi-inciple of Crosby v. Wadsworth,^ but deciding on the additional facts in this case, Ave think this incident in the contract does not alter its nature ; and the objec- tion founded on the statute will not prevail. This makes it unnecessary to consider the other points, and the rule will be discharged. . Mule discharged.^ i]kyy ^ ^^^^^ HUMBLE V. MITCHELL. r^ ^\0 ,7' In the Queen's Bench, November 27, 1839. t^ \Rej)orted in 11 Adolphus 4~ Ellis, 205.] Assumpsit by the pui'chaser of shares in a joint-stock company, called the Northern and Central Bank of England, against the vendor for refusing to sign a notice of transfer tendered to him for signature, and to deliver the certificates of the shares, without which the shares could not be transferred. 1 6 East, 602. 2 " It seems pretty plain upon principle that an agreement to transfer the property in something that is attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is to be trans- ferred, is an agreement for the sale of goods within the meaning of the 9 Geo. IV. c. 14, if not of the 29 Car. II. c. 3. The agreement is, that the thing shall be rendered into goods, and then in that state sold ; it is an executory agreement for the sale of goods not existing in that capacity at the time of the contract. And when the agree- ment is, that the property is to be transferred before the thing is severed, it seems clear enough that it is not a contract for the sale of goods : it is a contract for a sale, but the thing to be sold is not goods. If this be the principle, the true subject of inquiry in each case is, wlien do the parties intend that the property is to pass ? If the things perish by inevitable accident before tlie severance, whom do they mean to bear the loss f for in general that is a good test of whether they intend the property to pass or not ; in other words, if the contract be for the sale of the things after they have been severed from the land, so as to become the subject of larceny at common law, it is, at least since the 9 Geo. IV. c. 14, a contract for the sale of goods, wares, and merchandise within the 17th section. On the whole the cases are very much in conformity with these distinctions, though there is some authority for saying that a sale of emblements or fixtures, vesting an interest in them whilst in that capacity and before severance, is a sale of goods within the meaning of the 17th section of the Statute of Frauds, and a good deal of authority that such a sale is not a sale of an interest in land witliin the 4th section, which may however be the case, though it is not a sale of goods, wares, and merchandise within the 17th." Blackburn on Sale, pp. 9-11. " Growing crops, if fntctus i/idustriales, are chattels, and an agreement for the sale of them, whether mature or immature, whether the property in them is transferred before or after severance, is not an agreement for the sale of any interest in land, and SECT. II.] HUMBLE V. MITCHELL. 71 Pleas. 1. That the contract mentioned in the declaration was an entire contract for the sale of goods, wares, and merchandises, for a price exceeding £10, and that plaintiff had not accepted or received the said goods, &c., or any part thereof, and did not give any thing in earnest to bind the bargain or in part payment, and that no note or memorandum in writing of the bargain was made and signed by defendant or his agent thereunto lawfully authorized. Verification.^ . . . Replication, to the first plea, denying that the contract was for the sale of goods, wares, &c. Issue thereon. At the trial of the cause before Coleridge, J., at the Liverpool si)ring assizes, 1838, the jury found a verdict for the plaintiff, subject to a motion to enter a verdict for the defendant. In the following Easter term Alexander obtained a rule nisi according to the leave reserved, citing Ex parte Vallance.^ Cresswell and Crompton now shewed cause. . . . There is an essen- tial difference between the language of § 72 of the Bankrupt Act, 6 G. 4, c. 16, and of § 17 of the Statute of Frauds. The words of the for- mer are " goods and chattels ; " those of the latter are " goods, wares, is not governed by tlie 4th section of the Statute of Frauds. Growing crops, if fructus naturales, are part of the soil before severance, and an agreement therefore, vesting an interest in them in the purchaser before severance, is governed by the 4th section ; but ■^ if the interest is not to be vested till they are converted into chattels by severance, \ then the agreement is an executory agreement for the sale of goods, wares, and mer- '■ chandise, governed by the 17th, and not by the 4th section of the statute. " Wiiether fnictus indiisfn'alfs while still growing are not only chattels, but ' goods, wares, and merchandise,' has not, it is believed, been directly decided. Both Bayley, J., and Littledale, J., expressed an opinion in the affirmative in Evans v. Roberts, 5 B. & C. 837, 840; and Mr. Taylor, in his Treatise on Evidence (§ 953, ed. I8G4), treats the proposition as being perfectly clear in the same sense. Blackburn, J., on the contrary, says that the proposition is 'exceedingly questionable' (Bl. on Sale, p. 20), and that no authority was given for it in Evans v. Roberts. Mr. Taylor cites no authority for liis ojjinion. The cases bearing on this point are Mayfield v. Wadsley, 3 B. & Cr. 357, and Hallen v. Runder, 1 Cr. M. & Ros. 267. In the former, an outgoing tenant obtained a verdict, which was upheld, on a count for crops bargained and sold, against an incoming tenant who liad agreed to take them at a valuation ; and in the latter, counts for fixtures bargained and sold were held sufficient; but Blackburn, J., observes on these cases, first, that in Hallen v. Runder the court expressly decided that an agreement for the sale of fixtures between the landlord and tlie outgoing tenant was not a sale of goods, either within the Statute of Frauds, or the meaning of a count for goods sold and delivered ; and, secondly, that in both cases tlie land itself was to pass to the purcliaser, and the agreement was therefore rather an abandon- ment of the vendor's right to diminish the value of the land than a sale of any thing. The learned author in another passage (p. 17) says that ' they are certainly chattels, but they are not goods, but are so far a part of the soil that larceny at common law could not be committed on them;' and Lord EUenborough was also of this opinion. (Parker v. Staniland. 11 East, 365.) This point must, it is apprehended, be considered as still undetermined." Benjamin on Sale, p. 94. — Ed. 1 There was a second plea ; but, as it raised a wholly different question, it is omitted, as well as the arguments and decision upon it. — Ed. 2 2 Deacon, B. C. 354. 72 HUMBLE V. MITCHELL. [CHAP. I. and merchandises." The word " chattel " is more comprehensive than any word used in the Statute of Frauds, and has been construed to inchide debts, bills, bonds, policies of insurance, and shares in a joint- stock company, all of which pass to the assignees when in the posses- sion, order, or disposition of the bankrupt. Hornblower v. Proud.^ Here no stock, goods, or tangible property passed to the plaintiff but only a right to participate in the partnership profits, from whatever source those profits might be derived. A mere right of action is a chattel within the Bankrupt Act ; but the merchandises within the meaning of the Statute of Frauds must be such as are capable of part delivery. The owner of a share is not necessarily entitled to any of the real or personal estate or property of the company ; or, if he is, the defendant has not proved it. Alexander, contra. . . . There is no direct authority in point ; but the language of the Bankrupt Act is not substantially difierent from that of the Statute of Frauds ; and it has been frequently decided that shares in public companies are " goods and chattels " of which a bank- rupt may be the reputed owner so as to vest them in the assignees. Ex parte Burbridge,'^ Ex parte Ord,^ Ex parte Vallance.* In Hall V. Franklin ^ it was held that a banking company is a trading company. Lord Dexmax, C. J. . . . The point is whether the shares in this company are goods, wares, or merchandises, within the meaning of § 17 of the Statute of Frauds. It appears that no case has been found directly in point ; but it is contended that the decisions upon reputed ownership are applicable, and that there is no material distinction between the words used in the Statute of Frauds, and in the Bankrupt Act. I think that both the language and the intention of the two acts are distinguishable, and that the decisions upon the latter act cannot be reasonably extended to the Statute of Frauds. Shares in a joint- stock company like this are mere choses in action, incapable of dehvery, and not within the scope of the 17th section. A contract in writing was therefore unnecessary. Pattesox, Williams, and Coleridge, JJ., concurred. Mule discharged. 1 2 B. & Aid. 327. 2 l*Deacon, B. C. 131. » 1 Deacon, B. C. 166. 4 2 Deacon, B. C. 854. » 3 M. & W. 259. DUNNE V. FERGUSON. 73 f y DUNNE V. FERGUSON. In the Irish Exchequer, May 11, 1832. [Reported in Hayes, 540.] Trover for five acres of turnips, containing a large quantity, to wit, 5000 cart-loads, &c. In October, 1830, the defendant sold to the plain- tifl" a crop of turnips which he had sown a short time previously, for a sura less than £10. In February, 1831, and previously, while the tur- nips were still in the ground, the defendant severed and carried aAvay considerable quantities of them, which he converted to his own use, and for Vhich the present action was brought. No note in writing was made of the bargain. The action was tried before Joy, C. B., at the sittings in Easter tenn, 1831, w-hen the jury found a verdict for the plaintiff, subject to certain points which were saved by the learned judge for the opinion of the court ; it being contended for the defend- ant that the action of trover did not lie for things annexed to the free- hold ; and that the contract was of no validity for want of a note or memorandimi in writing, pursuant to the Statute of Frauds. J. D. Jackson, for the defendant. The i)laintiff has mistaken his remedy. Trespass would have been the proper form of action. Wil- son V. Mackreth,! Crosby v. Wadsworth,^ Tompkinson v. Russell.^ To sustain the action of trover, the plaintiff must show that the sub- ject of it is a personal chattel; and that at the time of the alleged conversion he was entitled to the possession of it. In the present instance he can do neither ; and this is in fact an action of trover for the land. Co. Litt. 4 h. The turnips being totally unfit for use at the time of the contract made, and in fact not taken to market until Christ- mas, it was clearly the sale of an interest in land (Emmerson y. Heelis,* Scorell V. Boxall s), since the purchaser might have insisted on their remaining in the ground : that being so, the contract ought to have been evidenced by some note in writing, pursuant to the statute. For want of it, it falls to the ground (Waddington v. Bristow «) ; and the turnips must be taken to be the property of the defendant who sowed them, and to whom the field belonged. This is quite distinguishable from Parker v. Staniland,'' where the potatoes were sold at so much per sack, and were to be taken up immediately. /. Ilatchell and R. Ilohart, contra. The simple question is, whether these turnips were or not personal chattels. If they were not, the action cannot be sustained. It by no means necessarily follows that, 1 3 Burr. 1824. * 2 Taunt. 38. 1 11 East, 362. 2 6 East, 602. 5 1 Y. & J. 396. 3 9 Price, 287. 6 2 Bos. & Pul. 452. 74 DUNNE V. FERGUSON. [CHAP. I. because the crop was not sent to market until Christmas, it was not ripe in October ; and even thougli that were so, it does not follow that it was not a sale of goods and chattels. A growing crop of potatoes sold in September has been held not to be a contract for the sale of lands, but of goods. Evans v. Roberts,^ Warwick v. Bruce.^ So a sale of growing timber by parol has been held to be good within the Statute of Frauds. Anonymous,^ Smith v. Surman.* The same has been held of growing wheat. Mayfield v. Wadsley.^ In Joyce v. Hayman ° trover was brought for twenty acres of barley ; and although it was strongly insisted that the action did not lie, yet the Court of King's Bench held the contrary. Whether the crops be gi-owing or not, it is clear that they would be emblements, would go to the executor, and might be seized under an execution. Keller^ in reply. That was a motion in arrest of judgment ; and the only question there was as to the meaning of the word " acres." In Mayfield v. Wadsley the question is misstated in the marginal note, and was merely whether or not the contract was executed. The true criterion for deciding the question between the parties is, whether at the time of sale the crop had or not ceased to grow. If it was a growing crop, and still receiving nourishment from the soil, trover will not lie for it. Cur. adv. vult. Jot, C. B. The general question for our decision is, whether in this case there has been a contract for an interest concerning lands, within the 2d section of the Statute of Frauds ; or whether it merely con- cerned goods and chattels: and that question resolves itself into another, whether or not a growing crop is goods and chattels. The decisions have been very contradictory, — a result which is always to be expected when the judges give themselves up to fine distinctions. 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,, they were an inter- est in lands. Such a course always involves the judge in perplexity, and the cases in obscurity. Another criterion must therefore be had recourse to; and fortunately 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 legal consequences of being goods, as seizure in execution, &c. 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 satisfiictorily decided. If, before the statute, a growing crop had been held to be an interest in lands, it 1 5 B. & Cr. 829. 2 2 M. & S. 205. 3 i Lord Raym. 182. * 9 B. & Cr. 561. 5 3 B. & Cr. 357. ^ k. B. Ire. T. T. 1831, 4 L. Rec. 273. SECT. II.] TISDALE V. HARRIS. 75 would come witliin the 2d section of the act ; but if it were only goods and chattels, then it came within the 13th section. On this, the only rational ground, the cases of Evans v. Roberts,^ Smith v. Surman,^ and Scorcll v. Boxall'have all been decided. And as we think that groM'ing crops have all the consequences of chattels, and are like them liable to be taken in execution, we must rule the points saved for the plaintiff. Smith, B., concurred. Pennefather, B. My Lord Chief Baron has put on very clear grounds a question which has hitherto been much confused. FosTEU, B., concun-edi )^ V U^, r SAM^L T. TISDALE v. JAMES HARRIS. C /p^PREME Judicial Court of Massachusetts, June 28, 1837, and ^ ^,1^ March 12, 1838. [Reported ?n 20 PicLennfj, 9.] Assumpsit by the plaintiff, an inhabitant of New York, against the defendant, a merchant of Boston, on a contract alleged to have been made in October, 1835, by which the defendant agreed to sell to the plaintiff 200 shares, with all the earnings thereon, in the capital stock of the Collins Manuflicturing Company, a corporation established in Connecticut, at 610.80 per share, the par value being $10 per share. The object of the suit was to recover $300, being the amount of a dividend of 15 per cent, on the 200 shares, declared on the 7th of October, 1835, and payable on the 15th. At the trial before Shaw, C. J., Nathaniel Curtis, Jr., of the firm of Curtis & Leaving, being called as a witness by the plaintiff to prove the contract and the breach, the defendant objected to any parol evi- dence of the contract, because the contract was reduced to writing, and he produced a memorandum as follows, dated Boston, Oct. 14, 1835, directed to the defendant and signed by Curtis & Leavins: "Sir, When you will furnish the certificate of 200 shares in the Collins Man- ufacturing Company to Mr. Samuel T. Tisdale, of New York, we hereby agree to pay you for the same at 108 cents per dollar or 8 per cent, advance on the par amount of 610 each." But it was ruled that this paiier was not to be considered as the contract of the defendant to sell, but of the plaintiff by his agents to pay; that if the contract of 1 5 B. & Cr. 829. '^ 9 B. & Cr. 561. s i y. & j. 396. * Approved and followed in Green v. Armstrong, 1 Denio, 550 ; Buck v. Pickwell, 1 WiUiams (Vt.), 157; Kingsley v. Holbrook, 45 N. H. 313. — Ed. 76 TISDALE V. HARRIS. [CHAP. I. the defendant to sell was not reduced to writing, the objection to the parol evidence coiild not prevail. The ^dtness testified that at the request of the plaintiff he applied to the defendant about the 10th of October, 1835, in order to ascertain whether he would sell his shares ; that the defendant said he was dis- posed to sell them at a fair price ; that subsequently the witness offered him the par value ; that the defendant said he would not sell at that rate, and that he had been recently informed that there would probably be a dividend of 10 per cent, in December ; that the witness took the refusal of them at 110.80 per share until he could hear from New York; that having received a letter from the plaintiff, dated October 13th, he called on the defendant and asked him whether in offering the shares he intended to include all the earnings, and the defendant said yes, all that belongs to them, all that they have earned ; that the wit- ness read to the defendant the letter of October 13th, in which the plaintiff says he will take the stock at $10.80 cash, all earnings or divi- dends of the company up to the time of sale to be included; that the defendant wrote a letter to his agent at Hartford, instructing him to transfer the shares into the name of the plaintiff, and send the certifi- cate to the defendant, and the defendant handed the letter to the wit- ness to forward, which he did ; that the defendant said he did not know the plaintiff, and he thought, as the shares would be transferred, he ought to have something to seciire him, to which the witness assented, and the defendant wrote the memorandum which the witness signed, agreeing to pay him the money ; that after sufficient time had elapsed for an answer, the ^vitness called on the defendant, and at that time both the witness and the defendant had received information that a dividend of 15 per cent, had been declared upon the shares; that at subsequent interviews the witness demanded the certificate of stock with an authority to receive the dividend, and was ready thereupon to pay the money, but the defendant declined giving the authority to receive the dividend ; that some weeks afterwards, and after this action had been commenced, the defendant called on the fatness for the money and threatened to sue him upon the contract which he had given for the plaintiff, if he did not pay it ; whereupon the witness took the certificate and paid the money, but under an express declaration that it was not to prejudice the claim of the plaintifi" for the dividend. The question of fact was left to the jury, whether the bargaui made by the defendant for the sale of the shares included all dividends then due or growing due, with directions, if it did, to find a verdict for the plaintiff; otherwise to find a verdict for the defendant. A verdict was returned for the plaintiff; which the defendant moved to set aside : 1. Because parol evidence was admitted to add to and vary a written contract made subsequently to the conversation and letters referred to ; 2. Because the contract set up was within the Stat- SECT. II. J TISDALE V. HARRIS. 77 ute of Frauds, being a contract for the sale of goods, wares, or mer- chandise, for the price of fifty doUars or more, under which at the time of action brought there had been no acceptance of the same or any part thereof by the purdinser, nor any earnest or ])art pa}Tnent made, and so was incapable of proof otherwise than by memorandimi in writ- ing signed by the defendant or his agent. Bartlett and F. C. Loring^ in su])port of tlie motion, cited to the point that the contract related to goods or merchandise, and so was Avithin the Statute of F'rauds, Jacob's Law Diet. voc. Chattels; Anon. 1 P. AVms. 267 ; Ford and Sheldon's Case, 12 Co. 1 ; Ryall y. Rolle, 1 Atk. 165; Roberts on Fr. 184; 2 Stark. Evid. (4th Amer. ed.) 6U8; 2 Phillips on Evid. (6th ed.) 94; Pickering v. Appleby, Comyns, 354; Colt V. Nettervill, 2 P. Wms. 307 ; Mussell w. Cooke, Prec. Chan. 533. C. P. Curtis and B. B. Curtis, contra, cited in reference to the same point King v. Capper, 5 Price, 217; Wildman v. Wildman, 9 Ves. 177 ; Eden on Bankr. 10 ; 2 Bl. Com. 476 ; Crull v. Dodson, Select Cas. in Chan, 114; Latham v. Barber, 6 T. R. 67; Dorriens v. Hutchinson, 1 Smith, 420 ; Bordenave v. Gregory, 5 East, 107 ; Wickes v. Gordon, 2 Barn. & Aid. 335; 3 Chitty's Laws of Commerce, &c., 92, 284; Nightingal v. Devisme, 5 Burr. 2592. Shaw, C. J., delivered the opinion of the court. Several points reserved at the trial of this cause are now waived, and the motion made by the defendant for a new trial is placed on two grounds. First, that under the circumstances parol evidence was not admissi- ble, because the contract of the pai-ties was reduced to writing, and that such writing was the best evidence. But the court are of opinion that the objection is not sustained by the fact. Xo contract in writing was made by the defendant with the plaintiflF to sell those shares. After the negotiation had resulted in an agreement, the agent of the plaintifi; in the name of his firm, gave the defendant a memorandum in writing, undertaking to pay the money on the performance of the defendant's agreement to transfer the shares. But it was not signed by the defendant, nor by any person for him, nor did it purport to express his agreement. The court are therefore of opinion that, the defendant's agreement not being reduced to writing, the parol evidence was rightly admitted. But by far the most important question in the case arises on the objection that the case is within the Statute of Frauds. This statute, which is copied precisely from the English statute, is as follows: "No contract for the sale of goods, wares, or merchandise, for the price of ten pounds (!ii33.33) or more, shall be allowed to be good, except the purchaser shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part payment, 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 agent thereunto lawfully authorized." 78 TISDALE V. HARRIS. [CHAP. I. This being a contract for the sale of shares in an incoi'porated com- pany in a neighboring State for the price of more than ten pounds, auJ on part having been delivered, and no purchase money or earnest paid, the question is, whether it can be allowed to be good without a note or memorandum in writing, signed by the party to be charged wdth it. This depends upon the question, whether such shares are goods, wares, or merchandise, within the true meaning of the statute. It is somcAvhat remarkable that this question, arising on the stat. 29 Car. 2, in the same terms which ours has copied, has not been definitively settled in England. In the case of Pickering v. Appleby, Com. Rep. 354, the case was directly and fully argued before the twelve judges, who were equally divided upon it. But in several other cases after- wards determined in chancery the better opinion seemed to be that shares in incorporated companies were within the statute as goods or merchandise. Mussell v. Cooke, Prec. in Ch. 533 ; Crull v. Dodson, Sel. Cas. in Ch. 113. We are inclined to the opinion that the weight of authorities in modern times is, that contracts for the sale of stocks and shares in incoii^orated companies for more than ten pounds, are not valid, ixnless there has been a note or memorandum in writing, or earnest or part payment. 4 Wheaton, 89, note ; 3 Starkie on Evid. (4th Amer. ed.) 608. Supposing this a new question, now for the first time calling for a construction of the statute, the court are of opinion that, as well by its tei'ms as its general policy, stocks are fairly within its operation. The words "goods" and "merchandise" are both of very large signification. J^ona, as used in the civil law, is almost as extensive as personal prop- erty itself, and in many respects it has nearly as large a signification in the common law. The word " merchandise " also, including in general objects of ti-aftic and commerce, is broad enough to include stocks or shares in incorporated companies. There are many cases indeed in which it has been held in England that buying and selling stocks did not subject a person to the ojjeration of the bankrupt laws, and thence it has been argued that they cannot be considered as merchandise, because bankruptcy extends to persons usino; the trade of merchandise. But it must be recollected that the banki'upt acts were deemed to be highly jDenal and coercive, and tended to deprive a man in trade of all his j^roperty. But most joint-stock companies were founded on the hypothesis at least, that most of the shareholders took shares as an investment and not as an object of traffic ; and the construction in question only decided that, by taking and holding such shares merely as an investment, a man should not be deemed a merchant so as to subject himself to the highly coercive process of the bankrupt laws. These cases therefore do not bear much on the general question. BECT. II.] TISDALE V. HARRIS. 79 The main argument relied upon by those who contend that shares are not Avitliin the statute is this : That statute provides that such con- tract shall not be good, &c., among other things, except the purchaser shall acce])t part of the goods. From this it is argued that, by neces- sary implication, the statute applies only to goods of "which part may be delivered. This seems, however, to be rather a narrow and forced construction. The provision is general that no contract for the sale of goods, etc., shall be allowed to be good. The exception is when part are delivered ; but if part cannot be delivered, then the exception can- not exist to take the case out of the general prohibition. The provis- ion extended to a great variety of objects, and the exception may well be construed to apply only to such of those objects to Avhich it is applicable, without afiecting others to which from their nature it can- not apply. There is nothing in the nature of stocks or shares in companies, which in reason or sound policy should exempt contracts in respect to them from those reasonable restrictions designed by the statute to prevent frauds in the sale of other commodities. On the contrary, these companies have become so numerous, so large an amount of the prop- erty of the community is now invested in them, and as the ordinary indicia of jjroperty arising from delivery and possession cannot take place, there seems to be peculiar reason for extending the provisions of this statute to them. As they may properly be included under the term " goods," as they are within the reason and policy of the act, the court are of opinion that a contract for the sale of shares, in the absence of the other recLuisites, must be jjroved by some note or memorandum in writing; and as there was no such memorandum in writing in the present case, the plaintiff is not entitled to maintain this action. As to the argument that here was a part perfonnance by a payment of the money on one side and the delivery of the certificate on the other, these acts took place after this action was brought, and cannot there- fore be relied upon to show a cause of action when the action was com- menced. Verdict set aside, and 2)laintiff nonsuit} 1 And see North v. Forest, 15 Conn. 400, and Colvin v. Williams, 3 Har. &, John. 38, ace. — Ed. y/« ^'r^ whitakesh v. walker. [chap. I. Ft •■a WHITMARSH v. HEZEKIAH WALKER, Jb. p Supreme Judicial Court of Massachusetts, September Term, 1840. [Reported in 1 Metcalf, 313.] Assumpsit for money had and received, and on an agreement set forth with slight variations in different comits, but in all of them in substance as follows, viz., that in September, 1838, the plaintiff at the defendant's request bought of him a great number of multicaulis mul- berry-trees at the rate of twenty-five cents per hill, to be dejivered on the ground where th'ey then were pn^eijiand by the plaintiff| thattne' ptaiTitiff then paic[ llO in part of the price, and promised to pay" the residue of the price on the delivery of the trees ; and that in consid- eration thereof the defendant then promised to deliver the trees to the plaintiff on demand. A demand by the plaintiff was alleged, and also an offer of payment by him, and a refusal by the defendant to deliver. It appeared at the trial before Wilde, J., that the agreement declared on was made, but not reduced to writing ; that the jDrice of the trees was more than |50, but that the plaintiff paid |10 as alleged in the declaration ; and that the trees, at the time of the agreement, were growing in the defendant's dose, and were nursery trees raised to be sold and transj^lanted. The defendant objected that the agreement was void by the Statute of Frauds. The judge overruled the objection, and a verdict was found for the plaintiff. New trial to be had if the judge erred. Wells^ for the defendant, cited Emmerson v. Heelis, 2, Taunt. 38; Mayfield v. Wadsley, 3 Barn. & Cres. 357 ; Earl of Falmouth v. Thomas, 1 Crompt. & Mees. 89 ; Scorell v. Boxall, 1 Younge & Jerv. 396 ; Shel- ton V. Livius, 2 Tyrw. 420 ; Crosby v. Wadsworth, 6 East, 602 ;' Com. Dig., Biens (H.) ; 1 Swift's Digest (ed. of 1822), 258. Huntington^ for the plaintiff, relied on Miller v. Baker, 1 Met. 27, as having decided that the trees were personal j^roperty. He also cited 1 Chit. Gen. Pract. 93; 1 Ld. Raym. 182, ^er Treby, C. J.; Erskme V. Plummer, 7 Greenl. 447 ; Latham v. Atwood, Cro. Car. 515 ; Parker V. Staniland, 11 East, 362 ; Warwick v. Bruce, 2 M. & S. 205 ; Evans V. Roberts, 8 Dowl. & Ryl. 611 ; Smith v. Surman, 9 Barn. & Cres. 561 ; Bostwick V. Leach, 3 Day, 484; Benedict v. Benedict, 5 Day, 478; Newcomb v. Ramer, 2 Johns. 421, note ; Austin v. Sawyer, 9 Cow. 39 ; Mumford v. Whitney, 15 Wend. 380. Wilde, J. This action is founded on a parol agi-eement, 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 SECT. II.] WHITMARSH V. WALKER. 81 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 pajinent 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 Avhich 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 aj)pertain 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 the general rule, but are to be consid- ered as personal chattels. This question Avas discussed and considered in Miller i'. Baker (1 Met. 27), and we do not deem it necessary to recon- sider 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 contract of sale consummated at the time of the agreement ; for the delivery Avas 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 Avilling to complete the payment of the stipulated price. Sainsbury v. Matthews, 4 Mees. & "VYelsb. 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 Avas ready to complete the pa}'Tnent of the price ; nor could the defendant maintain an action for the price Avitliout proving that he was ready and offered to deliver the trees. According to the true construction' of the contract, as Ave 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 deli\'er them to him on demand ; he at the same time paying the defendant the residue of the price. And it is immaterial whether the seA'erance Avas to be made by the plaintiff or the defend- ant. For a license for the plaintiff to enter and remove the trees Avould pass no interest in the land, and Avould, Avithout Avriting, be valid, notAvithstanding the Statute of Frauds. This subject Avas fully considered in the case of Tayler i'. Waters, 7 Taunt. 374 ; and it Avas held that a beneficial license, to be exercised upon land, may be granted without deed and Avithout Avriting; and that such a license, granted for a A^aluable consideration and acted upon, cannot be countermanded. The subject has also been ably and VOL. I. 6 82 BALDWIN V. WILLIAMS. [CHAP. I. elaborately discussed by Chief Justice Savage in the case of Mumford V. Whitney, 15 Wend. 380, in which all the authorities are reviewed; and we concur in the doctrine as therein laid down, namely, that a per- manent 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 justly 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 and to dehver 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} LUKE BALDWIN w. AARON D. WILLIAMS. Supreme Judicial Court of Massachusetts, November Term, 1841. [Reported in 3 Metcalf, 365.] This case was tried before Wilde, J., who made the following report of it : — This was an action of assumpsit, and the declaration set forth an agreement of the plaintiff that he would bargain, sell, assign, transfer, and set over to the defendant, and indorse without recourse to him, the plaintiff, in any event, two notes of hand by him held, signed by S. J. Gardner; one dated April 24th, 1835, for the papnent of 11,500; the other dated May 5th, 1836, for the payment of $500 ; and both payable to the plaintiff or order on the 3d of April, 1839, with interest from their dates. The declaration set forth an agreement by the defendant, in consideration of the plaintiff's agreement aforesaid, 1 See Smith v. Bryan, 5 Maryland, 141. — Ed. SECT. II.] BALDWIN V. WILLIAMS. 83 and in payment for said Gardner's said notes, to i)ay tlic plaintiflf $1,000 in cash, and to give the plaintiff" a post note, made by the Lafayette Bank, for $1,000, and also a note signed by J. B. Russell & Co. and indorsed by D. W. Williams for $1,000. The plaintiff" at the trial proved an oral agreement with the de- fendant as set forth in the declaration, and an ofl'er by the plaintiff" to comply with his pait of said agreement, and a tender of said Gardner's said notes, indorsed by the jilaintiff" without recourse to him in any event, and a demand upon the defendant to fulfil his part of said agreement, and the refusal of the defendant to do so. But the plain- tiff" introduced no evidence tending to show that any thing passed between the parties at the time of making the said agreement, or was given in earnest to bind the bargain. The judge advised a nonsuit upon this evidence, because the con- tract was not in writing nor proved by any note or memorandum in writing signed by the defendant or his agent, and nothing was received by the purchaser, nor given in earnest to bind the bargain. A nonsuit was accordingly entered, Avhich is to stand if in the opinion of the whole court the agreement set forth in the declaration falls within the Statute of Frauds (Rev. Sts., c. 74, § 4) ; otherwise, the non- suit to be taken oflT, and a new trial granted. Clar/ce, for the plaintiflf. The contract declared on is not for a sale, but for an exchange ; and exchanges are not Avithin the Statute of Frauds. Roberts on Frauds, 164, note (81). The Rev. Sts. c. 74, § 4, apply only to a " contract for the sale of any goods, wares, or mer- chandise ; " and choses in action fall within neither of these terms. Swinb., Part VIII. §10; 3 Bl. Com. 145; 1 Chit. Gen. Pract. 97; Green v. Symonds, 1 Bro. C. C. 129, note ; 1 Roper on Leg. (1st Amer. ed.) 190; 1 Phil. Ins. (lsted.)66; Whiton v. Old Colony Ins. Co., 2 Met. 1 ; 2 Williams on Executors, 749. The decision of this court in Tisdale v. Han-is, 20 Pick. 9, that a contract for the sale of shares in a manufacturing corporation is within the Statute of Frauds, is directly contrary to a decision since made by the Court of King's Bench in England. In Humble v. Mitchell, 11 Adolph. & Ellis, 207, it was held that a contract for the sale of shares in a joint-stock banking company need not be in writing. Lord Den- man said, " Shares in a joint-stock company like this are mere choses in action, incapable of delivery, and not within the scope of the 17th section " of the St. 29 Car. II. c. 3, which is like § 4 of c. 74 of our Rev. Sts. S. D. Parker, for the defendant. The case of Tisdale v. Harris is decisive of the case at bar. Promissory notes are " goods," and for many purposes they are "merchandise." Bona notahilia include notes and bills of exchange, and the place of administration is deter- mined by the locality of such choses in action. 1 Williams on Execu- tors, 177, 178. 84 BALDWIN V. WILLIAMS. [CHAP. I. The declaration shows a contract of sale, and not of exchange. If it does not, there is no cause of action on the record. But an ex- change of goods is a barter sale. It is not necessary that money should be received or be stipulated for, in order to constitute a sale. Wilde, J. This action is founded on an oral contract, and the question is, whether it is a contract of sale within the Statute of Frauds. The plaintiff's counsel contends in the first place that the contract is not a contract for the sale of the notes mentioned in the declaration, but a mere agreement for the exchange of them; and in the second place that if the agreement is to be considered as a contract of sale, yet it is not a contract within that statute. As to the first point, the defendant's counsel contends that an agree- ment to exchange notes is a mutual contract of sale. But it is not necessary to decide this question, for the agreement of the defendant, as alleged in the declaration, was to pay for the plaintiff's two notes 61,000 in cash, in addition to two other notes; and that this was a contract of sale is, we think, very clear. The other question is more doubtful. But the better opinion seems to us to be, that this is a contract Avithin the true meaning of the Statute of Frauds. It is certainly within the mischief thereby intended to be prevented ; and the words of the statute, " goods " and " mer- chandise," are sufl'iciently comprehensive to include promissory notes of hand. The word " goods " is a word of large signification ; and so is the word "merchandise." Jlerx est quicquid vendi x>otest. In Tisdale v. Hams, 20 Pick. 9, it w^as decided that a contract for the sale of shares in a manufacturing corporation is a contract for the sale of goods or merchandise within the statute ; and the reasons on which that decision was founded seem fully to authorize a similar decision as to promissory notes of hand. A different decision has re- cently been made in England in Humble v. Mitchell, 3 Perry & Davi- son, 141 ; s. c. 11 Adolph. & Ellis, 207. In that case it was decided that a contract for the sale of shares in a joint-stock banking company was not within the Statute of Frauds. But it seems to us that the reasoning in the case of Tisdale v. Harris is very cogent and satis- factory ; and it is supported by several other cases. In Mills v. Gore, 20 Pick. 28, it was decided that a bill in equity might be maintained to compel the re-delivery of a deed and a promissory note of hand, on the provision in the Rev. Sts. c. 81, § 8, w^hich gives the court jui'isdic- tion in all suits to compel the re-delivery of any goods or chattels whatsoever, taken and detained from the owner thereof, and secreted or withheld, so that the same cannot be replevied. And the same point was decided in Clapp v. Shephard, 23 Pick. 228. In a former statute (St. 1823, c. 140), there was a similar provision which ex- tended expressly to "any goods or chattels, deed, bond, note, bill, SECT. III.] BALDEY V. PARKER. 85 specialty, writing, or other personal property." And the learned Com- missioners, in a note on the Rev. Sts. c. 81, § 8, say that the Avords " ' goods or chattels ' are supposed to comprehend the several partic- ulars immediately folloAving them in St. 1823, c. 140, as well as many others that are not mentioned." The word " chattels " is not contained in the provision of the Stat- ute of Frauds ; but personal chattels are movable goods, and so far as these words may relate to the question under consideration they seem to have the same meaning. But however this may be, we think the present case cannot be distinguished in princiijle from Tisdale v. Harris ; and upon the authority of that case, taking into consideration again the reasons and })rinciples on which it was de- cided, we are of opinion that the contract in question is within the Statute of Frauds, and consequently that the motion to set aside the nonsuit must be overruled. =/>' ^ > SECTION III J ^ " FoTythe Price of Ten Pounds Sterling or Upwa ly ^ V BALDEY AND Another v. PARIvER. J^^ > \} V ?• ' ^^ '^°^ King's Bench, June 5, 1823. -V^ Assumpsit for goods sold and delivered. Plea, general issue. At PV^ the trial before Abbott, C. J., at the London sittings after Trinity term, 1822, the following appeared to be the llicts of the case : The plaintiffs are linen-drapers, and the defendant came to their shop and bargained for various articles. A^ separate price was agreed upon for each, and no one article was of the value of £10. Some were measured in his presence; some he marked with a pencil; others he assisted in cutting from a larger bulk. He then desired an account of the whole to be sent to his house, and went away. A bill of parcels was accordingly made out and sent by a shopman. The amount of the goods was £70. The defendant looked at the account, and asked what discount would bo allowed for ready money, and was told £5 per cent. ; he replied that it was too little, and requested to see the person of whom he bought tho goods (Baldey), as he could bargain with him respecting the discount, and said that he ought to be allowed £20 per cent. The goods were afterwards sent to the defendant's house, and he refused to accept 86 BALDEY V. PARKER. [CHAP. I. them. The Lord Chief Justice thought that this was a contract for goods of more than the value of £10 within the meaning of the 17th section of the Statute of Frauds, and not within any of the exceptions there mentioned, and directed a nonsuit ; but gave the plaintiiFs leave to move to enter a verdict in their favor for £70. A rule having accord- ingly been obtained for that purpose, Scarlett and K Zaices now shewed cause. It is quite clear that thia was an entire contract for the whole of the goods. Suppose after the bargain for them all was made, the plaintiffs had refused to let the defendant have some one particular article, they could not have com- pelled him to take the residue ; or if one of the articles when sent home differed from that bargained for, the purchaser might have rejected the Avhole, for no jury would ever have found that there were separate contracts, and have compelled him to take that part which corresponded with the order. Then as to the supposed acceptance, the plaintiffs always retained their lien for the price ; the defendant had no right to take away the goods without paying for them, nor could he have maintained trover without tendering the price. There was not then any such change of possession as contemplated by the statute. Denman and Piatt, contra. The plaintiffs are entitled to a verdict on both grounds. For there was a separate and distinct bargain for each article ; and even if that were not so, the defendant accepted the goods, so as to take the case out of the Statute of Frauds. Whether the contracts w^ere several or not cannot depend upon the time when the various articles were purchased, but upon what passed at the mak- ing of the bargain. Now it was distinctly proved that a separate price was fixed upon each article, and the purchase of each Avas complete before the parties went on to bargain for any others. If that be not so, it will be difficult to detenuine what space of time must elapse between the purchase of any two articles, in order to make the con- tracts separate. In Emmerson v. Heelis^ it was held that the pur- chaser of several lots at an auction was to be considered as making a separate contract for each lot. Had the defendant left the shop for a few minutes between the purchase of each article, that certainly Avould have made them separate contracts, and there does not appear to be any substantial difference between such a case and the present. Then as to the second point, there was a comjilete delivery and acceptance within the meaning of the statute. There was a complete change in the state of the property. The defendant assisted in measuring the arti- cles, and in severing them from the bulk ; the price of each was fixed ; so that nothing remained to be done before they were to be delivered to the defendant. The change of property was therefore complete. Rugg V. Minett.2 Some the defendant actually marked with a pencil ; and in Hodcrson v. Le Bret ^ that was considered as an acceptance. So I 2 Taunt. 38. « 11 East, 210. » 1 Campb. 233. SECT. III.] BALDEY V. PARKER. 87 also was cutting off the pegs in pipes of wine. Anderson v. Scot.^ The policy of the Statute of Frauds was, that a more verbal agreement should not hind ; hut it does not apply where any act has been done to shew the approval of the contract. Chaplin r. Rogers,^ Elmore V. Stone,^ Searle and others v. Keeves.* [HoLnoYD, J. Hanson v. Armitage ^ and Carter v. Toussaint ® are strong authorities against you.] In the former the purchaser had not exercised any judgment on the article ordered, and in the latter the firing of the horse was the act of both parties, and not done to shew an approval of the contract. Neither does HoAve v. Palmer^ apply^ foi' the goods were severed by the vendor alone. With respect to the vendor's right of lien, tliat has never been decided to be the criterion by which cases of this nature are to be judged of. Indeed lien unports that the property has passed. [IIol- BOYD, J. If t}ie property has passed subject to a hen, is that a delivery and acceptance within the meaning of the statute ?] Abbott, C. J. We have given our opinion upon more than one occasion that the 29 Car. 2, c. 3, is a highly beneficial and remedial statute. We are therefore bovmd so to construe it as to further the object and intention of the Legislature, which was the prevention of fraud. It appeared from the facts of this case that the defendant went into the plaintifi^'s shop and bargained for various articles. Some were severed from a larger bulk, and some he marked in order to satisfy himself that the same were afterwards sent home to him. The first question is whether this was one entire contract for the sale of all the goods. By holding that it was not, we should entirely defeat the object of the statute. For then persons intending to buy many articles at one time, amounting in the whole to a large price, might withdraw the case from the operation of the statute by making a separate bargain for each article. Looking at the whole transaction, I am of opinion that the parties must be considered to have made one entire contract for the whole of the articles. The plaintifis therefore cannot maintain this action unless they can shew that the case is within the exception of the 29 Car. 2, c. 3, § 17. Now the words of that exception are peculiar, "except the buyer shall accept part of the goods so sold, and actually receive the same." It would be difilcult to find Avords more distinctly denoting an actual transfer of the article from the seller, and an actual taking possession of it by the buyer. If we held that such a transfer and acceptance were complete in this case, it Avould seem to follow as a necessary consequence that the vendee might maintain trover without paying for the goods, and leave the vendor to his action for the price. Such a doctrine wovdd be highly injurious to trade, and it is satisfixc- tory to find that the law warrants us in saying that this transaction had no such effect. I 1 Campb. 235, n 'M East, 192. ^ i Taunt. 458. * 2 Esp. 698. 5 6 B. & A. 557. « 5 B. & A. 855. ' 3 B. & A. 321. 88 BALDEY V. PARKER. [CHAP. I. Bayley, J. The buyer cannot be considered to have actually- received the goods, when they have remained from first to last in the possession of the seller. The plaintiiFs are not assisted by the excep- tion in the 17th section of the Statute of Frauds. Then the question is, whether there was a separate contract for each article. The 29 Car. 2, c. 3, was passed to guard against frauds and perjuries ; and it must be collected from the 17th section that the Legislature thought that a contract to the extent of £10 might be sufficient to induce the parties to it to briusf tainted evidence into court. Now it is conceded here that on the same day, and indeed at the same meeting, the defendant contracted with the plaintijBs for the purchase of goods to a much greater amount than £10. Had the entire value been set upon the whole goods together, there cannot be a doubt of its being a contract for a greater amount than £10 within the 17th section of the statute ; and I think that the circumstance of a separate price being fixed upon each article makes no such diffi3rence as will take the case out of the operation of that law. It has been asked what interval of time must elapse between the purchase of different articles in order to make the contract separate ; and the case has been put of a purchaser leaving a shop after making one purchase, and returning after an interval of five or ten minutes and making another. If the return to the shop were soon enough to warrant a supposition that the whole was intended to be one transaction, I should hold it one entire contract within the meaning of the statute. I am therefore of opinion that this rule must be discharged. HoLROYD, J. I am of the same opinion. The intention of the stat- ute was that certain requisites should be observed in all contracts for the sale of goods for the price of £10 and upwards. This was all one transaction, though composed of different parts. At first it appears to have been a contract for goods of less value than £10, but in the course of the dealing it grew to a contract for a much larger amount. At last therefore it was one entire contract within the meaning and mischief of the Statute of Frauds, it being the intention of that statute that where the contract, either at the commencement or at the conclusion, amounted to or exceeded the value of £10, it should not bind unless the requisites there mentioned were complied with. The danger of false testimony is quite as great where the bargain is ultimately of the value of £10, as if it had been originally of that amount. It must therefore be considered as one contract within the meaning of the act. With respect to the exception in the 17th section, it may perhaps have been the intention of the Legislature to guard against mistake where the parties mean honestly as well as against wilful fraud ; and the things required to be done will have the effect of answering both those ends. The words are, " except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to SECT. III.] BALDEY V. PARKER. 89 bind the bargain or in part of payment, or that some note or memo- randum in Avriting of tlie said bargain be made and signed by the par- ties to be cliarged by such contract, or their agents thei-eunto hiwfully authorized." Eacli of those particulars cither slicws the l>argaiii to be complete, or still further that it has been actually in j)art ])erformed. The change of possession does not in ordinary cases take place until the completion of the bargain ; part payment also shews the comple- tion of it; and in like manner a note or memorandum in writing signed by the ]>arties ])lainly proves that they undei"stood the terms u];)on which they were dealing, and meant finally to bind themselves by the contract therein stated. In the jiresent case there is nothing to shew that some further arrangement might not remain unsettled after the price for each article had been agreed upon. There was neither note nor memorandum in writing; no part of the price was paid, nor was there any such change of ])Ossession as that contemplated by the stat- ute. 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 from acce[)ting and receiving them as his own within the meaning of the statute. Best, J. It was formerly considered that a delivery of the goods by the seller was sufficient to take a case out of the 17th section of the Statute of Frauds ; but it is now clearly settled that there must be an acceptance by the buyer as well as a delivery by the seller. The stat- ute enacts that, Avhere the bargain is for something to the value of £10, it shall not bind, unless something unequivocal has been done to shew that the contract is complete. Nothing of that kind having been done in this case, if the dealing is to be considered as one entire transaction it is clear that the plaintiffs cannot recover : whatever this might have been at the beginning, it was clearly at the close one bargain for the whole of the articles. The account Avas all made out together, and the conversation about discount Avas with reference to the whole account. It is therefore very distinguishable from Emmorson v. Hee- lis, where a complete bargain was made as to each article as soon as the auctioneer had signed his name to it. Hide discharged. ^ 1 See Champion v. Short, 1 Canapb. 53. — Ed. HARM AN V. REEVE. [chap. I. HARMAN V. REEVE. Common Pleas, May 31, 1856. {Reported in 25 Law Journal Reports, Common Pleas, 257.] The declaration stated that on the 28th of June, 1855, in consider- ation that the plaintiff bargained with the defendant to sell, and then sold to him, a certain mare and foal, and that the plaintiff would at his own expense keep and feed the said mare and foal for a certain time, to wit, until Michaelmas then next ensuing, and that the plain- tiff would at his own ex^Dense maintain, feed, and keep a certain other mare and foal belonging to the defendant for and during the period oi six weeks, the defendant agreed to purchase from the plaintiff the mare and foal first-mentioned, and to fetch the same away from the plaintiff's at Michaelmas aforesaid, and pay to the plaintiff the sum of £30. Averment of performance by the plaintiff of all things on his part to be performed ; and that all things had happened to entitle the plaintiff to have the contract performed on the defendant's part. Breach, that the defendant did not nor would fetch away the mare and foal so agreed to be purchased and fetched away, or either of them, or pay to the plaintiff the said sum of £30. Special damage. Plea denying the contract. The cause was tried before Jervis, C. J., at the last spring assizes for Norfolk, when, the plaintiff having proved his case as stated in the declaration, it was objected on behalf of the defendant that the con- tract Avas not in writing, as required by the 17th section of the Statute of Frauds ; whereupon his Lordship nonsuited the plaintiff, and reserved leave to him to move to enter a verdict for £30. O'Malley having obtained a rule nisi accordingly, Byles^ Serjt., now shewed cause. One part of the contract, viz., that which relates to the sale of the plaintiff's mare and foal (which are admitted to have been above the value of £10) Avas clearly within the 17th section of the Statute of Frauds ; but the other part, which relates to the agistment of the defendant's mare and foal, was not ; and the question arises, how for that section applies to such a contract. The words of that section are, " That no contract for the sale of any goods, Avares, and merchandises, for the j^rice of £10 sterling or upAvards, shall be alloAved to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part payment, or that 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 law- fully authorized." This is not the case of a divisible contract, for the SECT. III.] HARMAN V. REEVE. 91 consideration on one side is the payment of an entire sum. Then the cases of Mayfield v. Wadsley ^ and Meclielcn v. WaHace - shew that a contract may be within the statute, thouoli the statute does not apply to the whole of it. In the Latter case the point arose under the 4th section, but that makes no difference as regards the present question. Then arc there any circumstances wliich take the case out of the statute ? It will perhajjs be urged, on behalf of the plaintiff, that the defendant l)y allowing the mare and foal to remain with the plaintiff constituted the plaintiff the defendant's bailee, and that so there was a delivery and acceptance. But still the plaintiff had a lien for the price, and Avithout payment the defendant could not have obtained possession, and to satisfy the statute there must be both acceptance and delivery of the goods sold, such as will deprive the vendor of his lien for the price. Tempest v. Fitzgerald,'^ Holmes v. Hoskins,* Bill v. Bament.^ The present case cannot be distinguished from Holmes v. Hoskins. [WiLLiA]\rs, J. In that case the agistment of the cattle was no part of the original bargain.] That makes the case a stronger authority in favor of the present argument that the bailment does not amount to a dehvery and accept- ance to satisfy the statute. As regards the agistment of the defend- ant's mare and foal, it cannot be said that it was any part of the thing sold. It is an easement conferring a settlement (Rex v. Tollpuddle *'), and if included in the sale ought to have been in writing. Nor can it be said that any grass was sold ; and if any was sold, grass growing is not goods within the meaning of the statute ; none was sold, and none was accepted and received. O'MaUetj and Couch, in support of the rule. The defendant's argu- ment amounts to this, that if there be a contract for ever so great an amount not within the statute, yet if an article of the value of £10 be included in it the whole contract is brought within the statute. Sup- pose A. contracts by parol to train twenty horses for B., and it is part of the bargain that B. shall purchase a horse of A. for more than £10, can it be contended that if A. trains the twenty horses he cannot recover because of the 17th section ? [Jervis, C. J. It does not follow that he may not recover for the training if it has been done. Your argument is, that the bargain as to the training takes the sale of the horse out of the statute.] If the words of the first portion of the 17th section arc to be enlarged so as to include a contract for the sale of goods and for something else &^ 1 3 B. & C. 357 ; s. c. 3 Law J. Rep. K. B. 31. 2 7 Ad. & E. 49 ; s. c. 6 Law J. Rep. (n. s.) K. B. 217. 3 3 B. &, Aid. 680. * 9 Exch. Rep. 753. 5 9 Mee. & W. 36; s. c 11 Law J. Rep. (n. s.) Exch. 81. 6 4 Term Rep. 071. 92 HARMAN V. REEVE. [CHAP. I. not within the statute, the words of the latter part of the section must be enlarged also, so as to make the acceptance and receipt of any part of the subject-matter of the contract an acceptance and receipt within the meaning of the section. Then there has been such an acceptance and receipt in the pi-esent case, for the defendant has had the six weeks' keep of his mare and foal which he contracted for ; he has had the benefit of a substantial part of the entire contract. [Jervis, C. J. Have you considered whether the plaintiff could not have recovered for the six weeks' keep upon the principle suggested by Bayley, B., in Wood v. Benson ? ^ He says, " It by no means follows that because you cannot sustain a contract in the whole, you cannot sustain it in part, provided your declaration be so framed as to meet the proof of that part of the contract which is good." The plaintiff here has elected to sue on the entire contract.] [Williams, J. The same principle is referred to in Lord Falmouth V. Thomas^ and Thomas v. Williams.^] The contract is indivisible, and the plaintiff cannot be put to sue for a portion only. He may well say, I would not have contracted to agist the defendant's mare and foal at all, or at the price, unless the defendant purchased my mare and foal. All that is required by the statute is some evidence to shew that the contract was made, as was said by Alderson, B., in Scott v. The Eastern Counties Railway Com- pany : ^ " If I make a contract for goods already made and goods to be made, and I accept the goods made, it shews that I made the con- tract ; which is what the act means." Elliott v. Thomas ^ establishes the same construction. There was such evidence in this case. But the 17th section has no application to a mixed contract like the pres- ent. The cases cited on the other side were decided on the 4th sec- tion, and do not apply. That section contains an absolute prohibition ■with respect to the subject-matters referred to in it, viz., the sale of lands, without reference to the value or any thing else ; and it may weU be that a contract for the sale of lands of the value of £1 and of goods of the value of £100 should be absolutely void, unless in writing, by reason of that absolute prohibition. But the 17th section allows other evidence of the contract besides writing. The case of Mayfield v. Wadsley does not decide that a mixed contract is within the 17th sec- tion, and in Mechelen v. Wallace the hiring of the house and furniture was one contract and could not be divided, for unless the party hiring got the house he could not enjoy the furaiture, and the 4th section applied. Further, on the face of this contract it cannot be said that 1 2 Cr. & J. 95. 2 1 Cr. & M. 89 ; s. c. 2 Law J. Rep. (n. s.) Exch. 57. 3 10 B. & C. 664 ; s. c. 8 Law J. Rep. K. B. 314. * 12 Mee. & "W. 33 ; s. c. 13 Law J. Rep. (n. s.) Exch. U. 5 3 Ibid. 170; s. c. 7 Law J. Rep. (n. s.) Excb. 129. SECT. III.] BARMAN V. REEVE. 93 the mare and foal were sold at the price of £10 so as to bring the case Avithin the words of the 17th section. [.Jervis, J. That might have been shewn by parol. This was a sale of an article to be delivered at a future day, and the 7th section of Lord Tenterden's Act, 9 Geo. 4, c. 1-4, substitutes the M'ord "value" for " price."] [Hyles, Serjt., referred to Lord Abinger's judgment in Scott v. The Eastern Counties Railway Company, that the two statutes must be construed as incorporated together.] As to the argument that the contract for agistment ought to have been in writing as being for an interest in land, Jones v. Flint ^ decides the contrary. The cases of Tempest v. Fitzgerald and Holmes v. Hos- kins are distinguishable, for in the present case the agistment was a material part of the original contract, whereas in those it was not. Jervis, C. J. I am of opinion that this rule should be discharged. It is now Avell settled that the 7th section of Lord Tenterden's Act, 9 Geo. 4, c. 14, and the 17th section of the Statute of Frauds are to be read together, and the enactments of the latter statute are extended to all contracts for the sale of goods of the value of £10 and upwards. The effect of that is to substitute the word " value " for the word "jirice " in the 17th section of the Statute of Frauds, so as to adopt one uniform rule in all cases ; and the 17th section must now be read, " no contract for the sale of any goods, &c., of the value of £10 or upwards, shall be allowed to be good, except the buyei'snall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said bargain be made," &c. Xow the present is the case of a contract for the sale of goods above the value of £10, for there is no doubt that the plaintiff's mare and foal were worth more than £10 ; and although that may not very distinctly appear upon the fiice of the contract, still it might and would have been shcAvn by parol evidence. Then it is a contract for the sale of the plaintiff's mare and foal above the value of £10 ; and it is not the less so because something else is included in it ; and there is no note or memorandum in TO'iting, Prima facie, therefore, the case is within the statute, the principal subject-matter of the contract being the sale of the plaintifl^'s mare and foal to the defendant, the rest being merely ancillary to it ; but even if this be not so, it is still a contract for the sale of goods above the value of £10, and as such I think cannot be enforced. But then it is argued that there has been an acceptance, which takes the case out of the statute. I think not, for there has been no acceptance of the " goods so sold," — tliat is, of the plaintiff's mare and foal, — but the defendant has had the enjoyment of something else engrafled upon the contract, and that does not satisfy the statute. And there is 1 10 Ad. & E. 753 ; 6. c. 9 Law J. "Rep. (n. s.) Q. B. 252. 94 HARMAN V. REEVE. [CHAP. I. no hardship in our so deciding, for the plaintiff is still at liberty to re- cover for the price of the agistment of the defendant's mare and foal. The answer given to this suggestion by Mr. Couch is, that the plain- tiff would not have contracted for the agistment of the defendant's mare and foal unless the whole contract had been entered into, and that it is unfair that he should recover for j^art only. But that is a sort of thing that occurs daily. I agree to let a house to a man for a term of years, and he enters under the jiromise of a lease and occu- pies for a year, when I sue him for use and occupation. It would be no answer for him to say, " I should not have entered at all, unless you had agreed to grant me a lease." If entitled to a lease, it is his own fault if he does not get it ; and it is no reason because by his own fault he has failed to get all he was entitled to, that he should not pay for what he has had. In this case the plaintiff may recover for the agistment of the defendant's mare and foal when he properly sues for it ; but he cannot recover the price of his own mare and foal. " It by no means follows," as said by Bayley, B., " because you cannot sustain a contract in the whole, you cannot sustain it in part, provided your declaration be so framed as to meet the jDroof of that part of the contract which is good." Williams, J. I am of the same opinion. It is admitted that this is a contract for the sale of goods of the value of £10 and upwards. The contract price which the defendant was to pay, £30, included other matters not within the statute, but the price was indivisible, and the contract w^as properly declared on as an entire contract ; and I do not think it comes within the class of cases alluded to by Bayley, B., for it is not a contract capable of being divided. That being so, the cases decided under the 4th section of the Statute of Frauds are analogous to the present, and this is the case of a contract for the sale of goods of the value of £10 which cannot be enforced because it is not brought within any of the excej^tions mentioned in the 17th section. It is clear that the buyer did not give any thing in earnest to bind the bargain or in part payment, and that there w\as no memoran- dum in writing ; and the only question is, whether there has been an acceptance and receipt of part of the goods so sold. I think that it cannot by any latitude of construction be so said, and that the case was not brought within any of the exceptions. I agree with the Lord Chief Justice, that although the plaintiff is not in a condition to en- force this contract, he may nevertheless enforce the contract which the law will imply from the defendant's enjoyment of that which he has enjoyed. Crowdee, J. I am of the same opinion. This is an entire con- tract for £30, and it was argued that, because there was no fixed price for the mare and foal, the case did not fall within the statute. But looking at the 7th section of Lord Tenterden's Act with the SECT. IV.] SEARLE V. KEEVES. 95 17tli section of the Stati;te of Frauds, the question is, whether this is not a contract for the sale of goods of the vahic of £10 or upwards. It could not be disputed upon the argument that the marc and foal were the principal suhject-matter of the contract, and that the agist- ment was but an inferior part of it ; and although that is included in it, the contract for the sale of the mare and foal still remains, and clearly comes within the meaning of the 17th section. The contract is entire, and cannot be sued on unless it is in writing, or brought within some one of the other exceptions in that section. Be- ing within the statute, the only question is, whether there has been any acceptance of the goods so sold. The goods so sold in this case were the mare and foal, not the agistment ; there has been no acceptance of them, and it is impossible to say there has been any acceptance of any part of the goods so sold within the meaning of the statute, and I think therefg^i-e that this rule should be discharged. Hule discharged} .^^- ^y. SECTlto ^Mxcept the Buyer shall accept Part of the Goods so sold, and actually receive the same.''^ ^ SEARLE ET Alt. v. ICEEVES. .' At Guildhall, coram Eyre, C. J., December, 1797. [Reported in 2 Espinasse, 598.] This was an action on the case for the non-performance of a contract. Plea, 710)1 assumj^sit. The declaration stated that, in consideration that the plaintiff had bought of the defendant twenty baiTels of rice, at the price of 17s. per hundred weight, the defendant undertook to deliver that quantity, and assigned the breach in the non-delivery. ^ Willes, J., had gone to chambers. 2 "If Mc seek for the meaning of the enactment, judging merely from its words, and without reference to decisions, it seems that this provision is not comphed with unless the two things concur : the buyer must accept, and he must actually receive part of the goods ; and the contract will not be good unless he does both. And this is to be borne in mind, for as there may be an actual receipt without any acceptance, so may there be an acceptance without any receipt. In the absence of authority, and judging merely from the ordinary meaning of language, one would sa^' that an accept- ance of part of the goods is an assent by the buyer, meant to be final, that this part of 96 SEARLE V. KEEVES." [CHAP. I. The evidence for the plaintiffs in support of this declaration was, that on the 26th of September one of the plaintiffs having been at the the goods is to be taken by him as his property under the contract, and as so far satis- fying tlie contract. So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fulfilment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuses the goods, assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted them. The question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts. " The receipt of part of the goods is the taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a receipt is often evidence of an accept- ance, but it is not the same thing ; indeed the receipt by the buyer may be, and oft'eri is, for the express purpose of seeing whether he will accept or not. If goods of a particular description are ordered to be sent by a carrier, the buyer must in every case receive the package to see whether it answers his order or not ; it may even be reason- able to try part of the goods by using them ; but though this is a very actual receipt, it is no acceptance so long as the buyer can consistently object to the goods as not answering his order. It follows from this that a receipt of goods by a carrier or on board ship, though a sufficient delivery to the purchaser, is not an acceptance by him so as to bind the contract ; for the carrier, if he be an agent to receive, is clearly not one to accept the goods. " On the whole the cases are pretty consistent with these suggestions and with each other, as to what forms an acceptance within the statute, though not as to the strength of the proof required to establish it. On the question of what constitutes an actual receipt there is some diflSculty in reconciling the cases, but we shall return to this part of the subject after citing a few cases to shew what is an acceptance." Blackburn on Sale, pp. 22-24. " The cases, as has been already observed, are not quite so easily reconciled upon the question of what constitutes an actual receipt. There can be no question that an actual removal of the goods by the purchaser is an actual receipt by him ; and when the goods are in tiie hands of a third party, it is pretty clear that as soon as the ven- dor, the purchaser, and the bailee agree together that the bailee shall cease to hold the goods for the vendor and shall hold them for the purchaser, that is an actual receipt by the purchaser, though the goods themselves remain untouched. They were in the possession of an agent for the vendor and so in contemplation of law in that of the vendor himself, and they become in the possession of an agent for the purchaser and so in that of the purchaser himself; and it can make no difference whether this is by a change in the person of the holder of the goods or merely in his character. So far the question of whether there has been a receipt of part of the goods by the purchaser or not is identically the same as whether the vendor has so parted with possession as to put an end to his lien as to that part of the goods. . . . But when the goods are in the custody of the vendor himself or his immediate servants, and not of a middleman, there is a difficulty. It will be seen in its proper place that when the purchaser or his assigns and the vendor come to an agreement that the vendor shall cease to hold the goods as vendor, and shall hold them as an agent of the owner of the goods, his rights as vendor are gone ; and though the cases now show that such an agreement between the vendor and the original purchaser himself must be proved by stronger evidence than one between him and a sub-vendee, it does not seem disputed that such an agreement may be made. At one time the weight of authority was that such an agreement was to be readily presumed ; now the weight of authority is that such an agreement must be very distinctly proved, and that unless the vendor's Uen on some part of the goods be gone there cannot be an actual receipt." Id., pp. 28-29, SECT. IV.] CHAPLIN V. ROGERS. 97 house of the defendant, the defendant told him that he had a quantity of rice to sell, but there was no evidence to prove any contract made at that time. The plaintiffs produced an order on Bennet & Co. to deliver to them 20 barrels of rice, Avhich was signed by Keeves ; and witnesses proved that Keeves had told him [tlicm] that he had sold 20 barrels of rice to Mr. Searle, at 17s. per hundred; and that he was a fool for selling it so soon, as the price of rice had advanced. The jilaintiffs then proved the delivery of the order for the rice to the warehouseman of Bennet tfc Co. ; and that, the rice not being then taken away, Keeves on the 2d of October countermanded the delivery to Searle the plaintiff, in consequence of which Bennet & Co. refused to deliver the rice to Searle, who sent for it on the 10th of October following. The counsel for the defendant contended that as to this count the plaintiffs ought to be nonsuited; they said that the Statute of Frauds in all cases of sales of goods required a note in T\Titing specifying the terms of the contract, and being meant to guard against fraud in con- tracts made it necessary to specify particularly what the temis of the sale were : in this case there was no specification of the terms ; the only evidence was the order for the delivery by the defendant, which did not si)ecify any thing as to the price, so that it was not a sufficient note in writing under the statute. Etke, C. J. The Statute of Frauds does not attach where there has been earnest or a delivery of a part of the things sold ; I think there has been in this case a delivery of the whole. Keeves the defendant gave an order for the delivery upon Bennet & Co., in whose possession the rice then was ; this satisfies the statute, and the plaintifis are entitled to recover. The plaintiffs accordingly had a verdict. i^ CHAPLIN V. ROGERS. '^ ^X^ ' ^ ■5 ' In the King's Bench, January 29, 1800. / ' {Reported in 1 East, 192.] In an action for goods sold and delivered the case proved was that, the parties being together in the plaintiff's farm-yard, the defendant, after some objections and doubts upon the quality of a stack of hay (particularly the inside part) then standing in the yard, agreed to take it at 26'. Qd. per hundred weight. Soon after he sent a fiarmer to look at it, whose opinion was unfavorable. But about two mouths after- VOL. I. 7 98 CHAPLIN V. EOGERS. [CHAP. I. wards another farmer of the name of Loft agreed with the defendant for the piirchase of some of this hay still standing nntonched in the plaintiff's yard, and the defendant told Loft to go there and ask what condition it was in, saying he had only agreed for it if it were good. The plaintiff having infonned Loft it was in a good state, he agreed to give the defendant 3s. 9J. per hundred weight for it, the defendant having told him that he had agreed to give the plaintiff 3s. 6d. for it. Loft thereupon brought away thirty-six hundred weight ; but this latter fact was without the knowledge and against the direction of the defendant. There was a contrariety of evidence as to the quality of the hay when the stack was afterAvards cut. At the trial before Hotham, B., on the last Norfolk circuit, Sellon, Serjt., for the defendant, objected that the contract of sale was fraudulent and void by the Statute of Frauds, being for the sale of a commodity no part of which was delivered, and of which there was no acceptance by the defendant. But the learned judge left it to the jury to decide whether the sale had been fraudulent, and whether under the circumstances there had been an acceptance by the defendant ; and they found for the plaintiff on both points, and gave him £50 damages, being the value of the hay at the price agreed for. 1\\ the last term a rule was obtained calling on the plaintiff to shew cause why the verdict should not be set aside and a new trial had, on the grounds that the learned judge had left that as a question of fact to the jury which he himself ought to have decided as an objection in point of law arising on the Statute of Frauds ; and because the evidence did not warrant the verdict. Wilson now shewed cause. The objection may either be regarded as arising upon the Statute of Frauds,^ or upon the form of the count for goods sold and delivered, which requires proof of a delivery as well as a sale. Now there was sufficient evidence of a dehvery to and acceptance by the defendant, and the jury having found the fact with the plaintiff the case is taken out of the Statute of Frauds. The bulk of the commodity purchased precluded any actual delivery of it ; but that which took place was tantamount to it. Both parties were upon the spot at the time, and considei'ed the bargain as concluded and the stack in the possession of the defendant. The defendant afterwards acted upon it as such, and sold part of it to another person, which is evidence in itself of his having taken possession of it. Besides, that person actually removed part of it away ; and though this is stated to have been against the defendant's direction, yet that cannot avail as between these parties, with resj^ect to whom Loft must be considered as the defendant's agent acting within the scope of his authority, the excess being without the knowledge of the plaintiff. The question of fraud left to the jury was as to the existence of any fraud in fact. Garrow^ contra. The form of the declaration required proof of a 1 29 Car. 2, c. 3, § 17. SECT. IV.] KENT V. HUSKINSON. 99 delivery in fact of the goods, otherwise the count for goods bargained and sold would be useless. Though the jury were the proper judges how far the plaintiff had been guilty of any fraud in fact, yet the judge ought to have decided upon the question of law submitted to him, whether upon the case proved it did not fall witliin the Statute of Frauds. Lord Ivenyon", C. J. It is of great consequence to preserve unim- paired the several provisions of the Statute of Frauds, which is one of the Aviscst laws in our statute book. My opinion Avill not infrino-e upon it ; for here the report states that the question was specifically left to the jury whether or not there were an acceptance of the hay by the defendant, and they have found that there was, which puts an end to any question of law. I do not mean to disturb the settled construc- tion of the statute, that in order to take a contract for the sale of goods of this value out of it there must be either a part deliverv of the thin» or a i>art papnent of the consideration, or the agreement must be reduced to Avriting in the manner therein specified. But I am not sat- isfied in this case that the jury have not done rightly in findino- the fact of a delivery. Where goods are ponderous, and incapable as here of being handed from one to another, there need not be an actual delivery ; but it may be done by that Avhich is tantamount, such as the delivery of the key of a warehouse in Avhich the goods are lodged, or by^livery of other indicia of property. Now here the defendant dealt with this commodity afterwards as if it were in his actual posses- sion ; for he sold part of it to another person. Therefore, as upon the whole justice has been done, the verdict ought to stand. The other judges agreed that there was sufficient evidence of a deUvery to and acceptance by the defendant to leave to the jury » /* i/v^ Hule discharged. ^ y %% Y^l'^KENT SKENSON. In the Common Pleas, November 19, 1802. [Reported in 3 Bosanquet ^/>^^ L\ THE King's Bench, June 20, 1806. "y^X^^V [Rejwrted in 7 East, 558-1 ^y /t/'^^ In assumpsit the plaintiff declared that on the 20th of September, 1805, at Livei-pool, he was lawfully possessed of 300 lihds. of sugar, then lying in a certain warehouse there, and caused them to be put up for sale by public auction upon the following conditions : " The highest bidder to be the purchaser, and in case of dispute the lot to be put up again. The sugars to be taken with all faults and defects as they now are, at the king's weights and tares, with the allowance of draft, or re-weighed giving up the draft. To be at the purchaser's risk from the time of sale ; and to be positively removed within two months, or rent to be paid for any longer time they may remain. Payment to be made on delivery of invoices by approved bills on London to the satisfaction of the seller not exceeding three months' date, Not to advance less than Scl per cwt. at each bidding." Of which conditions the defendants had notice. That the defendants were the highest bidders at such sale for two lots of the said sugars, consisting of 27 hhds., and became purchasers of the same at the price of 74s. per cwt. at the king's weights and tares, with the allowance of draft. That the price of the 27 hhds. amounted to £1265 Us. M. That the plaintiff on the 23d of September delivered to the defend- ants an invoice of the 27 hhds., wheretipon they became liable to pay him the £1265 lis. 3(7. But that the defendants did not make pay- ment, &c. There were other counts laying the contract more gener- SECT. IV.] HINDE V. WHITEHOUSE. 103 ally. To all which the defendants pleaded the general issue. The cause was tried before Rooke, J., at the last assizes at Lancaster ; and the point in dispute was, whether the plaintiff or defendants should bear the loss of the sugars in question, which were knocked down to the defendants by the auctioneer on the 20th of September, and which were burned on the 22d of September by an accidental fire in one of the king's warehouses at Liverpool, where they were de- posited. It was proved that tlie sugars, after being landed at Liver- pool on the plaintiff's account, were deposited in one of the king's warehouses there, under the locks of the king and of the plaintiff, fi-om Avhence they could not be removed until the duties were ])aid. Previous to the sale samples were taken of the sugars, about half a pound weight out of each hhd., according to custom. The printed catalogues of goods for sale were made out in this form and dis- tributed : — To be sold by auction, at Waterhouse and Sill's office, on Friday, the 20th of Sep- tember, 1805, at 1 o'clock, GOO hhds. Jamaica sugar, just landed. For particulars apply to Thomas Hinde, merchant, or Waterhouse and Sill, brokers. Lot. Mark. Hhds. Gross Wt. 1 LA. 10 119 3 9 2 — 10 &C. 121 7 23 R. H. 12 &c. 169 3 13 27 — 15 &c. 207 2 13 At the time of the sale the auctioneer's printed catalogue lay on the desk before him, and he wrote down in the same line with the lot purchased the mime of the highest bidder or purchaser, and the price bid per cwt., thus : — Lot. Mark. Hhds. Gross Wt. 23 11. H. 12 1G9 3 13 n. I Whitehouse '^^■\ andGalan. 27 — 15 207 2 13 - , ( Whitehouse '^*- 1 and Galan. The auction was lioldcn at the time and place appointed, and was conducted by Mr. Sill as auctioneer. There was no other sale on the same day. The samples were exhibited in the sale room, and tlie lots in question Avere knocked down to the defendants as the highest bid- ders. At the commencement of the sale, the auctioneer having the catalogue, and also a written paper containing the conditions of sale in his left hand at the same thne, read the latter paper, as the con- ditions on which the sale of the sugars mentioned in the catalogue was to i^roceed, to the company assembled (including one of the defeiulants), which paper was entitled, "Conditions of sugar sale, September- 20th, 1805;" and Avhich paper he afterwards deposited on 104 HINDE V. WHITEHOUSE. [CHAP. I. his desk under the catalogue, on which catalogue he wrote his minutes of the bidders' names and prices ; but the two pai^ers were not fastened together in any manner. He also made the following declaration by parol to the bidders, which after the sale his clerk wrote down upon the paper of conditions of sale : " N. B. These sugars, gentlemen, have been drawn in the warehouse within the last two days ; as such, no allowance whatever will be made, except where an evident error is manifest. The duties are not yet paid, bvit we intend paying them to-morrow morning." It is customary at such sales to give an option to the purchaser to take the sugars sold according to the weights taken at the king's beam, which were marked in the catalogue, or to have them re-weighed ; to this option one of the conditions of sale points. But it is the constant practice for the purchaser to declare his option before he leaves the sale room if he wish to have them re- weighed, in order that the seller may know how to make out the invoices; otherwise, if he then declare no option, the invoices are made out according to the weight at the king's beam. In the present case the defendants declared no option. The sugars are always weighed on landing before they are put into the warehouse ; on which weighing the duties are ascertained ; and after that the samples are drawn. The samples are always delivered to the purchaser as a part of his purchase to make i;p the quantity, and were accordingly de- livered to the defendants on the same day after the sale. The invoices were made out on Saturday the 21st of September, but were not delivered to the defendants till Monday the 23d, after the fire happened. The duties are always included in the price of the sugars, and such duties are always paid by the vendor, and are so required to be by the stat. 41 Geo. 3, c. 44,^ and till paid the sugars cannot be removed from the king's warehouse. The sale was over by a quarter past 4 o'clock on Friday the 20th, but from the hours of office and the distance there Avas not time after the sale to get the entries made and to pay the duties. Saturday and Sunday were holidays at the custom house, and Monday the 23d was kejit as such, being the king's coronation day. The circumstance of Saturday being a holi- day was not recollected at the time of the sale, when the auctioneer declared that the duties should be paid on the morrow; but the circumstance was mentioned by the defendant Whitehouse to a clerk of Waterhouse and Sill. On this point the jury found that there was no neglect in the vendor as to the non-payment of the duties before the fire happened, whicla was in the course of Sunday the 22d. The auctioneer said that it often happened that the purchasers sold their sugars again before the duties were paid, and before they were de- livered out of the warehouse ; and that after the fire the defendants gave him instructions to take care of the goods, and save what he could, without prejudice to the rights of the parties. 1 And vide 39 and 40 Geo. 3, c. 48. SECT. IV.] HINDE V. WHITEHOUSE. 105 Upon this proof it was objected that tliere was no legal evidence sufficient to fix the defendants with tlie purchase of these good within the Statute of Frauds ; there being no memorandum in writing of the contract signed by the parties or their authorized agent. That the auctioneer was no authorized agent of the vendees ; but that, supposing he was so, the whole contract must appear upon the paper signed by him with the names of the defendants, wliereas the conditions of sale, which formed an essential part of the contract, were not so signed, nor in any way connected, except by parol testi- mony which was inoperative by the statute, Avith the catalogues signed. And that the delivery of the samples was diverso intuitu, and not as part of the goods contracted for. The learned judge overruled the objection, but reserved the point ; and a verdict was found for the plaintiff for £1110. ^Yhereupon a rule nisi Avas obtained in Easter term last for setting aside the verdict and granting a new trial ujjon the same grounds of objection ; which rule was in this term o})posed by P«?-A', Topjjinff, and /Scarlett, who shewed cause, and supported by Sir V. Gibbs, 3Iarshall, Serjt., Holroyd, and iJttledale. The case was much argued, upon the circumstances of it ; but it is sufficient to state the general points. On the part of the plaintiff it Avas contended : First, that sales by auction are not within the Statute of Frauds at all, because from the publicity of such transactions there is no danger of perjury in the fab- rication of pretended contracts, which it was the object of the statute to guard against in private transactions, such alone being open to that danger. For which they cited the opinion thrown out in Simon v. Metivier or Motivos.^ Secondly, that if such sales Avere Avithin the statute, yet that the requisites of it were complied Avith here either, first, by the written memorandum of the contract of sale, on which Avas sub- scribed the name of the purchaser, made at the time by the auctioneer, AA'ho Avas to be considered as the agent of both parties, according to the case cited. And they contended that the conditions of sale being on a separate piece of paper made no difference ; being exhibited together Avitli the paper so subscribed at the time of the sale, as form- ing part of the terms on which the contract of sale Avas to be made : and that it was not necessary for the two pieces of paper to be attached to each other by a pin or other fiistening; for the same objection might still be made that Avhether so attached or not at the time must be proved by parol evidence. But that if the objection had any Aveight, it would go the length of i)roving that no parol evidence could be given to shew that the pi'inted conditions exhibited at the time of the sale were part of the terms of sale, since they were not annexed to the AAT-itten contract subscribed Avith the purchaser's name by the auc- tioneer. Or, secondly, that at any rate the case Avas taken out of the 1 1 "Black. Rep. 601, 2, and 3 Burr. 1922. 106 HINDE V. WHITEHOUSE. [CHAP. I. statute by a part delivery of the goods sold ; which the delivery of the samples must be taken to be ; being accounted for as a part of the quantity sold, and included as such in the weight at the king's beam, by which the duties were ascertained. On the part of the defendants it was urged : First, that the words of the 17th section of the statute compi-ehended all contracts for the sale of goods for £10 or upwards, without any distinction between sales by auction and other sales ; though, if the positive words of the statute cou.ld be dispensed with by general reasoning, the frequent disputes which arose at public sales concerning the terms of the bidding shewed that they were as much within the mischief meant to be guarded against as any other sales : the condition might be varied during the sale, or a new condition added, or one set of conditions might be sub- stituted for another afterwards. Secondly, sujDposing such sales to be within the statute, it was contrary to the plain fact to consider the auctioneer, who was appointed and paid by the seller alone, and over whom the purchaser had no control, as the agent of the latter. That the memorandum made by the auctioneer of the purchaser's name and the sum bid was merely for the private information of his employer, and which the buyer had no right to inspect. And they denied the authority of Simon v. Metivier on both points ; which they said had been broken in upon, with respect to sale^ of land by auction, in Walker v. Constable ^ in C. B., Stansfield v. Johnson ^ before Ld. C. J. Eyre, and by the Master of the Rolls in Buckmaster v. Harrop ; ^ and though sales of land depend upon another section of the statute, yet in this respect there is no distinction in reason between the two.* Thirdly, they argued that, supposing the auctioneer to be the agent of both parties, yet here was no sufficient memorandum in Avriting of the bargain ; because there Avas no connection, either external or internal, by words of reference or by the context, between the paper signed by the auctioneer and the other paper containing the conditions of sale, and which were part of the bargain of sale : and it was the same as if the auctioneer had verballv declared those conditions. That the statute did not go to exclude parol evidence of the real terms of the contract, for otherwise the check intended by the statute would be nuga- tory ; but only to nullify the contract so made, unless the terms were committed to writing and signed, &c. That neither, fourthly, did the delivery of the samples take the case out of the statute ; because the samples were delivered diverso intuitu, to enable the purchaser to com- pare the bulk of the goods with them, to see that they corresponded, 1 1 Bos. & Pull. 306. 2 1 Esp. N. P. Cas. 101. 3 7 Ves. jun. 345. But vid. what was said by Lord Eldon, C. in Coles v. Treco- thick, 9 Ves. jun. 249. < By the 4th section, to affect lands the note, &c., must be signed by an agent there- unto lawfully authorized by writing, &c., which words " by writing " are omitted in the 17th section touching the sale of goods. SECT. IV.] HINDE V. WHITEHOUSE. 107 or to sell by them again ; and not as a part of the bulk itself. And that it made no more difference that the samples were included in the weight at the king's beam than if a quantity of cloth were first meas- ured and then sold, and a small strip were cut off by way of sample to identify the bulk or to shew to customers. Besides Avhich, the duties were to be i)aid by the seller ; and Avliether he were guilty of laches or not in not having paid them before the accident, yet the bulk could not have been delivered to the purchaser out of the king's warehouse till the duties were paid ; but an absolute sale to change the })roperty implies a present power of delivery at the place where the goods are. The court said they would deliver their opinion on the next day ; which Avas now done by Lord Ellexborough, C. J. This was the case of a sale by auction of sugars in the king's warehouse, and which were afterwards burnt whilst they remained there under the king's lock and deposited there for the receiving of the king's duties. And the question is, Whether such a sale of those goods has taken place as is sufficient to change the property, and to make them the goods of the purchasers ? The goods were put up to sale on the 20th of September, in pursuance of a cata- logue of sale which had been previously distributed for that pui-pose, containing the lots, marks, number of hogsheads, and gross weights of the sugars, and referring for further particulars to the brokers; and they were sold on that day according to certain conditions of sale, which the auctioneer read to the bidders assembled as the conditions on which the sale of the sugars enumerated in the catalogue was to be made ; (his Lordship here described the catalogue, and read the condi- tions of sale as before stated) ; and the auctioneer also informed them that the duties were not then paid, but would be paid by the sellers on the morrow. It is admitted, however, that no laches is imputable to the sellers for the non-payment of the duties between the time of sale and the fire, which happened on the 22d of September. Two ques- tions have been made on the 17th section of the Statute of Frauds, upon which questions it depends whether what has passed between the parties as to those goods constituted a valid contract of sale in respect to them. The first question argued upon the latter words of that sec- tion is this : Is the writing which has been put upon the catalogue of sale by the auctioneer " a note or memorandum in writing of the bar- gain made and signed by the parties to be charged by the contract, or their agents thereunto lawfully authorized," within the meaning of the statute ? The second question is. Whether this be a case in which the buyer can be said to have " accepted part of the goods sold, and actu- ally received the same?" But independently of and besides these questions, it has been said that sales by auction are not within the statute; and the case of Simon v. Motives, reported in 3 Burr. 1021 and 1 Black Rep. 590, has been relied on. The report in Burrow does 108 HINDE V. WHITEHOUSE. [CHAP. I. not distinctly mention this latter point. But in the report of Sir W. Blackstone, Lord Mansfield speaking of sales by auction says, " The solemnity of that kind of sale precludes all perjury as to the fact itself of sale." He then mentions the case of a sale of sugars by auction, which were afterwards consumed by fire in the auction warehouse, and where the loss fell uj^on the buyer. He afterwards adds, " According to the inclination of my j^resent opinion, auctions in general are not within the statute." And Mr. Justice Wilmot says that he " inclined to think that sales by auction, openly transacted before 500 people, are not within the statute." With all deference to these opinions, I do not at i^resent feel any suflicient reason for dispensing with the express requisition of a memorandum in writing, in a statute applying to all sales of goods above the value of £10 without exception, merely because the quantum of parol evidence in the case of an auction is likely to render the danger of perjury less considerable. That argu- ment in a degree applies to all sales in market overt : and if we once get loose from the jiositive words of the statute, it will become a ques- tion only of the quantum and degree of perjury in each particular instance: which opens a door to an indefiniteness of construction founded on all the varying circumstances of the time and frequency of persons attending the place of sale, and the Hke; which would be destructive of all certainty of practice, and render the rule of the stat- ute perhaps more mischievous than beneficial to the trading world who are to be governed by it. I am not therefore prepared to say that sales by auction are not meant to be comprehended within the statute. Nor would I be understood as giving any conclusive opinion to the contrary : neither is it necessary that I should upon the present occasion. The first question on the letter of the statute is. Is this a memorandum of a bargain made by an agent of both parties ? In respect to sales of goods, it has been uniformly so holden ever since the case of Simon v. Motives ; and it would be dangerous to break in upon a rule which affects all sales made by brokers acting between the parties buying and selling, and where the memorandum in the broker's book, and the bouscht and sold notes transcribed therefrom and delivered to the buyers and sellers respectively, have been holden a suflicient compli- ance with the statute to render the contract of sale binding on each. All the great transactions of sale in this great city are so conducted, and stand on this foundation of legality only; and it is too late, I con- ceive, to draw it into question. Supposing the auctioneer or broker for sale to be the agent for both parties, the question then is. Has he made a memorandum of the bargain in this case ? and it appears to me that he has not. The minute made on the catalogue of sale, which is not annexed to the conditions of sale, nor has any internal reference thereto by context or the like, is a mere memorandum of the name of a person whom perhaps we may intend to be the purchaser, and of the SECT. IV.] HINDE V. WHITEHOUSE. 109 quantity and piice of the goods, which we may perhaps on the foot of such memorandum also intend to have been sold to the person so named in the catalogue. But in treating it as such memorandum throughout, we must intend also (contrary to the fact) that the goods were sold for ready money, and unattended by the circumstances spe- cified in the conditions of sale. And the conditions of sale, though as unsigned they cannot be evidence of the bargain itself, are yet capable of being given in evidence, and accordingly have been so, as a part of the transaction between the parties, and in order to shew that it was on those conditions that the goods M'ere sold. I am of opinion there- fore that the mere writing on the catalogue, not being by any reference incorporated with the conditions of sale, is not a memorandum of a bargain under those conditions of sale. As to the next question on the statute, inasmuch as the half pound sample of sugar out of each hogshead in this case is by the terms and conditions of sale so far treated as a part of the entire bulk to be delivered, that it is considered in the original weighing as constituting a part of the bulk actually weighed out to the buyer, and to be allowed for specifically if he should choose to have the commodity re-weighed, I cannot but consider it as a part of the goods sold under the terms of the sale, accejited and actually received as such by the buyer. And although it be delivered partly alio intuitu, namely, as a sample of quality, it does not therefore prevent its operating to another consistent intent also in pursuance of the purposes of the parties as expressed in the conditions of sale, namely, as a j^art delivery of the thing itself, as soon as in virtue of the bargain the buyer should be entitled to retain and should retain it accordingly. As to the last point made in argument, viz., that there has been no eftectual sale in this case made, because the commodity was incapable of delivery till the king's duties were paid, and which were to be paid by the seller, I think that the sale within the meaning of the parties to the conditions was complete, so as to cast the subsequent risk of loss ujion the buyer. The words " time of sale " and " highest bidder to be the purchaser" all evidently relate to the transaction of selling at the time and place of auction ; which was considered between them as efiectual for the purpose of transferring the property and the conse- quent risk of loss from the seller to the buyer, notwithstanding the intermediate right of custody or lien upon the goods in the crown until the duty should be paid. Besides, after earnest given the vendor cannot sell the goods to another without a default in the v«adee ; and therefore, if the vendee do not come and j^ay for and take 'away the goods, the vendor oi;ght to go and request him; and then, if he do not come and i)ay for and take away the goods in a convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other person. I^er Holt, C. J., in Langford v. Administratrix of Tiler, no HODGSON V. LE BRET. [chap. I. Salk. 113. So in Noy's Maxims, 88, it is said : " If I sell my horse for money, I may keep him until I am paid ; but I cannot have an action of debt until he be delivered ; yet the property of the horse is by the bargain in the bargainor or buyer. But if he do presently tender me my money and I do refuse it, he may take the horse or have an action of detainment. And if the horse die in my stable between the bargain and the delivery, I may have an action of debt for my money, because by the bargain the property was in the buyer." On this latter ground therefore 1 do not think that the sale is incomplete. And as the stat- ute has been satisfied by a part delivery of the goods sold, accepted by the buyer, I think the contract of sale valid as far as respects the stat- ute also, and that the rule for a new trial should be discharged. Some of the judges on the bench, conceiving that the Lord Chief Justice had questioned generally the authority of the case of Simon v. Metivier, desired to have it understood that they concurred in the judgment delivered in this case on the ground that a part delivery of the thing bought (which they considered the delivery to and accejstance of the samples by the buyer to be in this case) took the case out of the statute ; leaving the authority of that case to stand as it did before on its own ground, untouched and unsanctioned by the present decision. But the Lord Chief Justice declared that the only part of that case which he meant to question, though it w^as unnecessary at present to decide upon it, wa^ the opinion thrown out that auctions were not within the statute, of which he should reserve his approbation for future consideration. But as to the other point there decided, that supposing sales by auctioneers or brokers to be within the 17th section of the statute, the auctioneer or broker must be taken to be the agent of both parties, the practice had become so settled since the decision of that case that it would be dangerous to shake it, and it was not his inten- tion to question it. ^^ Mule discharged. HODGSON V. LE BRET. bJ Nisi Prius, coram Lord Ellenborough, February 26, 1808. [Reported in 1 Campbell, 233.] In an action for goods sold and deUvered, the plaintiif 's witnesses stated that the defendant, Madame Le Bret, came to his shop and pur- chased of him a piece of Irish hnen and several jjieces of muslin at separate prices ; she wrote her name upon the linen at the time, but the muislin Avas not then produced ; none of the goods were sent home to her till some months after, when she refused to accept them, saying SECT. IV.] ELMORE V. STONE. Ill that she had not bouglit them. As her conversation with the plaintiff was carried on in French, -which the witnesses did not perfectly under- stand, they could not speak Avith certainty as to her intentions in mark- ing her name upon the linen. I^ca-k, for the defendant, contended that the contract Avas Aoid under the 17th section of the Statute of Frauds, being for the sale of goods above the value of £10, and the buyer not having accepted any part of the goods sold, nor given any thing as earnest to bind the bar- gain, and there being here no memorandum in writing signed by the parties or their authorized agents. Gary-oto, on the other side, maintained that the circumstance of the defendant having written her name upon the linen at the time of the sale took the case com2)letely out of the statute. Lord Ellenborough held that this Avould be sufficient as to the linen itself, if the defendant's purpose in Avriting her name upon it was thereby to denote that she had purchased it, and to apjjropriate it to her own use ; but that as nothing had been written on the muslins, and as they had not even been produced to the defendant along with the linen, the sale as to them was clearly void by the statute. The cause WjOs afterwards referred. r r (A^ X j^^ /ll V ^ '^ ' IV,, V^ t^ ■ yVnELMORE V. STONE. V iV ' r ^ T tl^y v/ I In the Common Fleas, February 9, 1800. r [Reported in 1 Taunton, 457.] This was an action brought to recover the price of two horses, which it was contended had been sold to the defendant. The declaration contained one count upon a bargain and sale, and another upon a sale and delivery. Upon the trial of this cause at the Middlesex sit- tings in Trinity term last, before Mansfield, C. J., it appeared that the plaintiff, who kept a livery-stable and dealt in horses, having demanded 180 guineas for these, the defendant, after offering a less price which was rejected, at length sent Avord that " the horses Avere his, but that, as he had neither scrA'ant nor stable, the plaintiff must keep them at livery for him." The plaintiff upon this removed them out of his sale stable into another stable. Xens, Serjt., for the defendant, contended that, as this was a bargain and sale of goods of greater value than £10, a note in Avriting was necessary to be proA'ed, because there was no sufficient delivery. Such a constructive delivery as this Avould not avail, he said, to take the case out of the statute. Mansfield, C. J., 112 ELMORE V. STONE. [CHAP. I. was of opinion that there was a sufficient delivery, but reserved the point; and the jury found a verdict for the plaintiff. On the following day Lens obtained a rule nisi to set aside the ver- dict and enter a nonsuit upon the objection above mentioned. And on a subsequent day in the same term Best^ Serjt., shewed cause. He contended, first, that the transfer of the horses from the stable where the j^laintiff's horses were exposed to sale, and where these at first stood, to a livery stable, where they stood at the expense and risk of the defendant, was equivalent to an actual delivery. He might after that time have maintained trover for them, and if he had died they would have belonged to his executors. The delivery was complete, so far as any delivery was capable of taking place consistently with the disposition the defendant chose to make of them. Second, if this was not an actual delivery, it is one of those cases to which the Statute of Frauds does not apply, because an actual delivery is impossible : no delivery was intended or could be made here, without defeating the defendant's purpose of keeping the horses at livery with the plaintiff, and therefore none was necessary. Lens^ contra. The statute in requiring a delivery intended that there should be some distinct substantive act, independent of the bar- gain and capable of proof, to corroborate the parol account of the bargain. But there is nothing here distinct from the parol contract to confirm it, and the only evidence of the delivery is found m the terms of the contract itself In the case of a sale of heavy goods in a ware- house, or of hay, or the like, it has indeed been held that corporal delivery is not necessary, but that the delivery of the key, or other symbolical or constructive delivery, is sufficient. Chaplin v. Rogers, 1 East, 194. But nothing here has been done towards the deUvery, except a request that the horses might stand at livery ; therefore the whole still rests in parol. It might with equal propriety be contended that in the common occurrence where goods are ordered in a shop and left till called for, that is a delivery. [Heath, J., observed that, if the goods were weighed out or measured, that would be a sufficient delivery.] The second argument resolved itself into the first. If goods are not capable of an actual delivery, a constructive dehvery is suffi- cient. But in the present case there is neither an actual nor a con- structive delivery. It is material that the defendant never rode the horses, nor exercised over them any one act of ownership ; nor has any act whatever been done to confirm the bargain since it was made. Cur. adv. vult. Mansfield, C. J., now delivered judgment. The objection made to this verdict was the want of a memorandum in writing of the sale, and of a delivery. I thought at the trial that there was no need of a mem- orandum in writing, because of the direction given that the horses SECT. IV.] HART V. 8ATTLEY. 113 Bhould stand at livery. They were in lact put into anotlier stable, but that is wholly immaterial. It was afterwards argued that this was not a sufficient delivery ; but upon consideration we think tliat the horses were com])k'tely the horses of the defendant, and that when they stood at the jjlaiutill's stables they were in efl'ect in the defendant's posses- sion. There are many cases of constructive delivery where the price of goods may be recovered on a count for goods sold and delivered, instead of a count for goods bargained and sold. A connnon case is that of goods at a wharf, or in a warehouse, where the usual practice is that the key of the warehouse is delivered, or a note is t^iven addressed to the wharfinger, who in consequence makes a new entry of the goods in the name of the vendee, although no transfer of the local situation or actual possession takes place. Thus in the present case, after the defendant had said that the horses must stand at liveiT^, and the plaintiff had accej^ted the order, it made no difference Avhether they stood at livery at the vendor's stable, or whether they had been taken away and put in some other stable. The plaintiff possessed them from that time, not as the owner of the horses, but as any other livery- stable keeper might have them to keep. Under many events it might appear hard if the plaintiff should not continue to have a Ueu upon the horses Avhich were in his own possession, so long as the price remained unpaitl ; but it was for him to consider that before he made his agreement. After he had assented to keep the horses at livery, they Avould on the decease of the defendant have become general assets; and 60, if he had become bankrupt, they would have gone to his assignees. The plaintiff could not have retained them, although he had not received the price. Qonsequently the rule must be y/ J 1/ ' \ / [\J Discharged} 11 «,^ . Y* ./v'^ART AND Anotheh v. SATTLEY.^- AyU^ IL '' At Guildhall, coram Chambre, J., 1814 fjj^ [Reported in 3 Campbell, 528.] *^^^^ This was an action for goods sold and delivered, to recover the pric6^^ ^ of a hogshead of gin. Pj The plaintiffs are spirit merchants in London, who had been in the yy/h' y j. habit of supplying spirits to the defendant, a publican near Dartmouth ^ ^^^ in Devonshire. In these previous dealings the course had been for the ^ ^ — plaintiffs to ship the goods on board a Dartmouth trader in the river "^ ^/ Thames, and the defendant had always received them. The hogshead. '^ (//f^ 1 See Green v. Merriam, 28 Vt. 801. — E©. ^ 114 ASTEY V. EMERY. [CHAP. l. of gin in question was verbally ordered by the defendant of the plain- tiffs' traveller, and was shipped in the same manner as tlie others had been. There was no evidence either that it had been delivered to the defendant in Devonshire or that he had refused to accej^t it. Lens, Scrjt., for the defendant, contended thei'e was no sufficient contract here according to the 17th section of the Statute of Frauds, which in a case like this, where the delivery of the goods is relied upon, requires that " the buyer shall accept part of the goods sold and actually receive the same." Chambre, J. I think iinder the circumstances of this case the defendant must be considered as having constituted the master of the ship his agent to accept and receive the goods.^ Verdict for the plaintiff. ASTEY V. EMERY. In the King's Bench, June 5, 1815. [Reported in 4 Maule Sf Selwyn, 2G2.] Assumpsit for goods sold and delivered, and the money counts. Plea, non assxmipsit. At the trial before Bayley, J., at the last Not- tinghamshire assizes, the case was thus : — The action was for the price of a quantity of barley, the property of the plaintiff, which Longstaffe, a corn factor at Nottingham, on the 18th of November agreed to sell to the defendant at 38s. per quarter. The barley being then in the hands of one Turner for the p\irpose of being kiln-dried, and Longstaffe having a warehouse at Derby, it was agreed that it should be delivered at Longstaffe's warehouse there, to go by the first boat of Longstaffe which went from Nottingham to Derby. The 3Ss. per quarter was a higher i^rice on account of the delivery being to be made at Longstaffe's expense. The defendant went to Turner, told him that he had bought the barley, and desired him to see it delivered, and measured, and put up properly. Two or ■ three days afterwards the barley was sent by Longstaffe's first boat, and on the 2Gth of November Longstaffe's clerk saw the defendant at Derby and delivered him the invoice, and the defendant took it and requested a week longer to pay the money, Avhich was allowed him. On the same day, however, he gave notice that he would not accept the barley. The barley arrived at Longstaffe's warehouse at Derby on the 1st of December. It was objected for the defendant iipon the Statute of Frauds that this being a contract for the sale of goods for the price of upwards of £10, was void for want of part acceptance, or earnest, or some note in writing. To which it was answered that this 1 See Spencer v. Hale, 30 Vt. 314. — Ed. -♦ • trm ^Tf SECT. IV.] ASTEY V. EMERY. 115 was not simply a contract for the sale of goods, but a mixed contract for the carriage as Trell as the sale of them ; for the 38s. included the price for carriage. The learned judge, being of opinion that it was a sale within the statute, directed a nonsuit, but gave leave to the plain- tiff to move to enter a verdict. Accordingly, Vavf/han, Serjt., obtained a rule Jiisi in tlic last term, and made a second point ; viz., that here was a delivery to the defend- ant ; for the defendant not only directed the mode of conveyance, but appointed the particular boat, viz., Longstaffe's first boat, and employed Turner to look to the delivery for him. Therefore the delivery on board the boat at Nottingham was a delivery to the defendant; and the defendant so considered it, for when he had notice of it he obtained time for payment. Copley^ Serjt., and Reader showed cause; and argued that, if the answer given to the objection made at the trial could prevail, it would avoid the statute in every case where a sale is to be followed by delivery of the goods. For in every such case the trouble of the deliv- ery might be said to form one ingredient amongst others in the price. But they urged that the price of any commodity was one entire thing, and could not be divided into so many payments as there might be considerations included in the price. In Kent v. Huskinson^ the goods were to be delivered, and there was one entire price, yet adjudged that it was a sale within the statute. Secondly, as to the delivery, the pointing out the first boat was only to fix the time and not the place of delivery, for by the terms of the agreement the delivery was to be at the warehouse at Derby ; and the boat was the vendor's own boat, so that the barley was never out of his custody. J. Balcjuy (with him Vaughan, Serjt.), contra, observed that Long- staffe was not the vendor, but only agent of the vendor for the jnirpose of sale; but for the purpose of the delivery was agent for the vendee, because the vendee made him his appointee to receive the barley. And he further insisted upon the points made at the trial and when the rule nisi was obtained, particularly as to Tm*ner's being directed by the defendant to inspect the measuring and loading of the barley. Lord Ellenborougii, C. J. I do not find that Turner did any corporal act at the time of the loading to show that he was acting for the owner, or that he was to exercise any other ofiice than that of a spectator. The barley being in his hands at the time of the sale, it was natural enough, because it was beneficial to the defendant, to avail himself of the opportunity of Turner's presence to see that the quantity was correct, and the quality iminjured by the loading, which he might do without meaning that it should amount to an acceptance on his part. And if this had been a mixed contract, one should have expected a separate charge for the delivery. 1 3 B. & P. 233. 116 TALVER V. WEST. [CHAP. I. Baylet, J. At the time when Turner was to inspect the loading of the goods, it is plain that the vendee had no right to have them, for they were to be delivered at Derby. Dampier, J. This is no more than the case of a farmer who sells his corn to a miller to be delivered at the mill. Pek Curiam, i2w?e discharged. TALVER A^D Another v. WEST. At Nisi Prius, coram Gibbs, C. J., 1816. [Rejwrted in Holt, 178.] This was an action to recover the price of some trefoil sold by plain- tiffs to defendant ; the invoice delivered to the defendant was as follows : " Bouo-ht of Talver and Prestwich the half quantity of four hundred sacks of trefoil, to be made up to twenty-seven tons, at £10 per ton." On the other side credit was given for some hops sold by the defendant to the plaintiffs, and a balance stated to be due to them of £208. The hops were taken in part payment of the trefoil, which remained in the plain- tiffs' warehouse.; no sample or delivery was made of any part and no money was paid ; but the invoice had been delivered to the defendant, who read it at the time of the sale. Some months after, the defendant came to the warehouse and asked for his seed ; it was at that time set apart for him in the store, but it had no particular mark to denote to whom it belonged. Defendant took samples of it, and inquired if it had not been thrown down and mixed ; he finally refused it. Vcmgha?i, Serjt., for the defendant, objected that there was no part delivery or earnest. Some of the trefoil was set ai^art in the plaintiffs' warehouse; but no name was put on the sacks to designate them. The sale therefore was void by the Statute of Frauds. JBest, Serjt., for the plaintiffs, contended that there was a part pay- ment by the dehvery of the hops, which would take it out of the Stat- ute of Frauds. The defendant, moreover, takes samples, and twelve months after the contract comes to the warehouse to demand his seed, which is there set apart for delivery. Gibbs, C. J. If the trefoil were sold to be paid for in part by the delivery of the hops, the plaintiffs should have declared specially, and not for goods sold and delivered ; but I consider this case not within the statute. The delivery of a sample, which is no j^art of the com- modity, will not take the case out of the statute ; but if the sample delivered is to be considered as j^art of the thing sold, it then binds the contract. It is then an execution of the bargain. The sale in this SECT. IV.] BLENKINSOP V. CLAYTON. 117 case was complete when the invoice was deliverecl, and the defendant afterwards took samples. He then took them for his own use ; they were delivered to him as part of the bulk ; not as an ordinary sample to guide his judgment previous to a purchase, but in order to give him possession pf the tiling ilfe^lf The statute therefore does not apply. iM yt\J Verdict for 2^lciintiffs. NKINSOP V. CLAYTON. \ y Y .Kj T ^V In4he Common Pleas, June 20, 1817. Ai T \Rejportcd in 7 Taunton, 597.] I In this action the plaintiff declared for horses and goods sold and delivered, and for the keep of a horse sold to the defendant. Upon the trial of the cause at the York spring assizes, 1817, before Wood, B., the plaintiff proved that he had sent his servant with a horse to a fair to sell it,, and that the defendant, seeing the horse, followed it into a stable, offered £45 for it, and said he should in half an hour have a stall in his stable vacant to receive it. The plaintiff's servant agreed to accept the sum named, and taking a shilling in his hand drew the edge of it across the palm of the de- fendant's hand, and replaced the shilling in his own pockot, which the witnesses called strikino; off the bar":ain. The defendant afterwards brought a chapman to the stable, and stating to him that he had bought the horse offered to sell it to him at a profit of £5, which the other, discovering a supposed unsoundness, declined ; in conse- quence of which discovery the defendant returned to the plaintiff's stable, and declined his purchase. The jilaintiff contended, first, that the act of striking off the bargain as above described bound the contract so as to satisfy the Statute of Fi-auds; secondly, that the defendant's declaration that he had bought the horse, and his attempt to resell it, Avas evidence that the sale and deliveiy were complete, and entitled the plaintiff to recover. Wood, B., reserved the points, subject whereto the jury found a verdict for the plaintiff. Ilullock, Serjt., in Easter term had obtained a rule 7iisi to set aside this verdict and enter a nonsuit, against which Copier/, Serjt., now shewed cause. He contended, first, that the act called the striking off the bargain, Avhich was a term well under- stood in the north of England, was such a part payment as complied with the Statute of Frauds. It was not invalidated by the money being instantly returned to the seller with the consent of the buyer. J18 HOWE V. PALMER. [CHAP. I. [But the whole court denied that there was ever any payment or transfer of the shilling, even for a moment.] Next, if a purchaser treats the property as his own, that proves a sufficient delivery, as was held by Lord Kenyon, C. J., in the case of the sale of a stack of hay (Chaphn W.Rogers ^) wherein the defendant had resold a part of it, though he afterwards refused to permit the second purchaser to take it. In Elmore v. Stone ^ there was no actual delivery. The defend- ant cannot resort to the Statute of Frauds, after he has by his own act acknowledged the purchase. Searle v. Keeves.^ Hulloch^ in support of his rule, denied that there was in this case any part payment or any constructive delivery. Gibes, C. J., inteii^osing, relieved him. The court do not go all the way with the defendant on all his points;. but the court is embar- rassed by obser\'ing that it was not left to the jury to find whether there was any delivery or not; and on the first trial of the case of Chaplin V. Rogers the jury fotmd there was an acceptance of the hay, 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 very difierent 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 that point I have an opinion, but it is unnec- essary here to disclose it, and I carefully abstain from statmg what it is. The court, altering the form of the rule, made it absolute for a new trial.* \ „ HOWE V. PALMER. ^N THE King's Bench, January 24, 1820. [Reported in 3 Barnewall Sf Alderson, 321.] V Declaration stated that defendant bargained for and bought of the plaintifi", and that plaintifi" sold to defendant twelve bushels of winter 1 1 East, 192. 2 1 Taunt. 458. 3 2 Esp. N. P. Cas. 598. * In Blackburn on Sale, p. 33, after citing several of the preceding cases, the author says : " In all these cases there seems 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 possession ; 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." — Ed. SECT. IV.] HOWE V. PALMER. 119 tares at the price of £1 per bushel, to be delivered by plaintiff to the defendant within a reasonable time, and to be paid for on delivery ; and in consideration thereof, and that plaintift' had jironiised to de- liver the same, defendant promised to accept the same, &c. Breach, that defendant would not accept. Plea, general issue. At the trial before Garrow, B., at the last assizes for the county of Essex, it appeared that plaintiff, the grower of the tares, resided at Pergo in Essex, and that in August, 1818, he sent his nephew, who managed his farm, to Romford market with a sample. The defendant there verbally agreed to buy twelve bushels at £1 per bushel, and to send to the plaintiff's farm at Pei'go to fetch them away. The bam])le was offered him, but he declined taking it, saying that he had seen the tares on plaintiff's premises, and that he had no immediate use for them, and therefore requested th:it they might remain there until he wanted to sow them, W'hich was agreed to. The plaintiff's nephew, on his return from Romford, measured out the twelve bushels and set them apart in the plaintiff's granary, and orders were given that they should be de- livered to defendant when he should call for them. It was objected at the trial that, there being no note or memorandum in writing, this contract was void by the Statute of Frauds. The learned judge reserved the point, and the plaintiff had a verdict with liberty to the defendant to move to enter a nonsuit. A rule nisi having been ob- tained for that purpose in last Michaelmas term, Marryat and Walford now shewed cause. There was a sufficient delivery to take this case out of the Statute of Frauds. By the ex- press terms of the contract the tares were to remain in the possession of the seller till the buyer sent for them, and they were sej^arated fi'om the bulk and measured out immediately after the sale by the nephcAV of the plaintiff. Inasmuch as the defendant had seen the tarea in bulk, and had bought only twelve bushels, and directed that they should remain in the plaintiff's possession till called for, he must be taken to have given an implied authority to the plaintiff's nephew as his agent to measure out the quantity ; and that act of measuring must be considered as an act done by the buyer, and consequently as an acceptance on his part. There was therefore a constructive de- livery, and the only delivery that could be made by the seller consist- ently with the terms of his contract. In Elmore v. Stone ^ the pur- chaser of a horse from a horse-dealer desired him to keep the horse at livery for him, and the horse-dealer removed the horse from his sale stable to another, and that was holden a sufticient delivery to take the case out of the statute; and Heath, J., then stated that if goods or- dered at a shop to be left till called for are weighed out or measured, that is a sufhcicnt delivery. In Chaplin v. Rogers,- which was a sale of a stack of hay on the spot where the stack stood, there was no 1 1 Taunt. 458. a i East, 192. 120 HOWE V. PALMER. [CHAP. I. actual delivery, but the fact of the vendee having sold part of it to another, by whom, though against the vendee's approbation, it was taken away, was held sufficient to Avarrant the jury in finding a de- livery to and acceptance by the vendee. Laices, Serjt., contra, was stopped by the court. Abbott, C. J. The Statute of Frauds is one of the most important and beneficial statutes to be found in the books. One of its objects was to require written testimony or memorials of contracts, such as are reqixired by the laws of most countries. The words of the 17th section are these [stating them]. Now in this case there has been no note in writing of the contract, and there has been nothing given in earnest or in part payment. Unless therefore the buyer has accepted and received part of the goods so sold, this case is within the statute, and no action can be brought on the verbal contract entered into between the parties. Then the question is. Has the buyer accepted? Now, if he had once accei^ted, he could not afterwards make any ob- jection, even if it turned out that the tares did not correspond with the sample. But it is clear that he had a right to make any objection at the time when they were tendered to him for acceptance. If the defendant in this case had gone to the plaintiff's granary to demand the tares, and upon inspection had discovered that they did not cor- respond with the samj^le, it is impossible to say that he might not then have made the objection. And if so, it is clear that there was no pre- vious acceptance on his part. I therefore think that this case comes within the very words of this statute, to which we ought to give full effect, and not to sufier its beneficial provisions to be evaded by subtle distinctions. Batley, J. I am of the same opinion. I think the safest rule to follow is to adhere closely to the Avords of the statute. The two cases cited are distinguishable from this ; for in Chaplin v. Rogers the jury thousfht that there was sufficient evidence to draw the conclusion of an actual acceptance, inasmuch as the vendee had dealt with the hay as his own. In Elmore v. Stone the buyer directed expense to be in- cuiTcd ; and the directing of that expense was considered evidence of an acceptance on his part. That case goes as far as any case ought to go, and I think we ought not to go one step beyond it. There is a distinction between that case and this, that there an expense was incuiTed on account and by the direction of the buyer ; here there is none. But I must say, however, that I doubt the authority of that decision. This case is clearly Avithin the statute, and the rule must be made absolute. HoLROYD, J, I am of the same oiDinion. In this case there has been no actual receipt of any part of the goods sold within the usual mean- ing of the term, and I think what has been done ouglit not to be con- sidered in point of law as an acceptance. For supposing that it was SECT. IV.] TEMPEST V. FITZGERALD. 121 made part of the contract in tins case that the seller should set apart and measure the thing sold ; that would not make the act of measuring amount to a virtual acceptance or receipt of the goods by the buyer. For if they were measured by the seller only, that would not prevent the buyer when he inspected them from objecting cither to the quan- tum or quality of the goods. And unless it would amount to that, it does not appear to me to be an actual acceptance or receipt of the goods. And supposing it not to be part of the contract, but that directions were given at the time by the buyer to the seller's agent to measure the goods for him, that would not make him the agent of the buyer so far as to make that act amount to an acceptance on his ])art. For an authority to measure the goods would UDt give him authority as agent to accept. The buyer might afterwards object that the articles did not correspond with the terms of the contract. The case differs frx)m that of Elmore v. Stone ; for there it was agreed between' the parties that the horse should be transferred from the sale to the livery stable, and an expense was incurred by the purchaser for the keep, which could not be \inless the horse Avas supposed to have come into his possession. I think therefore that, as there was no accept- ance by the buyer, this case falls within the words of the statute, and that the rule must be made absolute. Best, J. I am of the same opinion. So for from being disposed to restrain the provisions of this statute, I should be inclined to extend them. In this case I think that the plaintiff is prevented from recov- ering, both by the spirit and the very letter of the act. The spirit I take to be this, that a contract shall not be binding unless there be some act done which directly shews an acceptance on his part. Now there is no such act done in the present case ; and I think in all cases it is better to adhere to the words of the statute, unless Ave plainly see that the words used do not express the meaning of the Legislature. Here it appears to me that they do plainly express the meaning of the Legislature, and that this case is Avithin the very Avords of the statute. The rule therefore must be made absolute. Bide absolute for entering a nonsuit. TEMPEST V. FITZGERALD. In tue King's Bench, June 12, 1820. {Reported in 3 Barnewall &. Alderson, 680.] Assumpsit for the price of a horse. Declaration contained counts for horses sold and delivered, bargained and sold, etc. Plea, general 122 TEMPEST V. FITZGERALD. [CHAP. I. 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 defendant, tlien on a visit at the plaintiff's house, agreed to purchase a horse from him at the price of forty-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 the plaintiff proposed to put it in a course of physic during his absence. The defendant soon after quitted the plaintiff'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, galloped, and leaped the horse, and after they 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 put upon his neck, which was consequently done ; he then asked the plaintiff's son if he would keep it for another week ; he said that he w^ould do it to oblige him. The defendant then said that he would call and pay for the horse when he returned from the Don- caster 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 away, but the horse having died on the 26th September he refused to pay the price. Upon these facts it was contended by the defendant's counsel that there had been no accept- ance of the horse by 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 September 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 riding of the horse on that day was by way of trial, or whether the defendant was then exercishig an act of owner- ship ; and whether the directions then given were by way of advice or as owner. If they thought that he was then exercising acts of owner- ship, then they were to find for the plaintiff; if otherwise, for the defendant. The jury found a verdict for the plaintiff. A rvile nisi having been obtained for a new trial in last Easter term, Scarlett and Ifolt now shewed cause. The question was properly left to the jury, whether on the 20th September the defendant had not exercised acts of ownership upon the horse. The jury have found that he had; and that being so, there was clearly an acceptance of the horse within the meaning of the Statute of Frauds. In Blenkinsop v. Clayton,^ a case similarly circumstanced, the Court of Common Pleas thought it a question for the jury to determme whether the act done by the purchaser was an act of ownei-ship or not. Chaplin v. Rogers ^ is an authority to the same effect. The object of the Legislature in the Statute of Frauds was that there should be some act done by 1 7 Taunt. 597, 1 B. Moore, 328. 2 i East, 192. SECT. IV.] TEMPEST V. FITZGERALD. 123 the party beyond the mere contract, to make it binding. Here such acts have been done by the vendee with respect to the property purchased, and admitting them to be equivocal in their nature still the jury have found by their verdict that they were acts of owner- ship; and that being so, there can be no doubt that there was an acceptance of tlie property by the defendant within the meaning of the Statute of Frauds. Cross, Serjt., and Milner, contra. The intent and meaning of the statute was, that there should be certain fonns used in order to make a contract binding, or that there should be some clear' unequiv- ocal act done by the vendee to shew that he had adopted the con- tract. In this case the acts relied upon were at least equivocal. This also was a ready-money bargain, and the defendant could have no right to take away the horse until he paid the money. They ■were then stopped by the court. Abeott, 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 tliis case there was not any earnest given, or any part payment, or any note or memorandum in writing. The question therefore is, whether the buyer had accepted part of the goods sold and actually received the same. Now the word " accepted " imports not merely that there should be a delivery by the seller, but that each party 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 with, out the assent of the seller, that would not be sufficient to bind him.^ In this case payment of the price was to be an act concuncnt witli the delivery of the horse ; at any rate there is nothing to shew that either party understood that the one was to precede the other. In the first instance therefore this was a mere contract between the parties. It is urged, hoAvever, that there was evidence for the jury to find that the defendant had exercised acts of OAvnership as to the horse on the 20th September. It appears from the learned judge's report that on that day he came to the plaintift''s house, that he and his servant then rode the horse, and that he gave some directions as to its future treat- ment, and it is ui-ged that these acts might be considered acts of ownership. I am of opinion, however, that the defendant had no right of property in the horse until the price was paid ; lie could not then exercise any right of ownership. If he had at that time rode away with the horse the plaintiff might have maintained trover. The dis- tinction between this case and that of Blenkinsop v. Clayton is, 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 1 But see Baker v. Cuyler, 12 Barb. 667. — Ed. 124 TEMPEST V. FITZGERALD. [CHAP. I. by offering it for sale ; here the express contract is for ready money, and the payment of the price is an act concm-rent with the delivery of the horse. I think therefore that the rule for a new trial must be made absolute. Bayley, J. This was a ready-money bargain, and the purchaser could have no right to take away the horse until he had paid the price. If the argument on the part of the plaintiff were to prevail, the defendant might have maintained an action for the horse without paying the price, which would be contrary to the express terms of the contract. HoLROYD, J. The object of the Statute of Frauds was to remove all doubts as to the completion of the bargain, and it therefore requires some clear and unequivocal acts to be done in order to shew that the thing had ceased to be injieri. Those acts are either that the buyer shall accept part of the goods sold and receive the same, or give something in earnest or in part payment, or that the contract be reduced to waiting. These are all acts that clearly and unequivocally shew that the bargain is executed. It is said that the riding of the horse by the defendant on the 20th September, and the directions then given, may be considered as acts of ownership, and were therefore evidence of an acceptance of the horse ; but at that time the defendant had no right to take away the horse. For admitting, for the sake of the argument, that the property had been changed, still there is no evidence to shew that Tempest had ever parted with the possession or control ; and if he had not, he had at all events a lien for the price, and the defendant could not be justified in taking it away until the price were paid. In Blenkinsop v. Clayton the horse was to be delivered absolutely within an hour, and the purchaser had treated it as his own property by offering to sell it to another; here, on the other hand, the horse was not to be delivered till the price was paid. Best, J. I think that, to take the case out of the Statute of Frauds, there should be some act so clear and unequivocal as to shew beyond all doubt tliat the purchaser had accepted the horse. There is here no act of that description. This was a ready-money bargain, and the defendant would therefore acquire no property in the horse until he paid the price. The acts therefore done by him on the 20th September could not be acts of ownership, for at that time he had acquired no right to exercise any act of ownership. Hule absolute. SECT. IV.] HANSON V. ARMITAGE. 125 HANSON AND Another v. ARMITAGE. In the King's Bench, Hilary Term, 1822. [Reported in 5 Barnewall if Alderson, 557.] Assumpsit for the price of two chests of tea. Plea, general issue. At the trial before Abbott, C. J., at the Middlesex sittings after Hilary- term, 1821, the following appeared to be the facts of the case: The jDlaintiffs, Avho were wholesale tea-dealers in London, had been in the habit of shipping teas to the defendant, who was a grocer, resident at Barnsley in Yorkshire. The usual course was to deliver the tea at the wharf of one Staunton in London, to be forwarded by the first ship ; and several jiarcels of tea sent in this manner had been j^aid for by the defendant. On the 3d of June, 1820, the plaintiffs delivered at Staun- ton's wharf two chests of tea, to be forwarded to the defendant in the usual manner. The vessel in Avhich this tea was shipped was lost on her voyage. The plaintiffs on the 10th of June transmitted by post to the defendant an invoice of the tea, and on the 13th the defendant returned the same by post, and stated " that he had nothing to do with it, as he had heard of the loss of the ship before the invoice arrived, and that he would not take to the account." There was no other evidence of any order having been given to the plaintiffs for the tea in question. Upon these facts the Lord Chief Justice directed the jury that they might fairly presume that the defendant had given a parol order for the tea, and stated that he would reserve the question for the opinion of the court, whether the delivery of the tea, and the accei^tance of it by the wharfinger for the purpose of transmitting it by the usual convey- ance, was to be deemed an acceptance by the buyer within the mean- ing of the 29 Car. 2, c. 3, § 17. The jury having found n verdict for the plaintiffs, a rule nisi was obtained in last Easter term for entering a nonsuit, against which Scarlett and Littledale now shewed cause. The acceptance of the tea by the wharfinger was a suflicient acceptance by the buyer to satisfy the 29 Car. 2, c. 3, § 17. Staunton was the agent of the defendant; for the jury having found that there Avas an order for these goods, it must be taken that there was an order to send them by the usual mode of conveyance. The acceptance therefore by Staunton was an acceptance by the defendant. This case is distinguishable from Astey v. Emery ; ^ for there the seller undertook the risk of conveying the goods to the purchaser. Gurney and Chitty^ contra. The statute 29 Car. 2, c. 3, § 17, enacts " that no contract for the sale of goods for the price of £10 shall bo 1 4 Maule & S. 262. 126 CARTER V. TOUSSAINT. [CHAP. I. binding, except the buyer shall accept part of the goods so sold and actually receive the same." Here there has been no acceptance by the buyer, but by a person who was an agent only for the purpose of ship- ping the goods, and which agent had no opportunity of objecting to the quality. To make it a sufficient acceptance by the buyer within the statute, the latter ought to have had an opportunity of objecting to the quality of the goods. Kent v. Huskinson ^ and Howe v. Palmer.^ In Astey V. Emery the goods were actually shijjped on board a vessel named by the buyer, and yet that was held not to be a sufficient accept- ance. They also cited Dawes v. Peck.^ Ctir. ado. vult. Abbott, C. J., in the course of the term delivered the judgment of the court ; and after stating the point reserved for their consideration, viz., whether there had been a sufficient acceptance of the goods to take the case out of the Statute of Frauds, added that the court were of opinion that the acceptance in this case, not being by the party him- self, was not sufficient ; and he referred to the case of Howe v. Palmer, where 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. Rule absolute for a nonsuit. CARTER AND Another v. TOUSSAINT. In the King's Bench, June 14, 1822. [Reported in 5 Barnewall Sf Alderson, 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 verbid 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 1 3 Bos. & r. 233. 2 3 Barn. & A. 321. 3 8 T. R. 330. SECT. IV.] CARTER V. TOUSSAINT. 127 defendant afterwards refused to take the liorse. The jury, under the du'ection of the Lord Chief Justice, found a verdict for tlie plaintiffs. Scarlett in hast 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 tlio 17th section of the Statute of Frauds. 3farri/at and Ilawldns shewed cause. The case is not within the 17th section of the Statute of Frauds ; for here there was a complete delivery and acceptance by the defendant. If a buyer orders goods to be sent to a particular wharf, and they are there delivered, the accept- ance by the wharfinger is clearly sufficient to take the case out of the statute. Here, by the defendant's order, the horse Avas sent to Kimp^ ton Park. And this is therefore a stronger case of acceptance than Elmore v. Stone,^ where the removal was from one stable to another. Hanson v. Armitage ^ will be cited on the other side. There, however, there was no s])ecial direction as to the place where the goods were to be sent. Besides, that case is at variance w^th Hart v. Sattley,^ where Chambre, J., held that the master of the ship must be considered as the vendee's agent to receive the goods in a case where they were shipped according to the usual course of dealing between the parties. But it is said that the horse Avas entered at Kimpton Park in the name of one of the plaintiffs. That however, being done by the request of the defendant, can make no difference. It is admitted that if there be an acceptance, though but for a minute, it is sufficient. Here the delivery of the horse to the person who conveyed him from the plain- tiflf's house to the park was sufficient ; for that person must be con- sidered as the defendant's servant. Besides, the horse was fired for the use of the defendant, and must be considered as having remained in the hands of the plaintiffs for the purpose of cure ; and then the case falls precisely within the principle of Elmore v. Stone. Scarlett and Zawes, contra. If this question were now for the first time to be determined, no doubt could be entertained by any one who looked at the words of the statute. It is not requisite indeed that, to constitute an acceptance, the goods should be in the manual possession of the vendee. But he must at least have the complete control before he can be considered as having accepted them. If the key of the ware- house where they are deposited is delivered to him, or an order for delivery to him is signed in the wharfinger's books, in these and the like instances it may fairly amount, if he assents, to an acceptance on his part. For there he on the one hand has the complete control with- out any lien on the part of the vendors ; and on the other hand he cannot after that be allowed to object to their quality, &c. But if that criterion be applied to this case, it will determine it in favor of the defendant. For here he had no control over the horse. He could not 1 1 Taunt. 458. 2 5 Barn. & Aid. 557. ' 3 Campb. 528. 128 CARTER V. TOUSSAINT. [CHAP. I. have compelled the park-keeper to have delivered it to him. Here too there was no time fixed for the payment of the price, and therefore the vendors would not have been bound to part with the horse till the price was paid. This therefore falls within the cases of Hanson V, Armitage ^ and Tempest v. Fitzgerald." Elmore v. Stone is a case of doubtful authority, but at all events it is not precisely in point with this. There the court considered the vendor as having by his own act become the agent of the vendee, and having thereby lost his lien for the price of the horse. But here the party has not lost that lien. Sup- pose Carter had become bankrupt, it is clear that the horse would have gone to his assignees, as being in his possession at the time of the bank- ruptcy. That consequence would not have followed in Elmore v. Stone. Suppose the horse had been damaged in going to the park, could not the defendant have objected to receive him? If he could, then accord- ing to the principle laid down in Howe v. Palmer Hhere is no sufficient acceptance. As to the firing, it was not done specially for the defend- ant, but generally for any one to whom the horse might afterwards be sold. This case therefore falls within the Statute of Frauds, and the defendant is entitled to the judgment of the court. 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 descrip- tion, but the covirt thought that the circumstance of the change of the stable altered the 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 only in his capacity of livery-stable keeper. There is no circum- stance of that description in the present case. It is quite clear that the present 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 the defendant's name by his directions, I should have thouo-ht 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 unchanged from first to last, and they could not have been compelled to deliver it without the payment of the money. There was then no sufficient 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 1 5 B. & A. 557. 2 3 B. & A. 680. 3 3 B. & A. 321. SECT. IV.] PRICE V. LEA. 129 and unless the seller divests himself of the possession of the goods, though but for a moment, the property remains in him. Here the plaintiffs 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 i)laintifFs, and they still therefore retained 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 delivery to him. For he could not, on tendering tlr^ 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 horses as owner, and others where he kept them as Hvery-stable keeper; and the court considered that, by changing the horse from the one to the other, he had divested himself of the posses- sion and given up his lien. But there is no circumstance of that sort here. HoLROYD, J. I am of the same opinion. The facts here stated do not amount to an acceptance or actual receipt of the horse, which must be considered as haNdng continued throughout in the plaintifl"'s posses- sion. The case would be different if the horse had been entered at the park in the name of the defendant, but being entered in the name of one of the plaintiffs they retained a control over it, and the park- keeper was their agent. This case is distinguishable from Elmore v. Stone ; there, there was a change of possession, here there is not. Hule absolute. PRICE AND Others v. LEA. In THE King's Bench, January 27, 1823. [Reported in 1 Barnewall ^ Cresswell, 156.] Assumpsit for goods sold and delivered by the plaintiffs to the defendant. Plea, non assumjjsU as to part, and a tender as to the res- idue. The replication took issue on the ti07i assumpsit, and admitted the tender. On the trial before Abbott, C. J., at the Guildhall sittings after last term, it was proved that on the 21st March, 1821, the trav- eller of the plaintiffs, who are drysalters in London, called upon the defendant, a carpet manufacturer at Kidderminster, for orders. The VOL. I. 9 130 PRICE V. LEA. [chap. I. defendant ordered a cask of cream of tartar, and offered to purchase two chests of lac dye at a certain j^iice ; the traveller said the price proposed was beloAV his limits, but he would write to his principals, and if the defendant did not receive a letter in one or two days refus- ing to execute the order, he might conclude that his offer was accepted. The plaintiffs did not write to the defendant, but on the 29th of March sent both the cream of tartar and the lac dye, directed to him at Kid- derminster. The defendant accepted the cream of tartar, and tendered the price for it (which was the tender pleaded), but refused the lac dye. Upon this evidence it was contended for the defendant that the orders were distinct, and consequently the acceptance of the cream of tartar did not take the case out of the operation of the 17th section of the Statute of Frauds. The Lord Chief Justice thought the objection fatal, and nonsuited the plaintiffs. And now The /Solicitor- General moved to set aside the nonsuit, and contended that the order given by the defendant was a joint order for the cream of tartar and lac dye ; for although the plaintiffs' traveller reserved for them an option either to accept or refuse the offer made by the defend- ant, still the latter was at all events boimd if that offer was accepted ; the order then being joint, the acceptance of the cream of tartar took the case out of the 17th section of the Statute of Frauds, and rendered the defendant liable to be sued for the price of the lac dye, which he refused to accept. Abbott, C. J. It must be taken as established by the evidence that an order was given for the cream of tartar ; then a convei*sation fol- lowed between the defendant and the traveller respecting the lac dye, and it was agreed that a letter should be written to the plaintiffs upon the subject; what then passed cannot be considered as an entire con- tract for both articles, and therefore the acceptance of one did not ratify the bargain for the other. HoLKOYD, J.^ A contract for the cream of tartar was made between the defendant and the traveller, but the agreement for the residue can- not be considered as complete until the time allowed to the plaintiffs for deliberation had expired ; there was not then one entire contract for both the articles, so as to make the acceptance of one the accept- ance of the whole. Best, J., concurred. Hule refused. 1 Bayley, J., had left the court. SECT. IV.] THOMPSON V. MACERONI. 131 NICIIOLLE V. PLU^IE. At Nisi Prius, coram Best, C. J., May 8, 1824. [Reported in 1 Carrington Sf- Payne, 272.] This was an action for the price of a quantity of cider supplied by the plaintiflf on the verbal order of the defendant. A witness proved his being present at the defendant's when the bar- gain was made, and that the cider was good cider for the price. It was sent by the wagon to the defendant, who refused to take it in, but caused it to be lodged in a warehouse near his premises but not belono-inor to him. It was not returned to the plaintiff, nor did the defendant send any notice to the plaintiff of his intention not to use the cider. Taddy, for the defendant, submitted that the plaintiff must be non- suited, there being no acceptance, and no contract in writing to take the case out of the Statute of Frauds. Vaughan and Pell^ for the plaintiff, contended that, as the defendant had contracted for the cider, and it was in consequence forwarded to him by the wagon, that was sufficient ; and particularly as he did not send notice to the plaintiff of his refusal to accept it. Best, C. J. There must be an unequivocal acceptance. The Court of King's Bench have so determined in the case of Hanson v. Armi- tage, 1 Dow. & Ry. 128. Nonsuit. THOjNIPSON v. MACERONI. In the King's Bench, June 18, 1824. [Reported in 3 Bamewcdl ^ Cresswell, 1.] The defendant had been held to bail upon an affidavit of debt for goods sold and delivered. Bail above were put in and justified. After issue was joined, a special count for not delivering a bill of exchange was added. At the trial evidence was given of an order for the goods, and of their having been made pursuant to the order ; and that the goods remained in the plaintiff's possession at the request of the defendant, and were of the value of £144 ; that the defendant took away a small part, of the value of £2 10s. No bill was given, and the plaintiff at the trial obtained a verdict for £144, on the count for not delivering the bill. A rule 7iisi had been obtained by Scarlett for 132 BENTALL V. BURN. [CHAP. I. entering an exoneretur on the bail-piece, on the ground that the plain- tiff had recovered on the special count for not delivering the bill. Marryat shewed cause, and contended, first, that there was sufficient evidence to entitle the plaintiff to recover on the count for goods sold and delivered.^ They were made to the defendant's order, and he took away some of the articles ; and the rest remained in the plaintiff's shop at the request of the defendant. The plaintiff had put it in the vendee's power to take away the goods ; and that, according to the opinion of Holroyd, J., in Smith v. Chance,^ was sufficient to maintain the action. But the court were clearly of opinion that there was no actual acceptance of these goods by the buyer within the 17th section of the Statute of Frauds, and that the plaintiff was not entitled to recover on the count for goods sold and delivered, and the rule was made absolute. ^w^« absolute. BENTALL and Others, Assignees of Baker and Farnley, Bank- , rupts, 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 was an action brought to recover £13 145., 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 of the firm, to the defend- ant a hogshead of Sicilian wine, then lying in the London docks, at the price of £13 14s., and at the same time a dehvery 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 speedily removed, and that the party 1 It was agreed that the question should be considered on this motion, in order to save the expense of a cross motion for a new trial. 2 2 B. & A. 755. SECT. TV.] BENTALL V. BURN. 133 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 delivery 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 entered, ^dth liberty to the plaintiffs to move to enter a verdict for them for the price of the wine. Baryieicall now moved accordingly. The acceptance of the delivery order by the vendee was equivalent to an actual acceptance of the wine itself, for it was proved that upon production of the order at the London docks he might have obtained immediate possession of the wine. In Chaplin v. Rogers ^ Lord Kenyon says : " "Where goods are ponderous and incapable of being handed over from one to another, there need not be an actual delivery ; but it may be done by that which is tantamount, such as the delivery of the key of the warehouse in Avhich the goods are lodged, or by delivery of other indicia of prop- erty." Now here the wine was not in the warehouse of the vendor, and he therefore could not give the vendee the key, but he gave him that which enabled him to acquire the same dominion over it as if he had the key. In Searle v. Keeves,^ which was assumpsit for not deUvering rice pursuant to contract, there was no proof of any con- tract in writing, but the plaintiffs produced an order on Bennett and Co. to deliver to them 20 barrels of rice, signed by Keeves, and a witness proved that Keeves told him that he had sold that quantity of rice to Searle. The plaintiff then proved the delivery of the order for the rice to the warehouseman of Bennett ; Keeves afterwards coun- termanded that order, and Bennett refused to deliver. And Eyre, C. J., held that the Statute of Frauds did not attach, because there had been a delivery of the whole. Keeves, the defendant, gave an order for the delivery on Bennett and Co., in whose possession the rice then was ; that satisfied the statute. Now that case is expressly in point. It may perhaps be said, as the London Dock Company held the wine as the agents of the vendors, that it must continue the prop- erty of the latter until the London Dock Company consented to hold it as the agents of the vendee ; that they might refuse to become the agents of the latter. The argument might apply to the case of a common warehouseman ; but the dock company having accepted a cer- tificate from the treasury, under the warehousing act of the 43 G. 3, c. 132, have the exclusive privilege of warehousing wines before the duties are paid, and they are therefore bound to receive the goods into their warehouses, and to transfer them from buyer to seller when required so to do. Allnutt v. Inglis.^ Feb Curiam. There could not have been any actual acceptance of 1 1 East, 194. 2 2 Esp. 598. » 12 East, 627. 134 PHILLIPS V. BISTOLLI. [CHAP. I. 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. Mule refused. PHILLIPS V. BISTOLLI. In the King's Bench, Michaelmas Term, 1824. [Reported in 2 Barnewall 4' Cresswell, 611.] Assumpsit for goods sold. Plea, 7ion assumpsit. At the trial before Abbott, C. J., at the Middlesex sittings after Hilary term, 1823, the following aj^peared to be the facts of the case. The plaintiff was an auctioneer, and in July, 1822, had put up for sale, among several other articles, a pair of ear-rings, the property of a jeweller, described in the catalogue as brilliant top and drop ear-rings ; one of the conditions of sale was, that the purchaser should pay 30 per cent, upon being declared the highest bidder, and the residue of the price before the goods were removed. The defendant was a foreigner, and did not fully understand the English language ; but he was in the habit of attending the plaintiff's sales and purchasing goods. On the day in question he attended, and bought several lots, and the ear-rings in question were knocked down to him as the highest bidder at the price of 88 guineas. They were immediately delivered to him, and he received them without making any objection. After they had been in his hands three or four minutes, a person who interpreted for him said to the plaintiff that the defendant had bid for the lot in question under a mistaken idea that the price at which it was knocked down to him was 48 guineas. The plaintiff said that the last bidding had been mentioned three times. The defendant then returned the ear-rings. The plaintiff, however, refused to take them back, but said he would keep them on defendant's account. It appeared further that if they were Assyrian garnets they would be worth about £50 only, but if they were rubies they would be worth the price at which they were knocked down. And it was doubtful upon the evidence whether they SECT. IV.] PHILLIPS V. BISTOLLI. 135 were nxbies or garnets. It was objected on the part of the defendant that there was no acceptance of tlie goods by him so as to take the case out of the Statute of Frauds. The Lord Chief Justice, however, was of opinion that there was a sufficient acceptance, provided that the defendant was under no mistake when he bid the 88 guineas, and left it to tlie jury to find whether the defendant was mistaken in tlie price at the time when he bid the 88 guineas; and the jury having found that there was no mistake a verdict was entered for the plaintiff. In last Easter term a rule nisi was obtained by Scarlett for a new trial, upon the ground that there was no acceptance, inasmuch as the plain- tiff had a lien upon the goods until the price was paid, and he could not therefore have intended to part with the possession of the good^. In order to satisfy the Statute of Frauds there must be a delivery by the vendor, with the intention of parting with the possession of the property sold. Now here it is not to be presumed that the plaintiff intended to part with the possession of the property until the price, or the deposit mentioned in the conditions of sale, was paid. At all events it was under the circumstances a question of fact for the jury, whether the delivery was made by the vendor with the intention of parting with the possession, and whether the defendant accepted the goods with the intention of acquiring the right of possession as owner. Chaplin v. Rogers,^ Blenkinsop v. Clayton.- Gurney and Comyn now shewed cause. It is sufficient to satisfy the Statute of Frauds if the defendant for a single moment accepted the goods. Carter v. Toussaint.^ Here they must have been delivered by the vendor with the intention of vesting the right of possession in the vendee as OAvner. [Holroyd, J. Then you say that the vendee would have had a right to take the goods away, although the auctioneer had insisted upon the price being first paid.] The plaintiff waived his right to the papnent of the price or the deposit by delivering the goods. Here, upon the evidence, it appears at least that the goods were delivered to the defendant as owner, that he received them with- out objection, and that he kept them in his possession for three or four minutes. There was therefore an acceptance by him as owner during that interval. Per Curiam. In order to satisfy the statute, there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee ; and there must be an actual accept- ance by the latter, with an intention of taking to the possession as owner. It lies upon the plaintiff in this case to make out that there was such delivery and acceptance. Now here, by the printed condi- tions of sale, a deposit of 30 per cent, was to be paid upon the party being declared the highest bidder, and the residue of the purchase money Avhen the goods were removed ; and it is not to be presumed 1 1 East, 192. 2 1 B. Moore, 328. 3 5 b. & A. 855. 136 PROCTOR V. JONES. [CHAP. I. that the vendor intended, contrary to that condition, to part with the right of possession until the deposit or price was paid. There was therefore very slight evidence to shew that the plaintiff intended to pai-t with all control over the goods when he delivered them. Then was there any acceptance by the defendant as owner? It appears that a very short interval elapsed after the lot was knocked down, before the defendant objected that he had been mistaken in the price. Unless therefore the retaining of them for the three or four minutes that intervened was evidence of an actual acceptance by him as owner, it is clear that there was not any acceptance afterwards. That, at all events, was very slight evidence of an acceptance by the defendant as owner, and it ought at least, under all the circumstances, to be sub- mitted as a question of fact to the jury, whether there was delivery by the vendor and an actual acceptance by the vendee, intended by both parties to have the effect of transferring the right of possession from the one to the other. Hule absolute. PROCTOR V. JONES. At Nisi Prius, coram Best, C. J., December 11, 1826. {Reported in 2 Carrinrjton tj- Payne, 532.] Assumpsit to recover the price of a quantity of wine. The plain- tiff's clerk proved that he went with the plaintiff and defendant to the London Docks for the pui-j^ose of the defendant's tasting some wine of the plaintiff's. After several sorts had been tasted and the prices mentioned, the defendant agreed to take two casks of Port, and directed the witness to mark them with the initials of his name, that no mistake might occur. On being asked his initials by the plaintiff, he said they were T. J., and T. J. was then marked on the casks by the witness in the defendant's presence : a third was afterwards marked in the same way. The plaintiff then left ; and the witness and the defendant went towards another warehouse to see some Cape wine, and while they were going the defendant said that he had laid out a good deal of money in gin, and should want some time for the wine. The witness told him he might have two months, and he said that would do very well. The defendant then said that he had several cases in the Court of Requests, and he must go there, or he should be nonsuited, but added that the witness knew what would suit hun ; and he left it to ■ him to select for him both with regard to the quality and price. For the plaintiff, the case of Anderson v. Scot^ Avas cited. 1 1 Campb. 235, note. SECT. IV.] PROCTOR V. JONES. 137 Wilde, Serjt., for the defendant. An act done by the vendor is not an act which will bind the purchaser under the Statute of Frauds. There was no contract at the time of marking ; the contract was made afterwards ; marking is not sufficient. Anderson v. Scot has been considered a very strong case. The words of the statute are [stating them]. It does not appear in what condition the wines were at the docks, to what order they were deliverable, or to what liens they were subject. What occurred cannot be said to be equivalent to an actual receipt, when it does not appear that the purchaser had any control over the wine. Btctchinson, on the same side, referred to the cases of Farebrother v. Sunmons,^ Baldey and Another v. Parker,- and Thompson v. Maceroni.'' Vauffhan, Serjt., in reply, contended that the proposition was a monstrous one, which Avas sought to be maintained on the part of the defendant. He cited Elmore v. Stone.* Best, C. J. That case has been overruled. Vauffhati, Serjt. Could the plaintiff have had a right, if he had heard of the insolvency of the vendee, to say there was no delivery? There was a symbolical delivery. Ma7ining, on the same side. The case of Baldey v. Parker is distin- guishable from tliis, because there the goods were capable of delivery ; but here they were not, partly on account of their bulk, and partly on account of the necessity of previously paying the duty. Best, C. J. The Statute of Frauds and the Statute of Limitations were both so much objected to at the time when they were passed that the judges appeared anxious to get them off the statute book, but in later times they have become desirous to give them their full effect. I think the Statute of Frauds is a good and wholesome statute. In other countries contracts are made in writing. If my Lord Ellen- borough's opinion in the case of Scot v. Anderson was an opinion upon a matter of common law, I should act upon it ; but it is on the con- struction of a statute ; and the words of the statute are against it. It is the intention of the statute that there should be as complete a delivery as can be according to the nature of the article. It cannot be said in the present case that the defendant actually received the goods.. Could the vendee maintain trover if the goods were not delivered ? Certainly he could not, for the seller would have a lien on them for the price, as there was no stipulation as to payment at a future time. But not only was there no delivery, but there was no complete contract at the time of the marking ; for at that time the time of payment was not agreed upon ; but it was settled in a conversation afterwards. If there was no complete contract at the time of the marking, then the marking 1 5 B. & Aid. 333. 2 2 B. & Cr. 37. 3 3 B. & Cr. 1. * 1 Taunt. 458. 138 . ROHDE V. THWAITES. [CHAP. I. cannot be an acceptance under the statute. If the plaintiiF had made a transfer in the dock books, that would in my opinion have been a syraboUcal deliver}'. I think, looking to the words of the statute, that I am bound to call the plaintiff. ' Nonsuit. ROHDE AND Others v. THWAITES. In the King's Bench, Hilary Term, 1827. [Reported in 6 Barnewall Sf Cresstvell, 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 hogsheads of sugar, at 56s. Qd. per cwt., to be delivered by the plain- 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 faithfully 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 sum, 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 althoiigh 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 defliult. 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. 6c?. 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 twenty 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 days afterwards the plaintiffs filled up the remaining sixteen hogsheads, and gave notice to the SECT. IV.] EOHDE V. THWAITES. 139 defendant that they were ready, and required liim to take them away ; he said he would take them away as soon as he could. They were not weighed till February, 1826, when the plaintiffs delivered a hill 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 Avarehouse on the 3d of December wlien the contract was made. The four hogsheads which were first delivered were filled with that susrar. It was admitted that there was sufficient evidence of a sale of the four hogsheads, inasmuch as there was an acceptance of them by the defendant. No contract in writing sufiicient to satisfy 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 actually delivered ; but the jury imder the direction of the under-sheriff 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, F. Pollock now shewed cause. The defendant, by suffering judg- ment to go by default, has admitted the contract stated in the declara- tion ; and the plaintiffs therefore are entitled to recover any damages sustained by breach of that contract. Secondly, the defendant accepted four hogsheads of the sugar. This is a case therefore Avithin the excep- tion of the 17th section of the Statute of Frauds, for the buyer has accepted part of the goods sold, and actually received the same. Thirdly, there has been an acceptance of the Avhole ; for after the six- teen hogsheads were separated from the bulk, the defendant being required to take them aAvay said he would as soon as he could. This is equivalent to an acceptance of the sixteen hogsheads. Hutchinson^ contra. By suffering judgment by default, the defend- ant admits generally the plaintiffs' right to recover on the contract stated in the declaration to a certain extent, and in this case he admits the right of the plaintiffs to recover the value of the four hogsheads which were actually delivered. Secondly, the 17th section of the 29 Car. 2, c. 3, enacts [stating it]. Now in this case no specific twenty hogsheads of sugar were agreed to be sold, but the plaintiffs were to select from a large bulk in their Avarehouse a sufficient quantity of sugar to fill twenty hogsheads. At the time AA'hen the four hogsheads were deliA"- ered to and accepted by the defendant, the quantity required to fill tlie other sixteen hogsheads had not been separated from the bulk. The four therefore did not constitute any part of the tAventy, and conse- quently the acceptance of the four Avas not an acceptance of part of the goods sold ; and if that be so, as there was no sufficient note in Avriting of a contract of sale, the property in the sixteen hogsheads did not pass to the defendant ; and as the plaintiffs' claim is founded on a bar- 140 ROHDE V. THWAITES. [CHAP. I. gain and sale, they cannot upon this declaration recover more than the value of the four hogsheads which were sold to and accepted by the defendant. Bayley, J. Where a man sells part of a large parcel of goods, and 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 appropriates 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 twenty hogsheads of sugar, to be prepared or filled up by the plaintifis. 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 by 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 plaintiffs did ai^propriate for the benefit of the defendant sixteen hogsheads of sugar, and they communicated to the defendant that they had so approj^riated them, and desired him to take them away ; 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 approi^riation 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. HoLKOYD, J. The sugars agreed to be sold being part of a larger parcel, the vendors were to select twenty 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 away. That is equivalent to an actual acceptance of the sixteen hogsheads by the defendant. That acceptance made the goods his own, subject to the vendors' lien as to the price. If the sugars had afterwards been destroyed 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 which was before a mere agreement to sell into an actual sale, and that the prop- SECT. IV.] COLEMAN V. GIBSON. 141 erty in the sugars thereby passed to tlie 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. Hide discharged. COLEMAN V. GIBSON. At Guildhall, coram Lord Tenterden, February 22, 1832. [Reported in 1 ^ foody ^' liohiiison, 168.] Assumpsit for goods sold and delivered, work and labor, &c. The action was brought for £18, the price of four vats ordered ver- bally by the defendant from the plaintiff. An order for five was given on the 6th of January, and one of the vats was delivered according to the order at Messrs. Seager and Evans, distillers, on the 11th, another on the 19th, and two more on the 24th. On the Wednesday following (January 26), the defendant went to the plaintiff and refused to take the casks, and the fifth was accordingly not delivered. The defendant had seen them on the 19th, and expressed no dissatisfoction with them, but ordered the plaintiff to proceed. The refusal was on the ground of bad quality, and that they leaked. As to this there was contradic- tory evidence. It appeared that it was usual to send goods of this kinc to distillers to be seasoned, as had been done in this instance. The vats were never returned. Williams, for the defendant, contended that the defendant could not be charged with these goods, there being only a parol order, and no acceptance. The stat. 9 G. 4, c. 14, § 7, has extended the provisions of the Statute of Frauds to such a case as the present. The plaintiff therefore must shew an acceptance, and this must not be a taking them merely for trial, Avith a right still to object to thera as not merchantable. Here, though they were delivered according to the order of the defend- ant, it was with a view to ascertaining their quality, and he still had a right to refuse them : the mere fact therefore that they were not actually returned, but continued on the premises of Messrs. Seager, will not convert this into an acceptance. In fact he did complain of their quality and refuse them. That tlie mere fact of the receipt of the goods by a party named by the buyer does not amount to an accept- ance of them by him, is clear from Howe v. Palmer, 3 B. & A. 321 ; Hanson v. Annitage, 5 B. & A. 557 ; and Astey v. Emery, 4 M. & S. 262 : in the former of which it was expressly laid down 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. 142 MABERLEY V. SHEPPARD. [CHAP. I. LoED Tenterden, C. J. The defendant is bound to object to receive the casks within a reasonable time ; and it will be a question for the jury whether he did so. It appears that it is usual for articles of this kind to be sent to a distiller's, as in this case, to be seasoned before they are taken to the publican's. This would give the defendant an opportunity of ascertaining the quality of the goods, and he would be entitled to time for this pui-jDOse. But allowing him this, he must deter- mine in a reasonable time ; and if he lets it elapse without objection, I think he must be considered as having accepted. The refusal in this case was certainly made soon after the deUvery of the last two casks, and the question may perhaps be different as to them and as to those that were delivered before : they are to be treated in this respect as separate items. The jury will have to consider whether the defendant signified his objection to all or any of the casks in a reasonable time ; for all which were not so objected to the plaintiff will be entitled to a verdict, unless the jury should be of opinion that the casks were really unfit for use. If they were, they are no compliance with the order. Verdict for the plaintiff for the whole amount. MABERLEY v. SHEPPARD. In THE Common Pleas, June 11, 1833. [Reported in 10 Bingham, 99.] This was an action for the price of a wagon alleged to have been sold and delivered by the plaintiff to the defendant. At the trial it appeared that the iron work used for the wagon was purchased by the defendant of another person who assisted the plain- tiff's men in putting it on, and charged the defendant for his time. The defendant also purchased a tilt from another person, which was afterwards carried to the plaintiff's yard and fixed by his men on the wagon. These things having been done before the wagon was finished, and there being no proof of actual delivery, the plaintiff was nonsuited. Wilde, Seijt., in Easter term obtained a rule nisi to set aside this nonsiiit, on the ground that the defendant exercised acts of ownership over the wascon, and that the exercise of such acts was tantamount to a delivery. Chaj)lin v. Rogers.^ Jones, Serjt., showed cause. In Chaplin v. Rogers a part of certain hay, the price of which the plaintiff sought to recover, was sold by the 1 1 East, 192 ;_Bac. Abr., Agreement (C). SECT. IV,] MABERLEY V. SHEPPARD. 143 defendant to a third person avIio actually carried it away. Hero the defendant only assisted in the construction of the wagon, but never received it after it Avas finished. There has therefore been no acceptance pursuant to the Statute of Frauds, § 17. Wilde was heard in support of the rule. Cur. adv. vult. TiNDAL, C. J. The question in this case arises upon the 17th section of the Statute of Frauds, the provisions of which have been extended by the late act 9 G. 4, c. 14, to contracts for the sale of goods, " not- withstanding the goods may not at the time of the contract be actually made." And the question is, whether there has been such an accept- ance of the wagon hy the defendant as to satisfy the Statute of Frauds?. The words of the section above referred to are very precise : that the contract shall not be allowed to be good " unless the buyer shall accept part of the goods so sold and actually receive the same." The class of cases on which the plaintiff relies is that in which the buyer has exercised some decisive act of ownership over the commodity sold, as in the case of Chaplin v. Rogers by selling part of it to another per- son ; and it is contended that the fact of the iron work used for the wagon having been purchased by the defendant of another person who assisted the plaintiff's men in putting it up, and charged the defendant for his time, is such an act of ownership exercised upon the wagon by an agent of the defendant as brings this case within the i)rinciple above referred to. It must be observed, however, that this was not any act done after the wagon was finished and capable of being deliv- ered, but merely whilst it was in progress ; and that after such assist- ance had been rendered, and the iron work fixed, the wagon was left in the plaintiff's yard to be finished by him. If the w^agon had been completed and ready for delivery, and the defendant had then sent a workman of his own to perform any additional work upon it, such conduct on the part of the defendant might have amounted to an acceptance. We think the act proved at the trial is by no means so strong and unequivocal as that which took place in Chaj^lin v. Rogers, where the purchaser sold part of the hay to a stranger who actually took it away. Another act which occurred in this case is of a still more doubtful character; namely, the defendant's purchasing a tilt from another person which was afterwards carried to the plaintiff's and fixed by his men on the wagon. This would seem to amount to no more than if the defendant had sent a portion of his own materials to be worked up by the^plaintiff. And indeed in the case referred to the court relied much upon the finding of the jury that there had been a delivery of the couimodity to the purchaser; which finding, they observed, they were not satisfied was wrong. Now there has been no Buch finding of the jury in this case. On the other hand there are decisions which go the length of hold- 144 BAINES V. JEVONS. [CHAP. I. ing that, as long as the vendor retains his right of lien over the whole of the commodity sold, there has been no such delivery and acceptance as the statute intended. And again that unless there has been a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and an actual acceptance of the latter with an intention of taking possession as owner, the statute is not satisfied (see Baldey v. Parker ^ and Phillips v. Bistolli ^) ; and undoubtedly the present case cannot be held to fall Avithin the compass of either of those decisions. For the plaintiff retained his lien upon the wagon, and there was nothing in the facts that denoted any intention either to deliver or to accept. The circumstances of this case certainly leaA-e it open to doubt whether the statute has been complied with or not ; but we think it is the duty of the plaintiff ta free the case from all doubt, and where any remains that it is safer to adhere to the plain intelligible words of the statute, which point as clearly as words can to an actual deUvery and an actual receiving of part or the whole of the goods sold. Upon this ground we hold that in the present case the requisites of the statute have not been complied with, and that the rule for setting aside the nonsuit and entering a verdict for plaintiff must be Discharged. BAINES y. JEVONS. At Nisi Prius, coram Alderson, B., March 12, 1836. {Reported in 7 Camngton ^ Payne, 288.] Debt for goods sold and delivered, with a count upon an account stated. Pleas, first, to the whole declaration, mmqiimn indebitatus ; second, as to the goods sold and delivered, that the goods were sold at one time, and that the price exceeded £10, and that the defendant did not accept the goods or any part, or give any thing in earnest or part payment, nor was there any note in writing. Replication, that the defendant accepted the goods. It appeared that the defendant had bought of the plaintiff a fire- engine at the price of £25 ; and to prove the acceptance of it by the defendant, a witness was called who stated that the defendant took him into a yard where the fire-engine stood to show it to him ; and that on his asking the defendant Avhat he meant to do with it, as no one would want it, the defendant replied that the parish of Dudley would want an engine, as well as two other persons whom he named. It was also proved that, on another person asking the defendant what 1 2 B. & C. 44. 2 2 B. & C. 511. SECT. IV.] ELLIOTT V. THOMAS. 145 he mount to do with it, ho ropHocl, " I know what I am goin^j to do with it;" and it furthor apjjoared that, on Mr. Neal asking if the plain- tiff wouhl sell the engine, the defendant said, " Never mind that ; I have a concern in tliat enscino." Aldkuson", B., (in summing up). Tlic question hero is, Whctlier the defendant has accepted this lire-engine V We find that the defendant takes a person to look at it, and says who is likely to want it. You will say whether that is not a . dealing with it as his own; and when another witness asks him what he is going to do with it, the defendant does not say that it is not his ; but he replies, " I know Avhat I am going to do with it." And in his observations to Mr. Neal, ho speaks as if it were his own. You will consider whether this convinces you that the defendant treated this fire-engine as his own, and dealt with it as such ; for if so, the plaintiff is entitled to a verdict. YercUct for the plaintiff. ELLIOTT V. THOMAS and Another. In THE Exchequer, Hilary Term, 1838. [lieTported in 3 Meeson ^- Welshy, 170.] Assumpsit for goods sold and delivered, and on an account stated. Plea, the general issue. At the trial before Parke, B., at the summer assizes for Yorkshire, the following appeared to be the facts of the case : On the 16th of November, 1835, the traveller of the plaintiff, who is a steel manufacturer at Sheffield, took from the defendants, who were in partnership as edge-tool makers in Birmingham, a verbal order for thirty-five bundles of common steel at 34,s., and five bundles of cast steel at 48s., of a specified thickness. The traveller wrote down the order at the time in his own book, but no memorandum was made of it such as to satisfy the Statute of Frauds. On the 19th of December the defendants wrote by post to the plaintiff for three hundred weight more of cast steel. The steel ordered on the first occasion was for- warded by canal to the defendants at various times in the months of December and January. On the 10th of February the defendants wrote to the plaintiff the following letter : — Bikjiingiia:*!, February 10, 1836. Sir, — We arc in want of the remainder of cast steel ordered, which we trust will be forwarded immediately. In your invoice of the 11th and 16th of Janu- ary, you charge thirty-seven bundles of cast steel ; we have only received tliirty- four bundles from Pickford's, consequently three bundles short. We must again request you will be careful to send it the right thickness ; part of the last was wrong. Your attention will oblige Yours respectfully, R. & G. Thomas. VOL. 1. 10 146 ELLIOTT V. THOMAS. [CHAP. I. On the 17th of February the plaintiiF's traveller called again on the defendants. They told him they were afraid the steel was not of a proper temper, but too hard, and begged that he would state that to the plaintiif. The defendants then j^aid the traveller £128 12s. in part of the price, leaving a balance (according to the invoice) of £112 3s, 9c?., for which balance the defendants proposed to give their bill at twelve months, on receiving some allowance for the wrong temper in the steel ; but which the traveller did .not assent to. On the 19th of March, the defendants wrote to the plaintiff as follows : — BiKMiNGHAM, March 19, 1836. Sir, — There appears to be some common steel ordered not yet sent, but which is much wanted ; pray attend to this immediately, and oblige Yours respectfully, R. & G. Thomas. On the 7th June the plaintiff's traveller again applied to the defend- ants for payment of the balance. They stated that the steel was of the wrong size, but they had used part of it, and requested him to change the remainder. He answered that he woidd represent what they said to the plaintiff, which he did. On the 25th August the trav- eller again saw one of the defendants, and pressed for a settlement of the account, when the defendant said they would never pay for the Bteel, for it was a wrong size. On the part of the defendants it was contended that there had been no acceptance of the cast steel sufficient to bind the defendants within the 17th section of the Statute of Frauds. The plaintiff's counsel had objected that such defence could not be raised under the general issue, but the objection was overi'uled; and evidence was then adduced to shew that the cast steel furnished was of too hard a temper to be wrought into the tools for which the defendants had required it, and (as to the steel ordered on the 19th of December) that it was not of the thickness sjjecified in the order ; and that the defendants had used thirteen pounds only of the cast steel in experiments on its quaUty. The value of the cast steel included in the written order of the 19th of December was proved to be £24. It appeared that the prices of cast steel varied very much according to its quality, being sometimes as high as 70s. and 80s. per bundle. The learned judge, having stated to the jury that the question in the cause was whether there had been an acceptance of the cast steel included in the verbal order of the 16th of November, so as to bind the defendants, left it to them to say, first, whether the steel supjDlied was fit for the edge-tool trade ; secondly, whether, if it was not, the defend- ants had agreed nevertheless to take it, and whether their letter of the 10th of February was not at all events a waiver of the objection as to its thickness ; and, thirdly, whether more of it Avas used than was necessary to make an experiment on its quahty. The jury found that SECT. IV.] ELLIOTT V. THOMAS. 147 the steel was according to order, and that the defendants had used more of it than was necessary; and gave a verdict for the phiintifi', damages £112 3s. 9d. In Michaehiias term Cresswell obtained a rule 7iisi to reduce the damages to £24, or for a new trial, on the grounds that there was no acceptance of the cast steel included in the verbal order within the meaning of the Statute of Frauds; and also that the verdict was against the evidence. Alexander and Wightman now shewed cause.^ The objection aris- ing on the statute was avoided by shewing that the cast steel and the common steel were the subject of one entire order, and that part of the goods ordered, the common steel, was accepted without objection. All that the statute requires is that " the buyer shall accept part of the goods so sold and actually receive the same," But there was also sufficient evidence of the acceptance of the cast steel. The letter of the 10th of February was clearly a waiver of the objection as to the thickness. Then as to the other objection, as to the temjier, that was never started until some weeks after the delivery of the steel ; and after having kept it so long, with an opportunity of making the neces- sary experiments, the defendants had no right to repudiate it. The right of return mi;st be exercised within a reasonable time ; here the goods were not finally rei^udiated for several months. Assuming the goods to be according to the order, as the jury have found, what can amount to an acceptance of them but the receiving and keeping them and using a part ? If that be not an acceptance, nothing but the using the whole, or reselling the goods, would be sufficient to bind the buyer. In Percival v. Blake,- where the defendant had bought an article, and suffered it to remain on his premises for two months without examina- tion, and then found that it Avas unfit for use, it was held that after that length of time he could not avail himself of the objection in answer to an action for the price unless it appeared that some deceit had been practised on him as to the quality of the article. But it may also be contended that if, as the jury have found, the defendants have used more of the steel than was necessary for experiments, they thereby assumed such a dominion over it as amounted to an acceptance. Okell V. Smith,^ Street v. Blay.^ [Aldersox, B. It is a startling pro])osi- tion that, if the jury think the party has used too much for experi- ments, he must take and pay for all. If so, then if a buyer draws too large a sample, the jury thinking so, he is fixed with the pro}Kn-ty in the whole bulk.] In Street v. Blay Lord Tenterden says, in delivering the judgment of the court: ^ " Wliatcver may be the right of the pur- 1 Tliey gave up the objection that the defence was not admissible under the gen- eral issue. 2 2 Car. & P. 514. 3 i stark. N. P. C. 107. * 2 B. & Adol. 456. 5 2 B. & Add. 463. 148 / ELLIOTT V. THOMAS. [CHAP. I. chaser to return a warranted article in an ordinary ease, there is no authority to shew that he may return it where the purchaser has done more than was consistent with the purpose of trial." [Aldeesoin^, B, There the purchaser had resold the horse ; but suppose he had only ridden him, in the opinion of the jury, further than was necessary for trial, wovild that fix him Avith the j^rice ? PaPvIvE, B. I do not think this part of the case will serve you.] At all events, there was suffi- 'cient proof of accejitance, independent of the finding of the jury on this point. Indeed, unless the statement of the price of the goods be held a necessary ingredient,^ the letter of the 10th February was a suf- ficient memorandum in writing of the contract. Cressicell, contra. Even suj^posing goods ordered by parol to be furnished pursuant to the order, the buyer is not bound to take them, the contract being ^:)er se inoj^erative by the Statute of Frauds. On the other hand, whether they answer the order or not, if the buyer agree to take the goods actually supplied he is precluded from saying that there was no acceptance. The first question therefore is, whether the acceptance of the common steel operated as an acceptance of the cast steel also. It is submitted that the part acceptance meant by the statute is the part acceptance of one entire thing of the same character, 60 that the taking to one j^art is necessarily a taking to the rest. A delivery of part never amounts to a delivery of the whole, unless the parties appear to have so intended it. It cannot at all events be said that there was an acceptance of the whole, so as to preclude the defendants from objecting to the quality: all that can be contended is, that there Avas a waiver of a written contract as to the cast steel. In Thompson v. Maceroni,^ Avhere goods of considerable value were made to order, and remained in the possession of the vendor at the vendee's request, with the exception of a small part which the vendee took away, it was held that there was no acceptance of the residue within the Statute of Frauds. [ Aldeeson, B. Price v. Lea ^ is an authority against you ; there it seems to have been admitted that, if there had been one entire contract for the two articles sold (cream of tartar and lac dye), the accejitance of one would have been an acceptance of both.] That case is not a direct authority, because it became unnec- essary to decide the point. But in Hodgson v. Le Bret ^ Lord Ellen- borough ruled that the appropriation by the purchaser to his own use of one of the several articles bought at the same time in a shop was not sufiicient to take the other articles out of the statute. [Paeke, B. That appears to have been on the ground that he considered them as separate contracts ; but that was overruled in Baldey v. Parker.^] 1 But see Elmore v. Kingscote, 8 D. & R. 343, 5 B. & Cr. 583; Hoadly v. M'Laine, 10 Bing. 482, 4 M. & Scott, 340. 2 3 B. & Cr. 1, 4 D. & R. 619. ^ j B. & Cr. 156, 2 D. & R. 29-5. « 1 Campb. 233. 6 3 d. & r. 220, 2 B. & C. 37. SECT. IV.] ELLIOTT V. THOMAS. 149 [He then proceeded to argue that the evidence did not warrant the findino; of the; jury; and on the suggestion of the court it was agreed that the damages should be reduced to £24, the phiintift' taking back the cast steel included in the first order.] Pakke, B. The first question in this case is one of some importance, but none of the court entertain any doubt upon it. It is whether there was a sufficient part acceptance of the goods ordered in Xovember to take the case out of the Statute of Frauds. That Avas a joint order for common steel and cast steel : the effiict of such joint order, unless explained, would be to make it one entire contract, since we must assume that one article would not have been furnished at one stipu- lated price unless the other had been agreed to be paid for at the other price. There was no explanation in this case, and therefore it must be taken to be a joint contract. Then one of the articles, the common steel, was certainly accepted; and the question is, whether that acceptance is sufficient to take the case out of the statute as to the cast steel also, and I am clearly of opinion that it is. In order to determine the question the best course is to look at the words of the statute itself Those words are [sttiting them]. The object of the statute was to prevent perjury in proving by parol a contract which was never made in fact : but none of its provisions effi:;ctually exclude peijury ; they only intend to diminish the probability of its being committed. There may be perjury in swearing to the handwriting of the party charged, or in proving the agency of the party signing on his behalf; neither does the acceptance of the goods, or the giving of earnest, operate as a certain prevention of peijury. The same obser- vation applies to Lord Teuterden's Act, 9 Geo. 4, c. 14, under which part payment of principal or interest is sufficient to take a case out of its operation. Looking then at the words of the statute, and assuming that there is but one contract, I am of opinion that there was an acceptance of part of the goods sold within the words and also within the principle of the statute. I should have been of this opinion sup- posing that there were no decided case on the subject. Several cases have, however, been referred to on the part of the defendants for the purpose of j)roving that this was not a sufficient part acceptance. In Thompson v. Maceroni the court held that the acceptance of a small part of goods to the value of £144 made to order Avas not sufficient to enable the seller to recover against the buyer for the price of the whole as for goods sold and delivered. The court there say in effi^ct that there was no proof of actual deliAcry, nor such proof of actual acceptance as to take the case out of the Statute of Frauds ; ?'. e., the defendant had not accepted the whole so as that a count for goods sold and delivered could be maintained for the whole. That case seems to me to have turned entirely on the form of the action. The plaintiff could not succeed unless there was a delivery of the whole, or 150 ELLIOTT V. THOMAS. [CHAP. I. at least an actual acceptance and receipt of the whole, so as to be equivalent to a delivery. In Hodgson v. Le Bret Lord Ellenborough formed his opinion apparently on the ground of there having been separate contracts ; but that case is greatly shaken by Baldey v. Parker, which shews that the contract in Hodgson v. Le Bret ought to have been considered as a joint one, and that the act of the pv;r- chaser's writing her name on the goods was no acceptance. Hodgson V. Le Bret therefore is no binding authority. No other case was cited in argument which bears upon the point ; and that of Price v. Lea, referred to by my brother Alderson, is rather an authority the other way. Holroyd, J., there says : " There was not then one entire contract for both the articles, so as to make the acceptance of the one the acceptance of the whole." The inference therefore is (I do not say it is conclusive) that, if the contract had been entire, the accej^tance of part would have been deemed sufficient to take the case out of the statute as to the whole. I am of opinion therefore that there was in this case a sufficient acceptance of i^art to bring the case within the exception of this section of the Statute of Frauds ; and that the defendants may be made responsible uj^on this joint contract for two articles by the receipt of one, jjrovided both the articles were furnished according to that contract, and were such as ought to have been delivered pursuant to it. That was to be proved by the plaintiff, and he did give evidence of it for the consideration of the jury ; but, as we are not altogether satisfied with the propriety of the verdict in that respect, it will be better for the parties to enter into some com- promise to avoid the necessity of a new trial, which we otherwise might be disposed to grant. BoLLAND, B. I am of the same opinion, — that there was a sufficient part acceptance. The case of Hodgson v. Le Bret is not reconcilable with Baldey v. Parker, and must be considered as of doubtful authority. Aldekson", B. I am of the same opinion. The words of the statute appear to me quite decisive of the question. What are " the goods so sold ? " — the goods sold by that contract. If the contract be for two classes of goods, does not he accept part who accepts one class ? GuRNEY, B. I am of the same opinion. Part of the goods included in the contract was accepted ; that was a sufficient accept- ance of the rest ; and the only question remaining was, whether they were according to order. Hide absolute by conse^it to reduce the damages to £24, the defendants undertaking to return all the steel complained of. SECT. IV.] WILLIAMS V. BURGESS. 151 WILLIAMS V. BURGESS. In the Queen's Bench, June 7, 1839. [Reported in 10 Adolphus .j- Ellis, 499.] Assumpsit. Declaration stated that, in consideration plaintiff would sell and deliver to defendant a mare, wliieli i)laintifF supposed to l^e in foal, for £-20, subject to the condition that if the mare should prove to be in foal defendant should, on receiving £12 from i)laintiflf, return it to plaintiff on request, defendant promised, if it proved to be in foal,, and plaintiff paid £12, to return it. Averment of sale and delivery of the mare for £20, subject to the above condition ; that it proved to be in foal; that plaintiff then tendered to defendant £12, and requested him to return the mare ; but defendant refused so to do. Plea, non assumpsit. On the trial at the York summer assizes, 1837, before Parke, B., the plaintiff proved a verbal agreement as stated above, and the accept- ance of the mare and payment of the money by the defendant. It was objected on the part of the defendant that the agreement on which the action was brought was a distinct agreement for a re-sale of the mare within § 17 of the Statute of Frauds, 29 C. 2, c. 3, and ought to have been in writing. But the learned judge, considering it to be merely a qualification of the original contract of sale which was exe- cuted, overruled the objection, reserving leave for the defendant to move to enter a nonsuit, and for the plaintifi'to object that this defence could not be shewn upon the plea of non assumpsit. There was a verdict for the plaintifi'. In Michaelmas term, 1837, Knowles obtained a rule nisi to set aside the verdict on the points reserved, and enter a nonsuit. Alexander now shewed cause. The objection is not open upon the general issue. [Upon this point Elliott v. Thomas^ on § 17 of the Statute of Frauds, and Buttemere v. Hayes- on the 4th section, were cited ; but, as the court pronounced no opinion upon it, the argument is here omitted.] The contract for re-sale is not a distinct and inde- pendent one, but part of the original one, which Avas made good by acceptance of the mare and payment of the price. That the delivery was sufficient to take the case out of the statute is shewn by many authorities. \_Knoicles, for the defendant, stated that he did not dis- pute those authorities, and admitted that the original agreement was made good by delivery.] Then the condition to redeliver cannot make it void. A state of things, contemplated by the original contract and 1 3 M. & W. 170. '^ 5 M. & W. 456. 152 WILLIAMS V. BURGESS. [CHAP. I. parcel of it, has arisen, which now entitles the plaintiff to sue Avithout any fresh payment or writing. ITnoicles, contra. There are two distinct contracts ; one is executed ; the other executory. Both are within the statute, and the latter can- not be enforced for Avant of the proper formalities. [Lord Denman, C. J. Suppose the whole had been in writing at first, would it require two stamps ?] Perhaps not ; but that is not a proper test. It is certain that an agreement may contain two distinct stipulations capable of being treated as distinct contracts, of Avhich one may be void and the other good. Wood v. Benson.^ [Patteson-, J. I think that, when th:it ease has been cited, the courts have not been disposed to extend it.] There are two agreements entered into at the same time. Sup- pose the agreement had stipulated that in a certain event the defend- ant should sell and deliver to the plaintiff another horse, or the foal itself: a writing would then have been necessary ; for there would be no acceptance of any thing by the buyer, but only by the defendant, the seller; yet it cannot in principle make any difference that the horse to be sold happens to be the same. Watts v. Friend ^ is nearly in point. There the agreement was that the plaintiff should furnish the defend- ant with seed ; that the defendant should sow it on his own land, and should sell and deliver to the plaintiff the whole crop of seed produced therefrom. The plaintiff supplied the seed; and the defendant accepted and sowed it, but refused to sell the crop according to the agreement. It was held that, as the agreement was not in writing, the Statute ofy Frauds was a defence. Yet it might have been urged that the con- tract required no writing, because there was a delivery of seed to the defendant. Lord Denman, C. J. This is a sale by the plaintiff to the defendant on particular terms, one of which is a return of the article sold in a certain event ; the acceptance of the thing sold takes the Avdiole con- tract out of the statute. The case differs from Watts v. Friend,^ where the re-sale was of a different thing. LiTTLEDALE, J. The plaintiff is willing to part with his property on certain conditions which are part of the agreement. It is not an inde- pendent contract of sale on which he sues, but the original contract, which was a qualified sale. It is like the case of the delivery of a horse on trial ; Avhen the buyer returns it after trial, it is not a re-salc. I have not the slightest doubt on the case. Pattesoi^, J. It is one entire contract, and not two distinct con- tracts. It is a sale on the terms that the mare and part of the price should be returned in a certain event. If indeed the defendant had agreed to sell to the plaintiff the foal, the case might have been differ- ent. In Watts V. Friend * the bargain was to sell to the plaintiff an I 2 Cr. & J. 94 ; s. c. 2 Tyrw. 93. '•^ 10 B. & C. 446. 3 10 B. & C. 446. 4 10 B. & C. 446. SECT. IV.] WRIGHT V. PERCIVAL. 153 entirely diftercnt thing, and not merely to return to him the same article. Wood v. Benson ^ shews only that there may be two contracts on one piece of paper, of wliich one may be bad, the other good. Williams, J., concurred. Hule discharged. WRIGHT AXD Otiikhs v. PERCIVAL. In the Queen's Bench, June 13, 1839. {Reported in 8 Law Journal Reports, New Series, Queen's Bench, 258.] Assumpsit on a special contract for not accepting a carriage made by the plaintiffs for the defendant ; with comits for goods sold, work and labor, and on an account stated. The defendant, amongst other pleas, pleaded no/i assumpsit, and th;il the plaintiffs did not offer to deliver the carriage to the defendant, nor request her to accejit the same and })ay the price thereof. At the trial before Pattcson, J., at the ]Middlcsex sittings in Hilary term, 1838, it appeared that after the carriage had been finished the defendant and her two sisters called at the manufiictory of the plain- tiffs, briii<>:in<>" with them a cover for the hind seat and a set of traces, which the carriage had been previously made to fit. One of the plain- tiffs said the carriage was complete ; the defendant and her sisters got into it, and said it was a vei-y nice one. They then desired the plain- tiffs to order a pair of post-horses to take the ' carriage home, stating that they would call at half-past four; they added that they had brought a cover to i)ut over the hind scat, and directed that it should be put over twice doubled. The cover was pait over the hind seat in their presence, and agreeably to their directions. The afternoon proved wet, and at live o'clock the defendant and her sisters came to the plain- tiffs and stated their intention not to take the carriage home that night, owing to the ])adness of the weather. The defendant aflerwards refused to i)ay the price demanded by the plaintiffs, and did not take the carriage away. The question at the trial was, whether these facts constituted a sufficient acceptance of the carriage to satisfy the Statute of Frauds. The jury found a verdict for the plaintiffs on the common count for goods sold, with damages £85, leave being given to the defendant to move to enter a nonsuit. ICelly having obtained a rule for this inirpose, ICaowles shewed cause, and contended that the facts of the case afforded sufficient evidence of an acceptance of the carriage by the 1 2 Cr. & J. 94 ; s. c. 2 Tyrw. 93. 154 WRIGHT V. PERCIVAL. [CHAP. I. defendant. In the earlier cases very little evidence was held sufficient to warrant the jury in finding an acceptance. Elmore v. Stone,^ Blenk- insop V. Clayton.2 In Smith v. Chance ^ Holroyd, J., says : " A party cannot maintain an action for the price of goods sold and delivered until he has either delivered them or done something equivalent to delivery ; as, for instance, if he has put it in the vendee's power to take away the goods himself" In Tempest v. Fitzgerald," which will be cited on the other side, the plaintiiFhad not parted with the posses- sion or control of the horse. Chaplin v. Rogers ^ is in point. In the present case there has been a specific appropriation of the carriage by the defendant, and the property in it passed to her. He cited Baines V. Jevons,*' Bloxam v. Sanders,"^ Tarhng v. Baxter.^ Hayward^ contra. There has been no acceptance in this case suffi- cient to satisfy the Statute of Frauds. It was correctly laid down by the learned judge at the trial that the test of the acceptance was whether the seller had parted with his lien. In this case he clearly had not. Smith v. Sui-man.° [Patteson, J. I have no recollection of having laid down the law in that manner. I think I said that, if the jury believed the transac- tion respecting the putting on of the cover, there was a sufficient acceptance. I may perhaps have asked them to consider whether the defendant had made the carriage her own and whether the lien was gone.] There had been no change of possession here. In Elmore v. Stone there was a change of possession, and that circumstance is relied on in the judgment of the court. In Tempest v. Fitzgerald the plaintiff had parted with the possession of the horse. Acts of ownership are not decisive proofs of acceptance. Baldey v. Parker,^'' Maberley v. Sheppard," Smith v. Surman. In this case there has been no delivery. It was held in Boulter v. Arnott ^'- that more is necessary to constitute a delivery than to make an acceptance under the Statute of Frauds. The plaintiffs are not entitled to retain the verdict. Lord Denman, C. J. The verdict was right on the question, whether an action for goods sold and delivered could be maintained, for there Avas a complete delivery and acceptance. Where a buyer has the full control over the goods in question, and the power of taking them away, the jury are fully justified in finding a complete delivery. My brother Patteson is supposed to have said that there could not be an acceptance in this case, because the vendor's lien for the price still I 1 Taunt. 458. ^ 7 Taunt. 597. 3 2 B. & Aid. 753. 4 3 B. & Aid. 680. 5 1 East, 192. <* 7 Car. & Pay. 288. 7 4 B. & C. 941. 8 6 B. & C. 360 ; s. c. 5 Law J. Rep. K. B. 164. 9 9 B. & C. 561 ; s. c. 7 Law J. Rep. K. B. 296. 10 2 B. & C. 37 ; s. c. 1 Law J. Rep. K. B. 229. II 10 Bing. 99 ; s. c. 2 Law J. Rep. (n. s.) C. P. 181. 12 3 Tyr. 267 ; s. c. 1 Cr. & M. 333, 2 Law J. Rep. (n. s.) Exch. 97. SECT. IV.] DODSLEY V. VARLET. 155 continued ; but it is clear that this is not the test of the acceptance, and he could not have used such language. His observations may have been founded on the words of Parke, J., in Smith v. Surman ; but in that case the learned judge considers the lien not as a test, but merely as a circumstance to be considered. And it cannot be a test, because it does not go to the question of delivery. My brother Patteson must have said tliat, if th(> jury thought the delivery complete, then the goods would be sold and delivered. The other questions in this case are not necessary to be decided. The rule must be discharged. LiTTLEDALE, J. The qucstion in this case is, whether a delivery was actually made. I think it was, and that the defendant accepted the carriage by putting on the cover. Her intention moreover was to take it away, and she was prevented from doing so only by the unfav- orable state of the weather. She exercised an act of ownership, and it was for the jury to say whether there was a delivery or not. It is not necessary to consider the other questions. Patteson, J. I cannot exactly recollect what I said at the trial. But if I put it to the jury that there could have been no delivery because the plaintifts had not parted Avith their hen, I was wrong, and the jury found a right verdict in spite of my misdirection. Williams, J. Cases of this kind depend on their own peculiar cir- cumstances. Here the facts of the case shew that the plaintiffs gave and the defendant received possession of the carriage, although on account of the unfavorable weather the latter did not take it away at the time. The fact of a lien being reserved is not a complete criterion of acceptance ; it is a cii-cumstance, but it is not the governing feature of the case. In Elmore v. Stone the delivery was complete ; the case was the same as if the horses had been put into the defendant's own stables. But was Elmore compellable to part with the horses until he had got the price of them? Clearly not. Well, then, that shews that the lien is not a perfect test because the lien was not parted with, although there was a full dehvery. In the present case also there was a complete delivery. The rule must be discharged. Hide discharged. DODSLEY V. VARLEY. In the Queen's Bench, November 5 & 24, 1840. [Reported in 12 Adolphus cj- Ellis, 632.] Assumpsit for goods bargained and sold. Plea, ?ion assumpsit. On the trial before Littledale, J., at the last Nottingham assizes, it appeared 156 DODSLEY V. VARLEY. [CHAP. I. that the action was brou,o;ht 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 circum- stances 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 evi- dence did not show a delivery and acceptance within stat. 29 Car. 2, c. 3, § 17. Verdict for the plaintiff. inil now moved, according to leave reserved, for a rule to show cause why a nonsuit should not be entered on the points taken at the trial. As to the delivery, he contended that none had taken place, because the vendor had never lost his lien ; and he cited Baldey v. Parker,^ Smith v. Sunnan,- and Maberley v. Sheppard.'' [The judgment of the court renders any further statement unnecessary.] Cur. adv. vult. Lord Denman, C. J., in the same term (November 24th) delivered judgment. In this case, which was moved on three grounds for a nonsuit, we have examined our brother 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 sxibject-matter of the action, were bought ; or, if there were, that such agency had been countermanded before the contract was completed so as to satisfy the Statute of Frauds. (It is unnecessary to report the judgment on these points, 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 liave to be weighed : it was then removed to the warehouse 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 with the other wools, and packed, but it was not paid for. It Avas 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 the 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 : every thing is complete but the payment of the price. It was argued that, because by the course of dealing he was 1 2 B. & C. 37. 2 9 B. & C. 561. 3 iq Bing. 99. SECT. IV.] EDAN V. DUDFIELD. 157 not to remove the wool to a distance before payment of the price,^ the property had not passed to Mm, or that tlie ])hiiiitiff retained such a lien on it as was inconsistent with the notion of an actual delivery. We think that, upon this evidence, the place to which the avooIs were removed must be considered as the defendant's warehouse, and that he was in actual possession of it there as soon as it Avas weighed and packed ; that it was thenceforward at his risk, and if burnt must have been paid for by him. Consistently Avith this, however, the plaintiff had not what is commonly called a lien, detenninable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original ownershii?, independent of the actual possession, and consistent Avith 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, Avith the possession having passed to the buyer, so that there may have been a delivery to and actual receipt by him. This, Ave 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. 2c?., parcel &c., nunqxiam 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. 2f?., tender of the same ; Avhich the plaintiff took out of court, and acknoAvledged satisfaction pro tanto. On the trial before Lord Dcnman, C. J., at the Middlesex sittings after Hilary term, 1839, it appeared that the defendant Avas 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 noAV in question (German toys), then belonging to the plaintiff, in his OAvn name. In the beginning of April, 1838, plaintiff Avas in defendant's debt to the amount of about £50, and defendant pro])osed 1 TJie evidence of Bamford the agent was (after stating tlie deposit at Town- row's) : It is a regular thing for the wool, wlicu bought, to remain wliere it is kept until it is paid for. 2 See Blackburn on Sale, pp. 38-41. —Ed. 158 EDAN V. DUDFIELD. [CHAP. I. 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 before any sale, defendant, in conversation with an agent of plaintiff, said that he would keejD 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 cuiTent 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 § 17 of the Statute of Fi-auds ; but the Lord Chief Justice held that there was a case for the jury, reserving leave to move for a nonsuit. Ve7'dict for lylaintiff. Kelly, in Easter term, 1839, obtained a rule nisi for a nonsuit, and also for a new trial, on affidavit, and on the ground that the verdict was against the evidence.-^ In the last term ^ Thomas shewed cause. There was a sufficient acceptance to satisfy § 17 of the Statute of Frauds, 29 C. 2, c. 3. The goods being in the hands of the defendant, he could do no more towards an acceptance than acknowledge the character in which he held them. That he did by agreeing to become the purchaser. No further act of ownership was necessary. Besides, the defendant has pleaded a set-off and tender, and can no longer dispute the contract. One contract only was suggested ; and therefore the tender of £1 9s. 'Id. is referable to that, and constitutes an admission, like payment into court, the effect of which is shewn by cases collected in the note to Rucker ^. Palsgrave.^ [Lord Denmax, C. J. The rule now is, that payment and tender operate only as an admission of some contract to the amount paid or tendered.*] Kelly, contra. The goods were in the hands of the defendant as agent for the plaintiff: at that time there was no acceptance. Then all that passed afterwards was a verbal contract. To construe this as a compliance with § 17 of the Statute of Frauds would be to introduce the very mischief against which that enactment was directed. The buyer must " accept part of the goods so sold and actually receive the same." There has been no actual receipt: the attempt is to imply a virtual receipt from a verbal contract. Some- thing must take place in fact, not in words merely, inconsistent with the previous holding. [Lord Denman, C. J. Suppose a party intrusted with goods for sale were to sell them, accompanying the 1 The argument for the new trial is omitted. 2 Novemher 17, 1840. Before Lord Denman, C. J., Littledale, Williams, and Cole- ridge, JJ. 3 1 Campb. 557. * See note (a) to Jones r. Flint, 10 A. & E. 757. SECT. IV.] EDAN V. DUDFIELD. 159 Bale witli .1 declaration that the sale was on his own account: as against him, would not that be evidence that he had previously accepted ? Does not your argument tend to shew that the Statute of Frauds ought to have gone flirther than it does, and have required written evidence of the acceptance?] This is a case in which an actual acceptance was impossible ; and therefore the only method of satisfying the statute was by a written contract. In NichoUe v. Plume ^ it was held that a constructive acceptance was insufficient, on the authority of Hanson v. Annitage.^ In Phillips v. Bistolli ^ it is laid down that the jury must be satisfied of a delivery and an actual acceptance. Cur. adv. vult. Lord DE^-i^rAK, C. J., in this term (January 12th) 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 jilain- 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 i^laintiff. 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 jn-o- ceeds, and an authority to sell dated Gth April was given by the plaintiff to the defendant, and produced in the course of the plaintiff's evidence. But a ^dtness 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 credit was given to the plaintiff for the goods by an item in these words, " Goods (describing them) sold for £120." The action was brought in effect for that sum, and the verdict passed accordingly. The plaintiff argued that this 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 pui-pose of 1 1 C. & P. 272. 2 5 B. & Aid. 557 ; s. c. 1 D. & R. 128. 3 2B. &C. 511. 160 EDAN V. DUDFIELD. . [CHAP. I. the prior possession ; whereas in this case all that was done, the sale and the acconnt rendered, were perfectly consistent Avith the authority previously given and the defendant's character of agent. We have no doubt that one person in possession of another's goods may become the purchaser of them by parol, and may do subsequent acts without any writing between the parties which amount to acceptance [re- ceipt?^] ; 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," Nicholle v. Plume,^ Maberley v. Sheppard ; ^ 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, whilst in Willis v. Newham ^ it was held that part payment, 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 ® that, Avhere 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 affi- davit, which we have thought it right to examine carefully with those on the other side. The answer which these give is complete : no sub- sequent information has been or can be obtained ; and the defendant's case is narrowed to the improbabiUty 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 character stands unim- peached. Jiule discharged. 1 See Benj. on Sale, 127. —Ed. 2 i Taunt. 458. 3 1 C. & P. 272. * 10 Bins?. 99. And see Dodsley v. Varley, 12 A. & E. 632. 5 3 Y. & J. 518. « 2 C. M. & R. 723 ; s. c. Tyrwh. & Gr. 137. BECT. IV.] BILL V. BAMENT. 161 BILL V. BAMENT. In the Exchequer, November 11, 1841. [Reported in 9 Meeson Sf Welsby, 36.] AssmrpsiT 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 Trinity tenn, tlie folloAN-ing facts appeared : — The defendant ordered of one Harvey, who was an agent of the plaintiff under a del credere commission, a quantity of goods, includinor twenty dozen hair-brushes and twelve dozen clothes-brushes, to be j)aid for on delivery at a stipulated price, but no memorandum in writ- ing 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 tlie St. Catharine's Docks. The next day an im'oice was delivered to the defendant, charging the brushes respectively at the rate of 8s. and 12s. 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 present action for the 25 rice. On the 27th the defendant at Harvey's request wrote in Harvey'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 by the defendant. It was objected for the defendant that there was no evidence of any contract in writing, or of any accejjtance of the brushes, sufficient to satisfy the 17th section of the Statute of Frauds. The Lord Chief Baron reserved the point, and the plaintifl" had a verdict for the amount claimed, leave being reserved to the defendant to move to enter a nonsuit. Erie having obtained a rule 7iisi accordingly, Thesiger and Martin now shewed cause. First, the defendant's receipt in the ledger, although written after the commencement of the action, amounts to a memorandum in writing sufficient to satisfy the statute, or at all events is evidence of a previous acceptance of the goods within the 17th section. That section requires that one of three matters, — part acceptance of the goods, earnest or part pajTiient, or a memorandum in ^vl•iting of the bargain — shall occur, in order to shew :i reality in the contract beyond that which parol evidence would establish ; but there is nothing in the statute to shew that these must all liave existed VOL. I. 11 162 BILL V. BAMENT. . [CHAP. I, belore action brought. The statute does not make the contract in itself illegal and void, but only says that no contract shall be allowed (that is, by the court on the trial) to be good, except one of these three things shall appear. It has been decided that the memorandum need not be signed with the intent of attesting the bargain. Coles v. Trecothick.^ But at all events the acknowledgment, "Received the above," was evidence to go to the jury of a previous acceptance. There is nothing in it to confine its operation to the particular moment at which it was signed. All that is prohibited by the statute is, that such a contract as is mentioned therein shall not be imposed on a party without a particular species of proof; but if the plaintiff produces in evidence a document which goes to prove a good contract anterior to the commencement of the action, that is sufficient. Secondly, there was besides independent evidence of acceptance. The defendant was allowed to deal with the goods as his own and had possession of them, although HarA^ey might still retain a lien on them for the price. The present case is distinguishable fi-om all those which will be relied upon for the defendant. In Tempest v. Fitzgerald - the horse, although rid- den by the vendee for the pui-j^ose of trial, remained throughout in the possession of the vendor as the owner. So in Carter v. Toussaint ^ the horse Avas sent to grass in the vendor's name by the A'endee's direc- tion. So also in Maberley v. Sheppard * the wagon remained unfinished in the possession of the maker. Baldey v. Parker ^ only decides that the mere marking of goods by the vendee in the A^endor's shop does not constitute an acceptance ; but here more was done. The order for the marking may be coupled with the subsequent acknowledgment by the receipt in the ledger. £Jrle (with whom was Whateley), contra. It is now said that there was evidence for the jury of an acceptance ; but at the trial the point Avas left for the court to detemiine, whether the undisputed facts amounted in law to an acceirtance ; and such has been the course in all the cases on this subject. There is nothing in the terms of the receipt to shew that it was meant to be an acknowledgment of a pre- vious actual acceiDtance ; nor could an act done after the repudiation of the contract, and after action brought to enforce it, operate as such. Neither Avas there any acceptance before action brought. This was a ready-money bargain ; so that the deliA^ery of the goods and the pay- ment of the price were to be concurrent acts. The goods remained in the corporal possession of HarA-ey as the plaintiff's agent ; and no act was done by the defendant, but merely a verbal direction given by him as to the marking. It is clear that the vendor retained his Hen for the price ; and that, according to Carter v. Toussaint and Tempest v. Fitz- gerald, is the test whereby to detei-mine whether there has been an 1 9 Ves. 250. 2 3 B. & Aid. 680. 3 5 B. & Aid. 855, 1 D. & R. 515. * 10 Bing. 99, 3 Moo. & Sc. 436. 5 2 B. & Cr. 37. 3 D. & R. 220. SECT. IV.] BILL V. BAMENT. 163 acceptance within the statute. Tempest v. Fitzgerald M'as a stronger case than the present, for there the horse was dealt with between the parties as if the bargain was complete. In Maberley v. Sheppanl the wagon was completed before action brought, and what the defendant did to it made it complete; yet, the plaintiff never having parted with his lien for the price, that was held insufficient to amount to an accept- ance. The same principle is applied in Baldey v. Parker. Secondly, there was not any memorandum in writing sufficient to satisfy the statute. The point now taken for the plaintiff, that it may be a Avriting subsequent to the commencement of the action, has never before been applied to the Statute of Frauds. The statute declares that no contract for the sale of goods above the value of £10 shall be allowed to be good, except it be accompanied with certain requisites. That must mean requisites existing when the contract comes in esse ; or at all events they are necessary ingredients in the cause of action, which must be in existence so as to make it complete when the action is brought. He was then stojDped by the court. Lord Abinger, C. B. If the question at the trial had turned alto- gether iipon the acceptance, I should then have formed the same opin- ion 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 money ; and he was not bound to deliver the goods until payment of the jirice. Now all that takes place is a direction by the defendant to alter the mark on the goods, and to send them to the docks ; but the question is, whether this 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 be such as to devest the property in the goods o\\% of the seller. Here the defend- ant probably 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 think clearly not. He was at liberty to say that he would not deliver to or ship for the defendant until the goods were paid for. There is nothing to shew 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 w^ill be absolute, but not for a nonsuit, as it ap])ears that some goods were received by the defendant, but for a noA\- trial on payment of costs by the plaintiff. Pakke, B. I concur in thinking that 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 ])oint ; 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 164 SCOTT V. EASTERN COUNTIES RAILWAY CO. [CHAP. I. 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 payment after action broiight, is not sufficient to satisfy the statute. Then, to take the case out of the 17th section, there must be both delivery and accei^tance ; and the question is, whether they have been proved in the present case. I tliink 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 him- self 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 by Harvey. I am of opinion therefore that there was no sufficient proof of accei:)tance to satisfy the statute, and that the case falls within the 17th section. GuRNEY, B., and Rolfe, B., concurred. jRule absolute accordingly. SCOTT V. THE EASTERN COUNTIES RAILWAY COMPANY. In the Exchequer, November 6, 1843. [Rejjcyrted in 12 Meeson Sj- Welshj, 33.] Assumpsit. The declaration alleged that on the 18th May, 1841, the defendants, by John Braithwaite their agent in that behalf, ordered and agreed to purchase fi-om the plaintiff, and the plaintiff then agreed with the defendants to cause to be manufactured for and to sell to them, certain goods and chattels for the use of the said railway, and of cer- tain descriptions then directed and specified by the defendants, to wit, one triangular lamp for junction with three twenty-fovtr-inch lenses, two covered with red stained glass outside, to be fastened at the corners with three bolts and nuts, one lamj) for the same, twelve moaler lamps, four square lamps, two new side lamps, and six common ti'icolor lamps, at and for certain reasonable prices to be paid by the defendants to the plaintiff for the same ; and thereupon, in consideration of the premises and that the plaintiff would cause the said goods and chattels SECT. IV.] SCOTT V. EASTERN COUNTIES RAILWAY CO. 165 to be delivered to the defendants, to wit, within .a reasonable time then next following, to wit, at a certain station of the said railway, to wit, at Shoreditch, London, the defendants then promised the plaintiff to accept the said goods and chattels of the plaintiff, and to pay him for the same the said prices, to wit, on the delivery thereof The declara- tion then went on to aver that the plaintiff, confiding in the promise of the defendants, did afterwards, to wit, on, &c., cause to be manufactured and delivered to the defendants, and the defendants then accepted and received from the plaintiff, a i)art of the said goods and chattels, to wit, the said twelve nioaler lamps, the said four square lamps, the said two new side lamps, and the said six common tricolor lamps, according to the said promise; and although the plaintiff afterwards, in consequence and in pursuance of the said agreement, and in a reasonable time in that behalf, to wit, &c., caused the manuficture of the said triangular lam]> to be commenced and proceeded with, and the construction thereof to be carried on and brought nearly to completion, and did in so doing necessarily expend and incur, and cause to be expended, divers large sums of money, charges and expenses, to wit, £300; and although the plaintiff was at all times, fi-om the making of the said agreement, ready and willing to perform the same in all things on his i)art to be per- formed, and to cause the said last-mentioned lamp to be completed ami delivered to the defendants within a reasonable time from the making of the said agreement ; and although the plaintiff did afterwards, and after the refusal of the defendants to accept or receive the said last- mentioned lamp as hereinafter mentioned, and long before the com- mencement of this suit, offer to deliver the said last-mentioned lamp to the defendants, of which premises the defendants always had notice ; yet the defendants, disregarding their said promise, after the making thereof, and before a reasonable time for the completion and delivery of the said last-mentioned lamp, to wit, &c., wholly refused to accept or receive the said last-mentioned lamp, and then wholly and Avrong- fully discharged the plaintiff from further proceeding with the manu- facture thereof, or from at any time delivering the same to the defendants, and then wholly absolved, exonerated, and discharged the plaintiff from any further observance or performance of the said agreement on his part; and the defendants have from thence continually hitherto Avholly refused to accept or receive the said lamp, although the plaintiff did as aforesaid, and before the commencement of this suit, to wit, &c., cause the said lamp to be completed, and then offered to deliver the same to the defendants, whereby, &c. Plea, n07i assumpserunt. At the trial before Lord Abinger, C. B., at the last assizes at War- wick, it appeared that in May, 1841, Mr, Braithwaite the defendants' agent went to the plaintiff's manufactory to order the lamps men- tioned in the declaration, all of which were of a Avcll-known and ordi- 166 SCOTT V. EASTERN COUNTIES RAILWAY CO. [CHAP. I. nary description, with the exception of the triangular lamp, which was very peculiar. The moaler, the square, and the new side lamps were delivered with a separate invoice, and paid for in May, 1841 ; but the triangular lamp was not finished until the month of April, 1843, Avhen the defendants being dissatisfied with it refused to receive or pay for it, whereupon the present action was brought. Under these circum- stances, it was objected for the defendants that the contracts for these articles wei-e distinct, and that the delivery and acceptance of the common lamjjs did not constitute a part acceptance within the Statute of Frauds, so as to bind the defendants to receive and pay for the triangular lamp which was afterwards manufactured. The learned judge, reserving leave to the defendants to move to enter a nonsuit, left the case to the juyy, who found for the plaintiff for £248, the amoimt claimed by him. Erie now moved accordingly either for a nonsuit or a new trial. The question in this case is, whether the acceptance of the smaller lamps constituted apart delivery and acceptance within the 17th section of the Statute of Frauds, 29 Car. 2, c. 3, and Lord Tenterden's Act, 9 Geo. 4, c. 14, § 7, so as to bind the defendants to pay for the triangular lamp, which was not in existence at the time of the contract being entered into. The 17th section of the Statute of Frauds enacts [stating it]. The statute 9 Geo. 4, c. 14, § 17, extends the provisions of that section ; and, after reciting it, enacts [stating it ^]. In this case the acceptance of the smaller lamps could not be considered as a part acceptance of the triangular lamp, inasmuch as that was not in exist- ence at the time ; and althou^gh it Avas ordered at the same time as the common lamps, which were immediately afterwards dehvered and paid for, it must be considered as within a separate contract. [Alderson^, B. Is it not like the case of a person going into a shop and choosing different articles, all of which form one contract ?] There the articles are in existence at the time ; and where a contract is made for several articles, all of which are in existence at the time, the acceptance of one is the acceptance of all, and the property in all passes. Baldey v. Parker.^ But here the thing was not made, and there can be no part delivery of goods which are not in existence. [Lord Abi:n^ger, C. B. The 9th Geo. 4, c. 14, § 7, extends the provisions of the former act to goods not made. Here there was an order for lamps, some already made, and another to be made. Then there is an accej)tance of the fonner. Are not the parties bound by that ? Alderson, B. If I make a contract for goods already made and goods to be made, and I accept the goods made, it shews that I made the contract; which is what the act means.] It is submitted that, when the goods are not made at the time, there should be a part payment or earnest given, or a written memorandum to satisfy the statute. When some of the goods are made, and are to 1 See supra, p. 15, note 1. — Ed. 2 2 B. & C. 37. SECT. IV.] SCOTT V. EASTERN COUNTIES RAILWAY CO. 167 be delivered immediately, and the others are not, but arc to be made and delivered subsequently, they cannot be said to be included in one and the same contract of sale. Towers v. Osborne.^ In Garbutt v. Watson,^ wliere there was a verbal contract by the plaintiffs, who were millers, for the sale of a quantity of flour which was not prepared and in a state cajxable of being immediately delivered, it was held to be a contract within the statute ; and, there being uo memorandum in writing, the plaintiffs were nonsuited. In Price v. Lea,^ which was recognized in Elliott v. Thomas,^ the defendant gave an order for a quantity of cream of tartar, and at the same time offered to take a quantity of lac dye at a certain price. Both the articles were sent. It was held that Avhat passed between the parties could not be considered as an entire contract for both the articles. And in Roots v. Doi*mer * it was held that, when lots are knocked down to a purchaser at an auction, a distinct contract arises in respect of each lot. LoKD Abinger, C. B. I am of opinion that there ought to be no rule. I think the order for the ready-made lamps, and that given for the triangular one, amounted but to one contract. Can it be said that, if a man goes to a tailor's shop and buys a suit of clothes which are ready made, and at the same time orders another suit to be made for him, and the former are sent home to and accepted by him, he is not bound to pay for the latter ? The two statutes that have been referred to must be construed as incorporated together ; and then it is plain that, where an order for goods made and for others to be made forms one entire contract, accejitance of the former goods mil take the case out of the statutes as regards the latter also. Aldersox, B. I am of the same opinion. The transaction con- stituted but one contract. There is no distinction between this case and that of a j^arty who goes into a shop and buys fifty different articles at the same time. It is clear that such a person does not make fifty different contracts. If a man enters into an entire agree- ment for goods made and for others to be made, his accepting part of the goods made is evidence of his having entered into the airree- ment. That is the true object and meaning of the statute. The articles bargained to be made are treated for this jiurpose as goods actually made, although they are not in existence at the time of the agreement. Gurnet, B., and Rolfe, B., concurred. Rule refused. 1 1 Stra. 506. 2 5 B. & Aid. 613. 3 1 B. & Cr. 156. * 3 M. & W. 170. 5 4 B. & Ad. 77, 1 Nev. & M. 667. fi v^ i^:y\^. 6)^ vJ\' YiP BUSHEL V. WHEELER. [CHAP. I. 1 V BnS|JEIj A^D Others, Assignees of Aceaman" and Others, \J' ^ , AV Yhi^ V. WHEELER. In the Queen's Bench, May 10, 1844. [Replied in 15 Queen's Bench Reports, 442, note.] ' ;W Assumpsit by tlie assignees of Acraman and others, bankrupts, for goods sold and delivered by the bankrupts. Plea, non assumpsit. Issue thereon. On the trial before Erskine, J., at the Somersetshire summer assizes, 1843, it appeared that the plaintiffs were the assignees of bankrupts who had carried on business at Bristol, under the firm of Acraman and Company, as manufacturers of iron. The defendant had ordered of the bankrupts before their bankruptcy certain mill machinery, at a price above £10, consisting of iron wheels, &c. By the order they were to be forwarded to the defendant at Hereford by the Hereford sloop. They were so forwarded by the bankrupts on 23d April, 1842. On 25th AprU a letter of advice with an invoice was sent to the defendant. The invoice stated that the goods were at three months' credit. The goods arrived at Hereford and were there placed in the warehouse on the wharf of the owner of the sloop ; and the defendant was informed of this immediately. No communication on the subject of the goods from the defendant to the bankrupts took place before the bankruptcy, nor any to the assignees till 7th October, 1842, when the goods were repudiated. These facts having been proved on the part of the plaintiffs, the defendant proved that after the arrival of the goods at the warehouse he had seen them, and had informed the warehouseman that he the defendant did not intend to take them. The goods afterwards came to the wharf of the owner of the sloop at Bristol. On these facts the learned judge directed the jury to find a verdict for the defendant, reserving leave to move to enter a verdict for the plaintiffs for £24 15s. 8c?, .Butt, in Michaelmas term, 1843, obtained a rule accordingly. Crowder and 3£ontague Smith now shewed cause. The words of § 17 of the Statute of Frauds, 29 Car. 2, c. 3, "except the buyer shall accept part of the goods so sold and actually receive the same," are not applicable to the facts of this case. The buyer immediately on learning the arrival of the goods repudiated them. James v. Griffin, 2 M. & W. 623, shews that such repudiation may be by a declaration of the vendee to his o^vn agent. [Coleridge, J, In that case the declaration was used as evidence against the assignees of the bankrupt who made it : you seek to use it in favor of the party declaring.] There can be no acceptance if any thing remain to be done. Howe v. SECT. IV.] BUSHEL V. WHEELER. 169 Palmer, 3 B. & Aid. 321 ; Baldcy r. Parker, 2 B. & C. 37 ; Maberley V. Sheppard, 10 Bing. 99, — where Tindal, C. J., said that the statute pomted to " an actual delivery and an actual receiving." So there could be no acceptance if the vendor retained the right to stop in transitu ; and Thompson u. Trail, 6 B. & C. 36, shews that the right still existed in this case. [Coleridge, J. That is a bad test : there might be a stopi)age in transitu, though there had been a note in writing.] Hanson v. Annitage, 5 B. & Aid. 557, shews that the dehvery at the warehouse did not here constitute an acceptance by the defendant, the acceptance "not being by the party himself." [Coleridge, J, At whose risk were the goods lying at the ware- house in this case ?] [See Dodsley v. Varley, 12 A. & E. 632, 634.] [Patteson, J. The cases are collected in Coats v. Chaplin, 3 Q. B. 488.] The decision there is rather in the defendant's favor; for it was held that the vendor might sue for the loss of the goods. The utmost that can be said here is that, as in Edan v. Dudfield, 1 Q. B. 302, the jury might have found otherwise, [^JButt, for the plaintiffs. The complaint is that the jury here were not allowed to draw their inference from the facts, but were told that they must find for the defendant. Patteson, J., referred to Anderson v. Hodgson, 5 Price, 630.] It may be .said that here was no repudiation of the invoice ; but if the sale was not perfected, wdiy should the invoice be repu- diated ? [Lord Denmax, C. J. The invoice is merely evidence.] Taking the owner of the sloop to be the defendant's agent, there would be only a delivery to the defendant, not an acceptance by him. Johnson v. Dodgson, 2 M. & W. 653, 656 ; Nicholle v. Plume, 1 Car. & P. 272 ; Bill V. Bament, 9 M. & W. 36. Butt (with whom was Carroio), contra. There was sufficient in this case to entitle a jury to find acceptance and actual receipt. The delivery of the goods was made to the defendant's agent named by him ; and though the defendant knew of this and had also received the invoice stating among other things the length of credit, which was only three months, he nevertheless made no communication to the vendor till after the exi)iration of more than five months. He indeed told the warehouseman that he would not receive the goods; but that was merely a conversation with his own agent. [Coleridge, J. It is as if he had said so to himself.] In Howe v. Palmer, 3 B. & Aid. 321, Baldey v. Parker, 2 B. & C. 37, and Maberley v. Sheppard, 10 Bing. 99, the goods had never been delivered out of the possession of the vendor or his agent. Here even the right to stop in transitu was gone, and the goods were at the defendant's risk. Fragano v. Long, 4 B. & C. 219 ; Dawes v. Peck, 8 T. R. 330. The question might have been more difficult if the defendant had returned the goods immediately after he knew that they were in his agent's hands. In 2 Starkie's Ev. 488 (3d ed.), it is laid down that there may be a con- 170 BUSHEL V. WHEELER. [CHAP. I. structive delivery; and there may on the same principle be a con- structive acceptance. In Elmore v. Stone, 1 Taunt. 458, it was held that there might be a constructive delivery: afterwards in Hanson v. Armitage, 5 B. & Aid. 557, this was held not enough without an acceptance ; and in the latter case there was no acceptance, because the goods had not as here been delivered to a party named as agent by the vendee, and there was no subsequent acquiescence by the vendee in such delivery. The same circumstances distinguish the present case from NichoUe v. Plume, 1 Car. & P. 272. [Lord Denmak, C. J. I think some observations have been made upon that case.] [See Edan v. Dudfield, 1 Q. B. 307.] The delivery to the carrier is delivery to the vendee (Button v. Solomonson, 3 B. & P. 582) ; and the vendee's acquiescence in such delivery may at least be construed by" a jury as an acceptance by him. (He was then stopped by the court.) Lord Dkntsian-, C. J. The power to stop in transitu is not a test which will meet all cases ; not for instance the case of a memorandum in writing. The general intention of the statute is that there should be a writing : this as well as the exception for the case of delivery and acceptance has been construed literally. It is not necessary that the purchaser himself shoiild form a judgment on the article sent: he may depute another to do so, or he may rely upon the seller. The defendant here orders the goods to be sent by a particular vessel which he names, and he receives the invoice which states a three months' credit. He allows the goods to remain till that credit is expired, gi\ing no notice to the seller, though he did say to his own agent that he would not take them. Now such a lapse of time con- nected vnt\\ the other circumstances might shew an acceptance; whether there was an acceptance or not is a question of fact. I do not think that the mere taking by the carrier is a receipt by the vendee ; but tbe jury here should have been allowed to exercise a judgment on the question whether there was an actual receipt. Williams, J. [Patteso^s^, J., had left the court during the argu- ment.] There ought to be a new trial. When it is once settled that manual occupation is not essential to an actual receipt, and it is not now contended that it is, it becomes a question whether there have been circumstances constituting an actual receipt. The larger the bulk, the more impracticable it is that there should be a manual receipt : some- thing there must be in the nature of constructive receipt, as there is constructive delivery. It being then once established that there may be an actual receipt by acquiescence, wherever such a case is set up it becomes a question for the jury whether there is an actual receipt. And all the facts must be submitted to their consideration for the determination of that question. Coleridge, J. I agree that the acceptance must be, in the words of SECT. IV.] NORMAN V. PHILLIPS. 171 one of the cases cited, " strong and unequivocal." [Mabevley v. Shc])- panl, 10 Bing. 101.] But that is quite consistent vriXh. its being con- structive. Therefore in ahnost all cases it is a question for the juiy, whether particular instances of acting or forbearing to act amount to acceptance and actual receipt. Here goods are ordered by the vendee to be sent by a particular carrier, and in effect to a particular ware- house ; and that is done in a reasonable time. That comes to the same thing as if they had been ordered to be sent to the vendee's own house, and sent accordingly. In such a case the vendee would have had the right to look at the goods, and to return them if they did not con-e- spond to order. But here the vendee takes no notice of the anival, and makes no communication to the party to whom alone a communi- cation Avas necessary. The question must go to a jury. LoKD De^ma?^^, C. J. We must qualify the rule nisi. Rule absolute for a new trial {not on payment of costs). NORMAN V. PHILLIPS. In the Exchequer, June 11, 1845. {Reported in 14 Meeson ^ Welsby, 277.] Assumpsit for goods bargained and sold, goods sold and delivered, money paid, and on an account stated. Plea, 7i07i assumpsit. At the trial before Pollock, C. B., at the last assizes for the county of Berks, it appeared that the plaintiff was a timber merchant in Lon- don, and the defendant a builder in Wallingford, and that on the ITth of Ajn-il the defendant gave a verbal order to the plaintiff's traveller for yellow deals amounting to £32 14s. 4f?., with directions for them to be sent to the Paddington station of the Great Western Railway to be forwarded to him, as had been the i)ractice between the parties on previous occasions. On the 19th of April the deals arrived at the Wallingford station, on Avhich day the defendant was informed by the railway clerk that they Avere lying for him at the station, when he said he w^ould not take them. An invoice was also sent on the 27th of April, which the defendant received and kept ; but it did not appear that he had ever seen the timber. On the 28th of May the defendant informed the plaintiff that he declined to take the goods, and on the 22d of June made a similar communication in writing to the railway clerk. Under these circumstances it was contended for the defendant that there was no evidence of a sufficient acceptance by him to satisfy the Statute of Frauds, and that the plaintiff ought to be nonsuited. 172 NORMAN V. PHILLIPS. [CHAP. I. The learned judge however refused to nonsuit, and directed the jury to find their verdict for the plaintiff, but gave the defendant leave to move to enter a nonsuit or a verdict for him. A rule having been accordingly obtained, Keating and Dowclesicell shewed cause (June 7). There was suffi- cient evidence of acceptance of the goods to take the case out of the Statute of Frauds ; for there was a delivery of the goods sold to a party to whom they were to be delivered, acquiesced in by the defend- ant, which amounts to an acceptance of them. The delivery need not be to the party himself, but a delivery to a carrier pointed out by him is sufficient. Dawes v. Peck.^ It was there held that when a consignor delivers goods to a particular carrier by the order of the consignee, and thev are afterwards lost, the action can onlv be brou2;ht by the consignee ; and it does not appear that that has ever been disputed. And in Hart v. Sattley ^ the decision went further ; and it was held that, if goods be ordered verbally, the delivery of them to a carrier is sufficient to bind the contract according to the Statute of Frauds, when the purchaser has been in the habit of receiving goods from the vendor by the same mode of conveyance. In every case in which the vendee designates the party to whom the goods are to be delivered, a delivery to that party is sufficient. A delivery to a carrier named by the ven- dee is tantamount to a delivery to himself. [Alderson, B. Can there be an acceptance so long as the buyer has a right to object to the quality of the goods? and is he precluded from objecting, because he directs them to be sent by a particular conveyance ? The case of Johnson v. Dodgson ^ shews that he is not.] Here the party had lost the right to object to the quahty by not objecting in a reasonable time. The goods arrived on the 19th of April at the Wallingford station, and the defendant was informed of it ; but it was not until the 28th of May that he informed the plaintiff that he declined to take them. A party loses his right to object to the quality by not doing it in a rea- sonable time. His refusing at the time to receive them- from his own agent is nothing. In Coleman v. Gibson * it was held that a party who has the right of approval must refuse to accept the goods in a reason- able time ; and if he does not, he is to be treated as having accei:)ted them. [Aldeesox, B. There is no doubt that by retaining goods which have been delivered an unreasonable time the party to whom they are delivered loses his right to object to them, and it amounts to acceptance. But I. cannot see how there was any acceptance here. The person to whose possession these goods came was not the person to examine the quality of them. Pollock, C. B. The defendant objected at the time to take the goods away. He was not bound to send them back again.] There was evidence to go to the jury of 1 8 T. E. 330. 2 3 Campb. 528. 3 2 M. & W. 658. 4 1 M. & Rob. 168. SECT. IV.] NOEMAN V. PHILLIPS. 173 accejrtance. He was told of the arrival of the goods, and afterwards received an invoice of them, which he kept without informing tlie plaintiff that he declined to receive them. That, it is submitted, is evidence of acceptance. [Aldeesox, B. He must accept the goods and actually receive the same, to constitute an acceptance within the mean- ing of the statute. Here the goods are sent in the usual way, but when they arrive at the carrier's warehouse the defendant refuses to take them.- That can scarcely be said to be an accejrtance.] The case of Bushel V. Wheeler,^ where a delivery under precisely similar circum- stances Avas held to amount to evidence of acceptance, is not distin- guishable from the present case. There the defendant ordered goods to be sent by a particular carrier, and they were sent accordingly ; and an invoice was afterwards sent by post, and a printed notice that the goods were supplied at three months' credit. The goods were placed in the carrier's warehouse, and the purchaser, who was apprised of the fact, allowed them to remain there six or seven months, at the end of which time he informed the warehouseman that he did not intend to take them, whereupon they Were returned to the seller; and it was held that this was evidence for the jury of acceptance. [Aldeesox, B. In that case the vendee did not reject them for seven months ; and Coleridge, J., puts his judgment on the ground that the inspection of the goods was to be made within a reasonable time. Here the defend- ant immediately on being told by the carrier that the deals had arrived says he will not take them.] Telling the carrier that he will not take them is only like sajdng it to himself In order to make that of any avail it should have been communicated to the plaintiff. The defend- ant's allowing the goods to remain a very considerable time, seven or eight weeks, and not informing the seller that he would not accejjt them, are facts from which the jury were at liberty to infer accei^tance. The lapse of time made it a question for the jury, whether the defend- ant had accepted the goods or not. [Aldeeson, B. If the carrier was not the defendant's agent to accept the goods in the first instance, I do not see how he becomes so from the goods being in his i^osscssion for some time.] Bushel v. Wheeler is an authority that this amounts to evidence of acceptance ; and that case is in accordance with Cole- man V. Gibson.^ Here the contract was, that the deals were to be sent by the railway to the Wallingford station ; but when they arrive there, the defendant on being infonned of it says he will not take them, but he does not communicate that to the plaintiff. [Aluekson, B. The strength of the argument is certainly the non-communication of his refusal to take them.] It amounts to an acceptance by acqui- escence. [Aldeeson, B. Where goods are in a party's oa\ti hands, he has an opi)ortunity of examining them ; and his saying nothing in such a case woiild be evidence of acceptance by acquiescence.] Here the 1 8 Jurist, 532, [15 Q. B. 442, note.] 2 i M. & K. 168. 174 NORMAN V. PHILLIPS. • [CHAP. I. carrier was the agent not only to receive, but to accept the goods. [Alderson, B. No; he was not his agent to accept them. An acceptance is not complete until the party has precluded himself by Avhat he does from objecting to the quality of the goods.] The cases of Dodsley v. Varley,^ Philhps v. Bistolli,- Edan v. Dudfield,^ and Blen- Idnsop V. Clayton * are all authorities to shew that this was evidence for the jury of acceptance. Talfouj'cl, Serjt., and Gray, in support of the rule. The fallacy of the argument is in treating this verbal contract as if it were a valid contract in writing, and pro^dng this to be an acceptance by the aid of it ; whereas in truth it amounts to nothing, and was not admissible in evidence for any purpose. There was here nothing like an acceptance ; for the defendant on being told that the deals had arrived said he would have nothing to do with them. [Aldersoi^, B. When you introduce the fact that the goods were to be sent to a particular car- rier, you introduce a part of the contract, which the statute says shall not be evidence unless it is in writing. All that can be assumed to be the fact is, that goods sent by the plaintiiF to the defendant had been usually sent by that carrier and in that mode.] The carrier was not the defendant's agent to accept the goods. The fact of acceptance is only attempted to be proved by introducing part of the contract by parol evidence, and then coupling the fact of the arrival of the goods Avith it. But if the facts be taken to be so, there is ample evidence of repudiation of the contract, for the defendant immediately said he w^ould not take them. [ALDERSOif, B. It is not what the defendant thought or told the carrier, but what he gave the plaintiff reason to believe, that affects the case. It is for the plaintiff to make out that there was an acceptance of the goods. It is difficult to distinguish this case from Bushel v. Wheeler, where the Court of Queen's Bench held, under nearly similar circumstances, that it was evidence of acceptance for the jury. Pollock, C. B. We will take time to consider.] Cur. adv. vidt. On the 11th of June, Pollock, C. B., said : After the case of Bushel v. Wheeler we can- not deny that there is a scintilla of evidence to go to the jury of an acceptance ; yet in my opinion there is no evidence on which the jury ought to have found an acceptance. As therefore they ought to have found a verdict for the defendant, I think this rule ought to be made absolute. Aldersox, B. If it had not been for the case of Bushel v. Wheeler, I should have said there was no evidence whatever for the jury of acceptance. The true rule appears to me to be, that acceptance and delivery under the Statute of Frauds means such an acceptance as 1 12 Ad. & Ell. 632, 4 Per. & D. 448. 2 2 B. & C. 511, 3 D. & R. 822. 3 1 Q. B. 302, 4 Per. & D. 656. * 7 Taunt. 597. SECT. IV.] : LILLTWHITE V. DEVEREUX. 175 precludes the purchaser fi-om objecting to the quality of the goods; as, for instance, if instead of sending the goods back he keeps or uses them. Here the goods Avere not in the possession of the party himself, though the same rule would hold if they were delivered to a general agent or to a party who is authorized by him to examine the quality of the goods. But the carrier is only an agent for the purpose of car- rying ; and here the purchaser himself immediately refused to take the goods. If a carrier is not originally an agent to accept the goods, he cannot be made so by mere lapse of time. After the case of Bushel V. Wheeler I cannot say that there is no evidence of acceptance to go to the jury ; but I tliink that a verdict found for the plaintiff on such facts as those whieli exist in the present case is clearly not warranted by the evidence, and therefore the rule ought to be made absolute. RoLFE, B. Had it not been for the case of Bushel v. Wheeler, I should have thought that there was no evidence of acceptance to go to the juiy. But, although it be taken that there Avas some slight evi- dence for the jury, I thiuk the proper conclusion for them to draw would be, that it was not sufficient evidence of acceptance. Platt, B., concurred. Mule absolute. < [ hi? \ LILLYWHITE v. DEVEREUX. In the Exchequer, February 21, 1846. [Reported in 15 Meeson Sf Welshij, 285.] This Avas an action brought against the defendant as executrix in her own wrong of James Edward Devereux, deceased. The declara- tion contained amongst others a count for the use and occupation of a dwelling-house, and also a count for goods sold and delivered to the deceased in his lifetime, and promises by him. Nothing turned on tlie other two counts. At the trial before Tindal, C. J., at the last assizes for Surrey, 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 5^. per Aveek. About the middle of December, 1845, the plaintiff, who Avas himself a tenant to a Wm. Kent, Avas 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 Avorth, Mr. Kent agreeing to accejit the deceased as tenant from that day. On the 14th a valuer of the 176 LILLYWHITB V. DEVEREUX. [CHAP. I. name of Piggott was sent for, with the approbation of both parties, who vahied the goods at £80. This the defendant refused to give, but oifered 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 furni- ture ? " to which Elland replied, " You must settle about that with Wm. Lilly white" (the plaintiff). Kent refused to receive the deceased as his tenant, and he continued to occupy the house and furniture as before, giving to the plaintiff, however, continually notice to take away the furniture, which he refused 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 tlie plaintiff to letting the house at a lower rent than the £1 5s. per week ; and, secondly, that it was for the jury to say, whether by con- tinuing in possession after the valuation the deceased did not accept and take possession of the furniture at the valued price. The jury found a verdict on both comits, damages £92. In last Michaelmas term Montagu Chambers obtained a rule nisi for a new trial on the gi-ound of misdirection, contending that there was no evidence of any delivery or acceptance of the furniture within the Statute of Frauds. Dowliyig, Serjt., now shewed cause. It was altogether a question for tne jury to determine whether there had been a sufficient acceptance of the goods to satisfy the Statute of Frauds. And there was in this case evidence of the acceptance to go to the jury. It was proved that the deceased had bargained for the furniture ; that it had been valued for him to take, and that he afterwards continued to use it. Even where the goods have remained in the possession of the vendor, that has not been considered of itself sufficient to prevent the statute from being satisfied, if this was at the instance of the vendee. Elmore V. Stone,^Edan v. Dudfield.- The deceased never did any act to repu- diate the goods, and mere words will not do for that purpose. How otherwise could he have accepted them ? [Platt, B. Wherever the supposed vendee exercises a dominion over the thing supposed to be sold, is it not for the jury to say whether they will refer it to the sale or not ?] The court then called on 1 1 Taunt. 458. 2 1 Q. B. 302, 4 P. & D. 656. SECT. IV.] LILLYVVHITE V. DEVEREUX. 177 Chambers and Fortescue, in support of the rule. It is quite impos- sible that the ruling of the learned judge can l)e right on both points. He first tells the jury there is no evidence of any change in the terms of the tenancy, the intended arrangement with Kent having gone off; and he then leaves it to the jury to say whether, notwithstanding the occupation by the deceased was to be of the same nature and at the game rent as before, the fact of his using the furniture was not evidence of his acceptance of it under the assumed sale. Now the original ten- ancy was of a house and furniture ; and although the rent issues out of the realty, yet it is considered that the realty is so far improved by the furnishing as to make the eviction of the furniture occasion a sus- pension of the rent. How therefore can such use of such furniture be any evidence whatever of the possession as owner? Is not, on the con- trary, the demand and payment of rent for it clear and conclusive evidence to the contrary? There is no evidence Avhatever of any intention of the parties that the deceased should thereafter hold from the plaintiff on the terms on which he was to have held of Kent if the arrangement had not gone off. The ceremony of the delivery of the key was with reference to a holding under Kent, — a giving up posses- sion to the deceased as his agent and tenant, — which Kent refused to recognize ; and the plaintiff consequently continued Kent's tenant. In like manner the verbal arrangement respecting the furniture had refer- ence to the intended holding under Kent. Now it is not pretended that there was any note in writing to satisfy the statute, and it is admitted that the deceased in Avords always repudiated the purchase. Then, if there was a delivery and acceptance, when was it ? Not con- fessedly at the time the valuation was made known, for at that time the plaintiff had only a reversionary right to sell, and rent was paid and accepted up to Christmas following, as for both house and furni- ture. Was it then when the ceremony of the delivery of the key took place ? Certainly not ; because at that time the present defendant is proved to have said to EUand, " How about the furniture ? " to which he replied, "You must settle with Lillywhite (the plaintiff) about that ; " and it could not be afterwards, because, as the jury have found, according to the opinion of the Chief Justice, and as the fact Avas, the occupation was on the same terms as before. There have indeed been many cases in which a constructive or symboHcal delivery has been held sufficient ; but in every one some act has been done by the party held liable, some change in the state of circumstances has occurred, indicative of an intention to accept. In Chaplin v. Rogers^ a stack of hay standing on the plaintiff's premises was sold ; the defendant had it cut, and took away part ; here Avas an act done by the parties, and it was held sufficient. So in Rohde v. Thwaites^ there Avas a sale of sugar in bulk, tAventy hogsheads, to be filled by vendors : four Avere 1 1 East, 192. 2 6 B. & C. 388. VOL. I. 12 178 LILLYWHITE V. DEVEREUX. [CHAP. I. filled and delivered, the rest filled up, and notice given to vendees, who said they would send for them. So in Rugg v. Minett ^ certain turpen- tine casks were filled up with others by the direction of the buyers ; and it was held, the goods being bulky, to make a complete transfer of property to the buyers. Many other cases to the same efiect might be cited, but in every one of them there has been some act done, some change of circumstances or dealing with the property, indicative of a change of ownership. Here is a total absence of any such evidence ; the parties were landlord and tenant of house and ftirniture up to Christmas ; they remained so after Christmas ; they held the furniture as tenants before, and their possession of it after was consistent with the same holding. Even in the case which has perhaps gone further than any other upon this subject, Edan v. Dudfield, there was some evidence ; for there the defendant sold the goods again, and rendered a debtor and creditor account, the goods bemg at the time in his posses- sion ; and this was held suflicient evidence of acceptance to go to the JiJry. But though it is generally true that whether there is any evidence is a question for the judge, but the effect of the evidence a question for the jury, there are many cases to shoAV that evidence to bind a party must be of a clear and decisive character ; and slight circumstances, though raising a suspicion of intention, are not to be left to the jury in cases arising under the Statute of Frauds. Thus in Tempest v. Fitz- gerald ^ a horse was sold by the plaintiff" to the defendant, to be taken away and paid for at a certain time. Shortly before the expiration of that time, he called, saw the horse, and rode him, and gave directions about his treatment; and it was left to the jury to say whether in so doing he Avas exercising an act of ownership, or whether it was merely by way of trial ; and the jury having found a verdict for the plaintiff" the court set it aside for misdirection, and granted a new trial. So likewise in Howe v. Palmer^ an act was done which in an ordinary ease it would be difficult to say was not evidence, of however slight a nature ; but the court held that the question ought not to be left to a jmy, and a rule was made absolute to set aside the verdict and enter a nonsuit, leave having been reserved for that jjui-pose. [Pollock, C. B. What do you say is evidence that should be left to the jury ?] It is difficult to lay doAvn a general rule on the subject ; but these cases, and others to the same effect, are sufficient to shew that the act of ownership must be unequiA- ocal, and not every slight matter fi^-om which an inference may be drawn is to be left to a jury. In the j^resent case, however, there was no evidence whatever, no change of circumstances either in the parties or the goods, no change of possession or of the character of possession, and the deceased from the first to the last repu- diated the contract of sale. Cur. adv. vult. 1 11 East, 210 2 3 B. & Aid. 680. » 3 b. & Aid. 321. SECJ. IV.] LILLYWHITE V. DEVEREUX. 179 The judgment of the coui't was now delivered by Aldkuson, B. This case was argued lust 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 jmy, 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. N"o 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 conduct 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 attempts to do so, or alters the nature of the property, or the like. But we think such facts must be clearly shewn ; 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 the case is altogether wrong, and that there really 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 unfurnished house. We therefore think there should be a new trial unless the plaintiff consents to reduce the damages to £17 lOs. Mule absolute accordingly. 180 FARINA V. HOME. [CHAP. I. FARINA V. HOME. In 'THE Exchequer, November 16, 1846. [Reported in 16 Meeson Sf Welshy, 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 by 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 defendant had verbally ordered from the plaintiff. It was accord- ingly sent by the plaintiff from abroad to a shipping agent of the plaintifi" in London named Brenchley, who received it and warehoused it with one Barber a wharfinger, at the same time informing the defendant of its amval. On receipt of the goods Barber handed to Brenchley a delivery warrant dated 21st July, whereby they were made deliverable to Brenchley or his assignee by indorsement on pay- ment of rent and charges from the 25th of July. Brenchley forthwith indorsed and sent it to the defendant. The defendant kept the warrant for about ten months ; and, although repeatedly apphed to to pay the price of and charges on the goods, he did not do so ; and he refused also to give back the warrant, saying that he had sent it to his solicitor and that he intended to defend the action, for he had never ordered 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-sherifi" left the question to the jury, 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 ownei-. The jury found a verdict for plaintiflT, damages £16 \\s. Ill Easter term Pi-entice obtained a rule oiisi for a new trial on the ground of misdirection. In this term (November 3) Thomas shewed cause, and contended that there had been no mis- direction, the proper question having been left to the jury ; and that the detention by the defendant for so long a period of the delivery warrant which constituted the title to the goods, and his declaring that the goods should remain in bond, were circumstances that fully SECT. IV.] FARINA V. HOME. warrantod the jury in inforring that he had accepted the/ Searle v. Kcevcs ^ and Bushel v. Wheeler." Prentice^ in support of the rule. There has been no acceptance and receipt of the goods within the 17th section of the Statute of Frauds, for the defendant's acceptance of the delivery warrant is not an accept- ance within the statute. The words of the 17th section [are] that no contract for the sale of goods for £10 or upwards shall be good except {inter alia) "the buyer shall accept part of the said goods and actually receive the same." To satisfy these words there must be both a delivery to and acceptance by the buyer of the goods. Bill ?j. Bament ' is strongly Jn point. There the defendant ordered goods of the plaintiff's agent, and went to the agent's warehouse where the goods were deposited and directed a mark to be placed upon them ; but having subsequently refused to receive the goods, and an action having been commenced against him, he wrote in the agent's ledger, at the bottom of a page containing the statement of the goods and headed with the plaintiff's name, the words " Received the above," which he signed. The court held that this was no evidence of a delivery and acceptance. Parke, B., there says, after observing that the written 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." Now here the goods remained in the hands of the shipping agent of the plaintiff, who therefore retained his right of lien. In Hanson v. Armitage * the evidence was that a party resident in the country had been in the habit of buying goods of a London merchant, whose habit it Avas to deliver them to a wharfinger in London to be forwarded to the buyer by the first ship. It was held that the receipt of such goods by the wharfinger was not an acceptance by the buyer sufficient to satisfy the Statute of Frauds ; and Abbott, C. J., in giving judgment referred to Howe v. Palmer,'^ where it was held that there could be no actual acceptance so long as the buyer retained the right to object to either the quantum or the quality of the goods. But Bentall v. Burn ® is directly in point. It was there held that a vendee's acceptance of a delivery order of the London Dock Company was not an acceptance of the goods themselves within the Statute of Frauds. He also referred to Zwinger v. Samuda.'' The judgment of the court ^ was now delivered by Parke, B. In this case, which was argued before us in the absence of the Lord Chief Baron a few days ago, the only point Ave Avished to consider Avas, whether there Avas sufficient CA'idence of the acceptance and actual receipt of the goods to satisfy the 17th section of the Stat- 1 2 Esp. 598. 2 8 Jurist, 532. 3 9 M. & W. 36. « 5 B. & Aid. 557. » 3 B. & Aid. 321. 6 3 B. & Cr. 423. 7 7 Taunt. 265. 8 parke, B., Alderson, B., and Kolfe, B. 182 FARINA V. HOME. [CHAP. I. ute of Frauds. The evidence as to this part of the case was that, after the defendant had verbally ordered a quantity of eau-de-Cologne, and at the price of more than £10, from the plaintiflP's agent in London (the plaintiff residing at Cologne), a case containing the quantity ordered was received by the agent, and warehoused by him with a wharfinger and warehouse-keeper who gave for it a document dated the 21st of July which is called a warrant, by which the case was made dehverable to the agent or his assignee by indorsement, on pay- ment of rent and charges from the 25th of July, and the agent indorsed it to the defendant and sent it to him. This warrant the defendant kept for some months. He was repeatedly ai^plied 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 soHcitor, 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-sheriff 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 warrant 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 the assignee, and then only 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. Black- burn, " On the Contract of Sale," pp. 27-41, 297 ; and in Mr. C. Addi- son's work, p. 70, We all therefore think that, though there was SECT. IV.] CURTIS V. PUGH. 183 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. Hule absolute. CURTIS V. PUGH. In the Queen's Bench, February 11, 1847. [Reported in 10 Queen's Bench Reports, 111.] Debt for sroods sold and delivered, and on an account stated. Par- ticulars, claiming £46 18s. Sd. for two hogsheads of glue. Plea, never indebted. On the trial before Lord Denman, C. J., at the sittings in London after Hilary term, 1846, it appeared that the defendant ordered of the plaintiff (by oral direction to his agent) three hogsheads of Scotch glue, which was to be of the description called " Cox's best." The plaintiff on 31st October, 1845, sent two hogsheads (which Avere all he was able to supply at the time) to a wharf in London, from which the defendant removed them to his own warehouse, and there unpacked the whole of the glue and put it into twenty bags. On examination the defendant considered the glue inferior in quaUty to " Cox's best glue ; " and this was communicated to the plaintiff's agent on 1st November. The plaintiff's brother on his behalf inspected the glue on Monday, November 3d, and admitted that some part of the glue (but not an unusual proportion) Avas of inferior quality ; and on the plaintiff's part he offered to make an allowance in the price, but refused to take the glue back, because it had been unpacked and put into bags ; and he stated in evidence that it was quite unnecessary to do more than take a cake or two out for the pur})Ose of examining the contents of the hogsheads. The defendant rcj^acked the whole, and sent it back to the plaintiff, who declined to receive it. It was stated in evidence that glue, if taken out of the barrels in which it is packed, cannot be replaced there in the same condition. At the close of the plaintiff's case the defendant's counsel contended that the plaintiff must be nonsuited, for that there had been no contract for the two hogsheads of glue within § 17 of the Statute of Frauds, 29 Car. 2, c. 3, the defendant not having signed any memorandum in writing, and not having accepted any part of the goods. Tliey urged that there had been no acceptance, because it did not appear that the defendant had done any act with a view of taking posses- sion as owner. The Lord Chief Justice was of opinion that the defendant had not in fact intended to accept the glue, but his 184 CURTIS V. PUGH. [chap. I. Lordship thought that if the defendant had done any act altering the condition of the article, that was an acceptance ; and that the question for the jury would be, whether or not the act of putting the glue into bags had altered its condition, fle reserved leave to. move to enter a nonsuit ; and the defendant's counsel then put in evi- dence as to the quality of the glue. The Lord Chief Justice left it to the jury to say whether the glue was Cox's best, and whether the defendant had. dealt with it so as to make it his own, or had done no more than was necessary for an examination of the quality. The jury decidec] these questions in the plaintiff's favor and returned a verdict for him. Martin, in Easter term, 1846, obtained a rule to shew cause why a nonsuit should not be entered. He cited Phillips v. BistoUi^ and Elliott ?;. Thomas.2 Crowder and Petersdorff now shewed cause. The defendant, having done more than was necessary for a fair examination, and thereby altered the condition of the goods, did in effect accept them. Phillips V. Bistolli, cited in moving for this rule, shews that it is a question for the jury whether there was a delivery or not: there the question was not submitted to them ; and there was clearly no case of delivery. [LoKD Denman, C. J. There must be both a delivery and an accept- ance proved. Here the evidence showed a rejection. I thought at the trial that, if there had been any unnecessary alteration in the state of the thins while in the defendant's hands, he must be taken to have accepted it. But in that I think I went too far. Patteson, J. A confusion sometimes arises in applying the Statute of Frauds to the case of goods sold and delivered. If the purchaser actually takes the goods into his possession, that is an acceptance independent of the statute. But there may be an acceptance sufficient to satisfy the stat- ute, which may yet not support an action for goods sold and delivered.] The plaintiff here does not rely on an acceptance of part. The whole quantity of goods is put into his hands ; and he is to explain why he does not pay for them. [Patteson, J. If he had looked them over and selected them long before, and when they came to his warehouse had refused to have them, that would not be a case of goods sold and delivered. "Wightman, J. When do you say the delivery here was complete?] On the 31st of October. A party must not have an unlimited time to decide whether he will accept goods or not ; and here the defendant had so dealt with them that they could not be restored in the state in which they were sent. [Patteson, J. Was it not for the jury to say whether the acts of the defendant Avere done with the intention of taking the goods ? Lord Denman, C. J. The strongest way of putting the case for you would have been that his conduct amounted to a provisional acceptance, if the glue should prove 1 2 B. &. C. 511. 2 3 M. & W. 170. See the dicta in p. 174. SECT. IV.] BEAUMONT V. BRENGERI. 185 to be Cox's best glue-] After taking the whole out and putting into bags, it was too late to insist on that proviso. [Wightman, J. According to you the defendant was bound whether the glue turned out to be Cox's best or not. Coleridge, J. If the party examines the goods bona fide with a view of ascertaining the quality, but so carelessly as to do them great harm, can you say that that amounts to an acceptance, whatever be the result of the examination ? Wight- man, J. Elliott V. Thomas was cited in moving.] That case, as to the point decided, is rather in favor of the plaintiff here than of the defendant. If the purchaser takes goods professedly for the purpose of examination, and keeps them a month, can it be said that he does not accept them? [Wightman, J. If the time were quite unreason- able, the plaintiff might perhaps treat the detention as an acceptance.] If so, there are circumstances under which an acceptance may be implied, though in fact not intended. But the question, whether or not the time of detention was reasonable, ought to go to the jury : if there was any evidence upon it, the judge could not on his own view of the subject direct a nonsuit. [Lord Denman, C. J. You acqui- esced in my manner of treating the case. When Mr. Martin applied for a nonsuit, I stated my view of the questions to be left to the jury, and reserved leave to move for a nonsuit if the finding upon them should be for the plaintiff. You did not desire to have the jury asked whether or not a reasonable time had elapsed.] The question actually put to them involved that. [Lord Denman, C. J. It was not in my mind. In what I stated I certainly carried the doctrine as to accept- ance a step farther than I ought. But if I was wrong in not taking the opinion of the jury as to reasonableness of time, the only conse- quence is, that I did not put a question which they would have decided against you.] Martin and Hugh Hill were not heard in support of the rule. Pattesox, J. My Lord Chief Justice went a step farther in his ruling than the authorities warrant. Coleridge and Wightman, JJ., and Lord Denman, C. J., concurred. Mule absolute} BEAUMONT v. BRENGERI. In the Common Pleas, December 9, 1847. [Reported in 5 Common Bench Reports, 301.] Debt for goods sold and delivered, goods bargained and sold, work and materials, and money found due upon an account stated. Plea, nunquam indebitatus. . . . 1 See Benjamin on Sale, 119. — Ed. 186 BEAUMONT V. BRENGERI. [CHAP. I. The particulars of demand were as follows : — This action is brought to recover the sum of £72 Os. 6d. upon the following account : — 1846, November. A new driving-seat cab-phaeton, with doors, head, and folding shutter £70 Os. Od. To plating the wheel-caps with silver, plating the door- handles, and exchanging the brass bead for silver-plated . 1 18 To washing and cleaning the phaeton after use 2 6 £72 Os. 6d. Above are the particulars of the plaintiff's demand in this action, and he will rely on all or either of the counts of the declaration for the recovery thereof. The cause was tried before Coltman, J., at the last sitting in London in Hilary term last. The facts were as follows : In the early part of November, 1846, tlie defendant called at the shop of the plaintiff, a coachmakei', and there saw a carriage which he agreed to buy for the sum of £70, at the same time giving directions to the plaintiff to remove the brass beading, and to substitute plated, and to make some other slight alterations. These alterations having been made, the defendant again saw and approved of the carnage, and requested that it might remain in the plaintiff's back shop until he was ready to ship it for Denmark ; at the same time observing that he would make use of it a few times, in order that it might pass at the custom house for second- hand. Accordingly on Saturday the 14th of November the defendant requested the plaintiff to liire a horse and man and send them to his house on the following day with the carriage, as he wished to drive round the park. This was done (the defendant paying 135. for the hire of the horse and man) ; and the defendant after using the carriage for a few hours returned it to the plaintiff, and afterwards refused to accept or pay for it. On the part of the defendant it was insisted that there was no evi- dence to go to the jury of any delivery or acceptance of the carriage within the Statute of Frauds ; and that the contract, if any, not being complete until Sunday the 15th of November, it was void by the 29 ^ar. ^, c. I • Under the direction of the learned judge, a verdict was taken for the plaintiff for the sum claimed by the particulars, leave being reserved to the defendant to move to enter a nonsuit if the court should think the objections well founded. Prentice in the course of the same term accordingly obtained a rule nisi. Upon the first point he cited Maberley v. Sheppard,^ Elliott v. * This question was raised by special pleas, which, as well as the arguments of counsel upon them, have been omitted. — Ed. 2 10 Bing. 99, 3 M. & Scott, 436. SECT. IV.] BEAUMONT V. BRENGERI. 187 Thomas,^ Tempest v. Fitzgercalcl,^ Bushel v. Wlieeler,' Norman u. Phillips,* Phillips v. Bistolli,^ and Hanson v. Annitage,*' . . . John Henderson now shewed cause. There was a complete action- able contract prior to the Sunday, and consequently the second point does not properly arise here. The evidence shewed that the defendant selected the particular carriage, desired alterations to be made in it, and adoi)ted it and treated it as his OAvn after the alterations had been made. The case of Wright v. Percival "^ is quite conclusive.* ... In Rohde V. Thwaites,^ A., having in his warehouse a quantity of sugar in bulk more than sufficient to fill twenty hogsheads, agreed to sell twenty hogsheads to B. ; but there was no note in writing of the contract sufficient to satisfy the Statute of Frauds. Four hogsheads were delivered to and accepted by B. A. filled up and appropriated to B. sixteen other hogsheads, and inforaaed him that they were ready, and desired him to take them away, B. said he would take them as soon as he could ; and it was held that the appropriation having been made by A. and assented to by B. the property in the sixteen hogsheads thereby passed to the latter, and that their value might be recovered by A. under a count for goods bargained and sold. [Cresswell, J. There the whole was one entire contract.] The decision is not put upon that ground, but upon the ground that there was an appropria- tion of the sixteen hogsheads by the plaintiffs, assented to by the defendant.^" . . . Baines v. Jevons " is an authority to the same effect. Tempest ?j. Fitzgerald was the case of- a ready-money bargain. In Maberley v. Sheppard the chattel was in fieri, and consequently there could be no acceptance. And Elliott v. Thomas is an authority in favor of the plaintiff*, as shewing that that which took place here amounted to an acceptance of the carriage subject only to the plain- tiff''s lien for the price. . . . Prentice, in support of the rule. There has been no delivery or acceptance to satisfy the Statute of Frauds.^^ ... In the present case there clearly was no deUvery of the carriage. [Maule, J, The defendant dealt with the carriage as his own. Assuming that the man who drove it on the Sunday Avas the plaintiff''s servant and had directions from the plaintiff' to bring back the carriage, still that Avhich passed clearly amounted to an acceptance, subject to a contract on the defendant's part to send the carriage back to the plaintiff" and re-pledge it for the price. Otherwise we must suppose an absurdity, viz., that I 3 M. & W. 170. 2 3 B. & Aid. G80. ^ g Jurist, 532. 4 14 M. & W. 277. 6 2 B. & C. 511, 3 D. & R. 822. 6 5 B. & Aid. 557, 1 D. & R. 128. 7 8 Law Journ. (n. s.) Q. B. 258. 8 The learned counsel here stated that case. — Ed. ^ 6 B. & C. 388. 10 The learned counsel here stated the case of Elliott v. Pybus, 10 Bing. 512. —Ed. H 7 Car. & P. 288. 12 The learned counsel here stated the case of Bill v. Bament, 9 M. & W. 36. — Ed. 188 BEAUMONT V. BRENGERI. [CHAP. I. the plaintiff would allow a new carriage to be driven about on trial.] In Elliott V. Pybus there had been an actual appropriation of part of the goods. [Ckesswell, J. This was a sale of a specific chattel : not so in that case.] The defendant was at liberty to object that the car- riage was not completed according to order. In Elmore v. Stone ^ it was held that, if a man bargains for the purchase of goods, and desires the vendor to keep them in his possession for an especial purpose for the vendee, and the vendor accepts the order, this is a sufficient deliv- ery of the goods within the Statute of Frauds. But that case is incon- sistent with Carter v. Toussaint.^ . . . CoLTMAN, J. It appears to me that there was a sufficient delivery and acceptance of the carriage in question previously to Sunday the 15th of November, 1846, to satisfy the 17th section of the Statute of Frauds. In Elmore v. Stone it was held by this court that, if a man bargains for the purchase of goods, and desires the vendor to keep them in his possession for an especial purpose for the vendee, and the vendor accepts the order, this is a sufficient delivery of the goods within the Statute of Frauds. In Carter v. Toussaint,^ Abbott, C. J., deals with that case thus : " In the case of Elmore v. Stone, indeed, the custody was of the same kind as in this case. There the plaintiff would have a right to say to the defendant, ' You shall not have the horse until you pay me the price ; ' but the court thought that, in con- sequence of the plaintiff's having consented to put the horse into another stable, and to keep it there at the defendant's charge, he had changed the character in which he originally held the horse, and instead of holding him as his own held him for the defendant as his livery- stable keeper. But there is nothing of that kind in this case. So long as the horse remained at the plaintiff's stables, and before it went to Kimpton Park, the plaintiff was the keeper of it, not as a livery-stable keeper, but as owner, and he had a right to retain it until the money was paid. Afterwards by the defendant's desire the horse is sent to the park ; and if it was sent there and entered in the defendant's name, and by his desire, I should have thought that that was an actual accept- ance of the horse. But the evidence is that it was entered in the plaintiff's name. The defendant therefore had no right by law to go to the owner of the park and demand the possession of the horse, because the park-keeper would not be authorized to part with it with- out the plaintiff's order. Therefore the character of owner belongs to the plaintiff at the time of the sale, and remained unchanged, notwith- standing the horse was sent to the park, where it is entered in his own name without any control whatever being vested in the defendant." And Bayley, J., says : " The case of Elmore v. Stone certainly comes very near this ; but there is a distinction. In that case the original proprietor of the horse had one stable in which he kept horses as, 1 1 Taunt. 458. 2 5 b. & Aid. 855, 1 D. & R. 515. SECT. IV.] BEAUMONT V. BRENGERI. 189 owner, and another in which he kept them as a liverj^-stable kee])er, and by removing the liorse from the one to the other it was considered that he had consented to divest himself of the character of owner, and conveyed the property in the horse to the buyer without retaining any lien for the price. That was the ground upon which the decision in the Common Pleas was founded. I can sec nothing of that kind here. There is no consent on tlie part of the plaintiff to divest himself of the possession, or to abandon his right to retain the horse -until the price was paid." In cases of this sort therefore it seems that the question will be, whether the vendor held the subject-matter of the sale as owner, or merely as a warehouse keeper for the vendee. Looking at the evidence in this case, it appears to me that there is enough to shew an agreement between the parties that the plaintiff should hold the carriage as a warehouse keeper for the defendant. It was proved that the defendant had seen the carriage, and had had alterations inade in it, and had expressed his intention to use it a few times before embark- ing it, so that it might pass as a second-hand carriage ; and that at his request it was placed by the plaintiff" in his back shop, where it stood at the disposal of the defendant. It was further proved that on Sat- urday the 14th of November the defendant called at the plaintiff's shop, and desired that a horse might be hired for him, and that the carriage should be sent to his house on the following day (Sunday) ; which was accordingly done. In considering whether the plaintiff' had at this time agreed to hold the carriage as the defendant's agent, Ave may look at what took place on the Sunday. Is it reasonable to suppose that the plaintiff would have allowed the carriage to be used, — which would have reduced it to the condition of a second-hand arti- cle, — if it had not been well understood between the parties that he had ceased to be the owner ? I can come to no other conclusion than that the plaintiff had assented to the defendant's proposal to keep the carriage in the shop as his the defendant's agent. I therefore tliink there was a sufficient delivery and acceptance, independently of what took place on the Sunday, to satisfy the statute, and consequently that the plaintiff was entitled to the verdict. Maule, J. I also think there was evidence for the jury of a com- plete bargain and sale prior to the Sunday. It appears that the car- riage had been completely finished before that day to the satisfaction of the defendant ; and that he had had certain alterations made in it, which Avas to some extent exercising the right of ownership. But when the defendant directed the plaintiff to keep the carriage for Inm, saying that he intended to take it out a few times, in order to make it pass as a second-hand carriage, he was clearly assuming to deal with it as his own. This, coupled with the fact of the carriage having been at the defendant's request sent to his house on the Sunday for the pur- pose of driving in the park, shews an assumption of ownership on the --* 190 SAUNDERS V. TOPP. [CHAP. I. part of the defendant, and an acquiescence on the part of the plaintiff, that well justified the jury in coming to the conclusion that the car- riage was then no longer the property of the plaintiff, but had become the property of the defendant. That which took place on the Sunday was no violation of the statute 29 Car. 2, c. 7. And even if it were, it does not the less serve to throAV light upon the previous part of the transaction. Cresswell, J. I am of the same opinion. There was ample evi- dence from which the jury might reasonably find a verdict for the plaintiff. There was evidence of a specific bargain for the particular carriage, and that when finished to the defendant's satisfaction the carriage was removed into the back shop. That left it equivocal whether it had been accepted by the defendant and parted with by the plaintiff; the result is to be judged of by the subsequent conduct of the parties. The defendant assumed to be the owner by ordering the carriage out for a drive. And the plaintiff by his conduct also shews that he no longer considered himself as the owner ; for it is by no means probable that he would have allowed the carriage to go out, unless he had considered the bargain to be complete. Using it even for a short time would of course materially depreciate it. I therefore think the jury were warranted in finding that the property in the carriage had passed to the defendant by what had taken place prior to the Sunday, and that the plaintiff retained possession merely in the character of agent. V. Williams, J. I am of the same opinion. For the reasons given by my learned brothers I think that, if the judge had left it to the jury to say whether or not there had been a delivery and' acceptance of the carriage before the Sunday, there would have been nothing objection- able in his so doing, and that a verdict for the plaintiff in that case would have been justified by the evidence. Rule discharged. SAUNDERS V. TOPP. In the Exchequer, June 22, 1849. [Reported in 4 Exchequer Reports, 390.] Debt, for the price of ewes, lambs, and sheep, sold and delivered. Plea, nunquani indebitatus. At the trial before Lord Denman, C. J., at the last Dorchester spring assizes, the following facts appeared : The defendant went with the plaintiff to a farm of the plaintiff's at Lytchett, and there selected from a flock forty-five couple of ewes and lambs, which he agreed to SECT. IV.] SAUNDERS V. TOPP. 191 buy at the price of 40.s, a coviplc. He also selected a stag sheep and a dry ewe at 40s. each. These he directed the plaintiff's shepherd to send to a field of his at Wimborne. The plaintiff had some sheep at another farm of his called Morden, which the defendant had not seen ; and it was in the course of the same day agreed between them that the plaintiff should send to the defendant at "Wimborne two coiij)le of the ewes and lambs from the Morden farm, at the price of 4U6\ a couple. The plaintiff's shepherd accordingly drove the forty-five couple of ewes and lambs from Lytchett, and the two couple fi-om Morden, and also the stag and dry ewe, to "Wimborne, and left them there in the defendant's field. The defendant did not see them there, but two days afterwards he sent his man to fetch them to his residence at a place called Martin, about fourteen miles distant from "Wimborne. On the arrival of the sheep at Martin the same afternoon the defendant saw them and counted them over, and said, " It is all right." He also said with respect to the sheep from Morden, " They will not match very well with those that I have got." The following day the defend- ant wrote to the plaintiff, complaining that the latter had not sent the same sheep which he had bought, and stating that unless the plaintiff allowed a deduction of £2 from the price he would not pay for them, and that the plaintiff might take them away. The plaintiff insisted that the sheep were the same, and refused to make any abatement in the price, whereupon the defendant sent the sheep back. It was sub- mitted on the part of the defendant that the bargain for the sheep at Lytchett and the sheep at Morden was one transaction, and the contract was void under the 17th section of the Statute of Frauds, 29 Car. 2, c. 3, there having befin no part payment or accej^tance of the sheep. The learned judge ruled that there was evidence of the accei^tance of the forty- five couple, and left it to the jury to say whether there was a sejiarate bargain for the forty-five couple, or whether the whole were all included in one bargain ; and he directed the jury to find for the defendant if they thought that there was only one bargain for the whole ; but if they were of opinion that there had been a separate bargain for the forty-five couple, then they should find for the plaintiff. The jury found that there was a distinct bargain for the forty-five couple only. The verdict was then entered for the plaintiff, leave being reserved for the defendant to move to enter a nonsuit, if the court should be of opinion that there was no evidence of acceptance to satisfy the Statute of Frauds. Ci'owder in last Easter tenn obtained a rule nisi accordingly, against which Bar stow now shewed cause. The jury have found that there were two distinct contracts, one for the forty-five couple and the other for the two. There was abundant evidence of the acceptance of the forty-five. They were not only sent by the defendant's direction to his field at "Wimborne, which of itself would be a delivery, but the 192 SAUNDERS V. TOPP. [CHAP. I. defendant afterwards sent his servant to fetch them away, and bring them to his residence at Martin. Dodsley v. Varley^ shews that those facts are evidence of an acceptance. [Parke, B. His rejecting them after that would be of no avail unless they were not according to the contract.] Even if the forty-seven couple had been purchased under one contract, which the jury have negatived, acceptance of the forty-five coupl.e would have satisfied the statute. Scott v. The East- ern Counties Railway Company.^ Crowder and Montague Stnith, in support of the rule. There was no evidence of acceptance. The sheep were sent to a field which the defendant occupied at a distance from his place of residence. It is true that he sent his servant to fetch them aAvay, but that was for the purpose of examining them ; and when he had done so, he repudiated the bargain. The counting them and saying that they were all right only meant that they were right in number. In Baldey v. Parker ^ the defendant went to the plaintifi^'s shop and contracted for the purchase of various articles, each of which was under the value of £10, but the whole amounted to £70. A separate price for each article was agreed upon ; some the defendant marked with a pencil, others were measured in his presence, and others he assisted to cut from larger bulks. He then desired that an account of the whole might be sent to his house, and went away. A bill of parcels was accordingly sent, and afterwards the goods, when he refused to accept them ; and it was held that there was no delivery and acceptance to satisfy the statute. [Parke, B. That case is an authority to shew that the selecting particular articles does not amount to a receipt within the statute, but is merely an agree- ment that the property in the sjDecific articles sliall f)ass. At common law the property would pass by the contract of bargain and sale ; but in order to satisfy the statute, there must be either a part payment or an acceptance and receipt of the goods.] In the case of a purchase from the bulk, the sale is not complete until a portion has been deliv- ered and accepted. The purchaser has a right to have an opportunity of examining the article delivered to him, and of refusing it, if not the same as he purchased. Hanson v. Armitage.* Here there was a deliv- ery at the field, but no acceptance thereafter ; for the defendant was not present to exercise an option, and his servant was not his agent to accept, but only to receive the sheep. The cases as to the delivery to a earner or a whai-finger are in point. [Parke, B. There are authori- ties to shew that if a person selects and puts a mark on a particular article, intending to take possession of it as his own proj^erty, that is evidence for the jury of an acceptance. Hodgson v. Le Bret,^ Ander- son V. Scot.^] Those decisions are at variance with Baldey v. Parker.' 1 12 A. & E. 632. 2 12 M. & W. 33. 3 2 B. & C. 37. * 5 B. & Aid. 557. » 1 Campb. 234. 6 i Campb. 235, note. 1 2 B. & C. 37. SECT. IV.] SAUNDERS V. TOPP. 193 [Parke, B. That case only decides that iindev tlie ch-cunistancos there was no acceptance and receipt. Here tlie defendant clearly receives the sheep, if his selecting them is an acceptance of them. In Hanson V. Armitage ^ there was no acceptance by the buyer of the goods.] The receipt contemplated by the statute is a receipt with an intention to accept the goods. In Norman v. Phillips - the defendant, a builder at Wallingford, gave the plaintiff, a timber merchant in London, a verbal order for timber, directing it to be sent to a certain railway station to be forwarded to him at Wallingford, as had been the practice of the parties on previous dealings. The timber was accordingly sent, and arrived at the Wallingford station, of which the defendant was informed by the railway clerk, but refused to take it ; and it was held that there was no sufficient evidence to warrant the jury in finding such an accept- ance as satisfied the statute. [Paeke, B. There had been no selection of the timber.] The acceptance and receipt must be such as to pass the property in the goods, so as to enable the purchaser to maintain trover. Here the defendant merely directs that the sheep shall be sent to him, and he did not receive them with the intention of accepting them. Paeke, B. I am of opinion that there was evidence for the jury of an acceptance and receipt of the forty-five couple. It is immaterial for the present question whether there was evidence of a joint contract, for the plaintiff is at all events entitled to retain his verdict for the forty-five couple. To satisfy the Statute of Frauds, there must be an acceptance and a receipt of the goods. A receipt imiDlies delivery. The subject was fully considered by this court in the case of Farina V. Home,^ and the'iDrinciples there laid down are correct. It is con- tended that, under the statute, the acceptance must follow the delivery. That, however, it is unnecessary to decide; for here there is evidence to go to the jury of a subsequent acceptance, since the defendant had not merely an opportunity of looking at the quality of the shee]^ and selecting them ; but after that he directs them to be sent to his field at Wimborne, and instead of going there to examine them, as he was bound to do if he meant to object to them, he orders liis servant to take them to another place, where he receives them. So that there was evidence of an acceptance after the sheep were delivered at Wim- borne ; and the jury might have concluded that the subsequent circum- stance of the defendant writing a letter to repudiate the contract Avas a mere after-thought. If nothing had occurred but the transaction of counting them over, and the defendant had then laid by for a fortnight or three weeks, the jury might have found an acceptance. Here the circumstance of the defendant having had full opportunity of examin- ing the quality of the sheep, and merely counting their number to ascer- tain whether it was right, coupled with the fact of his having actually 1 5 B. & Aid. 557. 2 14 m. & W. 277. » 16 M. & W. 119. VOL. I. 13 194 SAUNDERS V. TOPP. [CHAP. I. selected them and ordered them to be delivered at his field, were evi- dence of an acceptance and receipt of the sheep, even supposing the acceptance must necessarily be contemporaneous with the receipt. Aldersoisj", B. It is not necessary to decide whether, under the statute, there can be an acceptance prior to the receipt. My present opinion is, that the receipt contemplated by the statute is a receipt on such terms as denotes an acceptance. I do not agree with the case of Anderson v. Scot, which I think required fuller consideration. There the acceptance was independent of any receipt, and that is not suffi- cient to satisfy the statute. Here there was evidence of an acceptance by the inspection and separation of the sheep at the time when they were in the vendor's possession ; and very slight evidence of the accept- ance of the sheep, when received, would be sufficient to show an acceptance coupled with the receipt, because they were previously selected by the vendee himself. It is only a question of degree. In truth the previous selection of the sheep is very material to show the nature of the acceptance when the sheep were received. The defend- ant says, " It is all right." If he had never seen the sheep, and there had been no previous acceptance, his saying " It is all right " would have had no effect ; but when he had previously examined and selected the sheep, it was for the jury to say whether he did not mean, " These are the sheep which I selected." Suppose in the case of a remarkable animal, for instance a horse with peculiar spots, the vendee had said, " All risxht," there could be no doiibt he would mean, " This is the horse I bought." That shows the whole question is one of degree only ; and the previous fact of selecting may well be used as a circumstance fi-om which the jury might properly infer an acceptance at the time of the receipt. RoLFB, B. I concur with my brother Alderson in his doubt whether under the statute there can be an acceptance before delivery. On that point, however, it is not necessary to give an opinion, because there is clearly evidence of an acceptance after delivery. Platt, B. I also doubt whether there can be an acceptance before delivery ; but here there was a distinct contract in regard to the forty- five couple, which were sent to Wimborne according to the directions of the defendant. He then sends his drover to bring them to a dis- tant place, where he counts them over, and says, " It is all right." That is evidence for the jury of an acceptance by the defendant of the forty-' five couple which he bargained for. Hule discharged. ^:?'/^ >x' ^ C^ c^^t^C ^ 7i^-z^^ SECT. IV.] MORTON V. TIBBETT. ' 195 f-^l<;^y2C ^^:rt^/^ MORTON V. TIBBETT. ';iu^ ti^u^k / /^^^ ^'^^N THE Queen's Bench, May 31, 1850. '^^'t^t^-^^cC' Cy( ,^,^ [Reported in 15 Queen's Bench Reports, 428.] g >J vV -^-^^-i-^^^u^EBT for goods sold and delivered, and goods bargained and sold. ^ ^ '^ 5^^^vr^^lea, nwiqimm indebitatus. Issue thereon. ^ > *[ • w- -r*-— On the trial before Pollock, C. B., at the Cambridgeshire spring ;^ ' ft nt:X^/ assizes, 1849, it appeared that the action was brought to recover the *. ** f^. '^^^ price of fifty quarters of wheat. On 25th August, 1848, the plaintiff p^>/ k ' ^ y sold the wheat to the defendant by sample. The defendant said that i^ t^^V^ '^^'^^^^^e would send one Edgley, a general carrier and lighterman, on the | V following morning to receive the residue of the wdieat in a lighter for r "X' M xCc^y ^^ purpose of conveying it by water from March, where it then was, >^^ ^' ^ Ji/^ " to Wisbeach ; and the defendant himself took the sample away with '^ ^ '^ ^***»-udiation for five months. The judg- ment of Coleridge, J., in that case is strongly in favor of the present plaintiff. Jif. Chambers and T. Jones (northern circuit), contra, were not called upon. Lord Campbell, C. J. . The Legislature continues to maintain § 17 of the Statute of Frauds ; and I do not think that the enactment is satisfied by the facts of this case. All that can be said is that the pur- chaser here named the wharf, and that there was a delivery at that Avharf. I think that where there is a verbal contract and an order to deliver to a particular carrier, a delivery to that carrier does satisfy the statute. But in the present case there was a delivery at the wharf only : the wharfinger had only to see that the goods were properly put on the wharf and hoisted on board ship. Hart v. Sattley - is no longer law, as we declared in Meredith v. Meigh.* Coleridge, J. I am of the same opinion. It is impossible to say that the mere naming of the wharf makes the wharfinger the agent to accept. Mr. Lush seems to assume that the wharfnger was placed in the situation of the vendee. But the facts do not bear that out. Erle, J. I agree that the sending to the wharf and the putting on the wharf does not satisfy the words " accept " " and actually receive," however absurd the words of the statute may be. (Crompton, J., had left, the court.) Jiule absolute. 1 15 Q. B. 428. 2 3 Campb. 528. » Note to Morton v. Tibbett, 15 Q. B. 442. « 2 E. & B. 364. TOI« I. U 242 COOMBS V. BRISTOL AND EXETEE RAILWAY CO. [CHAP. I. COOMBS V. THE BRISTOL AND EXETER RAILWAY COMPANY. In the Exchequer, June 1, 1858. [Reported in 3 Hurlstone Sf Norman, 510.] The declaration stated that, the defendants being common carriers for hire, the plaintiff delivered to the defendants as such common car- riers, and the defendants as such carriers received from the plaintiif, certain goods of the plaintiif, viz., a packet of whalebone, to be safely and securely carried from Exeter to Bristol, and there to be delivered by the defendants for the plaintiff for reward. And although a reason- able time had elapsed before this suit, yet the defendants made default in carrying and delivering the said goods ; and also, while they had the said goods for the purpose aforesaid, so negligently and improperly car- ried the same that, by the default, negligence, and improper conduct of the defendants in that behalf, the said goods were wholly lost to the plaintiff. Pleas {inter alia) : First, not guilty ; secondly, that the plaintiff did not deliver to the defendants nor did the defendants receive from him the said goods to be carried as aforesaid. Whereupon issue was joined. At the trial before Watson, B., at the London sittings in Easter term, it appeared that for some time previous to October, 1857, the plain- tiff, an umbrella manufacturer and dealer in whalebone at Bristol, had agreed with one Avery to buy of him any quantity of old whalebone he could procure at 2s. Id. a pound ; the whalebone to be delivered at the station of the Bristol and Exeter Railway Company at Exeter, addressed to the plaintiff, who was to pay the carriage. On the 19th of October Avery delivered at the station of the railway company at Exeter one hundred pounds' weight of whalebone directed to the plain- tiff at Bristol, and sent the invoice to the plaintiff, charging him with the price, amounting to £12 18s. 4c7. On the 21st of October the plaintiff wrote to Avery stating that he had not then received the whalebone, although the invoice had arrived the day before, and prom- isino; to send a draft when he should receive the whalebone. Avery inquired at the station at Exeter, and was told that the whalebone had been sent from thence. After some further correspondence, on the 30th of October Avery wrote to the plaintiff, saying, " As to the miss- ing bone, as they have the account of it in Bristol you had better make the claim for the amount forthwith. I shall leave it in your hands, as you can tell them the price you gave for it. I should also charge them for the loss and inconvenience of not receiving it. As soon as SECT. IV.] COOMBS V. BRISTOL AND EXETER RAILWAY CO. 243 you can make it right please to send me the amount." Tlie whale- bone was never delivered. Upon this evidence the counsel for the defendants objected that, as the contract was for the sale of goods above the value of £10, and there was no agreement in writing or acceptance of the goods Avithin the Statute of Frauds, and as there was no consent to accept the particu- lar goods sent, no pi-opcrty in the goods passed to the ])laintiff, and therefore he Avas not entitled to maintain the action. The learned judge directed a verdict to be entered for the plaintiff, reserving liberty to the defendants to move to enter a nonsuit, the court to be at liberty to draw such inferences of foct as a jury might. Kinfjlake^ Serjt., having obtained a rule nisi accordingly, Butt and Prideaux now shewed cause. The case of Coats v. Chap- lin ^ is an authority that where there has been a verbal order for goods above the value of £10, and no directions have been given as to send- ing them, if the seller send them to the buyer by a carrier A\ho loses them, the seller may sue. But Patteson, J,, there said : " If the con- signees had selected a particular carrier, it would have made a differ- ence : perhaps if they had ordered that the goods should be sent by * some canier,' the delivery to the carrier might have constituted a delivery to the consignees." If goods which have been ordered are delivered to a carrier named by the purchaser, an action for goods sold may be maintained. [Martin, B. That is so if there is a valid contract, but such delivery is not sufficient to take the case out of the Statute of Frauds, Hanson v. Armitage.- Pollock, C. B. Though as between the parties the contract may not be enforceable, it may be good for col- lateral pui-poses. Cannot the act of the carrier in receiving the goods for the buyer be ratified and made the buyer's own act? Suppose A. orders goods, and the seller goes to A.'s agent and says, " Will you accept the goods on behalf of A. ? " If the agent accepts the goods and A. ratifies his act, the seller could not undo his own act and claim back the goods. Beamwell, B. Suppose I order goods to be deliv- ered to a person who consumes them : do I not accept the goods ?] Stead V. Dawber^ shews that the contract is not void, thouo-h not enforceable between the parties. Delivery to a carrier, though not named by the vendee, is a delivery to the vendee (Duttou v. Solonion- 8on^) ; and there is no authority that where there has been a delivery to a carrier named by the vendee, the vendor is the proper person to sue in case of the loss of the goods. [Watsox, B. It may be con- tended that, if goods are sent to a jiarticular carrier in consequence of the order of the vendee, the purchaser has a qualified possession, in respect of Avhich he is entitled to sue whether he has a property in them or not.] The plaintiff is not seeking to enforce the con- 1 3 Q. B. 483. 2 5 B. & Aid. 557. 3 10 A. & E. 57. See id. 65. * 3 Bos. & P. 582. 244 COOMBS V. BRISTOL AND EXETER RAILWAY CO. [CHAP. I. tract. Setting aside the question whether the property passed, he was at least a bailee of the goods : the carrier held them as his agent. In Coats V. Chaplin ^ there was no evidence of an acceptance of the goods by the purchaser, while the fact that the vendor sued was evidence that he did not treat the contract as complete. Here by bringing his action the plaintiff shews that he assented to the appro- priation of the goods. Norman v. Phillips ^ was a case between ven- dor and purchaser. That case is also distinguishable from the present, because here, beyond the mere fact of delivery to the carrier, there ia evidence that the parties had elected to treat the contract as complete. If the buyer exercises any act of ownership in relation to the goods, as if he re-sell or attempt to re-sell them, that is sufficient to warrant a jury in finding a delivery and acceptance. Blenkinsop v. Clayton,^ Chaplin v. Rogers,* Morton v. Tibbett.^ [Maktik, B. Here the pur- chaser could only accept by taking the goods after he had had an opportunity of inspecting them. Hunt v. Hecht.^ Meredith v. Meigh "< is an authority to the same effect.] The goods were not unascer- tained goods, because the plaintiff had agreed to take " all the whale- bone sent." [Bramwell, B. Suppose the plaintiff is right in his con- tention that he can sue, though the property was never vested in him, to what damages is he entitled?] KinglaJce^ Serjt., and Collier, in support of the rule. In the absence of a special contract the proper person to bring the action against a carrier for the loss of goods intrusted to him to be carried is the owner of the goods. Hence the consignee is usually the proper plaintiff, because the delivery of the goods to the carrier commonly vests the property in him. Roscoe on Evidence, p. 411, 9th edition, citing Dun- lop V. Lambert * and Dawes v. Peck.^ It is only where there is a spe- cial contract with the carrier that the question of ownership becomes immaterial. The question then is. Had the property in the whalebone vested in the plaintiff? Now from Hanson v. Armitage " and other cases collected in Roscoe on Evidence, p. 342, it appears that delivery to a carrier named by the purchaser is not a delivery to the purchaser, because he is not the purchaser's agent to accept the goods. In Nor- man V. Phillips," Alderson, B., points out that there can be no accept- ance by the purchaser while there is a power to reject the goods. No doubt the deUvery to the earner would have been a vahd delivery to the vendee if there had been a complete sale and transfer of the prop- erty by the contract. In that case the seller would have transmitted the goods as agent for the vendee. Pollock, C. B. This is an action by the consignee against a carrier 1 3 Q. B. 483. 2 14 m. & W. 277. 3 7 Taunt. 597. 4 1 East, 192. 5 15 Q. B. 428. 6 8 Exch. 814. 7 2 E. & B. 364. 8 6 CI. & F. 600. 9 8 T. R. 330. 10 5 B. & Aid. 657. " 14 M. & W. 277. SECT. IV.] COOMBS V. BRISTOL AND EXETER RAILWAY CO. 245 to recover the value of goods lost in the course of conveyance. The question is, whether the ])roperty passed to the vendee. If it passed, the plaintiff, the vendee, is the proper person to sue ; if not, the vendor should have sued. It would be very inconvenient to treat the liability of a carrier as ambulatory, — to hold that he is not liable to the consit^nee unless the latter does some act shewing an intention to treat the con- tract as valid, but that he may be made liable by the act of the consignee in bringing an action. The argument of the plaintiff's counsel would go to this extent: that the consignee, in a case where the contract is incomplete, may elect to treat it as valid, and by such adop- tion entitle himself to say, as against the carrier, that he is the jjroper person to sue. But the liability of the carrier cannot be altered by any thing which takes place after the loss ; it must be certain at the moment of the loss. Therefore the question is, whether the delivery to the carrier was a delivery to the vendee. I suggested in the course of the argument that the only way in Avhich the plaintiff could make out that the action Avas well brought by him as consignee would have been to shew that he had adopted something done by the carrier as his agent, adoption being equivalent to a [trior demand. But I am not. sure that a prior demand would have done. It was suggested in Coats V. Chaplin ^ that the consignee might have sued. That was answered by the opinions of the majority of the judges that it was necessary that the property in the goods should have passed to enable him to do so. There is a decision in this court" that delivery to a carrier is not suffi- cient, and that in order to satisfy the Statute of Frauds the consignee must have had the power to reject the goods. Alderson, B., points out that the statute requires that the vendee should have received the goods. Here, as there was no acceptance of the goods by the vendee, and nothing else to take the case out of the statute, the property did not pass to the plaintiff; and on that ground the rule must be absolute to enter a nonsuit. Martix, B. I am of the same opinion. The plaintiff, being at Exeter in October, 1857, bought some whalebone at 2s. Id. a i)Ound, and agreed to take a farther quantity, which Avery Avas to send to Bristol by the defendants' railway, the plaintiff agreeing with him to pay the carriage. This was a verbal contract. On the 19th of October one hundred pounds of whalebone were sent by Avery from Exeter by the Bristol and Exeter Railway, and Avery wrote to inform the plaintiff that he had sent him a bundle of whalebone. On the 21st the plaintiff Avrote to say that he had not received the wlialebone, and that he would send a draft for the price when he got it. If the argument of the jilaintiff's counsel is well founded, no effect would be given to the promise to send a draft when the Avhalebone should be received. The plaintiff's letter to Avery, promising to pay for it on its arrival, shews that the 1 3 Q. B. 483. i Norman v. Phillips, U >L & W. 277. 246 COOMBS V. BRISTOL AND EXETER RAILWAY CO. [CHAP. I. plaintiff considered Avery to be the person who was to suffer a loss ; and indeed Avery suggested that the plaintiff should make a claim against the company, and send the amount when received from the company to him. At common law, upon the sale of an ascertained chattel, on delivery to a carrier the property vested in the vendee. But by the 17th section of the Statute of Frauds " no contract for the sale of any goods, wares, and merchandises, for the price of £10 sterling 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 some- thing in earnest to bind the bargain, &c., or that some note or memo- randum in writing of the said bargain be made and signed," &c. Therefore, unless one of these things have happened, this contract of sale was not good ; not that such a contract is absolutely void, for if either event takes place at any time after the verbal contract the con- tract becomes good. In Elmore v. Stone ^ the doctrine of a constructive acceptance and receipt was carried a long way. The true rule was acted upon in Hanson v. Armitage.^ In Morton v. Tibbett ^ the doc- trine of Blenkinsop v. Clayton * was carried to an extent which in that case was correct. But in Hunt v. Hecht ^ it was pointed out that, though the case was rightly decided, much Avas said in the judgment that was open to doubt. One other point was made, viz., that the plaintiff authorized Avery to enter into a contract which renders the company liable independently of the question of property. But there is no evidence of such a contract. To establish such a liability, it would be necessary to shew that the company had notice of the obliga- tion they were incurring. My brother Watson suggested that, Avhat- ever was the effect of the statute as between the vendor and vendee, as between the plaintiff and defendants the verbal contract and delivery to the defendants gave the plaintiff such an interest as to entitle him to recover. But the statute says that the contract " shall not be good," in other words " shall be invalid." Therefore, as there Was no evidence that the property passed from Avery, he alone was the proper person to sue. Bramwell, B. I am of the same opinion. The cases shew clearly that the goods were not the goods of the plaintiff at the time of the delivery of them to the railway company. Norman v. Phillips,® and many other cases which have been referred to, establish that where there is a verbal contract for goods within the 17th section of the Stat- ute of Frauds, and no earnest or note in writing of the bargain, there must be some affirmative act of acceptance to make the contract good. I think it Avould be more sensible to hold that any delivery and receipt is sufficient, unless there is a subsequent reftisal to accept. Suppose coals were ordered and shot down in a particular spot for the buyer. 1 1 Taunt. 458. 2 5 B. & Aid. 557. 3 15 Q. B. 428. * 7 Taunt. 597. » 8 Exch. 814. 6 14 M. & W. 277. SECT. IV.] COOMBS V. BRISTOL AND EXETER RAILWAY CO. 247 I suppose that would be an acceptance, thougli no agent was tliere to accept them. Now if that is sufficient, it is difficult to say that delivery at a wharf or to a carrier named by the purchaser is not so. It would have been good sense to say that where a place is appointed for the delivery, if the goods are delivered there it is an acceptance, luilesa there is a person there who rejects them. According to Lord Camp- bell ^ " 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." I agree with that. But in such case the party must have done something to waive his right to reject the goods, which has not been the case here. There has therefore been no acceptance. Then it was said that, independently of the question of property, the plaintiff had deliv- ered goods to the defendants to be carried for him. If that argument were well founded, it would lead to considerable inconvenience, and the plaintiff would only be entitled to nominal damages. The only way however in which there was a delivery to the defendants by the plaintiff was under the contract of sale. But the contract of sale was invalid, and therefore no authority to the defendants to receive the goods for him. But it may be said the contract to carry was made in the name of the plaintiff, and that he might ratify it. I do not think that in fict the contract was made in the name of the plaintiff. It is more reasonable to hold that the consignor, when the property is not out of him, does not contract for the consignee. Watson, B. I agree with the rest of the court, though I have felt some doubt. The plea denies the delivery of the goods to the defendants by the plaintiff. No question of property is raised by it. The evidence was that the plaintiff directed Avery to send him the goods and undertook to pay the carriage. It was contended that Avery had power to bind the plaintiff as to the contract for carriage. If the goods had arrived at their destination and had been accepted, the property in them would have been divested from the time of the delivery at Exeter ; therefore it is said there was a species of property inchoate and not complete in the })laintiff. That view of the case however leaves the Statute of Frauds out of the question. The con- tract between the carrier and the person sending the goods depends upon the property. If the property has not passed out of the con- signor he must sue, as in the case of goods sent on sale and api>roval. If when the goods arrive it is open to the consignee to repudiate them, there is no complete contract. In Button v. Solomonson - it was said that delivery to a carrier was delivery to the vendee, but in that case there was a perfect contract. The proposition was stated more correctly by Parke, B., in Swain v. Shepherd : ^ " Generally speaking, 1 In Morton v. Tibbett, 15 Q. B. 441. 2 3 Bos. & P. 582. » 1 Moo. & Rob. 223. 248 NICHOLSON V. BOWER. [CHAP. I. where goods of a fair merchantable quality are forwarded in pursuance of a written order which binds the person giving the order to receive the goods, the property passes to that person by the delivery to the carrier." The observations of Lord Kenyon in Dawes v. Peck ^ apply to the other view of the present case. He said : " I cannot subscribe to one part of the argument urged on behalf of the plaintiif, namely^ that the right of property on which this action is founded is to fluctuate according to the choice of the consignor or consignee ; and that consequently either of them may at his pleasure maintain an action against the carrier for the non-deliveiy of the goods. In my opinion the legal rights of the parties must be certain and depend upon the contract between them, and cannot fluctuate according to the inclination of either. This question must be governed by the con- sideration in whom the legal right was vested ; for he is the person who has sustained the loss, if any, occasioned by the negligence of the carrier; and whoever has sustained the loss is the proper party to call for compensation from the person by whom he has been injured." Hide absolute to enter a nonsuit. NICHOLSON AND Another, Assignees o/ William Pavitt, Daniel Pavitt, and George Pavitt, Bankrupts, v. BOWER. In the Queen's Bench, November 18, 1858. [Reported in 1 Ellis ^ Ellis, 172.] Feigned issue to try whether " certain wheat which was on the 11th day of May, 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 gtopped 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 May, 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 deUvered 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 1 8 T. R. 330. SECT. IV.] NICHOLSON V. BOWER. 249 been so sent, and requesting their "immediate instructions for removal." 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 com 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 May Pavitt & Co. sent their carman to the station for a bulk sample of the wheat, which he brought back. On the 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 the trial to mean to cart it home. On the same day Pavitt & Co. being in embarrassed circumstances decided upon calling a meeting of their creditors on Monday, May 11th, and gave immediate notice to the creditors. The defendant in consequence came to Pavitt & Co. on that day and asked them 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 accordingly 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 Avheat 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 bankrn])ts within the Statute of Frauds, or if the transitus of the wheat was not at an end when it was stopped by the defendant. Skinner in this term obtained a rule nisi accordingly. Bovill now shewed cause. The tran situs was at an end when the goods were delivered at the warehouse of the railway company, and the company had entered the name of the vendees in their books as the consignees, with their acquiescence. The vendor, according to his established course of business, sends the corn to the railway company as his agents, addressed to the vendee. The company hold it for the vendee ; and he afterwards exercises a control over it by sending down his man to take a bulk sample. There has been therefore a con- 250 NICHOLSON V. BOWER. [CHAP. I. tract of sale, a delivery, and an acceptance ; and the effect of those three combined is to pass the property. [Lord Campbell, C. J. Would the taking of the bulk sample necessarily constitute an acceptance ?] Perhaps not in every case ; but here it amounted to an acting by the vendee upon the notice of the arrival of the goods, and an acquiescence in their being held by the railway company for him as his agents. The words "Do not work it at present" amounted merely to an order not to deliver the corn actually to him at his mill for the present ; and such an order by a vendee does not prevent the transitus from being com- plete if he has exei'cised an ownership) over the goods. Foster v. Frampton,^ That case is completely in point with the present. There the vendee on receiving notice from the carrier of the amval of the goods took samples from them, and desired that the bulk might re- main in the earner's warehouse till further directions ; and it was held that the transitus was at an end. In Scott v. Pettit ^ the court held, adopting the opinion expressed by Chambre, J., in giving judgment in Richardson v. Goss,^ that if goods be sent for a vendee to the ware- house of another person, habitually used by such vendee as a repos- itoi-y of his goods, the transitus is at an end as soon as the goods arrive at such warehouse. So here the railway company, after the goods had ai-rived at their warehouse and had been entered to the vendee as consignee, and more especially after the exercise of an act of ownership by him, ceased to be carriers of the goods for the vendor, and became bailees of them for the vendee. It may perhaps be con- tended that a new contract would be necessary between the railway company and the vendee to place them in the position of bailees for him ; and that under the original contract, made according to the usual course of business, the corn would have to remain in their ware- house for fourteen days. But under that contract the corn was ware- housed by them from the beginning for the vendee : their relations under that contract with the vendor as carriers ceased upon the arrival of the corn. [Lord Campbell, C. J. When do you say that the acceptance by the vendee was complete ?] After the vendee had seen the sample, and did not — as he did not at that time — object to it. [WiGHTMAN, J. He might have said : " I do not find fault with the sample, but I now decline to have the wheat at all." There Avould be no acceptance by him in such case.] Wentwoi'th v. Outhwaite* and Allan v. Gripper ^ are also authorities for the plaintiff. There it was held that the transitus of goods was complete when they had arrived at a warehouse of a third person (in the last mentioned of the tAvo cases, that of the carrier himself) to which the vendee had in- tended them to be conveyed, and where they remained till his further orders. Whitehead v. Anderson® and James v. Griffin "^ shew under 1 6 B. & C. 107. 2 3 B. & P. 469. 3 3 B. & P. 119. * 10 M. & W. 436. 5 2 Cr. & J. 218. 6 9 M. & W. 518, 7 2 M. & W. 623. SECT. IV.] NICHOLSON V. BOWER. 251 what circumstances a constructive possession by the vendee may be implied from acts of ownership by liim, witli the consent of the carrier holding the goods. Here "Was clearly such act of ownership and such assent. Heinekey v. Earle ^ shews what amounts to an acceptance of the goods by the vendee upon their arrival at the place of destination. [Lord Campbell, C. J. There the vendee, after the goods had ar- rived upon his own premises, assented to their remaining there. Hill, J. Suppose that in the present case the vendee, upon the an-i- val of the goods at the warehouse, had at once, without communicat- ing with the railway company, written to the vendor, and refused to accept : the vendee would not be bound in that case by the delivery at the warehouse of the railway company, and the entry of the goods to him.] He is at all events bound by having taken a bulk sample, and having made no objection upon examining it : that amounts to an acceptance. It will perhaps be contended that there was a rescinding of the contract. But a rescinding must be by mutual consent. [Lord Campbell, C. J. If the projierty has not passed, there may be a repudiation by one party which would act as a rescinding.] Skinner and Field, contra, were not called upon. Lord Campbell, C. J. Mr. Bovill has argued very powerfully that the transitnswas at an end; and if I were to give judgment upon that point, I should be disposed to take the same view. But it is not neces- sary for me to decide that question, because I am of opinion that there was no bindintj contract between the vendor and vendee without an acceptance by the latter, and that there was not such an acceptance as to satisfy § 17 of the Statute of Frauds. I had hoped from the recent discussions in Paidiament that the restrictions imposed by that section would have been removed ; but, according to the law as it still remains, I think that, though the transitus might be considered at an end, and the warehouse of the railway company might be considered as that of the consignee, the property never legally vested in him, the contract of sale not beinsc binding. It seems to me that the vendee examined the wheat to see if it corresponded with the sample, and that he did not object to it ; but knowing the position in which his affairs were, and wishing the vendor not to lose his goods, he cau- tiously avoided any thing like an acceptance .of them. His order, "Do not work it at present," was, I think, given for the purpose of enabling him afterwards to rejiudiate the contract. WiGiiTMAX, J. I also am of opinion that, independently of the ques- tion of transitus, and even assuming that itAvas complete, there was no accei)tance by the vendee. The evidence appears to me to shew that he purposely suspended his acceptance. . Erle, J. I think that the plaintiffs have failed to shew an accept- 1 8 E. & B. 427, in Exoh. Ch., affirming the judgment of Q. B. in Ileinckey v. Earle, 8 E. & B. 410. 252 CURRIE V. ANDERSON. [CHAP. I. ance of part of the goods by the vendee sufficient to satisfy 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 corre- sponded ; 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 transac- tion ; because, unless I succeed in making arrangements with my cred- itors, this corn ought to go back to the consignor." On the next working day he actually does that which is equivalent to giving 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 pur- posely abstained from accepting. Hill, J. The question of acceptance or non-acceptance in a case like this depends upon the intention of the vendee as gathered from his outward acts. The taking of a part of the goods may amount to an acceptance ; but it may be, and I think that in the present case it is, coupled with conduct which rebuts that presumption. Rule absolute. CURRIE AND Others v. ANDERSON. In the Queen's Bench, February 7, 1860. [Reported in 2 Ellis ^' Ellis, 592.] Declaration for goods sold and delivered. Plea, never indebted. Issue thereon. At the trial before Watson, B., at the Liverpool summer assizes, 1859, the facts appeared to be as follows: The plaintiffs were mer- chants and ship chandlers at Liverpool, carrying on business under the firm of Currie, Newton & Co., and the defendant Avas a ship owner at Aberdeen. On 27th September, 1855, the defendant called at plain- tiffs' office, and saw Mr. Newton, one of the plaintiffs, and verbally ordered of him some stores, to the amount of £62 10s., for the Phoe- nix, a ship of the defendant, then in the Black Sea, to be sent out from Liverpool by one of Mclver's steamers to Constantinople. 'The defend- ant directed Newton to enter the stores out at the custom house. Before he ordered the stores he had asked Newton whether the plain- tiffs had ever sent any goods out to Constantinople, and whether they had any agent there. Newton answered that they had no agent there, but had once consigned some goods there to Messrs. Hanson & Co. Newton, having selected the goods according to the defendant's order, namely, five tierces of beef, four barrels of pork, two barrels of flour, SECT. IV.] CURRIE V. ANDERSON, 253 one barrel of peas, and one keg of barley, entered them out at the custom house, and sent them down to Mclver's steamer Melita in a cart, tosrether with two other barrels of flour, which the defendant hav- ing purchased of some other person had in the mean time sent to the plaintiffs' Avarehouse to be sent to the ship together with the goods which he had ordered of the plaintiffs. Newton afterwards asked the defendant how the bills of lading were to be made out, and the de- fendant said, " Make them out in the name of the same parties you sent your goods to ; " and added, " You had better make them out in your own name, for they won't know me, but will know you." Accord- ingly the plaintiffs made out the bill of lading thus: — " Shipped by Curric, Newton & Co." (here followed an enumeration of the goods, which corresponded with the order in all respects, except that the number of barrels of flour enumerated was four, the two sent by the defendant to the plaintifts' warehouse as above mentioned being included). "To be delivered at the port of Constantinople unto Messrs. C. Hanson & Co. or their assigns." The plaintiffs handed the bill of lading to the agent of the steamer, and at the same time (13th October, 1855) paid freight for the whole and received back the bill of lading signed. On 16th October the defendant called on the plaintiffs and repaid the freight, and Newton handed him the bill of lading. The defendant enclosed the bill of lading in a letter addressed to the captain of the Phoenix, to the care of Messrs. Hanson & Co., Constantinople ; and wrote another letter to the captain advising him of this. The captain being absent in the French transport service in the Black Sea did not receive these letters for some time, but on doing so in the middle of March, 1856, went to Constantinople and obtained the bill of lading from Messrs. Hanson & Co. The goods however were not forthcoming. It did not a])i)ear whether or not the . Melita ever arrived at Constantinople. The captain of the Phoenix returned the bill of lading to the defendant, who on 5th November, 1856, forwarded it from Aberdeen to the plain- tiffs in a letter, in which he said, "I enclose the bill of lading for stores sent out to the barque Phoenix. Please see after them. I think that the master of the steamer must account for them." The plaintifls immediately returned the bill of lading, saying that they could not interfere in the matter. And after a long correspondence they brought tliis action to recover the price of the stores so supplied by them. The jury returned a verdict for the plaintiffs for the amount claimed, £62 10s.; and the learned judge reserved leave to the defendant to move to enter the verdict for him if the court should be of opinion that there was no evidence of an acceptance and receipt by the defendant of the goods to satisfy the Statute of Frauds. A rule having been obtained calling upon the plaintiffs to shew 254 CURRIE V. ANDERSON. [CHAP. I. cause why the verdict should not be entered for the defendant on the ground that there was no sufficient evidence of an acceptance and receipt by the defendant of the goods, Haylis now shewed cause. The facts that the goods were delivered on board the Melita at Liverpool as directed by the defendant, and that he accepted and dealt with the bill of lading, together constitute sufficient evidence of such an accej^tance and receipt by him of the goods as to satisfy the 17th section of the Statute of Frauds. [CROMPTOisr, J. The keeping of and dealing with the bill of lading seem to amount to an actual receipt of the goods according to the doctrine laid down in Meredith v. Meigh.^] (He was then stopped.) Manisty and Kemplay^ in support of the rule. There was no evidence in this case of an actual accejjtance and receipt of the goods by the defendant sufficient to satisfy the 17th section of the Statute of Frauds. No authority can be cited to shew that the mere receipt by him and sending out to Constantinople of the bill of lading was such a dealing with the bill of lading as to pass to him the property in the goods. The decision in Meredith v. Meigh was that the goods there in question had not been accepted within the statute; and the opinion expressed by some of the judges that a keeping and dealing with the bill of lading might amount to an actual receipt of the goods was only an obiter dictum. [Cromptox, J. In that case the bill of lading had not been sent to the defendants, but to car- riers named by them and who were their agents only for the purpose of forwarding, not for that of accepting, the goods. Coleridge, J., however observed : ^ « I think that if the bill of lading had been received by the defendants themselves, especially if they had dealt with it, the case might have been diffisrent." And Erie, J., said : "I have no doubt that the bill of lading, which is the sjTiibol of the property, may be so received and dealt with as to be equivalent to an actual receipt of the property itself."] Those were mere dicta^ and formed no part of the ratio decidendi. [CROMPTOisr, J. The defendant in the present case dealt as owner with the goods them- selves by desiring them to be sent to the ship together with other goods which were clearly his own.] In Holmes v. Hoskins^ the defendant verbally agreed to buy of the jDlaintiff some cattle then in the field. After the bargain was concluded the defendant felt in his pocket for his cheque-book in order to pay for 'the cattle, but finding that he had not it he told the plaintiff to come to his house in the evening for the money. It was agreed that the cattle should remain in the plaintiff's field for a few days, and that the defendant should feed them with the plaintiff's hay, which was accordingly done. But it was held that there was no evidence of an acceptance of the cattle to satisfy the Statute of Frauds. 1 2 E. & B. 364. 2 2 E. & B. 372. 3 9 Exch. 753. SECT. IV.] CURRIE V. ANDERSON. 255 [CoMPTOX, J. The vendor of the cattle intended to retain possession of them until he was paid.] Farina v. Home ^ is strongly in point for the defendant.- . . . Hart v. Bush,'' in which the delivery of goods at a wharf named by the purchaser was held not to amount to an acceptance and actual receipt of them by him within the meaning of the statute, the goods having been shipped to him by his directions from that wharf, and lost on their passage thence to him, shews that in the present case the delivery of the goods on board a ship named by the defendant did not satisfy the statute. [Hill, J. In Hart v. Bush the goods Avere merely sent to a wharf which was the only wharf in London whence goods were shi])ped to Lancaster where the delentance must be Avith the consent of ^the vendor. In Bailey v. Sweeting^ Willes, J., observing on Taylor y. Wakefield,-' says (p. 850) : " That was a very peculiar case : there Avas no accejjtance there with the assent of the vendor." My judgment rests on the ground that there was not and could not be a subsequent acce])tance of the goods, and there being nothing to bind the contract under the Statute of Frauds they remained the goods of the defendant. . . . Mellor, J. In the present case there was a sale by sam})le of got)ds above the value of £10. By § 17 of the Statute of Frauds such a sale is not good unless the buyer accept and actually receive the goods or some portion of them ; in order to bind the contract there must be an assenting to an actual sale of the goods. Here the goods so sold were sent to the railway station to the order of the buyer; the buyer gave no order and did nothing under the contract, nor did he accept or actually receive any portion of the goods. There may be an acceptance and receipt to satisfy the statute, and yet the buyer may refuse to carry out the contract on the ground that the goods were not according to the contract. Afterwards the vendor went to the railway station and countermanded the directions he had pre- viously given respecting the dcsthiation of the goods ; and the station master promised that he would not part with the goods without his instructions. All this occurred before any act done by the buyer to bind the contract by acceptance or otherwise, and consequently the property in the goods did not ])ass. ... CocKBUKN, C. J. My brother Shee, who has gone to Chandjcrs, concurs in the judgment of the court. Judgment for the defendant. 1 9 C. B. (n. 8.) 843. 2 6 E. & B. 765. 284 VINCENT V. GERMOND. [CHAP. I. VINCENT V. B. & J. GERMOND. Supreme Court of New York, August Term, 1814. [Reported in 11 Johnson, 283.] This was an action of assumpsit for cattle, &c., 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 too-ether 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. Germond replied that he took them at his own risk, and the cattle must remain where they Avere ; that he would call and take them away as soon as he had completed his di'ove. After the bargain was concluded the cattle so purchased continued in the same field with other cattle of the plaintiff; in a few days one of them died, being injured by the clover. On the 4th of July following, James Germond, the other defendant, came alone to the field and took away the three remaining cattle without saying any thing to the plaintiff. The defendants gave some evidence of a tender to the plaintiff in June, 1813, of the price of the three cattle left. It was agreed that $231 Avas a sufficient compensation for the three cattle. The defendants' counsel objected to the parol evidence of the con- tract, which was admitted by the judge, reserving the question; and a verdict was taken for the plaintiff for $311.03, being the price of the four cattle with interest. The case was submitted to the court without argument. Per Curiam. No earnest money having been paid nor any writing made between the parties relative to the contract, the question is, whether there was such a delivery of the cattle as to take the case out of the Statute of Frauds. It was not made a question whether the defendants were partners so as to be bound by the acts of each other. It may be questioned whether what took place between B. Germond and the plaintiff, if standing alone, would amount to a dehvery ; but the subsequent conduct of the other defendant in taking away the three oxen, without any new contract, affords sufficient ground to infer a delivery. This was the exercise of an act of ownership over the property in confirmation of the bargain. The defendants dealt with SECT. IV.] MILLS V. HUNT. 285 the oxen as their own, and as if in their actual possession, without ask- ing; any permission from the plaintiff for so doing. Tliis must have been done in virtue of the right acquired by the original contract and transfer of the property. Such exercise of ownership by selling ]*art of the property was, in the case of Chaplin v. Rogers, 1 East, 192, held a suflScienf delivery to take the case out of the statute. And the case of Elmore v. Stone, 1 Taunt. Rep. 457, is much stronger on this point. It was there held that an agreement between the parties that the vendor should keep the horses sold for the vendee at livery was suf- ficient to vest the property in the buyer without any written contract or earnest paid. The opinion of the court upon this point renders it unnecessary to notice the other question made in the case. The plaintiff must accordingly have judgment upon the verdict for 8311.03. Judgment for the 2^^''.int!ff. MILLS AND Others v. HUNT. New Yoek Court of Errors, December Term, 1838. [Reported in 20 Wenddl, 431.] Error from the Supreme Court. Hunt brought an action in the New York Common Pleas for the non-deliveiy of goods purchased by him at a sale by the defendants as auctioneers ; the terms of sale were approved indorsed paper at six months for sums over $100, and under that amount cash without discount. The plaintiff purchased five parcels, which were separately struck off to him and amounted together to the sum of 6224.40. A bill of parcels was delivered to the plaintiff, headed, "L. J. Hunt, bought of Mills, Brothers & Co.," the latter being the name of the defendant's firm ; and he was directed to call on the owners for the goods, which were not present at the sale, but were sold by sample. He accordingly called on one of the owners and received four of the parcels, but not receiving the fifth he proceeded to the counting house of the defendants, and tendered to a clerk there an indorsed note for the amount of his bids, and demanded the goods pur- chased by him, telling him at the same time that if he did not like the note he would give him the money, deducting the discount. The clerk answered that " he knew nothine: and said nothing." All this was in the presence and hearing of one of the defendants ; and the clerk when subsequently called by the defendants as a witness testified that they expected difticulty and trouble with the ])laintifl' about the goods, and had determined to say nothing about the matter because they apprehended a lawsuit. It appeared on the trial that the goods 286 MILLS V. HUNT. " [CHAP. I. did not belong to the defendants, and that in the sale they acted merely as agents; but nothing on that subject was stated at the time of the sale. The plaintiff proved the value of the fifth parcel and rested. The defendants' counsel moved for a nonsuit on the grounds : 1. That the contract was void within the Statute of Frauds ; 2. That the tender of the note was not sufficient ; ^ 3. That the action wOixld not lie against the defendants, they having acted merely as agents, the principals being known ; and, 4. That there was no proof of damage. The presiding judge denied the motion for a nonsuit [ruling among other things that the whole must be considered as an entire sale '^~\ ; and the jury under his charge found a verdict for the plaintiff, on which judgment was entered. The defendants removed the record into the Supreme Court, where the judgment was affirmed. See opinion deliv- ered in Supreme Court, 17 Wendell, 335, et seq.^ Whereupon the 1 The arguments and decision upon this point are omitted. — Ed. ■i See 17 Wend. 334. — Ed. ^ By the court, Nklson, C. J. The material question in the case is, whether there was a partial delivery of the goods to the plaintiff, so as to take the sale out of the operation of the Statute of Frauds. It is not important to inquire whether the bill of parcels constituted a sufficient note or memorandum in writing, as the court below put the right of recovery in respect to this objection upon a partial delivery alone. If the ground that a note was made by the auctioneer at the time of the sale suffi- cient to take the case out of the statute had been taken at the trial, probably the defendants might have varied the facts so as to have removed it. The argument of the counsel therefore on this point must be laid out of view. The defendants are to be regarded as the owners of all the goods sold to the plain- tiff, for the purpose of deciding the question stated. They so held themselves out by the catalogues, and nothing transpired at the sale varying the legal effect of such con- duct. Honest dealing requires the auctioneer to disclose in his catalogue or other- wise the names of his principals, if he does not intend to take their places in respect to the purchasers ; otherwise he would be enabled to speculate upon them by thrust- ing between him and them an irresponsible owner in every case of an unprofitable sale. This, however, is a point not to be discussed ; the principle has been so long settled, and is so frequently applied in the dealings of mankind, as to be familiar to every lawyer. Assuming then that the goods are to be viewed as belonging to the defendants, and the sale of all of them having been made at one time, has there been a partial delivery which takes it out of the statute V The question must be answered in the affirmative, unless we are prepared to say that each bid at an auction, at which a lot of goods is knocked down, constitutes a separate and distinct contract and sale ; and which to be consistent, if conceded, would necessarily compel us to say that in the purchase of a quantity of goods at a private sale a separate and distinct contract exists in respect to each article within the Statute of Frauds, where a separate price has been agreed upon, though the whole parcel was purcliased at one time. Tliere is no legal or sensible distinction in this respect between a public and private sale, and the same rule of construction should be applied to each. Tlie question has been considered and decided in the Enghsh courts ; and without their authority we do not see how a doubt could be entertained, whether we regard the intent and understanding of the parties or the meaning and policy of the Statute of Frauds. Where the purchase is made at one time and from the same individual, however numerous the articles may be, the whole transaction should be deemed as constituting an entire contract, and the prices of the different articles fixed upon as SECT. IV,] MILLS V. HUNT. 287 defendants sued out a writ of error, removing the record into tliis court, where tlie case was argued by 7\ Sedf/unc/i, Jr., for the i)hxintiffs in error ; J. H. Whiting, for the defendant in error. Points for phiintiffs in error : — 1. The plaintiffs in error in this cause were mere agents for the sale of the property, and had nothing to do with its delivery. 2. The })urchase of each article struck off was a distinct contract. 2 Rev. Sts. 70, 2d ed. Simon v. Motivos, 1 W. Black. K. GOO ; Rugg v. Minett, 11 East, 210 ; Emmerson v. Heelis, 2 Taunt. 38. 3. At all events the contracts were distinct in regard to the different owners. 4. Whether this be so or not, the delivery of a part by one owner could not bind the auctioneer as to the part not delivered by another owner ; the delivery not being in any respect a part execution of the alleged entire contract of sale. 5. The memorandum or bill of sale is not sufficient to take the case out of the Statute of Frauds. Hicksv.Whitmore, 12 Wendell, 548. . . . Points for defendant in error : — 1. The auctioneers not having disclosed their agency maybe treated as jirincipals. Hanson v. Roberdeau, Peake's N. P. C. 120. but part and parcel of it. To adopt any otlier construction of sucli a purchase would be a virtual repeal of the statute for all useful or practical purposes in a large amount of sales to which it has been understood as applying. In the case of Baldey v. Par- ker, 2 Barn. & Cress. 37, the defendant sold various articles to the plaintiff, and a sep- arate price was agreed upon in respect to each, and no one article was of the value of £10. The defendant desired an account of the whole to be made out and sent to his house, which was done accordingly ; the amount of the goods was X70. He objected to the amount when presented on account of the smallnes^ of the discount for cash, and refused to receive the goods when tendered to him. The Chief Justice at the trial tliought it was a contract for goods for more than the value of £10 within the meaning of tlie Statute of Frauds, but allowed the plaintiff to move to enter a ver- dict for £70. The case was afterwards moved, but the whole court concurred in the opinion expressed at nisi prius. Holroyd, J., observes that at first it appeared to have been a contract for goods of loss value than .£10, but in the course of the dealing it grew to a contract of a much larger amount ; at last therefore it was one entire con- tract within the meaning and the mischief of the Statute of Frauds, — it being the intention of that statute that, where the contract either at the commencement or at the conclusion amounted to or exceeded the value of £10, it should not bind unless the requisites there mentioned were complied with. A somewhat different opinion was expressed by Lord EUenborough at nisi jnius, in the case of Hodgson i'. Le Bret, 1 Campb. 233 ; but this case was referred to in Baldey v. Parker, and so far disre- garded. The case of Emmerson i'. Heelis, j2 Taunt. 38, was also relied on, but dis- tinguished from the one under consideration. See opinion of Best, J., p. 45. If the sale and purchase of all the articles at the same time, though for distinct prices, is to be considered as constituting but one entire contract, then it is clear the case is taken out of the statute, as a portion of the articles were delivered in pursuance of the direction of the defendants. We need not cite cases to show that a part delivery is suflBcient under such circumstances. . . . Judyment affirmed. — Ed. 288 MILLS V. HUNT. [CHAP. I. 2. The sale, although in parcels on distinct biddings, is to be treated as one sale. Baldey v. Parker, 2 Barn. & Cress. 37. 3. The delivery of the bill of parcels with the partial delivery of the goods, takes the case out of the Statute of Fi-auds. Descard v. Bond, Stark. Ev. 610, pt. 4, note (k) ; 2 Rev. Sts. 70, § 3. . . . After advisement the following opinions were, delivered : — By the Chancellor. The sale of the several articles in this case was made by Mills, Brothers & Co. ; and the bill of jjarcels made out in their copartnership name without disclosing the fact that they were acting as the agents for others. The mere fact that they were auction- eers was not sufficient notice to the purchaser that they were not sell- ing their own goods. Jones v. Littledale, 1 Nev. & Perry's R. 677. In the case of Magee v. Atkinson, 2 Mees. & Wels. R. 440, where the broker had sent in a note of the sale to the purchaser in his own name, it was held that evidence of a custom in Liverpool to send in brokers' notes without disclosing the name of the principal could not be received for the purpose of protecting the broker from personal liabil- ity. At this day the law must be considered as settled that a vendor or purchaser dealing in his own name without disclosing the name of his pi'incipal, is personally bound by his contract ; and it makes no dif- ference that he is known to the other party to be an auctioneer or broker who is usually employed in selling proj^erty as the agent for others. Even where he discloses the name of his princijial, if he signs a written contract in his own name merely, which contract does not upon its flice show that he was acting as the agent of another or in an official capacity in behalf of the government, he will be personally bound thereby. The bill of parcels which was delivered in this case, although it does not upon its face contain the necessary requisites to take the case out of the Statiite of Frauds as a written contract for the sale and delivery of the goods, is still to be regarded as evidence that the several articles purchased by Hunt at the same auction sale, though in different bids and upon different catalogues, were considered by the vendors as embracing one contract, and upon which the vendee was entitled to credit for six months, as the whole amount of his purchases at that sale exceeded 8100. He was in the situation of a purchaser who goes to a store and buys different articles at separate prices for each article, under an agreement for a credit of six months upon approved paper for the aggregate amount of such sales ; in which case there can be no doubt that a delivery of a part of the articles so purchased, without any objection at the time as to the delivery of the residue, is sufficient to take the case out of the Statute of Frauds as to the whole goods so purchased. Slubey v. Heyward, 2 H. Black. 509 ; Baldey v. Parker, 3 Dowl. & Ryl. 222; Elliott v. Thomas, 3 Mees. & Wels. 170. The case would be different where the purchaser, either at a jDublic or pri- SECT. IV.] MILLS V. HUNT. 289 vate sale, paid for and took a delivery of some of the separate articles only, leaving the residue undelivered and wholly unpaid for; or Avhere several articles were purchased at the same time to be paid for on delivery, and the purchaser afterwards received and paid for some of the separate articles only. Morton's Law of Vend. 59. The nisi prius decision of Lord Ellenborough in Hodgson v. Le Bret, 1 Campb. K. 233, conflicts with the subsequent decision of the Court of King's Bench in Baldey v. Parker ; and it was distinctly oveiTuled by the Court of Exchequer in the more recent case of Elliott v. Thomas. The delivery in the j^resent case was a delivery of four out of the five par- cels from the entire bill, and the only reason why the fifth parcel was not then delivered was because it was not on the cataloacue of the ao-ent Avho made the delivery of the residue ; but there was no intimation at the time that the auctioneers intended to deliver this part of the goods only. The subsequent refusal to deliver the fifth parcel was therefore a breach of the contract on their part, for Avhich the purchaser was entitled to a remuneration in damao:es. . . . Upon the whole there is no reason to doubt the correctness of the decisions of the courts below upon all the questions raised in this case. I think the judgment should therefore be affirmed ; and in my opinion it is a proper case for double costs, to compensate the defendant in error for the extra costs to which he has been subjected by this unrea- sonable litigation. By Senatok Edwakds. I am for affirming the judgment of the SuiDreme Court for the following reasons : — 1. The auctioneers, not having disclosed their agency and made known their principals, must be held personally responsible. 2. The property having been sold to the same individual at the same sale and under the same terms, though in separate parcels and for difierent prices, was virtually a sale under one contract (Baldey v. Par- ker, 9 Com. Law R. 16) ; and therefore a deliveiy of part of the goods was sufficient to take the case out of the Statute of Frauds. 2 Starkie on Ev. 610 ; 2 Rev. Sts. 70, § 3. . . . Upon the question being put. Shall this judgment be reversed? all the members of the court decided in the negative. Whereupon the judgment of the Supreme Court was unanimously affii-med.'^ 1 " Where at an auction tlie same person buys several successive lots as they are offered, a distinct contract arises for each lot; and the decision to this effect in Emmer- son V. Ileelis, 2 Taunt. 88, was not questioned in Baldey v. Parker, 2 B. & Cr. 37." Benj. on Sale, 102. And see Leake on Contracts, 140, ace. See Field v. Runk, 2 Zabr. 525. — Ed. VOL. I. 19 290 8HINDLER V. HOUSTON. [CHAP. I. SHINDLER V. HOUSTON. New York Court of Appeals, April Term, 1848. [Reported in 1 Comstock, 261.] On Error fi*om the Supreme Court. Houston sued Shindler in the Justices' Court of the city of Troy in assumpsit for the price of a quantity of himber. The plaintiff having recovered, the defendant appealed to the Mayor's Court of that city, and on the trial in that court the case was this: The plaintiff was the owner of about 2070 feet of curled maple plank and scantling, which he had brought to Troy in a boat, and which after being inspected and measured was piled on the dock apart from any other lumber. Soon after this the plaintiff and defendant met at the place where the lumber lay. The plaintiff said to the defendant, "What will you give for the plank ? " The defendant said he would give three cents a foot. The plaintiff then asked, " What will you give for the scantling ? " The defendant replied one and a half cents a foot. The plaintiff then said, " The lumber is yours." The defendant then told the plain- tiff to get the insjjector's bill of it and cany it to Mr. House, who woiild pay it. The next day the plaintiff having procured the ins2:)ec- tor's bill jiresented it to House, who refused to pay it on the ground that the instructions he had received from the defendant did not cor- respond with the plaintiff's statement of the conti'act. There was no note or memorandum of the contract in writing, nor was there any evi- dence of a delivery or acceptance of the lumber except as above stated. At the prices agreed on the lumber came to $52.51, no part of which was ever paid. The Mayor's Court instructed the jury that if they were satisfied that it was the intention of the j^arties to consider the lumber delivered at the time of the bargain, and that nothing further was agreed or contemplated to be done in order to change the title in or possession of the lumber, the plaintiff was entitled to recover ; that the sale was not within the Statute of Frauds, and did not require any note or memorandum in writing, provided they should find from the evidence that there was a delivery and acceptance of the lumber at the time of the bargain. The defendant excepted, and the jury found a verdict for the plaintiff, on which judgment was rendered in his favor. The Supreme Court, on writ of error to the Mayor's Court, affirmed the judgment (see 1 Denio, 48), and the defendant brings Error to this court. JV. Hill, Jr., for plaintiff in error, insisted that the sale was within the Statute of Frauds requiring a note in writing. There was no acceptance or receipt of the lumber by the vendee within the intent SECT. IV.] SHINDLER V. HOUSTON. 291 and meaninsT of the statute. To take the ease out of the statute there must be something more than would be sufficient to change the prop- erty at common law, — something more than would be sufficient to constitute a delivery at common law. There should be (1) a bargain intended to change the right of property. This is the act of both par- ties. (2) A delivery of the property and the actual possession to the vendee, discharged of all lien for the purchase-money. This is the act of the seller. (3) An acceptance and receipt of the entire property and actual possession of some part of the goods as absolute owner, discharged of all lien. These are the acts of the buyer. There was nothing i>roved in this case but the bargain. 3 Bos. & Puller, 233 ; 6 Barn. & Cress. 351 ; Ch. on Cont. 389, 390 ; 3 Dowl. & Ryl. 220,822; 2 Barn. & Cress. 37 ; 3 Johns. 399; 10 Bing. 101, 376; 5 Barn. & Cress. 857 ; 3 Barn. & Aid. 321, 680 ; 5 Do. 559 ; 4 Mees. & W. 155 ; 1 Dowl. & Ryl. 128 ; 22 Wend. 659; 1 Carr. & Payne, 272; 3 Barn. & Cress. 1; 2 Carr. & Payne, 532 ; 4 Maule & Sel. 262 ; 9 Barn. & Cress. 591; 7 T. Rep. 15, 17; 1 C. & M. 333; 6 Wend. 400; 11 Johns. 284. J. A. Spencer and D. Willard, for defendant in error, cited Bates V. Conkling, 10 Wend. 389 ; ChapHn v. Rogers, 1 East, 192 ; Jewett V. Warren, 12 Mass. 300 ; 2 Kent, Comm. 500, 501 (4th ed.). Gardiner, J. As no part of the purchase-money was paid by the vendee, the contract above stated was void by the Statute of Frauds (2 R. S. 136, § 3, subd. 3), unless the buyer "accepted and received" the whole or a part of the property sold. The object of the statute was not only to guard against the dis- honesty of parties and the perjury of witnesses, but against the naisunderstanding and mistakes of honest men. If the contract is reduced to writing and " subscribed by the parties to be charged thereby," this object is effiictually attained. The writing becomes its own interpreter. Where this is omitted, but the vendee has paid part of the price, or the vendor has delivered and the buyer has accepted a portion or all of the property upon the strength of the agreement, these acts not only indicate deliberation and confidence upon the part of the contractors, but they furnish unequivocal evidence of the existence of a contract of some sort between them, although its terms and provisions must after all depend upon the recollection of witnesses. The case before us is destitute of all such collateral evidence. No acts of the party sought to be charged are proved. We are presented with a naked verbal agreement. The declarations relied upon as evidence of a delivery and acceptance constitute a part of the contract, and of course are obnoxious to all the evils and every objec- tion against which it was the policy of the law to provide. The acts of part payment, of delivery and acceptance mentioned in 292 SHINDLER V. HOUSTON. [CHAP. I. the statute are something over and beyond the agreement of which they are a part performance, and which they assume as already existing. The entire absence of such evidence distinguishes the present case from all those that have been cited by the counsel for the plaintiiF in support of this action, Chaplin v. Rogers, 1 East, 192 ; Jewett v. Warren, 12 Mass. 300 ; Riddle v. Varnum, 20 Pick. 280 ; 10 Wend. 391 ; 2 Kent, Comm. (4th ed.) 500, 501. The strong case, from the Pandects, of the column of granite is not an excep- tion; for it is fairly to be inferred that the consent of the vendor that the purchaser should take possession was subsequent to the sale. I am aware that there are cases in which it has been adjudged that, where the articles sold are ponderous, a symbolical or constructive delivery will be equivalent in its legal effect to an actual delivery. The delivery of a key of a warehouse in which goods sold are deposited furnishes an example of this kind. But to aid the plaintiff an authority must be shewn that a stipulation in the contract of the sale for the delivery of the key or other indicia of possession, will con- stitute a deliveiy and acceptance Avithin the statute. No such case can be found. The entire contract being void by the statute, the stipulation in reference to a constructive delivery would fell with the other provisions. In Phillips v. Bistolli, 2 B. & C. 511, the property was sold by an auctioneer and delivered to the purchaser, who after detaining it three or four minutes handed it back, saying he was mis- taken as to the price. The vendor refused to receive the property, and the jury found that the excuse was false in fact. The verdict was set aside ; the court saying that to satisfy the statute there must be a delivery by the vendor with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter *vith the intent of taking possession as owner. This I apprehend is the correct rule, and it is obvious that it can only be satisfied by something done subsequent to the sale unequivo- cally indicating the mutual intentions of the parties. Mere words are not sufficient. 3 Johns. 421. Declarations accompanying an act and explanatory of it are undoubtedly admissible evidence as a part of the res gestce. This is all that is established by the modern authorities. 12 Mass. 301 ; 1 Dallas, 171 ; 2 Barn. & Cress. 44 ; 3 J. R. 421. In a word, the statute of fraudulent conveyances and contracts pro- nounced this agreement when made void, unless the buyer should " accept and receive some part of the goods." The language is unequivocal and demands the action of both parties ; for acceptance implies delivery, and there can be no complete delivery without acceptance. The defendant however said nothing and did nothing subsequent to the agreement, except through his agent to repudiate the contract. There was consequently no evidence of a deUvery. SECT. IV.] SHINDLER V. HOUSTON. 293 I think therefore the learned Recorder erred iu submittinfr that question to the jury, and that the judgment of the Supreme Court should be reversed. The Statute of Frauds has been pronounced by high authority (Kent's Comm. 2 V. 494:) to be in many respects the most comjjre- . hensive, salutary, and im}jortant legislative regulation on record affecting the security of private rights. Its benefits it is believed will be most effectually secured by rejecting refined distinctions, over- looking the supposed equity of particular cases, and adhering steadily to its language as the best exponent of the intention of the Legis- lature. Bkoxson, J. On a review and a more full consideration of the case I am satisfied that I was in an error in assenting to the judgment which was rendei-ed by the Supreme Court. If we assume that the sale was in all other resi)ects complete, the difficulty still remains that there w^as no deliverj^ of the goods. Nothing was done. As was very justly remarked by the defendant's counsel, there was nothing but mere words; and the statute plainly requires something more; it calls for acts. Per Cowen, J., iu Archer t'. Zeh, 5 Hill, 205. A Avriting must be made, part of the purchase-money must be paid, or the buyer must accept and receive part of the goods. Mere words of contract, unaccompjuiied by any act, cannot amount to a delivery. To hold otherwise would be repealing the statute. There may be a deliver)' without handling the property or changing its position. But that is only where the seller does an act by which he relinquishes his dominion over the property and puts it in the power of the buyer; as by delivering the key of the warehouse in which the goods are deposited, or directing a bailee of the goods to deliver them to the buyer, with the assent of the bailee to hold the property for the new owner. In such case there is, in addition to the words of bargain, an act by which the dominion over the goods is transferred from the seller to the buyer. Here there was no delivery either actual or symbolical. I shall not review the cases on this subject further than to notice those supposed to favor the i)laintiff. In Chaplin v. Rogers, 1 East, 192, the buyer had re-sold the property and his vendee had carried it away. The court held that there was sufficient evidence to carry the cause to the jury on the question of delivery to and acceptance by the first purchaser. Bates v. Conkling, 10 Wend. 389, was a writ of error; and the question of delivery did not arise, because as the Chief Justice remarked the point was not made in the court below, whei'C it might have been obviated by testimony. It w^as also suggested at the bar in answer to this case that the question arose upon a contract for work and labor rather than a contract of sale. But it would be difficult to maintain that doctrine. Downs v. Ross, 23 Wend. 270. It is enough 294 SHINDLER V. HOUSTON. [CHAP. I. however that what was said in Bates v. Conkling about the delivery of cumbersome articles was but a dictum, and not upon the point in judgment. In Jewett v. Warren, 12 Mass. 300, where logs in a boom were sold, there was a bill of parcels ; and no question upon the Statute of Frauds either was or could be made. The question was whether there had been a sufficient delivery to constitute the logs a . valid pledge. We have not been refen-ed to any modern case, nor have I met with any which will uphold this judgment. It is undoubt- edly true that it Avill not always be easy to make an actual delivery of bulky and ponderous articles. But there are other ways of satisfying the Statute of Frauds. The parties may put their agreement in AVi-iting, or the buyer may pay the whole or some part of the purchase- money. I am of opinion that the judgments of the Supreme Court and the Mayor's Court should be reversed, and a venire de novo be awarded. Wright, J. There being no note or memorandum made in writing of the contract or earnest paid, this is a case within the Statute of Frauds, unless there was an acceptance and receipt of the whole or a part of the property by the buyer. 2 Rev. Sts. 136, § 3. If there was an acceptance shewn sufficient to take the case out of the operation of the statute, it was of all the lumber, as it is not pretended that the entire property vested in the vendee by the acceptance and receipt of a part thereof The question therefore for consideration upon the facts proved is, whether there was an acceptance and receipt of the lumber by Shind- ler the vendee within the intent and meaning of the statute. It is to be regretted that the plain meaning of the statute should ever have been departed from, and that any thing short of an actual delivery and acceptance should have been regarded as satisfying its requirements when the memorandum was omitted ; but another rule of interpretation which admits of a constructive or symbolical delivery has become'too firmly established now to be shaken. The uniform doc- trine of the cases however has been that in order to satisfy the statute there must be something more than mere words ; that the act of accept- ing and receiving required to dispense with a note in Avriting implies more than a simple act of the mind, unless the decision in Elmore V. Stone, 1 Taunt. 458, is an exception. This case however will be found upon examination to be in accordance with other cases, although the acts and circumstances relied upon to shew a delivery and accept- ance were extremely slight and equivocal; and hence the .case Avas doubted in Howe v. Palmer, 3 Barn. & Aid. 324, and Proctor v. Jones, 2 Carr. & Payne, 534, and has been virtually overruled by subsequent decisions. Far as the doctrine of constructive delivery has been sometimes carried, I have been unable to find any case that comes up to dispensing with all acts of parties, and rests wholly upon the memory of witnesses as to the precise form of words to shew a delivery SECT. IV.] SHINDLER V. HOUSTON. 295 and receipt of the goods. The learned autlior of the Commentaries on American Law cites from the Pandects the doctrine that the consent of the party upon the spot is sufficient possession of a cohimn of gran- ite, which by its weight and magnitude was not susceptible of any other delivery. But so far as this citation may be in opposition to the general current of decisions in the common law courts of England and of this country, it is sufficient i)erhaps to observe that the Roman law has nothing: in it analocrous to our Statute of Frauds. In Elmore V. Stone expense was incurred by direction of the buyer, and tlie ven- dor at his suggestion removed the horses out of his sale stable into another, and kept them at livery for him. In Chaplin v. Rogers, 1 East, 192, to which we were referred on the argument, the buyer sold part of the hay, which the purchaser had taken away ; thus dealing with it as if it were in his actual possession. In the case of Jewett v. Warren, 12 Mass. R. 300, to which we were also referred, no question of deliv- ery imder the Statute of Frauds arose. The sale was not an absolute one, but a pledge of the property. The cases of Elmore v. Stone and Chaplin u. Rogers are the most barren of acts indicating delivery, but these are not authority for the doctrine that words unaccompanied by acts of the parties are sufficient to satisfy the statute. Indeed if any case could be shown which proceeds to that extent, and this court should be inclined to follow it, for all beneficial purposes the law might as well be stricken from our statute-book ; for it was this species of evidence, so vague and unsatisfictory, and so fruitful of frauds and per- juries, that the Legislature aimed to repudiate. So far as I have been able to look into the numerous cases that have arisen under the statute, the controlling ])rinciple to be deduced from them is, that when the memorandum is dispensed with the statute is not satisfied with any thing but ixnequivocal acts of the parties; not mere words that are liable to be misunderstood and misconstrued, and dwell only in the imperfect memory of witnesses. The question has been, not whether the Avords used were sufficiently sti'ong to exjiress the intent of the parties, but Avhether the acts connected Avith them, both of seller and buyer, were equivocal or unequivocal. The best considered cases hold that there must be a vesting of the possession of the goods in the ven- dee as absolute owner, discharged' of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the prop- erty by the vendee, so unequivocal that he shall have precluded himself from taking any objection to the (juautuni or quality of the goods sold. Chitty on Contracts, 390, and cases cited ; Hilliard on Sales, 135, and cases cited ; 10 Bing. 102, 384. But Avill proof of words alone shew a delivery and acceptance from which consequences like these may be reasonably inferred, — especially if those words relate not to the ques- tion of delivery and acceptance, but to the contract itself? A. and B. verbally contract for the sale of chattels for ready money ; and without 296 SHINDLER V. HOUSTON. [CHAP. I. the payment of any part thereof A. says, " I deliver the property to you," or " It is yours," but there are no acts shewing a change of pos- session or from which the fact may be inferred. B. refuses payment. Is the right of the vendor to retain possession as a lien for the price gone? Or in the event of a subsequent discovery of a defect in the quantum or quality of the goods, has B., in the absence of all acts on his part shewing an ultimate acceptance of the possession, concluded himself from taking any objection? I think not. As Justice Cowen remarks in the case of Archer v. Zeh, 5 Hill, 205, " One object of the statute was to prevent perjury. The method taken was to have some- thino- done, not to rest every thing on mere oral agreement." The acts of the parties must be of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer. This is the doctrine of those cases that have earned the prin- ciple of constructive delivery to the ixtmost limit. Thus in Seai'le V. Keeves, 2 Esp. R. 598, a case which arose at a period when the English courts were more inclined than recently to allow of a con- structive delivery and acceptance, where a wiitten order was given by the seller of goods to the buyer, directing the person in whose care the goods were to deliver them, which order w^as presented by the buyer, it was held that there was sufficient delivery within the statute. So also in Hollingsworth v. Napier, 3 Caines R. 182, where the vendor delivered to his vendee a bill of parcels for goods lying in a public Btore, together with an order on the storekeeper for their delivery, and the vendee upon delivering the order demanded the goods, which were turned out to him, and he paid the amount of the storage, marked the bales with his initials, and returned them to the custody of the store- keeper, it was held that the statute Avas satisfied. But in cases like these it would seem now to be necessary that the party having the custody of the goods, and who is the agent of the vendor, should recog- nize the order given to the purchaser, and assent to retain the goods for him. A delivery to the vendee of the key of the w\arehouse in which the goods are lodged, or other indicia of property, where goods are ponderous and incapable of being handed over from one to another, was said by Lord Kenyon in Chaplin v. Rogers, 1 East, 194, to be tantamount to an actual delivery. In Dodsley v. Varley, 12 Adol. & Elhs, 632, which was an action of assumpsit for wool bargained and sold, the court said : " We think that upon the evidence the place to which the wool was removed may be considered as the defendant's warehouse, and that he was in actual possession of it as soon as it was weio-hed and packed." In these cases, and in a large number of others that might be cited, the circumstances were unequivocal to shew not merely a delivery to and acceptance of the property in the goods, but, what is always essential, a complete acceptance of the possession by the buyer. The fects were more or less strong in the several cases, but the SECT. IV.] SHINDLER V. HOUSTON. 297 acts of the parties can scarcely be reconciled with any other presump- tion. On the other hand, where the acts of the buyer are equivocal, and do not lead irresistibly to the conclusion that there has been a transfer and acceptance of the possession, the cases qualify the inference to be drawn from them, and hold the contract to be within the statute. In Baldey v. Parker, 2 B. & C. 37, A. purchased of B., a trader, several articles amounting in the whole to £70. A. marked with a pencil some of the articles, saAV others marked, and helped to cut off others. He then requested that a bill of the goods might be sent to him, which was done, together with the goods ; but he declined to accept them. It was held that there Avas no delivery and acceptance to take the case out of the statute; and Lord C. J. Abl)ott,in speaking of the exception in the statute, justly remarked that " it Avould be difficult to find words more distinctly denoting an actual transfer of the article from the seller, and an actual taking possession of it by the buyer." In Carter V. Toussaint, 5 Barn. & Aid. 855, the circumstances were that a horse was sold by verbal contract, but no time fixed for the payment of the price. The horse was to remain with the vendor for twenty days without charge to the vendee. At the expiration of that time he was sent to grass by order of the vendee, and entered as one of the vendor's horses. The court held that there was no acceptance of the horse by the vendee within the meaning of the statute. In Tempest v. Fitz- gerald, 3 Barn. & Aid. 680, A. agreed to purchase a horse from B. for cash, and take him away within a certain time. About the expiration of that time A. rode the horse and gave directions as to his treatment, &c., but requested that he might remain in the possession of B. for a further time, at the expiration of which time he promised to take and pay for the horse, to which B. assented. The horse died before A. paid the price or took it away. It was held that there was no sufficient acceptance of the horse to render the vendee liable for the price. In Howe V. Palmer, 3 Barn. & Aid. 321, a vendee ])ublicly agreed at a public market, with the agent of the vendor, to purchase twelve bushels of tares (then in the vendor's possession, constituting part of a larger quantity in bulk) to remain in the vendor's possession until called for. Tlxe agent on his return home measured and set apart the twelve bushels. It was held that in this case there had been no acceptance, and the action would not lie. In Kent v. Huskinson, 3 B. & P. 233, A, verbally ordered from B. a bale of sponge, which was sent. The bale was opened and examined, and the sponge returned by A., who at the same time wrote a letter to B. stating that he disa])proved thereof It was held that A. had not accepted the goods. In Proctor v. Jones, 2 Car. & P. 532, it was said that the marking of casks of wine, sold by parol and lying at the London docks, with the initials of the purchaser at his request and in his presence, was not a sufficient acceptance 298 SHINDLER V. HOUSTON. [CHAP. I. within the statute, at least if the time of payment had not, when the casks were so marked, been fixed. In Bailey v. Ogden, 3 John. R. 399, an agreement with the vendor, on a parol contract for the sale of goods, about the storage of the goods, and the delivery by him of the expoi't entry to the agent of the vendee, were held not to be sufficiently certain to amount to a constructive delivery or to aiford an indicium of ownership. Other comparatively recent English and American . cases might be cited, shewing, as has been said by Mr. Justice Cole- ridge, that "the tenor of modern "decisions is to give to the words of the statute their fullest effect, and not to allow, so far as it is possible, of any constructive deliveries and acceptances." I think I may affirm with safety that the doctrine is now clearly settled that there must not only be a delivery by the seller, but an ultimate acceptance of the possession of the goods by the buyer, and that this delivery and acceptance can only be evinced by unequivocal acts independent of the proof of the contract. But if the principles to be deduced from the recent decisions were otherwise, I should not be disposed, in the face of the plain and obvious meaning of the statute, to follow them. The Statute of Frauds of 29 Car. 2 (and it is in substance re-enacted in this State) was justly pronounced nearly half a century since, by an eminent British judge, " one of the wisest laws in the statute-book." Its provisions apply with singular wisdom and benefi- cence " to the daily contracts and practical affiiirs of mankind," relieving them of vagueness and uncertainty, and checking to some extent " the restless and reckless spirit of litigation." Whilst this meritorious law is in the statute-book it is our business to enforce it in good faith, and according to its plain letter and spirit, without studying to fritter away its vitality in the attempt to uphold contracts which by its provisions are clearly void. I am of the opinion that the judgment of the Supreme Court should be reversed. RuGGLES, JoxES, and Johnson, JJ., concurred, Jewett, C. J., and Gray, J., delivered opinions in favor of affirming the judgment. Judgment reversed. SECT. IV.] SEYMOUR V. DAVIS. 299 H. F. & L. SEYMOUR v. DAVIS. Superior Court of the City op New York, November 8, 9, and December 16, 1848. [Reported in 2 Sandford, 239.] Assumpsit for the price of one liimclred barrels of cider, delivered by the plaintiffs to the defendant on or about March 25th, 1847. At the trial before Sandford, J., in April last, the plaintiffs, who resided at Hartford, Connecticut, proved the deliveiy of the cider to the defend- ant in New York, and that the latter was to pay four dollars per barrel in a note at sixty days. The defendant then proved that in November, 184G, a verbal agree- ment was made between him and the plaintiffs by which they agreed to deliver to him in New York from five to eight hundred barrels of cider during the fall and spring following, of the best quality, in chest- nut barrels, at such times and in such quantities or shipments as the plaintiffs could make it convenient to send, for which the defendant agreed to pay four dollars per barrel by remitting to the plaintiffs his indorsed note at sixty days for the amount of each shipment as the same should be received by him. The business of the plaintiffs at the time of these transactions was buying cider of farmers who made it, and refining and selling it. They delivered several parcels of cider to the defendant after making the agreement and prior to the delivery of that in question, for each of which he gave the indorsed note stipulated in the agreement. The quantity of no one of these previous deliveries was shown, nor the aggregate quantity. The notice attached to the defendant's plea claimed that 280 barrels in all had been delivered under the con- tract. The defendant offered evidence to prove that part of the -cider delivered before the receipt of the hundred barrels in question turned out to be a bad article, becoming thick and milky and having a bad smell ; and that he could not sell a part of it by reason of such defect of quality, and lost the price of other ])arts of it which he had sold. The defendant claimed to recoup his damages sustained by reason of the bad cider so delivered to him prior to March, by having the same deducted from or applied to extinguish the price of the one hundred barrels in question. The plaintiffs objected to the evidence, and the judge excluded it. The defendant then gave evidence to show that the hundred barrels was in part defective, and that he sustained damages thereby. The judge instructed the jury that the plaintiffs were entitled to recover 300 SEYMOUR V. DAVIS. [CHAP. I. the actual value of the one hundred barrels of cider at the time it was delivered. The jury rendered a verdict for the plaintiffs for $316.50. The defendant moves for a new trial on a bill of exceptions. C D. and G. JOaioton^ for the defendant. J. H. Raymond^ for the plaintiffs. By the Court. Sandford, J. The defendant makes a point that the cider contracted to be delivered was not susceptible of de- livery at the time the contract was made, but was to be bought of farmers by the plaintiffs, and prepared for market by refining it, &c. ; and therefore the as^reement was one for work and labor, and. not within the Statute of Frauds. The law is perfectly well settled, both here and in England, that this was a contract for the sale of goods. Downs u. Ross, 23 Wend. 270 ; Garbutt y. Watson, 5 B. & Aid. 613. There is no doubt that the agreement in question was void by the statute. ' It was proved that the plaintifts proceeded to make deliveries of cider at several tlifferent times between November and April, all of which were paid for as delivered, except the hundred barrels for which this suit was brought, and. which were delivered, in March or early in April. There is no evidence showing what quantity was delivered on the several occasions prior to the last ; but it was not pretended that the entire quantity received by the defendant was equal to the smallest quantity specified in the contract of sale. The notice attached to the defendant's plea states that 280 barrels were delivered in the whole, and the proof falling short of establishing that quantity it is safe to assume that not more than half of the smallest quantity contracted for was ever forwarded by the plaintiffs. On the proof given the defendant contends, first, that the delivery and acceptance of these several lots or portions of the cider took the contract out of the statute ; second, that whether originally void or not it has been per- formed by both parties without objection, and neither party can now avail himself of the statute to avoid any liability he may have incurred in that performance ; third, that the whole should be regarded as one transaction growing out of one contract, and any loss or damage the defendant may have sustained by defects in any part of the cider in any of the lots delivered ought to be allowed to him by way of recoupment against the price of the same or any other of the lots or parcels. 1. As to the defendant's first proposition. It is true that where an order for goods, or a contract for the sale of goods, embraces several distinct lots or parcels, and a part of the goods is delivered and accepted at the time of the sale, the contract is not within the statute. What will be deemed a cotemporary delivery it is foreign to our present purpose to inquire. Whenever the question has been presented on such a contract, the effort has been to establish that there were SECT. IV.] SEYMOUR V. DAVIS. 301 separate and flistinct sales of the respective parcels. If the court ascertained that it was a single sale, though consisting of several articles, it has been uniformly held that the statute did not apjjly where a part had been received and accepted. This was the ground of the decision in the most recent as well as the strongest case we have seen, Scott V. The Eastern Counties Railway Company, 12 Mees. & W. 33. There the contract was for lamps ; one of which, a very large and peculiar lamp, for a junction, was to be manufactured, and required a long time for its completion. All the others were delivered at or about the time of the contract. The acceptance of those was held to satisfy the Statute of Frauds as well as the Statute 9 Geo. IV. c. 14, § 7, ex- tending its provisions to contracts for goods subsequently to be made, because the whole formed one entire contract. The case of Vincent v. Germond, 11 Johns. 283, cited })y the defendant, does not decide that the acceptance of a part after the making of the contract Avill relieve it from the operation of the statute. It was decided that there was a sufficient delivery to take the case out of »the statute, meaning at the time of the sale. This is apparent from a careful examination of the case, which was submitted without argu- ment, and is very briefly stated by the reporter. When the sale was made, the four oxen were in the plaintifl''s clover-field, and he said he had had one or two injured by feeding there. The defendant said he would take them at his own risk, and Jthey must remain where they were till he completed his drove, Avhen he would take them away. A short time after he came and took away three of them, without saying any thing to the plaintiff. The fourth had died in the mean time from eating clover. The court said the taking them in this mode, with what occurred at the sale, warranted tlie inference of a delivery ; that the defendant dealt with the oxen as his own, and as if in his actual possession, in virtue of the original contract and transfer of the property. We can find no authority for saying that a parol agreement to deliver goods at a future time becomes valid as to the Avhole by the delivery of a portion at or subsequent to such time. It is stated in one approved treatise, as the result of the* decisions in England, that where the contract is to deUver goods in parts or parcels at different intervals, at a certain price for each part, although the contract may be void for want of writing as regards the executory part of it, yet the prices of the parts actually received are recoverable under a count for goods sold. Chitty on Cont. 396. We will not stop to inquire how far this is correct as to the price, or whether the recovery must not be on a quantum meruit. We need only say that no authority goes further than this, and this does not go far enough to sustam the defend- ant's position. In Mavor v. Pyne, 3 Bing. 285, where the agreement was for an 302 SEYMOUR V. DAVIS. [CHAP. I. illustrated publication, to be issued in twenty-four monthly numbers, at a guinea a number, and was void by the statute, it was held the pub- lisher could recover for the numbers actually delivered. The court said he could not recover on the original contract, but he was entitled to be paid for the numbers received by the defendant; that the parties meant each number was to be paid for as it came out, and the subscription was to be considered as a divisible contract. Chief Baron Hale in 1662 held that several deliveries made under an entire agreement, if severally accepted, made so many several con- tracts. Barker v. Sutton, 1 Campb. N. P. 55, note. And see to the same effect, Bowker v. Hoyt, 18 Pick. 555. Recurring to the agreement before us, it was for the delivery of from five to eight hundred barrels of cider during the ensuing five or six months, in such quantities or shipments as the sellers might find convenient, at the price of four dollars per barrel, to be paid for each shipment when received in an indorsed note at sixty days. There was no written evidence of the contract nor payment of any part of the price. There was no acceptance or receipt of the goods by the buyer ; and by its stipulations there Avas to be no delivery of any until an undefined future period. Now the statute declares such a contract to be absolutely void. It was undeniably void when it was made, and for the month or two intervening between that time and the first delivery of the cider. Did the acceptance of that first parcel breathe into this void contract the breath of life, and make it valid for the whole quantity of goods em- braced in it ? We cannot so regard the effect of such partial delivery. We think the contract, if void when it is made, can never become a valid agree- ment. Subsequent acts may establish a new contract of sale between the parties, either express or implied, and embodying more or less of the terms of the original arrangement ; but they cannot reanimate the previous void agreement. For each delivery of cider the sellers were entitled to be paid ; not by force of the void contract of sale, but by force of a new one, founded on the receipt and acceptance of the specified goods. If the delivery of the first parcel of cider established the entire agreement, it would follow that if the sellers had decHned to deliver any more the buyer could have sued them, and recovered damages for its breach ; and if the buyer had refused to receive the residue of the five hundred barrels, the sellersL could have enforced the sale by action against him. These are necessary and inevitable consequences resulting from the effect claimed to be given to the acceptance of a part of the cider under this once void agreement ; for it cannot be revived partially by such an act. It is entire and valid or it is all alike null and inoperative. The defendant's counsel were unwilling to SECT. IV.] SEYMOUR V. DAVIS. 303 maintain that such an acceptance of a part would enable either party to enforce the agreement as to the residue ; but we think tliis position must be maintained, or the whole argument fails. Our view of the law is, that the agreement made between the par- ties in November was void, and Avas never capable of being enforced by either party; that the delivery and acceptance of the several shipments of cider, forwarded under the agreement or in consequence of it, made so many several and distinct contracts of sale, upon each of which each party had all the actions and remedies incident to a sale. The plaintiffs could recover the value of each sliijtinent upon its being accepted, and the defendant could reduce or defeat the recovery by proving fraud or any other defect in the sale. 2. The defendant's next ground was that, although the contract were void, it has been pei'formed by both parties without objection ; and neither party can now set up the statute to avoid any liability he may have incurred in that performance. As to this point it is not correct to assume that the contract has been performed. It never was performed to the extent of half of the stipulated quantity. We have already said that in respect of each shipment accepted, each party had a perfect remedy as upon a valid sale and purchase of the quantity contained in such shipment. Neither party could set up the Statute of Frauds to defeat or impair the rem- edy of the other ibr or upon such shipment, for the plain reason that the statute had nothing to do with it. It was simply a sale of so much cider delivered and accepted at the time. But we cannot assent to the proposition intended by the defendant in his point, that, because the contract though void has been performed in part, to the extent of such performance it is to be deemed an entire, single, and valid con- tract, upon the terms stipulated in November, for all the cider deliv- ered between November and May. This would be doing violence to the Statute of Frauds, and the reasons we have given show that it can- not be maintained as law. Each shipment must be regarded as a sale by itself of the quantity accepted, independent of the previous void contract. 3. The defendant's third proposition, that the whole of the ship- ments should be regarded as one transaction growing out of one contract is inadmissible U2)0n the same grounds which Ave have stated in examining the previous points. The one contract relied upon to bring all these shipments together Avas void, and therefore was no con- tract, and each must stand or fall by itself As they were distinct sales, they cannot be regarded as one transaction, so as to entitle the defendant, in a suit for the price of the last parcel delivered, to have alloAved to him his damages growing out of any of the previous deliA'- erics. The defendant does not ask to set off these damages ; and the doctrine of recoupment is limited to damages arising from or growing 804 FROSTBURG MINING CO. V. NEW ENGLAND GLASS CO. [CHAP. I. out of the contract upon which the action is brought. Cram v. Dresser, 2 Sanclf. 120. This disposes of the principal questions raised at the trial. The objections to the judge's charge are untenable. There was no dis- puted fact in respect of the delivery of the cider ; and whether the last was a separate transaction or not was a question of law, and as such it has been argued and considered. As to the instruction rela- tive to the offer to return the cider last delivered, it was entirely cor- rect. The offer referred to by the witnesses was nearly a month after its receipt, and related to fifteen or twenty barrels only, out of one hundred delivered. In the view we have taken of the law, the charge was decidedly favorable to the defendant. Motion for new trial deUied} THE FROSTBURG MINING COMPANY v. THE NEW ENGLAND GLASS COMPANY. Supreme Judicial Court op Massachusetts, November Term, 1851. \Reported in 9 Cushing, 115.] This was an action of assumpsit for goods sold and delivei'ed, to which the defendants pleaded the general issue. It was tried in this court before Bigelow, J., and reported by him to the full court. The facts are sufiiciently stated in the judgment. If the court shall be of opinion that upon the facts stated there was a sufficient acceptance by the defendants of the coal to satisfy the Statute of Frauds, the case shall be referred to an assessor to determine the amount of damages ; otherwise the plaintiffs shall Ijecome nonsuited. I. J. Austin, for the plaintiffs, cited Rev. Sts. c. 74, § 4 ; 29 Car. II. c. 3, § 17 ; Morton v. Tibbett, 15 A. & E. (x. s.) 428 ; Snow v. War- ner, 10 Met. 132 ; Hart v. Sattley, 3 Campb. 528 ; Anderson v. Hodg- son, 5 Price, 630 ; Addison on Contracts, 71 ; Clark v. Baker, 11 Met. 186; Hanson v. Armitage, 5 B. & Aid. 557; Norman v. Phillips, 14 M. & W. 277; Irvine v. Stone, 6 Cush. 508; Acebal v. Levy, 10 Bing. 376; Coxe v. Harden, 4 East, 211; Stanton v. Eager, 16 Pick. 467. J^. Buttrick, for the defendants, cited Snow v. Warner, 10 Met. 132 ; Nicholle v. Plume, 1 C. & P. 272 ; Astey v. Emery, 4 M. & S. 262 ; Hanson v. Armitage, 5 B. & Aid. 557 ; Jordan v. Norton, 4 M. & W. » See Sale v. Darragh, 2 Hilton, 184; Chapin v. Potter, 1 id. 366.— Ed. SECT. IV.] FROSTBURG MINING CO. V. NEW ENGLAND GLASS CO. 305 155 ; Shincller v. Houston, 1 Comst. 261 ; Johnson v. Dotlgson, 2 M. & W. 656; Acebal v. Levy, 10 Bing. 376. Fletcher, J. This is an action of assumpsit for goods sold and delivered. Upon the trial it appeared by the testimony of Mr. Addi- son Child that he was the agent of the jdaintiffs, who did their busi- ness in Baltimore, Maryland; that about the lOtli March, 18-49, he received from the agent of the defendants, who do their business in Cambridge and Boston, a verbal order for a cargo of coal, to be shipped by the plaintiffs from Baltimore in a vessel drawing not more than ten feet of water, at a freiglit not over $2.25 a ton. This order the wit- ness forwarded to the agent of the plaintiffs in Baltimore ; and on the 14th April, 1849, the cargo was shipped on board a schooner which drew, when fully loaded, nine feet and nine inches only. By the bill of lading the cargo was consigned to Mr. Child the plaintiffs' agent, or his order, for the defendants. This bill of lading was forwarded by the phiintiffs to Mr. Child, and received by him in due course of mail on the lOth or 17th of April, and specified the freight to be 82.45 a ton. On the day it was received it was indoi-sed by Child, and together with a bill of the coal left by him in the count- ing-room of the defendants' agent, who was at that time absent. As soon as the defendants' agent returned, he sent back the bill of lading and refused to receive the coal. The said bill for the coal reduced the price twenty cents a ton, so that the freight on the same, to be paid by the defendants, need not exceed their limits of $2.25 a ton. On the passage from Baltimore to Boston the vessel in which the coal was shipped foundered. After being raised and repaired, she arrived in Boston, when the plaintiffs by their aforesaid agent tendered the coal to the defendants, who refused to receive it. It was proved on the trial that, by the usage of the coal trade between Baltimore and Boston, when coal is ordered in Boston from Baltimore the delivery of it on board a vessel consigned to the person ordering it is a compliance with the order, and the coal is thereafter at the risk of the party ordering it. The defence is that, according to the provisions of the Statute of Frauds, this being a contract for the sale of goods, wares, and mer- chandise, for the price of fifty dollars or more, and there being no note or memorandum of the bargain in writing, the contract was not bind- ing unless the purchaser shall accept and receive part of the goods, or give something in earnest to bind the bargain or in i)art payment. There was nothing given in earnest or in part payment. The only question is, whether the defendants did accept and receive the goods or any part of them. That there was no actual manual taking or occupation of the coal by the defendants, is quite clear. VOL. I. 20J 806 FROSTBURG MINING CO. V. NEW ENGLAND GLASS CO. [CHAP. I. As soon as the defendants' agent had knowledge that the bill of lad- ing was left at his counting-room, he forthwith sent it back to the plaintiffs' agent, and expressly refused to receive the coal. When the coal arrived and Avas tendered to the defendants' agent he at once refused to receive it ; so that the defendants have promptly repelled all attempts to make an actual delivery of the coal to them, and have promptly refused to accept and receive the coal or any part of it. But the learned counsel for the plaintiffs maintains with much abil- ity that it is not necessary that there should be an actual manual tak- ing or occupation of the coal, but that there may be a constructive accepting and receiving, and that the receiving on board the vessel was a sufficient accepting and receiving by the defendants. The proposition of the plaintiffs' counsel, that there may be a con- structive accepting and receiving, or a receiving without the actual manual occupation by the purchaser^ seems to be well sustained by the authorities. Therefore in many cases it is made a question to the jury, whether the purchaser by his mode of acting or forbearing to act, or by some acquiescence, has not accepted the goods, though there has been no actual manual taking and occupation of them by him. The further j^roposition of the learned counsel for the i:)laintiffs, that the acceptance and receipt, to satisfy the Statute of Frauds, are not such as to preclude the purchaser from afterwards objecting to the quantity or quality of the goods, is certainly fully sustained by the case of Morton v. Tibbett, 15 Adol. & Ellis, (n. s.) 428. This case in this particular differs from many previous cases, which are all carefully referred to and commented on by the Chief Justice of the Queen's Bench, in delivering the opinion of the court. In Morton v. Tibbett the receipt of the goods is considered as a sub- stitute for writing, leaving to the purchaser the same right to object that the contract has not been complied with which he would have if the contract had been in writing. The other and most material proposition on behalf of the plaintiffs, that the coal when delivered on board the vessel was accepted and received by the defendants within the provision of the statute, remains to be considered. That a delivery to a carrier is not sufficient to satisfy the statute, as a general proposition, is undoubtedly true, and is A^ery properly admitted by the plaintiffs' counsel. But it is maintained that the master of the vessel, under the particular cii'cumstances of the case, was an agent to accept to satisfy the statute, because in the first place he was a carrier nominated by the defendants. But the facts shew that the verbal order of the defendants was merely to have the coal shipped by the plaintiffs fi-om Baltimore in a vessel drawing not more than ten feet of water, at a freight not over 12.25 a ton. No reference was made to any particular vessel or master. Even this very general order was not SECT. IV.] FROSTBURG MINING CO. V. NEW ENGLAND GLASS CO. 307 complied with by tlio i)I:iintiffs, as the freight was *'2.45 a ton instead of 82.25 as was ordered. This dei^arture in the price of the freight would perhaps of itself be sufficient to exempt the defendants from the liability to take and pay for the coal. But it is not necessary to put the case on that ground, or attacli any importance to that point. The order as to a vessel was very general, reterring to no particular ves- sel or master, specifying only the draught of water and price of freight. The master was merely a carrier, and the taking by him would in no sense and upon no principle be regarded as a receipt by the vendee. The case of Morton v. Tibbett was much stronger than the present. There the defendant himself sent a particular lighterman to receive the Avheat. But the delivery to the lighterman was not considered to be a receipt by the vendee, though other acts of the vendee tending to shew an acceptance by him were regarded as sufficient to justify a verdict for the plaintiff So also in Bushel and others v. Wheeler, which is reported in connec- tion with Morton v. Tibbett, the vendee ordered the goods to be for- warded by a particular slooj). Yet the delivery on board the sloop was not regarded as a receipt by the vendee within the statute, though the subsequent acts and forbearing to act on the part of the vendee were held to be sufficient to go to the jury, to find an actual receipt by the vendee. It is therefoi*e quite clear that a delivery on board the vessel in this case cannot be regarded as a recei2:)t, "within the provision of the stat- ute, by the vendee, on the ground that the defendant ordered the coal to be forwarded in that way. But it is further maintained for the plaintiff that the master of the vessel was an agent to accept Avithin the statute, because the usage of trade made him such in the coal trade between Boston and Baltimore. The usage as shewn was that when coal is ordered in Boston from Baltimore the delivery of it on board a vessel consigned to the person ordering it is in compliance with the order, and the coal is thereafter at the risk of the party ordering it. It does not in terms appear whether or not this usage apphes to mere verbal orders, which are invalid by the Statute of Frauds. Nor is it shewn upon what ground this usage can be set up and maintained against established provisions and principles of law. Upon general principles of mercantile law, when a person accepts a written order and delivers goods on board a vessel according to the order, con- signed to the person ordering them in common form, they are then of course at the risk of the consignee. When orders have been received and executed, and delivery has been made to the master of the ship, and bills of lading signed and forwarded, the seller is functus officio and can do nothing more, except so far as he may have a right of stoppage in transitu. 308 Mc KNIGHT V. DUNLOP. [CHAP. I. It is unnecessary to consider how far there could be any usage affect- ing the rights of the j^arties in this case, as it is quite clear that the case is not within the usage set up and relied upon. The usage is said to be that, when coal ordered is delivered on board a vessel consigned to the party ordering it, that is a compliance with the order, and the coal is thereafter at the risk of the party ordering it. But in the present case the coal was not consigned to the party ordering it, but on the contrary was consigned to the j^laintiffs' own agent. By the bill of lading the coal was to be delivered to Addison Child or his assigns. But the bill of lading expressed that it was to be delivered to Addison Child for the New England Glass Company ; and when the bill of lading was received by the consignee he indorsed it and offered it to the defendants' agent, which it is said was a sub- stantial compliance with the alleged custom. The supposed custom required the coal to be consigned to the defendants, but it was in fact consigned to the plaintiffs' agent. This, so far from being a substantial compliance Avith, was the widest possible departure from the custom. The bill of lading gave the defendants no right to or conti'ol over the coal, and Avlien indorsed and offered to the defendants' agent was promptly rejected. There having therefore been no acceptance of the coal by the defendants to satisfy the Statute of Frauds, according to the provision of the report the plaintiffs must become nonsuit. Plaintiffs nonsuit. McIQ^IGHT V. DUNLOP. New York Court of Appeals, December Term, 1851. [Reported in 1 Selden, 537.] This suit was commenced by Mc Knight against Dimlop in the Mayor's Court of the city of Albany. Mc Knight recovered a judg- ment in that court. Dunloj) removed the cause to the Supreme Court by a writ of error, where the judgment of the Mayor's Court was affirmed. From the latter judgment Dunlop appealed to this court. Mc Knight the plaintiff proved on the trial that between the 1st and 6th of June, 1844, he made a contract with Dunlop the defendant below for the purchase from the latter of 5000 bushels of old barley malt. The price to be paid by Mc Knight for the malt was to be governed by the first sale made by Dunlop in the city of Albany. Payments were to be made by Mc Knight in his own note at three months whenever 11000 worth of malt was delivered. Mc Knight SECT. IV.] Mcknight v. dunlop. 309 proved that Dunlop delivGred to him about 1400 bushels of this malt in ditl'ercnt i)ortions and at differeut times between the latter part of August and the latter part of September, when Dunlop refused to deliver to the plaintiff any more malt. Shortly after this refusal the plaintiff by his agent demanded from the defendant the delivery of the balance of the malt. The price of malt rose soon after the 1st of June. The defendant moved for a nonsuit on the ground that no valid con- tract had been j.roved. This motion was denied. The defendant introduced evidence which tended to shew that, after he refused to deliver to the i)laintiff the balance of the malt under the contract for 5000 bushels, the plaintiff and defendant made another contract for 3000 bushels, including what the former had i)reviously received. This last contract was to be reduced to writing ; but the contract never was drawn up and executed by the parties.^ . . . The Recorder charged the jury that, if they found the contract for 5000 bushels of malt had been made by the parties, and that the defendant had delivered any part of the 5000 bushels under the contract, he Avas bound to deliver the whole; and the plaintiff was entitled to recover damages for the non- delivery of such part of the 5000 bushels as had not been delivered ; and the measure of damages consisted solely in the difference between the contract price and the market price of the malt at the time of the defendant's refusal to deliver ; and that this difference was all which the plaintiff was entitled to recover. The defendant requested the Recorder to charge that, if the jury found that a new agreement had been made between the parties whereby the defendant was to deliver to the plaintiff 3000 bushels of malt, including that already delivered, the former contract Avas rescinded, and the plaintiff was not entitled to recover damasres for the non-fulfilment thereof. The Recorder refused SO to charge, and the defendant's counsel excepted. The jury lound for the plaintiff 6581.82. /S. Stevens, for appellant. I. The alleged agreement of June, 1844, for the breach of which the plaintiff claimed to recover, was void by the Statute of Frauds, there being no note or memorandimi of it in writing subscribed by the parties, nor any part of the barley delivered by the defendant, nor any part of the purchase-money paid by the plaintiff at the time when the alleged agreement was made. 2 Rev. Sts. 136, § 3 ; Shindler v. Houston, 1 Comst. 263. 1. There is no pre- tence that the contract was hi writing, or that any i)art of the pur- chase-money Avas paid. 2. A delivery of j^art of the barley (if such Avere the fact) tAVO months after the alleged verbal agreement Avas made, Avould not make the contract valid so that an action could be maintained for the non-delivery of the residue. To make such a contract valid, the statute requires that the Avhole or a part of the goods or chattels sold be delivered by the vendor and accepted by 1 The parts omitted have no connection with the Statute of Frauds. — Ed. 310 Mcknight v. dunlop. [chap. i. the vendee at the time of the contract. 3. There is no evidence that any part of the barley was deUvered by the defendant to the plaintiff under the alleged contract ; on the contrary the proof shews that it was not so delivered. The Recorder therefore erred in submitting that question to the jury. 2 Comst. 265. II. The Recorder erred in refusing to charge the jury that if they should find that a new agreement had been made between the parties whereby the defendant was to deliver to the plaintiff 3000 bushels of malt, including that already delivered, such new agreement rescinded the former contract. The necessary legal effect of such new contract was an abandonment of the former verbal agreement. No right of action had accrued under the former agreement when the subsequent one was made. But if it were otherwise, it was entirely competent for tlie parties by parol to rescind or abandon the former verbal agree- ment, and substitute another in its place. The consideration for the subsequent agreement was sufficient to support it. . . . JV. Hill, Jr., for respondent. I. The contract for the 5000 bushels of malt was not void by the Statute of Frauds, a part of the malt having been accepted and received by the buyer. 2 Rev. Sts. 135-6, § 3, subd. 2. 1. The acceptance and receipt of part of the malt was proved by several witnesses, and the jury have found that it was deUvered under and in pursuance of the contract. 2. The delivery need not take place at the time of the contract, but if made under and in pvirsuance of it, though afterwards, the statute is satisfied. 20 Wend. 61 ; 12 Metcalf, 428 ; 11 Mass. 6 ; 1 Pick. 480. 3. Con- ceding that the contract was not obligatory until the first delivery under it, that is immaterial; the question being whether a vahd contract existed, not when it was made. 20 Wend. 61 ; 11 Mass. 6, 8, 9. II. The court below did not err in refusing to charge the jury that the making of the pretended new agreement precluded a recovery for the breach of the previous contract. 1. There was no evidence of the existence of a new agreement, but only of a negotiation on the sub- ject. It was expressly understood that the new agreement should be reduced to wi'iting. Dunlop promised to draw it up, which he neglected ; and it was therefore " inchoate only, and had no binding efficacy or legal existence." 7 Halst. Rep. 177 ; 19 John. 205. 2. The charge requested erroneously assumed that, if a new agreement was made, it necessarily extinguished Mc Knight's right of action for a breach of the former one, and therefore the refusal Avas proper. The right of action having once vested could only be destroyed by a release, or an accord and satisfaction, not by a mere executory con- tract. 1 Hill, 488 ; 5 Hill, 76 to 78 ; 23 Wend. 306. Where a charge is requested which the court cannot legally sanction without altera- tion, it may be refused absolutely. 1 Peters, 328 ; 1 Hill, 347 ; 3 Denio, 594, 598-9 ; 1 Comst. 79. . . . SECT. IV.] Mc KNIGHT V. DUNLOP. 311 Paige, J. It is objected on the part of the flefendant to the plain- tiff's recovery that the delivery of part of the malt after the time of makinix the contract did not take it out of the Statute of Frauds. The Revised Statutes, 2 V. 136, § 3, provide that every contract for the sale of goods, &c., for the price of $50 or more, shall be void, unless — (1) A note or memorandum of the contract be made in writing and subscribed by the i)arties to be charged thereby ; or (2) Unless the buyer shall accept and receive part of the goods, &c. ; or (3) Unless the buyer shall at the time pay some part of the purchase-money. If part payment of the purchase-money is relied upon to except th^ contract from the operation of the statute, it must by the terms of the statute be made at the time the contract is entered into. But when the validity of the contract depends upon the acceptance and receipt of a i)art of the goods, the statute omits to require the acceptance and receipt to be at the time of the making of the contract. The old Statute of Frauds did not specify the time when either the goods were to be accepted and received, or a part of the purchase- money was to be paid. 1 Rev. L, of 1813, 79, § 15. The chapter of frauds, as reported by the Revisers, required as well the acceptance and receipt of a part of the goods as the payment of a part of the purchase money to be at the time of the making of the contract. The Legisla- ture struck out of the subdivision as reported, in relation to the accept- ance and receipt of a part of the goods, the words "at the thne," which confined the acceptance and receipt of the goods to the time the con- tract was entered into. (See Report of Revisers.) This action of the Legislature is a very clear indication of their intention to provide that a contract for the sale of goods for the price of ^50 or more should be valid if a part of the goods sold were accepted and received under and in pursuance of the contract, although after the time of the making of it. And this is the judicial construction which has been given to the statute. In Sprague v. Blake, 20 Wend. 63, Judge Cowen, Avith the concurrence of his associates, held that the statute does not i-equire that the part acceptance of the goods should be at the time the oral contract is made. He says : " The authorities upon the Statute of Frauds allow of an oral order at one day, and an acceptance at another" by the purchaser or his agent. The cases of Chaplin v. Rogers, 1 East, 192 ; of Vincent v. Germond, 11 John. 283 ; of Jennings v. Webster, 7 Cow. 262 ; and of Cutwater v. Dodge, «fcc., 6 Wend. 397, are all authorities to shew that a subsequent acceptance and receipt of a part of the goods under a parol contract make the contract good within the Statute of Frauds. It was held by the Supreme Judicial Court of Massachusetts in Thompson v. Alger, 12 Met, 435, that even the pay- ment of a part of the purchase-money after the time of entering into the parol contract takes the contract out of the o]icration of our Stat- ute of Frauds. That Avas an oral contract made in this State for the 312 Mcknight v. dunlop. [chap. i. purchase of stock of the Hudson and Berkshire R. R. Co. Dewey, J., in that case says that before payment of a part of the purchase-money neither party would be bound by the terms of the oral contract. "The vendee would be under no obligation to make a payment, and the vendor under no obligation to receive one. But when actually made and accepted with the full concun-ence of both parties, then the con- tract takes effect ; then a part payment of the purchase-money has been made, and then the parties have made a valid contract." If the contract is not in law deemed to be made until the part payment of the purchase-money, and the previous invalid oral agreement is merely referred to to ascertain the terms of the subsequent valid contract, the decision of the Siipreme Judicial Court of Massachusetts may be regarded as sound. This view of the case was taken by that court in Whit well, &c., V. Wyer, 11 Mass. 6, and in Damon • v. Osborn, 1 Pick. 480. In Saunderson v. Jackson, 2 Bos. & Pul. 238, the court connected a letter from the vendor to the purchaser with a previous memorandimi, not signed by the parties, stating the terms of the agreement, in order to make a sufficient written note or memorandum to take the case out of the Statute of Frauds. The oral contract may be considered good as a proposition, and the subsequent delivery and acceptance of the whole or a part of the goods as an acceptance of the proposition, and the final conclusion of a valid agreement. In such case, there being no statutory inhibition, it is admissible to connect the delivery and accept- ance with the previous proposition or oral conti'act, in order to make out a valid contract. In this case the jury having found that the part delivery of the malt, between the latter part of August and the latter part of September, was made under the previous oral contract for the sale of 5000 bushels of malt, that contract was therefore valid within the Statute of Frauds. The charge of the Recorder was in all respects correct. His instruc- tion to the jury in relation to the rule of damages was in strict accord- ance with the authorities. The plaintiff was entitled to recover as damages the difference between the contract price of the balance of the malt which the defendant refused to deliver, and its market value at the time of the refusal. 9 Wend. 134, 5; 7 Hill, 61, 2 ; 7 Cow. 681, 687 ; 24 Wend. 322. The Recorder committed no error in refusing to charge as requested. Before the pretended new contract for 3000 bushels of malt was made, the previous contract had been Adolated by the defendant, and a right of action had accrued to the plaintiff for such \aolation. Whei'cver a right of action has once vested in a party, it can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done. 23 Wend. 309; 1 Hill, 486, 488; Willoughby v. Backhouse, 2 Barn. & Cress. 821 ; 5 Hill, 77, 78. If the Recorder had charged that the new agreement rescinded the previous contract, and SECT. IV.] MARSH V. HYDE. 313 was a bar to tlie plaintiif's recovery of damages for its violation, he would have committed an error. The plaintiff's claim to damages formed no part- of the consideration of the second agreement. Prior to the making of that agreement, the previous contract by the defend- ant's violation was, at the election of the plaintiff, at an end ; and in lieu of his right to take the benefit of the contract, the plaintiff liad a perfect right of action against the defendant for his refusal to fulfil it. The first contract having been put an end to by the defendant, it Avas competent for the plaintiff to enter into a new agreement with him, without a waiver of or prejudice to his remedy for the violation of the previous contract. . . . I am of oi)inion, and such is the opinion of the court, that the judg- ment of the Supreme Court shouhl be affirmed with costs. Foot, J. An examination of the facts and the law of this case has led me to a conclusion that the views which the Supreme Court have taken of it are correct. A subsequent delivery and acceptance of a i:)art of the malt under the» contract, as found by the jury, is sufficient to take the case out of the statute. Sprague v. Blake, 20 Wend. R. 61, and cases there cited ; also Vincent v. Germond, 11 J. R. 283. The instruction asked for by the appellant in regard to the second agreement did not go far enough to cut off the respondent's right of recovery on the first one. The rule is well settled that, when a right of action has accrued, it can only be destroyed by a release under seal or the acceptance of something in satisfiiction. Admitting as claimed by the appellant that a new agi-eement may be substituted in the place and in satisfaction of a previous one already broken, the instruction asked fiuled to reach the gist of the matter, viz., that the new agree- ment was made and accei)ted in lieu and satisfaction of the prior one : it only covered the fiict that the new agi'eement embraced the malt already delivered. Xor on the proof could it go farther, as there was none to shew that the parties intended by the new agreement to embrace a satisfaction of the damages for the breach of the former one. . . . • • Judgment affirmed. WARREN MARSH a^d Others, v. LEONARD HYDE, Jk. Supreme Judicial Court of Massachusetts, March Term, 1855. [Reported in 3 Gray, 331.] AcTiox of contract on a verbal agreement for the sale by defend- ant to the plaintiffs of two mows of hay, stored in two separate barns, and containing about twenty tons, at the rate of fourteen dollars a 314 MAESH V. HYDE. [CHAP. I. ton. The case was referred by rule of court. At the hearing before the referee there was evidence to prove a verbal agreement for the sale of the hay at the price named, to be paid for as it was delivered ; and that the defendant at different times, some days afterwards, deliv- ered three loads of the hay, amounting in all to about two tons, and then refused to deliver the remainder. The defendant objected that the contract was within the Statute of Frauds ; and the referee reported the facts so as to present this question to the court. C. C. Nutter S T. F. Nutter, for the plaintiffs. H. C. Ilutchins, for the defendant. BiGELOw, J. The report of the referee presents the question whether the contract was binding on the parties under the Statute of Frauds. Rev. Sts. c. 74, § 4. The defendant's objection is put on the ground that, there having been no delivery of any part of the hay at the time the agreement was entered into for its sale and purchase, the subsequent delivery of the three loads to [by ?] the defendant Avill not avail to take the case out of the operation of the statute ; and that the delivery of the hay under the circumstances proved only establishes three different and distinct contracts for each load ; so that an action could have been maintained by the seller for each load as it was delivered. But this position cannot be maintained upon any reasonable and just construction of the language of the statute ; nor is it supported by a consideration of the purposes and objects which the statute was intended to accomplish. There is nothing in the statute which fixes or limits the time within which a purchaser is to accept and i-eceive part of the goods sold, or give something in earnest to bind the bar- gain or in part payment. It would fully satisfy its terms if the deliv- ery or part payment were made in pursuance of a contract previously entered into. In New York it is expressly provided that the part pay- ment under the contract shall be made " at the time." Rev. Sts. of IsT. Y. pt. 2, c. 7, tit. 2, § 3. But no such language is found in any part of our statute. Nor can we see any good reason for implying that any such limitation was intended by its provisions. The great purpose of the* enactments commonly known as the Stat- ute of Frauds is to guard against the commission of perjury in the proof of certain contracts. This is effected by providing that mere parol proof of such contracts shall be insufficient to establish them in a court of justice. In regard to contracts for sales of goods, one mode of proof which the statute adopts to secure this object is the delivery of part of the goods sold. But this provision does not effectually prevent the commission of perjury ; it only renders it less probable by rendering proof in support of the contract more difficult. So in regard to other provisions of the same statute ; perjury is not entirely prevented by them; the handwriting of a party to be charged, or the agency of the person acting in his behalf, may still be proved by the testimony & SECT. IV.] MARSH V. HYDE. 315 of witnesses who .swear falsely. Absolute prevention of perjury is not possible. In carrying this great i)urpose of the statute into practical operation, it can add no security against the danger of per- jury that the act, proof of which is necessary to render a contract operative, is not [sic] contemporaneous with the verbal agreement. A memorandum in writing will be as effectual against ])crjury, although signed subsequently to the making of a verbal contract, as if it had been executed at the moment when the i)arties consummated their agreement by word of mouth. So proof of the delivery of goods in pursuance of an agreement for their sale previously made, will be as efficacious to secure parties against false swearing as if the delivery had accompanied the verbal contract. It is the fact of delivery under and in pursuance of an agreement of sale, not the time when the delivery is made, that the statute renders essential to the proof of a valid contract. It is to be borne in mind that in all eases where there is no memorandum or note in wi'iting of the bargain, the verbal agree- ment of the parties must be proved. The statute does not prohibit verbal contracts. On the contrary it presupposes that the terms of the contract rest in parol proof; and only requires, in addition to the proof of such verbal agreement, evidence of a delivery or part pay- ment under it. It does not therefore change the nature of the evidence to be offi2red in support of the contract. It merely renders it neces- sary for the party claiming under it to shew an additional f\ict in order to make it " good and valid." The fallacy of the argument pressed by the counsel for the defend- ant seems to us to consist in assuming that the contract takes its legal force and effect from the time when its tei-ms are verbally agreed upon ; and that therefore, being void when made, it cannot become valid by any subsequent act of the parties. It would be more correct to say that, until the formalities required by the statute are complied with, there is no legal and valid contract entered into. The terms verbally agreed upon between the parties amount to little else than a proposition for a contract ; and it is not until delivery of part of the goods takes place, or part payment is made, that it assumes the qualities of a lesal contract ; in the same manner as the written memorandum of the previous verbal agreement of the parties becomes in law the binding agreement between them. It is not therefore the subsequent delivery of goods which gives vitality and force to a contract previously void. Until the delivery is made no binding contract exists ; and when it takes place the act of the parties unites with their ])revious verbal understanding to create a full, complete, and obligatory agree- ment. In all cases like the present a single inquiry operates as a test by which to ascertain whether a contract is binding upon the parties under the Statute of Frauds. It is whether the delivery and accept- ance, Avhcnever they took place, were in pursuance of a previous agree- 316 RODGERS V. PHILLIPS. [CHAP. I. ment. If the verbal contract is proved, and a delivery in pursuance of it is shown, the requisites of the statute are fulfilled. Such was the proof in the present case. The plaintiffs, if they had proved only a delivery of three loads of hay, would not have made out their case against the defendant. But having also proved a previous contract of sale for the whole of the hay, as well as a delivery under that con- tract, they had established by competent proof a valid agreement, binding on the j^arties, for breach of which the plaintiiFs might well maintain an action for damages. Elliott v. Thomas, 3 M. & W. 170 ; Scott V. Eastern Counties Railway, 12 M. & W. 33 ; Vincent v. Ger- mond, 11 Johns. 283; Davis v. Moore, 13 Maine, 424; Damon v. Osborn, 1 Pick. 476 ; Thompson v. Alger, 12 Met. 435. The case of Seymour v. Davis, 2 Sandf. 239, cited by the defendant, has been sub- stantially overruled by the later case in the Court of Appeals of New York of Mc Knight v. Dunlop, 1 Seld. 537. It is true, as the counsel for the defendant suggests, that an action would lie against the plaintiffs to recover the price of each separate load of hay as it wfis delivered ; but this does not show that there was not an entire contract for the sale and delivery of all the hay stored, in the two barns. The defendant could maintain an action to recover the price of each load, because such Avere the terms of pajiuent agreed upon. So too he could recover damages for a breach of the contract, if the plaintiffs had refused to accept and receive the residue of the hay after the delivery of the three loads. Judgment for the plaintiffs. WILLIAM M. RODGERS and DILLER LUTHER, Respondents, V. LEWIS PHILLIPS .vnd FREDERICK C. OAKLEY, Appel- lants. New York Court of Appeals, June 14, 1869. [Reported in 40 New York Reports, 519.] This action was brought to recoV^er the purchase price of 188 tons of coal, amounting to the sum of $651.30. The coal was contracted to be sold by the plaintiffs to the defendants by an oral agreement entered into prior to the 26th day of June, 1858. By the tenns of this agreement it was to be shipj^ed on board a boat at Richmond in the State of Pennsylvania for the defendants, and to be carried from there to Twenty-eighth Street on the East River in the city of New York ; the defendants paying the fi'eight for the same. The coal was shij)ped SECT. IV.] RODGERS V. PHILLIPS. 317 by the plaintiffs on board the coal l)()at T. K. Smith at Richmond, for the defendants, on Saturday the 2Gth day of June, 1858 ; and a bill of lading taken from the nuister, by which the coal was to be delivered at Twenty-eighth Street, on the East River side of the city of New York, to the defendants iipon the payment of the freight by them. Puring the afternoon of the day when the coal was laden upon the boat, she commenced leaking, and finally sank on the morning of the following day. The boat and cargo remained in the water where they sank until they were finally removed by the public authorities as obstructions to navigation. On Monday the 28th of June, 1858, the plaintiffs, who kept their office at the city of New York, received the bill of lading by mail; and on the same day they sent it with an invoice of the coal to the defendants' office. The invoice consisted of an unsubscribed bill of the coal. On Tuesday the 29th the defendant Oakley, together wdth Mr. Harriott the secretary of the Brevoort Insurance Company, called at the plaintifts' office, and inquired of Mr. Rodgers, one of the plaintiffs, concerning the condition of the boat ; how she had sunk, the cost of raising her, and what he could do it for. He answered that he could give no information in regard to the matter. Another witness, Hubbard, who was present at the same interview, stated that he understood from the conversation that Harriott was to go to Philadelphia to see about raising the vessel. The next day but one succeeding this interview, w^hich was the 1st day of July, the defendants sent back the bill of lading to the plaintiffs ; and they returned it to the defendants the same day in a letter, saying that they had nothing to do with it. Upon this evidence the defendants moved for a nonsuit on the ground that no valid sale was established under Ihe Statute of Frauds. The motion was denied, an/-o tcmto the debt due from McDufie to Zeh; in other words, that the transfer was accepted as a payment, and per se worked a satisfiction. McDuffe agreed with Zeh that Artcher should pay him, and Zeh stipulated that if Artcher would agree to jiay 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 fonn; at least nothing of the kind was shown. It need not be denied that a promise to indorse or credit Artcher's agi-eement to pay, in satisfaction or pay- ment of so much as the sum amounted to, would operate as an extin- guishment ; or, in other words, that an agreement to give an absolute ci-cdit would have that effect. But the agreement leaves it equal whether the indorsement or credit was not to be the usual conditional one, to become absolute on the assigned claim proving avaihible. Such is the legal construction of an arrangement to take a claim 1 Only so much of the opinion is given as relates to the first ground of the motion for a nonsuit. — Ed. 332 ARTCHER V. ZEH. [CHAP. I. against a third person, to be applied iij^on 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 jyer se a satisfaction. In the absence of such an agreement 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, why 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 arrangement was made ; at least we are to intend that he did, for his counsel do not pretend that he had ajiplied the demand said to have been transferred, in any form, absolute or con- ditional. In refusing to apply it absolutely I 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 that the money had never been paid by 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 and no deUvery the assignee must pay something, at least j^art 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 any thing or part of any thing, 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 every thing lies in parol ; and even if there had been the express agreement which is set uj), — 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 to have something done, not to rest every thing upon mei'e oral agreement. Here even the agreement is not direct, but rather sought to be raised by way of construction on an equivocal conversation. Taken in any view, therefore, I think the assignment was void SECT, v.] EDGERTON V. HODGE. 333 within the intent as it is clearly within the words of the Statute of Frauds, The judgment must he reversed ; a venire de novo to go from the court below ; the costs to abide the event. Ordered accordinfjhj} 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 agi-eement 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 15^ cents per pound, and every twenty days thereafter agi-eed to call at the defendant's house in Dorset, select such cheese as Avould be fit for market, attend its weight 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 agi-eement was made the defendant by 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 Rupei-t, directed to the plaintiff at Pawlet and received by him by mail on the same day. 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 here- unto annexed, and the envelope enclosing the 850 is postmarked « Pawlet, Jidy 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 the defendant, and the letter of the plaintiff, with the $50 and the envelope enclosing them, were by mail returned to the plaintiff with no com- munication accompanying them from the defendant. The plaintiff 1 See Brabin v.. Hyde, 30 Barb. 265, 32 N. Y. 519 ; Mattice v. AUen, 33 Barb. 643 ; Clark V. Tucker, 2 Sandf. 157 ; Teed v. Teed, 44 Barb. 96 ; Dow v. Worthen, 37 Vt. 108. — Ed. 334 EDGERTON V. HODGE. [CHAP. I. received the so enclosed wrapj^er, money and letter, on the 9th of July, 1864, and kept the same $50 for six months thereafter. A daily mail is carried between the post-offices of Pawlet and East Rupert, a dis- tance of six miles. On the 20th of July, 1864, the jDlaintiff 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. Xo other communication ever took place between the parties in regard to the cheese after the return of the money as above stated vintil 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 oi^inion that from the foregoing facts the plaintiff is entitled to recover, and that the rule of damages should be the New York market larice 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 1306.32. "DoKSET, July Ist, 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. "Mr. Hodge. "Dear Sir, — I enclose you $50 to apply on your dairy of cheese as you proposed. Yours truly, " S. Edgerton." The court at the March temi, 1868, Pierpoint, C. J., presiding, ren- dered judgment on the report that the plaintiff recover of the defend- ant the smaller sum reported by the referee, and for his costs, to which the defendant excepted. Edgerton & Nicholson and J. B. Bromley^ for the defendant. Fayette Potter^ for the plaintiff. The opinion of the court was delivered by WiLSOisr, J. The parol agreement entered into by the parties June 30th, being for the 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 plaintiff's letter with the $50 in the post- SECT, v.] EDGERTON V. HODGE. 335 office on the 2d of that month, constitute a i)aynient of part of the purchase-money within 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 to our talk yesterday, you bought my cheese for the season. I sliall stand to it, but shall want $50 to bind it." By that letter tlie 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 i;)laintiff on the 2d of July enclosed 850 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 by depositing the money in the post-office ; and the fact that the defendant by letter offered to allow the plaintiff to perfect the agreement by paying part of the purchase-money did not authorize or invite the plaintiff to send the money by 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 pay 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 woidd continue the property of the plaintiff unless accepted by the defendant. The plaintiff took the risk not only of the safe conveyance of the money to the defendant, but also as to the will- ingness of the defendant to accept it. The defendant's letter, not con- stituting such a note or memorandum of the agreement as the statute required, left it optional with the defendant to acce})t or refuse part payment when offered to him, the same as if the defendant bad 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 Avas 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. Tlie mere offer of the defendant to receive the money Avould not estop hhn from refusing to accept it ; but in order to take the 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 336 EDGERTON V. HODGE. [CHAP. I. 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 vahd contract cannot aid the plaintiff. The statute provides that " no contract for the sale of any goods, Avares, or merchandise, for the price of $40 or more, shall be valid unless the pui-chaser shall accept and receive part of the goods so sold, or shall give something in earnest to bind the bargain or in part payment, or imless some note or memo- randum of the bargain be made in wi'iting and signed by 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 by the pur- chaser accepting and receiving pai't of the goods so sold, by giving something in earnest to bind the bargain or in part payment, or by making a note or memorandum of the bargain, it must be done, if done at all, by the consent of both parties. It is obvious that it would require the consent of the purchaser to accept and receive part of the goods, and he could not receive them imless by consent of the seller; the purchaser could not give something in earaest to bind the bargain or in part payment, unless the seller accej^t and receive it ; nor could a note or memorandum of the bargain be made and signed, unless by the consent of the party to be charged thereby. A vaUd contract is an agreement or covenant between two or more persons, in which each party 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 Uke the present one omit 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 stipixla- tion of the verbal agreement on the 80th of June that the plaintiff should give and the defendant I'eceive 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 had refused to receive it, saymg that he prefen'ed 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 he 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 comi:)ly 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- SECT. VI.] SIMON V. METIVIER. 337 ment from the operation of the statute, is as much within the Statute of Frauds as is the agreement or contract taken as a whole ; and a note or memorandum in rehition to giving something in earnest to bind the bargain or in part pajnnent, which is insufficient of itself to take the contract out of the statute, is also insufficient to make the contract binding upon either jjarty. The judgment of the county court is reversed, and judgment for the defendant for his costs. SECTION yi. " Or that some Note or Memorandum in Writing of the said Bargain be made and sig7ied by the Parties to he charged by such Contract^ or their Agents thereunto lawfidly authorized^ SIMON y. METIVIER or MOTIVOS. In the King's Bench, Trinity Term, 1766. \Re.ported in 1 William Dlackstone, 599.] Case for not taking away certain drugs to the value of £110, which were bought by the defendant at an auction ; and having since sunk in their value 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 Qd. was not ten- dered by the buyer the goods might be put up again and re-sold ; that no 6f?. 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 vei'dict for the plaintiff. Stoice and Davenport moved for a new trial : because the sale was void by the Statute of Frauds ; being above the value of £10 and no earnest given, or note or memorandum signed by the party: and because there was no mutuality in the contract ; for as no Qd. was paid the seller was not bound by it, and therefore not the buyer. The plain- tiff might and actually did re-sell the goods according to the conditions of the sale. Norton and Wallace shewed for cause, that the conditions of the sale and the auctioneer's taking down the name of the buyer and price VOL. I. 22 338 SIMON V. METIVIER. [CHAP. I. are equivalent to a note in writing. That the auctioneer was agent to the buyer joro tempore / that his giving in his name was an authority to the auctioneer to set down the contract. Tliat the not paying the Qd. was the defendant's own laches, of which he shall take no advan- tage. That the intent of the Statute of Frauds was to suppress pri- vate fraudulent contracts sujij^orted by j^erjury. No such inconven- ience in sales by auction, which are transacted in the face of such numbers that a man cannot by false e^ddence be made a jDurchaser whether he will or not. That the terms and conditions of the sale when any one bids are the terms of the bidder as well as the seller. The buyer thereby accedes to the terms joroposed, and could bring an action upon them if not performed. LoED 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 occun-ed 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 Avay of exception to the statute. There are two lights in which the present case may be considered. 1st, Whether sales by auction are ^vithin 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 tact itself of sale. The contract is executed when the hainmcr is knocked down. I remember a case where some sugars were bought at an auction, and afterwai'ds consumed by fire in the auction warehouse; and the loss fell upon the buyer. The circumstance of weighing off is similar to this, and very material in the present case. And according to the incHnation 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 within it, 2d, The requisites of the statute are well comjjlied 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 ty the act, SECT. VI.] RUCKER V. CAMMEYER. 339 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 ojjenly transacted before five hundred people are not within the statute. But the present agreement is strictly within 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 may be instantly put uj) agam. Not being asked, the contract clearly bound the seller Avithout 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 that 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 within the statute ; because not capable of all the requisites of the statute. I look upon this contract as executory in its nature, and being to be executed within a year, is so far not within the statute. AsTOX, J. I think the terms of the sale and the requisites of the statute were fully complied with by giving in his name as a purchaser ; which is better than the sixjDcnce earnest. Hide nisi for a neio trial discharged. RUCIvER V. CAJNBIEYER. At Guildhall, coram Lord Kenyon, February 26, 1794. [RejMrted in 1 Espinasse, 105.] Assumpsit to recover the price often hogsheads of sugar sold by the plaintiff to the defendant. The case as proved on the part of the plaintiff was that, having a quantity of sugars to sell, samples were sent, as is usual, to the plaintiff's broker. The broker was called, and proved that the samples were sent to him and exposed, together with other sami)los of different sugars ; that the defendant examined the samples and fixed ou those 340 SAUNDERSON V. JACKSON. [CHAP. I. for which the action was brought ; that he asked the broker from whence the sugars had come, and was answered " that they came from the north — fi'om Scotland." He asked the price, and was told 63s. per cwt. The broker said frirther that he afterwards brought the plain- tiff and defendant together, when he supposed the bargain was con- cluded, as he soon after received orders from the plaintiff to make out sale-notes of ten hogsheads to the defendant at 63s. per cwt. These sale-notes he said contained the price and quantity of the sugar sold, and that one of them was usually given to the buyer and the other to the seller. The plaintiff he said had his note from him, and the defendant had sent for his, which was delivered to him, and soon after part of the sugar, which he sent back, saying that he had contracted for new sugars but that these were old. He said that at the time of the sale the defendant made no inquiry whether the sugars were new or old. JSrsJcine^ for the defendant, objected that this contract was within the Statute of Frauds : he said that, the broker being the agent of Rucker the plaintiff only, and there being no note in writing on the part of the defendant, either by himself or any agent authorized by him, nor proof of any direct and immediate contract of sale with him, it therefore was void under the statute for want of a note in writing. Lord Kenton said that it was of great importance not to break in on any decision which had taken place on the Statute of Frauds ; and cited the case of Simon v. Motivos, 3 Burr. 1921, as ruling the present case. He said that the broker must be considered as the agent of both parties, and need not be constituted by writing ; but that in this case he had in fact given the defendant a note in writing when he gave him the sale note, which he had accepted. SAUNDERSON v. JACKSON and Another. In the Common Pleas, June 28, 1800. {Reported in 2 Bosanquet ^ 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 sittings after last Easter term, when the contract for the delivery of the gin SECT. VI.] SAUNDERSON V. JACKSON. 341 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 the 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 Ilankin." On this evidence his Lordship directed the jury to find a verdict for the plaintifi^ reserving the point made for the consideration of the court. Accordingly, Xens, Serjt., having on a former day obtained a rule nisi for setting aside this verdict and entei'ing a nonsuit, he was now called upon to begin in sujiport of his rule. He observed that the words of the 29 Car. 2, c. 3, § 17, require that "some note or memorandum in writ- ing of the bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized;" and that in Hawkins v. Holmes, 1 P. Wms. 770, and Stokes v. Moore, ib. in the notes by Mr. Cox, the court had held a signing by the party necessary, though the draft of the conveyance had in the former case been altered in the handwriting of the purchaser, and in the latter the seller had himself Avritten instructions for the renewal of a lease. He contended that though the printed name contained in the bill of parcels might have amounted to a signature within the meaning of the act, if the bill of parcels had been intended to express the contract quasi a contract, yet that in this case it had not been delivered to the plaintiff with that view; that the contract itself had never been reduced to writing or ever was intended to be so ; and thei'efore the bill of parcels could only operate as evidence of a contract previously entered into ; and that the subsequent letter of the defendants, though signed by them, could not be treated as a note or memorandum of the con- tract, being accidental and only a reference to a pre-existing contract. /Shejiherd, Serjt., contra, was stopped by the court. 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 M'ell 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 of Frauds. For although it be admitted that the letter which does not 342 EGERTON V. MATHEWS. [CHAP. I. state the terms of the agi-eement 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 by 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 nanae at the beginning was not intended to be a signatu.re, and that the paper was meant to be incomplete until it was fui'ther signed. This last case is stronger than the one now before us, and affords an answer to the argument that this bill of parcels was not delivered as a note or memorandum of the contract. Per Curiam, Biile discharged. EGERTON V. MATHEWS a^d Another. In the King's Bench, February 12, 1805. [Reported in G 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 pur- chase by the following memorandum in writing : " We agree to give Mr. Egerton 19f?. per lb. for 30 bales of Smyrna cotton, customary allowance, cash 3 per cent., as soon as our certificate is complete." Signed, Mathews and Turnbull, and dated 2d SejDt., 1803. The defendants had before become bankruj^ts, and their certificate was then waiting for the Lord Chancellor's allowance, and after it Avas 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 authoi'ity of Wain v. Warlters,^ that, the contract being altogether executory, and no consideration appearing on the face of the writing for the promise, nor any mutuality in the engagement, it was void by the Stat- ute of Frauds, 29 Car. 2, c. 3. And it not being at that time adverted to that the case cited turned upon the meaning of the word " agreement " (^. 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. 1 linight V. Crockford, 1 Esp. N. P. Cas. 190. 2 5 East, 10. SECT. VI.] CHAMPION V. PLUMMER. 343 the nonsuit, when the attention of the court was called to the difference of the two clauses, Lord Ellenhoeougii, C. J., on granting a rule 7iisi expressed liis 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 the same. And on this day when The Solicitor- General and 3Iarryat were to have shewn cause against the rule (after suggesting that the M-ords " contract " and " bar- gain" in the 17th section hnplicd mutuality and consideration as much as the word " agreement " in the -1th clause, and therefore brought the case within the princii)le 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 oppo- sition to the rule ; and Lord Ellexborougii, C. J., observed that the words of the statute were satisfied if there were " some note or memorandum in writing of the bargain, signed by the parties to be charged by such contract." And this w^as a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged thercAvith, and whose signatures to it is all that tlie statute requu-es. Laavrence, J. The case of Wain v. Warlters proceeded on this, that in order to charge one man with the debt of another the agree- ment must be in writing ; which word " agreement " we considered as properly 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, Mule absolute. CHA]VIPIOX AND AxoTHER V. PLUMMER. In the Common Pleas, May 13, 1805. [RepoHed 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. 6c?. per cwt. to be delivered on the 31st of October ; and 10 puncheons at 37s. per cwt. to be delivered on the 1st of November. At the trial before Sir James Mansfield, C. J., at the Guildhall sittings after last Hilary term, it was proved that a bai-gain for the treacle in question was made between the plaintiffs' clerk and the 344 CHAMPION V. PLUMMER. [CHAP. I. 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 : — Left leaf of the book. Rigbt leaf of the book. Bought of W. Plummer 10 puncheons (a) 37. 20 puncheons of treacle 37/0. to be delivered by 10 Dec. (Signed) Wm. Plummer. 20 puncheons treacle 36/6. say 37/0. 1 Nov. 31 Oct. Wm. Plummer. On. the part of the defendant it was objected that this did not amount to a sufficient note or memorandum of the contract within the Statute of Frauds, 29 Car. 2, c. 3, § 17, as it was not sigaied by the purchaser ; and his Lordship being of this opinion nonsuited the plaintiff. A nxle having been obtained calling on the defendant to show cause why the nonsuit should not be set aside and a new trial had, Shepherd, Serjt., shewed cause, and insisted that it did not appear by the memorandimi who was the buyer of the goods ; and as it was not signed by the buyer, he coidd not be bound by it ; consequently the defendant ought not to be bound by an agreement which would not bind the other contracting party. With respect to the case of Saunderson v. Jackson, 2 Bos. & Pull. 238, which was referred to on moving for the rule, he observed that, upon reference to the brief in that cause, it appeared that the name of the purchaser was stated in the bill of parcels, though that circumstance is not mentioned in the report, the case having turned entirely upon the sufficiency of the vendor's signature. Best, Seijt., contra, urged that the expressions of the statute, " some note or memorandum in writing of the bargain to be made and signed by the parties to be charged by such contract," did not require the agreement to be reduced to writing in regular form, and that it was sufficient if the party to be charged in the action by the pro- duction of the memorandum had signed it, although it was not signed by the other party. Sir James Mansfield, C. J. How can that be said to be a con- tract, or memorandum of a contract, which does not state who are the contracting parties? By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the plaintiffs : there cannot be a contract without two SECT. VI.] KLINITZ V. SURRY. 345 parties, and it is customary in the course of business to state tlie name of the purchaser as well as of the seller in every bill of parcels. This note does not appear to me to amount to any memorandum in WTiting of a bargain. The rest of the court concurring, Hule discharged. KLINITZ V. SURRY. At Nisi Prius, coram Lord Ellenborough, December 12, 1805. [Reported in 5 Espinasse, 267.] This was a special action on the case. The declaration stated that the i:)laintiff had sold to the defendant 50 quarters of wheat, which tl^e defendant had refused to receive, for which action was brought. The evidence was that the plaintiff had sent 195 quarters of Avheat consigned to his factors Giles and Jennings for sale, Jennings stated that he sold by sample 50 quarters to the defendant. The usual mode of selling on the Corn Exchange he stated to be, that he made an entiy in his book of the quantity sold and the price it sold for. He said the defendant when he made the sale told him he employed Kendal as his ledger to receive the corn, and to whom the sample was delivered. But on his cross-examination he said he considered himself as agent for the seller only. The sample had been delivered to Kendal only, and the defence on the merits was that the bulk did not coiTespond w^th the sample. The counsel for the defendant contended that this case came within the Statute of Frauds and was void, there being neither a note in writing or a delivery of any part of the commodity sold ; and the case of Cooper v. Elston, 7 Term Rep. 14, was cited. It was answered by the plaintiff's counsel that there was in fact a part deliveiy, the defendant's agent having received a sample of the corn in part, and that the factor was to be considered as the agent for both parties, and the entry in his book was a note in -vmting sufficient to satisfy the statute. Lord ELLE^^iOROUGII. How far the delivery of the sample in this case is a part delivery to satisfy the Statute of Frauds or not depends upon the manner in which that sample was taken ; if the 50 quarters were standing as a distinct parcel and bulk, and the sample taken from it; if the quantity was thereby diminished so much, and the delivery of the 50 quarters was so much less by this quantity, I think it would be a part delivery, and sufficient within the statute ; 346 PHILLIMORE V. BARRY. [CHAP. I. but it would be otherwise if the delivery of the sample was a col- lateral thing, a part of another parcel of the same sort of corn. It therefore became a question whether the 50 quarters which were admitted to be pai't of the 196 quarters Avere separated fi"om them, and [or] whether the whole quantity was together so that the sample was taken from one bulk or the other. Upon this there was contradictory evidence. As to the second point, the book of the corn-factors Giles and Jennings was produced : there was an entry of the prices and quantity, but the name of the seller was not in it ; upon which Lord Ellen- BOEOUGH said he was clearly of opinion that that was not a note in writing within the Statute of Frauds. His Lordship in summing up to the jury left them first to consider upon the fact of whether the bulk and sample did in fact corre- spond. The jury found that it did not; the defendant therefore had a verdict.^ PHILLBIORE Am) Others v. BARRY and Anothek. At Nisi Prids, coram Lord Ellenborough, December 17, 1808. [Reported in 1 Campbell, 613.] This was an action for goods sold to recover the price of thirteen puncheons of rum. The cargo of a Danish prize, of which the rum in question formed a part, was lodged in the warehouses of Messrs. Fector & Minet at Do- ver, and was sold by auction in various lots on the 28th of April, 1808. By the conditions of sale a deposit of 25 per cent, was to be paid immediately, and the remainder of the purchase-money in thii-ty days. At the end of that time the purchasers wei-e to carry away the goods, or 1 S. C, Paley on Agency, (3(1 ed.) 171, note. Assumpsit for not receiving corn sold. By the course of the corn market the seller's broker delivers a sample and order for the delivery of the corn to the buyer, who has till next market day to refuse it if he find the bulk vary from the sample. The buyer having had the corn examined refused the contract. One objection in point of law was, that there was no memorandum of the contract signed by the buyer or his agent. Lord Ellenborough declared himself clearly of opinion that the broker's note was not sufHcient of itself, he being pruna facie only the agent of the seller and not of the buyer ; but if the buj'er acted upon the order, as in this case he appeared to have done by sending his servant to examine the bulk upon the authority of the broker's order, that was such an adoption of the broker's agency as made him agent for both parties, and his note sufficient within the Statute of Frauds. — Ed. SECT. VI.] PHILLIMORE V. BARRY. 347 were afterwards to pay warehouse rent. Before the day of sale the defendants had written to Messrs. Fector & Minet to buy thirteen puncheons of this prize rum for them. Accordingly Mr. John Minet Fector, one of that firm, bid for several lots, which were knocked down to him, and amounted to the quantity required. The auctioneer, opposite to each of these lots, wrote down in his printed catalogue the price for which they sold and the initials "J. M. F.," meaning John Minet Fector. On the 11th of jMay the defendants wrote a letter to Messrs. Fector & Minet, recognizing and approving of this purchase. But on the 18th of the same month the warehouses in which the rum was accidentally caught fire, and by means of a quantity of gunpowder lodo-ed in them were blown into the air with a tremendous explosion. There was no evidence of the deposit bemg paid. Garroic, for the defendants, stated two grounds on which he con- tended his clients were not liable. 1. The contract was void under the Statute of Frauds. The only Avay in Avhich it could be pretended the 17th section had l)een satisfied was by a memorandum in Avriting. But it Avould be difficult to say that under the circumstances of this case the auctioneer was the authorized agent of the defendants ; and even if he were, wiiting the letters "J. M. F." in the printed catalogue could not be considered as any memorandum of the contract between the parties. Until the expiration of the thirty days the goods remained at the risk of the sellers. They were not to be paid for or delivered before then, and the property did not absolutely vest in the purchaser. The stipulation, as to the paying of warehouse rent afterwards, shewed that till that time the goods were still considered as belonging to the vendors, subject to the right of the purchaser upon fulfilling his part of the contract. But Lord Ellexbokougu held that the initials of the defendants' agent written by the auctioneer in the catalogue, coupled with their letter recognizing the sale, constituted a sufficient memorandum in Avriting to satisfy the Statute of Frauds ; and that the property vested abso- lutely in the purchasers from the moment of the sale, the agreement to give stowage room to the goods free of expense for thirty days being introduced for their benefit, and being part of the consideration for which the pm'chase-money was to be paid. Verdict for the plaintifs. 348 HEYMAN V. NEALE. [CHAP. I. 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 they 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 accordingly did. They then parted, the memorandum being left with the defendant. I'ark 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, submitted that the defendant had made the plaintiff his agent for the purpose of signing the memorandum by overlooking and approving of what he had written ; and they put the case of a man incapable, from disease or ignorance, of writing for him- self. Lord Ellenborough said the agent must be some third person, and could not be the other contracting party. Plaintiff nonsuited. HEYMAN V. NEALE. At Nisi Prius, coram Lord Ellenborough, December 21, 1809. [Reported in 2 Campbell, 337.] This was an action for not accepting a quantity of hemp. The question was, whether there had been a complete contract between the parties upon this subject. SECT. VI.] HEYMAN V. NEALE. 349 Mr. Forrester the broker swore th:it he had authority from the plaintiff to sell and from the defendant to buy the hemp in question for the one and the other respectively ; that he in consequence made an entry in his book of having sold it for the plaintiff to the defend- ant ; that he then sent a copy of this entry to each of the parties ; and that when he next saw the defendant the latter objected to the terms of the bought note, and said he would not be bound by it. The witness added that he conceived he was authoiized to buy the hemp for the defendant on the terms mentioned in the sale-book. Park contended that the bought and sold notes Avere only sent on approbation, and the contract was not complete till they were agreed to by the parties ; that though consent might be inferred fi-om no ob- jection being taken, either party might disaffii-m the contract by giving immediate notice of his dissent ; that the broker was vested with pow- ers merely to propose the conditions of the bargain, but not finally to conclude it ; and that, as the defendant had taken the earliest oppor- tunity of informing Mr. Forrester that he was dissatisfied with the bought note, the present action could not be sustained. Lord Ellenborough. After the broker has entered the contract in his book, I am of opinion that neither party can recede fi:om it. The bought and sold note is not sent on approbation, nor does it con- stitute the contract. The entry made and signed by the broker, who is the agent of both parties, is alone the binding contract. What is called the bought and sold note is only a coj^y of the other, which would be valid and binding although no bought or sold note was ever sent to the vendor or purchaser. The defendant is equally liable in this case as if he had signed the entry in the broker's book with his own hand. It afterwards appeared that the hemp was not of the quality specified in the contract, and the plaintiff submitted to be nonsuited.^ 1 The authority of the broker may be countermanded at any time before a memo- randum of the contract of sale is written and signed by him pursuant to the Statute of Frauds, although he has previously entered into a verbal agreement to sell the goods. Farmer v. Robinson, cor. Lord Ellenborough, Guildhall, July 22, 1805. Action for not delivering a quantity of brimstone. The defendant had authorized a broker to sell some brimstone for him at a -certain price, and the broker had accordingl}' agreed to sell it to the plaintiff at that price ; but before the sale-note was made out the defendant countermanded the authority of the broker, and said that plaintiff should not have the goods. Lord Ellenborough held that under these circumstances the contract could not be enforced. 350 ALLEN V. BENNET. [CHAP. I. ALLEN V. BENNET. In the Common Pleas, July 4, 1810. [Reported in 3 Taunton, 169.] This was an action of assumpsit. The first count of the declaration was for not delivering to the plaintiff a parcel of rice : the second and third counts were upon the non-delivery of two several quantities of tobacco to the amount of many hundred pounds, pursuant to a con- tract made by the defendant's agent with the plaintiff. Upon tlie trial of the cause at the Warwick spring assizes, 1810, before Bayley, J., it appeared that the defendant's agent had written certain orders in a book, the property of the plaintiff, the first of which was, " Ordered of H. & G. Bennet, Liveqjool, 50 ban-els fine new rice, 33s. 2 months and 2 months, as per sample, in running numbers. W. Wright, August 23, 1809." Under this order had been written the following words : " This order to be executed if Mr. Allen does not hear from Bennet from Liv- erpool by Saturday ; " but these words were afterwards struck out, in consequence, as it apj^eared, of a letter of Bennets to Wright, dated 28th August, in which they authorized him to give Allen 2 and 2 months, and said that in order to have no disputes about quality they had sent him an average sample of the rice in hand : he should let Mr. Allen see it, and if not approved he was welcome to relinquish the transaction. It was in consequence of the same letter that the words " 2 months and 2 months " were inserted in the order, for which words a blank space Avas left on the 23d of August, when the entry was origi- nally made. The second order was, " From H. & G. Bennet, Liver- pool, 12 cwt. fine shag tobacco " (and other quantities of different sj^ec- ified sorts), " at 3s. 8(7. ; Id. per pound discount : bill in 2 months at — months. W. Wright, Sept. 11, 1809." The third order was, " H. & G. Bennet, Liverpool, 8 cwt. fine shag tobacco, 3s. 8c7. ; 2d. per jDound dis- count: bill in 2 months at 2 months. W.Wright, Sept. 12, 1809." The book in which these orders were written was not ordinarily used as an order-book ; it had no title, but was a sort of waste book, con- taining various memoranda of different natures; and the plaintiff's name was not found written upon or in any part of the book from the beginning to the end. There was no evidence that the plaintiff had signed any contract or j^ajier to bind himself. The defendants hesi- tated to execute the order ; and thereupon some correspondence took place between the parties, in the course of which the plaintiff on the 23d of September wrote a letter to the defendants, wherein, after giv- ing them references as to his credit, he added, " The eight hundred weight of fine shag tobacco I wish immediately forwarded, as I have SECT. VI.] ALLEN V. BENNET. 351 sold it and it is wanted. I likewise want the invoice of the rice and the other tobacco." It was objected for the defendant that this was not within the Statute of Frauds, 29 Car. 2, c. 3, § 17, a sufficient note in writing for the sale of these goods, inasmuch as it did not at all apj^ear by the contract who was the buyer : all that could be gathered from the entries was, that they were contracts entered into by Bennet to sell goods to persons not named, and who those persons were could not be sujjplied by parol evidence. Bayley, J., recollected the case of Egerton v. Mathews, G East, 307 ; and inasmuch as the merits were with the plaintiff", at least as to the rice, he refused to nonsuit him, but reserved the point, subject to which the jury found a verdict for the plaintiff" for £130. Tlie learned judge aftei-wards expressed his regret that he had not recommended to the parties that the plaintiff" should remit something of the damages and the defendants pay the residue, instead of their fighting the point. Shepherd., Serjt., in Easter term, 1810, accordingly moved for a rule nisi upon the authority of Champion v. Plummer, 1 New Rep. 252. In the case of Egerton v. Mathews, 6 East, 307, where the Court of King's Bench held a memorandum signed by the buyer only sufficient, it appeared by the contract who the seller was to be, which ingredient is here wanting, as it also was in the case of Chamijion v. Plummer, which was therefore distinguishable. With respect to the cases of con- tracts for the purchase of an interest in land, which will be cited, where a signature by one jiarty has been held sufficient, as in Seton v. Slade, 7 Ves. 275, it is observable that the 4th section requires only a note in writing signed by the party. Upon the 17th clause it was essential that the names of both the contracting parties should appear on the contract. He also made a second point, that the declaration alleged that the rice was to be paid for in two months from the date of the invoice : whereas the true construction of the order was, that it was to be paid for in two montjis from the delivery ; and the diff"erence was material, for the seller might send his invoice immediately, yet j^rotract the delivery, and so imj^roperly accelerate the pajnnent even to the day of delivery. [JVIaj^sfield, C. J. No doubt the two months would be explained by any merchant to be computed fi-om the date of the deliv- ery.] There was a further objection to the coiint on the second con- tract, that the declaration alleged it was to be paid by a bill at — months, which was too uncertain, and the niunber of months agreed on could not be supj^lied by j^arol evidence. The court granted a rule nisi on all the points. Best and Vmighan, Serjts., in this term shewed cause. They relied on the plaintiff''s letter of the 23d of September as evidence that the plaintiff' was a party to the contract, inasmuch as it referred to tlie iden- tical order for 8 cwt. entered in the book. [Majtsfield, C. J. The objec- ,tion is not that there is no assent of the plaintiff", but that it does not 852 ALLEN V. BENNET. [CHAP. I. appear by the memorandum who the buyer was.] It is not necessary that the contract should express either who the buyer was or who the seller was : it is sufficient if there be a memorandum or note in writing signed by the parties to be charged ; but if it be necessary to prove by writing who was the buyer, it is proved by the correspondence. The Legislature knowing the hurry of commercial dealings directed that it should be sufficient if there were any memorandum signed by the par- ties to be charged. And here the parties whom the plaintiff seeks to charge have by their agent signed a memorandum for the sale of the goods. Egerton v. Mathews is decisive on this point. There was no signature in that memorandum to bind Egerton ; and though it is true that Egerton was there named and the plaintiff here is not named, yet the writing these contracts in the plaintiff's book is at least equivalent to the naming him in that case ; and Lord Ellenborough, C. J., there decided that it sufficed if the memorandum were signed with the name of the party to be charged therewith. [Lawrence, J. If the plain- tiff's name had been in this book, I suppose there would have been no doubt about it ; and that brings it to the case of Champion v. Plummer.] To make this case parallel to that of Egerton v. Mathews it is only requisite that there be some writing signed by the defendant, introduc- ing the name of the plaintiff; and this name is found in the defendant's letter of the 28th August to their agent Wright. In the case of Saunderson v. Jackson, 2 Bos. & Pull. 238, the name of the buyer is not at first inserted in the contract, but a letter is found referring to it, which was admitted ; and it is only necessary to do here the same thing which was done in that case ; to connect together the two papers which refer to each other. Shepherd, contra. The case is now put upon a wholly different ground from that which it assumed at the trial, whereon these letters were produced, not for the purpose of eking out the evidence of the contract under the Statute of Frauds, but to prove the authority from the defendants to Wright to make the contract for them, which was then disputed, but which the jury distinctly found to have been given. Saunderson v. Jackson was not decided on the ground that another letter could be connected with the contract : the only question there was, whether there was a sufficient signature of the sellers ; and it was argued for the buyers, that whether the seller's name were printed or written, whether it were put at the top or the bottom of the paper, was immaterial ; and it was merely decided that there was a sufficient signature by the seller to satisfy the statute. The point now in question was never there mooted. [M.vnsfield, C. J., and Lawrence, J. The case decided thus much, that, supposing the name printed upon the bill of parcels would not suffice, the name might be supplied from the let- ter sent by the sellers. Mansfield, C. J. If the signature of one of the contracting parties might be supplied by a letter written by him, SECT. VI.] ALLEN V. BENNET. 353 a fortiori may a letter be used to sIioav who the buyer is, that buyer not being the party sought to be charged. There have been many cases in chancery, some of which I think have been earned too far, where the court has ])icked out a contract fi-om letters in which the parties never certainly contemjilated that a complete contract was con- tained. "Where a broker is introduced, tlie signature of the broker is the signature both of the buyer and of the seller ; but this is not such a signature. This letter of the 28th of August gives permission that the ])laintiif might take or relinquish the transaction, just as he pleased. What transaction? A purchase of the rice to be sure!] There is another material point. A promise made in writing to satisfy the Statute of Frauds, if made -svathout consideration, is- not more binding than a parol promise without consideration, made in a case that does not require writing. [Heath, J., ace] If there be a binding promise on one side, it is a good consideration for a promise on the other side ; but in this case there is no .signature by the plaintiff upon which he coidd be charged, if the defendants had occasion to sue on the contract ; and if that be so, then there is no consideration for the promise of the defendants upon which the plaintiff now seeks to charge them. How can the Statute of Frauds so operate as to make the written promise on one side valid, when it destroys the consid- eration for that promise and (which at common law would have been a good consideration) the vaUdity of the jjromise on the other side to buy the goods ? [Maxsfield, C. J. No such objection was ever taken in the case of Champion v. Plummer : it was there taken for gi-anted that there was a good consideration for the promise, if there was a signature in writing; and the words of the statute seem strongly to coun- tenance such an inteqiretation, " signed by the parties to be charged therewith."] The words are, " signed by the parties to be charged by such contract ; " and without a consideration there cannot be a sim- ple contract. Again, even if the contract may be supplied by subse- quent writings, yet it cannot be eked out by parol evidence. The declaration for the rice alleges a contract for payment at two months, and two months from the date of the invoice ; and there is no evi- dence in \vTiting that the time of the payment was to be computed fi'om the date of the iuA'oice. [ Vauglmn objecting that this defence had never been made at the trial, the court were unanimous that it could not now be taken.] Maxspield, C. J. To be sure this case at first sight comes near to the case of Champion v. Plummer; and the objection certainly there was, that the memorandum was not signed by the purchaser : that was a note made in what the report calls a common memorandum book; this book certainly was not like what I at first apprehended it to be, until it was produced ; for I at first thought this had been an order- book, with several orders signed by tlie pei'sons who ordered them ; and VOL. I. 23 354 ALLEN V. BENNET. [CHAP. I. I thought that where such an order was inserted in a regular order-book, and supposing that the person to whom it belonged, the place in which it was kept, and the purpose for which it was employed, were conso- nant, it would in that case be no great sti-etch to say this was a ground for infemng that these entries were made by the authority of the owner of the book for the purpose of evidencing the sale. But in this book, though not appropriated to the entering of orders, Wright writes as Bennet's agent. The defendants' counsel distinguishes be- tween an order and an agreement to buy; but if I go to a shop and order goods, do I not agree to buy them? The objection is, that the name of the buyer does not appear in this book ; but if it sufficiently appears that a sale was agreed on, I see no objection why it should not be made out what was the name of the buyer by the writing of these very defendants. In the first place, in this very letter wherein they give the time of payment of two months and two months, which is afterwards found in this very book, the buyer's name is twice men- tioned ; and in that letter they give him liberty to relinquish the transaction. It is in wi'iting, and it is [so] evidently connected with the contract that no doubt it may be coupled with the order in that order- book ; and a valid contract may be established by the evidence of sev- eral writings, as we often see at nisiprius. It was then objected that one party who has not signed is not bound ; but the fact was the same in the cases of Egerton v. Mathews and Champion v. Plummer, and the objection was never taken in either of these cases; but the whole of this case suj)poses that the plaintiff had agreed ; suppose he has not contracted by wiiting, he has by parol, and he is bound in honor ; and it has never yet been decided that an obligation in honor would not be a good consideration. All these cases — Egerton v. Mathews, Saunderson v. Jackson, and Champion v. Plummer — suppose a signa- ture by a seller to be sufficient ; and every one knows it is the daily practice of the court of chancery to establish contracts signed by one person only, and yet a court of equity can no more dispense with the Statute of Frauds than a court of law can : there is no reason there- fore to set aside the verdict, and the rule must be discharged. Heath, J., was of the same opinion ; and there is a case in Strange ^ by which it appears that a voidable promise is a sufficient consideration for a i^romise. Laweence, J. It is sufficiently e\ddent that this contract was entered into by the authority of the defendants. It is stipulated, " this order to be executed if Mr. Allen does not hear from Bennet from Liv- erpool by Saturday." A letter comes, and the conditional parts of the order are struck out, and other terms of the time of payment are added : can you then say that this entry is not made by the authority of 1 Qucere, whether Barjeau v. Walmesley, Str. 1249, be here meant. [Qucere, whether Holt V. Ward Clarencieux, 2 Strange, 937, be not meant. — Ed.] SECT. VI.] COOPER V. SMITH. 355 the plaintiff, when he writes to the defendants on the 23d of Septem- ber insisting on the j^crformance of the contract? Then as to the want of consideration, that objection Avould quite ovei'tuiTi the cases of Egerton v. Mathews, Saunderson v. Jackson, and Cliampion v. Plum- mer; and the Statute of Frauds clearly supposes tlie probability of there being a signature by one person only : it speaks indeed of the buyer accepting a part of the goods, as contemplating that the buyer would be thereby bound; but the statute seems to be made chiefly for the security of buyers. Hide discharged. COOPER V. SMITH. In the King's Bench, February 6, 1812. \Reported in 15 East, 103.] This was an action for goods sold and delivered, which was tried before Le Blanc, J., at Worcester ; and the question was, Avhcther there was sufficient evidence given of a contract in order to bind the defendant Avithin the Statute of Frauds, 29 Car. 2, c. 3, § 17. The evidence was of an entry in the order-book of the plaintiff's rider, who was employed by him in taking orders for flour from his difterent customers, which entry was dated the " 19th Febi'uary, 1811," and ran thus: "Of John Smith, £64 Os. Of/." (This was explained by testimony to mean so much money received of the defendant in satisfaction of a former order.) And then followed: "Do. 40 of 3. — 58s." (which was explained to mean a new order for 40 sacks of flour, called thirds, at 58s. a sack). There was no signature of either of the parties or of the witness who made the entry; but he proved at the trial that after he had taken down the order in his book the defendant desired him to read it over to him, which the witness did. He then proved that the flour was forwarded to Pitch- fork's wharf at Tutbury, for the defendant, on the 6th of March. And then a letter Avas i)roved which had been sent from the defendant to the plaintiff" on the 8th of March, 1811, when it bore date, at which time the flour had not reached the defendant. The letter was as fol- lows : — Mr. Cooper. Sir, — Your not cominj; or sending tlie flour I agreed with you for according to time, I am now provided for ; therefore it will not suit me to receive yours, as the price is lower. I have been offered flour a great deal lower this day. I expected \ours in the course of a week from the time you were at my house. If I buy of any man I expect it according to time, or the bargain is void. (Signed by the defendant. 356 COOPER V. SMITH. [CHAP. I. In answer to this a letter was sent by the plaintiff, dated — TuTBUEY Mill, March 21st, 1811. Sm, — The 40 sacks of flour my brother sold you I understand you have refused to receive, on the score of its being out of time, which circumstance remains to be proved, and which I shall put to the test. However, I beg to inform you that the flour is now at Pitchfork's wharf and at your risk ; and when the payment becomes due we will see how the matter stands. (Signed by the plaintiff.) There was further proof of an invoice sent by the plaintiff to the defendant : — Ttjtbury, March 5th, 1811. Mr. J. Smith Bought of G. Cooper 40 sacks of 3ds 58s. £116 Os. Od. 40 sacks 6s. 10 £126 Os. Od. Accompanied by a note from Cooper's clerk, addressed to the defendant : — Sir, — The above was yesterday forwarded per Smith and Son's boat, which I have no doubt will be with you very soon. There was also proof of demand of payment by the plaintiff, and refusal by the defendant, before the action brought. The objection taken was that this was not a good bargain to bind the defendant within the Statute of Frauds, the memorandum not being made and signed by the parties to be charged therewith or by their agents law- fully authorized; and that this was not supplied by Smith's letter, which, though it admitted a bargain made for flour, yet insisted that it was to be delivered within a week ; and that he had rejected it because it was not delivered in time. The fact of the contract as proved by the plaintiff's witness being left to the jury, they found for the plaintiff; but the question of law was reserved by the learned judge. Jervis moved in the last term to set aside the verdict, and enter a nonsuit upon the objection taken at the trial ; distinguishing this from the case of Saunderson v. Jackson,^ where the name of the vendor, who was the defendant in the action for non-delivery of the goods, was printed in the bill of parcels delivered by him to the vendee at the time of the order given for them, in which bill of parcels the purchaser's name was also inserted, ^ and a letter was afterwards sent by the vendor to the vendee referring to the order; and from Egerton v. Mathews,^ where the memorandum of sale was signed by the vendee who was charged, though not by the vendor who was the 1 2 Bos. & Pull. 238. 2 This was stated in Champion v. Plummer, 1 New Kep. 254. 8 6 East, 307. SECT. VI.] COOPER V. SMITH. 357 plaintiff' in the action ; but which memorandum contained in itself the names of both parties, and all other indicia of a perfect contract. Here, he observed, the seller's name was not mentioned in the contract, which in that and other respects was to be supplied l)y parol evidence ; and there was nothing in writing on the part of the purchaser who was to be charged, except the subsequent letter, which disaffirmed the contract as proved by the plaintiff's agent: the case therefore Btood upon the original memorandum, which not being evidence to bind the seller Avithin the statute could not bind the purchaser. And he likened this to the case of Chamjnon v. Plummer,' where the memorandum of sale not mentioning the name of the i)urchaser, and signed only by the seller, was held insufficient to bind the latter in an action for the non-delivery of the goods. The court upon granting the rule nisi inquired whether the order- book, which they desired to see when the cause came on again, pur- ported on the face of it to be a memorandum book of the orders received by the plaintiff. But nothing of the kind appeared, as it was afterwards admitted; and therefore the case stood upon the evidence before mentioned, as it appeared upon the learned judge's report. Puller now shewed cause against the rule, and endeavored to shew that the plaintiff's rider who took the order was the agent of both parties, adopted by the defendant at the time by his makmg him read over the contract to him immediately after it was written, and thereby assenting to his agency and making the wi'itten contract his own ; as in the case of a broker, who though employed by the seller has been held to bind the buyer also by the writing and delivery of the bought and sold notes to the respective parties ; which was first admitted by Lord Kenyon in Rucker v. Cammeyer,'^ and has since been frequently recognized. Though he admitted that in Wright v. Daunah,^ where the memorandum was written by the seller himself, though overlooked by the buyer at the time, who made him alter it in part, Lord Pollen- borough did not consider that as an adoption of the seller by the buyer as his agent, holding it necessary that the agent .to be so adopted should be some third person, and not one of the contracting parties. But that exception does not apply to this case. He also observed upon the adoption in part of the contract by the letter of the defendant, written afterwards (as in Saunderson v. Jackson) ; and though the defendant therein insisted upon the delivery of the goods within a certain time as a term in the contract, which did not appear to have been done, still he admitted the sale, which was sufficient to take the case out of the statute ; and it then became a question for the jury whether the delivery was in time; which fact they had 1 1 New Rep. 252. 2 i Esp. N. P. Cas. 105. 3 2 Campb. N. P. Cas. 203. 358 CUFF V. PENN. [CHAP. I. found for the plaintiff, according to the evidence of the plaintiff's witness. Lord Ellenborotjgh, C. J. The plaintiff cannot avail himself of that letter as evidence of the contract for one purpose, to bind the defendant within the statute, and renounce it for another purpose, but he must take it altogether ; and then it falsifies the contract proved by parol testimony for the plaintiff. Here there was neither the signature of the parties nor of their agent to bind the bargain. Le Blanc, J. The letter of the defendant referred to a different contract from that proved on the part of the plaintiff, which puts him out of court, instead of being a recognition of the same contract, as in a former case. Per Curiam,^ HuU absohite to enter a nonsuit. CUFF AND Others v. PENN, In the King's Bench, Januaey 25, 1813. [Reported in 1 Maule Sf Sehvyn, 21.] In an action of assumpsit for not accepting a quantity of bacon, the case was this: The plaintiffs having offered to sell the defendant 300 hogs of bacon, the defendant on the 10th of April, 1807, wrote to the plaintiffs the following letter : — Messrs. Cuff, Dickinson, and Cuff, I agree to accept your offer of 300 hogs of bacon, to be delivered at such times and in such quantities as mentioned beneath, at 69s. per cwt., each parcel to be paid for at two months after delivery, viz. : — April 20th 25 hogs. May 10th 25 „ „ 20th 25 „ June 10th 50 „ „ 24:th 50 „ July 14th 50 „ „ 24th . . . ■ . . . 50 „ Aug. 10th 25 „ 300 J. Penn. On the 21st of April (and not on the 20th as stipulated in the con- tract) the first delivery was made ; but it appeared tlvit the defendant 1 Bayley, J., was sitting at GuildhalL SECT. VI.] CUFF V. PENN. 359 did not make any objection on that ground. After the third delivery, viz., on the 5th of Juno, the defendant wrote to the plaintiffs informing them that he should want the next delivery of hacon as soon as it could be got ready. On the 10th of June the defendant attended at the plaintiffs' warehouse, and 84 sides were then weighed in his presence; and on the 2d of July he again called on the plaintiffs, and told them as the sale of bacon was very dull he hoped that they would not pjess it on him, and they assured him they would not : 84 sides were weighed at this time, and a further quantity was weighed on the 10th of July. The plaintiffs, having forborne to deliver any more bacon for some time, at length informed the defendant that he had exceeded a reasonable time, and requested him to name a time for delivery. This the defendant declined, observing that the sales were very dull. Similar applica- tions having been afterwards made to the defendant witliout effect, the plaintiffs on the 28th September wrote to the defendant informing him " that on the 30th instant the remainder of the bacon would be weighed at their warehouse, and that he might see it weighed if he thought proper ; if not, they should weigh it off and deliver it to him in the coui-se of that day." After the receipt of this letter the defendant called on the plaintiffs, and said there was no contract ; to which they answered that they had his handwriting and should insist on the contract ; the defendant replied there was no use in sending the bacoti, as he would not take it. On the 30th of September the remainder of the bacon was weighed and sent to the defendant's house, but he refused to receive it. In the first count of the declara- tion the contract was stated according to the terms of the defendant's letter of the 10th of April ; and the declaration then averred that the plaintiffs delivered a part of the bacon, which was accepted and paid for by the defendant under the contract; and that the plaintiffs offered to deliver the residue, but the defendant would not accept the same. In the second count, after setting forth the contract of the 10th of April, it was averred that the plaintiffs had delivered a certain quantity of bacon, which was accepted by the defendant ; and that the plaintiffs intended and were about to deliver the residue under the contract, but the defendant on the 2d of July, 1807, discharged the plaintiffs from such delivery, and requested them not to deliver any more bacon until further orders from the defendant, Avhich the plain- tiffs agreed to do ; and thereupon in consideration of the premises, and also in consideration that the plaintiffs had agreed to deliver the residue of the bacon according to such orders within a reasonable time, the defendant promised to give such orders and accejjt the residue of the bacon within a reasonable time, and to jiay for the same according to the terms of the original contract ; that on the 30th of September, 1807, the j^laintiffs offered to deliver the residue, which 360 CUFF V. PENN. [chap. 1. the defendant refused to accept. The thh-d count was similar to the second, except that it stated that the defendant requested the plain- tiffs to postpone the delivery of the residue of the bacon for a reason- able time. At the trial before Lord Ellenborough, C. J., at the London sittings after last Trinity term, it was objected on the part of the defendant that this was a written contract for the sale and purchase of goods, and could not be varied by parol ; but if the subseqiaent parol agreement was to be considered not as varying the written contract, but as sub- stituting a new one in its place, then it was void by the Statute of Frauds, there being neither a part acceptance nor a part payment under it. But his Lordship was of opinion that this was a dispensa- tion only with the performance of the original contract in respect of the delivery of the bacon at the stipulated times, and directed the jury to find a verdict for plaintiffs, with liberty to the defendant to move to enter a nonsuit : a verdict was accordingly given for the plaintiffs upon the second and third covmts ; and Marryat in the last term ob- tained a rule nisi for entering a nonsuit. The Solicitor - General^ Park, and ZiUices, now shewed cause, and contended that the Statute of Frauds ^ only required that the contract of sale should be in wi'iting, not that the contract for delivery should be so : in this case there was a written contract of sale, and the post- ponement of the delivery was in the nature only of an enlargement of the time for performing it. In Warren v. Stagg,^ cited in Littler v. Holland,^ Buller, J., held that an agreement to extend the time for the performance of a conti'act was not a waiver, but a continuation of the original contract ; and it never occun'ed in that case that there was any necessity for written evidence of such agreement. Here the dec- laration contains counts on the original agreement, as well as on the agreement to postpone the delivery of the residue of the bacon ; and even admitting that a delivery was necessary under this latter agi^ee- ment to constitute a part acceptance within the terms of the statute, the weighing out the 84 sides amounted to a delivery : it would have been a good transfer of the property to the vendee in the ordinary case of sale and purchase ; so that if a fire bad happened afterwards, according to the authority of Rugg v. JNIinett,* the loss would have fallen on the purchaser. Marryat and Gurney, contra. The second class of counts upon which the verdict was taken cannot be sustained under the Statute of Frauds. The original contract was an entire contract as to price, quantity, and the times of delivery ; and parol e\idence varying the terms of the contract in any of these i-espects ought not to be re- ceived. It would be as dangerous in its consequences to allow parol 1 29 Car. 2, c. 3, § 17. 23 t. R. 591. 3 3 T. R. 591. 4 11 East, 210. SECT. VI.] CUFF V. PENN. 3G1 terms to be engrafted on a written contract as to allow a parol contract to be enforced in the first instance. Parol evidence, offered for the pur- pose of connecting two written instruments not having an immediate or necessary reference to each other, has been refused ; ^ and the attempt in the present case goes one step further than that, for it is an attempt to connect by parol evidence a written and a parol contract. In Powell V. Divett,^ Bayley, J., said that " without a wTitten contract the case would be within the Statute of Frauds; and the mischief would be the same if parol evidence were let in to shew how much of the contract was good and how much bad." The time of delivery in this case is as essential as the price or the quantity ; for there is a greater demand for the article at one season than at another. Is it competent then to the party to vary the time by parol ? This would let in all the inconveniences which were intended to be obviated by the Statute of Frauds. If new times may be substituted, so may new prices or new quantities. As to the case of Warren v. Stagg, no question was there made upon the Statute of Frauds : the only question was whether the contract proved was different fi'om that laid in the declaration ; and Littler v. Holland is contrary. That indeed was an action of covenant ; but Lord Kenyon there cited the case of an action between Garrick and Barry, where the court held that articles of agreement, which did not appear to be under seal, could not be dispensed with by parol. Lord Ellexborough, C. J. I think this case has been argued very much on a misunderstanding of the Statute of Frauds, and the ques- tion has been embarrassed by confounding two subjects quite distinct in their nature ; namely, the provisions of that statute and the rule of law whereby a party is precluded fi'om giving parol evidence to vary a written contract. The principal design of the Statute of Frauds was that parties should not have imposed on them burdensome contracts which they never made, and be fixed with goods Avhich they never contemplated to purchase. But by the express provisions of that stat- ute it is only necessary, in order to make a contract for a sale of goods binding upon the parties, that there should be either a note or a memo- randum of the bargain in writing ; or if there be no writing, that there should be a part payment by way of earnest or a part acceptance of the goods. In the present case there exist two indicia pointed out by the statute, viz., a contract for sale in writing and a part performance, so that not only the literal intention but the spirit also of the statute is satisfied. The objection then does not found itself upon a non- compliance with the provisions of that statute, but is more properly this : that an agreement once made in writing cannot be varied by parol. If this agreement had been varied by parol, I should have thought on the authority of Meres v. Ansell ^ that there would have 1 Boydell v. Drummond, 11 East, 142. 2 15 East, 32. 3 3 Wils. 275. 362 SCHNEIDER V. NORRIS. [CHAP. I. been strong ground for the objection. But here what has been done is only in performance of the original contract. It is admitted that there was an agreed substitution of other days than those originally specified for its performance : still the contract remains. Suppose a delivery of live hogs instead of the bacon had been substituted and accepted, might not that have been given in evidence as accord and satisfaction ? So here the parties have chosen to take a substituted performance. It is clear that neither of them in the outset thought it necessary to stand on the letter of the agreement ; for the first deliv- ery was to have taken place on the 20th of April, and was not made until the 21st, and yet no objection was then taken. Afterwards a new mode of delivery is substituted at the defendant's express request. I am of opinion therefore that neither has the Statute. of Frauds been trenched upon, nor has any rule of law respecting parol evidence not being admissible to vary a written agreement been violated in this instance. Per Curiam, Hule discharged. SCHNEIDER anb Another v. NORRIS. ' In the King's Bench, January 25, 1814. [Reported in 2 Maule Sp Selwyn, 286.] Case for the non-delivery of cotton yarn pursuant to agreement. Plea, general issue. At the trial before Lord Ellenborough, C. J., at the last Lon- don sittings, it appeared that the plaintiffs on the 24th of October, 1812, purchased of the defendant, who was employed to sell on commission, a quantity of cotton yarn, of which a bill of parcels Avas sent by the defendant to the plaintiffs, not however at the time of the contract, and at what precise time did not appear. The bill of parcels was headed thus: "London, 24th October, 1812. Messi's. John Schneider & Co. bought of Thomas Norris & Coi, agents. Cot- ton yarn and piece goods. No. 3, Fi-eeman's Court, Cornhill," — the whole of which was printed, except the words " Messi'S. John Schnei- der & Co.," which were in the handwriting of the defendant. Then followed a list of the articles sold, ^vith the particulars and quantity, and the prices annexed. On the 23d of December the plaintiffs demanded the yai'n from the defendant, who refused to deliver it, alleging that his principal had declined performing the contract. It was objected upon this evidence that there was not any note or memorandum in writing of the bargain as required by the Statute of SECT. VI.] SCHNEIDER V. NORMS. 363 Frauds ; in answer to Avliich the case of Saunderson v. Jackson ^ was relied on. His Lordship overruled the objection, and thereupon the plaintiifs obtained a verdict. Topping moved to set aside the verdict and enter a nonsuit, renew- ing his objection ; and as to Saunderson v. Jackson, he said besides the printed bill of parcels there was a letter written by the defendants in that case ; and therefore the court agreed that although the letter, which did not state the terms of the agreement, would not alone have been sufficient, yet as the jury had connected it with the bill of parcels, and the letter was signed by the defendants, there was a Avritten note or memorandum of the order which was origin- ally given by the plaintiff, signed by the defendants, which took the case out of the Statute of Frauds. In this case there is no proof of any signature by the defendant, and the statute expressly requires that "some note or memorandum in writing be made and signed by the parties to be charged or their agents." The term "sign- ing" has a peculiar and appropriate meaning, and may be defined a rati- fying by writing ; but printing is not equivalent to writing. The law distinguishes in many cases betAveen matters wiitten, printed, and enirrossed. Thus Lord Coke, in his comment on the words "except the same bargain and sale be made in writing," in the Statute of In- rolments, 27 H. 8, c. 16,^ says : " It must be by writing, and not by print or stamp." So the statute 44 G. 3, c. 98, § 24, distinguishes between things required by law to be engrossed, printed, or wiitten. Again Lord Coke says : " A deed signifieth an instrument in writing ; ® it must also have the name of the party to be bound by it." In like manner here the note must be in writing, and must be signed by the party to be charged or by his agent ; that is, his own name must be signed, and the name of another written without any authority is not equivalent. It is for the protection of the party to be charged that a signature is required, and therefore no substitution ought to be allowed. Lord ELLEXBOROUon, C. J. I cannot but think that a construction which went the length of holding that in no case a printing or any other form of signature could be substituted in lieu of Avriting would be going a great way, considering how many instances may occm' in which the parties contracting are unable to sign. If indeed this case had rested merely on the printed name, unrecognized by and not brought home to the party as having been printed by him or by his authority, so that the printed name had been unai)propriate(l to the particular contract, it might have afforded some doubt whether it would not be intrenching upon the statute to have admitted it. But here there is a signing by the party to be charged by words recognizing the 1 2 B. & P. 238. See 1 N. R. 254, per Shepherd, Serjt., arguendo. 2 2 Inst. 672. 3 Co. Lit. 171 6, 864 THOENTON V. KEMPSTER. [CHAP. I. printed name as mucli as if he had subscribed his mark to it, which is strictly the meaning of signing, and by that the party has incorporated and avowed the thing printed to be his ; and it is the same in substance as if he had written Norris & Co. with his own hand. He has by his handwriting in effect said, I acknowledge what I have written to be for the purpose of exhibiting my recognition of the within contract. I entertained the same ojiinion at the trial, and cannot say that it has been changed by the argument. It appears to me therefore that the printed name thus recognized is a signature sufficient to take this case out of the statute. Le Blanc, J. Suppose the defendant had stamped the bill of par- cels with his own name, would not that have been sufficient ? Such a stamping as it seems to me, if required to be done by the party himself or by his authority, would afford the same protection as signing. Bayley, J. This case is entirely out of the mischief of the statute, the object of which was to protect parties from being bound by con- tracts unless it could be seen that the terms on which they contracted were under their signature. Here the terms of this contract are recog- nized by the defendant, who is the party to be charged, by his signing the name of Schneider & Co., which is a sufficient signing by him to recognize that they had bought and he had sold. Dampier, J. In Saunderson v. Jackson it did not appear that there was any signature to the bill of parcels : it was only by connecting the letter with the bill of parcels that the case was taken out of the stat- ute. Here there is the handwriting of the party to be charged to the bill of parcels, which authenticates it as a memorandum of the bargain. The defendant has ratified the sale to Schneider & Co. by inserting their name as buyer to a paper in which he recognizes himself as seller. That is sufficient to satisfy the object of the statute. Hide refused. THORNTON akd Others v. KEMPSTER. In the Common Pleas, November 22, 1814. [Repoi-ted in 5 Taunton, 786.] The plaintiffs declared upon a contract, whereby the defendant agreed to purchase of them, who then agreed to sell to the defendant, a certain quantity, to wit, 10 tons of sound and merchantable St. Peters- burg clean hemp, ex Annetta, of the plaintiffs', at a certain price, to wit, £88 per ton, to be paid for as therein specified, and averred a breach in the defendant's not receiving the hemp and paying for it accordingly. 8ECT. VI.] THORNTON V. KEMPSTER. 365 The third count stated a contract by the plaintiiFs to sell to tlie defend- ant 10 other tons of hemp (not specifying the quality), and a similar breacli. The action was tried at the London sittings after Trinity term, 1814, before Gibbs, C. J., when it appeared that the plaintiffs Ijcing pos- sessed of a quantity of Petersburg clean hemj) employed a broker to sell it, who acted as broker for both parties, and after contracting for the sale had signed and delivered to the defendant a sale-note in the following terms : " Bought for account of the defendant from the plain- tiffs 10 tons sound and merchantable Riga Rhine hqmp, ex Annetta" and subjoined the price and mode of payment. But he delivered to the plaintiffs a sale-note, stating the defendant to have bought of the plaintiffs 10 tons of St. Petersburg clean hemp (subjoining the price and terms), ex Annetta. The description of hemp contained in the first-mentioned note was inserted by mistake of the broker, and desig- nated goods of a materially different quality fi'om and higher value than those described in the last. It was first objected that there was a variance between the description of the hemp alleged to be sold in the first count and the descrijition contained in the sale-note delivered to the defendant ; but the plaintiffs being enabled by their third count to recover upon a contract for the sale of hemp of any description, it was then objected that there was no contract between the parties for the sale of any hemp whatever. Gibbs, C. J., thought that there was no mutuality, the bi'oker who was the agent of both having done nothing which bound both parties to the same bargain ; but permitted the jury to find a verdict for the plaintiffs, subject to the point reserved. Accordingly Pell, Serjt., in this term obtained a rule nisi to set aside the verdict and enter a nonsuit ; against which Shepherd, Solicitor-General, on this day shewed cause. He con- tended that the plaintifis were not bound by the paper which had been delivered to the defendant, but that they might, without calling for the production of that paper, recover on proof of the sale-note which the broker who was agent for the defendant had delivered to themselves, and which therefore alone sufficiently constituted a contract binding upon the defendant ; and that if the j)laintiffs proceeded to enforce that contract, the defendant did not disjjrove its existence by shewing the existence of another instrument of contract, which he on the other hand might pei'haps likewise enforce. The Court desired him to consider it in the same light as if there had been no intervention of a broker, but the plaintiffs had with their own hand delivered to the defendant the one note, and the defendant had with his own hand deUvered to the plaintiffs the other note ; in what condition would the parties then stand ? or Avhat contract would there be subsisting between them ? For the contract must be on the one side to sell, and on the other side to accept, one and the same thing. It had truly been urged that contracts might subsist which by 366 DICKENSON V. LILWAL. [CHAP. I. reason of the Statute of Frauds could be enforced by one party, although they could not be enforced by the other party : but the Stat- ute of Frauds in that respect threw a difficulty in the way of the evi- dence : the objection did not interfere with the substance of the con- tract ; and it was the negligence of the other party that he did not take care to obtain and preserve admissible evidence to enable himself also to enforce it. But the objection in the present case went to the substance of the conti-act : the parties, so far as appeared, had never agreed that the one should buy and the other accept the same thing; consequently there was no agreement subsisting between them. The rule therefore must be made Absolute} DICKENSON V. LILWAL and Others. At Nisi JPrius, coram Lord Ellenborough, 1815. ' ■ [Reported in 1 Slarkie, 128.] Assumpsit on an alleged breach of a contract to deliver goods bar- gained and sold. The defendants on the 30th of June had authorized Grainger their broker to sell for them a quantity of Irish butter which they expected from Ireland. On the 6th of July Grainger, without any intermediate communication with his principals, sold to the plaintiff 250 firkins of butter at the rate specified by his employers. He made no entry of the sale in his own book, but shortly afterwards made a note in the fol- lowing terms, which he took to the defendants: — Sold for Lilwal & Co. to Dickenson 250 firkins of Hunt's Waterford butter, at 100s. for the best quality and the usual difference for inferior quality ; shipped in the month of July, and payable by bill at two months, &c. Lilwal & Co. dissented from the contract on the ground that their agent was not authorized to make it without a more recent order, and Grainger tore the note, and upon the trial gave parol evidence of the contents. Park, for the defendants, contended that in order to satisfy the Stat- ute of Frauds it was necessary that the broker shoiild make an entry 1 " If the broker deliver a different note of the contract to each party contracting, tliere is no vahd contract. There is, I beUeve, a case which states the entry in the broker's book to be the original contract, but it has been since contradicted. Each is bound by the note which the broker delivers ; and if different notes are given to the parties, neither can understand the other." Gibbs, C. J., Gumming v. Roebuck, Holt, N. P. 172.— Ed. SECT. VI.] ROWE V. OSBORNE. 367 of the contract in his own books, and that a sold note was not suffi- cient, and cited Hinde v. Whitehouse.^ Garrow, A. G., for the plaintiff. If it had been held that the broker was bound to make an entry in his own book in the first instance, it might have been a rule of great convenience ; but this is not necessary : the broker has made a complete record of the contract by making a complete sold note, and the defendants having by their conduct pre- vented the execution of the "contract it was nugatory to multiply copies. Lord Ellenborougii. In the case of Hinde v. Whitehouse the entry in the book was considered as the contract, and the bought and sold notes were merely evidence of it. That case does not go the length of deciding that, where no entry is made in the broker's book, the bought and sold notes may not be sufficient to satisfy the statute. I do not know that the question in the present form has been brought before the consideration of the court, and therefore I Avill reserve the point. Any memorandum of the contract is sufficient to save the Statute of Frauds, although each party may not have the producible benefit of it. The defendants afterwards proved, by the concurrent testimony of a great number of Irish provision merchants and brokers, that according to the established practice and usage of the trade the authority of the broker (as between himself and his principal) to sell expires with the day on which the authority is given, unless it be extended by some special authority to a future day, and that it had been the usual course for the broker to apj^ly for a renewed authority from his principal everj- morning. The custom having been fully established, the counsel for the plain- tiff elected to be nonsuited. ROWE V. OSBORNE. At Nisi Prius, coram Lord Ellenborough, 1815. [Reported in 1 Starhie, 140.] AssuiMPSiT on a special agreement for the purchase of a quantity of bacon ; breach alleged in not accepting bills of exchange in pajTuent according to the agreement. The contract was made between the defendant, a trader in London, with the plaintiff, a dealer in Ireland, through the medium of Penny, a broker, who delivered a note to the plaintiff signed by Osborne in the following terms : — » 7 East, 558. 368 SOAMES V. SPENCER. [CHAP. I. March 28, 1815. Bought of Rowe & Co., through Thomas Penny, 100 bales of prime singed bacon at 565. per cwt. free on board ; weight 24 to 28 per 10 bales, to be shipped next month, and drawn for 60 days from the date of the bill of lading ; warranted weight upon landing; deficiency, if any, to be settled by Mr. Penny. The Attorney -General, for the defendant, objected that the declara- tion which stated the clause as to deficiency as part of the contract varied from the contract, since the note of the contract sent to the defendant, by which alone, as he contended, the defendant was bound, contained no such stipulation. But Lord Ellenborough was of opinion that the note of the contract given in evidence, and which was signed by the defendant, was evi- dence against him that this was the real contract.^ ... SOAMES AKD Another v. SPENCER and Another. In the King's Bench, January 28, 1822. [Reported in 1 Dowling ^ Ryland, 32.] Assumpsit on a contract for the sale of 90 tons of oil, ^:»er ship Naiad. Plea, the general issue, 7ion assumjmt. At the trial before Abbott, C. J., at the Guildhall sittings after last term, the plaintiff had a verdict. The case was this : Messrs. Soames and Tennant the plaintiffs were jointly interested in part. of the cargo of the ship Naiad. Before the arrival of the vessel, Soames, without the knowledge or authority of Tennant, sold the oil in question, in which they were jointly interested, to the defendants, through the medium of Lintot a broker. The only evidence of the contract was the broker's note signed by the broker, but Tennant was not named in the note. Some time after this, Ten- nant hearing of the contract wi'ote to the defendants, apprising them that he was jointly interested in the oil with Soames, that the contract had been entered into without his knowledge or authority, and that he considered himself released from and would not be bound by it. A communication then took place between the defendants and Tennant, who endeavored to prevail upon them to release him from the contract ; but they declined, saying they would hold him and the other plaintiff to it. In consequence of this intimation Tennant acquiesced, and said the oil " then must be delivered." All this took place in the month of September, 1819, before the vessel amved, each party considering him- 1 The remainder of the case relates to a different question. — Ed. SECT. VI.] SOAMES V. SPENCER. 369 self bound by the contract. The vessel amved in January, 1820, and then Lintot the broker waited on the defendants with sanii)les. He saw one of the defendants, to whom the samples were delivered, ami by him accepted. The broker asked him if he was inclined to take the remainder of the plaintiffs' share of the Xaiad's cargo, but he declined. The prompt would expire on the 12th of February, and six or seven days before then the defendants refused to be bound by the contract. The learned judge charged the jury under these circumstances that the plaintiffs were entitled to recover, and they had a verdict accord- ingly, with liberty to the defendants to move to enter a nonsuit if the court should be of opinion that the contract declared upon Avas not binding. Copley^ S. G., now moved to enter a nonsuit, and made three points : 1st, the broker's note is not a contract in writing within the meaning of the Statute of Frauds, 29 Car. 2, c. 3 ; 2d, supposing it to be a con- tract in writing within the meaning of that statute, it is not binding on Tennant, who was no party to and gave no authority to enter into it; and, 3d, the subsequent ratification of it by Tennant cannot make that a complete contract in writing which was originally defective, for the subsequent recognition of the original must be considered as a new contract, and that new contract not being in writing it is void by the Statute of Frauds. Abbott, C. J. I am of opinion that the verdict in this case was right. The case turns uj^on the question Avhether the original contract was ratified by Tennant. He was no party to it at first, and in fact afterwards repudiated it ; but in the result he assents to it, and says, " Then the oil must be delivered." It is then understood by all parties that it is to be a binding contract. This is in the month of Septem- ber. In January the oil arrives, and then the -defendants acting upon the contract take samples ; and it is not until the very last moment when the j-jrompt is about to expire that they make any objection. The jury asked me whether in point of law they might find a verdict for the plaintiffs ? I said that in my opinion a subsequent ratification of a contract is equivalent to a prior authority; and I told them tliat if they thought Tennant did ratify the contract, and that with the knowledge of the defendants, and they acceded to it, it was too late for them to say at any after time that they were not bound by the con- tract. That is the way I left the case to the jury. They found for the plaintiffs, and I think they came to a just conclusion. Bayley, J. I am of the same opinion. The broker's note is within the Statute of Frauds evidence of a written contract. The oriirinal authority to sell need not be in writing ; and if Tennant subsequently ratified the contract, entering into it by assenting to it, it became a binding contract. HoLROYD, J. In this case according to the evidence there was a TOL. I. 24 370 FAREBROTHEE V. SIMMONS. [CHAP. I. subsequent ratification by Tennant of the original contract, and I think that is sufficient to give it validity, though originally made without his authority. His subsequent ratification amounts to an original author- ity; and the maxim of the law is, "Om/ie actum ab agentis inten- tione est Judicandum:' ^ Rule refused. FAREBROTHER v. SIMMONS. In the King's Bench, Hilary Term, 1822. {Reported in 5 Barnewall Sf Alderson, 333.] Assumpsit by the plaintiflT, an auctioneer, against the defendant for not taking or clearing away or paying the purchase-money, being £34, for a lot of turnips standing and being on certain land. Second count, for crop of turnips bargained and sold, &c., and the usual money counts. Plea, general issue. At the trial before Wood, B., at the last assizes for the county of Surrey, the only question was whether there was a sufticient contract in writing to satisfy the Statute of Frauds. It appeared that the contract given in evidence was the book in which the plaintifi" himself had written down the difierent biddings opposite to the lots, and which book had been duly stamped. The learned judge directed a verdict for the plaintifij reserving to the defendant liberty to move to enter a nonsuit. Marryat in last Michaelmas term obtained a rule nisi for that purpose, and cited Wright v. Dannah.- ■ Gimiey and Abraham now shewed cause. This was no interest in land ; for the turnips having ceased to grow the land was merely a warehouse for them. But even if this be not so, the book is sufticient to take the case out of the statute. For the plaintifi" may be con- sidered as the agent of both himself and the defendant for the. purpose of reducing the contract into writing. The case of Wright V. Dannah is distinguishable. There the party who wrote the memo- randum was the person who made the sale for his own benefit. Here it is the case of an auctioneer who has no personal interest in the transaction. Abbott, C. J. The most favorable Avay for the plaintiflT is to treat the question as a case of goods sold and delivered; and then, the goods being above the price of £10, the case will fall within the 17th section of the Statute of Frauds, w^hich requires some note or memo- randum in Avriting of the bargain to be made and signed by the 1 Best, J., was absent at Chambers. ^ 2 Canipb. 203. SECT. VI.] JACKSON V. LOWE. 371 parties to be charged by it, or their agents thereunto lawfully authorized. Now the question is, whether the writing down the defendant's name by the plaintiff with the authority of the defend- ant, be in law a signing by the defendant's agent. In general an auctioneer may be considered as the agent and witness of both parties. But the difficulty arises in this case from the auctioneer suing as one of the contracting parties. The case of Wright v. Daunah seems to me to be in point, and fortifies the conclusion at which I have arrived, viz., that the agent contemplated by the Legislature who is to bind a defendant by his signature must be some third j^ei'son, and not the other contracting party upon the record. Hule absolute. JACKSON V. LOWE and LYNAM. In the Common Pleas, June 11, 1822. [Reported in 1 Bingham, 9.] This action was brought to recover damages for the non-perform- ance of a contract for the sale and delivery of 100 sacks of good English seconds flour, at 45s. a sack. At the trial before Garrow, B., Stafford Lent assizes, 1822, were given in evidence the two following documents : first a notice from the plaintiff to the defendants : — To Messrs. Joseph Lowe and George Lyxam, of Stoke-upon-Trent, in the county of Stafford, millers. I the undersigned, Samuel Jackson, of Ilanley in the county of Stafford, grocer and flour dealer, do hereby give you notice (as I have frequently done) that the flour you caused to be delivered to me on Wednesday and Thursday last (in part performance of my contract with you for 100 sacks or bags of good English seconds Hour, at 45s. per sack or bag, the Avhcle of which were to have been delivered as on Thursday last), is of so bad a quality that I cannot either sell it as flour or make it into salable bread, as will appear by the samples of the flour and bread left at tlie ofllce of Mr. Adams, attorney at law, in New- castle-undcr-Lyne. I further give you notice that the same bags or sacks of flour (with the exception only of the samples above alluded to) are at my shop and at your risk ; you will therefore immediately on receiving this notice send for them away, otherwise I shall commence an action against you for trespass. And I lastly give you notice that I not only hold you answerable, and expect you to fulfil your part of the contract above alluded to in the course of this present week, but in addition thereto make me ample remuneration for the loss I have sustained in consequence of your neglect, as I always have been and still am ready to fulfil my part of the contract. Given under my hand this 2-ith day of September, 1821. Samuel Jackson. 372 JACKSON V. LOWE. [CHAP. I. Next the answer to the foregoing, written at the desire and under the instructions of the defendants by their attorney's clerk : — Stoke, 27th September, 1821. Sir, — I have your letter or notice of the 24th September directed to Messrs. Lowe and Lynam now before me, in reply to which I have to state that Messrs. L. and L. consider they have performed their^contract with you as far as it has gone, and are ready to complete the remainder ; and I have also to inform you that, unless the flour is paid for at the expiration of one month from the 20th instant, proceedings will be taken against you for the recovery of the amount without any further notice. I am, sir, yours obediently, Wm. Williams. To Mr. S. Jackson, Baker, Hanley. Sixteen sacks of flour it appeared had actually been delivered ; but it being disputed whether or no there had been on the part of the plaintiff such an acceptance of them as would render unnecessary a note or memorandum of the contract under the 17th section of the Statute of Frauds, it was contended for the plaintiff, and denied for the defendants, that the above notice and the answer to it taken together constituted a sufficient memorandum of the contract under the provisions of that statute. A verdict having been found for the plaintiff, Bosanquet, Serjt., in the last term moved for a rule nisi for setting aside this verdict and entering a nonsuit or for a new trial, on the ground that, though two distinct writings might be coupled so as to make a memorandum of contract, the above notice and answer to it did not taken together constitute a suflicient memorandiim of the contract under the Statute of Frauds : he contended that the plain- tifl"'s notice being framed with the expression " my contract," and the defendants' answer with the expression " their contract," instead of " the " contract or " the contract in your notice," there was nothing from which the jury, in the absence of further evidence, were warranted to infer that the contract mentioned in the answer was the same as the contract mentioned in the notice. The defendants would not have been prevented (by any thing which their answer contained) from shewing that the contract which they had there in view was different from the contract described in the plaintiff's notice. If they could have shewn that, there was no memorandum authenticated by both parties of the contract on which the plaintiff had declared. A rule 7iisi having been granted. Pell, Seijt., now shewed cause against, and Bosanquet supported the rule. Park, J.^ In this case I think there was a sufficient note in writing of the contract on which the plaintiff sued. It is admitted that two distinct writings may be coupled together and constitute a memoran- 1 Dallas, C. J., absent, being ill. SECT. VI.] KENWORTRY V. SCHOFIELD. 373 dum Avathin the intention of the statute, and there are decisions to tliis effect. Saunderson v. Jackson,^ Schneider i-. Xorris.- The ques- tion therefore is, whether the jury Avere not warranted in conchiding there was in this case a sufficient note in writing. The writing must clearly refer to the contract which is the ground of action ; but how can there be a clearer reference than in the defendants' letter ? The notice contains an assertion of the contract, specifying the quantity, quality, and price of tlie flour ; and to this contract the answer most clearly refers, disputing none of the tenus of it nor mentioning any other terms, but asserting a part performance. BuRROUGii, J. It is quite impossible for the most scrupulous man to doubt that on these two papers there is sufficient evidence in writing of the defendants' conti'act. RiciiAEDSox, J. I think these two papers were a sufficient memo- randum or note in writing of the defendants' contract according to the provisions of the Statute of Frauds. The plaintiff in his notice states the terms of the contract, and the defendants by their answer recognize them sufficiently to warrant the jury in concluding that both parties had the same contract in view. It is admitted that if the defendants had written, " They have performed the contract mentioned in your notice," it would have been sufficient ; but the jury have found, and I think satisfactorily, that this was the contract referred to. Saunderson v. Jackson is in point, and the rule must be Discharged. KENWORTHY v. SCHOFIELD. ■ In the King's Bench, Easter Term, 1824. [Reixfrted in 2 DarnewaU on a single and con- sistent dociiment a plaintiff may recover, is perfectly intelligible. Thornton r. Kcmpster ^ is the first case upon this sul)ject, the decision in which did not [iroceed upon the Statute of Frauds but upon the inconsistency of the contract. Acting through the intervention of an agent cannot affect the rights of the parties; and it is quite clear that if the agreement in that case had been a parol agreement for goods under the value of £10, it would not have been binding. Gum- ming V. Roebuck 2 is to the same effect. The next case is that of Grant v. Fletcher,^ in which there is nothing to shcAV that both notes are indispensable. It is true that the Lord Chief Justice recognizes the two former cases, and says that the broker's book is the original ; but that decision depends upon the circumstances of the case, and must be taken secundum subjectam materiam. Indeed it would be strange, were a bought note uidispensable, that there should be no option to reject it ; yet in Rucker v. Cammeyer and Goom v. Aflalo * the parties were held responsible, although the notes were sent back. Neither bought nor sale notes are necessary, as they do not form the validity of the contract. Heyman v. Neale.^ They are rccpiired neither by the common law nor by the statute, which enacts only that a note or memorandum in writing shall be signed, but are in fiict creatures of custom, of which there is no evidence in this case. The entry in the book is the original evidence of the contract (Grant v. Fletcher), assuming which Lord EUenborough in Dickenson v. Lilwal ® doubted whether the bought note was admissible. This point how- ever has since been decided in Goom v, Atlalo, in which it was held that the entry in the broker's book need not be signed, and that the bought and sale notes signed by the broker were sufficient : in that case both existed, but it does not decide that both were necessary ; and the sale note being a sufficient memorandum to satisfy the statute the rule ought to be discharged. Crompton, in support of the nde. The first question is whether Rowland Roscoe had any authority to sign any contract ; and the second, supposing him to have such authority, whether he has signed a sufficient one. Upon the first point the evidence is that he Avas not brought into contact with the defendants ; and the authority, if any, was conferred upon William Roscoe his clerk. The case of Coles u. Trecothick^ therefore militates strongly against the position con- tended for on behalf of the plaintiff; for it proves that, unless by 1 5 Taunt. 786; s. c. 1 Marsh. 355. '^ 1 Holt's N. V. 173. 3 8 D. & R. 59 ; s. c. 5 B. & C. 436. * 9 D. & K. 148 ; s. c. 6 B. & C. 117. 6 2 Campb. 337. « 1 Stark. N. P. 1'28. 1 Uhi sup. 388 HENDERSON V. BARNEWALL. [CHAP. I. express consent of the principal, an authority cannot be delegated to a clerk or imder-agent. Supposing the broker to have been vested with an authority, it was either special or general : if special, can it be delegated ? Such a doctrine would be open to all the mischiefs which it was the object of the Statute of Frauds to provide against. If a contract could be made by a sub-agent, the terms of it must be communicated to his principal, and be reduced into writing from his parol statement ; and thus two questions might arise : first, whether the clerk had stated the contract correctly; and, secondly, whether the principal had reduced it into writing correctly from such statement ; and so a double mischief would arise. In the case of Blore v. Sutton ^ an ao-reement for a lease evidenced only by a memorandum in writing entered in the book of the agent and signed, not by the agent- him- self but by his clerk, was held not to be sufficient to satisfy the statute, although the entry was approved by and made under the immediate direction of the authorized agent and according to the course of business ; and it would be strange, if a master cannot dele- gate his authority to a clerk, that a clerk should have the power of transferring his to his master. A general authority is derived from a course of dealing ; and it would be difficult to say that Rowland Roscoe was clothed with any such right, when the contract was made between the parties themselves, and even the terms of it Avere com- municated to him by a sub-agent. In Kinnitz v. Surry,^ Lord Ellen- borough declared himself clearly of opinion that the broker's note was not sufficient of itseltj he being prima facie the agent of the seller, unless it was acted upon by the buyer: here there is no adoption of the act of the broker by the defendants, but on the con- trary the sending of the sale note to the vendor only clearly shews that the broker was employed by him, and by him alone. Conceding however that he was the agent of both the parties, an important question arises, and upon which there has yet been no decision, viz., whether one note is sufficient. It is the duty of the broker to enter such a contract that both parties may sue upon it : while that entry is upon his books they "both have access to it ; but one only has the possession of and control over the sale note ; and such a course is open as well to fraud as to inconvenience. In order to bind the parties there must be a mutuality in the contract : upon which prin- ciple, where the bought and sale notes vary, the contract is void; but no mutuality can be said to exist where the terms of the contract are unknown to one of the parties ; of which opinion the Lord Chief Justice of the Common Pleas expressed himself in the case of Smith 1 3 Merriv. 237. 2 Pal. Princ. & Agent, 143 ; s. c. 5 Esp. 267, in which latter report the absence of the seller's name in the entry is stated to be the ground of Lord EUenborough's deci- sion. SECT. VI.] HENDERSON V. BARNEWALL. 389 V. Sparrow ^ at nisi prius, although the case was decided tn batico upon another ground. Alexander, L. C. B. It appears to me that this rule, which seeks to set aside the verdict for the plaintiff and enter a nonsuit, ought to be made absolute. The Legislature has declared that sales and trans- actions of this description shall be void unless they be reduced into writing and signed by the parties to be charged or their agents law- fully authorized. A broker is the agent of both parties, and an entry in his book signed by him, or the bought and sale notes, which are likewise signed by him, if they correspond, are sufficient to bind the parties; but the difficulty here is that the entry made by the authorized agent, whicli William Roscoe undoubtedly was, was not signed by him ; and what is signed, and which at best is but a copy, is subscribed by a person who had no authority whatever, Garrow, B. I am of the same opinion. There are various ways in which, according to the custom of trade, goods are sold to be delivered at a future time ; but whatever course may be adopted, the Statute of Frauds has provided that the parties shall not be bound by the con- tract imless it be reduced into writing and signed by the parties to be charged or their authorized agent. For the convenience of trade brokers are established in this country, and in the principal commercial towns on the continent, under regulations calculated to insure punc- tuality and fidelity in their dealings, and by means of whom sales and negotiations are effected between parties who otherwise might liave remained strangers to each other. The course of trade in such cases is, for the broker, being employed by one party, to sell to or buy from the other, either in consequence of a general authority which is derived fi.-om a multitude of instances, or of a special and particular authority which is ai^plicable to one only; and thus he becomes the agent of both. No ground is laid in this case for presuming a general authority ; and if there were a special authority, it was conferred not upon the broker, but upon William Roscoe his clerk : neither the entry nor the note is signed by him ; and it becomes unnecessary to consider the effect of the latter, for upon the defect of the broker's authority alone this rule must be made absolute. HuLLOCK, B. I am of the same opinion, and the ground of that opinion Js that the person who made the only entry that Avas signed was not the authorized agent of the parties. It appears clearly that William Roscoe was authorized by the defendants, but that authority was personal, and could not be transferred ; and had he signed the entry it would in my opinion have been a sufficient comi»liance with the statute, and have been binding upon the parties. The observations made by the learned counsel for the defendants upon the difficulties and mischiefs likely to ensue from proceedings such as were adojtted in this 1 2 Car. & P. 548 ; s. c. not s. p. 4 Bing. 84. 390 MACLEAN V. DUNN. [CHAP. I. instance are in my opinion just ; for if an authority could be delegated .to one person, it might to several, until the meaning of the contract had been lost in the multiplicity of communications. Bought and sale notes are not essential to the validity of the contract : the entry signed by the broker is alone the binding contract, said Lord Ellenborough, in the case of Heyman v. Neale, which doctrine is confirmed by the decision in Grant v. Fletcher. Where however the entry in the book is not signed, the party may have recourse to the bought and sale notes ; but if Rowland Roscoe had no authority to make the contract or the entry in the book, he would have as little to send out the bought and sale notes. The question therefore as to the effect of the sale note only having been sent does not arise, as the broker had no authority to send out either. I doubt however whether the sale note alone would be sufficient ; for it is the duty of brokers to make the contract so as to be binding upon both parties. Vatjghan, B. It is admitted on all hands and the statute expressly requires that the contract should be in writing and signed by the par- ties themselves or their agent duly authorized. The simple question therefore is whether Rowland Roscoe can be considered an agent so authorized. The plaintiff has failed to make out that proposition; and it appears from the evidence that William was invested with a special authority which I think could not be delegated, but that Rowland Roscoe was a stranger to the transaction. It is not necessary to enter into the question whether the note would or would not be sufficient had an authority been proved. The legitimate mode of recording the contract is by an entry in the book signed by the broker ; in default of that the case of Goom v. Aflalo has decided that the bought and sale notes are sufficient to satisfv the statute. I agree with the Lord Chief Justice of the King's Bench that the contract must be mutual,^ but the effect of the sale note alone having been sent cannot here come in question, as the broker whose name is subscribed to it had no author- ity. Upon the absence of authority simply I am of opinion that the rule should be made absolute. Hule absolute. MACLEAN V. DUNN and WATKINS, who survived AUSTIN. In the Common Pleas, May 19, 1828. [Reported in 4 Bingham, 722.] This was a special action of assumpsit for not accepting and paying for a quantity of Russian and Geiman wool. At the trial before Best, 1 Grant v. Fletcher, uU sup. SECT. VI,] MACLEAN V. DUNN. 391 C. J., London sittings after Michaelmas term, 1826, the facts of the case, as far as they are material to the questions here noticed, were as follows: — The defendants were carrying on business in London as druggists and dry-salters, when Ebsworth, a London wool-broker, met Watkins at Manchester, near which place Watkins lived, and on the part of the plaintiff agreed to sell the defendants 165 bags of Russian and Gennan wool, to be paid for partly by 145 bags of Spanish wool, which on the pai't of the defendants he agreed to sell to the ])laintiff, and j)artly by acceptances or cash, on certain terms specified in the following bought and sold note which he delivered to the plaintiff's clerk : — Manchester, 2&th March, 1825. D. Maclkax, Esq. SiK, — We have sold for your account to Messrs. Dunn, Austin, Watkins, & Co., 166 bags of Russian and German wool, viz., [here followed a specification of the wools as in the note made out for the defendants, amounting to 16.5 bags only, the insertion of 166 having been admitted on the trial to have arisen by mis- take in the casting] after deducting the amount of 145 bags of Spanish wool sold you, the balance to be paid for by an acceptance at four months with 2h per cent, discount, or in cash with 5 per cent, discount, at your option. Commission for selling, 1 per cent. Ebswortii & Badiiam. Manchester, 28th March, 1825. D. Maclean, Esq. Sir, — We have bought for your account of Messrs. Dunn, Austin, Watkins, & Co., 145 bags of Spanish wool, viz., [here followed a specification of 145 bags of wool] the amount of 145 bags to be deducted from the 165 bags of Russian and German wool bought of you this day, and the balance to be paid for by an accept- ance at four months at '2h per cent, discount, or in cash with 5 per cent, discount on the 1st July, at your option. Commission for purchasing, i per cent. Ebsworth & Badham. This bought and sold note was written on one sheet of paper. Corresponding bought and sold notes, mutatis mtitandis, were made out by Ebsworth for the defendants. In these notes the 1st of July was specified as the day for cash Avith discount, at the end of the sold note as well as at the end of the bought note. They were never delivered to either of the defendants. Ebsworth however made out a memorandum of the contract in his broker's book, called a contract book, which was not signed by him, and shewed this memorandum to Watkins on the day it was entered, March 28, 1825. Watkins assented to the contract provided Dunn's consent could be obtained. Ebsworth had had no previous communication with Dunn, but saw him about the beginning of the next month, when, as Ebsworth swore at the trial, Dunn assented to the bargain, and said he was per- fectly satisfied with whatAvas done. On the 19th of that month Dunn told Ebsworth he would have nothins: to do Avith the contract, which Ebsworth communicated to the j)laiutiff. 392 MACLEAN V. DUNN. [CHAP. I. Plaintiff nevertheless in May addressed the defendants collectively on the subject of the delivery of the wool, when Watkins wrote and referred him to Ebsworth, who afterwards, with the assent of Watkins and in the name of the defendants collectively, sold and delivered 68 bags of the German wool to Williamson and Jones. In Jnly the plaintiff transmitted the invoice of the 165 bags of wool to Manchester, addressed to the defendants, and requested payment of what was due to him. In September he requested them to receive and pay for the remainder of the wools undelivered, and gave notice that, unless the account between him and the defendants were liquidated by the 1st of Novem- ber, the wool remaining undelivered would be put up to public sale on that day, and the defendants held resjionsible for any loss. The defendants having declined to receive them they were sold at a loss. Whereupon the present action was commenced. It was objected at the trial, on behalf of the defendants, that there was no valid contract betAveen the parties, the broker's book not hav- ing been signed, and the bought and sold notes not having been deliv- ered to each party ; that Ebsworth, having no authority from Dunn at the time of the bargain, was not an agent authorized within the mean- ing of the Statute of Frauds ; that the bought and sold note given to the plaintiff varied from that made out for the defendants, the latter specifying the 1st of July as the day for cash with discount at the end of the sold as well as of the bought note, the former specifying that day only at the end of the bought note ; and that the plaintiff had rescinded the contract by the delivery of part of the wool to Ebsworth, and the sale of the remainder. A verdict was taken for the plaintiff, with leave for the defendants to move the court upon these points. Taddy, Serjt., accordingly obtained a rule nisi to enter a nonsuit or have a new trial on these and sundry other questions of law and fact. With respect to the alleged variance the court held that, as the plain- tiff's bought and sold note was all written on the same sheet of paper, the 1st of July specified at the end of the bought note must be taken to apply equally to the contract in the sold note, and that therefore the instrument corresponded sxifficiently with the bought and sold note made out for the defendants. If the subsequent ratification by Dunn constituted Ebsworth by relation an agent duly authorized within the meaning of the Statute of Frauds at the time of the contract, a bought and sold note having been made out and signed by him on the part of the defendants, his delivering it to them and his signing the contract book would not be essential to the validity of the contract. It is only necessary therefore to report what T^as said on the points, whether a person who makes a contract for another without due SECT. VI.] MACLEAN V. DUNN. 393 authority becomes, on the ratification of the contract by the party to be charged, a sufficient agent to bind him within the meaning of the Statute of Frauds ; and whether the disposal by the vendor of goods sokl, with a view to prevent furtlier loss upon the vendee's refusing to receive them, be a rescinding of the contract. Wilde and JiusseU, Serjts., for the plaintiff. The Statute of Frauds does not affect the principle which regulates contracts made by an agent, with respect to which a subsequent ratification is equivalent to a previous authority. Here there was not only such a ratification, but the case is taken out of the statute by a delivery of the goods. Bulky goods need not all be delivered at the same time, but according to con- venience ; and any iincquivocal act of control over the portion deliv- ered is equivalent to a deliveiy and acceptance of the whole. Chaplin V. Rogers.^ In Hinde v. Whitehouse ^ even a constructive delivery by samples was held to vest the property in the buyer, and sufficient to satisfy the statute ; and from acts of assent an authority might be pre- sumed. Ward V. Evans.^ Merely acting on the agent's order was sufficient for that purpose. Kinnitz v. Suny.* With regard to the re-sale it Avould not prevent the plaintiff fi'om recovering damages for non-performance of the contract, though perhaps it might be an answer to an action for goods sold. Hagedorn v. Laing.^ In Greaves v. Ashlin,' where it was holden that the contract had been rescinded, the vendor re-sold the goods within a few days after he had sold them, although the purchaser had never refused to carry the contract into execution. Taddy and Spankie^ Serjts., contra. Admitting the maxim, " Omnis ratihahitio mandato cequiparatur^'' under the Statute of Frauds the mandatum, where there is no delivery of th'e goods, must be in writing. Ratification cannot make a signature. But the re-sale rescinded the contract at all events, and deprived the plaintiff of any right to sue. Greaves v. Ashlin cannot be distinguished from the present case. In that case there was a written contract for the sale of goods; no time was specified for the delivery; but although the purchaser had notice that unless they were taken away they Avould be re-sold, it was held he had no right on that account to re-sell them. 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 clearly ; but the statute only requires some note or memorandum in writing to be signed by the party to be charged or his agent there- 1 1 East, 192. 2 7 East, 558. » Salk. 442. 4 Paley, Pr. & Ag. 143, note, 2d ed. 5 6 Taunt. 162. 6 3 Campb. 426 394 MACLEAN V. DUNN. [CHAP. I. unto lawfully authorized^ leaving us to the rules of common law as to the mode in which the agent is to receive his authority. Now in all other cases a subsequent sanction is considered the same thing in effect as assent at the time. '■'■Omnis ratihahitio retrotrahitur et mandato mquiparatur ; " and in my opinion the subsequent sanction of a con- tract signed by an agent takes it out of the operation of the statute more satisfoctorily than an authority 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 Kinnitz v. Surry, where the broker, who signed the broker's note upon a sale of corn, was the seller's agent, Lord EUenborough held that if the buyer acted upon the note, that was such an adoption of his agency as made his note sufficient witliin the Statute of Frauds ; and in Soames v. Spencer,^ where, 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 cii'cumstance refused to be bound, but afterwards assented by parol, and samples were delivered to the vendees, it was held, in an action against the vendees, that 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 that under the Stat- ute of Frauds the ratification of the principal relates back to the time when the agent made the contract. Then with regard to the re-sale, it seems clear to me that it did not rescind the contract. It is admitted that perishable articles may be re-sold. 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 re-sale 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 excejit 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 his contract, it is not necessary that he should retain dominion over the goods : he merely 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 consequence. There is nothing in this which requires that the property should be in his hands when he commences the suit ; and it 1 Dow. & Ry. 32. SECT. VI.] BIRD V. BOULTER. 395 is required neither by justice nor by the practice of tlie mercantile world. In actions on the wan-anty 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 tlie p]ast Iiulia Company the power of re-sale is ex- pressly provided for in case the vendee shoiild refuse to perform his contract. That is only ex ahundanti cmitela, and it has never been decided that a re-sale 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 }:>rius. But without referring to a nisi priiis 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 re-sold, and that he should be liable to the loss, if any, upon the re-sale. The goods may become worse the longer they are kept ; and at all events there is the risk of the price becoming lower. Hide discharged} BIRD V BOULTER In the King's Bench, January 17, 1833. [Reported in 4 Bamewall Sf Adolphus, 443.] Assumpsit for goods sold and delivered, and goods bargained and sold. Plea, the general issue. At the trial before Littledale, J., at the Hereford spring assizes, 1832, it appeared that the goods in question (wheat, the property of one Smith) were a lot sold at an auction, and knocked down to the defendant by the plaintiff, who was the auction- eer, at a price exceeding £10. The course pursued at this sale was that the parties as usual signified their biddings to the auctioneer, who repeated them aloud; and when the hammer fell, one Pitt, who attended as the auctioneer's clerk, called out the name of the pur- chaser, and if the party assented made an entry accordingly in the sale-book. In the present instance the auctioneer having named the defendant as the purchaser, Pitt said to him, " Mr, Boulter, it is your wheat ; " the defendant nodded, and Pitt made the entry in his sight, he being then within the distance of three yards. The question was, whether a note or memorandum of the bargain had been made, pursu- ant to 29 Car. 2, c. 3, § 17, by the party to be charged or his agent 1 Park, J., took no part in the hearing or decision of the case. 396 BIRD V. BOULTER. [CHAP., I. thereunto lawfolly authorized. A verdict was taken for the plaintiiF, and leave given to move to enter a nonsuit. A rule nisi having been obtained for that purpose, The Solicitor- General^ (with whom was Whately) now shewed cause. It is still perhaps vexata qucestio whether sales by auction are within the 17th section of the Statute of Frauds at all,^ but it is not necessary to discuss that point. The objection taken on the other side was that under the 17th section one contracting party cannot constitute the other his agent to sign the memorandum (which, it was said, was the effect of the present transaction) ; and Wright v. Dannah ^ and Fare- brother V. Simmons* were cited. In the first of those cases Lord Ellenborough held that the agent who signed the memorandum must be a thii'd person, and not one of the contracting .parties; and in the other, Abbott, C. J., referring to Wright v. Dannah, held that an auc- tioneer's signature was not sufficient where he sued as one of the par- ties to the contract. But the doctrine of these cases is not borne out by the words of the statute ; and at common law there is nothing to prevent one contracting party from being the agent of the other; an obligor, for instance, from giving an obligee a power of attorney to execute a bond for him ; a lessee from executing a lease as attorney of the lessor ; a party from accepting a bill by procuration, payable to his own order ; assuming the authority in each case to be complete, which would be matter of evidence. It was admitted here that Smith the owner of the goods might have maintained the action. But the defend- ant is either bound by the contract originally, or not bound : if he is bound, it does not matter by whom the action is brought, so that it is a party entitled to enforce the contract by action ; and this was the view taken by the learned judge at the trial. But there is no need to contest the cases cited. Here the memorandum was not signed by the auctioneer who sues, but by another party, Pitt, who signed the con- tract by the defendant's immediate authority. If it is rightly held that a contracting party cannot be the agent to sign under § 17, that restric- tion will surely not be extended to his clerk. The court here called upon Ludlow, Serjt., and Justice, contra. To decide in favor of the plain- tiff, the court must overrule Farebrother v. Simmons.^ It is not dis- puted that, if Smith had sued, an entry by the auctioneer would have been a sufficient memorandum to bind the purchaser ; so also would an entry by his clerk. In Henderson v. Barnewall,^ Hullock, B., observed that " an auctioneer's clerk, who writes down the name of the buyer in his presence, is the agent of both parties." But then, whether the auc- tioneer or the clerk sign, the same objection arises, that the memoran- dum is signed by one of the contracting parties, who is plaintiff in the 1 Sir J. Campbell. — Ed. 2 But see Kenworthy v. Schofield, 2 B. & C. 945. s 2 Campb. 203. * 6 B. & A. 333. 6 5 B. & A. 333. 6 i y. & J. 389. SECT. VI.] BIRD V. BOULTER. 397 suit; for the clerk's signature is that of his master. [Littledale, J. Then you would say that an auctioneer can in no case bring an action like this in his own name.] He is not obliged to sue : the vendor may. If the auctioneer makes himself the plaintiif, he must take the conse- quent disadvantages. [Taunton, J. May not the vendor have two agents, — one to extol the commodity, the other to do the mechanical work of making the memorandum in the sale-book ?] The latter is an essential part of the auctioneer's duty : the clerk in doing it represents him ; and it was pro^■ed in this case that Pitt was the clerk and ser- vant of Bird. His recei])t for money would have been that of Bird, and would have charged Bird, and not Pitt himself. Edden v. Read.^ The auctioneer in this case, on knocking down the lot, says, "It is Mr. Boulter's" (the defendant), and the clerk writes; that is in effect that the auctioneer Avrites by the hand of his clerk. If not, where is the memorandum by an agent lawfully authorized? for there was no attempt at the trial to establish a distinct agency in the clerk. And if the signature is to be made available as that of the auctioneer sfiven by the hand of his clerk, Wright v. Dannah - and Farebrother v. Sim- mons^ apply. [Pattesox, J. In Blore v. Sutton* the signature of an agent's clerk acting for and under the direction of the agent, in a case within § 4 of the statute, was held not to be a memorandum by the authorized agent of the principal.] The dictum of Hullock, B., in Henderson v. Barnewall '" contradicts this. [Patteson, J. That was not called for by the case before the court.] In a sale by auction the knocking down constitutes the contract : the entry is a requisite super- added by the statute, but it is not a distinct transaction. [Little- dale, J. May it not be said that the clerk is constituted a deputy by all the room ?] He goes to the sale in a definite character, hired to act for a particular master : he could not sue any other person for work and labor ; and the auctioneer might sue for labor done by his clerk. The clerk acts as a mere automaton under the direction of the auc- tioneer. Denman, C. J. I think this case is distinguishable from AVright v. Dannah and Farebrother tj. Simmons; and it appears to me that the clerk was not acting merely as an automaton, but as a person known to all engaged in the sale, and employed by any who told him to put down his name. Without therefore interfering with the cases that have been cited, I think this rule must be discharged. Littledale, J. With respect to the cases relied upon in support of the rule, there is certainly a difficulty in saying that a purchaser shall be bound by a contract or not, as the action is brought by one party or another. It is indeed irregular that the real buyer or real seller 1 3 Campb. 339. 2 2 Carapb. 203. 3 5 b. & A. 833. < 3 Mer. 237. See Coles v. Trecothick, 9 Ves. jun. 235. 5 1 Y. & J. 389. 398 BIRD V. BOULTER. [CHAP. I. should make the other party his agent to sign a memorandum under the statute ; but when that is done through a third person, the objec- tion is removed. An auctioneer is enabled by law to sue the pur- chaser, but according to the rule insisted upon for the defendant an action of this kind could not be maintained by the auctioneer. I think that a clerk employed as Pitt was in this case must, in an action brought by the auctioneer, be considered as his agent for the jjurpose of taking down the names, and also as the agent of the several persons in the room for the same purpose, and to prevent the necessity of each pur- chaser coming to the table to make the entry for himself. Taunton, J. I very much agree with my brother Littledale as to the tlifficulty in Farebrother v. Simmons.^ But there is no neces- sity to overrule that case. The Chief Justice there says in the close of his judgment : " Wright v. Dannah fortifies the conclusion at which I have arrived, viz., that the agent contemplated by the Legislature, who is to bind a defendant by his signature, must be some third person, and not the other conti'acting party on the record." It is a sufficient distinction between that case and this, that in the former the auctioneer whose signature w.as relied ujion was the party suing : here the signature is by a third person. I would however go farther than this. Under the circumstances I think Pitt may be con- sidered to have been the agent of the vendor. It is not necessary to suppose that the vendor rested a particular confidence in the auctioneer for the purpose of putting down the names in the sale-book. He may be taken to have constituted that person his agent for the making of such entries whom the auctioneer might choose to appoint. If so, Pitt was the agent for the vendor, and also for the persons in the room who saw him acting as he did under the auctioneer, and by their acquiescence constituted him their agent for the business which they saw him jjerfbrming. At all events he is a third person, and not a contracting party on the record. Pattesox, J. It is not necessary here to oveiTule Farebrother v. Simmons. It may be correct to say, as there laid down, that the signature must be by a third person, and not by a contracting party on the record. Here it was so. According to the evidence Pitt was seen by all the pai'ties at the sale making the entries in the sale-book : it was inconvenient that each purchaser should come to the table for that purpose, and by nodding as the names were called they author- ized him to act as he did. Hide discharged. 1 5 B. & A. 333. SECT. VI.] ACEBAL V. LEVY. 399 ACEBAL V. LEVY and Another. In the Common Pleas, January 13, 1834. [Reported in 10 Bingham, 376.] The fourth count of the declaration stated that the defendants bar- gained for and bought of the ])laintiff, and the plaintiff at the special instance and request of the defendants sold to the defendants a cer- tain large quantity, to wit, 1000 burrels of nuts, at a certain price or value, to Avit, at the then usual and common shipping "price for nuts at the port of Gijon in the kingdom of Spain, to be delivered by the plaintiff to the defendants at London on the arrival of the said last-men- tioned nuts from the port of Gijon at London, and to be paid for by the defendants to the plaintiff on the delivery thereof, and the freight for the carriage thereof to be paid by the defendants. And in consid- eration thereof, and that the plaintiff at the like special instance and request of the defendants would deliver the said quantity of nuts at the place aforesaid, they the defendants undertook and faithfully promised the plaintiff to accept the said nuts of and from him the plaintiff, and to pay him for the same on the delivery thereof to them the defendants. And the plaintiff then averred that the usual and common shipi^ing price and value of the said nuts at the port of Gijon, at the time of the making of the last-mentioned promise and undertaking bv the defendants, was at and after the rate of £3 Is. Ad. for each and every barrel of the said nuts ; and although the plaintiff afterwards and on the arrival of the last-mentioned nuts at London from Gijon, to wit, on the 12th day of October, at, &c., was ready and willing and then and there tendered and offered to deliver the said nuts to the defendants, and then and there requested the defendants to accept the same, and to pay him the plaintiff for the same as aforesaid, yet the defendants, not regarding their said promise and undertaking, but contriving and intending to deceive and defraud the plaintiff in that respect, did not nor would, at the said time when they were so requested or at any time before or afterwards, accept the said last-mentioned nuts or any part thereof of or from him the plaintiff, or pay him for the same or any part thereof at the rate or price last aforesaid, but then and there wholly neglected and refused so to do. There was also a count for goods bargained and sold, goods sold and delivered, and the common money counts. Plea, general issue. At the trial before Tindal, C. J., it a})peared that ^I'Aiulrcw a broker, who had for several years received and sent orders to the plaintiif at Gijon in Spain for nuts, tfcc, in 1831 chartered the Active 400 ACEBAL V. LEVY. [CHAP. I. for a cargo of nuts at his own risk. He then ofi'ered the Active and her cargo to the defendants, who accepted the offer, and directed him to procure the plaintiff to send them a cargo of nuts. Thereupon he wrote to the plaintiff a letter of the date of the 29th of July, 1831, as follows : " I have transferred the Active to Messrs. Levy & Salmon, for whom you will load her in place of consigning her to me. They are to pay me for freight £120, and £10 10s. gratuity, which please to insert in the bill of lading." It appeared from another passage in the same letter that the Active was to be loaded with a cargo of nuts. The Active arrived in London about the middle of October, loaded with nuts. The invoice and bill of lading were sent to the defend- ants, who returned them, refusing to accept the nuts or a bill of ex- change for £1267 10s. Id. which the plaintiff had drawn on them for the price. M' Andrew sold the nuts afterwards, for whom it might concern, at the best price he could procure. The nuts produced £211 short of the invoice of the cargo, which, pursuant to M' Andrew's in- structions to the plaintiff, was made out according to the shipping price of nuts at Gijon in October, 1831. The defendants called no witnesses, but took the following objec- tions to the plaintiff's claim : first, that there was no sufficient memo- randum or agreement in writing signed by the parties or their agents, as required by the 17th section of the Statute of Frauds ; secondly, that there was at all events a variance between the fourth count — the only special count relied on — and the agreement produced at the trial in support of it, the agreement stating nothing about the shipping price or the payment of freight to the plaintiff; thirdly, that that agreement would not support the common count on a quantum valebant; and, fourthly, that the plaintiff had, by his oAvn act in re-selling tlie goods before the action was brought, precluded himself from recovering on a count for goods bargained and sold to the defendants. Upon these objections the plaintiff was nonsuited, with leave to move to set aside the nonsuit and enter a verdict for the amount of his loss, Wilde, Serjt., accordingly having obtained a rule nisi to that effect, Jones and Stephen, Serjts., shewed cause in Michaelmas term. First, the agreement contained in the letter of July 29th is not signed by the party nor by an agent duly authorized, for M' Andrew does not appear to have been appointed agent to the defendants by any writing. [TiNDAL, C. J. The authority of the agent to sign for his principal may be conferred orally as well as by writing.] Then the agreement con- tained in the letter specifies neither quantity nor price ; and the admis- sion of oral evidence to supply those ingredients of a bargain where the contract has not been carried into execution would be as mischiev- ous and as inconsistent Avith the spirit of the Statute of Frauds as admitting it to prove the existence of the bargain. SECT. VI.] ACEBAL V. LEVY. 401 Secondly, the agreement contained in the letter being inoperative under the Statute of Frauds and not con-esponding with the agree- ment proved at the trial and set out in the fourth count, the plaintiff cannot resort to the comnion count for goods bargained and sold. In Elmore v. Kingscote,^ where there was an agreement for a specific price, it was held that the plaintiff could not, by producing a note in writing which was silent as to price, x-ecover on a quantum valebant y and the same principle was established in Cooj^er v. Smith.- The vari- ance is material (S])rowle v. Legge^), and cannot be amended, the statute permitting amendment in such a case having been passed sub- sequently to the commencement of this action. And there has been no delivery, not even by sample as in Iliude v. Whitehouse,^ to take the case out of the Statute of Frauds. Thirdly, the vendor having re-sold the goods cannot recover the price from the original vendee on a count for goods bargained and sold, but is, if aggrieved, confined to an action for damages against the defendant for refusing to carry his contract into efi'ect. Maclean v. Dunn,^ Hagedorn v. Laing.° Wilde. The Active having been transferred by M'Andrew to the defendants, the cargo on being put on board was delivered to them in that ship as their floating warehouse. The question therefore on the Statute of Frauds does not arise, and the plaintift' may well recover on the count for goods bargained and sold. Bohtlingk y. Inglis," Ogle v. Atkinson.^ But even admitting the delivery to have been insufficient, there was a sufficient note or memorandum of the bargain to satisfy the requisi- tions of the Statute of Frauds. That statute does not require that all the details of the contract as to quantity and price shall be reduced to writing, but merely a note or memorandum of the contract. Contracts are often made without any stipulation as to price, and in such case it must be open to the party to shew what is the reasonable jDrice. The reasonable price here was the shipping price in the exporting country : the defendants were to pay the freight of the Active, though not to the plaintitt', and the fourth count alleges no more than that it was to be paid by them. There is therefore no variance between tliat count and the contract proved. At all events the comit may be amended under 3 & 4 W. 4 c. 42 ; and the plaintiff here may recover the price of the goods on a count for goods bargained and sold, although he has re-sold them ; for they were not re-sold with a view to rescind the contract, but only to diminish loss. The re-sale is only an obstacle to an action for the price where it is evidentiary of an animus to rescind the con- 1 5 B. & C. 583. 2 15 East, 103. 3 1 B. & C. 16. 4 7 East, 558. » 4 Biug. 722. « 6 Taunt. 162. •? 3 East, 381. » 5 Tauut. 759. VOL. I. 26 402 ACEBAL V. LEVY. [CHAP. I. tract ; as in Hagecloi'n v. Laing, Hopkins v. Vaughan,^ Hore v. Milner,'^ Mertens v. Adcock,^ and cases of that description. Cur. adv. vult. TiiSTDAL, C. J. The questions which have been argued before us arise upon two only of the counts of the declaration, — the fourth spe- cial count and the count for goods bargained and sold ; for as to the other special counts it is properly admitted that they are not suppoi-ted by the evidence produced at the trial ; and the count for goods sold and delivered is clearly inapphcable to a case where the plaintiff has himself re-sold the goods before the action is commenced. The objections taken on the part of the defendants to the right of the plaintiff to recover on the fourth special count are, first, that there is no sufficient memorandum or agi-eement in writing signed by the parties or their agents to take the case out of the operation of the 17th section of the Statute of Frauds ; secondly, that there is at all events a variance between the fourth count and the agreement produced at the trial in support of it. And as to the count for goods bargained and sold it is objected that the plaintiff has, by his own act in re-selling the goods before the action is brought, precluded himself from main- taining that form of action. The only memorandum in writing on which the plaintiff relied at the trial is contained in a letter addressed by M' Andrew and Son (who for this purpose we assume upon the evidence at the trial to have been the agents of both parties lawfully authorized) to the plaintiff. That letter, which bears date 29th July, 1832, contained the folio Aving pas- sage, viz. : " We have transferred the Active to Messrs. Levy and Salmon, for whom you will load her in place of consigning her to us. They are to pay us for freight £120, and £10 10s. gratuity, which please insert in the bill of lading." It appears also fi'om another part of the same letter, and we think quite sufiiciently, that the Active was to be loaded with a cargo of nuts. So that the memorandum cannot be objected to on the ground that it is silent as to the subject-matter of the contract. But the objection taken on the part of the defendants is, that no terms are specified in this memorandum as to the price at which the nuts were to be supplied to the defendants ; and that there can be no sufficient contract for the sale of goods unless the price forms one of the terms in the written memorandum. To this the plaintiff answers, that if the memorandum imports, as it does, a contract for the sale by the plaintiff to the defendants of a cargo of nuts by the ship Active, as no price is stated to have been agreed upon, the law pre- sumes the agreement to have been, or assumes as a condition of the contract, that the price was to be a reasonable one. So that the case must be considered as if the letter had itself contained an express stip- 1 12 East, 398. 2 Pgake, N. P. 58. 3 4 Esp. 251. SECT. VI.] ACEBAL V. LEVY. 403 ulation that the agreement was for a sale at a reasonable ]mce ; and that if the memorandum had contained such express stipulation, no doubt but parol evidence might have been admitted to shew the amount of such reasonable price. Whether in all cases of an executory contract of purchase and sale, where the parties are altogether silent as to the i)rice, the law will sup- ply the want of any agreement as to price by inferring that the parties must have intended to sell and to buy at a reasonable price, may be a question of some difficulty. Undoubtedly the law makes that infer- ence where the contract is executed by the acceptance of the goods by the defendants, in order to prevent the injustice of the defendants' tak- ing the goods Avithout l)aying for them. (See note 2 of Mr. Serjt. Williams to Webber v. Tivill, 2 Saund. 121.) But it may be question- able whether the same reason applies to a case where the contract is executory only, and where the goods are still in the possession or under the control of the seller. It a])pears however to us to be unnecessary to decide this question upon the present occasion. For the fourth special count is framed upon an agreement that the plaintiff sold and the defendants bought the nuts "at the then shipping price at Gijon in Spain," to be delivered to defendants on arrival in London, and to be paid for by defendants on delivery. And that such was in fact the real contract between the par- ties was proved by the parol evidence at the trial. But such a contract is manifestly a very different one from that which is, as the plaintiff contends, to be inferred by law from the written memorandum. A contract to furnish a cargo at a reasonable price means such a price as the jury upon the trial of the cause shall under all the circumstances decide to be reasonable. This price may or may not ao-ree with the current price of the commodity at the port of shipment at the precise time when such shipment is made. The current price of the day may be highly unreasonable from accidental circumstances, as on account of the commodity having been purposely kept back by the vendor him- self, or with reference to the price at other ports in the immediate vicinity, or from various other causes. It is enough therefore to say that the contract set out in the fourth count is not a contract which is proved by any part of the letter of the 29th of July, and that it is at variance with the terms which, as the plaintiff contends, ought to be imported into the written contract by operation of law. The present case however does not rest here. It was proved at the trial by parol evidence that the actual bargain made was for a sale at the current price at the shipping port. This case therefore falls within the principle laid down by the judges in Cooper v. Smith,^ and the decision in Elmore v. liingscote ; ^ namely, that where it is shewn by parol evidence there has been an agreement for sale at a specific price, 1 15 East, 103. 2 5 B. & C. 583. 404 ACEBAL V. LEVY. [CHAP. I. the plaintiff cannot, on producing a note in writing which is altogethei* silent as to price, recover on a count upon a sale on a quantum valebant. In the course of the argument on the part of the plaintiff another point was adverted to, although not much relied on, viz., that there had been such an acceptance of these nuts by the defendants as to take the case out of the Statute of Frauds. But the criterion to be found in many of the cases as to acceptance or non-acceptance of goods sold is this : Have the circumstances been such that the defendant has pre- cluded himself from taking any objection to the quality of the goods sold ? Here it would be impossible to contend that, merely in conse- quence of the packages being received on board the ship chartered by the defendants, they had obliged themselves to take them, if on their arrival they had appeared altogether unmerchantable. We think there- fore the nuts in question cannot be considered as having been accepted by the defendants ; a question indeed which seems scarcely to arise upon a covxnt where the breach is assigned for non-acceptance of the goods sold. The ground upon which we determine that the plaintiff cannot recover on the fourth count will equally prevent his recovering on the count for goods bargained and sold for a reasonable price. For in order to recover on that count a sufficient note or memorandum of the contract of sale at a reasonable price is just as necessary as on the sj^ecial count. But for the reasons already given the note produced cannot j^rove a sale at a reasonable price, where it is silent altogether as to price, and the parol evidence shews a different contract was made. This ground of decision makes it unnecessary to decide the point whether the plaintiff can or cannot maintain the count for goods bar- gained and sold after he has re-sold the goods to a stranger before the action brought. A question which does not go to the merits, but is a question as to the pleading only; for there can be no doubt but that the plaintiff might, after re-selling the goods, recover the same measure of damages in a special count framed upon the refusal to accept and pay for the goods bought. For the reasons above given we think the rule for entering a verdict for the plaintiff must be discharged. Rule discharged. SECT. VI.] HOADLY V. m'lAINE. 405 IIOADLY V. M'LAINE. In the Common Pleas, April 19, 1834. [Reported in 10 Bimjham, 482.] This was an action against the defendant for not accepting a landaulet made to his order by the plaintiff. The order, Avliich was in writing and delivered to the plaintiff on the 15th of May, 1882, was as follows: — " Sir Archibald M'Laine orders Mr. Iloadly to build a new, fashion- able, and handsome landaulet, with the following appointments:" [here followed a minute detail of various small matters, to which the proprietors of such vehicles attach importance] — " the whole to be ready by the 1st of March, 1833." The carriage was comi)leted by the time agreed on, but in the course of its construction a great number of alterations and additions were made from time to time at the request of the defendant. In April, 1833, the defendant wrote to the plaintiff, desiring that he would send his bill for the carriage, and announcing the defendant's intention to have it out immediately. The bill however amounting to £480, the defendant refused to pay it, or to accept the carriage. Whereupon the plaintiff brought the present action ; and a great num- ber of coach-makers having jaroved that the landaulet was of such exquisite workmanship and so highly ornamented as to be chea]) at the price demanded, the jury gave a verdict for the plaintiff with £'"200 damages. Jones, Serjt., obtained a rule nisi to set aside this verdict on the ground, first, that the order of May 15, 1832, being silent as to price, there was no sufficient note or memorandum of the contract under the 17th section of the Statute of Frauds, and the 9 G. 4, c. 14. In Elmore V. Kino-scote ^ the court said " there must be a note or memorandum in writing of the bargain. The price agreed to be paid constitutes a material part of the bargain. If it Avere competent to a party to prove by parol evidence the price intended to be paid, it would let in much of the mischief Avhich it was the object of the statute to prevent." Secondly, that considering the alterations and additions which liad been agreed to while the vehicle was in the course of construction, the contract proved did not coincide with the contract of the 15th of May, 1832, which was the only one set out in the declaration. Wilde and Coleridge, Serjts., shewed cause. The note is sufficient ; for the statutes require only a memorandum of what was agreed, not a memorandmn also of what was not. In Kenwortliy v. Scholield,^ 1 6 B. & C. 583. 2 2 B. & C. 947. 406 HOADLY V. m'LAINE. [CHAP. I. Bayley, J., says : "The word 'bargain' means the terms upon which parties contract ; and it appears by Saunderson v. Jackson -^ that in order to satisfy the statute the signature must either be to some written document containing in itself the terms of the bargain, or connected with some other document which does." Where a definite price for the article has been agreed on, as in Elmore v. Kingscote, the memo- randum of the bargain should state the price ; and the decision and language of the court in that case turn on the fact that the definite price, which was part of the bargain, had been omitted in the memo- randum. But. a bargain made without specification of price is as valid as any other : where it is so concluded, no price can be specified in the memorandum; but the memorandum disclosing the whole that has been reduced to certainty is suflScient to satisfy the statute. And all the writings which relate to the contract may be taken together to shew what the contract was. Saunderson v. Jackson.- Here taking the defendant's letter of April, 1833, in conjunction with his order of May, 1832, it is clear that no specific price was contracted for, but that the carriage was to be built at a reasonable price : else why does the defendant desire the plaintiflT to send in his bill ? In a case like this before the statute, where no specific price had been fixed, parol evidence might have been adduced to shew what was a reasonable j^rice, because where no price has been fixed the law implies that the party shall pay a reasonable price ; and in the memorandum required by the statute it is not necessary to state what the law implies. Egerton v. Mathews. ^ In the various decisions on the 4th section of the Statute of Frauds, which has been more strictly construed than the 17th, the specification of price has never been insisted on ; and as a large proportion of con- tracts are necessarily entered into without any such specification, the inconvenience of requiring it would be intolerable. In Newbury v. Armstrong,^ Tindal, C. J., says : " We ought not to be too strict in the . construction of these instruments ; for if every agreement entered into by a tradesman be so minutely criticised, it will be necessary to resort to an attorney in the most common intercourse of life." And Burrough, J., says : " Whatever is necessarily implied may be taken to be in the instrument." With respect to the alleged variance it would be impossible to carry on business in many departments of trade, as that of tailors, u2:>hol- sterers, builders, and the like, if every alteration or addition in the progress of an executory contract were to be held to be a new and substantive bargain, to be void unless evidenced by a new memo- randum. Atcherley, Serjt. (late Jones). The cases on the 4th section of the Statute of Frauds maybe dismissed on the consideration of the present 1 2 B. & P. 238. « 2 B. & P. 238. 3 6 East, 306. * 6 Bing. 201. SECT. VI.] HOADLY V. M'lAINE. 407 question, because the difficulty with respect to executory contracts never arose till by the 9 G. 4, c. 14, § 7, after reciting the enactments of 29 Car. 2, c. 3, § 17, it was enacted [stating it].^ The passing of that statute has rendered it necessary to introduce into the memorandum of executory contracts as much [)recision as is required in the memorandum of contracts for goods ready to be deliv- ered. The object of requiring that precision was to prevent attempts to alter the terms of a contract by perjury ; an attempt that can never succeed where all the material terms are evidenced by writing. But price is of all the ingredients of a bargain the most imjjortant ; and to leave executory contracts open in this respect is to afford tem]>tation and faciUty for the mischief which the Statute of Frauds seeks to pre- vent. A specific price ought therefore to be agreed on and expressed on the fiice of the memorandum; and if it be agreed on and not expressed — which for aught that appears might have been the case here — the omission to note it in the memorandum of the bargain affords as wide an opening for perjury as if there had been no memo- randum at all. The dictum of the court in Elmore v. Kingscote is genei-al and unqualified. And the objection with respect to the variance remains unanswered ; for the carnage, in respect of which the plaintifi" has given evidence, is so different from the carriage described in the order of May, 1832, that it could only be the result of an entirely new contract, and on that new contract the i^laintiff should have declared. TiNDAL, C. J. This is an action against the defendant for not accejDting a carriage built pursuant to his order; and the question depends upon the construction to be put on the statute 9 G. 4, c. 14, § 7, which extends to executory contracts the enactments of the 29 Car. 2, c. 3, § 17, as to executed contracts for sale of goods, by provid- ing [stating it].^ The same construction therefore must be put on the one act as on the other ; but the extreme accuracy of mind of the framer of the latter act is shewn in this : that Avhile the Statute of Frauds in its enact- ments touching contracts for the sale of goods emj^loys the word " price," the framer of the latter act has substituted the word " value," so that where the parties have omitted to fix a price it may be open to a jury to ascertain the value in dispute. The question therefore is whether the order of May, 1832, is a suffi- cient note or memorandum of the bargain between these jiarties within the 17th section of the Statute of Fi'auds ; and I am of opinion it is. It is clear that a contract for the sale of a commodity in which the price is left uncertain is in law a contract for M'hat the goods shall be found to be reasonably worth. This is no new doctrine; for in 1 See supra, p. 15, note (1). — Ed. 408 HOADLY V. M'LAINE. [CHAP. I. Blackstone's Commentaries, b. 2, c. 30, it is laid down that " express contracts are where the terms of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or ten loads of timber, or to j^ay a stated price for certain goods ; implied are such as reason and justice dictate, and which therefore the law pre- sumes that every man undertakes to perfonn : as, if I take up wares fi'om a tradesman without any agreement of price, the law concludes that I contracted to pay their real value. ... A contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law. . . . These valuable considerations are divided by the civilians into four species. . . . The third species of consideration is, facio ut des^ when a man agrees to perform any thing for a price, either specifically mentioned or left to the detennination of the law to set a value on it." What is implied by law is as strong to bind the parties as if it were under their hand. This is a contract in which the parties are silent as to price, and therefore leave it to the law to ascertain what the com- modity conti'acted for is reasonably worth. It has been contended that this would open a door for perjury, and let in the mischief which the Statute of Frauds proposes to exclude. But I cannot agree in that proposition ; for it does not appear that any specific price was agreed on ; and if it had appeared that such was the case, this note would not have been evidence of such a bargain, as the case of Elmore v. Kingscote expressly decides. Thus the law stands on the note or memorandum of May, 1832. But we may look at all the writings to see what the contract was ; and here from the defendant's letter of April, 1833, it appears that after he had seen the carriage he desired the plaintifi" to send in his bill. He must have known whether he had contracted for the stipulated price or not ; and it may therefore be inferred from this letter that he knew he was to pay the reasonable charge when the article was made up. Taking the whole together, there can be no doubt that here is a sufficient note or memorandum of the bargain, and therefore the rule must be discharged. Park, J. This is a case within the statute 9 G. 4, c. 14, § 7, by which the provisions of the Statute of Frauds are extended to executory contracts. But the construction to be jDut on the one act is the same as on the other. Now it is only necessary that price should be mentioned in the memorandum when price is one of the ingre- dients of the bargain: the dicta in Elmore v. Kingscote are applied to the facts of that case, in which the bargain was for a specific price ; and it is admitted on all hands that if a specific price be agreed on, and that price is omitted in the memorandum, the memorandum is insufficient. The court says : " There must be a note or memorandum SECT. VI.] HOADLT V. M'LAINE. 409 in writing of the bargain. The ])rice agreed to be paid constitutes a material part of the bargain. If it were competent to a party to prove by parol evidence the price intended to be paid, it would let in much of the mischief A\hich it was the object of the statute to prevent." That is, the price which had there been agreed on. There- fore Ave are for from impeaching the decision in Elmore v. Kingscote. " Although it be admitted," says the court in Saunderson v. Jackson, "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 Ijy the defendants, there is then a written note or memorandum of the order which was originally given." That comes home directly to the present case ; for the defendant's letter, referring to the article which was the subject of the contract, says : " Send me my bill. I shall bring out the carriage immediately." Putting the two Avritings together, it is impossible to say he did not undertake to pay on a quantum meruit. Gaselee, J. Upon this contract, followed up as it is by the defendant's letter, no doubt can be entertained. But independently of that, unless we establish as a general principle that every alteration introduced in the progress of an executory contract is to constitute a distinct bargain, requiring a distinct note in writing, I am of opinion that there is no variance in this case, and that there has been a suffi- cient memorandum of the contract. If we were to hold otherwise, every building contract would be 'avoided by every addition. With respect to price, the parties could not put down what was not settled ; and as the memorandum contains all the terms of the bargain as far as the parties had agreed on it at the time, I am of opinion it is sufficient to bind the defenles to the carrier would be a complete delivery of the hojis. [Pakkk, B. Hoav can you say that there AA^as an acceptance Avhen the defendant exjiressly says he aa^II not accept? The delivery to the carrier may be a delivery to the defendant, but the acceptance of the carrier is not an accejjtance by him. The old cases, in Avhich it had been said that a receipt by a 1 2 Bos. & P. 238. 2 2 M. & Sel. 286. 3 3 Taunt. 169. 4 1 Bing. 9, 7 Moore, 219. 416 JOHNSON V. DODGSON. [CHAP. I. carrier was an accejDtance to satisfy the statute, were overruled by . Howe V. Palmer ^ and Hanson v. Armitage.^ Lord Abikger, C. B. If, to take the strongest case, the purchaser sent his own servant for the goods, and when they were brought sent them back as not answering the contract, he could not be said to accej:)t them.] Lastly, there being no plea but that of the general issue, the defendant was precluded fi-om taking the objection that there was no note in writing within the Statute of Frauds. The enactment of the 17th section is that no contract for the sale of goods for £10 or upwards shall be good except there be some note or memorandum of the contract in writing, &c. That is equivalent to saying that the contract shall otherwise be void. But the new rule ^ expressly directs that all matters which shew the transaction to be void or voidable in point of law shall be specially pleaded. And the Court of Common Pleas accordingly so determined a similar question in Barnett v. Glossop.^ [Parke, B. Supj)ose it were a declaration for an estate bargained and sold, would it not be competent to the defendant iinder the general issue to shew that there had been no conveyance ? Lord Abixger, C. B. When by law you. cannot make a particular contract except in writing, to deny the writing is to deny the contract. Unless you have very little confidence in your first point you had better not press this. We will hear Mr. Cresswell ; and if it become necessary, we will afterwards hear you on this point.] Cressvjell and Wightman, in support of the rule. First, the entry in the defendant's book was not of itself a sufficient memorandum of the contract. There is no case in which the j^arty has been charged by any such entry, unless he professed to introduce his own signature as binding himself. If he writes, " I, A. B., agree," &c., he avowedly introduces his own name as the party agreeing and bound. The cases cited on the other side are distinguishable: those were cases of documents which the party charged had delivered over to the other contracting party. [Parke, B. The handing over of the document was used merely to shew the recognition by the party of the particular mode of signature.] Here all is done diverso intuitu. The document is signed by the plaintifis' agent for then- protection, not by the defendant as a party to be charged. There is not a word intimating that he has bought : the operative part is the signature of Morse, whereby he says on behalf of his employers that they have sold. Suppose the defendant had simply made a memorandum in his own book that on such a day the plaintiffs sold to him : would that be sufficient? [Parke, B. If he meant it to be a memorandum of the contract between the parties, it would ; not so, if he meant it to be a mere memorandum to be kept by him for himself] In 1 3 B. & Aid. 321. 2 5 B. & Aid. 559. 3 H. T. 4 Will. 4, Assumpsit, 3. * 1 Bing. N. C. 633, 1 Scott, 621. SECT. VI.] JOHNSON V. DODGSON 417 Saiinderson v. Jackson, Lord Eldon did not expressly hold the bill of particulars alone sufficient, but only by the addition of the subsequent document referrino- to it. This is like the case of takintr a sold note without the exchange of a counter bought note. Secondly, the defendant's letter contains no certain reference to this particular contract. Jackson v. Lowe and Allen v. Bcnnet arc distinguishable. The latter case however decided that it could not be assumed to be the purchaser's order, though it was entered in his book : that shews that every thing required by the statute must specifically appear to have been complied with. This letter has no reference to any i)rice, or time for delivery, or period of payment. If it had said, " the hops for wliich I bargained with your traveller to-day," there would have been a distinct reference to the particular transaction. The certainty of the reference must be such as will exclude the court from the necessity of inquiring by parol evidence what particular contract the document refers to.^ Here parol evidence must be introduced to shew that there was only one such contract. [Lord Abinger, C. B. The statute does not absolutely exclude parol evidence : it only requires that there shall be a note of the contract in writing, in order to exclude fraud or mistake as to its terms.] If the document point specifically to any particular contract as made, the court may inquire by parol whether such contract was made in fact. But suppose the letter were merely in these terms, " Please to deliver the hops to A. B. : " if parol evidence be admissible here, so would it also there. The question would arise. What hops? then evidence is let in of the purchase of these particular hops. It would be impossible to draw the line as to what might or might not be supplied by parol evidence. It has been decided under Lord Tenter- den's Act that a letter from the party charged must refer specifically to the particular debt, in order to take it out of the Statute of Limitations.- [Parke, B. That is questionable. Lechmere v. Fletcher.'^] Unless the subsequent document refers in specific terms to the former one it cannot become jjart of it so as to constitute it a sufficient contract in writing. Lord Auinger, C. B. I think this is a very clear case. If it rested upon the question as to the recognition of the contract by the letter there might have been some doubt, although even upon that I should have thought the reference to the only contract ])roved in the case sufficient. But on the other jioint it really seems to me one of the strongest cases that have occurred. The Statute of Frauds requires that there should be a note or memorandum of the contiact in writing signed by the party to be charged. And the cases have decided that, 1 See Hinde v. Wliitehouse, 7 East, 558. 2 See Kennett v. Milbaiik, 1 M. & Scott, 102, 8 Bing. 38. 3 1 Cr. & M. 623. VOL. I. 27 418 STEAD V. DAWBER. [CHAP. I. although the signature be in the beginning or middle of the instru- ment, it is as binding as if at the foot of it ; the question being always open to the jury whether the party not having signed it regularly at the foot meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it. But when it is ascer- tained that he meant to be bound by it as a complete contract, the statute is satisfied, there being a note in writing shewing the terms of the contract and recognized by him. I think in this case the requisi- tions of the statute are fully complied with. The written memoran- dum contains all the terms of the contract : it is in the defendant's own handwriting, containing his name ; and it is signed by the plaintiffs through their agent. Parke, B. I am of the same opinion, and think this was a suffi- cient memorandum in writing. The defendant's name was contained in it in his own handwriting, and it was signed by the plaintiffs. The point is in effect decided by the cases of Saunderson v. Jackson and Schneider v. Norris. There the bills of parcels were held to be a suffi- cient memorandum in writing, it being proved that they were recog- nized by being handed over to the other party. Here the entry was written by the defendant himself, and required by him to be signed by the plaintiffs' agent. That is amply sufficient to shew that he meant it to be a memorandum of contract between the parties. If the question turned on the recognition by the subsequent letter, I own I should have had very considerable doubt whether it referred suffi- ciently to the contract : it refers to the subject-mattei-, but not to the specific contract. But it is unnecessary to give any opinion upon that, because on the former point I think there is a sufficient note in writing. BoLLAND, B. I am of the same opinion, — that the entry made by the defendant was a sufficient memorandum in writing ; and if it were necessary to decide the other point, I should also be inclined to think the letter sufficiently connected with the contract. Hule discharged. STEAD V. DAWBER and STEPHENSON. In the Queen's Bench, May 7, 1839. [Reported in 10 Adolphus S,- Ellis, 57.] Assumpsit. The declaration stated that the plaintiff heretofore, to wit, 10th May, 1836, at the special instance, &c., bargained for and agreed to buy of the defendants, and the defendants then bargained for and agreed to sell to plaintiff a sloop-load of about 400 quarters of SECT. Vr.] STEAD V. DAWBER. 419 ground bones of good merchantable quality, at 16s. 6(7. a quarter, free on board, to be delivered on the 20tli to the 22d then instant ; payment by acceptance three months from delivery ; that afterwards and before the said 22d day of May, to wit, 17th May, plain tift', at the special instance, ting, and the difficulty did not exist which arises here from the difference of value at different times. In Thresh v. Rake '' the agreement did not require a writing under the Statute of Frauds ; and the court in Goss v. Lord Nugent ^ distinguish as to the effect of varying a ■\\Titten contract between written contracts which might have been enforced if only verbal, and those under the Statute of Frauds. Warren v. Stagg ** perhaps is in favor of the plain- tiff, but that case is inconsistent with later authorities. Tlie cases under § 4 of the Statute of Frauds apply in princii)le to § 17, and ui>on § 4 it is now clear that a written contract under the Statute of Frauds cannot be varied by a verbal agreement. Goss v. Lord Nugent,^ Har- vey V. Grabham,^ Stowell v. Robinson.^'' Under § 17 the courts have 1 5 B. & Ad. 58. 2 4 Taunt. 8.34. 3 1 Sim. & St. 590. * 9 B. & C. 470; reversing tlie judgment of C. P. iu Hennings v. Rothschild, 4 Bing. 315. 5 2 East, 211. See Green v. Bicknoll, 8 A. & E. 701. 6 1 M. & S. 21. 1 1 Esp. 53. 8 Cited in Littler v. Holland, 3 T. R. 591. 5 A. & E. 61. 10 3 New Ca. 928. 422 STEAD V. DAWBER. [CHAP. I. enforced the provisions of the act very scrupulously with a view to guard against the mischief which the statute meant to obviate, as in Elmore v. Kingscote.^ Bayley, J,, appears to apply the same rules of interpretation to the two sections in Kenworthy v. Schofield.^ Greaves V. Ashlin ^ and Meres v. Ansell * shew the unwillingness of the courts to vary or explain written contracts by oral testimony. Cur. adv. vult. LoED Denman, C. J., in this term (May 7th) delivered the judgment of the court. This was an action to recover damages for the non-delivery of a cargo of bones. By the sold note they Avere to be shipped on the 20th to the '22d of May, and to be paid for by an acceptance at three months from the delivery. The 22d happened to be on a Sunday ; and a con- versation taking place between the defendant and the plaintiff's agent respecting this, upon the suggestion of the defendant the Monday or Tuesday immediately following were substituted as the days of dehv- ery. The agent who proved this also stated that the time for giving the acceptance would in consequence be also proportionably enlarged. The main question at the trial and before us was, whether this enlarge- ment of the time was an alteration of the contract or only a dispensa- tion with its performance as to time. The declaration after setting out the original contract stated that the plaintiff, at the special instance of the defendants, gave them time for the delivery to the 24th May, and averred a demand on the 24th. The fourth plea alleged that this giv- ing time was jDarcel of a contract within the Statute of Frauds ; that there was no acceptance wholly or in part, or any earnest or part pay- ment ; and that there was no note or memorandum in writing of it ; and the replication traversed its being parcel of the contract. The principles on which this case must be decided are clear and admitted. The contract is a contract within the Statute of Frauds, and cannot be proved, as to any essential parcel of it, by merely oral testi- mony ; for to allow such a contract to be proved partly by writing and partly by oral testimony would let in all the mischiefs which it was the object of the statute to exclude. Many cases were cited in the argu- ment on both sides, the plaintiff's counsel relying chiefly on Cuff v. Penn,^ the defendants on Goss v. Lord Nugent,^ the decision in which it is certainly not easy to reconcile with that in the former. But it seems to us that we are mainly called on to decide a question of fact, — What, namely, was the intention of the parties in the arrangement come to for substituting the 24th for the 22d as the day of delivery : did they intend to substitute a new contract for the old one, the same in all ^ther respects, except those of the day of delivery and date of the 1 5 B. & C. 583. 2 2 B. & C. 945. See p. 947. ^ 3 Campb. 426. « 3 Wils. 275. 5 1 M. & S. 21. 6 5 B. & Ad. 58. SECT. VI.] STEAD V. DAWBER. 423 accepted bill, with the old one ? Where the variation is so slight as in the present case, and the consequences so serious, the mind comes reluctantly to this conclusion ; and this reluctance is increased by con- sidering in how many instances of written contracts within the Stat- ute of Frauds slight variations are made at the request of one or other of the parties, without the least idea at the time of defeating the legal remedy or the original contract. But the same principle must be applied to the variation of a day and a week or a month ; and it seems impossible to suppose that, when the plaintiff had agreed to substitute the 24th for the 22d, either party imagined that an action could be brought for non-delivery on the 22d, or that the delivery on the 24th would not be a legal performance of the contract existing between them. It was urged by the plaintiif's counsel that the ■ defendant's argu- ment reduced him to an inconsistency; that he alleged on the one hand an alteration of the contract by parol, and yet on the other asserted that such alteration by parol could not be made. But this is in truth to confound the contract with the remedy upon it. Inde- pendently of the statute, there is nothing to prevent the total waiver or the partial alteration of a written contract not under' seal by parol- ao-reement, and in contemplation of law such a contract so altered subsists between these parties ; but the statute intervenes, and in the case of such a contract takes away the remedy by action. It cannot be said that the time of delivery Avas not originally of the essence of this contract : the evidence shews that the value of this article was fluctuating ; and the time of payment was to be calculated from the time of delivery. Where these circumstances exist, it cannot in strict reasoning be argued, as was said by Lord Ellenborough in the case of Cuif v. Penn,^ that the contract remained, although there was an agreed substitution of other days than those originally speci- fied for its performance. Nor does any difficulty arise from the want of consideration for the plaintiff's agreement to consent to the change of days ; for the same consideration which existed for the old agree- ment is imported into the new agreement which is substituted for it. Putting therefore that construction on what passed between these parties which best effectuates their intention, and giving also full effect, as we ought, to the salutary provisions of the Statute of Frauds, we think that this giving of time was parcel of the contract, and conse- quently that the verdict on the fourth plea should be entered for the defendants. liule absolute accordinghj.'^ 1 1 M. & S. 21. 2 Compare Ogle v. Vane, Law Rep. 2 Q. B. 275, 3 Q. B. 272. — Ed. 424 JACOB V. KIRK. [chap. I. JACOB V. KIRK. At Nisi Prius, coram Parke, B., June 5, 1839. [Reported in 2 Moody ^~ Robinson, 221.] This was an action of assumpsit for goods bargained and sold. There was also a count on an account stated. First plea, non assumpsit; second, no note in writing to satisfy the Statute of Frauds ; and issue thereon. It was proved that the plaintiff travelled over the country selling cigars, and that on the 3d July, 1838, the defendant ordered of him about fourteen pounds of cigars of different qualities. It was also proved that at the time of the order being given the plaintiff had not the cigars in his possession, but that it was his habit, after having obtained the orders, to send them from a wholesale dealer in London. In order to satisfy the Statute of Frauds, the plaintiff produced a memorandum book, containing amongst other notes and orders the following pencil entry : " Mr. Kirk, 6 doz. King's, 6 doz. Queen's, at 25s. perlb. ; 2 doz. others at 20s. per lb.; to Russell Street, Manchester. Signed R. K. ; " which signature was proved to be in the defendant's handwriting. The plaintiff's name nowhere appeared in the book ; nor was there any other evidence to connect the i)laintiff with the order so entered, save a letter from the defendant in the month of August following, addressed to the plaintiff, stating that he had received a letter from the plaintiff; " that he was surprised at the plaintiff's expecting him to accept the cigars, which, instead of having been sent in nine or ten days, had not arrived in Manchester till the 10th of August ; " that he therefore should not think of accepting them, and referred him to his solicitor. But the letter did not refer to the entry in the above book. This being the plaintiff's case, JUrle, for the defendant, submitted that the plaintiff must be non- suited. The count for goods bargained and sold was not supported by the evidence, but the declaration should have been on a special count for not accepting, and to that count the Statute of Frauds would afford a sufficient defence. It is clear on the authorities that the memoran- dum, to satisfy the statute, must contain the names of the parties (the vendor and vendee) and the other terms of the contract. Here is no vendor's name ; for there is nothing to connect the pencil entry in the memorandum book with the defendant's letter of August : he cited Champion v. Plummer, 1 N. R. 252, to shew that the connection between the two documents must be collected from within the four corners of the instruments themselves ; citing also Richards v. Porter, 6 B. & C. SECT. VI.] GRAHAM V. MUSSON. 425 438; Cooper v. Smith, 15 East, 103; Acebal v. Levy, 10 Bing. 376. I*latt and Jlartin, contra. The first count is sustainable; but if not, the declaration might be amended by turning it into a special count for not accepting. With respect to the Statute of Frauds, the memo- randum and letter were sufficiently connected, no other contract hav- ing been suggested as existing between the plaintiif and defendant to which the letter could possibly have reference. Parkh, B. My opinion is that the first count is not made out, as there was not here a bargain for any specific ascertained chattels ; but with respect to the application for an amendment, I must say I am dis- posed to open the door for amendments asAvide as possible. By allow- ing the amendment here, and so giving the plaintiff an opportunity of bringing forward his real cause of action, I consider I shall be meeting the justice of the case ; but of course the defendant must have time for pleading de novo, and the ])laintiff must i)ay the costs of the day and of the amendment. I should greatly doubt however Avhether it will be worth while for the plaintiff to avail himself of these tenns; for I am of opinion that he cannot get over the objection under the Statute of Frauds. My opinion is that the letter ought clearly to refer to the pencil memorandum; and that the whole mischief intended to be guarded asrainst bv the statute would be incurred, if verbal evi- dence were admitted to shew that the documents must necessarily be presumed to refer to each other. The plaintifTs counsel, notwithstanding this intimation of the learned Baron's opinion, requested to have the amendment made ; and Erie, for the defendant, thereupon elected to i)lead forthwith; which being done, the defendant obtained a verdict on the ground that the cigars had not been sent Avithin a reasonable time, as averred in the amended count ; and under the direction of the learned Baron the defendant took a verdict also on the plea of the Statute of Frauds. Vei'dict for the defendant. GRAHAM AND Others v. MUSSOX. In the Common Pleas, June 8, 1839. [Reported in 5 Binrjham's New Cases, 603.] Assumpsit for goods sold and delivered. The defendant pleaded, first, non assumpsit ; secondly, the want of a note or memorandum in writing under the Statute of Frauds, and that there was no acceptance of the goods. 426 GRAHAM V. MUSSON. [CHAP. I. The plaintiffs replied that there was such note or memorandum. At the trial before Tindal, C. J., a verdict was found for the plain- tiffs for £132 9s. 'del. subject to the opinion of the court upon a case which stated that The plaintiffs were wholesale grocers residing in London. On the 19th of August, 1836, the plaintiffs' traveller Dyson called on the defendant, who was a grocer at Gainsboro', and on the plaintiffs' account sold him thirty mats of sugar, to be sent to Fenning's wharf, which is a wharf on the Thames. At the time of the sale Dyson, in the presence and at the desire of the defendant, made and signed an entry of the contract of sale in a book of the defendant : that book was produced by the defendant at the trial, and the following is a copy of the entry in the handwriting of Dyson: — Of North & Co.' 30 mats maurs, at 71s. — cash two months. Fenning's wharf. Joseph Dyson. August 19, 1836. The sugars, the price of which amounted to £132 35. 9c?., were sent by the plaintiffs to Fenning's wharf; and an invoice was sent to the defendant, stating that the goods were to go by the vessel called the Fanny; but while waiting for the purpose of being forwarded by the wharfingers to the defendant they were consumed by fire. The question for the opinion of the court was Avhether there was a sufficient note or memorandum in writing within the 17th section of the Statute of Frauds. If the court should be of that opinion, the verdict was to stand; if not, a nonsuit was to be entered. Crompton^ for the plaintiffs. This is a sufficient memorandum of the bargain within the 17th section of the Statute of Frauds, 29 Car. 2, c. 8, which requires a memorandum in writing of the bargain, signed by the party to be charged or his authorized agent, except where the buyer shall receive part of the goods sold ; for Dyson must be taken to have signed it as agent for the defendant, as there is no difference in effect between writing the defendant's name and wanting his own name as agent for the defendant. If he had written the defendant's name, no doubt could have arisen ; for though in Wright v. Dannah ^ it was held that the agent who signs must be a third person and not one of the contracting parties, and in Farebrother v. Simmons ^ that an auction- eer's signature is not sufficient where he sues as one of the parties to the contract, those cases were much doubted in Bird ?;. Boulter,* where it was held that the entry of the purchaser's name in the auc- tioneer's book by the clerk of the auctioneer was sufficient. Hinde v. Whitehouse,^ Simon v. Motivos,*' and Rucker v. Cammeyer'' have 1 The plaintiffs' firm. See Graham v. Fretwell, infra, p. 433. — Ed. 2 2 Campb. 203. 3 5 b. & Aid. 333. * 4 B. & Add. 443. * 7 East, 558. 6 3 Burr. 1921. ' 1 Esp. 105. SECT. VI,] GRAHAM V. MUSSON. • 427 established that an auctioneer or broker is the agent of both parties, so as to bind the purchaser by his signature; and in Ilawes v. Forster^ it was held sufficient for the purchaser to produce a bought and sold note signed by the agent for the vendor; so that there could be no objec- tion to the defendant's ajipointing the agent of the plnintiifs to act also as agent for himself If a broker uses in a contract only Ins own name, without disclosing that of his j^rincipal, it will bind his j>rincipal, and it may be shewn by parol testimony for whom the contract is made. "Wilson t". Ilart,'^ White v. Proctor,' Kenworthy v. Schofield,* Hicks V. Hankin,^ Phillimore v. Barry.^ In Champion v. Flummer'^ the note was signed by the seller only. In Cooper v. Smith ^ it was written in the seller's book, not as here in the buyer's ; and though in Allen V. Bennet ^ the note written in the buyer's book without naming the buyer was connected with him by a subsequent letter, yet accord- ing to the principle laid down by Mansfield, C. J., the note written here in the buyer's book by an agent appointed by him for that pur- pose ought of itself to suffice. The name of the seller appears, and it may be shewn by parol testimony that the name Dyson was written for that of the buyer and at his request. Wiffhtman, for the defendant. The j^rinciple contended for on the part of the plaintiffs would introduce all the mischiefs which the Stat- ute of Frauds was intended to prevent. If the name of the agent wnll suffice, at least it must appear by some writing that the party signing is an agent : there is no case which decides that the agency may be proved by parol testimony. The name of the party to be charged must be in writing, or that of his authorized agent; and the agent may prove by parol for whom he contracted ; but the fact of agency must appear in writing, where the defendant himself does not sign the con- tract. Bartlett v. Pickersgill.^" Here however Dyson was not the agent of the defendant to bind him to the contract : he made the entry in the defendant's book for his convenience at the time, but not as agent to bind him to the contract. Crompton^ in reply, Bartlett v. Pickersgill turned on the 4th section of the statute ; but in addition to the cases already cited. Short v. Spackman " and Sims v. Bond ^^ shew that agency may be established by parol testimony, though an agent cannot discharge himself by that species of evidence. Jones v. Littledale." TiNDAL, C. J. The question to be detemiined is, whether this note is a note or memorandum of the bargain within the meaning of the 17th section of the Statute of Frauds ; and I am of oi)inion it is not. 1 1 Mood. & Rob. 48. 2 7 Taunt. 295. s 4 Taunt. 209. < 2 B. & C, 945, 5 4 Esp. 114. « 1 Campb. 513. T 1 N. R. 252. 8 15 Kast, 103. 9 3 Taunt. 169. 10 4 East, 577, note. »i 2 B. & Adol. 902. 12 5 B. & Adol. 893, 13 6 Adol. & Ell. 486, 428 GRAHAM V. MUSSON. [CHAP. I. The form of the note is, " Of North & Co. 30 mats maurs, at 71s. — cash two months ; Fenning's wharf. Joseph Dyson." The fii'st objection is that the contract does not disclose the name of the party to be charged; so that it falls within the objection raised in Champion v. Plummer, where the court held that a note signed by the seller only is not a sufficient memorandum within the statute. The answer made on the part of the plaintifts is that the name of Dyson appears at the bottom of the note, and that it must be taken that he was the agent of the buyer : and if such had been the evidence, I am far from saying that such consequence would not follow ; for it is clear that a contract may be signed by an agent on behalf of his principal, and that his signature would satisfy the Statute of Frauds ; but here the name of Musson the buyer is not signed by Dyson, and there is no evidence that Dyson had sufficient authority to act as his agent. Dyson was the traveller of North : the parties present are Dyson rep- resenting North, and the defendant acting for himself: all that passes is that Dyson enters a contract on the defendant's book ; there is no evidence that Dyson was to represent the defendant. It is unnecessary therefore to decide how far parol evidence is admissible to establish the fact of agency, because here there is no evidence of agency at all. In Bird v. Boulter the names of both the contracting parties appeared ; and it was impossible to say that the clerk of the auctioneer, putting down the name of the buyer with his assent, was not agent for that purpose. Our judgment must be for the defendant. Vaughan, J. The plaintiffs' case fails in their not shewing that Dyson was the defendant's agent : it is unnecessary therefore to enter into the authorities which have been cited. Dyson was agent for the plaintiffs, and the defendant in requesting him to make the entry in his book, probably sought to fix the plaintiffs, but not to appoint Dyson as agent for himself CoLTMAN, J. I am of the same opinion. It is not desirable to relax the provisions of the Statute of Frauds. I am not prepared to say that if Dyson had been the clerk of Musson, his signing his own name would have been a sufficient memorandum of the bargain to satisfy the statute : but Dyson is not the agent of Musson in any respect; and though if he had signed the name of Musson at Musson's request, the case might have fallen within the authority of Bird v. Boulter, yet here where he signs his own name he thereby only binds his employer North. Erskine, J. I am of the same opinion. It is contended on behalf of the plaintiffs that Dyson Avould be himself liable on this contract, and would not be permitted to discharge himself by parol testimony ; but that he might charge his principal by shelving that he signed as agent, and that the cases shew it is enough if the agent's name SECT. VI.] MARSHALL V. LYNN. 429 appear on the contract. That Inings us to the question whether Dyson was the agent of Musson ; but there is no evidence of his having ever been appointed such agent, and therefore we give Judgment for the defendant. MARSHALL v. LYNN. In the Exchequer, Hilary Term, 1840. [Reported in 6 ^feeson ^ Welsby, 100.] Assumpsit to recover damages for the non-pertormance of a contract to purchase of the phuntiff a quantity of potatoes.^ At the trial before Vaughan, J., at the hist summer assizes for Cam- bridge, it ajipeared that on the l-5th of December, 1838, the phuntiff and defendant entered into a written contract, of wliich the following is a copy : — WiSBKCH, 15th December, 1838. Bought of Mr. Thomas Marshall as many potatoes as will load bis brig the Kitty, Captain William Scott, say from sixty to seventy lasts, to be shipped on board the above vessel on her arrival here the next time — say what pink kidneys he has at 4s. 6rf. per sack, and the round, white and blue ones at 4s. 3d. per sack, of fifteen ounces net merchants' ware, free on board the said ship. Payment, cash on delivery. (For William Lynn.) ' Robert Lynn. Witness : T. ALvrshall. On tlie 25th of December the Kitty arrived at "Wisbech, that being the next arrival after the making of the contract, and on the following day the i>laiutitrs son informed the defendant that the Kitty would be ready to take in the ])otatoes on the 28th, when the defendant requested that the plaintiff Avould let the vessel go to Lynn and load a cargo of potatoes which he had purchased there and for which he could not obtain a vessel, and take them to London ; and he then promised the plaintiff to take the plaintiff's potatoes the next time the Kitty came to the port of Wisbech. This proposal was agreed to, on the understanding that the plaintiff's potatoes should be taken the next time the Kitty came. In pursuance of this arrangement the Kitty sailed to Lynn ; and after ])rooeeding to London and there discharging her cargo she returned to Wisbech, and arrived there on the 7th of February. On the 8th of .February the vessel was ready to receive the potatoes, of which the defendant had full notice, and was requested to take them ; but the defendant said he could not take them then, nor did he know when he 1 In the original report the pleadings are stated at considerable length ; but as no question arose upon them, they are here omitted. — Ed. 430 MARSHALL V. LYNN. [CHAP. I. could ; and he ultimately declined taking them. They were after- wards shipped to Loudon, and there sold by the plaintiff, who brought this action to recover the loss sustained by the defendant's non-per- formance of the contract. It was contended at the trial on the part of the defendant that the alteration in the time fixed by the terms of the original contract for shipping the potatoes was a variation of it in a material part, and ought to have been in writing. The learned judge directed the jury to find a verdict for the plaintiff, giving the defend- ant leave to move to enter a nonsuit. Storks, Serjt., in Michaelmas term obtained a rule accordingly, against which Kelly and Gunning noAV shewed cause. A contract for the sale of goods to an amount .exceeding £10 must be in writing by the pro- visions of the Statute of Frauds ; but that statute does not require either the time or the particular mode of the delivery of the goods to be in writing, and in this case there was a sufiicient memorandum of the contract for the sale. This case falls strictly within that case of Cuff V. Penn,^ and is distinguishable from Goss v. Lord Nugent,'^ which was decided upon the 4th section of the Statute of Frauds, and in which the distinction between that section and the 17th is recog- nized. The court did not there decide whether Cuff v. Penn was good law or not ; though undoubtedly Parke, J., in the course of the argument, a]ipears to have doubted the correctness of that decision. No doubt a written contract cannot be contradicted by parol, but it may be varied or discharged by parol, where there is no statutable provision to prevent it. The 17th section enacts [stating it]. That is that no contract shall be binding for the sale of goods unless it be in writing : it is not material that the time stipulated for their delivery should be in writing, as that is not a material part of the contract of sale. The object of the statute was to guard the public against evidence of a contract being given where no contract has been entered into at all ; but where there is e\ddence of some written contract, that is sufficient, without setting out the whole of the contract. If it is held to be material that every particular of a contract is to be inserted, and that it cannot be varied from afterwards, the conse- quences will be most serious. Suppose in the case of a sale of wines the seller enters into a written contract to deliver the wine at 28 Grosvenor Street, and it turns out on inquiry that the purchaser lives at No. 30, is he to be at liberty to repudiate the contract on that ground, after having subsequently requested that the wine should be delivered at No. 30 ? That would be a variation as to the place. Then as to the time : suppose a gentleman living out of town enters into a written contract by which goods are to be sent by a particular coach, as, for instance, the ten o'clock coach, but he afterwards requests them to be sent by the eleven o'clock coach, because he is 1 1 M. & Selw. 21. 2 5 B. & Adol. 58. SECT. VI.] MARSHALL V. LYNN. 431 going by that coach: can it he said that that would avoid tlie con- tract? Such a circumstance as tliat hist mentioned is of frequent occurrence, and is done for the convenience of the jiurcliaser. To say that such a shght variation from the written contract, agreed to subsequently by parol, would lender it nugatory, would lead to the greatest injustice. In Cuff y. Penn, Lord Ellenborough says: "The principal design of the Statute of Frauds was that parties should not have iinposed on them burdensome contracts which they never made, and to be fixed with goods which they never contemplated to purchase. . . . But here what has been done is only in perform- ance of the original contract. It is admitted that there was an agreed substitution of other days than those originally specified for its per- formance : still the contract remains." Noav that is precisely the present case : there one day was substituted for another ; here one of the ship's voyages was substituted for another. The case of Warren V. Stagg, cited in Littler v. Holland,^ shews that the time of delivery is not a material part of the contract ; and if varied by subsequent agreement, it is to be considered only as a continuation of the first contract. And in Iloadly v. M'Laine - it was held that where an executory contract is entered into for the fabrication of goods, without any agreement as to the price, the memorandum of the contract required by the Statute of Frauds is sufticient without specification of price. That shews that the statute does not require every tenn of the . contract to be in writing. [Parke, B. No doubt, every particul^ir of the contract need not be mentioned ; but if mentioned, it must be observed. I do not apjirehend you can go into a distinction between the material and the immaterial parts of the contract. How can you tell what part of a contract is material, and what not ? The recent case of Stead v. Dawber ^ appears to have entirely overturned the authority of CuiF v. Penn.] That case is distinguishable fi-om the present, as there the goods were of a fluctuating value, the price was not mentioned, and therefore the time of delivery was of the essence of the contract. In this case the price of the goods was fixed by the contract. iStorkSy Sei-jt., contra, was stopped by the court. Parke, B. I am of opinion that this rule ought to be made absolute. If it had not been for the decision in the case of Stead V. Dawber I should have wished to hear the argument on the other side, and probably to have taken time to consider ; but as the case of Cuff V. Penn, which had before been very much doubted, ajipears to have been overruled by Stead v. Dawber, we do not think it necessary to do so. Here there was an original contract in writing to send these goods by the first vessel ; an alteration as to the time of their delivery was subsequently made by parol ; and the point to be decided is, 1 3 T. R. 691. -i 10 Bing. 482, 4 M. & Scott, 340. ' 2 P. & D. 447. 432 MARSHALL V. LYNN. [CHAP. I. whether such an alteration by parol of the wi'itten contract can be binding. It appears to me that it cannot, and that the same rule must prevail as to the construction of the 17th section of the Statute of Frauds which has already prevailed as to the construction of the 4th section. The decision in Goss v. Lord Nugent, the ]irinciple of which I have no doubt is perfectly correct, has clearly established, with respect to the case of a contract relating to the sale of an interest in lands, that if the original contract be varied, and a new contract as to any of its terms substituted in the place of it, that new contract cannot be enforced in law unless it also be in writing. The question is, whether the same reasoning does not apply to a contract for the sale of goods under the 17th section. [His Lordship read that section.] It appears to me that no distinction can be made ; and I must also observe that it seems to me to be unnecessary to inquire what are the essential parts of the contract and Avhat not, and that every part of the contract in regard to which the parties are stipulating must be taken to be material ; and perhaps therefore the latter part of the judgment in Stead v. Dawber may be considered as laying down too limited a rule. Every thing for which the parties stipulate as forming part of the contract must be deemed to be material. Now in this case by the original contract the defendant was to accept the goods, provided they were sent by the first ship: the parties afterwards agreed by parol that the defendant would accept the goods if they were sent by the second ship on a subsequent voyage : that appears to me to be a diiferent contract from what is stated before. Such was my strong impression, independently of any decision on the point; but the case of Stead v. Dawber is precisely in point with the present ; and on looking at the judgment it does not appear to proceed alto- gether upon the time being an essential part of the contract, but on the ground that the contract itself; whatever be its terms, if it be such as the law recognizes as a contract, cannot be varied by parol. It has been said that the adoption of this rule will produce a great deal of inconvenience. I am not however aware of much practical incon- venience that can result from it, and none that furnishes any reason for altering the rule of law in respect of these mercantile contracts. They frequently vary in terms, and admit of some latitude of con- struction ; but the expressions used in them generally indicate the intention of the parties sufficiently well : there is a sort of mercantile short-hand, made up of few and short expressions, which generally expresses the full meaning and intention of the parties. On the whole, it appears to me that no reasonable distinction can be made between this case and that of Goss v. Lord Nugent. This is a new contract, incorporating new terms ; and I think it cannot be enforced by action unless there is a note in Avriting expressing those new terms distinctly, or in the mercantile phraseology which, as I have already SECT. VI.] GRAHAM V. FRETWELL. 433 said, admits of some latitude of interpretation. This action therefore cannot be maintained, and a nonsuit must be entered. Aldersox, B. I am of the same opinion, and entirely concur with what has fallen from my brother Parke. By the 4th section of the Statute of Frauds it is provided that the contracts therein mentioned shall be in writino^, otherwise no action shall be maintained on them. The 17th section requires that some note or memorandum in writing of the bargain before made shall be signed by the party to be charged by such contract, or his agent lawfully autliorized. There is undoubtedly a distinction between the two enactments; for by the 4th section the whole contract must be in Avriting, including the con- sideration which induced the party to make the stipulation by which he is to be bound, but by the 17th section it is sufficient if all the terms by which the defendant is to be bound are stated in writing, so as to bind him. Now here there is a stipulation which is to bind the defendant ; and it is proposed to alter that by parol, which cannot be done. It is much better plainly to define what the law is than to attempt to create fanciful distinctions. Here there is, as to one of the terms by Avhich the party is to be bound, entirely a new contract ; and the law requires that such new contract shall be in writing. Gurnet, B. I am of th.e same opinion. This is a new contract, and the law which requires the one contract to be in writing requires the other to be in writing also. RoLFE, B., concurred. . Hide absolute. GRAHA3I AND Others v. FRETWELL aisT) Another. In the Common Pleas, November 10, 1841. [Reported in 3 Manning Sf Granger, 368.] Assumpsit for goods sold and delivered. The defendants pleaded, first, non asstimpsit ; secondly, that there was no note or memorandum in writing under the Statute of Frauds, and no acceptance of the goods. To the latter plea the plaintifis replied that there was such note or memorandum. The cause was tried before Tindal, C. J., at the London sittings after Michaelmas term, 1838, when a verdict was found for the plaintiffs, sub- ject to the o]nnion of the court on the following case : — The plaintiffs are wholesale grocers, residing in London and carry- ing on business under the firm of "North, Sinqison, Graham, & Co." On the I'Jth of August, 1836, the plaintiffs' traveller, Joseph Dyson, called on the defendants, who are grocers residing at Gainsborough, VOL. I. 28 434 GRAHAM V. FRETWELL. [CHAP. I. and produced to them a sample of Mauritius sugar of the plaintiffs ; and on the account of the plaintiffs sold to the defendants one hundred and fifty mats of Mauritius sugar, to be sent to Fenning's wharf, which was a wharf on the Thames where vessels trading from Gains- borough to London loaded and unloaded, and to be forwarded from Fenning's wharf by the fix'st and second ships to Gainsborough. At the time of the sale the defendant John Fretwell, in the presence of Dyson, made an entry of the contract of sale in a book of the defend- ants then produced for that purpose ; and Dyson, at the request and in the presence of the defendant John Fretwell, signed the entry so made. The entry was in the handwriting of the defendant John Fret- well, but the signature to it was in the handwriting of Dyson. The entry was as follows : — Of North, Simpson, Graham, & Co., London. 150 mats Ma. sugar, at 71s. 6d., as sample. Joseph Dyson. Per sea, Fenning's wharf, first and second ships. On several occasions prior to the 19th of August, 1836, Dyson, as the traveller of the plaintiffs, sold by sample to the defendants sugars to be supplied to them by the j^laintiffs, which sugars were, before the said 19th of August, 1836, suj^plied to and accepted by the defendants, and at the expiration of the credit, and before the 19th of August, 1836, were paid for by the defendants. On the occasions of the last- mentioned sales, notes in the form hereinafter stated were entered by the defendants or one of them in their book, and signed by Dyson at the request of the defendants. Of North, Simpson, Graham, & Co., London. 6 tierces sugar, ^^^ 1 to 5, at 64s. per cwt. 2 hhds. pieces 67s. 1 do. Hambro loaves . . 80s. 1 do. Titlers 79s. Gainsborough, 22d of August, 1833. To Hay's wharf, Irongate. Joseph Dyson. [The case then set out twelve other entries of sales of a similar char- acter, extending through the years 1833, 1834, and 1835, and continuing down to the month of July, 1836.] On the 23d of August, 1836, the plaintiffs sent sixty mats of sugar, the same as the sample produced by Dyson at the time of the sale to the defendants, to Fenning's wharf; and on the same day an invoice was sent to the defendants, stating that the sixty mats would go by the Fanny, Captain Pycock, which was the first ship going to Gainsborough, and was then expected to sail in a few days, and the rest by the next ship. SECT. VI.] GRAHAM V. FRETWELL. 435 On the 29th of August, 1836, the remaining ninety mats were sent by tlic i»l:iiiitifts to Feuning's wharf, to be forwarded to Gainsborough by the second ship which would sail, the Fanny not having yet sailed. Of these last ninety mats, sixty were of the same description and (jual- ity as the sami)le produced by Dyson to the defendants, the remaining thirty mats were of the same description, — that is to say, Mauritius sugar, — but of a superior quality, and were furnished by the plaintiffs at the same price as the others. On the c\ening of the 29th of August, 1836, all the goods, the price of which amounted to £666 7.s-. 6f/., whilst waiting at Fenning's wharf to be forwarded by the wharfingers to the defendants, were consumed by fire. Evidence was admitted at the trial on the part of the plaintiffs to prove (and which, if admissible, did prove) that according to the cus- tom of the trade the words " as sample " were satisfied by delivering sugars of the same description as, but superior in quality to, the sam- ple. This evidence was objected to on the part of the defendants. The questions for the opinion of the court are : First, whether there was a suflficient note or memorandum within the 17th section of the Statute of Frauds ; secondly, whether the evidence as to the custom was properly admitted. If the court shall be of opinion for the plain- tiffs on both the above questions, the verdict is to stand. If the court shall be of opinion in favor of the defendants upon the first question, a nonsuit is to be entered. If the court shall be of opinion in favor of the plaintiffs upon the first question, but shall be of opinion that the evidence as to custom was not properly admitted, such evidence is to be considered as struck out of the case, and the question whether the plaintiffs were then entitled to recover for all or any part of the goods in question is to be for the opinion of the court. If the plain- tiffs are held entitled to recover for any of the sugars in question, the verdict is to be entered for the value of as many mats of sugar as the court shall direct, estimated at 71s. M. per cwt.^ The court to be at liberty to draw any inference which a jury might have drawn, and either party to be at liberty to turn the case into a special ver- dict. Channell, Serjt., for the plaintiffs. The plaintiffs ai-e entitled to recover the value of the 150 mats of sugar contracted to be sold by them to the defendants. Since the trial the case of Graham v. Musson - has been decided in this court, but that case is distinguish- able in several respects from the present. There three points were taken in the argument on behalf of the plaintiffs: First, that Dyson the plaintiffs' traveller was, for the purpose of that contract, to be considered as the agent of the defendant ; secondly, that it was not 1 It appears to be assumed that the mats were all of equal weight. 2 5 New Cases, 603, 7 Scott, 769. 436 THORNTON V. CHARLES. [CHAP. I. essential for the name of the defendant to appear in the contract ; and, thirdly, that parol evidence of Dyson's agency was admissible. The case was however decided on the ground that there Avas no evidence to shew that Dyson was the agent of the defendant. There the entry was altogether in Dyson's writing: here the signature alone is his, the rest of the entry being by one of the defendants. Also in that case but one transaction was proved between the par- ties ; whereas here twelve other transactions, commencing in 1833 and extending down to the period of the present contract, are set forth in the special case. It further appears that on every one of the occasions when the purchases were made the defendants produced their book, which was signed by Dyson at their request, and that the goods were afterwards duly delivered and accepted. As the court have a power given them here Avhich they did not possess in the former case, — namely, to draw any inference which a jury might have drawn, — they may properly infer from the various transactions set out that Dyson was authorized by the defendants to sign this con- tract on their part ; a conclusion which they might not feel at liberty to come to in Graham v. Musson fi-om the solitary instance upon which the question there turned. [Tixdal, C. J. The signing of the entry in the defendants' book would tend to make it obligatory on the plain- tiffs rather than on the former.] An authority is fi-equently to be inferred from a long course of dealing ; and here it is submitted that enourrh is shewn in the case to warrant the court in drawing the con- elusion that Dyson signed this entry as the agent of the defendants. Sir F. Pollock, for the defendants, was stopped by the court. TiNDAL, C. J. This case is not to be distinguished from Graham v. Musson. CoLTMAN, Erskine, and Maule, JJ., concurred. Judgment of nonsuit, with liberty to the 2^lcLi^^tiffs to turn the special case into a special verdict. THORNTON ai^d Another v. CHARLES. In THE Exchequer, April 29, 1842. [Reported in 9 Meeson Sf Welshy, 802.] Assumpsit for goods sold and delivered, and on an account stated. Plea, non assumjjsit. 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 SECT. VI.] THORNTON V. CHARLES. 437 plaintiffs to the defendant. On the 20th of February, 1841, the plain- tiffs instructed their brokers Messrs. Smith & Marshall to sell for them 200 casks of tallow, to be delivered between the 1st of Seittember 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. & R. 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, exce])t that it stated the purcha'se to be of 50 casks " for our principals." The entry in the brokers' book was as follows: "London, 20th February, 1841. Sold for Messrs. R. Thornton & 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 documents were put in evidence at the trial. The names of the prin- cipals 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 oi)inion. H. V. Richards in Hilary term last obtained a rule accordingly, or for a new trial. Crotodei' •rove the ratification of the contract alleged in the amended declaration. But after consid- ering 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 the acceptance of bought and sold notes which agree, is not touched by 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 tendered, and that the point is. Whether such evidence is inadmissible because a sold note was delivered to the plaintiff? in other words, Whether bought and sold notes, without other evidence of intention, are by presum]ition 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 assent to the terms of the notes ; but the assent is to be inferred by the jury from their acceptance of the notes without objection, not from the signature to the writing, which would be the proof if they constituted a contract in writing.^ This seems to me to be the effect of the evidence of mercantile usage relating to bought and sold notes given in Hawes v. Forster^ raentiont'(l below; mid tliis is the ground on which the verdict in that case is to be sustained, according to the opinion of Parke, B., expressed in Thornton v. Charles.- The form of the instruments is strong to shew that they are not intended to constitute a contract in writing, but to give informa- 1 1 Moo. & Rob. 368, 372. 2 9 M. & W. 802. 454 SIEVEWRIGHT V. ARCHIBALD. [CHAP. I. tion from the agent to the principal of that which has been done on his behalf: the buyer is informed of his purchase, the seller of his sale ; and experience shews that they are varied as mercantile convenience may dictate. Both may be sent, or one, or neither ; they may both be signed by the broker, or one by him and the other by the party ; the names of both contractors may be mentioned, or one may be named and the other described ; they may be sent at the time of the contract or after, or one at an interval after the other. No person acquainted with legal consequences would intend to make a written contract depend on separate instruments, sent at separate times in various forms, neither party having seen both instruments : such a process is con- trary to the nature of contracting, of which the essence is interchange of consent at a certain time. The governing principle in respect of contracts is to give effect to the intention of the parties ; and where the intention to contract is clear, it seems contrary to that principle to defeat it because bought and sold notes have been delivered which dis- agree. They are then held to constitute the contract only for the pur- pose of annulling it. It seems to me therefore that, upon principle, the mere delivery of bought and sold notes does not prove an intention to contract in writing, and does not exclude other evidence of the contract, in case they disagree. Before examining the authorities on which this propo- sition is supposed to be founded, I would draw attention to the dis- tinction between evidence of a contract and evidence of a compliance with the Statute of Frauds. The question of compliance with the statute does not arise until the contract is in proof In case of a writ- ten contract the statute has no application. In case of other con- tracts the compliance may be proved by part payment, or part delivery, or memorandum in writino: of the bargain. Where a memorandum in writing is to be proved as a compliance with the statute, it differs from a contract in writing in that it may be made at any time after the contract, if before the action commenced ; and any number of memo- randa 7nay be made, all being equally originals ; and it is sufficient if signed by one of the parties only or his agent, and if the terms of the bargain can be collected from it, although it be not expressed in the usual form of an agreement. Egerton v. Mathews.^ I now advert to the authorities usually cited on this point. In Thornton v. Kempster ^ the bought and sold notes could not be recon- ciled, and no other evidence appears to have been offered of the con- tract, and the plaintiff did not adopt the note delivered to the defendant; and he was nonsuited. As the case stands in the reports, there was no evidence of mutual assent to the contract alleged by the plaintiff. The point was not raised whether other evidence of the contract was admis- sible. In Gumming v. Koebuck ^ the statement is that the bought and 1 6 East, 307. 2 5 Taunt. 786. 3 Holt, N. P. C. 172. SECT. VI.] SIEVEWRIGHT V. ARCHIBALD. 455 sold notes varied ; and Gibbs, C. J., is reported to have ruled that, if the broker delivers a different note of the contract to each party con- tracting, there is no valid contract ; and he nonsuited the plaintiff In this case also it does not appear that any otlier evidence of the con- tract besides the notes was offered ; and if not, this ruling is in the same way irrelevant to the present question. The learned judge is reported to have added that a case which states the entry in the broker's book to be the original contract has been since contradicted. The facts in relation to which this opinion was expressed are not given: if it was intended to be unqualified, there is authority and principle against it. In Heyman v. Neale ^ an entry was made in the broker's book, and bought and sold notes were delivered ; and the defendant returned the bought note, and contended that there was no contract till the note delivered was assented to. Lord Ellenborough held that neither party could recede fi-om a contract after it was entered in the book, that the bought and sold note is not sent on approbation, nor does it constitute the contract : it is only a copy of the entry, which would be valid although no bought or sold note was sent. In Grant v. Fletcher ^ the plaintift' j^roved a verbal contract of purchase by the broker, and to comply with the Statute gave in evidence an unsigned entry in the broker's book and imperfect bought and sold notes; and a nonsuit was supported, because these imperfect instruments did not constitute a sufficient memorandum in writing of the bargain. In the judgment it is stated that the entry in the broker's book is the original, and the bought and sold notes ought to be copies of it, and that a valid contract may probably be made by perfect notes signed by the broker and delivered to the parties, although the book be not signed : the court therefore was far fi'om holding the notes, if delivered, to be the sole evidence of the contract. In Goom v. Aflalo ^ the broker had made an unsigned entry in his book, and had delivered to the parties signed bought and sold notes: it was objected that the entry in the book was the original, and tliat therefore the notes were inadmissible ; and this objection was only overruled after argument on a special case. The court therefore was still far fi'om recognizing the doctrine that bought and sold notes are the contract itself In Thornton v. Meux,'* Abbott, C. J., states that he used to think the broker's book the projier evidence of the contract ; but he afterwards changed his opinion, and held, con- formably with the rest of the court, that the copies delivered to the parties were the evidence of the contract they had entered into. It is obvious that this ruling does not follow from the judgments that had lately jn-eceded it : it avows a late change of opinion ; it was not acted on in tlie case so as to nonsuit the plaintiffs thereon, but the trial pro- ceeded, and the plaintiffs were nonsuited on anotlier ground ; and there- 1 2 Campb. 337. 2 5 B. & C. 436. 3 B. & C. 117. * M. & M. 43. 456 SIEVEWRIGHT V. ARCHIBALD. [CHAP. I. fore there was no opportunity to review the ruling in banc; and both the last cases are expressed as if a contract in writing was necessary for a contract of sale of chattels. In Hawes v. Forster ^ the contract as stated in the bought and sold notes varied from the contract as stated in the broker's book. On the first trial the plaintifls' note only was in evidence, and the broker's book was excluded. On the second trial the plaintiffs relied on both the notes, with the evidence of some merchants stating that they always looked to the bought and sold notes as the contract, and that if the note was not consonant to their direction to the broker they returned it ; the defendants relied on the entry in the broker's book : the jury were directed to find for the plaintiffs if the bought and sold notes in their opinion constituted the contract ; and they found for the plaintiffs. This case ought not to be taken to estab- lish the general proposition of law, that the notes in all cases constitute the contract. The vei'dict may well be supported u]ion the facts of the case, as the acceptance of the notes without objection was evidence for the jury of mutual assent to a contract upon the terms expressed in those writings, which agreed. This view is explained by Parke, B., in Thornton v. Charles,^ where he says, speaking of Hawes v. Forster: " 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 mem- orandum 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." The same learned judge expresses him- self to the same effect in Pitts v. Beckett.^ It is clear also that, if according to the opinion of the witnesses there is a right to return the note if contrary to instructions, the keeping of the note makes it bind- ing, and not the signature. These are the principal authorities cited by Mr. Smith on Mercantile Law * in support of the principle now discussed ; and from this review I gather that in the greater number of the cases the doctrine that bought and sold notes are the sole evidence of the contract is not recognized, nor was the point decided that other evidence of the con- tract and of a compliance with the statute is inadmissible if bought and sold notes have been delivered which disagree. And if the principle is not established by direct authority, the manifest evil resulting from it is a strong ground for believing that it is not founded on law. Then, if other evidence of the contract and of a compliance with the statute was admissible, the second question raised by the defendant 1 1 M. & Rob. 368. 2 9 M. & W. 804, 807. 8 13 M. & W. 743. 4 Smith, Merc. L. 452, 4th ed. SECT. VI.] SIEVEWRIGHT V. ARCHIBALD. 457 remains to be considered, namely, whether there was sufficient evidence to sustain the verdict for the plaintiff. Upon this point I think the jury were waiTanted in inferring that the substance of the contract was as alleged in the amended declaration and as stated in the defendant's note. The broker who made the contract apjjears to have so under- stood it, as he so expressed it at the time : the defendant with whom he made it probably so understood it, as he kept the note in that form without objection, and treated for a compromise on the assumption that he was bound thereby, and produced it at the trial as the contract. The plaintiff might well so understand it; for as Dunlop's iron was a Scotch iron, the article which he intended to deliver Avas the article which the defendant intended to buy. There is no evidence that Scotch iron made by Dunlop was better than any other Scotch iron ; on the con- trary it is probable fi'om the conduct of the parties that the mention of Dunlop's name was an immaterial accident, not affecting the sid> stance of the bargain. As in the case of the purchase of wheat or other article of usual supply by its known denomination, if the dock where it was stored or the ship in which it was brought was mentioned in one note and omitted in another, the omission of the place would, I presume, be held immaterial ; so the omission of the manufacturer of Scotch iron in the defendant's note ought to be held immaterial if the subject of his purchase was intended to be Scotch iron ; and his con- duct is good evidence of such intention. If the evidence was that the defendant had proposed to buy Scotch iron, and that the plaintiff had proposed to sell him the article he wanted, namely, Dunlop's, and the defendant had described his contract to be a purchase of Scotch iron in a memorandum made at the time, the jury would infer that Scotch iron was of the substance of the contract. The evidence now in the case appears to me to warrant the same conclusion. If the substance of the contract was as alleoed in the defendant's note, that note alone would be a sufficient memorandum of the bargain signed by an agent within the statute. The note delivei-ed to the defendant was held sufficient by Lord Kenyon in Rucker v. Cammeyer;^ one note only was offered in evidence by the plaintiffs in Powell v. Divett,^ and no objection was made on that account; one note alone was held by Lord Den man to be sufficient in Hawes v. Forster ; ^ one note signed by the defendant was held sufficient in Rowe v. Osborne,* though it varied from the note signed by the plaintiff's broker which had been sent to the defendant. But it is not necessary to discuss whether one note alone would be a sufficient memorandum ; for, if the substance of the contract was as is alleged, the notes did not substantially vary. As it was held in Bold V. Rayner ^that several apparent differences in the terms of bought and sold notes might be reconciled bv evidence of mercantile usage in 1 1 Esp. N. P C. 105. 2 15 East, 29. a 1 M. & Rob. 368. * 1 Stark, N. P. C. 140. 5 i M. & W. 343; s. c. Tyr. & G. 820. 458 SIEVEWRIGHT V. ARCHIBALD. [CHAP. I. respect to those terms, so where two descriptions are used in those instruments, of that which in the intention of the parties may be the same article, I think the apparent discrepancy may be removed by evi- dence of such intention ; and that if both notes were essential to the plaintiff's case, both may be reconciled upon this evidence and held valid, they not being inconsistent as was the case in Thornton v. Kempster.^ If it is further objected for the defendant that the question of ratifi- cation was left to the jury instead of asking them what was the sub- stance of the contract, it appears to me that the jury intended to find that the contract was as alleged in the declaration and expressed in the bought note ; but if not, this objection would not warrant the entry of a verdict for the defendant, which is the present rule : if the point can be resorted to at all, it goes to a new trial only. For these reasons my opinion is against the defendant on this second ground also ; and I think his rule ought to be discharged. PATTESOJf, J., after stating that it was unnecessary to recapitulate the facts, as he adopted the full statement in the judgment of Lord Campbell, C. J., proceeded as follows : — The Statute of Frauds requires that some note or memorandum in writing of the bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. The question is. Whether in this case there was any such note or memoran- dum in writing signed by the defendant or his agent ? If there was, I take it to be clearly immaterial whether there was any such note or memorandum signed by the plaintiff (see Egerton v. Mathews,^ where the memorandum was signed by the defendants themselves, not by a broker or agent, and none was signed by the plaintiff, yet it was held that the statute was satisfied) ; for I consider that the memorandum need not be the conti-act itself, but that a contract may be made with- out writing; and if a memorandum in writing be afterwards made, embodying that contract, and be signed by one of the parties or his agent, he being the party to be charged thereby, the statute is satisfied. Still it is plain that, if the original contract was itself in writing signed by both parties, that would be the binding instrument, and no subse- quent memorandum signed by one party could have any effect. In this case the contract was made by a broker acting for both parties ; but such contract was not in wi'iting signed by him or them. If there be any writing to satisfy the statute it must be some subsequent mem- orandum in writing signed by the defendant or his agent. There are subsequent memoranda in writing signed by the broker, namely, the bought and sold notes. Which of these, if either, is the memorandum • in writing signed by the defendant or his agent ? The bought note is delivered to the buyer, the defendant ; the sold note to the seller, the 1 5 Taunt. 786. 2 6 East, 307. SECT. VI.] SIEVEWKIGIIT V. ARCHIBALD. 459 pliiintiff; each of them in the language used puqiorts to be a repre- sentation by the broker to the person to wliom it is delivered of what he the broker has done as agent for that person. Surely the bought note delivered to the buyer cannot be said to be the mcTnorandum of the contract signed by the buyer's agent in order that he may be bound thereby ; for then it would have been delivered to the seller, and not to the buyer ; and vice versa as to the sold note. Can then the sold note delivered to the seller be treated as the memorandum signed by the agent of the buyer, and binding him the buyer thereby ? The very language of it shews that it caimot. In the city of London, where this contract was made, the broker is bound to enter in his book and sign all contracts made by him ; and if the broker had made such signed entry I cannot doubt, notwithstanding the cases and clicfa apparently to the contrary, that such memorandum would be the binding contract on both parties. In the case of Hawes v. Forster ^ there was such a memorandum signed in the broker's book : there were also bought and sold notes tallying with each other, but varying from the book. On the first trial of that case Lord Denman held that the bought note pro- duced by the buyer (the plaintiif ) was sufficient, and was the proper evidence of the contract and not the book, and that no notice to pro- duce the sold note need be given to the defendant. The court on motion granted a new trial, holding that this evidence was not the proper evidence of the contract, unless there was a custom of trade in London that the bought and sold notes, and not the signed broker's book, were the contract, and considering that such custom had not been sufficiently inquired into. The case is so explained by Parke, B., in Thornton v. Cliarles,- and again in Pitts v. Beckett ; ^ and my own note of the case (I having been a member of the court which granted the new trial*) is in entire conformity with that explanation. On the new trial the jury found the custom that the bought and sold notes consti- tuted the contract, and not the broker's book : a bill of exceptions was tendered; but the defendant did not persist, and submitted to the ver- dict. Possibly, if he had, it might have been held that the bought and sold notes acquiesced in constituted a new contract ; but that they could ever be treated under such circumstances as the original contract seems to me impossible. However, in the present case there was no signed memorandum in the broker's book : therefore the bought and sold notes together, or one of them separately, must be the memorandum in writing signed 1 1 M. & Rob. 368. 2 9 M. & W. 802. 3 13 M. & W. 743, 746. * The case was argued before Denman, C. J., Littledale, Parke, and Tatteson, JJ., on May 80 and June 3, 1833, by Sir James Scarlett, D. Pollock, and K. Gurney, for the plaintiffs, and Sir John Campbell, Solicitor-General, and Blackburne, for the defendants. Denman, C. J., delivered judgment on June 12. No decision having been pronounced on the question of law, the case was not reported. 460 SIEVEWRIGHT V. ARCHIBALD. [CHAP. T. by the defendant's agent, or there is none at all, and the statute will not be satisfied. If the bought and sold notes together be the memorandum, and they differ materially, it is plain that there is no memorandum : the court cannot possibly say, nor can a jury say, which of them is to prevail over the other ; read together they are inconsistent, assuming the vari- ance between them to be material ; and if one prevails over the other, that one will be the memorandum, and not the two together. If on the other hand one only of these notes is to be considered as the memorandum in writing signed by the defendant's agent and bind- ing the defendant, which of them is to be so considered, the bought note delivered to the defendant himself or the sold note delivered to the plaintiff? I have already stated that I cannot think that either of them by itself can be so treated. In no one of the cases has the court or a judge at nisi priiis held that it coixld : all that Lord Denman held in Hawes v. Forster,^ on the first trial, was that proof of one was sufii- cient without notice to produce the other, thereby holding only that the other must be taken to correspond with that produced until the opposite party produced the other and sh'ewed the variance. But on the second trial notice to produce the other was given, and it was pro- duced, and the two corresponded. In Goom v. Aflalo ^ there was no variance at all ; and the only question was, whether, as there was an unsigned memorandum in the broker's book, the bought and sold notes could be treated as a memorandum ; and the court held that they could. All three corresponded in that case. If this were res integra I am strongly disposed to say that I should hold the bought and sold notes together not to be a memorandum to satisfy the Statute of Frauds ; but I consider that point to be too well settled to admit of discussion ; yet there is no case in which they have varied in which the court has uj^held the contract ; plainly shewing that the two together have been considered to be the memorandum binding both parties : the reason of which is to my mind, I confess, quite unsatisfactory ; but I yield to authority. I do not go through and examine all the cases on this subject : they are collected in the last edition of Smith's Mercantile Law by Mr. Dowdeswell ; and they shew that it has invariably been held that, where the bought and sold notes are resorted to as the contract or as the memorandum of the contract, and they vary in any material point, there is no writing to satisfy the statute. It seems to me therefore that the only question to be determined in this case is. Do the bought and sold notes differ in any material point ? Now the one is "Dunlop's Scotch iron," the other "Scotch iron" gen- erally : the one would be complied with by delivery of Scotch iron of any person's manufacture, jDossibly greatly inferior to that of Messrs. 1 1 M. & Bob. 368. '-i 6 B. & C. 117. SECT. VI.] SIEVEWRIGHT V. ARCHIBALD. 461 Dunlop : the other ties the parties down to Dunlop's ; possibly again that may be inferior to some other Scotch iron. How is it possible to read the two notes together and say that they mean the same thing, or to say that if yon incorj)orate the one note with the other tliat which specifies Dunlop's iron will not immediately prevail over that which does not '? I cannot but think that they are as much at variance as the bought and sold notes in Thornton v. Kempster,^ where the one was " Riga " and the other " Petersburg " hemp, and where the Court of Common Pleas held there was no contract independent even of the Statute of Frauds. The broker indeed stated in his evidence that he made the original contract verbally for Dunlop's Scotch iron ; but how can that evidence make the bought note, delivered to the defendant for Scotch iron generally, to be a memorandum signed by the defend- ant's agent binding the defendant ? The question is, not whether either of the notes corresponds with the contract originally made by word of mouth, but whether either of the notes separately, ^:>e?' se, be a signed memorandum binding upon either party. Upon the whole therefore, however much I may regret that such an objection should prevail, I feel bound to say that in my opinion there was no evidence in this case of any contract binding on the defendant. Lord Campbell, C. J. I regret to say that the view which I take of the law in this case compels me to come to the conclusion that the defendant is entitled to our judgment, although the merits are entirely against him ; although, believing that he had broken his contract, he could only have defended the action in the hope of mitigating the damages ; and although he was not aware of the objection on which he now relies till within a few days before the trial. But it apjDcars to me that we cannot refuse giving effect to this objection without disre- garding the Statute of Frauds, without overturning decided cases, and without danger of introducing uncertainty and confusion into the rules for enforcing mercantile contracts of buying and selling. The plaintiff in his declaration set out the following written docu- ment, stated to be a "sold note"" of certain goods agreed to be pur- chased from him by the defendant : — 26 Lombard Street, London, February 26, 1849. Sold Charles Dickson Archibald, Esq., 48 Upper Harley Street, for Messrs. Sievewright, Watson, & Co., Glasgow, 500 tons Messi-s. Dunlop, Wilson, & Co.'s pig-iron, three-fifths No. 1 and two-filths No. 3, at 525. per ton, free on board at Troon. Payment, cash within one month from this date against orders of delivery. This professed to be signed by " Wm. Richardson, broker." The declaration in the usual form averred that the iron was duly tendered to the defendant, but that he refused to accept or to pay for it. The only material plea was >iO)i assum2)sit. William ^Miller being 1 5 Taunt. 786. 462 SIEVEWRIGHT V. ARCHIBALD. [CHAP. I. called as a witness swore as follows : " I am a metal broker in the city : plaintiff carries on business at Glasgow under the firm of Sievewright, Watson, & Co. I received instructions from him to sell 500 tons of Dunlop, Wilson, & Co.'s pig-iron. I sold it to the defendant. I saw the defendant in London : he gave me a verbal authority to make the purchase for him. I agreed with him that he was to be the purchaser of 500 tons of Dunlop, Wilson, & Co.'s iron. The name of Sieve- wright, Watson, & Co. was mentioned as the sellers. On the 26th of February I wrote a contract, and sent it to the defendant in a letter." (The bought note being called for, it was produced by the defendant ; and it corresponded with the sold note set out in the declaration, except that, instead of " 500 tons Messrs. Dunlop, Wilson, & Co.'s pig- iron," it stated " 500 tons of Scotch pig-iron." The bought note being read, the witness continued.) " This was enclosed in a letter of 26th February, and sent to the defendant in Upper Harley Street. I sent to the plaintiff the same day a sold note " (a copy of it was admitted and read as set out in the declaration). " Dunlop, Wilson, & Co. are manufacturers of iron in Scotland ; and their iron is Scotch iron." The defendant's counsel insisted that there was no binding contract between the parties, there being a material variance between the bought and sold notes ; for according to the bought note the seller would per- form his obligation by tendering 500 tons of pig-iron made by any manufacturer in any part of Scotland, whereas by the sold note the buyer might demand 500 tons of pig-iron made by Dunlop, Wilson, & Co., which might be of a peculiarly good quality and of superior reputa- tion in the market. I intimated an opinion that the variance was material, and that as there was no entry in the broker's book signed by him, and the plaintiff had proposed to prove the contract by the bought and sold notes, the variance was fatal. The plaintiff's counsel then said that he had clear evidence to prove that the defendant had subse- quently ratified the contract ; and objection being made that he could not have ratified the contract as set out in the declaration, I permitted the declaration to be amended according to the terms of the bought note. Miller the broker being recalled, after stating that he had the deliv- ery orders for the 500 tons of iron ready to be handed over to the defendant on the 26th of March, said : " I saw the defendant about the end of March. On the 4th of April he agreed that I should propose to the plaintiff to take a bill at four months, and the delivery orders to be lodged as a security at the Union Bank. The price of iron had then fallen 5s. a ton. Before the 29th of March the defendant had given me unlimited authority to get the transaction settled as I thought fit." There were read a letter from the defendant to Richardson of 5th April, saying, " You must manage the iron speculation as you think fit ; " a letter written by Richardson to the plaintiff, saying that " Mr. SECT. VI.] SIEVEWRIGHT V. ARCHIBALD. 463 Archibald agreed to give a bill at four months;" the plaintiff's answer, refusinir to take a bill at four months, but offering to take one at three months ; another letter written about the same time by the defendant to Richardson, saying, "I hope you will conduct it to a successful issue;" and further letters between the parties, continuing the negotia- tion till 27th October, 1849, when the defendant denied his liability. I left the question to the jury. Whether the defendant had ratificl the contract sent to him, contained in the bought note ? The jury found that he had; whereupon a verdict was entered for the plaintiff for £125 damages, with liberty for the defendant to move to enter the verdict for him if the court should be of ojnnion that there was not evidence to prove the declaration as amended. Having heard the rule obtained for this pui-j)Ose learnedly argued, I do not think that there was any sufficient evidence of ratification. Nothing having such a tendency was done by the defendant before the 26th of March, the day on which he ought to have pei-foi-med the con- tract and on which he broke it. What constituted the ratification ? And what date is to be given to it? There never was any reference by the defendant to the terms of the bought note more than of the sold note. The variance between them was not known to him till after the action was brought. Nor was there ever any assent by the ])lain- tiff to accede to the tenns of the bought note, wherebv he would have' become bound to deliver Dunlop, Wilson, & Co.'s pig-iron. The sold note containing different terras, instead of being discarded by the plaintiff, was actually declared on by him, and was set up by him as the true contract till the declaration was amended. The plaintifi' like- wise sought to recover under a count for goods bargained and sold : but this could not avail him ; for the defendant never accepted tlie goods ; and the contract was not for the sale of any specific goods, the property in which could be considered as transferred to him. Recur- ring to the special count, the plaintiff attempted to support it by the parol agreement alleged to have been entered into between the broker and the defendant, using the bought note as a memorandum of the agreement to satisfy the Statute of Frauds. In the first place there seems a difticulty in setting up any parol agreement where the parties intended that there should be and under- stood that there was a written agreement : Mdiat passed between the defendant and the broker previous to the 26th of February seems to me only to amount to an authority from the defendant to the broker to enter into the contract ; and Miller himself says : " On the 26th ol February I wrote a contract and sent it to the defendant. I sent a sold note the same day to the jjlaintiff." Again, the memorandum under the 17th section of the Statute of Frauds must be signed by the party to be charged or his agent. But assuming that the parol agree- ment was the contract, and that when Miller Avrote the bought note 464 SIEVEWRIGHT V. ARCHIBALD. [CHAP. I. it was only to tell his principal what he had done, there is a difficulty in saying that, being functus officio as far as making the bargain was concerned, he had any authority to sign the memorandum as the defend- ant's agent, and thereby to charge him. But if he had, can this be said to be a true memorandum of the agreement ? We are here again met by the objection of the variance, which is as strong between the parol ao-reement and the bought note as between the bought note and the sold note. If the bought note can be considered a memorandum of the parol agreement, so may the sold note ; and which of them is to prevail ? It seems to me therefore that we get back to the same point at which we were when the variance was first objected and the declara- tion was amended. I by no means say that where there are bought and sold notes they must necessarily be the only evidence of the con- tract : circumstances may be imagined in which they might be used as a memorandum of a parol agreement. Where there has been an entry of the contract by the broker in his book signed by him, I should hold without hesitation, notwithstanding some dicta and a supposed ruling of Lord Tenterden in Thornton v. Meux ^ to the contrary, that this entry is the binding contract between the parties, and that a mistake made by him, when sending them a copy of it in the shape of a bought or sold note, would not affect its validity. Being authorized by the •one to sell and the other to buy in the terms of the contract, when he has reduced it into writing and signed it as their common agent, it binds them both according to the Statute of Frauds, as if both had signed it with their own hands : the duty of the broker requires him to do so ; and till recent times this duty was scrupulously performed by every broker. What are called the bought and sold notes were sent by him to his principals by way of information that he had acted upon their instructions, but not as the actual contract which was to be binding upon them. This clearly appears from the practice still fol- lowed of sending the bought note to the buyer and the sold note to the seller ; whereas, if these notes had been meant to constitute the contract, the bought note would be put into the hands of the seller, and the sold note into the hands of the buyer, that each might have the eno-agement of the other party and not his own. But the broker to save himself trouble now omits to enter and sign any contract in his book, and still sends the bought and sold notes as before. If these ao-ree, they are held to constitute a binding contract ; if there be any material variance between them, they are both nullities, and there is no binding contract. This last proposition, though combated by the plaintiff's counsel, has been laid down and acted upon in such a long series of cases that I could not venture to contravene it, if I did not assent to it ; but where there is no evidence of the contract unless by the bought and sold notes sent by the broker to the parties, I do not 1 M. & M. 43. SECT. VI.] MOORE V. CAMPBELL. 465 see liow there can be a binding contract unless they substantially agree; for contracting parties must consent to the same terms; ami where the terms in the two notes differ there can be no reason why faith should be given to the one more than the other. This is certainly a most inconvenient mode of carrying on commercial transactions : from the carelessness of brokers and their clerks mistakes not untieqiicntly arise, of which unconscientious men take advantage ; and no buyer or seller can be safe unless he sees the sold or bought note as well as his own ; a precaution Avhich the course of business does not permit to be taken. But these inconveniences can only be remedied by the Legislature enforcing upon the broker the faithful ))erformance of his duty in enter- ing and signing the contract in his book. In the present case, there being a material variance between the bought and sold note, they do not constitute a binding contract : there is no entry in the broker's book signed by him ; and if there Avere a parol agreement, there being no sufficient memorandum of it in writing, nor any part acceptance or part payment, the Statute of Frauds has not been complied with; and I agree with my brother Patteson in thinking that the defendant is entitled to the verdict. My brother Wiglitman, who heard the argument but is now- engaged elsewhere in the discharge of a public duty, has authorized me to say that he has read this judgment and that he entirely concurs in it. But the court being divided, instead of making the rule abso- lute to enter the verdict for the defendant, we think that a nonsuit should be entered, so that the plaintiff may have the opportunity to bring a fresh action, and by a special verdict or a bill of exceptions to take the opinion of a court of eiTor on his rights. Hide absolute to enter a nonsuit. MOORE V. CAMPBELL. In the Exchequer, July 7, 1854. [Reported in 10 Exchequer, 323.] The declaration stated that in September, 1853, the defendant agreed with the plaintiff to sell to him 100 tons of Petersburg clean hemp, expected to arrive at Liverpool by certain ships, namely, fifty tons by the ship George Green and fifty tons by the ship Trina, at the price of £34 per ton from the quay, and on the terms that, if the ship or ships should be lost or the hemp damaged on the voyage, the VOL. I. 30 466 MOORE V. CAMPBELL. [CHAP. I. said contract should be considered void for such quantity as might be lost or damaged, the quality to be of fair average of the season ; and if any dispute should arise, the same should be settled by arbitration. Payment to be made by the j^laintiff by six months' acceptance, or cash in fourteen days less two and a half per cent, discount, at the buyer's option, and on the terms of customary allowances. Averments : that after the making of the contract the ship George Green arrived at Liverpool with fifty tons of such hemp on board, and not damaged, and the quantity of fifty tons of hemp thereupon became deliverable to the plaintiff according to the terms of the said contract, and the plaintiff was at all times ready to accept the said quantity of fifty tons of hemp according to the said contract, and to exercise his option, and to pay for the same by a six months' acceptance ; and the plaintiff did all things necessary to be done by him in order to entitle him to have the said fifty tons of hemp delivered to him ; and a reasonable time for the delivery expired before this action; of all ■which the defendant had notice. Yet the defendant broke his con- tract, and did not deliver to the plaintiff from the quay or else- where fifty tons of the hemp arrived as aforesaid by the ship George Green, and no part of the said hemp was ever delivered to the plain- tiff, &c. Pleas (inter alia) : first, that it was not agreed as alleged ; thirdly, that within a reasonable time for the delivery and acceptance of the said quantity of fifty tons of hemp the defendant was ready and willing and offered to deliver to the plaintiff the said hem]), but he refused to accept the same from the defendant ; fourthly, that, after the making of the agreement and before any breach thereof, the agree- ment was mutually rescinded by the plaintiff and the defendant. Issues thereon. At the trial before Piatt, B., at the last Liverpool spring assizes, the following facts appeared : In September, 1853, the plaintiff, who resided at Douglas in the Isle of Man, employed one Wilks, a flax and hemp broker at Liverpool, to purchase for him some hemp. Wilks, having negotiated with the defendant, sent him the following note: — LiVEKPOOL, 8th of September, 1853. Sold, per Mr. James Campbell, to Mr. W. F. Moore, Douglas, Isle of Man, 100 tons of Petersburg clean hemp, to arrive ^;er Trina and George Green, at £34 per ton ; payment at the option of the buyer by acceptance on London at six months from delivery or cash in fourteen days less two and a half per cent. ; to be taken from the quay at the landing weights, and to be of fair average quality for the season. John Wilks, Broker. Wilks afterwards received from the defendant the following note : — SECT. VI.] * MOORE V. CAMPBELL. 467 15 RuMFORD Street, Liverpool, 8th of September, 1853. Mk. John Wilks, I have this day sold through you the following goods to Mr. W. F. Moore : — 50 tons Petersburg clean hemp expected to arrive per George Green. 60 tons per Trina. 100 tons at £34 per ton from the quay. If the ship or ships are lost, or the hemp damaged on the voyage, this contract to be considered void lor such quantity as may be lost or damaged. The quality to be of fair average of the season ; and if any dispute arises, the same to be settled by arbitration. Payment, six months' acceptance or cash in fourteen days less two and a half per cent, discount, at the buyer's option. Yours respectfully, James Campbell. Customary allowances. Campbell, who was a broker, had sold the hemj^ on behalf of Smith, a merchant, who had contracted ^vith Messrs. Bohtlingk & Co. and Messrs. Telo and Prange, Russia merchants in Liverpool, to purchase the hemp of them. On the 18th of September tlie George Green arrived at Liverpool with the fifty tons of hemp. On the 28th of Sep- tember the defendant called on Wilks, and shewed him the folloAving letter from Messrs. Bohtlingk & Co. to Smith : — 9 RuMFORD Place, 28th of September, 1853. Sir, — There are now about thirty-five tons clean hemp ex George Green on the quay of your lot, which, if not taken away this afternoon, we shall store at your risk and expense. We further beg to remark to you that, in delivering to you the hemp after- wards ex warehouse, we shall not weigh it, but you must take it at the landing weight. ■ We are your obedient servants, Bohtlingk & Co. W. W. Smith, Esq. After reading this letter Wilks requested that the hemp might be warehoused on the plaintift"'s account; and the defendant having com- municated with Messrs. Bohtlingk, they warehoused the fifty tons, which was fully landed on the 30th of September, — thirty tons in a warehouse of their own, and twenty tons in a warehouse of Messrs. Dean & Co. On the same day the defendant made out in his own name and sent to Wilks a bill of parcels. On the 3d of October Wilks wrote to the defendant as follows : — Dear Sir, — I have a letter this morning from Mr. W. F. Moore. You are to draw upon him for the amount of the hemp, as soon as you are in a position to transfer it. Please to let me know also where it is stored, and the rest, and oblige Yours truly, John Wilks. On the 15th of October Smith paid Messrs. Bohtlingk &, Co., and obtained delivery orders for the fifty tons of hemp. On the 17th the 468 MOOEE V. CAMPBELL. [CHAP. I. defendant called on Wilks with the delivery orders, which were as fol- lows : — October 15th, 1853. Mr. John Wilks. Sill, — We hold to your order about twenty-two tons of hemp ex George Green, lying in William's, 1 Brook Street, at 6d. per ton per week, from Octo- ber 9, 1853, twenty-eight days certain. •' " William Dean & Co. Liverpool, 15th of October, 1853. W. H. Smith, Esq. Sir, — We hold to your disposal about thirty tons St. Petersburg clean hemp ex George Green, lying 9 Rumford Place. BOHTLINGK & Co. Messrs. Bohtlingk & Co., Please to transfer the following goods to the order of Mr. John Wilks, the whole of the hemp specified in the annexed transfer note, and oblige W. H. Smith. 3 High Street, Liverpool, 15th of October, 1853. Wilks refused to give the defendant the plaintiff's acceptance, and to receive the above orders, on the ground that the quantity was therein described as " about " fifty-two tons ; and the defendant in con- sequence re-sold the hemp. Evidence was tendered on behalf of the defendant to prove that, according to the course of business in Liver- pool, w4ien goods were warehoused in bulk, it w^as usual for the ware- houseman in describing the quantity to insert in the delivery order the word " about," in order to protect himself against deficient weight. This evidence was objected to, and the learned judge refused to receive it. It was submitted on behalf of the defendant, first, that there was no binding contract, since the bought and sold notes differed in some material particulars, and Sievewright v. Archibald ^ was relied on ; sec- ondly, that the original contract (if any) was to deliver the hemp on the quay by landing weight, and that such contract was rescinded before \ breach, and another contract substituted, viz., to deliver from the warehouse. The learned judge directed a verdict for the plaintiff, reservino- leave to tlie defendant to move to enter a verdict for him on the above points. Bkcgh Hill in the following tenn obtained a rule nisi accord- ingly, or for a new trial on the ground of the rejection of evidence ; against which Knoides and Aspland now shewed cause. First, the contract alleged in the declaration was proved. The 17th section of the Stat- ute of Frauds, 29 Car. 2, c. 3, does not require the contract to be signed by both parties, but only by the party to be charged by it, and that has been done here. This is not the ordinary case of bought and 1 17 Q. B. 103. SECT. VI.] MOORE V. CAMPBELL. 469 sold notes made out by a broker acting for both parties, but it is a con- tract made on the one side by the principal and on the other by a broker. A memorandum of the contract is sent by the broker to the defendant ; and he, finding that it is not the contract which he agreed to, alters the memorandum, and then signs it. In Kowe v. Osborne,^ Lord Ellenborough ruled that a vendee of goods is bound by the con- tract as stated in the note signed by him and delivered by the broker who effected the sale to the vendor, although this note varies from tlie note delivered by the broker to the vendee. That authority was recognized and adopted in Cowie v. Remfry.- [Pakke, B. The question is, Avhether the defendant meant to bind himself unless there was some correlative note to bind the jjlaintiff.] Secondly, evidence was not admissible to prove that, according to the usage of trade, the delivery orders were in the usual form where goods were warehoused in bulk. The effect of such evidence would be to alter the terms of the written agreement by parol testimony. The contract was for the purchase of an entire quantity of fifty tons ; but the evidence, if admitted, would tend to shew that the contract was for some uncertain quantity, about that Aveight. The case is not distinguishable from Powell v. Edmunds,^ where the printed condi- tions of the sale of growing timber omitted to state the quantity ; and it was held that parol evidence was not admissible to prove that the auctioneer at the time of sale warranted a certain quantity. In Blackett v. The Royal Exchange Assurance Company * the action was brought on a policy of insurance, in the usual forai, on a ship, her tackle, boats, &c. ; and it was held that evidence of usage that the under- wi-iters never pay for the loss of boats slung upon the outside of the ship upon the quarter was inadmissible. Lord Lyudhurst, C. B., in delivering the judgment of the court, says: "Usage may be admis- sible to explain what is doubtful : it is never admissible to contradict what is plain." Thirdly, the original contract was not rescinded by the substitution of a new contract. The deUvcry of the goods from the quay Avas a material part of the contract, and that could not be varied by parol. It is well estabhshed that, where a contract is required to be in Avriting by the Statute of Frauds, it cannot be altered by a vei-bal agreement. Goss V. Lord ISrugent,^ Stead v. Dawber,^ Harvey v. Grabham," Stowell V. Robinson.^ This is not the case of a substituted agreement and its performance being accepted in satisfaction of a breach of contract. Smith V. Trowsdale.^ Ilit^h Hill and J. Henderson, in support of the rule." The plaintiff 1 1 Stark. Rep. 140. 2 5 Moo. P. C. 232. 3 12 East, 6. * 2 C. & J. 244. 5 5 B. & Ad. 58. 6 lO A. & E. 57. 7 5A. &E. 61. 8 3 Bing. N. C. 928. 9 3E. &B.83. 10 They were requested by the court to confine their arguments to the points as to the rescission of the contract and the admissibiUty of the evidence. 470 MOORE V. CAMPBELL. [CHAP, I. did not declare his option to pay by his acceptance until after the hemp was Avarehoused. Therefore at the time his option was declared an act had been done, with the concurrence of both parties, which ren- dered the performance of the original contract impossible. That operated as a new contract, embodying all the terms of the old con- tract except the delivery on the quay by the landing weight. A new substituted agreement may exist although it is incapable of being enforced by action. In Stead v. Dawber,i Lord Denman, C. J., deliv- ering the judgment of the court, says : " Independently of the stat- ute, there is nothing to prevent the total waiver or the partial alteration of a written contract not under seal by parol agreement ; and in con- templation of law such a contract so altered subsists between these parties ; but the statute intervenes, and in the case of such a contract takes away the remedy by action." A subsequent inconsistent agree- ment between the same parties discharges a previous agreement. Com. Dig., Action on the Case upon Assumpsit (G.). There being then a binding agreement that the hemp should be warehoused and delivered from the warehouse, it must be assumed that the parties intended to incoi-porate with it the usage of trade as to delivery. Such a form of order is necessary for the protection of the warehouseman, since the goods might decrease in bulk after they were warehoused. If these orders are in the usual and customary form, there was that species of delivery for which the plaintiiF impliedly contracted when he consented to the goods being warehoused. The evidence of the usage of trade was therefore necessary, and improperly rejected. Cur. adv. vult. The judgment of the court was now delivered by Parke, B. In this case my brother Piatt reserved a question on the trial for the consideration of the court, as to the effect of two notes put in on the part of the plaintiff, in order to prove the contract alleged in the declaration. The two notes differed in several material points ; and if this were a case in which the plaintiff sought to prove the con- tract by means of bought and sold notes made by a broker for both parties, he must have failed in that case, for the two notes disagreeing there could be no valid contract. But this is not the case of a contract entered into by a broker for buyer and seller. Wilks was indeed a broker, but he acted solely for the plaintiff. The plaintiff then insisted that the note signed by the defendant is the contract, and the declara- tion ao-rees with it ; and if it be true that this was intended by both parties to be the contract between them, the defendant would be bound as the party to be charged, and the memorandum would be sufficient within the Statute of Frauds. But if Campbell the defendant never intended to be bound as seller unless Moore was also bound as buyer, 1 10 A. &E. 57. SECT. VI.] MOORE V. CAMPBELL. 471 and meant that Moore should sign a note on his part so as to bind him, then there has been no valid contract between them. "We cannot as- certain this point ourselves, and therefore there must be a new trial. Some other questions are to be considered, which may be material on the new trial. An objection was taken to the ruling of my brother Piatt as to the rejection of evidence of the usage of trade as to delivery orders where goods are warehoused. The defendant tendered in evidence delivery orders for " about fifty tons," and also ofic-red to prove that by the usage of trade in Liverpool such delivery orders were in the usual foi-ra when goods were warehoused in bulk. My brother Piatt refused to allow a question to that effect to be put. If this question had been asked with reference to a purchase of fifty tons of goods contracted to be sold and delivered simj^ly and not from a warehouse, doubtless it could not be permitted to give evidence that in usage of trade a transfer or delivery note authorizing the purchaser to receive " about fifty tons " would be sufficient. But if there is a contract to sell and deliver goods in a warehouse, as the keepers of warehouses in that place have a known usage not to accej^t delivery orders, or transfer notes as they are called, except in this form, having an objection to make themselves responsible for any par- ticular quantity, the delivery of such an order or transfer note may be sufficient performance of the contract to deliver in some circumstances. For instance, in the simple case of the contract being to sell a quan- tity of goods now warehoused in a given warehouse as being " about fifty tons," or in the more complicated case of a sale of " fifty tons weighed by landing scales and now warehoused," such a form of order would be sufficient, couplfed with proof that the goods warehoused were actually of that weight at the landing scales, and it being shewn that the particular order referred to the identical goods so weighed. Another question raised by Mr. Hill was as to the effiict of the al- teration by parol of the written contract to deliver the goods on the quay to be weighed by the landing scales, and substitute a delivery from the warehouse. He contended that this operated as a new con- tract embodying all the terms of the old one except the delivery on the quay by landing weight, and that such new contract was necessarily a waiver or discharge of the old one, and being made before the breach of the old contract the fourth plea was supported. That plea was, "that, after the making of the agreement and before breach, the agree- ment was mutually rescinded by the plaintiff and defendant." We do not think that this plea was proved by this evidence. The i)artie8 never meant to rescind the old agreement absolutely, which this jdea, we think, imports. If a new valid agreement substituted for the old one before breach would have supported the plea, we need not inquire, for the agreement was void, there being neither note in writing nor 472 SARL V. BOURDILLON. [CHAP. I. part jjayment, nor delivery nor acceptance of part or all. This was decided by the cases of Stead v. Dawber ^ and Marshall v. Lynn.^ A further question may arise on the new trial, considering the old contract to be still in force in all its parts, which must be done ; for in- stance, whether the plaintiff on his part declared his option and was ready to give his acceptance in due time. The delivery from the warehouse instead of the quay not being authorized by the old contract, the only one in force, the sufficiency of the delivery or transfer order cannot now be a question. If the jilaintiff had already accepted and received the goods in the warehouse, or even the delivery or transfer order in the form offered, as a jierformance of the contract on the de- fendant's part, there would have been a good answer by way of accord and satisfaction ; biit no such question arises in this case. Hule absolute for a new trial. SARL AND Others v. BOURDILLON. In the Common Pleas, November 17, 1856. \B.e'ported in 26 Law Journal Reports, Common Pleas, 78.] This was an action for goods bargained and sold. Plea, never in- debted. At the trial before Willes, J., at the Middlesex sittings after last Easter term, it appeared that the plaintiffs were silversmiths, and that the defendant called at their shop and chose certain articles. The articles chosen were entered in the plaintiffs' order-book, with the prices to be paid for each, amounting together to £29 15s.; and among the other entries there was this one : " Two chamber candlesticks complete at 225. each, — £2 4s." It was agreed that each of the candle- sticks so entered should be fitted up with a gallery to carry a glass shade ; and the defendant, on being asked how he proposed to pay for the goods, said he would in a few days give a cheque on his brother, a stockbroker in Throgmorton Street. The defendant then wrote his name and address, " Capt. Bourdillon, 29 Inverness Terrace, Bays- water," and his brother's address, 14 Throgmorton Street, in the order-book, before the list of articles. This book has the words " order-book " on the cover, and the names of the plaintiffs on the fly- leaf; all of which the defendant had an oj^portunity of seeing, if he chose. 1 10 A. & E. 57. 2 6 M. & W. 109. SECT. VI.] SARL V. BOURDILLON. 473 The counsel for the defendant did not address the jury; but he objected that there was no evidence to go to them, as there was no sufficient memorandum of tlie contract in writing under the 17th section of the Statute of Frauds, and the names of the vendors did not appear in the memorandum, nor the mode of paj-ment by cheque agreed on, nor the agreement as to altering the gallerios. The learned judge overruled the objection, and the plaintifts had a verdict for the amount of their claim, leave being reserved to the defendant to move to set aside the verdict and enter a nonsuit. A rule nisi having been obtained accordingly, Hatckins and Bennet (June 9) shewed cause. The entry by the defendant of his name in the plaintifts' order-book was a sufficient signature under the Statute of Frauds ; for it is not necessary that the signature should be in any particular j)art of the memorandum. That is the signature of the party sought to be charged ; and the entry and list of articles will make a good contract, if the name of the seller in writing can be connected with it. It is submitted that the names of the plaintiffs on the title-page of the order-book are sufficient for that purpose. Allen v. Bennet.^ In the next place, as to the agreement for payment by cheque not appearing on the face of the writing. [Jervis, C. J. We think there is nothing in that point.] As to the ao-reement for the alteration of the candlesticks,. the first answer is that the contract is divisible, there being a separate price fixed on for each article. Therefore the plaintifts may, if necessary, reject the item of £2 4s., and keep their verdict for the rest of the bill. [Cresswell, J. Is there any case like this, where there has been a memorandum signed as to part of the goods referred to in a contract? In Baldey v. Parker,^ where the defendant went to a linen-draper's and contracted for the purchase of various articles at certain prices, the price of each article being less than £10, but the aggregate amount above £10, and the defendant required an account of the whole to be sent to him, it was held that there was but one contract, and that the case was tlierefore within the 17th section of the Statute of Frauds.] But there, there was no memorandum at all to satisfy the statute. The alteration in this case was not a thing which it was material to advert to in the written memorandum. The candlesticks were to be complete according to the understanding between the parties. In Hoadly v. Maclaine,'' where there was a written memorandum of a contract for goods to be manufactured, it was held that additions and alterations made in the progress of the work need not be made the subject of a distinct contract in writing. Byles, Serjt., and Karslake, in sujtport of the rule. Baldey v. Parker and Scott v. The Eastern Counties Railway Company * shew 1 3 Taunt. 169. 2 2 B. & C 37. ^ i Mo. & S. 340. 4 12 Mee. & W. 33 ; s. c. 13 Law J. Rep. (n. s.) Exch. U. 474 SARL V. BOURDILLON. [CHAP. I. that this was an entire contract, and that it cannot be divided. The agreement to alter the candlesticks was part of the original agreement, and ought therefore to have appeared in the memorandum in writing ; and proof of the verbal contract is admissible, in order to shew that the whole contract was not put into writing. Kenworthy v. Scho- field ^ and Elmore v. Kingscote.^ Hoadly v. Maclaine differs from the present case, because there there was an original order sufficient to satisfy the statute, and the alterations were agreed upon afterwards. It does not appear that the defendant saw the name of the sellers in the order-book. [Cresswell, J. He would have had a right to see their names before he wrote his own in the book.] Lastly, the payment by cheque on the defendant's brother was a particular mode of payment, which ought to have been mentioned in the agreement. [Cresswell, J. Can it be said that the plaintiffs bind themselves to give up the goods on receiving a cheque on the defendant's brother ?] [Jervis, C. J. We shall consider the principal point. As to the last point, the mode of payment, the evidence shewed that that was proposed in answer to an application of the plaintiffs for a reference, and was not intended to be part of the contract. We think also that the Statute of Frauds was satisfied as regards the names of the vendors and the vendees appearing in writing ; for the defendant was entitled to look at the book, and see that the names of " Sari & Sons " were entered as the vendors. The other point we shall consider.] Cur. adv. vult. Cresswell, J., now delivered the judgment of the court. In this case, inasmuch as the defendant declined to go to the jury, and insisted that there was no evidence of a memorandum to satisfy the Statute of Frauds, it may be assumed that the defendant wrote his name in the plaintiffs' book, intending it as a signature to an order to the plaintiffs, whose order-book it was, and whose name Avas written in the beginning of it in the usual way. This, with the observations made in the course of the argument, disposes of all the objections raised, except that relating to the description of the candlestick, which was one of the articles ordered. It was thus described, — "candle- stick complete ; " and it was insisted for the defendant that, because at the time of giving the order it was arranged that the candlestick to be suppUed should be furnished with a gallery to carry a glass shade, therefore the addition of the shade formed a part of the bar- gain, and ought to have been stated in the memorandum. Upon consideration we do not feel obliged to yield to this argument. The 1 2 B. & C. 945. 2 5 ij^id, 583. SECT. VI.] • MEWS V. CARR. 475 memorandum states all that was to be clone by the person charged, viz., the defendant ; and according to the case of Egoiton v. Mathews ^ that is sufficient to satisfy the 17th section of the Statute of Frauds, though not to make a valid agreement in cases within the 4th section. Moreover the difficulty which may arise as to the sufficiency of the precise candlestick supplied to fultil the contract is not greater than that of identity, which even in an agreement under the 4th section may be left to parol evidence. So in Spicer v. Cooper - it was held that " sold fourteen pockets of Kent hops at 100s." might be explained to mean 100s. per cwt. ; and it was not even argued that the a])parent ambiguity as to the price, caused by the omission of any statement of the quantity for which the lOOs. was to be paid, rendered the note or memorandum insufficient to satisfy the 17th section. The rule must therefore be discharged. Hide discharged. MEWS V. CARR. In the Exchequer, November 20, 1856. [Reported in 1 Hiirlstone Sf Norman, 484.] The declaration stated that the plaintiff put up for sale by public auction in lots a large quantity of timber of a certain descri})tion, etc., under and subject to the following conditions of sale. (The declara- tion set out the conditions, of which the following only are material) : first, that the highest bidder should be deemed the purchaser, &c. ; fourthly, that the goods should be paid for and cleared away within twenty-eight days from tlie day of sale ; sixthly, that in default of compliance with the above conditions the deposit money received shall be forfeited, and the purchasers shall be liable for all loss, charges, interest of money, or any expenses whatever attendant on a re-salie eitlier by private contractor public auction. Averments: that on the said exposure to sale of the said timber the defendant became the highest bidder for and the purchaser of (to wit) two lots of the same on the conditions aforesaid, at and for a certain sum (to wit) of £183 6s., and he agreed with the plaintiff to become the purchaser thereof on the said conditions and at and for the said price, and to comply with the said conditions, and the plaintiff acce})ted him as such purchaser; and although the plaintiff has at all times been ready and willing to do and perform and has done and performed all things i 6 East, 307. 2 1 Q. B. Rep. 424 ; s. c. 10 L. J. Rep. (x. s.) Q. B. 241. 476 MEWS V. CARR. ♦ [CHAP. I. and all things have happened to entitle him to a performance by the defendant of the said conditions of sale and his said agi'eement, and although the defendant according to the said conditions of sale and his said agreement ought to have paid for and cleared away the said lots within twenty-eight days from the day of sale, yet the defendant did not nor would at any time within the said space of twenty-eight days from the day of sale pay for or clear away the said lots or any part thereof; and thereupon, in accordance with the said conditions of sale and after the expiration of the said period of twenty-eight days from the day of sale, and in a reasonable time in that behalf, the plaintiff did re-sell the said lots by public auction at and for a less sum than the amount so to have been paid for the same by the defendant as afore- said, to wit, at a loss of £20 ; and the plaintiff was put to and incurred great expense, to wit, a further sum of £20, for and in respect of divers charges and expenses attendant on such re-sale, &c. : of all which premises the defendant afterwards and before the commencement of this suit had notice, and was then requested by the plaintiff to pay him the said several sums ; but the defendant has hitherto wholly neglected and refused so to do. Plea. That the defendant did not become the highest bidder for and the jDurchaser of the said two lots on the said conditions, nor did he agree to become the purchaser thereof on the said conditions at and for the said price and to comj^ly with the said conditions ; nor did the plaintiff accept him as such purchaser as alleged. Replication, taking issue on the plea. At the trial before Pollock, C. B., at the last Surrey assizes, it appeared that on the 26th of October, 1856, one Churchill on behalf of the plain- tiff put up for sale by auction several lots of timber under the conditions of sale mentioned in the declaration. All the lots were not sold ; and on the following day the defendant called at the office of Churchill and inquired what lots remained unsold. Churchill thereupon shewed him a catalogue, and he selected two lots, which he agreed to purchase. Churchill then wrote the defendant's name in the catalogue opposite these lots. Two or three days after the defendant again called and requested to know what further lots remained on hand. The catalogue was shewn to him, and he selected two other lots ; and on being informed the terms he said he should consider whether he would become the pur- chaser of them. About the 9tli November he again called, and on this occasion he agreed to purchase these two lots. Churchill then wrote in the defendant's presence his name in the catalogue opposite these lots, and also the agreed price, £10 10s. per standard. The defendant then stated that as the prompt day fixed by the conditions of sale at twenty- eight days after the day of sale, viz., on the 23d November, was so near, he could not pay for the lots then ; and it was agreed that the twenty-eight days should be calculated from the 9th November. Evi- SECT. VI.] MEWS V. CARR. 477 dence was adduced to sliew that by the custom of the trade persons who purchased lots from those remaining unsold at an auction were always considered as bound by the conditions of sale, the same as if they had purchased at the auction. It was objected on behalf of the defendant, first, that Churchill was not the agent of the defendant so as to bind him by his signature, and conseciuently there was no contract in writing as required by the 17th section of the Statute of Frauds ; secondly, that this, being a sale by private contract, was not subject to the conditions mentioned in the declaration. The learned judge directed a verdict for the plaintiff, reserving leave to the defendant to move to enter a verdict for him. Hawkins in the present term obtained a rule nisi accordingly, against wdiich • Montagu Chambers and Matheic now shewed cause. The auc- tioneer was the agent of the defendant, and the sale was on the con- ditions stated in the catalogue. [Polt.ock, C. B. The cases have established that the auctioneer is the agent of both parties at the time of the sale ; but a traveller going about to collect orders, who writes the names of those who give orders in his order-book, does not bind them as buyers.] Bird v. Boulter ^ decided that an auctioneer's clerk, who is present at a sale, is the agent of the persons to whom the lots are knocked down, so as to bind them by his entry in the sale-book. In (iraham v. Musson - the plaintiff's traveller, having received from the defendant an order for goods, made and signed in his own name an entry of the contract in a book of the defendant, and that was held not a sufficient memorandum within the Statute of Frauds ; but the court there say that, if the traveller had signed the defendant's name, and he had not dissented from it, the case would have resembled Bird V. Boulter. Here the broker signed the name of the defendant in his presence. IlaicJcins appeared to support the rule, but was not called upon. Pollock, C. B. The rule must be absolute. The sale in question took place some days after the auction was over; and therefore, as regards the Statute of Frauds, the case must be determined as any other ordinary sale. The parties cannot set up a custom of trade to repeal the Statute of Frauds. No doubt an auctioneer at the sale is agent for both seller and buyer, so as to bind them by his signature ; but the moment the sale is over, the same principle does not apj>ly, and the auctioneer is no longer the agent of both parties, but of the seller only ; and the signature of the seller or his agent cannot bind the buyer. The question is, Avhether there is any evidence to take the case out of the Statute of Frauds ; and I think that there is none. Aldersox, B. I am of the same opinion. Bkasiavell, B. The only reason why I make any remark is, that 1 4 B. & Adol. 443. ^ 5 Bing. N. C. 603. 478 GOODMAN V. GRIFFITHS. [CHAP. I. the observations of the court in Graham v. Musson ^ may not be mis- understood. There the court said that, if tlie traveller had signed the defendant's name, and he had not expressed any dissent, that would have been a recognition of agency. Here the auctioneer signed the defendant's name, not purporting to act for him, but as the person who sold the goods. It is now established that an auctioneer at the time of the sale is agent for both buyer and seller ; but as soon as the sale is over the reason for the rule fails, and he is certainly not the agent of the buyer unless he has some authority to act on his part. WATSojf, B,, concurred. Mule absolute. GOOD^fAN V. GRIFFITHS. In the Exchequer, January 22, 1857. [Reported in 1 Huiistone Sj- Norman, 674.] AcTiox for not accepting goods. Plea (inter alia), that the plaintiff did not agree as alleged. Whereupon issue was joined. At the trial before Martin, B., at the Middlesex sittings after last Michaelmas term, the plaintiff, a patentee of mechanical binders, proved that he called on the defendant for an order, shewing him at the same time a printed list of the different sizes with the price of each annexed. The plaintiff wrote down the following order, which was then signed by the defendant, and handed by him to the plaintiff: — June 9, 1855. Mr. Goodman, Please put in hand for my account the following : — 4 ]\Iechanical binders No. 1. 3 Doz. ditto „ 2. 6 Mechanical binders ». 3. 2 Doz. ditto ,,14. 1 Doz. Mechanical binders ,,5. 1 Single ditto ,,17. With two extra cases to each instrument. GiiTFF. Griffiths. The numbers referred to the printed list. The words " the price as per note " had originally been written at the foot of the order by the plaintiff, but were struck out by the defendant, the agreement being in fact that the plaintiff should take, off 25 per cent, discount from the prices marked on the printed list. On the 16th of July the defendant 1 5 Bing. N. C. 603. SECT. VI.] GOODMAN V. GRIFFITHS. 479 wrote to the plaintiff a letter as fcjllows : " Mr. Griffiths' compliments . to Mr. Goodman, and wishes him to forward the invoice of the goods, and also the size of the package, &c. ; if not too large, Mr. Griffiths will take them in his cabin, and may thereby have an opi)ortunity of submitting them to his fellow-passengers, and pc'rha])s selling some of them. The goods themselves do not send until he writes again." On the same day the plaintiff sent the invoice with the prices as on the list, and the discount taken off according to the agi-eement. On the 20th of July the plaintiff received the following letter from the defend- ant returning the invoice : " I am very sorry that I must decline taking the goods as per invoice returned, in consequence of having received very unfavorable intelligence by the last mail, &c. Yours, &c. G. Griffiths." The defendant's counsel objected that there was no sufficient memo- randum of the bargain to satisfy the 17th section of the Statute of Frauds, and the plaintiff was nonsuited. Collier moved to set aside the nonsuit (.January IG). The order of the 9th of June refers to the printed list of prices, and may be read in connection with it. There was an additional term, viz., that 25 per cent, discount should be taken off. [Bramwell, B. That may be proved; though not in writing, for the purpose of defeating the effect of a memorandum of agreement duly signed according to the 17th section, and therefore cfood on the face of it. Acebal v. Levy.H All the docu- ments must be read together, and the imperfections of the original mem- orandum may be made good by the subsequent letters referring to it. Warner v. Willington,- Saunderson v. Jackson,^ Allen v. Bennet.* The plaintiff in the invoice states the terms of the contract, and the defend- ant in his answer sufficiently recognizes them, and admits that the con- tract is correctly stated. The defendant does not deny his Jiability to take the goods, as was the case in Archer v. Baynes.^ Cur. adv. vult. Maetin, B., now said : The declaration stated an agreement by the defendant to purchase a number of mechanical binders. The ])laintiff took a printed list of his goods with the prices annexed, and put it into the hands of the defendant ; the defendant bargained for these articles and agreed for a discount ; he then signed an order which did not mention the terms as to the discount. The plaintiff having manu- factured the goods sent in an invoice with the prices striking off the discount ; the defendant wrote an answer declining to take the goods, making some excuse for not doing so. It was objected that this was a contract for the sale of goods above the value of £10, and that as there was nothing to satisfy the 17th section of the Statute of Frauds the 1 10 Bing. 376. 2 3 Drewry, 623. » 2 Bos. & P. 238. * 3 Taunt. 169. 5 5 Exch. 625. 480 BAILEY V. SWEETING. [CHAP. I. lilaintiif could not succeed. We are of opinion that this objection must prevail. The bargain was for a price 25 per cent, less than that on the list. The order signed by the defendant did not express the real contract, and it does not ^^reclude the defendant from shewing what the contract was. It is not sufficient under the statute because it does not contain the price agreed on. The next question is, Whether what took place with respect to the invoice cured this defect ? The invoice is the statement of the plaintiif. If the letter returning it had con- tained an admission that it stated the contract con-ectly, it might have been sufficient ; but in this letter the defendant merely declines to take the goods. We are therefore of opinion that the nonsuit was right. Mule refused. BAILEY 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. ^d. for goods bar- gained and sold. The defendant paid into court £38 3s. 9(7., 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 j^laintiiFs' manufactory in London in July, 1859, bought of the plaintiffs four old gilt chimney-glasses at £28 10s., and a walnut chimney-glass at £6 6.s., to be paid for by a cheque on delivery ; 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 chimney- 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 carriage 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 by him ; and it was admitted at the trial that the value of these was covered by the amount Avhich 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. Qd. 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 SECT. VI.] BAILEY V. SWEETING. 481 acceptance ; and they also relied on the following letter from tho defendant, written in answer to one from the plaintifls 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 say that the only parcel of goods selected for ready money was the chimney-glasses, amount- ing to £38 \0s. 6d., which goods I have never received, and have long since declined to have for reasons made known to you at the time ; with regard to the other items, viz., £11 4s. dd., £14 13s., and £13 13s., for goods had subse 18/6, and five acres Skirving's swedes fa) 28/. On the 18th, by letter, you state that you have bought Skirving's swedes at less than my quotations ; and you consider my price too high for white globe, and offer 16/6 for two acres or three acres. On the 19th I decline this, and state that I have 18/ from your neighbors, and I am not inclined to go below it. I send you a precise copy of your answer. (Copy of Messrs. Carter's letter of the 21st of March, 1861, sent.) Some time after this I called at your house and offered you other seeds. The white globe contract was mentioned, but not the terms. It was never repudiated in any way then or since, and I must hold you to it. I am very sorry there should be any mistake between us in our first transaction, but I feel that there is no fault attached to me. I am, &c., James Watts. High Holborn, August 19, 1861. Mr. James Watts, We are fully aware that we offered you 18/ per bushel for the white globe turnip in our letter of the 21st March last, but we have never received your reply accepting this offer ; and when the subject was mentioned on your calling at Hol- born, you stated that you could not do the white globe turnip. The seed still lies at the railway station at your risk. Your obedient servants, James Carter & Co. August 20, 1861. Messrs. James Carter & Co. Gentlemen, — I have received yours of yesterday ; and as you have deter- mined to repudiate your agreement, I give you notice that I shall not take the seed back, and that I shall at once proceed against you for the amount. If you really mean to resist my claim, send me the name of your solicitor by return. I am, &c., James Watts. The present action was thereupon brought. The plaintift' in his evidence stated that he did not reply by letter to the defendants' letter of the 21st of March, but that being in London on the 25th of March he called at the defendants' shop, and had some conversation with Ains worth, one of the defendants, on the subject of other seeds, in the course of which the defendant said, " I think we have some transaction with you ; " and the plaintiff replied, " Yes, a contract for three acres of white globe." The defendant Ains^vorth, on the other hand, stated that he said to the plaintiff when he called, "I believe Ave have been writing to you about some turnip-seed?" and the plaintiff said, "Yes, but I cannot accept your offer;" and that acting upon that the defendants bought turnip-seed elsewhere at a higher price. . It appeared that the market price had fallen considerably between March and August. SECT. VI.] WATTS V. AINSWORTH. 493 The learned judge left it to the jury to say whether the plaintift'at the interview rejected or accepted the terras of the letter of the 21st of March ; reseiwing leave to the defendants to move on the question of whether there was any contract in writing to satisfy the 17th sec- tion of the Statute of P'rauds. The jury found that the contract was accepted, and the verdict was entered for the plaintiif. Prentice now moved, pursuant to the leave reserved, to enter the verdict for the defendants. There was no contract to satisfy the Statute of Frauds. Tlie letters were more proposals, and there was no complete bargain in writing, the plaintift' never having acceiJted the defendants' ofler contained in the letter of the 21st of March. One mode of testing whether the letter was a complete contract is, whether a stamp was necessary (assuming that it was not a case exempted from duty as relating to the sale of goods, wares, or merchandise). Clearly no stamp would be necessary, the letters being mere offers, which were not accepted. [Beamwell, B. It comes to this: Was the plaintiff bound to supi^ly, even if he had insisted there was no contract ?] Yes, that is the question. How could the plaintiff be bound, wlien he had never agreed to sell three acres ? He had offered to sell five acres, and was not bound to sell a less quantity. The offer of the de- fendants to take three acres was therefore subject to his approval, and there was no bargain in writing between the parties; and the parol assent as found by the jury is insufficient to satisfy the statute. Martin, B.^ I am of opinion that no rule should be granted in this case. I think the last letter of the defendants, of the 21st of March, was an absolute contract to take the produce of three acres at the price asked by the plaintiff. Apart from that, I think it was a question tor the jury whether there was an adoption by the plaintiff of the letter ; and that the jury having found that the contract was accepted, that was such a ratification of the letter signed by the defendants as makes the latter a compliance with that part of the 17th section of the Statute of Frauds which requires a memorandum or note in wiiting of the bar- gain to be made and signed by the parties to be charged. In either way therefore the statute is satisfied. Bramwell, B. I agree there should be no rule. I think that in this case there is a memorandum in writing within the Statute of Frauds. I think there is no principle and no authority for saying that if the letter were a mere offer, the agreement by parol on the part of the plaintiff would be sufficient. Still, I think I can see from the letters themselves a memorandum in writing of the bargain. The plaintiff writes offering to sell turnip-seeds. The defendants reply, ask- ing as to quantities and price. The plaintiff writes, saying all he can offer is the produce of five acres at a given price ; that is, the limit 1 Pollock, C. B., had left the court. 494 DURRELL V. EVANS. [CHAP. I. of the quantity he can supply is five acres. The defendants in answer say in efiect, " We do not want all you ofier, only two or three acres at another price ; " and they offer to buy three acres at a price named. The plaintiff writes, saying he is much obliged for the offer but he declines, not on account of the quantity but on account of the price ; that is to say, he is willing to sell three acres at 18s, The defendants thereupon say they will take three acres at 18s. The words "waiting your reply " create the doubt ; for if a man says, " Let me know if I am right in ray notion of the bargain," I think there is no bargain until the other says, " Yes, those are the terms." I confess there is a diffi- culty in the case ; but still I think that is not the effect of the words " waiting your reply ; " for if that were so, the reply would only be, " Yes, all ridit." While therefore I entertain a doubt, it is not so strong as to say that I think a rule should be granted. Wilde, B. I am of the same opinion. I quite agree in the exposi- tion of the letters given by my brother Bramwell. The single question is, whether the letter of the 21st of March is a sufficient memorandum within the Statute of Frauds. If it is a contract to buy three acres of turnip-seed at 18s. a bushel, then the point is not arguable. I think it is a contract. I will only say, in reference to the words " waiting your reply," that if they are to be regarded as making only a proposal, then there is not a contract ; but I do not give that effect to the words. The letter makes inquiries as to other sorts of turnip-seeds, and also as to worzel seed ; and the defendants wait for a reply as to that part of the letter. I may add that I believe the Lord Chief Baron is of the same opinion. Iiule refused. DURRELL V. EVANS and Others. In the Exchequer Chamber, May 19, 1862. \Re.f(yrted in 31 Law Journal Reports, Exchequer, 837.] Appeal from the Court of Exchequer. First count, for not accepting pursuant to agreement thirty-three pockets of hops, at the price of £16 16s. per cwt., to be paid on the 3d of November, 1860 ; second count, for goods bargained and sold, and interest. Plea : to the first count, a traverse of the agreement ; and never indebted, to the residue of the declaration.^ 1 See Keuss v. Picksley, Law Rep. 1 Exch. 342. — Ed. 2 There were other pleas, which it is unnecessary to set out. SECT. VI.] DURRELL V. EVANS. 495 At tlie trial before Pollock, C. B., at the sittings in London after Michaelmas term, 1860, a verdict Avas found for tlio i)laintilf on all the issues, with £20 damages, leave being reserved to move to enter a verdict for the defendants or a nonsuit. A rule ?iisi was obtained accordingly, on the ground that tliere was no contract in writing nor part delivery of goods sufficient to satisfy the Statute of Frauds. The Court of Exchequer (April 30, 1861) made the rule absolute to enter a nonsuit.^ I See 30 L. J. Exch. 254, where the argument and opinions are reported as fol- lows : — Lush having obtained a rule nisi to enter a nonsuit, T. Jones and Waddy shewed cause. The factor Noakes was as much the nyent of the defendants as the phiintiff, just as a stock or sliare broker or an auctioneer would be between a vendor and purchaser. He made out the usual l)ouglit and sold notes, and iianded the bought note to tlie defendants. The defendants expressly directed him to alter the date. [Wii-UK, B. Suppose I went into a shop and told a man to make me out an in- voice, and he put the wrong price, and I handed it back to him to alter the price, which lie did : how would this be an adoption of the invoice as a memorandum of tlie bargain ?] Tliere was evidence for the jury that Noakes was acting as the defendants' agent. The following cases were referred to : Johnson v. Dodgson, 2 Mee. & W. 653 ; Schneider v. Norris, 2 M. & S. 286; Bird v. Boulter, 4 B. & Ad. 443 ; Farebrother v. Simmons, 5 B. & Aid. 333 ; Graham v. Musson, 7 Sco. 769 ; Wright r. Dannali, 2 Campb. 203; Graham v. Fretwell, 3 Man. & G. 368; Maclean r. Dunn, 4 Bing. 722; Cham- pion V. riummer, 1 N. Kep. 252; Humfrey v. Dale, 27 L. J. Kep (n. s.) Q. B. 390; Dixon c. Broomfield, 2 Chit. Rep. 205; Kucker v. Cammeyer, 1 Esp. 105; Bartlett t;. Purnell, 4 Ad. & E. 792 ; Mews v. Carr, 1 Hurl. & N. 488. Haic/.ins, in support of the rule, was stopped by the court. Bra.mwell, B. I am of opinion that this rule ought to be made absolute. There is not much doubt about the law in reference to the true construction of the 17th section of tiie Statute of Frauds, which enacts [stating it]. The difficulty arises out of the actual facts of the transaction, and the application of the act of Parliament to them. Here every one seems to have done all he could do to avoid making a com- plete and perfect contract, binding according to the act of Parliament. A number of cases have been cited during the argument upon the subject, but there is no case which has yet gone so far as to decide any thing like this to be sutficient. Now the facts of this case are these : The plaintiff had some hops in the country for sale, and he sends up to his factor in London a sample ot tliom, to enable the factor to sell them for him, and the defendants inspect the sample and inquire the price. They after- wards meet the seller, they converse about the hops and the price, and afterwards they go to the factor's where the sample is ; there a sum is agreed upon between them for the sale, and the factor makes out a bill of it. The factor might no doubt have asked the defendants to sign the note, which would have ratified the contract, and bound the bargain ; but he did not. The defendants signed nothing. This ajipears to be tiieir mode of doing business. In the corn-market I understand a similar course of proceeding is followed, which is no doubt a source of much litigation. If the defendants had not signed the note themselves, they might have said to the factor, "Sign this for us or on our behalf;" but this they did not do, and there is nothing whatever here by them in writing to shew any intention on tlieir part to lie bound, or that they authorized any one to sign on their l>ehaU'. I quite agree with the obser- 496 DURRELL V. EVANS. [CHAP. I. The followig is the statement of the case on appeal: — The pLiintifF is a hop grower in Kent ; the defendants Messrs. Evans are hop merchants, carrying on business in Southwark. Previous to the 19th of October, 1860, the plaintiff had sent samples of the hops forming the subject of this action to Messrs. J. T. & W. Noakes, who carry on business as hop factors in Southwark, with instructions to sell the same for the plaintiff, but not under £18 per cwt. On Friday, Oc- tober 19, the defendant J. C. Evans called on Messrs. Noakes and asked to see samj^les of the plaintiff's hops, which wei-e shewn to him. Upon asking the price, Mr. J. T. Xoakes replied that he was instructed by the ])laintiff not to sell under £18 per cwt. The defendant J. C. Evans said that was too high a price for them, and he should not give so high a price for them. He then left Messrs. Noakes's premises. On the afternoon of the same day, Friday, October 19, the plaintiff hap- pened to be in the borough, and met the defendant J. C. Evans : a con- versation took place between them with reference to the plaintiff's hops. Mr. J. C. Evans offered tlie plaintiff £16 I65. per cwt., which the plaintiff refused, but ultimately both parties went to Messrs. Noakes's counting-house, and saw Mr. J. T. Noakes upon the subject. Some further conversation took place as to the j^urcliase of the hops, which ended in Mr. J. C. Evans refusing to give more than £16 16s. per cwt. The plaintiff in the j)resence and hearing of Mr. Evans vation that was made by one of my learned brothers during the argument, that it is no more than if a person went into a tradesman's sliop, and having bouglit a quantity of goods said, " Make out a certain invoice, or an invoice in a particular form, for the goods, or put me down so and so." The factor in the present case no doubt had no notion whatever that he was doing what he did on behalf of the buyer, but wholly and solely as the agent of the seller. The case seems to me to be perfectly plain. There was, no sufficient note in writing to bind the defendant to the bargain within the 17th section of the Statute of Frauds. I think this rule ought to be made abso- lute. Wilde, B. I am of the same opinion as my brother Bramwell, and concur with him that this rule should be made absolute. I think there must be a memorandum signed bj' the party to be charged himself, or by some one properly authorized on his behalf for him, to make him liable under the 17th section of the Statute of Frauds. It seems to me that here there is neither. The defendants have not signed any thing themselves in the transaction, nor has any one else done so for them on their behalf. It is just the same as if an invoice had been asked for of goods, and such an invoice given, and that appears to me to be the whole effect of this note produced in evidence at the trial. Pollock, C. B. I entirely agree with the rest of the court in tliinking that this rule should be made absolute. At the trial I thought it right to reserve to the defend- ants leave to move upon it, and let the matter be discussed. The defendants did not sign the note, nor was it signed by any one for them or on their behalf; and the defendants' subsequent conduct amounts to nothing, because a party does not adopt and ratify that which was not originally done on his behalf. If the required act was not originally done on his behalf, he cannot be afterwards legally bound by it where he has not adopted it. The factor here was the agent of the seller only, and not of the buyer. Rule absolute to enter a 7ionsuit, SECT. VI.] DURRELL V. EVANS. 497 asked Mr. J. T. Noakes Avhether he would recommend him (the plain- tiiF) to accept Mr. Evans's offer. Mr. Xoakes advised him to laintiff" had a fortnight longer to deliver, and the defend- ants a fortnight longer to take and pay for those goods. This on prin- ciple and authority Avas a third contract, call it C. It was a contract in which all that was to be done and permitted on one side was the consideration for all that was to be done and permitted on the other. (See ^:»er Parke, B., in Marshall v. Lynn.") It remains to add that the declaration would fit either contract B or contract C, and that goods were tendered by the plaintiff" to the defendants in time for either of those contracts. My notes and my recollection of my ruling are that contract B was rescinded, and contract C not enforceable, not being in writing. I think that was wrong. Eitlier contract C was within the Statute of Frauds, or not. If not, there was no need for a wi'iting ; if yes, it was because it was a contract for the sale of goods, and so within the 17th section of the statute. That says that no contract for the sale of goods for the price of £10 or upwards shall be allowed to be good, except there is an acceptance, payment, or Avriting. The expression " allowed to be good " is not a very happy one ; but what- ever its meaning may be, it includes this at least, that it shall not be held valid or enforced. But this is what the defendant was attempting to do. He was setting up this contract C as a valid contract. He was asking that it should be allowed to be good to rescind contract B. I This judgment was read by Channell, B. 2 6 M. & W. 117. 524 NOBLE V. WARD. [CHAP. I. It is attempted to say that what took place when cofitract C was made was twofold: first, that the old contracts were given up; sec- ondly, a new one was made. But that is not so. What was done was all done at once, — was all one transaction, — one bargain ; and had the plaintiff asked for a writing at the time, and the defendants refused it, it would all have been undone, and the parties remitted to their original contract. I think therefore that on principle it was wrong to hold that the old contract was gone. Moore v. Campbell^ is an authority to the same effect. It is true that case may be distinguished on the facts ; namely, that there what was to be done under the new arrangement in lieu of the old was to be done at the same time, so that it might well be the parties meant, not that the new thing should be done, but if done it should be in lieu of the old. Such an argument could not be used in this case. But it was not the ground of the judgment there, which is that the new agreement was void. The case of Goss v. Loi'd Nugent,- Stead v. Dawber,^ and others, only shew that the new con- tract C cannot be enforced, not that the old contract B is gone. I think it was not. Inconvenience and absurdity may arise from this. For instance, if the defendants signed the new contract, and not the plaintiff, the plaintiff would be bound to the old and the defendants to the new. Or if in the course of the cause a wiiting turned up signed by the plaintiff, then they could first rely on the old and afterwards on the new contract. But this is no more than may happen in any case within the 17th section, where there has been one contract only. But then it was said before us that the plaintiff was not ready and willing to deliver under contract B. Probably not, and he supposed contract C was in force. In answer to this, the plaintiff contended before us that this point was not made at the trial; to Avhich the defendants replied, Neither was the point that the old contract was in force. My recollection is so, — that the case was opened and main- tained as on the new contract, — but I agree with Mr. Mellish that a nonsuit ought to be maintained on a point not taken at the trial only when it is beyond all doubt. I cannot say this is. Consequently I think the rule should be absolute ; but under the circumstances the costs of both parties of the first trial ought to abide the event of the second. Channell, B. The case in my brother Bramwell's opinion turning on Avhat was his own impression, he was desirous that this judgment should be read as his own judgment. But I am authorized by the Lord Chief Baron and by my brother Pigott to say that, although I have read it as the judgment of my brother Brarawell, it is a judgment in which we all agree. Mule absolute. » 10 Ex. 323, 23 L. J. (Ex.) 310. '^ 5 B. & Ad. 58. 3 10 Ad. & E. 57. SECT. VI.] NOBLE V. WARD. 625 The defendants appealed from the foregoing decision to the Excheq- uer Chamber. Holker {Baylis Avith liiin), for the appealing defendants. The defendants' contention is that the contract of the 27th of September, although not enforceable at law by reason of § 17 of the Statute of Frauds, is good to rescind the previous contract of the ISlh of August. It is stated in Com. Dig., Action on the Case, Assumpsit (G.), that a written contract may be discharged by parol, or impliedly by a subse- quent inconsistent promise ; and this rule was followed recently in Hob- son V. Cowley ^ and LaVery v. Turley.^ It is not therefore conclusive against tlie rescission of the contract of the 18th of August by that of the 27th of September that the latter Avas not in writing. In the sec- ond place, it is established by Stead v. Dawber,'' agreeing with Goss v. Loi'd Nugent,* that, where by a new contract the terms of a previous contract are varied, the old contract is rescinded, and a new contract, embodying the alterations and the unaltered part of the old one, is sub- stituted for it ; and Marshall v. Lynn,"^ following that case, lays down that it is unnecessary to inquire whether the alteration is an essential part of the agreement. Therefore the contract of the 27th of Septem- ber, extending the time for the performance of that of the 18th of August, rescinded the former contract, and made a new contract incor- porating so much of the old one as remained unaltered. If then it had been in writing, it is clear that the substituted contract, and that alone, would have been enforceable. But although for want of the formality required by the statute the contract of the 27th of Septem- ber could not have been enforced, yet the provision that it shall not be " allowed to be good " does not make it void altogether, and it still has the effect of rescinding the former contract. [Blackburn, J. That argument amounts to this, that it is good for the purpose of rescission, though not good for any other purpose whatever. Willes, J., referred to Roe d. Berkeley v. Archbishop of York ® and Doe d. Biddulph v. Poole.''] This contention is supported by French v. Patton,^ where a contract having been altered in such a manner that it could not be sued on in its altered form (see Hill v. Patton ^), it was held that the plaintifl' could not sue upon it in its original form. [Blackburn, J. There the original contract, which was in writing, had itself been altered on the face of it ; and the case was decided on the principle of Master v. Miller.^'^] The dictum in Moore v. Campbell," which is relied on by the plain- 1 27 L. J. (Ex.) 205. 2 30 L. J. (Ex.) 49. 3 10 Ad. & E. 57. * 5 B. & Ad. 58. 5 6 M. & W. 109, at p. 117. « 6 East, 86. 7 11 Q. B. 713. 8 9 East, 351. 9 8 East, 873. 10 4 t. E. 820. 11 10 Ex. 323, 23 L. J. (Ex.) 310. 526 NOBLE V. WARD. [CHAP. I. tiff, was not necessary to the decision of the case, for there a new trial was necessary to ascertain whether any contract had been made by the defendant. He also referred to Taylor v. Hilary.^ MelUsh^ Q. C. {Jones, Q. C, with hira), for the plaintiff, was not called upon. WiLLES, J. This is an appeal from the judgment of the Court of Exchequer, making absolute a rule to set aside a nonsuit, and for a new trial. The action was brought for non-acceptance of goods pursuant to a contract dated the 18th of August, by which the goods were to be delivered in a certain time. The defendants pleaded that the con- tract was rescinded by mutual consent. At the trial they established that on the 27th of September, before any breach of that contract, it was agreed between the plaintiff and the defendants that a previous contract of the 12th of August should be rescinded (as to which no question is made), that the time for delivering under the contract of the 18th should be extended for a fortnight; and other provisions were made as to taking back certain goods, which we need not further notice. The contract of the 27th of September however was invalid, for want of compliance with the fonnalities required by § 17 of the Statute of Frauds. The defendants contended that the effect of the contract to extend the time for delivery was to rescind the contract of the 18th of August ; and if the former contract had been in a legal form, so as to be binding on the parties, that contention might have been successful, so far as the change in the mode of cari-ying out a con- tract can be said to be a rescission of it ; but the defendants main- tained that the effect was the same, although the contract was invalid. In setting aside the nonsuit directed by the learned judge who tried the cause, the Court of Exchequer dissented from that view, and held that what took place on the 27th must be taken as an entirety, that the agreement then made could not be looked on as valid, and that no rescission could be effected by an invalid contract. And we are of opinion that the Court of Exchequer was right. Mr. Holker has con- tended that, though the contract of the 27th of September cannot be looked on as a valid contract in the way intended by the parties, yet since, if valid, it would have had the effect of rescinding the con- tract of the 18th, and since the parties might have entered into a mere verbal contract to rescind simpliciter, we are to say that what would have resulted if the contract had been valid will take place though the contract is void ; or, in other words, that the transaction will have the effect which, had it been valid, the parties would have intended though without expressing it, although it cannot operate as they intended and expressed. But it would be at least a question for the jury, whether the parties did intend to rescind, — whether the transac- 1 1 C. M. & K. 741. SECT. VI.] NOBLE V. WARD. 527 tion Avas one which could not otherwise operate according to their intention; and a material fact on that point is that, while they simply rescinded the contract of the 12th of August, they simi)ly made a con- tract as to the carrying into effect that of the 18th, though in a mode different from Avhat was at first contemplated. It is quite in accordance Avitli the cases of Doe d. Egremont v. Courtenay ^ and Doe d. Biddulph v. Poole,- overruling the i^revious decision of Doe d. Eo-remont v. Forwood,^ to hold that, where parties enter into a con- tract which would have the effect of rescinding a previous one, but which cannot operate according to their intention, the new contract shall not operate to affect the previously existing rights. This is good sense and sound reasoning, on which a jury miglit at least hold that there was no such intention. And if direct authority were wanted to sustain this conclusion, it is supi^lied by Moore v. Campbell,* where upon a plea of rescission the very point was taken by Sir Hugh Hill, who wouhl no doubt have made it good, had it been capable of being established. "With reference to his argument that the contract was re- scinded, Parke, B., said : ^ " We do not think that this plea was proved by the evidence. The parties never meant to rescind the old agreement absolutely, which the plea, we think, im2:)orts. If a new valid agree- ment substituted for the okl one before breach would have supported the plea we need not inquire ; for the agreement was void, there being neither note in writing nor part papnent, nor delivery nor acceptance of part or all." And he adds : " This was decided by the cases of Stead V. Dawber ® and Marshall v. Lynn." "^ As to the cases cited fi'om East, too much importance has been attached to them. The first case ^ amounts to no more than this : that the court was bound to construe the contract before it Avithout regard to the stamp ; and having done so, then to see how the Stamp Acts operated upon it. In the second case ^ it was held that, although the Stamp Acts operated to prevent the plaintiff from recovering upon the policy as altered, that circum- stance couki not enable him to recover upon it in its original form, when he had himself consented to the alteration of the Avritten words. Blackburn, Melloe, Montague Smith, and Lush, JJ., concurred. Judgment affirmed. 1 11 Q. B. 702. 2 11 Q. B. 713. 3 3 Q. B. 627 ; see 11 Q. B. 723. 4 10 Ex. 323, 23 L. J. (Ex.) 310. » 10 Ex. at p. 332. 6 10 Ad. & E. 57. 7 6 M. & W. 109. 8 HUI v. Piitton, 8 East, 373. 9 French v. Patton, 9 East, 361. 528 WILKINSON V. EVANS. [CHAP. I. WILKINSON V. EVANS. In the Common Pleas, May 8, 1866. [Reported in Law Reports, 1 Common Pleas, 407.] This was an action brought to recover the price of certain cheese. The case was tried by writ of trial before the under-sheriff of the county of Chester, when it appeared that the defendant had verbally ordered of the plaintiff twenty-five Dutch cheeses and some candles. The plaintiff sent the goods, and also an invoice of them in the usual form. The defendant refused to take the goods in when they arrived, and returned the invoice to the plaintiff, with the following note writ- ten on the back of it : — The cheese came to-day ; but I did not take them in, for they were very badly crushed : so the candles and the cheese is returned. You seem to think that I complain without cause ; so now you Avill be able to see them as they are. I was glad to find it is the first complaint you've had from seven counties. I hope it will be the last. I am sure it Avill be the last for me. Yours truly, T. Evans, Grocer, Welshpool. The plaintiff agreed to take back the candles, and brought this action for the price of the cheese, which was less than £10. The plaintiff's attorney having written to the defendant to ask for payment of the goods, the defendant sent the following answer : — Sir, — Yours this morning to hand, in which you requested payment for cheese. I have to inform you that I have nothing at all to do with it. The cheese and candles were in a very bad condition, and the candles he consented to take back ; so if the company signed for the cheese in good condition, it is very likely they will allow the damage without suing them : but I don't think they would sign for those in good condition, as they seemed to have very old crushes ; some of the openings were quite green. As for you to sue the company in my name, you may do so if you think proper ; but you must bear in mind that I will not be any thing towards the cost, and if summoned for witness I must have my expenses paid. Had they been sent by canal as I ordered them, they would not have been damaged ; that is, if they would receive them in good condition. I expect that he has the cheese in his warehouse, for I never received any notice from the com- pan3% Yours truly, Thomas Evans, Orocer, &c., Welshpool. The plaintiff was nonsuited on the ground that there was no suffi- cient memorandum in writing within the meaning of the Statute of Frauds. SECT. VI.] WILKINSON V. EVANS. 529 Morgan Lloyd having obtained a rule for a new trial, • Mclntyre shewed cause. The memorandum must be a memoran- dum of the bargain, and shew on the face of it that a bargain has been made. In Bailey v. Sweeting ^ the letter stated that the goods had been bought, and what were the terras of the bargain : here it is nowhere stated that there was any bargain at all ; for the invoice is only a statement of the price of the goods if they are sold, and is never intended to indicate that the goods are sold. The form is the same if the goods are only sent on approval ; and the note on the back, even if it can be connected with the invoice, only says that the goods therein ftientioncd were returned, but does not say whether they had been bought or sent on approval. There is in fiict no admission anywliere that there ever was a complete contract. In Richards u. Porter - and Cooper V. Smith ^ the memorandum was held insufficient, though a let- ter was written by the defendant saying that he rejected them because they did not come in time. The note on the back of the invoice implies that it was a term in the contract that the cheeses should be delivered in good condition, just as much as the letters in the above cases implied that it was a terra in the contract that the goods should be delivered within a given time. In Smith v. Surman * the letter signed by the defendant stated that the goods were rejected because they were bad in quality, and it was held not to satisfy the statute. From the letter by the defendant to the plaintiff's attorney it would appear that it was a term of the contract that the goods should be sent by canal. Morgan Lloyd, in support of the rule. The invoice contained all the terms of the bargain, and if that had been signed by the defendant there could have been no dispute. The fact that the defendant's signa- ture is on the back cannot make any difference. He speaks too of the cheese which must mean that mentioned in the invoice. The case of Bailey v. Sweeting is in point : there the defendant wrote a letter com- plaining that the glass was broken ; here the defendant com]:»lains that the cheese is crushed. In the other cases cited the letters imply tliat there was an additional term in the contract as to time or quality not admitted by the plaintiff; if they do not, those cases are overruled by Bailey v. Sweeting.^ The letter written by the defendant to the plain- tiff's attorney was long subsequent to the transa<;tion, and cannot affect the rights of the plaintiff. Erle, C. J. I think this rule should be made absolute. The con- tract in this case was made by word of mouth, and consisted simply in an order for some grocery, containing no specification as to quality or any other matter.. The question is whether there was any memoran- 1 9 C B. (N. s.) 843, 30 L. J. (C. P.) 160. 2 6 B. & C. 437. 3 15 East, 103. 4 9 B. & C. 561. VOL I. 34 530 WILKINSON V. EVANS. [CHAP. I. dum in writing of this verbal contract. There is an invoice of the goods from the seller to the buyer ; and on the back of it is a letter signed by the buyer, which says, " The cheese came to-day, but I did not take them in for they were very badly crushed." I think that is some evidence that the invoice contained all the stipulations of the contract, and that the objection of the defendant was not to the plain- tiff's statement of the contract, but to that which had taken place in the performance of the contract, namely, the crushing of the cheeses. I am confirmed in this view by the letter of the defendant to the plain- tiff's attorney, because he says that if the goods had been sent by the canal they would not have been crushed, and makes no objection to the terms of the contract. I think the direction to send them by the canal was not a part of the contract, but only an order given subse- quently as to the mode of carrying it out. The case therefore falls directly within the authority of Bailey v. Sweeting.^ The cases which have been referred to, in which an invoice has been sent and a letter written afterwards recognizing it, but the two have been held not to constitute a memorandum within the Statute of Frauds, are all distin- guishable on the ground that in all of them the letter stated that the contract contained a term not stated in the invoice. In Richards v. Porter ^ and Cooper v. Smith ^ the term was that the goods should be delivered within a given time ; in Smith v. Surman * that they should be sound and in good condition. It is clear that two writings alleging two different contracts can never together form a memorandum in writ- ing of the bargain ; but in this case there is no such variance. Byles, J. I am of the same opinion. I cannot doubt that if the defendant had written on the invoice, " Bought as within mentioned," and signed it, it would have been sufficient. No doubt there is an implied term in the contract that the cheese should be in good condi- tion, but it is an implied term and not an express one. My only doubt has been whether the memorandum on the back sufficiently identified the goods mentioned in it with those in the invoice ; but it is the cheese and the candles, which I think is the same as this cheese and these candles, and must refer to those in the invoice on the back of which the words are written. If the writings can be connected without extraneous evidence, it is sufficient ; and then according to Bailey v. Sweeting the fact that one of them contains an attempt to repudiate the bargain makes no difference. Keating, J. I am of the same opinion. It seems to me that the effect of this document is the same as if it had said I bought of you at the within price the goods mentioned, but they have not been sent to me in proper condition. I have not heard any thing suggested as a term of the real contract not contained in the invoice. 1 9 C. B. (n. 8.) 843, 30 L. J. (C. P.) 150. 2 6 B. & C. 437. 3 15 East, 103. * 9 B. & C. 561. i SECT. VI.] VANDENBERGH V. SPOONER. 531 Montague Smith, J. I am of the same opinion. I think the letter refers to the invoice and recognizes the terms of it. It is a coniphiint that the contract contained in the invoice has not been complied with, but an iini»lied term in it broken. In Cooper v. Smith ^ the letter com- plained that the flour Avas not sent within the agreed time, and then Lord Ellenborough says it falsifies the parol contract proved hy the plaintiff, which had no term as to the time, and so contradicts the con- tract and cannot be a memorandum of it. Mule absolute. VANDENBERGH v. SPOONER. In the Exchequer, June 12, 1866. [Reported in Law Reports, 1 Exchequer, 316.] This was an action for goods bargained and sold, tried before Brara- well, B., at the sittings at Westminster in last Hilary tenn. The plaintiff had purchased at a sale of A\Teck a quantity of marble : this the defendant agreed to buy, but afterwards repudiated his bargain and refused payment. The value of the goods was above £10, and the only note or memorandum of the contract in writing signed by the defendant was as follows : " D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenbergh, now lying at the Lyme Cobb, at Is. per foot. (Signed) D. Spooner." Evidence was also given to the effect that, after the defendant had signed this document, he wrote out what he alleged to be a copy of it, which at his request the plaintiff, supposing it to be a genuine copy, signed. This was in the following words: "Mr. J. Vandenbergh agrees to sell to W. D. Spooner the several lots of marble purchased by him, now lying at Lyme, at Is. the cubic foot, and a bill at one month. (Signed) Julius Vandenbergh." The jury however were of opinion that the first document stated the contract actually made, and found a verdict for the plaintiff for £35, leave being reserved to the defendant to move to enter a nonsuit on the ground (amongst others) that there was no sufficient note or memorandum of the contract within the Statute of Frauds. Ka^rslaJce, Q. C, having obtained a rule accordingly, May 22, Iluddleston., Q. C\ and Hannen., shewed cause. To make a document a sufficient note or memorandum of a contract within the Statute of Frauds, it is only necessary that it should shcAv with reason- able clearness and certainty the parties to and the subject-matter of 1 15 East, 103. 632 VANDENBERGH V. SPOONER. [CHAP. I. the contract, and should be signed by the party to be charged. Bailey V. Sweeting,^ Sari v. Bourdillon.^ Now in this case it is clear that the plaintiff's name is mentioned ; and the only question is, whether from that mention it can be inferred that he is the seller. The case is there- fore not within the decision in Williams v. Lake,^ where the plaintiff was not mentioned at all in the guaranty, and the guaranty was in fact intended to be given to a different person : in substance that case was an attempt to make an ordinary contract transferable. The words however there used by Hill, J., are applicable : it is suflScient if the essentials of the contract appear by a reasonable construction of the document. It is a reasonable construction of this document that Van- denbergh is the seller; for being stated in it to have purchased the marble, he must be presumed still to be the owner of it, and, as the only person entitled to sell, to be the person actually selling. [Bramwell, B. Suppose a contract were signed in this form: I agi'ee to give £100 for the brown horse, bred by A. B., would that be evidence of a contract with A. B. to buy the horse ?] No : because from the nature of the subject-matter that description would be given of a horse not with any refei-ence to its present owner, but as an indication of its probable qualities ; but there is no such reason for describing goods by reference to their purchaser. It may be inferred therefore by a reasonable intendment that the person described as having purchased the goods is the seller. [Bramwell, B. If the word " intendment " were substituted for " construction," in the judgment of Hill, J., it would be more in your favor : it may be shrewdly guessed that the plaintiff was the purchaser, but that is conjecture, and not construction.] All that is meant by Hill, J., is that you must be ab]e fairly to collect the essentials of the contract from the document. A bill given by A., headed " A. to B.," and enumerating the goods and stating the price, would satisfy the statute, and would bind A., if A.'s name had been written or printed by him or by his authority. But if it does not appear from the document itself who is the seller, the surrounding circumstances may be looked at to shew that the seller is the person mentioned in it ; and a conclusive circumstance here is the paper signed by the plaintiff. Macdonald v. Longbottom.* I^arskike, Q. C, and Kingdon, in support of the rule. It is clear that the plaintiff is not mentioned as seller in the document, and it is only by importing knowledge of the circumstances that the inference that he is seller can be arrived at. But the case, cited is no authority for ascertaining the seller by extrinsic evidence, where no one is named 1 9 C. B. (n. s.) 843, 30 L. J. (C. P.) 150. 2 1 C. B. (n. s.) 188, 26 L. J. (C. P.) 78. 3 2 E. & E. 349, 29 L. J. (Q. B.) 1. * 1 E. & E. 987, 29 L. J. (Q. B.) 256. SECT. VI.] VANDENBERGH V. SPOONER. 533 as seller, but only for identifying the person or the thing named or described Avith the person or thing intended. Further, the document signed by the plaintiff is no part of the document signed by the de- fendant, nor is referred to in it ; and the jury have found that it does not represent the real contract. Boydell v. Drumraond.^ The admis- sion of extrinsic evidence could not be justified on any principle that would not justify admitting proof by parol of the whole contract, of which the statute requires written evidence : the circumstance required is the very cii'cumstance that the plaintiff was a party to the contract. The contention of the other side would as justly apply to shewing the seller, when his name was not mentioned at all in the document ; for here the plaintiff is not mentioned as seller, but his name is introduced as part of the description of the goods. It would be equally open to John Smith to prove that he was the seller, and there would be noth- ing in the document to contradict it. The case is therefore entirely within the decision in Champion v. Plummer ; '^ and the words there used by Mansfield, C. J., apj^ly : " How can that be said to be a contract, or a memorandum of a contract, which does not state who are the contracting parties ? " They also cited Blackburn, Contr. of Sale, p. 54. Cur. adv. vult. The judgment of the court (Pollock, C. B., Martln", Bramwell, and Ch.\j^nell, BB.) was delivered by Bramwell, B. The question we have had to consider in this case is whether the document relied on by the plaintiff was a sufficient note or memorandum in writing to bind the defendant under § 17 of the Statute of Frauds. The document was signed by the defendant, and was in the following teiTus : " D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenbergh, now lying at the Lyme Cobb, at Is. per foot." Can the essentials of the contract be collected from this document by means of a fair construction or reason- able intendment ? We have come to the conclusion that they cannot, inasmuch as the seller's name as seller is not mentioned in it, but occurs only as part of the description of the goods. Martin, B. I am not well satisfied as to what is the real meaning of the document, but I am not prepared to differ from the rest of the court. Hide absolute. 1 11 East, 142. 2 1 B. & P. (N. R.) 252, 254. 534 NEWELL V. RADFORD. [CHAP. I. NEWELL V. RADFORD. In the Common Pleas, November 6, 1867. [Reported in Law Reports, 3 Common Pleas, 52.] Declaration for non-delivery of 32 sacks of flour. Plea, non assumpsit. The case was tried before Kelly, C. B., at Merionethshire summer assizes, when it was proved that the plaintiff was a baker, and the defendant a flour dealer ; and that John Williams, a duly authorized agent of the defendant, bad called on the plaintiff and solicited orders, and had made the following entry in one of the plaintiff's books : — Mr. Newell, 32 sacks culasses at 39*., 280 lbs., to wait orders. John Williams. June 8. The plaintiff subsequently gave orders for the delivery of part of the flour; but the defendant refused to deliver it. A correspondence was put in, which had taken place subsequently to "the purchase between the plaintiff and defendant respecting the delivery of the flour. A verdict was found for the plaintiff for £20, and leave was reserved to the defendant to move to enter a nonsuit or a verdict on the ground that there was no sufficient memorandum of the contract to satisfy the Statute of Frauds. J. A. Russell moved for a rule pursuant to the leave reserved. The written memorandum must shew distinctly all the particulars of the contract in order to satisfy the Statute of Frauds, and parol evidence is not admissible to explain any part of the contract which is left in doubt. Here it is impossible to tell from the memorandum which of the parties was the buyer and which the seller, and it is therefore insufficient. The case of Vandenbergh v. Spooner ^ is a direct authority that such a memorandum is insufficient. [Byles, J. Here there is more than the mere memorandum ; for there is evidence that the plaintiff was a baker, who would therefore require flour, and the defendant a person who was in the habit of sellino- it. In Vandenbergh v. Spooner there was no evidence that the plaintiff was a dealer in marble.] That evidence is parol, and therefore not admissible : it must appear from the writing itself who is the buyer of the goods. [Keating, J., referred to Sari v. Bourdillon.^] In that case the book had the title " order-book," and the plaintiff's name written in it ; and it appeared therefore from the written docu- 1 Law Kep. 1 Ex. 316. 2 1 C. B. (n. s.) 188, 26 L. J. (C. P.) 78. SECT, VI.] NEWELL V. RADFORD, 535 ment itself that the plaintiffs were recei^-ing the order. In this case it is not shewn what was the nature of the plaintiff's book in which the entry was made. [BovTLL, C. J. The surrounding circumstances are always admis- sible to explain any ambiguity in the written contract. In Spicer v. Cooper ^ parol evidence was admitted to shew that the i)rice of c€5 mentioned in the memorandum meant by the custom of the trade £5 per cwt. WiLLES, J. Macdonald v. Longbottom^ is a still stronger case. There parol evidence was admitted to shew that " your wool" included wool bought of other farmers besides that which came from the plain- tiff's own slieep.] The same argument would have applied in Vandenbergh v. Spooner, and that case was cited ; but the Court of Exchequer held extrinsic evidence inadmissible. Williams v. Lake ^ was a case before Vanden- bergh V. Spooner, and to a similar effect. There the name of the per- son to whom a guaranty was given was not mentioned in the written memorandum, and it was held to be insufficient. The correspondence is not such that the contract could be gathered from it wdthin the authority of the cases, and it makes no reference to the written memo- randum. BoviLL, C. J. In this case it is not disputed that the signature of the ajrent Williams would be sufficient to bind the defendant, but it is contended that the written memorandum does not sufficiently shew which of the parties was the buyer. At first siglit this indeed might not appear quite clear, except to a man in the trade ; but it has always been held that you may prove what the parties would have understood to be the meaning of the words used in the memorandum, and thai for this purpose parol evidence of the surrounding circumstances is admis- sible ; and the cases of Macdonald v. Longbottom ^ and Spicer v. Cooper ^ are authorities to that effect. In this case it was shewn that the plain- tiff was a baker, and that the defendant \vas a dealer in flour which the plaintiff wou\d require for his trade ; and looking at the nature of the entry in relation to those facts, I think there can be no reasonable doubt that it was a sale from the defendant to the plaintiff. If liow- ever there were any doubt, looking at the entry alone, it is set at rest by the two letters which passed between the plaintiff and defendant, which sufficiently identify the contract, and in which the relative posi- tions of the parties as buyer and seller is distinctly stated. WiLLES, J. I am of the same opinion. If the case of Vandenbergh 1 1 Q. B. 424. 2 1 E. & E. 977, 28 L. J. (Q. B.) 293; in error,! E. & E. 987, 29 L. J. (Q. B.) 256. 3 2E. &E. 349, 29 L.J. (Q. B.) 1. 536 NEWELL V. RADFORD. [CHAP. I. V. Spooner ^ had been in point, we should have gi-anted a rule, and per- haps made it absolute, leaving the parties to take the opinion of the Court of Exchequer Chamber. I think however that case is distin- guishable. I own I have considerable difficulty in understanding that case ; but if I do so rightly, it amounts to this, that a written agreement, " A. agrees to buy B.'s horse for £10," is not sufficient to satisfy the Statute of Frauds, because it cannot be inferred by reasonable intend- ment that B, is the seller. I cannot help observing that that seems to be an extreme case. The present however does not come within its authority, because there was a regular entry by the defendant's agent in the plaintiff's book describing what was to be sold, and the defend- ant was proved to be a person who sold such goods, and the plaintiff a person who would require to purchase such goods for the purpose of his trade. Taking therefore the entry in connection with those circum- stances, I think it sufficiently appears from it who was the buyer and who the seller of the goods. There was moreover a correspondence which seems to be sufficiently connected with the entry to be available if necessary, and from which the relation of the parties as buyer and seller clearly appears. Byles, J. I am of the same opinion. Mr. Russell has assumed that the words "Mr. Newell" are in the nominative case, but that would not make sense. I think it would be reasonably clear that they were in the oblique case, even if the memorandum had been on a loose slip of paper ; but all doubt is removed by the fact that it is an entry in the plaintiff's book. But, further, evidence of surrounding facts is admis- sible to explain the memorandum, as evidence has been held admissible to settle the meaning of the price or of the quantity of goods sold mentioned in a memorandum (Macdonald v. Longbottom ^), and even to add a new party as principal ; and the evidence in this case shews that the occupations of the parties were respectively such as to be consist- ent only with the plaintiff being the buyer of the goods. There is this distinction from the case of Vandenbergh v. Spooner : ^ the parol evi- dence which was there tendered was not to shew the surrounding cir- cumstances or the position of the plaintiff as a dealer in marbles, but that the parties had expressed the contract also in other words, and so to vary the tenns of the contract itself I entirely concur in the observations of the Lord Chief Justice and my brother Willes. Keating, J. I am of the same opinion. I think it is impossible to look at the entry without seeing that it is a contract between Newell and Williams Avith relation to the flour. Then it is said that it cannot be ascertained from the memorandum which is the buyer and which > Law Rep. 1 Ex. 816. 2 1 E. & E. 977, 28 L. J. (Q. B.) 293; in error, 1 E. & E. 987, 29 L. J. (Q. B.) 256. SECT. VI.] MERRITT V. CLASON. 537 the seller ; but we may look at the surrounding circumstances, and it appears that the entry is in the plaintiff's book, and that he is a baker, and that Williams was the agent of the defendant, who is a flour mer- chant. I think therefore it is clear, even without the correspondence, what was the relation of the parties to each other; and if that be referred to, it leaves no doubt whatever on the case. Hule refused. MERRITT AND MERRITT v. CLASON. Supreme Court of New York, January Term, 1815. [Reported in 12 Johnson, 102.] This was an action of assumpsit tried at the New York sittings in April last before Mr. Justice Yates. John Townsend, a Avitness for the plaintiffs, testified that he was a broker, and was employed by the defendant to purchase rye. On the 18th 'of February, 1812, he applied to Isaac Wright & Son, the agents of the plaintiffs in New York, and agreed to purchase of them 10,000 bushels of rye at II per bushel, and they authorized him to sell the same to the defendant on the terms agreed on ; the witness informed the defendant of the terms of sale, and was directed by him to make the purchase accordingly. The witness then went to Wright & Son and closed the bargain with them as agents of the plaintiffs, and in their presence wrote in his memorandum book with a lead-pencil as follows : " February 18th, bought of Daniel & Isaac Merritt (the plain- tiffs), by Isaac Wright & Son, 10,000 bushels of good merchantable rye at $1 per bushel, deliverable in the last ten or twelve days of April next alongside any vessel or wharf the purchaser may direct, for Isaac Clason of New York, payable on delivery." All the other memoranda in the same book were written with a lead-pencil. Soon afler the pur- chase was thus completed the witness informed the defendant of it, but did not give him a copy of the memorandum. The plaintiffs repeatedly tendered the rye to the defendant according to the terms of the agreement, particularly on the 14th and 30th days of April, and the defendant refused to accept and pay for it. On the 1st of May the plaintiffs addressed a letter to the defendant, giving him notice that, unless he received and paid them for the rye according to the contract, they should, on Tuesday (the 4th of May) at noon, cause the same to be sold at public auction at the Tontine coffee-house, and 538 MEERITT V. CLASON. [CHAP. I. hold him accountable for the deficiency, if it should sell for less than the price mentioned in the contract, and the expenses. The defendant continuing to refuse to receive the rye or to pay for it, it was according to the notice sold at public auction, and the present suit was brought to recover the difference between the net proceeds of such sale and the contract price. A verdict was taken for the plaintiffs, subject to 'the opinion of the court on a case containing the facts above stated, and which either party was to be at liberty to turn into a special verdict. Wells, for the plaintiffs. The points in this cause have been repeatedly discussed and settled. Townsend the broker acted as the agent of both parties ; as such agent he was competent to make a con- tract obligatory on both. It is distinctly stated that he was an agent for both parties ; besides he was a broker, and as such is the agent of both. To make the contract valid within the Statute of Frauds it is not necessary that the writing should be actually signed by the party or his agent. Signing does not ex vi tennini mean that the name of the party should be subscribed. It is enough if the contract be in writing and authenticated by him. The name may be at the top or in any part of the contract or insti-ument. In Wright v. Dannah ^ the distinc- tion is made between a memorandum made by one of the parties and assented to by the other and a memorandum made by a third person. The wi-itten memorandum in this case contained every thing that was necessary to shew the contract between the parties. No parol evi- dence was requisite to explain their intention or the terms of the agree- ment. This is the true test of the validity of a contract under the Statute of Frauds. The authority of the agent need not be in writing. Baldwin, contra. How a person can be the agent of both parties is not easy to comprehend. An auctioneer is no further the agent of the purchaser than to put down his bid. A broker, if he is agent for the vendor, is bound to sell for the highest price ; if he is agent for the buyer, it is his duty to purchase at the lowest price that can be obtained. He is in such case acting in two distinct characters, having distinct duties to perform in direct opposition to each other. The English courts have proceeded on erroneous principles in regard to this subject. Again, as to bought and sold notes as they are called, the mere memorandum in the broker's book is not enough. He must give a copy of the note to the buyer and another to the seller. Besides, the place of delivery is not mentioned in the contract. In Champion v. Plummer ^ it was held that a memorandum signed by the seller only was. not sufficient. The plaintiffs in this case were not bound ; and if they were not, neither can the defendant be bound. 1 2 Campb. 203. 2 i n. r. 252. SECT. VI.] MERRITT V. CLASON. 539 In Cooper v. Smith ^ there was no signature of either party ; and the court held that the reading over the memorandum to the purchaser, and his assenting to it, was not sufficient to bind him. Again, the memorandum in this case was Avritten with a lead-pencil. Is this such a writing as was intended by the Statute of Frauds? If it is, then a writing on a slate, or with chalk on a door or wall, would be a good memorandum within the statute. It maybe completely cffiiced in a moment wath a piece of India rubber, and another contract written in its place without the possibility of detecting the fraud. This would not be the case if it were written with ink. Such a writing in pencil cannot satisfy the object of this statute. It is no better than tracing characters in the sand. It is said that the signature of the party is not requisite. But where are the cases in which such a doctrine is to be found ? In the cases relative to wills the devise was Avritten by the testator, though not subscribed by him. If an instrument or memorandum is not written by a party, its not being signed or subscribed by him is evidence that he does not intend it to be regarded as his contract. It would be extremely injurious to give authority to brokers to bind parties by such loose memoranda of a contract. B. B. Ogclen^ on the same side. I do not deny that according to the cases decided a broker is to be considered as the agent of both parties, and that his authority need not be in writing. But to make a valid agreement within the Statute of Frauds, the writing must be signed by the party himself who is to be charged, or by his authorized agent. If the contract is made by the principal, it must be signed by him ; if by his agent, it must be signed by the agent. I do not say it must be subscribed, but it must be signed in some part of the contract. In Clinan v. Cooke ^ the agreement was signed by the agent ; and it being shewn that he was an agent, his principal was held to be bound. In all the cases cited, where the agreements were held binding, it will be found that they were signed by the agent, who delivered a note of the bargain and sale. The point raised here was not discussed or decided in Bailey v. Ogden.^ Again, it is worthy of consideration what sort of writing was intended by the statute, which was made to prevent fi-auds that might arise fi-om trusting to the memory of witnesses, by requiring a permanent and unchangeable evidence of the contract. A writing in ink is indelible ; or if etfaced and altered, the erasure or alteration may be easily detected, which would not be the case of a writing with a lead-pencil. S. Jones^ Jr., in reply. The object of the Statute of Frauds was that the terms of the contract should be precise and certain and prop- erly authenticated. If these essential points are obtained, the statute pays little regard to form. Isaac Clason the purchaser, by Townscnd 1 15 East, 103. 2 1 Sch. & Lef. 22. » 3 John. 399. 540 MEERITT V. CLASON. [CHAP. I. his agent, is mentioned in the memorandum, and that is a sufficient signing. It is not necessary that the agent should sign as agent when he puts down the name of his principah Besides, the agent informed Clason of the contract, and he made no objection to it. The broker is the go-between of the parties. He goes to the vendor and inquires his price ; he then goes to the vendee to know if he will give the price demanded ; and if he assents, he concludes the bargain with the vendor. Here is no conflict of duties. His agency for both parties is clear and simple. He is the means of communication between them. They speak and act through him. He stands indifferent between them. The case of Cooper v. Smith turned on the sufficiency of the memorandum, not on the signing of the party or his agent. Either party may demand a . copy of the memorandum from the broker. As to the danger of fraud from the memorandum being wi'itten with a lead-pencil, the same danger would exist if it were wi'itten in ink. If the broker were disposed to be fraudulent, he might easily contrive to alter the agreement or substitute another in its place. But this danger wholly ceases where each party has a copy of the note or memorandum made by the broker. And it is a rule of convenience in England, but not an indispensable requisite, that copies of the memo- randum should be delivered to the parties. Platt, J., delivered the opinion of the court. The only point is whether the memorandum made by John Townsend was a sufficient memorandum of the contract within the Statute of Frauds to bind the defendant. It is objected by the defendant's counsel, — 1. That the memorandum is not "in Avriting," being made with a lead-pencil only ; 2. That it is not " signed " by the defendant nor by his agent ; 3. Tha* it is not binding on the defendant, because his agent did not furnish him with a copy of it. I have no doubt that the memorandum required by the statute may as well be written with a lead-j^encil as with a pen and ink ; and it is observable that in most of the reported cases on this head the memo- randa were written with a lead-pencil, and no counsel until now has ever raised that objection. I think it clear also from the authorities that this memorandum was sisrned according to the statute. It is not disputed that the authorization of the agent for such pur- pose need not be in writing. In the body of this memorandum the name of Isaac Clason the defendant is written by his agent whom he had expressly authorized to make this contract. The memorandum therefore is equally binding on the defendant as if he had written it with his own hand ; and if he had used his own hand instead of the hand of his agent, the law is well settled that it is immaterial in such SECT. YI.] CLASON V. BAILEY. 541 a case whether the name is written at the top or in the body or at the bottom of the memoraiiJD Others v. SHIELDS. New York Court of Errors, 1841. [Reported in 26 Wendell, 341.] Error from the Supreme Court. . Shields brought an action of assumpsit in the Superior Court of the City of New York for the non- delivery of a quantity of u'on purchased by him of Davis and others. The purchase was made on the 31st January, 1836, of a broker of the defendants, of fifty tons of English iron at 170 per ton, at a credit of six months, the iron to be in good order, and the plaintiff not bound to take it unless it arrived in reasonable time. The iron was shipped in England on board the brig Anna, and the invoice and bill of lading dated 30th October, 1835, were received by the defendants on the 4th December ; but the brig did not arrive in New York until some time between the 15th and 25th April, 1836. The price of iron then had advanced to 198 per ton. On the 27th April the plaintiff tendered $3500 to the defendants, and demanded the iron, which they refused to deliver. The broker made a memorandum of the sale in his book in these words: "Jan. 21st. Sold this day to George W. Shields, on account of Davis & Brooks, fifty tons of English bar-iron, — say twenty-five tons one and three-fourths by one-half; twenty-five tons one and three-fourths by five-eighths ; fifty tons at $70, to arrive on board brig Anna ; said iron to be in good order or no sale." The broker communicated the sale to the defendants, but no sale note was delivered to either of the parties. The defendants proved that the usual passages of ships carrying iron varied from thirty to «eventy days ; that one hundred and seventy days was a long passage, and that they considered the vessel lost. On the trial of the cause the counsel for the defendants insisted that the memorandum of the broker was not a sufiicient note of the contract within the statute (2 R. S. 130, § 3), inasmuch as it did not contain the agreement as to the time of pay- ment, nor the condition of arrival in reasonable time, and was not SECT. VI.] DAVIS V. SHIELDS. 559 subscribed. The Cliief Justice of the Superior Court charged the jury that the memorandum of the broker was sufficient, and that the pUiin- tiff was entitled to recover. There were other questions raised on the trial, and adverted to in the charge of the Chief Justice, but not now necessary to be stated. The jury found a verdict for the plaintiff, on which judgment was entered. The defendants removed the record into the Sui)reme Court, where the judgment was affinned. See the opinion delivered in that court, 24 Wendell, 324, et seq} The defend- ants sued out a writ of error. The case was argued here by 1 By the Court, Cowen, J. The two classes of objections collateral to the memorandum of the contract in question admit, I think, of sliort answers. The first objection is that the broker departed from his authority in omitting to state the time of credit and the condition of arrival within a reasonable time ; in other words, that the contract stood in his book as a cash sale, and imported an obligation to receive at whatever time the ship might chance to arrive, though delayed beyond a reasonable time. That in this he exceeded the authority conferred on him by the plaintiff below, may, I think, be conceded without the least prejudice to his claim. The terms omitted were restrictions which lie imposed upon the broker for his own benefit, and were no doubt in fact more favorable to him than those actually inserted in the memorandum. To this however it did not lie with the defendants to object ; nor do they appear to have done so in fact. The plaintiff certainly had the right to object ; but he chose to adopt an act upon the entry of his agent as true, although this resulted in the harder terms of immediate payment and unreasonable delay. The rule in such case is Onmis ratihabilio rttrotmhitur et mandato aquiparatur. Long on Sales, 402, Kand's ed. 1839. This rule extends as well to an authority for executing a contract in conformity to the Statute of Frauds as to any other ; and if the contract relate to the sale of goods or any other act required to be-in writing by title 2, in 2 R. S. 70, 2d ed., the authority need not be in writing, whether it arise from original delegation or subsequent adop- tion. Per .Jackson, J., in Lent v. Padelford, 10 Mass. R. 230, 236. The propriety of applying the maxim Oiimis ratihahitio, &c., to such cases was very fully considered by the C. B. in the late case of Maclean v. Dunn, 1 Moore & Payne, 761, 766, and con- ceded in this very case of a broker's memorandum, i Bing. 722, s. c. more briefly reported. Best, C. J., cited two previous cases to the same efiect : Kinnitz v. Surry, Paley's Pr. & Ag. 171, note ; and Soames v. Spencer, 1 Dowl. & Ryl. 32. They are to the exact point ; and the surprise is, after what Best, C. J., said in Moore & Payne and Bingham, that the question should ever have been raised. In regard to the assent of Davis & Brooks, beside its being palpably unnecessary in respect to the terms of the contract which made in their favor, still, if that were not so, their subsequent assent should, prima facie, be presumed. Vid. 1 Phil. Ev., notes by Cowen & Hill, pp. 301, 303. The conditions, as the broker swore, were communicated to them ; and we hear of no dissent by them on account of a supposed departure from authority in making the contract most favorable to their side. But even if they had actually dis- sented on such ground, who ever heard of such an objection being allowed \ I tell an agent to sell my horse on credit, and he brings me gold ; who ever thought I could object that he had exceeded his autliority ? The more favorable term is always im- plied by law in the very act of employing an agent. 1 Liv. on Ag. 07. The term of arrival in reasonable time was obviously a mere proviso or condition on the side of the vendee, with which the vendors had nothing to do by way of objection on their part. . . . The objection most relied on, and certainly the most plausible one, is that arising on the face of the memorandum. This was not literally "subscribed." The objection rests on the Revisers' introduction of this new word into our Statute of Frauds, 2 R. S. 560 DAVIS V. SHIELDS. [CHAP. I. D. Z/Ord, Jr., for plaintiffs in error. J. Taylor and D. jSelden, for the defendant in error. Points submitted and argued on the part of the plaintiffs in error : — I. The memorandum in the broker's book was not a valid contract : it was unauthorized. 70, 2d ed., instead of the word " signed," which was the one used in tlie former statute. It is, I think, enough to answer that the words "signing " and " subscribing," when applied to a contract or other instrument, always in common understanding meant the same thing ; viz., a writing of one's name at the bottom!. The Legislature have themselves used the two words as synonymous in the statute of wills. 2 R. S. 7, §§ 40, 41, 2d ed. So clear and universal was this understanding of the word " sign- ing," that its use in the old statute was at first supposed to require an actual subscrip- tion at the bottom. It was at length agreed, however, that the word might have a secondary sense, and indeed must have, or the statute would in many cases annul contracts when the name was written or inserted in some other place with the equally obvious intent of giving authenticitj' to the instrument. Accordingly, an attestation as a witness, a letter written assenting to the terms of some unsigned memorandum, or names inserted in the business memoranda of brokers, auctioneers, &c., though only in the body, if done with intent to preserve evidence of the transaction, were holden to be a substantial compliance with the statute, because they placed the matter beyond the danger of mere oral evidence, equally with a literal signing by subscrip- tion. Roberts on Frauds, 119, Am. ed. of 1807; Long on Sales, 57, et seq., Rand's ed. of 1839, and the cases there cited; Fell on Com. Guar. ch. 4, p. 88, et seq., Am. ed. of 1825, and the cases there cited. Even an insertion of the name by the broker in a bare pencil memorandum has been held sufficient. Merritt v. Clason, 12 Johns. R. 102 ; 14 id. 484, s. c. on error. It requires no greater judicial effort to enlarge the word " subscribe " into a secondary sense than the word " sign ; " and such a sense was perhaps oftener given to the former in comnion parlance. I do or do not subscribe to such a sentiment or doctrine, signi- fies mere assent or dissent without the act of writing at all ; and indeed that is one of the principal senses ascribed to the word by Johnson in his quarto dictionary, where it is illustrated by a passage from Hooker. In that he says it simply signifies to give consent, the very object which the Statute of Frauds is in search of; and it was always satisfied if the name was written or even printed in such a connection or under such circumstances as to indicate consent to become bound. Among other things, it looked to the course of business, and found the omission of the name at the bottom very com- mon among brokers, auctioneers, and other agents. It adopted such acts as signing because the intent was plain, and they were as much beyond the evil intended to be remedied by tlie statute as if the name had been placed at the foot. A judge signs a record in the margin ; and there are peculiar places of affixing the name for the pur- poses of authentication in various branches of business without coming up to the com- mon notion of signing. With brokers, auctioneers, correspondents, &e., whose acts are very commonly to be tested by the Statute of Frauds, all must be void, were the courts suddenly to wheel about and tm-n their faces against the former principles of con- struction. They would thus subvert half the contracts of sale in the most commercial portions of the State; a mischief which I admit they must do if the new and revised statutes have left them no alternative. But the principle of construction remains the same, and rests on a broader foundation, and a state of things calling more imperiously for its enforcement in proportion as memoranda of the kind in question have long had a direct sanction, not only in the usages of business, but under the Statute of Frauds itself. A subscription by merely inserting the name is as effectual a guard against perjury and fraud as it ever was. Being out of the mischief which the statute intended to avoid, it is therefore out of the statute itself. If an authority be wanting for such SECT. VI.] DAVIS V. SHIELDS. 561 1. The contract declared on is of the class based on the considera- tion of mutual agreements. In such contracts the agreement on each §ide forming the consideration to the other party must be binding at the date of the contract, or the contract is without consideration and void. Such contracts, both in justice and in law, rest ujjon the basis of mutual and reciprocal obligation. Nichols v. Raynbred, Hobart, 88 ; Livingston v. Rogers, 1 Caines Rep. 583 ; Buniet v. Bisco, 4 Johns. R. 235 ; Cooke v. Oxley, 3 Term Rep. 653 ; Payne v. Cave, 3 T. R. 148; 1 Chitty, Pleading, 325 ; Keep v. Goodrich, 12 Johns. R. 397 ; Russell V. Nicoll, 3 Wendell, 120, Marcy's Opinion ; Lawrenson v. Butler, 1 Sch. & Lefroy, 13. 2. The only contract in evidence is the entry in the broker's book, and it cannot be varied or explained by parol evidence. Peltier v. Collins, 3 Wendell, 459; Bailey v. Ogden, 3 Johns. R. 411; Powell V. Divett, 15 East, 29. That contract contains no stipulation or con- dition as to credit, or the time of the arrival of the iron. 3. The authority of the broker, although it may be without writing, must be from each party to sign the identical contract ; without such authority from both, the contract is not the mutual obligation of each and is void. Camming v. Roebuck, 1 Holt, 172, 3 C. Law Rep. 65 ; Thornton v. Kemster, 5 Taunton's Rep. 786; Peltier v. Collins, 3 Wen- dell, 459. an obvious principle of construction, take the words of Lord Hardwicke in Welford v. Beazely, 3 Atk. 503. There the party to be cliarged had. merely put his name as a witness. The Lord Chancellor said : " The meaning of the statute is to reduce con- tracts to a certainty in order to avoid perjury on the one hand and fraud on the otlier ; and therefore botli in this court and the courts of i-ommon law, where the agreement has been reduced to such a certainty, and the substance of the statute has been com- plied with in the material part, the forms have never been insisted upon." The law requires that a bill or note payable to order should be indorsed, in order to its transfer, and the subjecting of the payee to certain definite liability ; yet if he put his name on the face, or elsewhere on the paper, or a paper annexed, with intent that the act shall operate as an indorsement, it is the same thing, because the substance of the legal requisition is thus fulfilled. This has been often held. I will not now do more than advert to the general evil of considering every literal or verbal deviation in our Revised Statutes from the former acts which they adopt as a change in substance. We had occasion to consider it in some measure at the last term, especially in respect to the Statute of Frauds ; and daily observation confirms the views then expressed with regard to all such former statutes as entered into and governed the general business of the community. They made and will continue to make a part of the commercial and social habitude ; and even where an alteration was obviously intended, and was plainly expedient or necessary, a century must perhaps go by ere the change will be actually effected. Some fifty or more years have passed since a very necessary alteration was made by statute in the denomination of our cur- rency ; and although the necessity was universally conceded, perhaps fift}- more will not practically complete the change. To make the numerous verbal alterations in our Revised Statutes, in all or even a majority of instances, an actual departure from the former law, would be to open Pandora's box. The evils would be intolerable, and the whole community would at once demand their repeal. Judgment ajfirmed. — Ed. VOL. I. 36 562 DAVIS V. SHIELDS, [CHAP. I. 4. The authority of the buyer to the broker was only to sign a con- tract providing for a credit, and to have a condition of arrival in reasonable time. Had the sellers in this case attempted to enforce the contract, the buyer was clearly not bound by this memorandum, for he never authorized this contract. And the seller did not authorize the signing of a memorandum, unless it was also authorized by the buyer. This memorandum was therefore void. 5. The entry in the broker's book (with its deficiencies) never was communicated to the parties. On the arrival of the iron, and the refusal of the sellers to acknowledge the contract, it was too late for the buyer to give it a retroactive effect by adoption, if that ever can be done with such a class of contracts. 6. No assent of the sellers can, without evidence, be presumed .to a contract because of its terms being advantageous, unless it be first shewn to be binding on the other party ,^ . . . III. The broker's entry in his book was not a memorandum of the contract subscribed by the parties to be charged thereby. 2 R. S. 70, 136, § 3. 1. The entry is not in its formation a memorandum for the signature or use of the parties : it was merely an entry for the business purposes of the broker, and not of the principals. Hicks v. Whitmore, 12 Wen- dell, 550. 2. The statute making a special and express provision for sales by auctioneers (equally agents of both parties as brokers) evinces a clear purpose to exclude the constructive signing of mere brokers' entries in their own books ; a mode of authentication contrary to the policy and object of the statute. 2 R. S. 70, 136, § 3. See M'Comb v. Wright, 4 Johns. Ch. R. 663, as to auctioneers' entries. 3. The alteration in the old statute, by changing " signing " for " sub- scribing," was intended to introduce a more specific and safe mode of authentication than what a loose construction had given to the term " signing." The change was introduced in reference to a recognized difference in the terms. 2 R. S. 70, 136, § 3, compared with 1 R. L. 1813, 79, § 15 ; Revisers' Notes, 3 R. S. (2d ed.) 656, 7 (§ 8 as to land differs) ; Merritt v. Clason, 12 Johns. R. 102. Compare Parker v. Willson, 15 Wendell, 346, with 10 Wendell R. 250, Rogers v. Kneeland. 4. A writing in the body of a contract was held to be a signing in analogy to the use of the word, as adjudged, in the Statute of Frauds as to wills. The alteration and definition in the Statute of Frauds as to wills is in pari materia to govern the alteration in the Statute of Frauds as to contracts. See statute as to wills, 1 R. L. 1813, p. 364, § 2; 2 R. S, 7,63, § 40; 3 R. S. 627, Revisers' Notes. Cases on signing 1 The parts omitted are not material to the question of the sufficiency of the mem- orandum. — Ed. SECT. VI.] DAVIS V. SHIELDS. 563 of wills: Viner Ab. Devise, N. 7, pi. 2 ; Lemayne v. Stanley, 3 Lev. 1. As to contracts : Hatton v. Gray, 2 Ch. Cas. 164 ; Knight v. Crock- ford, 1 Esp. R. 190 ; Coles v. Trecothick, 9 Vesey, 248 ; Saunderson «. Jackson, 2 Bos. & P. 238. 5. The course of decision on the Revised Statutes as to contracts required to be in writing has been unifoiTnly, excepting in this case, upon a strict and not latitudinarian construction. The words of the statute ought to be construed literally and not metaphorically. See Downs V. Ross, 23 Wend. 272 ; Parker v. Willson, 15 Wend. 346 ; Hicks V. Whitraore, 12 Wend. 548. . . . After advisement the following opinions were delivered : — By the Chancellor. . . . The broker's memorandum was fatally defective in not containing the real agreement between the parties, as well as in not being subscribed by the agent of Davis & Brooks. Although it is not necessary that both parties should subsciibe the agreement to make it obligatory upon the one who does subscribe the same, it is necessary that they should both assent to such agreement to make it binding upon either. Here Green was not the broker of the buyer, who made his own contract. He was therefore the agent of the vendors merely ; and if his nanie had been subscribed to this memoran- dum, which was never shewn to Shields, it would not have made such a contract, which he had never assented to, binding upon him ; nor even would it have been evidence of the acceptance of such a contract on the part of Shields ; and without an acceptance on the part of Shields, it could not be binding upon Davis & Brooks. The omission of the stipidated time of credit in the written memorandum rendered the sup- posed agreement stated therein wholly inoperative as to both parties : as to the purchaser, because he had not signed any such contract or authorized any one to sign it for him ; and as to the vendors, because he had never consented to accept of such an agreement from them : and there being no contract which was binding upon either party at the time the parol agi-eement was made. Shields could not make it a valid agreement as against the other party by assenting to the written mem- orandum after the subject of the contract had risen more than twenty- five per cent, in value. Again, I think there was no memorandum of any contract subscribed by the parties who are now sought to be charged thereby, or by their agent, within the intent and meaning of the Revised Statutes on this subject. The former Statute of Frauds required the note or memoran- dum of the agreement to be signed by the party charged thereby. And the courts had not only decided that it was not necessary that it should be signed by both parties so as to make it legally binding upon both, or upon neither ; but they had in many cases held that a literal signing of the memorandum by the party who was sought to be charged thereby was not necessary. It will be seen however by a reference to 664 DAVIS V. SHIELDS. [CHAP. I. their notes, that the Revisers proposed to alter the law in both these particulars. They therefore proposed a section requiring the agreement to be reduced to writing at the time it was made, and that it should be " subscribed " by the party by whom it was to be performed, and by all the parties thereto where it contained promises to be performed by each of them. See 3 R. S, (2d ed.) 656. And they state in express terras that one of the differences between the section prepared by them and the old law is in requiring the agreement to be "subscribed ;" by which term, as their note to the 8th section of preceding title shews, it was intended to require a literal signing of the agreement at the end of the same. The Legislature however differed with the Revisers as to some of the proposed alterations, both in relation to contracts for the sale of real estate and also as to agreements for the sale of chattels and choses in action. They therefore only required the contract for the sale of lands or any interest therein to be subscribed by the party by whom the sale or lease was to be made, or by his lawfully authorized agent ; and the agreement for the sale of chattels, &c., to be subscribed by the party to be charged therewith. ' They therefore intentionally retained the word " subscribed " in both sections as proposed by the Revisers, for the purpose of requiring an actual signing of the agree- ment or memorandum thereof in writing ; and to provide for the only case in which they deemed it safe or expedient to dispense with a literal signing or subscribing of the note or memorandum of the agree- ment in writing, the Legislature introduced a new section not prepared by the Revisers, providing that an auctioneer's memorandum, specifying the terms of sale and the names of the vendor and purchaser, should be valid. 2 R. S. 136, § 4. Without entirely disregarding the declared will of the Legislature therefore, I do not see how it is possible we can consider this imperfect broker's memorandum, which does not purport to have been signed or subscribed by any one, to be a memorandum of this agreement subscribed by Davis & Brooks or by their agent. See Herbert v. Turner and Others, 6 London Jurist, 194. I am therefore compelled to declare it as my opinion that the agreement made verbally by their broker with Shields was not legally binding upon them ; and that the judgment of the court below should be reversed, and a venire de novo awarded. By Senator Veeplanck. A broker is employed to sell a quantity of iron expected to arrive in a certain ship. He makes an agreement for the sale at a credit of six months and upon a condition suggested by the purchaser that the iron should arrive in reasonable time. The terms thus agreed upon between the broker and the buyer are commu- nicated by the former to the owners, and assented to. The broker enters in his sale-book a memorandum of the agreement, omitting the terms of reasonable period of arrival and the stipulated six months' credit. No sale note is given to either party, nor was the entry in the SECT. VI.] DAVIS V. SHIELDS. - 565 sale-book communicated to either. The iron does not arrive until after a passage of five or six times the ordinary length, during which the price of iron rises in the New York market. Upon the arrival of the vessel the importers refuse to deliver the iron or comply with the agree- ment. The reason assigned for such refusal appears to have been that the iron did not arrive in a reasonable time, as the i)robable motive was the rise in the market price of the article above the contract price. But whatever may be the merits of the controversy as between the individuals, the transaction is governed by general rules of public utility and positive legislation ; and upon these it must be decided. Our revised Statute of Frauds enacts that " every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless a note or memorandum of such contract be made in writing and subscribed by the parties to be charged thereby." 2 R. S. 136, § 3. If this contract of sale be void from defect of compliance with these positive requirements of the statute, it will not be necessary to inquire how far the condition of arrival within reasonable time demanded originally by the buyer is a stipulation for his benefit only, which he may waive by an after ratification of the defective memorandum, or whether it be not also a valid ground of defence to the sellers. We have here a broker's memorandum of an agreement of sale, dis- tinctly mentioning the names of buyer and seller, — " Sold this day, on account of Davis & Brooks, to G. W. Shields fifty tons of bar-iron," &c. Allowing this entry to be a correct note of the contract, and to have been made by an authorized agent of the parties, or at least of the party to be charged in this suit, is it yet duly subscribed within the meaning of our Revised Statutes? Our former statutes, preserving the language of the original English act, prescribed that the required memorandum should be signed by the parties to be charged. A series of decisions in England, adopted as the rule of our own courts, had established the construction that a mention of the names of the princi- pals in a note of the agreement of sale made by an authorized agent of the party sought to be charged was a valid signing within the act. The earlier cases giving a judicial interpretation to the legislative word "signed," both in the Statute of Frauds and as used in respect to wills, were governed by the probable intent of the parties : as when a tes- tator wrote his name in the beginning of a will, " I, A. B., do make this my last will ; " or when a party contracting to sell wrote or printed his name in the actual otfer or contract, as " I, C. D., do agree or ofier." This natural extension of the word "sign" was gradually enlarged to include every and any mention of the party's name, by himself or by his authority express or implied, made in any note of the agreement. In this way, prior to the revision of our statutes, it had become a settled point, and was so stated in all the books and cases 566 DAVIS V. SHIELDS. [CHAP. I. on this subject, that if the name of the party to be charged appeared in the memorandum so as to be applicable to the whole substance of the writing, and written by himself, or by his authority or with his pre- sumed assent, it is immaterial where the name appears, whether at top or bottom, whether as the signature to a bargain or merely mentioned in the note as that of a buyer or seller. Saunderson v. Jackson, 2 Bos. & Pul. R. 238 ; Welford v. Beazely, 3 Atk. R. 503 ; Merritt v. Clason, 12 J. R. 102, — affirmed in this court, 14 Johns. R. 487. In this last case Chancellor Kent, after stating the law as above, adds: "Forms are not regarded, and the statute is satisfied, if the terms of the contract are in writing and the names of the contracting parties appear." The object of the original act was, as its title avows, "the prevention of frauds and perjuries," by substituting for the loose recollections of memory and the mutual danger of misconception of parties a precise written agreement, or at least a distinct written memorandum of the contract. Yet it so happened that, as well in respect to this mat- ter of signing as to several other points, such as the note being made at the time or afterwards ratified, the requiring the names of all the parties or only that of the party charged in the suit, the literal interpretation of the statute, and probably its real original intention, came into perpetual collision with the actual habits and usages of life, so that during two centuries of doubtful litigation the courts have been led to strive to give the statutory words the largest and most convenient construction they could possibly bear. Thus, at the expense of millions during two hundred years of litigation, an artificial and technical meaning had been framed in England, which was received and embodied in our own law. Probably the necessity of the case, the real inconvenience of a more natural interpretation, combined with the difficulty of legal reform in those days, may have been a sufficient cause, or at least a fair excuse, for latitudinarian exposition in the courts. These seem to be the true reasons why the meaning of a short statute drawn by Chief Justice Hale, a man eminent alike for legal accu- racy and various scholarship, has required volumes of judicial commen- tary. In our form of government and state of society, the simpler and wiser mode of reconciling the conflict of positive law with the habits and convenielices of trade and life is to receive the words of every statute in the usual and customary acceptation, unless they have already acquired some other fixed technical meaning, and to resort to correct- ive legislation as the true remedy for any evil or inconvenience thus resulting from a fair interpretation of the law. I am always desirous to apply the same principle to the construction of our Revised Statutes. Mere changes of phrase or remoulding of sentences must be far from authorizing us to sf t aside any less obvious meaning which has been fixed and settled by long and constant adjudication. In such instances, phrases and sentences re-enacted with slight alteration are manifestly SECT. VI.] DAVIS V. SHIELDS. 567 employed in their strict legal sense, as much so as single technical words ; for there may be a technical meaning in a sentence or phrase differing from the usual and popular one, as well as in single words. When such interpretations, however artificial at first, have been wrought by long usage into the body of the law and the habits of those who are to be governed by it, the harsh return to a more ))oj»ular sig- nification would be in clear contradiction to the legislative will, and by unsettling the law would open the door to tlie admission of the very uncertainty and litigation it would seek to exclude. Nevertheless it is equally evident that it Avas tl\e design of our revision to improve the substance of our enactments, as well as to give greater simplicity and perspicuity to their language. In such alterations, where no arbitrary or technical signification has been incorporated into the language of the law, we should look to the usual sense without resorting to the analogy of old decisions to engraft again a simihir artificial sense upon new Avords. The doctrine which Lord Elleuborough has strongly and wisely stated as his own governing rule of statutory interpretation, and which he did not hesitate to apply to the English Statute of Frauds itself after so many years of forced constructions, applies with still greater reason to our own revised code : " In all cases where the words of a statute have not bv long habitiial construction received a peculiar meaning, such as they Avill alloAV of" I am always inclined to giA^e them their natural ordinary signification." Wain v. Warlters, 5 East, R. 10. How then stands the case as to change of language in the section now under consideration ? Does or does not the change of phra- seology evidently purport the intent to change the law ? What is the signification of the Avords used in the revised act, and how do they differ from the language of the former acts ? Our former acts, like the English Statute of Frauds, required " some note or memorandum in writing to be made and signed by the parties or their agents law- fully authorized." 1 R. L. 79. The verb "to sign" in its primary, denA'ative, and ancient sense signifies " to shew or declare assent or attestation by some sign or mark." Thence it early passed to mean the sheAving or declaring such assent or attestation by the customary mark of the Avritten name. In ordinary as well as in legal use it is now understood to mean " to Avrite the name in any such way as Avill indicate that the Avriting Avith AA'hich it is connected expresses the assertion, the promise, or the act of the signer, according lo the nature of the Avriting." It may be at the end or elsewhere, as in the margin in the official acts of some public officers, and sometimes in the attestation of witnesses. Thus one of those ancient decisions on the meaning of the Avord in the Statute of Wills, which led on to much bolder inter}»retation, says very justly, in the quaint langunge of those days, that the writing of the name on the same paper would answer, 568 DAVIS V. SHIELDS. [CHAP. I. " serviroit per tout, et n'est material si soit signe en le top ou bottom, car le statut ne dit subscribed me signed." Hilton v. King, 3 Lev. R. 86. But, as already stated, a far greater latitude has been since given judicially to this word, until any mention of the name was held to be a signature, as in cases like that of Knight v. Crockford, 1 Esp. Cases, 190, where, said Lord Eldon, commenting upon it, " it is impossible not to see that the insertion of the name at the beginning of the paper was not intended to be a signature, and that the paper was meant to be incomplete until it was further signed." Saunderson v. Jackson, 3 Bos. & Pul. R. 239. Thus the word " signing " in the statute book came to bear an authoritative meaning in certain connections beyond its usual legal sense, and to include any mention of the name if made by the party himself or with his assent express or implied, and in con- nection with the terms of the agreement. Now, it would seem that the deliberate omission of a word that had thus acquired a remarkable and peculiar extension by express adjudication, and the substitution of another word, even one synonymous in common use but which had never gained a secondary technical sense, would strongly indicate the legislative intent to modify the substance of the statute. But the substituted word is " subscribed." This literally and according to its derivation means " to write beneath," but in habitual use it denotes the writing the name at the end of any writing in token of assent or attestation, according to the import of the writing itself. It has a secondary meaning, but that is purely metaphorical, denoting the consent, assent, or promise thus conveyed, without reference to the external mode of expressing it, as " I subscribe to Ricardo's doctrine of rent." This Judge Cowen intimates may be the sense in which our statute employs the word. But this secondary sense is excluded when actual writing is spoken of; and besides holds only when the word is used as a neuter or intransitive verb, accompanied by the pre- position to. This distinction may be observed alike in colloquial use and in correct style. Thus, " I subscribe to the New York Review," means a promise to receive and pay for the Review ; but used transi- tively the meaning is of literal subscription, as " I subscribed the proposals for the New York Review." So the clergyman of the Anglican Church subscribes the thirty-nine articles. This has the literal meaning of manual subscription, denoting at the same time mental assent. But if it be meant merely to say that the theologian assents to these doctrines, it would be said that " he subscribed to the articles." So also in the grave and noble style of Hooker, in the passage cited by Johnson to illustrate this use : " The Nicene Creed was framed for the world to subscribe unto." But another great master of English idiom, when speaking of a literal and manual sub- scription, says : " They united by subscribing a covenant, which they pretended to be no other than had been subscribed in the reign i SECT. VI.] DAVIS V. SHIELDS. 569 of King James, and that his Majesty had himself subscribed it." Clarendon's History. Thus then, alike in colloquial use and in that of good writers, the words " note of the agreement in writing, sub- scribed by the parties," would mean a note of the agreement with the names of the parties signed below or at the end so as to denote assent thereto. Thus, taking the usual sense of the words in their literary or their colloquial use, the Legislature must appear to have intentionally substituted a word of known and limited meaning to the word " sign," having a wider primitive sense, as well as a very broad technical signi- fication unknown to familiar usage. Let us next look at the legal authority indicating the technical meaning of these two words. Have the decided cases giving a legal and professional sense to the word " sign " comprehended either directly or indirectly the analogous but not synonymous word " sub- scribe " ? A brief examination of the legal use of these two words will convince us that this is not the case. In the earliest adjudica- tions of the statutory sense of the word " sign," it was expressly distin- guished between these two words ; and the decision of the court sup- porting a mention of the name in the beginning of the instrument as a good signing was founded on the reason that " the statute does not say subscribed, but sign." Hilton v. King, 3 Lev. R, 86 ; Lemayne V. Stanley, 8 Lev. 1. I cite these ancient decisions because they have been kept alive by constant reference as the Ibundation of modern decisions. The same distinction between the two words in question has been made by later English judges, among them by Lord Chan- cellor Hardwicke,'if I recollect rightly. It is also to be found in the most approved text-books on this head of the law, as in Roberts on Frauds, 119. The same distinction is quite familiar in the reports of our own courts. In Merritt v. Clason, 12 J. R. 102, this point was immediately under consideration ; and the eminent counsel by whom the case was argued insist on the one side on the plain distinction between signing and subscribing, and admit it on the other. " Signing does not ex vi termini mean that the name of the party should be subscribed," said the late John Wells, a speaker and writer remarkable for his precision in the use of language. On the other side, D, B. Ogden thus replies : " I do not say that the agreement must be subscribed, but that it must be signed in some part of the con- tract." The point decided is thus stated by the learned and accurate reporter of that day, Mr. Johnson, in the marginal note of the case : " A memorandum of a contract for the purchase of goods written by a broker in his book in the presence of the vendor, and the terms of the purchase being in the body of the memorandum, but not subscribed by the parties, is a sufficient memorandum within the statute." 14 J. R. 484. The language of eminent counsel and a dis- tinguished reporter is cited, not as legal authority, but as iiidis- 670 DAVIS V. SHIELDS. [CHAP. I. putable evidence of the usage of words, professionally and technically, a very few years before our revision of the statutes. Thus we have ample evidence of the legal distiijction, as familiar to the use of judges and lawyers as to the general understanding, between the operative word of the old statutes and that selected in its place in the late revision. Finally, our learned Revisers, in their reports to the Legislature upon this and the analogous point of contracts for the sale of lands, &c., observe that "it had been held that under the former statute the literal act of signing was not necessary. After setting out with that principle, the courts found themselves perfectly at large as to what should be considered as signing. To prevent difficulties, the Revisers recommend that those agreements should be suhscrihedr With such a constant and familiar distinction as to the meaning of the words in question, the Revisers recommended a re-enactment of the Statute of Frauds as to agreements for the sale of chattels, &c., with some modifications, such as that " the agreement should be reduced to writing at the time it was made, and be subscribed by the party by whom it is to be performed, and by all the parties when such agree- ment contains provisions to be performed by each of them." These proposed innovations were all in opposition to the judicial con- structions of the old law. The Legislature adopted the alteration of "subscribing" for "signing," and rejected the rest. Thus, to my mind, the chain of evidence is complete as to the meaning of these words, and the obvious intent of the substitution of one word for the other. If this conclusion needs the support of farther argument from the history and policy' of the law, that may bo found in abundance. The avowed design of all the legislative enactments on this head from the original statute of 29 Charles II. down to our own dav was, " the prevention of frauds and perjuries " by refusing the aid of the law to enforce any contract not supported by written evidence, or which needed parol evidence to support it. Years of litigious war- fare, thousands of suits, and page after page of the reports had proved that a mere agent's memorandum was not sufficient to exclude differ- ences of understanding between the parties, contradictory testimony at the trial, and grave doubts on the bench. Questions would still arise as to the agent's authority to make the bargain and his accuracy in noting it down. Was it not then to be expected that the Legisla- ture in a formal and deliberate revision, aided by professional and offi- cial advisers, should endeavor to remedy some of the defects that had frustrated the good designs of former legislators ? One mode at least of attaining this end would be the requiring an actual subscription to the agreement or to the statement ol its substance either by the par- ties themselves or their legal representatives, so as to prove this to be a ratified bargain, and not a note of some imperfect negotiation. SECT. VI.] DAVIS V. SHIELDS. 571 When subscribed by the parties themselves, that memorandum would become the contract itself, and so put an end to all questions about prior negotiations. When signed by an agent, there would be formality enough to direct his attention to the matter and induce him to be sure that he had authority to sign in the iiarae of his ]»rincipal the agree- ment on which the contracting parties met. -Additional words or con- ditions varying the bargain would be excluded li-om any after insertion by what the plaintiffs' counsel has happily termed " the closing com- pleteness of the act of subscription." Adding then these manifest considerations of public utility to the cumulative evidence of the his- tory of the law and the meaning of the words successively employed, either in their popular, their literary, or their legal signification, I can- not doubt at all that the subscription required by the statute is no longer satisfied by the bare mention of the name in the body of the memorandum, but must be such a subscription as clearly denotes a deliberate assent to the settled terms of a contract. The agreement for the sale of the iron between the parties is therefore void for want of the evidence expressly demanded by the policy of the law. This conclusion may appear to many of my colleagues, as I confess that it does to myself, too obvious to require the details of argument and authority that I have presented. But it is a conclusion in opposi- tion to that of able and learned judges ; and the importance of the rule to be now settled, operating daily and hourly upon immense transactions, will excuse and even justify the details into which I have entered. II. In a court composed of few members, where the opinions of all may be brought to bear upon a single point, I should have preferred to rest the decision of this cause here without caring to examine any other point which has been raised. But should there be much differ- ence of opinion on the point just considered, it may be of importance to the decision of the cause to notice another aspect of the case, in ray judgment equally conclusive against the affirmance of the judgment. It besides ]M-esents a question which may often arise under any under- standing of the statute as to the required subscription upon contracts of sale signed in the most formal manner by agents or persons assuming: to act as such. Allowing then the broker's memorandum in his book to contain a valid subscription in its form, do the facts shew a mutual and binding contract entered into and signed by authority of the parties proj^osed to be charged as vendors ? A doubt naturally arises whether, under our revised statute, the words " to be subscribed by the parties to be charged " do not require that the agreement should be from the first binding by means of an authorized signing upon all the parties to the bargain. If this could be considered as an entirely open question, I should adhere to the opinion of Lord Chancellor liedesdale, that " a 572 DAVIS V. SHIELDS. [CHAP. I. contract to be binding ought to be mutual in its obligation" (Law- renson y. Butler, 1 Schoales & Lefroy R. 13) ; so that if one party- could not enforce the agi-eement, the other could not. But our revision has here retained the very words repeatedly adjudicated upon, and the legal sense of which had been expressly settled a few years ago in this court. Clason v. Merritt, 14 Johns. R. 485. This was in conformity with numerous prior decisions as is shewn in the opinion of Chancellor Kent in that case. An alteration of the statutory language had been recommended by the Revisers, so as to make it conform with the opinion of Lord Redesdale, and to exclude the old construction, which they said " many of the ablest judges in England and this country had regretted." Revisers' Notes, 3 R. S. 656. The Legislature rejected that alteration, and adhered to the old words. Here then it seems to me these words must be taken in their fixed and adjudicated sense, according to which it is enough that the agreement be signed or be authorized to be signed by the party to be charged in the suit. Nor is this interpretation without the support of reasons of equity, inde- pendently of authority. It is within the literal sense of the words used. The original contract is morally binding on both sides, and the promises to buy and sell are mutual considerations for each other. The statute then requires written evidence of the bargain. One party gives this, and it is his own neglect that alone prevents him from obtaining the same evidence from the other. But he ought not to take advantage of his own negligence, nor should that free him from the legal effect of his own promise duly evidenced in writing according to law. When therefore the other party makes his legal claim, his decla- ration and claim furnishes the required note or memorandum, and the statutory requisition is complete. I adhere then to the old adjudicated meaning of the words retained from the original statute, and consider it sufiicient if the memorandum was authorized by the vendors who are now to be charged, although it might not have been originally binding upon the vendee. But another question then arises, Does the e\adence shdw that the contract sought to be enforced was duly made by an authorized agent and reduced to writing by him? A bargain for the sale and purchase of the iron is made through a broker upon certain terms offered by the vendors, with the addition of two other conditions demanded by the vendee and agreed to. One of these conditions, " provided that the ii-on should arrive in reasonable time," might according to circum- stances prove beneficial to either party.. The risk of being obliged to take the iron at any time, however distant, was one that the buyer did not wish to take ; and this condition was primarily for his protection, but it might also be thought advantageous by the sellers who accepted it ; and so it was in fact rendered by subsequent contingencies. The sale was also on a six months' credit, which was evidently for the SECT. VI.] DAVIS V. SHIELDS. 573 buyer's convenience. The agreement on such terms was known to both parties and had their assent. For the purposes of the bargain so far the broker was the mutual agent of both. But he was not there- fore the agent of both or of either to make the note or memorandum, unless so far as he had their assent. No parties are bound by a broker who exceeds his authority. Here he makes an entry of the agreement, omittinof the terms of credit and of arrival in some reasonable time. Had this been signed by the vendors, it would as to them have formed the contract itself, in which all prior negotiations would have been merged. But neither party in person signs the agreement, and though the vendors consent to the real contract there was not a jot of evi- dence that they ever saw or knew of the agreement as entered in the sale-book. For the purpose of entering such a different contract, the broker does not appear to be an authorized agent either from his gen- eral powers or j5'om any after assent. He was an agent to make a bar- gain and communicate the terms : as such he was empowered to make a memorandum of the bargain thus made ; but he was not authorized to alter that agreement or to make an entry of another and different contract. Supposing in this case that instead of omitting two condi- tions, one important to the buyer, the other, as the event proved, bene- ficial to the seller, he had made a note of a sale of 500 tons instead of fifty : Avould his authority to sell and preserve the evidence of an agreement for the sale of fifty tons enable him to bind his principal to the larger contract? Or would any subsequent ratification by the vendee alone make such a contract binding upon the other party? The agreement to sell on certain terms was vaUd in itself; but it must be reduced to writing, or it is void by the statute. No note of that bargain as actually agreed upon is made ; but there is an entry of a contract varying in its terms from that, and not shewn to the parties or assented to by them. If it be now ratified by the buyer, it is bind- ing upon him, if the sellers judge proper to enforce it; but how is it binding upon the sellei'S who have never so assented and who now reject the terms ? This case then falls within the principle laid down by Chief Justice Abbott in Grant v. Fletcher, 5 Barn. & Ores. 436. " A broker may bind both parties by signing the same contract on behalf of both parties. But if he does not sign the same contract for both, neither will be bound." It has therefore often been decided that, when a broker delivers a different note of the contract to each party, there is no mutual contract. Here the note differs from the real conti-act, and if it be afterwards ratified or adopted by one party, then there is a dif- ferent contract as to the two. The case resembles that of Hinde v. Whitehouse, 7 East, 568, where Lord Ellenborough said : " In treating this as the memorandum of the actual sale we must intend, contrai-y to the fact, that the goods were sold for ready money and the sale unat- tended by tlie circumstances mentioned in the conditions of sale." In 574 DAVIS V. SHIELDS. [CHAP. I. short, the agreement of sale when made and reduced to writing cannot be explained away or contradicted by parol proof. But if the writing or signing be by an agent or broker, then parol or other evidence is not only admissible, but necessary, to shew that he is authorized to sign just such a contract. The evidence hei-e negatives that authority ; and whatever may have been the intention of the parties, or however much or little the stipiilation of the arrival of the iron within a reasonable time seemed essential to the bargain in the minds of the vendors, there is still no actual agreement for the sale of goods concluded by the parties of which a note or memorandum in writing has been made. I must add a single remark as to the policy of the law. I do not see how we can sustain this entry as a binding note of the sale upon any presumed equity of this particular case without giving a very dangerous extension to the implied authority of brokers or other agents for sales. To constitute the simple fact of being authorized to make a bargain as the conclusive or even the presumptive evidence of being also author- ized to sign any memorandum of the bargain, however variant from the real one, and then to substitute that memorandum for the contract itself at the pleasure of either party, would jilace all principals at the mercy of the fraud, the mistake, or the carelessness of brokers or agents, whether selected by themselves or by the persons with whom they may happen to contract. The judgments of the courts below should be reversed on both or either of the grounds above stated. Senator Paige expressed the opinion that by the substitution of the word " subscribed " for the word " signed," used in the old Statute of Frauds, the Legislature did not intend to change the law. This he thou2;ht was manifest from the consideration that in the Statute of Wills the two words were used as synonymous: the 40th section requires the will to be subscribed by the testator, and the next sec- tion speaks of the testator's nam^e being signed by a third person under his direction. 2 K.. S. 7, §§ 40, 41. The word "signed" as used in the Statute of Frauds, he said, had received a fixed judicial construc- tion, which he thought should be applied to the word " subscribed." He therefore considered the memorandum of the broker sufficient, and should vote for an affirmance of the judgment. On the question being put. Shall this judgment be reversed? all the members of the court present at the hearing of the argument, except Senator Paige, voted in the affirmative : he voted in the negative. Whereupon the judgment of the Supreme Court was reversed.^ • Approved and followed in James v. Patten, 2 Seld. 9. — Ed. SECT. VI.] CUMMINGS V. ARNOLD. 575 GEORGE CUMMINGS and Others v. SMITH ARNOLD and Another. Supreme Judicial Court of Massachusetts, March Term, 1842. [Reported in 3 Metcalf, 486.] Assumpsit on the following agreement: "October 26th, 1838. This is to shew that I agi-ee to furnish and deliver to Cuinmings, Hildreth, & Co., of Boston, all the printing cloths which I make in my looms, which are on 35-inch cloths, and which make 15U pieces of cloth per week ; the quality to be the same as those sold by H. Power to Cum- mings, Hildreth, & Co., on my account ; the warp being 64 picks to the inch, the filling 60 picks or threads to the inch. These goods, to the amount of 150 pieces per week, I agree to deliver to Cummings, Hildreth, & Co., in Boston, up to March 1st, 1839, at eight and one- quarter cents, say 8^ yd., on eight months' credit. Smith Arnold & Co." The declaration averred that the plaintiffs had always been ready and desirous to receive and pay for said goods according to the terms of said agreement, yet that the defendants had not delivered and furnished the same. The defendants filed the following specifications of defence : — "1. That it was agreed [by parol] between the plaintiffs and defend- ants at the time when the above contract was entered into, and after its execution and delivery, that the plaintiffs should give in payment for the goods satisfactory promissory notes, such as would be discounted at the bank where the defendants did business ; which notes were not given as agreed, but were refused. 2. That after the making of the above agreement, a proposition was made by the plaintiffs to pay cash for the goods at five per cent, discount : that AiTiold one of the de- fendants, to whom this proposition was made, then being in Boston, told the plaintiffs he thought the defendants should accept the offer, but wished to consult with his partner; for which purpose time was allowed him ; that he went home and consulted his partner, and wrote immediately to the plaintiffs that they (the defendants) should accept the proposition ; but that the plaintifls afterwards refused to adhere to the bargain, as it was not closed at the time the proposition was made." At tlie trial before Putnam, J., the defendants offered to prove the oral agreements mentioned in their specification, and that they were made on a legal and valid consideration. But the judge refused to admit the prootj and a verdict was returned for the plaintiffs. The defendants moved for a new trial. This case was argued at the last March term. 576 CUMMINGS V. ARNOLD. [CHAP. I. £. /Summer, for the defendants. As it does not appear that the cloths were in existence when the original written agreement was made, that agreement was not required by the Statute of Frauds to be in writing. Clayton v. Andrews, 4 Burr. 2101 ; Towers v. Osborne, 1 Stra. 506 ; Groves v. Buck, 3 M. & S. 178 ; Cooper v. Elston, 7 T. R. 14; Rondeau v. Wyatt, 2 H. Bl. 63; Sewall v. Fitch, 8 Cow. 215 ; Ben- nett V. Hull, 10 Johns. 364; Crookshank v. Burrell, 18 Johns. 58; Jackson v. Covert, 5 Wend. 139 ; Mixer v. Howarth, 21 Pick. 205 ; Spencer v. Cone, 1 Met. 283. The original agreement not being within the Statute of Frauds, the evidence of the subsequent oral agreement should have been received. Whenever a new agreement is made, however soon after the first, — even though the parties have not separated, — such new agreement is a waiver or alteration of the first, and binds the parties. 3 Phil. Ev. (4th Am. ed.) 1461, 1462, 1477, 1478, and cases there cited; 6 Ves. 337, note ; Cufi v. Penn, 1 M. & S. 21 ; Keating v. Price, 1 Johns. Cas. 22 ; Fleming v. Gilbert, 3 Johns. 528 ; M'Meen v. Owen, 1 Yeates, 135 ; Watkins v. Hodges, 6 Har. & J. 38. Codma7i, for the plaintiifs. The evidence of the oral agreement was propei'ly rejected, as it was ofiered to vary a contemporaneous written agreement. Vattel, Book II., c. 17, §§ 265, 266; 3 Phil. Ev. (4th Am. ed.) 1466, 1467, note. A contract which is within the Stat- ute of Frauds cannot be varied by parol if the new contract be one which is also within the statute. 3 Stark. Ev. 1048, 1050; 1 Phil. Ev. (4th Am. ed.) 559, 561, 562 ; Goss v. Lord Nugent, 5 Barn. & Adolph. 58 ; Chit. Con. (5th Am. ed.) 110, 113, 777 ; Marshall v. Lynn, 6 Mees. & Welsh. 109 ; Harvey v. Grabham, 5 Adolph. & Ellis, 73, 74; Stowell V. Robinson, 3 Bing. N". R. 928 ; s. c. 5 Scott, 196. The first and last agreements were within the Statute of Frauds. Garbutt v. Watson, 5 Barn. & Aid. 613 ; s. c. 1 Dowl. & Ryl. 219. Where goods would not exist in a manufactured state were it not for an order, and the order is for goods to be sold, the case is within the statute. Smith v. Surman, 9 Barn. & Cress. 568 ; Watts v. Friend, 10 Barn. & Cress. 448 ; Dole v. Stimpson, 21 Pick. 387. Wilde, J. This case comes before us on exceptions to the rulings of the court at the trial, whereby the evidence ofiered by the defend- ants was rejected on the ground that the facts ofiered to be proved would not constitute a legal defence. The action is founded on a written contract, by which the defendants undertook to deliver to the plaintiffs at a stipulated price a certain quantity of cloths for printing, from time to time between the 26th day of October, 1838, and the fii'st of March following. The defendants admit that the written contract was not performed by them according to the terms of it ; and they rely on two oral agree- ments made subsequently to the execution of the written contract, by SECT. VI.] CUMMINGS V. ARNOLD. 677 the last of which it was agreed that the plaintiffs should pay cash for the goods to be sent to thena by the defendants, — they discounting five per cent, on the stipulated price whenever the goods sent should amount to the value of 81000, not before paid for; that under this last verbal agreement the defendants delivered 150 pieces of goods, and that the plaintiffs refused to perform said agreement on their part. The defendants also offered to prove that each of these verbal agreements was made on a legal and good consideration. The question is, whether these facts, if proved, would constitute a legal defence to the action. The general rule is that no verbal agreements between the parties to a written contract, made before or at the time of the execution of such contract, are admissible to vary its terms or to affect its construc- tion. All sucli verbal agreements are considered as varied by and merged in the written contract. But this rule does not apply to a sub- sequent oral agreement made on a new and valuable consideration before the breach of the contract. Such a subsequent oral agreement may enlarge the time of peribrmance, or may vary any other terms of the contract, or may waive and discharge it altogether. This rule is laid down by Lord Denman in Goss v. Lord Nugent, 5 Barn. & Adolph. 65, as a well established principle, in these terms : " After the agreement has been reduced into writing it is competent to the parties at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agree- ment, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract ; which is to be proved partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agree- ment." The same principle substantially is maintained by numerous cases both in England and in this country. Milton v. Edgworth, 5 Bro. P. C. (2d. ed.) 813; Bui. N. P. 152; 1 Mod. 262; 2 Mod. 259; 12 Mod. 538; 3 T. K. 590; 1 East, 631; 12 East, 578; 1 Esp. R. 54; 3 Stark. Ev. 1002; Chit. Con. (5th Am. ed.) 108; 14 Johns. 330; 9 Cow. 115; 1 Johns. Cas. 22; 3 Johns. Cas. 60; 3 Johns. 531; 12 Wend. 446; 13 Wend. 71 ; 9 Pick. 298 ; 13 Pick. 446 ; 2 Watts, 456 ; 5 Cow. 497 ; 7 Cow. 50; 3 Fairf. 441 ; 4 N. Hamp. 40; 6 Ilalst. 174; 1 A. K. Marsh. 582. In Dow V. Tuttle, 4 Mass. 414, it was decided that, where the promisee of a note payable at a day certain contracts at the time the note is given not to demand payment of it until a certain time after its maturity, such contract is a collateral promise, for the breach of which, if there be a legal consideration, an action may lie, but that it is no bar to an action on the note when due by the terms of it. But this case was decided on the ground that the agreement offered to be pioved in the defence was made at the time of making the note, and was repug- voL. 1. j37 578 CUMMINGS V. ARNOLD. [CHAP. I. nant to the terms of it. This decision therefore is not inconsistent with the doctrine maintained in the cases cited. But the plaintiffs' counsel contends that, however the general prin- ciple may be as to the effect of a parol agreement on a previous written contract, it is not applicable to the present case, the parol agreement being void by the Statute of Frauds ; and that to allow a parol agree- ment to be engrafted upon a written contract would let in all the inconveniences which were intended to be obviated by the statute. In considering this objection we have met with many conflicting decisions, but for which we should have had but little difiiculty in disposing of the question raised. And notwithstanding the doubts excited by some of these decisions, we have been brought to a conclusion which coin- cides, as we think, with the true meaning of the statute. The language of the 4th section (1 Rev. Sts. c. 74), on which the question depends, is peculiar. It does not require, that the note or memorandum in writing of the bargain should be signed by both the contracting parties, but only " by the party to be charged thereby or by some person there- unto by him lawfully authorized." " The principal design of the Statute of Frauds was," as Lord Ellen- borough remarks in Cuff u.Penn, 1 M. & S. 26, "that parties should not have imposed on them burdensome contracts which they never made, and be fixed with goods which they never contemplated to pur- chase." The statute therefore requires a memorandum of the bargain to be. in writing, that it may be made certain; but it does not under- take to regulate its performance. It does not say that such a contract shall not be varied by a subsequent oral agreement for a substituted performance. That is left to be decided by the rules and principles of law in relation to the admission of parol evidence to vary the terms of written contracts. We have no doubt therefore that accord and satis- faction by a substituted performance would be a good defence in this action. So if the plaintiffs had paid for the goods according to the oral agreements to pay cash or give security, and the defendants had thereupon completed the delivery of the goods contracted for, it would have been a good performance of the written contract. This has been prevented (if the defendants can prove what they offered to prove) by the plaintifls' refusal to j^erform on their part a fair and valid contract. And it is a well settled principle that, if two contracting parties are bound to do certain reciprocal acts simultaneously, the ofler of one of the parties to perform the contract on his part, and the refusal of the other to comply with the contract on his part, will be equivalent to a tender and refusal ; and in the present case we think it equivalent to an accord and satisfaction, which was prevented by the fault of the plaintiffs, who agreed for a valuable consideration — if what the defend- ants offered to shew be true — to vary the terms of the written con- tract as to the time of payment, and afterwards refused to comply with SECT. VI.] CUMMINGS V. ARNOLD. 579 their agreement. If the defendants on their pai't had refused to per- form the verbal agreement, then indeed it could not be set up in defence of the present action ; for the party who sets up an oral agreement for a substituted i)erformanoe of a written contract is bound t(j prove that he has ])erfonned or has been ready to perform the oral agreement. This distinction avoids the difficulty suggested in some of the cases cited, where it is said that to allow a party to sue partly on a written and partly on a verbal agreement would be in direct opposition to the requisitions of the statute; and it undoubtedly would be ; but no jiarty having a right of action can be compelled to sue in this form. He may always declare on the written contract ; and unless the defendant can prove performance according to the tenns of the contract or according to the agreement for a substituted performance, the plaintiff would be entitled to judgment. We think therefore that the evidence of the oral agreements oftered at the trial should have been admitted ; the same not being within the Statute of Frauds, and the evidence being admissible by the rules of law. In support of this view of the case I shall not attempt to reconcile all the conflicting opinions which have been held in similar or nearly similar cases, some of which appear to have been decided on very sub- tle and refined distinctions. I will however refer to a few decisions which bear directly on the present case. The case of Cuff v. Penn, 1 M. & S. 21, is a strong authority in favor of the defendants, as the facts on which the decision in that case depended are in all respects substantially similar to those offered to be proved in this action. That was an action of assumpsit for not accepting a quantity of bacon, which by a written contract the defendant agreed to purchase of the plaintiff, to be delivered at certain fixed times. After a part of the bacon had been delivered the defendant requested the plaintiff, as the sale was dull, not to press the delivery of the residue ; and the plaintiff assented. The defendant afterwards refused to accept the residue, and set up the Statute of Frauds in defence; but the court held that there was a parol dispensation of the performance of the written contract as to the times of delivery, which was not affected by the Statute of Frauds. Lord Ellenborough says : " I think this case has been argued very much on a misunderstanding of the Statute of Frauds, and the question has been embarrassed by confounding two subjects quite distinct ; namely, the provision of the statute, and the rule of law whereby a party is precluded from giving parol evidence to vary a written contract." " It is admitted," he adds, in another part of his opinion, " that there was an agreed substitution of other days than those originally specified for the performance of the contract ; still the contract remains. Suppose a delivery of live hogs instead of bacon had been substituted and accepted : might not that have been given in evidence as accord and satisfaction? So here the parties have chosen to take a substituted performance." 580 CUMMINGS V. AENOLD. [CHAP. I. The principle on which this was decided is laid down in several other cases, some of which have been already cited on the other point of defeiice. At the argument of the case of Goss v. Lord Nugent, Parke, J., remarked that "in Cuff v. Penn, and some other cases relating to contracts for the sale of goods above £10, it has been held that the time in which the goods by the agreement in wiiting were to be delivered might be extended by a verbal agreement. But I never could understand the principle on which those cases proceeded ; for the new contract to deliver within the extended time must be proved partly by writing and partly by oral evidence." But there is no necessity for the plaintiff to declare partly on the written and partly on the oral agreement. He may always, as before remarked, declare on the written contract ; and the defendant will be bound to prove a performance according to the terms of it or according to the terms of a substituted performance ; and performance in either way may be proved by parol evidence. Lord Denman, who delivered the opinion of the court in Goss v. Lord Nugent, does not question the correctness of the decision in Cuff V. Penn ; and his remarks on another branch of the Statute of Frauds seem to be confirmatory of the principle laid down by Lord Ellenborough in the latter case. "It is to be observed," he says, " that the statute does not say in distinct terms that all con- tracts or agreements concerning the sale of lands shall be in writing, and there is no clause which requires the dissolution of such con- tracts to be in writing." In that action however the plaintiff declared partly on the written and partly on the verbal contract, and on that ground it was rightfully enough decided that the action could not be maintained. In Stowell V. Robinson, 3 Bing. N. R. 928, and 5 Scott, 196, it was held that the time for the performance of a written contract for the sale of lands could not be enlarged by a subsequent oral agree- ment, although that agreement was pleaded by the defendant as a bar to the action. The plea was that at the time stipulated for the per- formance of the written contract neither party was ready to com- plete the sale ; and the time for the performance was agreed by the parties to be j^ostponed. That decision seems to be founded on the doubt suggested by Parke, J., in Goss v. Lord Nugent, and upon the decision in that case, without noticing the distinction in the two cases. And it appears to us that the case of Stowell v. Robinson was decided on a mistaken construction and application of the Statute of Frauds ; and that the distinction between the contract of sale which is required to be in writing, and its subsequent perform- ance as to which the statute is silent, was overlooked or not suffi- ciently considered by the court ; otherwise the decision perhaps might liave been different. We think there is no substantial difference, so SECT. VI.] SUYDAM V. CLARK. 581 far as it relates to the Statute of Frauds, between the plea in that case and the plea of accord and satisfaction, or a ))k'a that the written contract had been totally dissolved before breach by an oral agree- ment ; either of which pleas would have been a good and sufficient bar to the action. We are aware that the principle on which Stowell V. Robinson was decided is supported by other English cases cited ; but the principle on which the case of Cuff v. Penn was decided is in our jtidgnient more satisfactory, and better adapted to the adminis- tration of justice in this and similar cases. It is to be observed in the present case that the oral agreements offered to be proved by the defendants did not vary the terras of the written contract as to its performance on their part ; the only alter- ation was as to the time of payment by the ])laintiffs. Such an alteration, made on a good consideration and bet'oro any breach of the contract, may, we think, be proved, without any infringement of the Statute of Frauds or any principle of law. JVew trial granted.^ SUYDAM, REED, & Co. v. CLARK & COLEIVIAN. Superior Court op the City of New York, September, 1848. [Reported in 2 Sandford, 133.] Assumpsit to recover the difference on a contract of the defend- ants to purchase flour, which not being performed the flour was re-sold at their risk. The cause was tried before the Chief Justice ^ on the 14th of April, 1848. The plaintiffs called W. L. Roberts, who testified that he was a produce brqker in this city, and made the sale and purchase of the flour between the parties. The following is the bought note which he sent to the plaintiffs : — No. 274. New York, July 13th, 1S47. Gentlemen, — We have this day sold for your account to Clark & Coleman 1000 barrels superfine Hour, whereof 750 barrels are *' T. Wiman " at $6 per barrel ; and 250 barrels " Scio" at $5.87A per barrel. The 750 barrels to be delivered when it arrives, not later than three days ; and the " Scio " to be marked " Genesee." Roberts Bkos., Brokers. To SuYDAM, Reed, & Co. ' See Stearns v. Hall, 9 Cush. 31, ace. ; Ladd v. King, 1 Rhode Island, 224, contra. — Ed. •J Oakley. — Ed. 582 SUYDAM V. CLARK. [CHAP. I. The following is the sold note which he sent to the defendants : — No. 274. New York, July 13th, 1847. Gentlemen, — We have this day bought for your account of Suydam, Reed, & Co., 1000 barrels superfine flour, -whereof 750 barrels are " T. Wiman " at $6 per barrel; and 250 barrels " Scio " at $5.87^ per barrel. To be delivered when it arrives, not later than three days ; and the " Scio " to be marked " Genesee." Roberts Bros., Brokers. To Clark & Coleman. 1 The defendants' counsel moved for a nonsuit on the ground [^inter alia] that the brokers' notes of the contract delivered to the respective parties varied, and did not constitute a contract, and none had been proved by the plaintiffs. . . . The judge granted the mo- tion, and the plaintiffs' counsel excepted. S. Sherwood, for the plaintiffs, cited 14 John. 485 ; 3 Wend. 112 ; 26 ibid. 363. A. 8. Johnson, for the defendants, cited 3 Wend. 459 ; 26 ibid. 341 ; 5 Barn. & Cr. 436 ; 9 Mees. & Welsh. 600 ; 2 Campb. 326 ; 3 iUd. 274 ; 7 Dowl. & Ryl. 131. By the Court. Vanderpoel, J. We think the variance here is fatal. The broker was the agent of both parties : he must be deemed to have been employed by the one to buy and by the other to sell ; and the notes which he delivers to the parties evidence their con- tract. According to the note delivered to the plaintiffs, the 750 barrels only were to be delivered when it arrived, not later than three days ; whereas, according to the note delivered to the defend- ants, the whole quantity, a thousand barrels, was to be delivered on its arrival, not later than three days. By the latter note then the obligation of the defendants to take the thousand barrels was con- ditioned on its arrival and delivery within three days. Whether the terms of the latter note were more or less beneficial to the defendants than the former cannot be material. Both parties had the right to determine that question for themselves when they entered into the contract. In Grant v. Fletcher, 5 Barn. & Cress. 436, it was expressly held that the broker is the agent for both parties, and as such may bind them by signing the same contract on behalf of buyer and seller. But that if he does not sign the same contract for both parties, neither will be bound ; and that where a broker delivers a different note of the contract to each of the contracting parties, there is no valid contract. Davis V. Shields, 26 Wend. 341 ; Peltier v. Collins, 3 Wend. 459. . . . The motion to set aside the no7isuit is denied, I Only 80 much of the caae is given as relates to the Statute of Frauds, — Ed. SECT. VI.] SALMON FALLS MANUF, CO. V. GODDARD. 583 THE SALMON FALLS MANUFACTURING COMPANY, Plaintiff in Error, v. WILLIAM W. GODDARD. Supreme Court of the United States, December Term, 1852. [Reported in 20 Curtis, 276, 14 Hoioard, 446.] The case is stated in the opinion of the court. C. J3. Goodrich, for the plaintiffs. Johnson and George T. Davis, contra. Nelson, .J., delivered tlie opinion of the court. This is a writ of error to the Circuit Court of the United States for the district of Massachusetts. The suit was brought by the plaintiffs in the court beloAv to recover the price of 300 bales of brown and of 100 cases of blue drills, which they had previously sold to the defendant. The contiMct for the purcliase was made with the house of JVIason & Lawrence, agents of the plaintiffs in Boston, on the 19th Sep- tember, 1850, and a memorandum of the same signed by the parties. A bill of pai-cels was made out under date of 30th Septeml)er, stating the purchase of the goods by the defendant, carrying out prices and footuig up the amount at $18,565.03; also the terms of ]>ayment, — note at twelve months, payable to the treasurer of the plaintiffs. This was forwarded to the defendant on the 11th October, and in pur- suance of an order from him the 300 bales were sent from tlu'ir establishment at Salmon Falls by the railroad, and arived at the depot in Boston on the 30th October, of which notice was given to the defendant on the same day, and a delivery tendered. He requested that the goods should not be sent to his warehouse or place of delivery, for the reason, as subsequently stated by his clerk, there was no room for storage. The agents of the plaintiffs the next day renewed the tender of delivery by letter, adding that the goods remained at the depot at his risk and subject to storage, to which no answer was returned. On the night of the 4th November the railroad depot was consumed by fire, and with it the 300 bales of the goods in question. The price was to be paid by a note at twelve months, which the defendant refused to give ; upon Avhich refusal this action was brought. The court below at the trial held tliat the written memorandum, made at the time of enterins; into the contract between the asjents of the plaintiffs and the defendant, was not sufficient to take tlie case out of the Statute of Frauds, and as there was no acceptance of the goods the plaintiffs could not recover. As we differ with the learned judge who tried the cause as to the sufficiency of the written memorandum, the question upon the statute 584 SALMON FALLS MANUF. CO. V. GODDAED. [CHAP. I. is the only one that it will be material to notice. The memorandum is as follows : — Sept. 19, —W. W. Goddard, 12 mos. HOO bales S. F. drills 7i 100 cases blue do 8| Credit to commence Avlien ship sails ; not after Deer. 1 — delivered free of charge for truckage. The blues, if color satisfactory to purchasers. R. M. M. W. W. G. The statute of Massachusetts on this subject is substantially the same as that of 29 Car. 2, c. 3, § 17, and declares that no contract for the sale of goods, &c., shall be valid, &c., " unless some note or memo- randum in writing of the bargain be made and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized." The word " bargain " in the statute means the terms upon which the respective parties contract ; and in the sale of goods the terms of the bargain must be specified in the note or memorandum, and stated with reasonable certainty, so that they can be understood from the writing itself without having recourse to parol proof; for unless the essential terms of the sale can be ascertained from the writing itself or by a reference contained in it to something else, the memorandum is not a com])liance with the statute. This brief note of the contract however, like all other mercantile contracts, is subject to explanation by reference to the usage and custom of the trade, with a view to get at the true meaning of the parties as each is presumed to have contracted in reference to them. And although specific and express provisions will contx'ol the usage and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of the instrument, or made so by reference to exti-aneous circumstances, parol evidence of the usage and practice in the trade is admissible to explain the meaning. 2 Kent, C. 556, and note 3 ; ibid. 260, and note; Long on Sales, 197 (ed. 1839) ; 1 Gale & Davis. 52. Extraneous evidence is also admissible to shew that a person whose name is afiixed to the contract acted only as an agent, thereby enabling the principal either to sue or be sued in his own name ; and this, though it purported on its face to have been made by the agent himself, and the principal not named. Higgins v. Senior, 8 M. & Wels. 834; Trueman v. Loder, 11 Ad. & Ell. 589. Lord Denman observed in the latter case " that parol evidence is always necessary to shew that the party sued is the party making the contract, and bound by it ; whether he does so in his own name or in that of another, or in a feigned name, and whether the contract be signed by his own hand or that of an agent, are inquiries not different in their nature SECT. VI.] SALMON FALLS MANUP. CO. V. GODDARD. 585 from the question, Who is the person who has just ordered goods in a shop? If lie is sued for the price, and liis identity made out, the con- tract is not varied by appearing to have been made by him in a name not his own." So the signature of one of the parties is a sufficient signing to chai-ge the firm. Soames v. Spencer, 1 D. & R. 32 ; Long on Sales, 58. It has also been held in the case of a sold note which expressed "eighteen pockets of hops at 100s.," that parol evidence was admissible to shew that the 100s. meant the price per cwt. Spicer v. Cooper, 1 Gale & D. 52, 5 Jurist, 1036. The memorandum in that case was as follows : — Sold to Waite Spicer, of S. Walden, 18 pos. Kent hops, as under July 23, 1840 ; 10 pos. Barlow East Kent, 1839 ; 8 pos. Springall Goodliurst Kent, 1839, lOOs. Delivered. John Cooper. Evidence was admitted on the trial to prove that the 100s. was understood in the trade to refer to the price per cwt., and the ruling approved' by the King's Bench. Lord Deumau put a case to the counsel in the argument to illustrate his view, that bears upon the case before us. Suppose, he said, the contract had been for ten biitts of beer, at one shilling, the ordinary price of a gallon — and intimated that the meaning could hardly be mistaken. Now, within the principles above stated, we are of opinion that the memorandum in question was a sufficient compliance with the statute. It was competent to shew by parol proof that Mason signed for the firm of Mason & Lawrence, and that the house was acting as agents for the plaintiffs, a company engaged in manufacturing the goods which Avere the subject of the sale ; and also to shew that the figures 7;^ and 8|, set opposite the 300 bales and 100 cases of goods, meant seven and a quarter cents and eight and three-quarter cents per yard. The memorandum therefore contains the names of the sellers and of the buyer, the commodity and the price ; also the time of credit and conditions of the delivery ; and in the absence of any specified time or place of delivery, the law will supply the omission, namely, a reasonable time after the goods are called for, and usual place of busi- ness of the purchaser, or his customary place for the delivery of goods of this desci'iption. In respect to the giving of the note, which was to run during the period of the credit, it appears to be the uniform custom of the house of Mason & Lawrence to take notes for goods sold oi this descrip- tion. The defendant was one of their customers and knew this usage; and it is a presumption of law therefore that the purchase was made with reference to it, there being no stipulation to the contrary in the contract of the parties. 586 SALMON FALLS MANDF. CO. V. GODDARD. [CHAP. L We are- also of opinion, even admitting that there might be some obscurity in the terms of the memorandum, and intrinsic difficulty in a proper understanding of them, that it would be competent, under the circumstances of the case, to refer to the bill of parcels delivered for the purpose of explanation. We do not say that it would be a note in writing of itself sufficient to bind the defendant within the statute : though it might be to bind the plaintiff. It was a bill of sale made out by the seller, and contained his understanding of the terms and meaning of the contract ; and having been received by the buyer, and acquiesced in (for the order to have the goods forwarded was given after it was received) the natural inference would seem to be that the interpretation given was according to the understanding of both parties. It is not necessary to say that this would be the conclusion if the bill differed materially from the wi'itten contract ; that might present a different question ; but we think it is so connected with, and naturally resulting from, the trans- action, that it may be properly referred to for the purpose of explain- ing any ambiguity or abbreviations, so common in these brief notes of mercantile contracts. A printed bill of parcels delivered by the seller may be a sufficient memorandum within the statute to bind him, especially if subse- quently recognized by a letter to the buyer. 2 B. & P. 238 ; 3 Esp. 180. And generally the contract may be collected from several dis'tinct papers taken together as forming parts of an entire transaction, if they are connected by express reference fi-om the one to the others. 3 Ad. & Ell. 355; 9 B. & Cr. 561; 2 ibid. 945; 3 Taunt. 169 ; 6 Cow. 445 ; 2 M. & Wels. 660 ; Long on Sales, 55, and cases. In the case before us the bill of parcels is not only connected with the contract of sale, which has been signed by both parties, but was made out and deUvered in the course of the fulfilment of it ; has been acquiesced in by the buyer, and the goods ordered to be delivered after it was received. It is not a memorandum sufficient to bind him, because his name is not affixed to it by his authority ; but if he had subsequently recognized it by letter to the sellers, it might have been sufficient. 2 B. & P. 238 ; 2 M. & Wels. 653 ; 3 Taunt. 169. But although we admit, if it was necessary for the plaintiffs to rely upon the bill as the note or memorandum within the statute, they must have failed, we think it competent within the principle of the cases on the subject, from its connection with and relation to the contract, to refer to it as explanatory of any obscurity or indefi- niteness of its terms, for the purpose of removing the ambiguity. Take, for example, as an instance, the objection that the price is uncertain, the figures 7^ and 8|, opposite the 300 bales and 100 cases of drills, given without any mark to denote what is intended by them. SECT. VI.] SALMON FALLS MANUF. CO. V. GODDARD. 587 The bill of parcels carries out these figures as so many cents per yard, and the atjgregate amount footed up ; and after it is received by the defendant, and with a knowledge of this explanation, he orders the goods to be forwarded. We cannot doubt but that the bill under such circumstances affords competent evidence of the meaning to be given to this part of the written memorandum. And so in respect to any other indefinite or abbreviated item to be found in this brief note of a mercantile contract. For these reasons we are of opinion that the judgment of the court below must be reversed, and the proceedings remitted with directions to award a venire de novo. Catron, J., Daniel, J., and Curtis, J., dissented. Daxtel, J., dissenting. Upon the point made in this case on the Statute of Frauds I entirely concur in the exposition of the law just announced by the court. With respect however to the proceedings ordered by this court to be taken in this case in the Circuit Court, I am constrained to dissent from the decision of my brethren. My opinion is that, under the 2d section of the 3d article of the Constitu- tion, the courts of the United States could not take cognizance of the controversy between these parties; and that therefore the proper direction to the Circuit Court would have been to dismiss this suit for want of jurisdiction. My reasons for the conclusion here expressed having been given in detail in the case of Rundle et al. v. The Dela- ware and Raritan Canal Company, 14 How. 80, during the present term, it is unnecessary to repeat them on this occasion. Curtis, J. I have the misfortune to differ from the majority of my brethren in this case ; and as the question is one which enters into the daily business of merchants and at the same time involves the con- struction of a statute of the Commonwealth of Massachusetts, I think it proper to state briefly the grounds on which I rest my opinion. The first question is. Whether the WTiting of the 19th of September is a suflicient memorandum within the 3d section of the 74th chapter of the Revised Statutes of Massachusetts? The writing is in these words and figures : — Sept. 19,— W. W. Goddard, 12 mos. 300 bales S. F. drills 7^ 100 cases blue ,, . . . . < 8| Credit to commence when ship sails ; not after Deer. 1 — delivered free of charsre for truckage. R. M. M. W. W. G. The blues, if color is satisfactory to purchaser. Does this writing shew upon its face, and without resorting to extra- neous evidence, that W. W. Goddard was the purchaser of these goods ? I think not. Certainly it does not so state in terms ; nor can 588 SALMON FALLS MANUF. CO. V. GODDAED. [CHAP. I. I perceive how the fact can be collected from the paper by any certain intendment. If it be assumed that a sale was made and that Goddard was a party to the transaction, what is there on the face of the paper to shew whether Goddard sold or bought ? Extraneous evidence that he was the seller would be just as consistent with this wi'iting as extra- neous evidence that he was the purchaser. Suppose the fact had been that Mason was the purchaser, and that the writing might be explained by evidence of that foct : it would then be read that Goddard sold to Mason on twelve months' credit ; and this evidence would be consist- ent with every thing which the paper contains, because the paper is wholly silent as to the fact whether he was the seller or the purchaser. In Bailey et al v. Ogden, 3 Johns. Rep. 399, an action for not accept- ing sugars, the memorandum was : — 14 December. J. Ogden and Co. Bailey & Bogart. Brown, \2\ } gQ ^^^ gQ j White, 16^ S Debenture part pay.' 1 This was an entry in pencil in the pocket memorandum book of Francis Huguet, who acted as broker for the defendants in purchasing the sugars. The following memorandum of the sale was also entered by the plaintiffs in their memorandum book : — " 14th December. " Sold Huguet for J. Ogden & Co., notes with approved indorser, boxes white, do. brown Havanna sugars, at 12i for brown and 16i for white, payable at 60 and 90 days ; debenture we will receive in part payment." Kent, C. J., delivered the following opinion as to the sufficiency of these memo- randa : " The only memoranda which were made relative to the transaction were an entry of the sale of the sugars, made by one of the plaintiffs in their memorandum book immediately after the alleged sale, and the minute made with the pencil of Huguet in his pocket memorandum book. The entry of the plaintiffs, made and retained by them, was not binding upon the defendants, because the statute requires the note or memorandum to be signed by the party to be charged. The numerous cases admitting an agreement to be valid within the statute, if signed by one party only, are all of them cases in which the agreement was signed by the party against whom the performance was sought. Some of the cases arose under the 4th and others under the 17th section of the English statute, but the words are in this respect similar and require the same construction. 2 Cha. Ca. 164 ; 1 Powell on Contracts, 286 ; 5 Viner, 527, pi. 17; 1 Vesey, 82; 3 Bro. C. C. 162; 3 Atk. 503; 6 East, 307; 7 Vesey, jun. 265; 9 Vesey, jun. 234, 351 ; 1 Esp. Cas. 190; Ballow v. Walker, in this court, Jan. Term, 1802 ; i 2 Caines, 120. It has however been said that there would be a want of mutuality if the plaintiffs in this case were bound by their entry, and the defendants should not be. The same difficulty has occurred in other cases ; and Lord Redesdale felt it so strongly that he observed (Lawrenson v. Butler, 1 Schoales and Lefroy, 20), that to enforce every agreement, signed by one party only, against such party, would be to make the statute really a statute of frauds, and that there was 1 Since reported, 3 Johns. Cas. 60. SECT. VI.] SALMON FALLS MANUP. CO. V. GODDARD. 589 Mr. Justice Kent who delivered the opinion of the court, enumer- ating the objections to the memorandum, says, no person can ascertain from tliis memorandum which of the parties was seller and ^\■llich buyer; and I think it would be difficult to shew that the memorandum now in question is any more intelligible in reference to this fact. Indeed I do not understand it is supposed that in the absence of all extraneous evidence it could be detenuined by the court as matter of law, ui)on an inspection of the paper alone, that Goddard was the pur- chaser of these goods. The real inquiry is whether extraneous evidence of this fact is admissible. Now it is true the statute requires only some note or memorandum in writing of the bargain ; but I consider it settled that this writing must shew who is vendor and who is purchaser. In Champion v. Plummer, 1 B. & P. New Rep. 252, the memorandum contained the name of the vendor, a description of the goods and their price, and was signed by the vendee ; yet it was held that the vendee could not maintain an action thereon, because it did not appear fi-om the writing that he Avas vendee, though it was clearly proved by j^arol. In Sherburn et al. v. Shaw, 1 N. H. Rep. 157, the plaintiffs caused certain real estate to be sold at auction, and the defendant being the no late case in wliicli one party only was bound by the agreement where equity had decreed performance, though he admitted the import of the statute to be that no agreement should be ia force but when signed by the party to be charged. He fur- ther intimated that as no man signed an agreement but under a supposition that the other itarty was bound as. well as himself, if the other party was not bound he signed it under a mistake, which might be a ground for relief in equity. Whether the plain- tiffs in the present case were boimd at law by their memorandum, or if bound whether they might liave relief in equity, are questions not before us, and concerning which we are not now to inquire. It is sufficient to say that the defendants were not bound by any note or memorandum in writing of the contract, unless the same was signed by them or their authorized agent. Huguet was in this instance their agent to make the purchiise, and any memorandum made by him respecting the purchase would operate as a memorandum made by the defendants. But the memorandum which he made was too vague and indefinite to be a compliance with the statute. The form of the memorandum cannot be material ; but it must state the contract with reasonable certaint}', so that the substance of it can be made to appear, and be understood from the writing itself without having recourse to parol proof. This is the meaning and substance of the statute, and without which the beneficial ends of it would be entirely defeated. Prec. in Cha. 560 ; 3 Atk. 503 ; 1 Vesey, jun. 333. The memorandum of Huguet is absolutely unintelligible. It has not the essentials of the contract, or memorandum of a contract. No person can ascertain from it whicli of the parties was seller and which was buyer, nor whether there was any actual sale between them, nor what specific article was the object of the sale, or in what quantity, or what was the price. A memorandum much more intelligible than this, and defective onh' in one essential point, capable of full explanation by a witness, was lately rejected by the court of C. B. in England on the same ground. Champion v. Plummer, 1 Bos. & Pul. New Kep. 252. There was then no note or memorandum in writing which took the present contract out of the Statute of Frauds, as far at least as it respected the defendants." 3 Johns. 418, 419. — Ed. 590 SALMON FALLS MANUF. CO. V. GODDARD. [CHAP. I. highest bidder signed a memorandum agreeing to take the property : this memorandum was written on a paper headed, " Articles of sale of the estate of Jonathan Warner, deceased," containing the terms of the sale ; and this paper was also signed by the auctioneex-. Yet the court, through Mr. Justice Woodbury who delivered the opin'on, held that, as the paper failed to shew that the plaintiffs were the vendors, it was radically defective. Here also there was no doubt that the plain- tiffs were the vendors, but extraneous evidence to supply this fact was considered inadmissible. It seems to me that the fact that the defendant was the purchaser is, to say the least, as necessary to be stated in the writing as any other fact, and that to allow it to be proved by parol is to violate the intent of the statute and encounter the very mischiefs which it was enacted to prevent. Chancellor Kent, 2 Com. 511, says: "The contract must however be stated with reasonable certainty, so that it can be under- stood from the writing itself without having recourse to parol proof." And this position rests upon a current of authorities both in England and America, which it is presumed are not intended to be disturbed. But how can the contract be understood from the writing itself, when that fails to state which party is vendor and which purchaser? I am aware that a latent ambiguity in a contract may be removed by extraneous evidence according to the rules of the common law ; and that such evidence is also admissible to shew what in point of fact was the subject-matter called for by the terms of a contract. Bradley V. Steam P. Co., 13 Pet. 98. So when an act has been done by a per- son, and it is doubtful whether he acted in a private or official capacity, it is allowable to prove by parol that he was an agent and acted as such. But these cases fall far short of proving that when a statute requires a contract to be in writing you may proVe by parol the fact that the defendant was purchaser, the writing being silent as to that fact ; or that a writing which does not state who is vendor and who purchaser does contain in itself the essentials of a contract of sale. It is one thing to construe what is written : it is a very different thing to supply a substantive fact not' stated in the writing. It is one thing to determine the meaning and effect of a complete and valid writ- ten contract, and it is another thing to take a writing which on its face imports no contract and make it import one by parol evidence. It is one thing to shew that a party who appears by a writing to have made a contract made it as an agent, and quite a different thing to prove by parol that he made a purchase when the writing is silent as to that fact. The duty and power of the court is a duty and power to give a •construction to what is written, and not in any case to permit it to be added to by parol. Least of all when a statute has required the essen- tial requisites of a contract of sale to be in writing, is it admissible, in my judgment, to allow the fact that the defendant made a purchase to SECT. VI.] SALMON FALLS MANUF. CO. V. GODDARD. 591 be proved by parol. If this fact, which lies at the basis of the action and to which every other is but incidental, can be proved by evidence out of the writing signed by the defendant, the statute seems to me to be disregarded. It has been argued that the bill of parcels, sent to Goddard by Mason & Lawrence and received by him, may be resorted to for the purpose of shewing he was the purchaser. But it is certainly the law of Massachusetts, where this contract was made and the case tried, as I believe it is of most other States and of England, that unless the memorandum which is signed contains a reference to some other j)aper, no paj)er not signed by the party to be charged can be connected with the memorandum or used to supply any defect therein. This was held in Morton et al. v. Dean, 13 Met. 385, a case to which I shall have occasion more fully to refer hereafter. And in conformity therewith Chancellor Kent lays down the rule in 2 Com. 511, and refers to many authorities in support of it. I am not aware that any court has held otherwise. Tha,t this bill of parcels was of itself a sufficient memorandum under the statute, or that it was a paper signed by the defendant or by any person by him thereunto lawfully authorized, I do not understand to be held by the majority of the court. Now the memorandum of the lOtli September is either sufficient or insufficient under the statute. If the former, there is no occasion to resort to the bill of parcels to shew who was vendor and who pur- chaser ; if the latter, it cannot consistently Avith the statute be made good by another paper not signed and connected M'ith it only by parol. To charge a party upon an insufficient memorandum, added to by another independent i)aper not signed, would be to charge him when there was no sufficient memorandum signed by him, and therefore in direct con- flict wdth the statute. It does not seem to me to be an answer to say that the bill of parcels was made out pursuant to the memorandum. If the signed memorandum itself does not contain the essentials of a contract of sale, and makes no reference to any other pa])er, in no legal sense is any other paper pursuant to it ; nor can any other i)aper be connected with it save by parol evidence, which the statute forbids. In point of fact it would be difficult to imagine any two independent papers more nearly connected than a memorandum made and signed by an auctioneer, and the written conditions read by him at the sale. Yet it is settled that the latter cannot be referred to, uidess expressly called for by the very terms of the signed memorandum. Upon what principle does a bill of parcels stand upon any better ground ? The distinction heretofore has been between pai)ers called for by the* memorandum by express reference, and those not thus called for : this decision, for the first time I believe, disregards that distinction, and allows an unsigned paper, not referred to, to be used in evidence to charge the purchaser. 592 SALMON FALLS MANUP. CO. V. GODDARD. [CHAP. I. In my judgment this memorandum was defective in not shewing who was vendor and who purchaser, and oral evidence to supply this defect was not admissible. But if this difficulty could be overcome, or if it had appeared on the face of the paper that Goddard was the purchaser, still in my judg- ment there is no sufficient memorandum. I take it to be clearly settled that, if the court cannot ascertain, from the paper itself or from some other paper therein referred to, the essential terms of the sale, the writing does not take the case out of the statute. This has been so often decided that it is sufficient to refer to 2 Kent's Com. 511, where many of the cases are collected. The rule stated by the Chancellor as a just deduction from the authorities is : " Unless the essential terms of the sale can be ascer- tained from the writing itself, or by a reference contained in it to something else, the' writing is not a compliance with the statute; and if the agreement be thus defective it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the Statute of Frauds and Perjuries was intended to prevent." The statute then requires the essential terms of the sale to be in writing ; the credit to be allowed to the purchaser is one of the terms of the sale. And if the memorandum shews that a credit was to be given, but does not fix its termination, it is fatally defective ; for the court cannot ascertain from the paper when a right of action accrues to the vendee, and the contract shewn by the paper is not capable of being described in a declaration. The rights of the parties in an essential particular are left undetermined by the paper. This paper shews there was to be a credit of six [twelve] months, and contains this clause : " Credit to commence when ship sails ; not after Deer. 1." According to this paper when is this credit to commence ? The answer is, when ship sails, if before December 1. What ship ? The paper is silent. This is an action against Goddard for not delivering his note on twelve months' credit, and it is an indispensable inquiry on what day, according to the contract, the note should bear date. The plaintiffs must aver in their declaration what note Goddard was bound to deliver, and the memorandum must enable the court to say that the description of the notes in the declaration is correct. They attempt this by averring in the declaration that the contract was for a note payable in twelve months from the sailing of a ship called the Crusa- der, and that this ship sailed on the 6th day of November. But the writing does not refer to the Crusader; and if oral evidence were admissible to prove that the parties referred to the Crusader, this essential term of their contract is derived from parol proof, contrary to the requirement of the statute. It was upon this ground the case of Morton et al. v. Dean, and many other similar cases, have been decided. SECT. VI.] SALMON FALLS MANDF. CO. V. GODDARD. 593 In that case there was a memorandum signed by the auctioneer as the agent of both parties, containing their names as vendor and vendee, the price to be paid, and a sufficient description of the property. But it appeared that there were written or printed conditions read at the sale, but not referred to in the memorandum, containing the terms of credit, &c., and therefore tliat the memorandum did not fix all the essential jiarts of the bargain, and it was held insufficient. But, further, even if oral evidence were admissible to shew that the parties had in view some particular vessel, and so to explain or render certain the memorandum, no such evidence was offered, and no request to leave that question of fact to the jury was made. Mason, who made the contract with Goddard, was a witness; but he does not pre- tend the parties had any particular vessel in view, still less that they asrreed on the Ci'usader as the vessel the sailino- of Avhicli was to be the commencement of the credit. I cannot perceive therefore how either of the counts in this declaration is sup]>orted by the evidence, or how a different verdict could have lawfully been rendered. The count for goods sold and delivered was clearly not maintained, because when the action was brought the credit had not exj^ired, even if it began on the 19th of September. One of the special counts avers that the notes were to be due twelve months from the 30th of Sep- tember; but this is inconsistent with the Avritten memorandum, and there is no evidence to support it. The other special counts all declare for a note due twelve months after the sailing of the Crusader ; but, as already stated, there is no evidence whatever to support this allegation, and a verdict of the jury affirming such a conti'act must have been set aside. It may be added also that no one of the j^i'^vers for instructions, contained in the bill of exceptions, makes the fact tliat the 2)arties had reference ^o the Crusader any element of the contract, but that each of them asks for an instruction upon the assum})tion that this necessary term of the contract had not been in any way sup})lied. I consider the language of Chief Justice Marshall in Grant v. Xay- lor, 4 Cranch, 234, applicable to this case. That great judge says : "Already have so many cases been taken out of the Statute of Frauds, which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule Avas intended to guard. The best judges in England have been of opinion that this relaxing construction of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that opinion." I am authorized to state that Mr. Justice Catron concurs in this opinion. VOL. I. 38 *• 594 WILLIAMS V. BACON. [CHAP. I. BENJAMIN F. WILLIAMS v. FRANCIS BACON akd Others. Supreme Judicial Court of Massachusetts, October Term, 1854. [Reported in 2 Gray, 887.] Action of contract. The declaration alleged that the defendants on or about the 1st of June, 1853, contracted to sell and deliver to the plaintiff, on hoard vessel at Philadelphia, on demand, 500 tons red ash egg and stove coal at the price of 13.70 per ton ; and 300 tons white ash coal at the following prices, namely, 100 tons white ash egg coal at $3.45 per ton, 100 tons white ash stove coal at $3.45 per ton, and 100 tons white ash lump coal at $3.60 per ton ; and that the plaintiff on the 16th of August, 1853, demanded said coal of the defendants at Philadelphia, but they then and ever since neglected and refused to deliver the same or any part thereof The defendants in their answer denied any purchase of coal by the plaintiff of the defendants, or any agreement of the defendants to deliver coal ; and also relied on the Statute of Frauds. At the trial in the Court of Common Pleas, Hale Remington, an agent residing at Fall River, of the defendants, who lived in Philadel- phia, being called as a witness for the plaintiff, testified as follows : On the 3d of Jime, 1853, he made a verbal contract with the plaintiff at Taunton ; and on the same day, at Fall River, his clerk by his order entered in his book of sales, on a page headed " Sales on account of F. Bacon & Company," the following memorandum (which was not signed) : " Sold to B. F. Williams of Taunton 500 tons egg and stove red ash ; 200 tons egg $3.70 ; 300 tons stove $3.70. Sold 2Q0 tons egg and stove white ash ; 100 lump $3.60 ; 100 egg $3.45 ; 100 stove $3.45." On the same day he wrote a letter to the defendants (which was pro- duced upon the call of the plaintiff), in which he said: "I sold this morning to B. F. Williams of Taunton, to be shipped to Dighton, Mass., as follows : $3.70 for R. A., and $3.45 for W. A. ; 300 tons R. A. stove ; 200 tons R. A. egg ; 100 tons W. A. egg; 100 tons W. A. stove ; 700 tons, all to be delivered before August 1st. You may ship it early in July, or before, if it suits better to do so." On the 11th of July he received a letter from the plaintiff, asking for " a statement of our coal engagement ; " to which he replied by the following letter : — Fall River, 11 July, 1853. Benjamin F. Williams, Esq., Taunton. Dear Sii;, — Your favor of this date is before us. In reply would say that I have agreed to sell you 200 tons red ash stove coal at $3.70 ; 300 tons red ash egg at $3.70 ; 100 tons white ash egg at $3.45 ; 100 tons white ash stove $3.45 ; SECT. VI.] WILLIAMS V. BACON. 595 100 tons white ash lump $;j.GO. The above prices to he charged deliverable on board vessel at Philadelphia. The coal is now ready for delivery, and you will please forward vessels as soon as you please, and we will put the coal on board. Our people will use all exertion to procure vessels at j(oin<; rates of freight, and I presume they will succeed. If not, you must send vessels for it. Freights are now $1.50 and $1.45 to Fall River. Coal is now worth at Philadelphia $3.85, and I think the sooner you get your coal the safer for you. Yours truly, Hale Remington. On the 8tlj of Augixst he signed and gave the plaintiif an order addressed to the defendants, and thus expressed : " Please deliver the bearer, for B. ¥. Williams of Taunton, Mass., coal as he may order it from time to time, — red ash, egg or stove, as he may choose, 500 tons; white ash, 200 tons, one-half lum}!, balance egg or stove." And there was evidence that the plaintiff on the 16th of August presented this order to the defendants, who refused to acce})t it. Upon this evidence, Hoar, J., ruled that the action could not be maintained, and directed a verdict for the defendants ; and the plaintiff alleged exceptions. M IT. JBennett, for the plaintiff. 1. Remington's letter to the plain- tiff of July 11th is a sufficient "note or nuiuorandum in writing of the bargain" to take the case out of the Statute of Frauds. Rev. Sts. c. 74, § 4. It is no objection that it was made after the contract was con- cluded, and so was only a recital of it. Gale v. Nixon, G Cow. 445 ; Ide V. Stanton, 15 Verm. 685; Jackson v. Lowe, 1 Bing. 9; Saunder- son V. Jackson, 2 Bos. & Pul. 238. 2. Remington's letter to the defendants of June 3d shews that the contract declared uj)on was in fact made by him in their behalf; and it is not necessary that the principal's name should be signed to the mem- orandum ; it is sufficient if it states the names of the Aendee and of the vendor's agent. Batturs v. Sellers, 5 Har. & Johns. 117 ; Pugh v. Chesseldine, 11 Ohio, 109; Allen v. Bennet, 3 Taunt. 169; Whiter. Proctor, 4 Taunt. 209 ; Hicks v. Hankin, 4 Esp. R. 114 ; Coles v. Treco- thick, 9 Ves. 234; Salmon Falls Manuf. Co. v. Goddard, 14 How. 454, 455. 3. The variance between the letter of July 11th and the other papers cannot avail the defendants. If they made any question which con- tained the true contract, that was a question for the jury. The oidy question here open is whether there was a memorandum of any con- tract. 2\ D. Eliot^ for the defendants. 1. The letter of July ilth is not a sufficient note or memorandum to take the case out of the statute. It was not part of the res gestce, but a statement, not under oath and made solely for the benefit of the plaintiff, of a contract as to which Remington had then ceased to be agent ; and could not therefore affect his principals. Haven v. Brown, 7 Greenl. 424 ; Fairlie v. Hastings, 10 596 WILLIAMS V. BACON. [CHAP. I. Ves. (Am. ed.) 123, and note ; Stiles v. Western Railroad, 8 Met. 46 ; Cooley V. Norton, 4 Cush. 95 ; Story on Agency, §§113, 134. 2. It does not state the parties. Long on Sales, (Rand's ed.) 54, 56. Smith, Merc. Law, (1st Am. ed.) 494 ; Addison on Con. 80 ; Champion V. Plumraer, 1 New Rep. 252 ; Klinitz v. Surry, 5 Esp. R. 267 ; Bailey V. Ogden, 3 Johns. 399 ; Sherburne v. Shaw, IN. H. 157 ; Nichols v. Johnson, 10 Conn. 192. If Remington had been agent for other par- ties in Philadelphia, this letter would have been as good against them as against the defendants. It does not purport to be signed by or in behalf of any one but Remington. It may bind him, but no one else. Bradlee v. Boston Glass Manufactory, 16 Pick. 350 ; Hawkins v. Chace, 19 Pick. 503 ; Finney v. Bedford Commercial Ins. Co., 8 Met. 350 ; Taber v. Cannon, 8 Met. 456 ; Savage v. Rix, 9 N. H. 263 ; Graves v. Boston Marine Ins. Co., 2 Cranch, 419 ; 1 Parsons on Con. 48 ; 1 Amer. Lead. Cas. (3d ed.) 602. 3. It states a different bargain from that proA^ed by Remington's testimony and the entry in his book. Thornton v. Kempster, 1 Marsh. 355 ; Sievewright v. Archibald, 17 Ad. & El. N. R. 103 ; Addison on Con. 82; Smith, Merc. Law, (1st Am. ed.) 461, 493. The bargain proved was for 200 tons e^g^ and 300 tons stove red ash, and did not define where the coal was to be delivered, thus leaving it to be deliv- ered at the seller's place of business ;• the letter says, 200 tons stove and 300 tons Qggt and makes it all " delivei*able on board vessel at Phila- delphia." The letter of Remington to the defendants omits 100 tons lump ; calls for a shipment to Dighton by the defendants ; and a delivery before the 1st of August. And the order differs from all these in stating the kind as 500 tons egg or stove, deliverable to the plaintiff " as he may order it." Merrick, J. The presiding judge ruled at the trial that the evi- dence adduced by the plaintiff was insufficient to enable him to main- tain this action, and directed a verdict, which was thereupon returned, for the defendants. To determine whether that I'uling was correct, it is necessary to keep in view the distinction between evidence of a con- tract and evidence of a compliance with the provisions of the Statute of Frauds in relation to it ; for the defendants in attempting to sustain the ruling do not now deny that the testimony of Hale Remington afforded adequate proof of a verbal contract between the jjarties, whereby the plaintiff agreed to purchase and the defendants to sell the quantity and various kinds of coal mentioned in the declaration ; but they insist that no note or memorandum in writing was ever made of it and signed by themselves or by any authorized person in their behalf. And they contend that the letter of Remington of the 11th of July, 1853, which is relied on by the plaintiff as a sufficient compliance with the provisions of the statute to give validity to the contract and make it obligatory upon them, cannot properly be allowed to have that SECT. VI.] WILLIAMS V. BACON. 597 effect ; first, becaiise it was no part of the 7'es ffe.ttcp, and constituted no part of the negotiation between the parties, and is only a narrative of a past transaction ; and, secondly, because it does not purj)ort on its face to be, and is not in fact, signed by them or by any duly authorized person in their behalf. A note or nieinoranduni in writing of an oral contract is essentially different from a written contract. The latter sui)ersedes and takes the place of all })receding negotiations, and is conclusive evidence of the stipulations and bargain between the parties. But the former may be made at any time after the parties have entered into engagements with each other by a verbal agreement. Sievewright v. Archibald, 17 Ad. & El. N. R. 107, 114. In the very nature of such transactions, the memorandum must be jiosterior in point of time to the contract of which it is the record. And it has accordingly often been determined that documents and letters, though they were all written subsequent to the conclusion of the bargain, may be coupled together, if it a})pear that they all had relation to it, for the purpose of shewing that a writ- ten memorandum of it was duly made and signed by the party to be charged. Allen v. Bennet, B Taunt. 169. The evidence produced upon the trial in the present case had a direct tendency to prove that a verbal contract for the sale of coal, as is alleged in the declaration, was made by and between the parties at Taunton, on the 3d of June, 1858. In that negotiation Remington acted for the defendants. He was their duly constituted agent, and was authorized in that capacity to sell or to contract for the sale of coal on their account. Such an agency implied the right to do what- ever act was necessary to make the engagements he entered into, in the exercise of the power it conferred u])on him, binding and obligatory upon his principals. He was therefore legally comj)etent ; and it was lawful for him, after having verbally agreed with the plaintiff for the defendants to sell him certain quantities of coal at stipulated prices, to make a wi'itten note or memorandum of the bargain, and sign it for them and in their behalf And this he might lawfully do at any time before his authority to sell, or to complete a contract of sale, was revoked or annulled. On the 11th of July he was asked by the ])lain- tiff for"a statement of our coal engagement;" to which request he replied in his letter of that date. A jury would be well warranted in inferring from the evidence in the case — and indeed we think they could justly iu'rive at no other conclusion — that the ivquest and answer both referred to the bargain which had been previously made by them oa the 3d of June at Taunton. If so, the letter was a full and com- plete memorandum of the bargain. It states explicitly the agreement to sell, the price, quantities, and description of the different kinds of coal sold, the place where it was to be delivered, and the time when the payment for it was to be made. 598 WILLIAMS V. BACON. [CHAP. I. This memorandum therefore, containing all the elements of a com- plete bargain, was sufficient to meet the requirements of the statute, if it was signed in behalf of the defendants by a person thereunto duly authorized. The letter was signed by Remington ; and he does not name his j^rincipals, or express in terms that in doing it he acts as their agent. But interpreting certain expi-essions contained in it in the light afforded by a knowledge of the situation of the parties, there can be no doubt that he wrote it, not for himself, but for them. There is nothing in the case having any tendency to shew that he ever made any such bargain on his own account, or that he ever had any such coal of his own to sell ; but it is certain that he did make such a bar- gain with the plaintiff on behalf of the defendants, and on the same day communicated to the defendants the fact that he had made it. They i-esided at Philadelphia, and the letter obviously refers to them when the plaintiff is told in it that the coal is ready for delivery at that place ; that " you will forward vessels as soon as you please, and we will put the coal on board. Our people will use all exertions to pro- cure vessels at going rates of freight, and I presume they will siicceed. If not, you must send vessels for it." These allusions could be to no persons but the defendants, who were thus distinctly pointed out as the party to be charged with the obligation of performing the contract referred to. The signature of a memorandum which is a sufficient compliance with the provisions of the statute may be made by an agent, though he write his own name instead of that of his principal, if it was his intention that the latter should be bound by it. 2 Parsons on Con. 291; Trueman v. Loder, 11 Ad. & El. 589, and 3 P. & Dav. 267 ; White v. Proctor, 4 Taunt. 209. There is a very slight variance in the statement of the terms of the contract between the letter of the 11th of July and the memorandum which Reminoton caused to be made of it on his book at Fall River. And in his letter of the 3d of June to the defendants, he omits to mention the 100 tons of lump coal which was embraced in it. But in reference to the question arising lipon the bill of exceptions, these variances are unimportant. The plaintiff made a verbal agree- ment with the defendants for the purchase of a quantity of coal. He subsequently called upon their agent for " a statement of our coal engagement;" and the letter of the 11th of July was written in answer to this application. It was sent and was received as an authentic statement of the terms and provisions of the previous bargain. It is immaterial that it does not in all particulars cori^e- spond with the items contained in the communication of Remington to his principals under date of the 3d of June, or in the memorandum which he caused to be placed on his own book at Fall River. These latter are of importance only as they serve to corroborate the other SECT. VI.] LERNED V. WANNEMACHER. 599 evidence in the case lulduced to prove that a verl)al contract had in fact been previously made by the ])arties. But having been written without the knowledge of the plaintiff, he could not have recognized what was thus stated to be true, or assented to it as correct, and of course is not to be bound by it. On the other hand, it cannot be doubted that in prej)aring and furnishing to the purchaser, at his request, a written note of the verbal contract, the agent who made it would, with a vigilant and proper regard for the rights of his prin- cipals, be careful to fall into no error in his representations. The letter which he wrote to the plaintiff j)rofessed, and pui-jjoi'ted upon its face, to recite with ])recision and accuracy the terms of the con- tract, and was received and accepted, and has ever since been relied upon, by. him as a true and correct statement of it. Both parties having thus affirmed it and assented to its correctness, the memoran- dum contained in the letter of the 11th of July must be considered as conclusive evidence of the previous verbal bargain. Exceptions sustained. THOMAS P. LERXED and Another v. CHARLES WxVN- NEMACHER and Another. Supreme Judicial Court of Massachusetts, November, 1864. [Reported in 9 Allen, 412.] Contract brought to recover damages for the failure to deliver a qiiantity of coal sold by the defendants to the plaintiffs. One ground of defence was that the contract was not binding because not executed in conformity to the Statute of Fraixds. At the trial in the Superior Court before Morton, J., the plaintiffs introduced evidence tending to shew the following ficts: Albert Betteley was authorized to sign contracts for the sale of coal in behalf of the defendants, who were commission merchants in Philadelphia under the firm of Wannemacher & Maxfield. On the 31st of March, 1863, the plaintiffs made a parol contract for the purchase of 1000 tons of coal of Betteley, as agent of the defendants, according to the terms of the Avritten memorandum hereinafter set out. The plaintiffs then signed and delivered to Betteley, as agent of the defendants, a memorandum of the contract, partly written and partly printed, as follows, the written parts being here put in italics : — Coal, when delivered on board of vessels, boats, or barges, to be in all respects at the pureliaser's risk ; bills of lading, or ofhor regular testimony 600 LERNED V. WANNEMACHER. [CHAP. I. of shipment, to be proof of such delivery, both as to time and quantity. Each cargo of coal to be settled for from time to time as delivered, in the mode specified in the contract. Captains of vessels sent by purchasers for their coal to bring written orders, and take each his regular turn in loading. All possible dispatch will be given in loading, but no claims will be allowed for demurrage, nor for the consequences of unavoidable delay. No responsibility assumed as regards procuring vessels, boats, or barges ; but every exertion will be used to engage them. Every effort will be made for the fulfilment of this contract ; but if prevented or obstructed by breaches or other unavoidable occurrences on the canals or railroads or at the mines, or by combinations, strikes, or turn-outs among miners, boatmen, or laborers, no claim for damages will be allowed. Wannemacher & Maxfield, commission merchants, Philadelphia. Boston, March 31, 1863. On the above terms and conditions, please deliver on board at your wharves at Philadelphia, to be shipped to Camhridgeport, 10 feet of water, 7 bridges, 1000 tons . . . Sivatara ; 800 Stove, 200 Egg ; Swatara $4.50. Terms cash, or approved paper at interest added from date of bill of lading or other proof of shipment ; United States tax to be added. We will send our own vessels. After Ji7-st cargo is shipped, the purchaser has the right to refuse the balance if not satisfactory. T. P. Lerned & Son. At the same time Betteley signed the name of " Wannemacher & Maxfield, by Albert Betteley " to a memorandum precisely similar to the above in every respect, except that the name of the plaintiffs was not signed to it, and delivered the same to the plaintiffs. Two or three weeks afterwards Betteley, as agent of the defendants, wrote upon the back of the memorandum delivered to him by the plaintiffs these words : " To be shipped immediately, if vessels are not sent ; " and the plaintiffs signed the same, and redelivered the memorandum to him. Both of the above papers were put in evidence by the plain- tiffs, the one signed by them being produced by the defendants on notice. The price of coal subsequently increased in the market, and the defendants refused to deliver the said lOOO tons. Upon the introduction of this evidence the judge ruled that the action could not be maintained, and a verdict was accordingly taken for the defendants. The plaintiffs alleged exceptions. G. A. /Somerbij, for the plaintiffs, besides cases cited in the opinion, cited Brettel v. Williams, 4 Welsh., Hurlst. & Gord. 623 ; Jackson v. Lowe, 1 Bing. 9 ; Johnson v. Dodgson, 2 M, & W. 653 ; Tallman v. Franklin, 14 N. Y. 584. C. A. Welch, for the defendants. There was no sufficient memo- randum of the contract in writing signed by the defendants or their agent. The paper signed by Betteley is not and does not profess to be a memorandum of a bargain. The name of the plaintiffs is not contained in it; there is no request to deliver to any person in particular ; and there is no promise. The paper signed by the plain- tiffs is simply a request by them : there is no acceptance by the SECT. VI.] LERNED V. WANNEMACHER. 601 defendants, and consequently no contract. The two papers cannot be taken together, because neither refers to the other: they do not harmonize in substance or forai ; and they cannot be connected by parol. See Morton v. Dean, 13 Met. 385 ; Kenworthy v. Schofield, 2 B. & C. 945 ; Salmon Falls Manuf. Co. v. Goddard, 14 How. 461 ; First Baptist Church v. Bigelow, 16 Wend. 28 ; Talman v. Franklin, 3 Duer R. 395 ; O'Donnell v. Leeman, 43 Maine, 158. Even if the two papers can be taken together and harmonized by corrections, they make no sufficient memorandum of a contract. They shew no assent or agi-eement on the part of the defendants. The fact of there having been any bargain on their part rests entirely in ])arol, and this is what the statute seeks to avoid. Osborn v. Phelj)S, 19 Conn. 63, 73 ; Bailey v. Ogden, 3 Johns. 399, 400, 418. Besides, even if there were a sufficient memorandum, the contract shewn thereby was subsequently changed by a paper signed by the plaintiffs only, which constituted a new contract, capable of being enforced against the plaintiffs, but not against the defendants. Hoar, J. The ruling to which exce])tions were taken at the trial was this : that the i)laintiffs could not maintain their action upon the contract set forth in the declaration, because it was a contract for the sale of merchandise for the price of more than fifty dollars, and there was no acceptance of any part of the goods, or giving any thing in earnest to bind the bargain or part i)ayment, and no sufficient note or memorandum in writing of the bargain made and signed l>y the defendants or by any person thereunto by them lawfully authorized. Gen. Sts; c. 105, § 5. And the question before us is of the sufficiency of the memorandum produced. The first objection is that neither the memorandum signed by the purchasers and delivered to the sellers, nor the counterpart signed by the sellers and delivered to the ])urchasers, contains in itself a com- plete statement of the bargain ; that there is nothing in the papers themselves by which they can be connected, and it is not sufficient to connect them by j^arol ; and that if connected, they are only orders, and do not amount to a contract. On examining the meniorandum retained by the sellers, which is signed by the plaintiffs, we think it is a complete memorandum of the bargain proved, and would undoubtedly have been sufficient in an action by the defendants against the plaintiffs. It must be observed that the contract itself, and the memorandum which is necessary to its validity under the Statute of Frauds, are in their nature distinct things. The statute presu])poses a contract by i)arol. Marsh v. Hyde, 3 Gray, 333. The contract may be made at one time, and the note or memo- randum of it at a subsequent time. The contract may be proved by parol, and the memorandum may be sup])lied by documents and letters written at various times, if they all a])i)ear to have relation to it, and 602 LERNED V. WANNEMACHER. [CHAP. I. if coupled together they contain by statement or reference all the essential parts of the bargain, signed by the party to be charged or his agent. Williams v. Bacon, 2 Gray, 387. Now it was proved by parol testimony that the contract declared on was made orally by the defend- ants, through their agent, with the plaintiff; and that the memorandum was delivered to the defendants by the plaintiffs as a statement of the terms of the bargain. In the printed part it is spoken of as " this con- tract " and " the contract." It recites that " every effort wdll be made for the fulfilment of this contract." It then contains a request to the defendants to deliver the coal " on the above terms and conditions " "at your wharves at Philadelphia," — the defendants' place of business, "to be shipped to Cambridgeport," — the plaintiffs' place of business. The quantity, price, and terms of payment are then stated. It says, " We will send our own vessels," an agreement to receive ; and con- cludes with an option to " the purchaser " to refuse all but the first cargo if that is not satisfactory. That there is a contract, — a seller, a purchaser, a thing sold, a price, a place of deliA'ery, and terms of pay- ment, — all sufficiently appear. It is true that part of the paper is in form an order ; but we can have no doubt that, taking the Avhole together, it shews an agreement to purchase. As was said by Mansfield, C. J., in Allen v. Bennet, 3 Taunt. 169 : " The defendant's counsel dis- tinguishes between an order and an agreement to buy ; but if I go to a shop and order goods, do I not agree to buy them ? " The only defect then is the want of the signature of the defendants or that of their authorized agent. If this had been the only paper executed, it would deserve serious consideration whether, if shewn to have been made as a memorandum of a bargain concluded between the parties, delivered as such by the plaintiffs and accepted as sucli by the agent of the defendants, the printed name of the defendants would not have been sufficient, upon the authorities, to answer the require- ments of the statute as a signature by them. Saunderson v. Jackson, 3 Esp. R. 180; s. c. 2 B. & P. 238. But we do not put the case on this ground, because the counterpart of the contract delivered by the defendants to the plaintiffs is signed by them through their agent Betteley. As a sei»arate paper, that is in its turn defective by reason of not containing the name of the purchaser. But the two papers were prepared at one time, and delivered simultaneously as parts of the same transaction. The one produced by the plaintiffs is signed so as to chai-ge the defendants. They gave to the defendants one by which they were themselves bound. The two shew clearly, when construed by their own language as applied to the existing circumstances, which party was the seller and which the jDurchaser. And we can see no reason upon principle or authority why they should not have the same effect as if both the signatures were to the same paper. The intrinsic evidence which they afford that they refer to the same transaction is SECT. Vr.] LERNED V. WANNEMACHER. 603 very strong and competent for the consirleration of a jury ; and in the absence of all proof that a precisely similar contract was made by either party with any other i)erson, Avould be extremely cogent. The case does not much resemble any of those cited for the defend- ants, in which the doctrine has been stated that when the memorandum is made out from several pajjers they must be shewn upon their face to have a mutual relation to each other; and tliat this relation cannot be established by extrinsic evidence. This is the rule of the text-books (2 Kent's Com. 6th ed., 511 ; Browne on Statute of Frauds, § 350) ; and its general correctness is well settled. Morton v. Dean, 13 Met. 385. Most of the cases to which we have been referred have been those of sales at auction, whore the conditions of sale were not con- tained in or annexed to the memorandum which was signed. Here the whole terms and conditions of the l)argain are stated alike in the two copies of the memorandum, one of which is signed by each party. There are however two specific objections which deserve attention. In each jjaper the statement is made, " We will send our own vessels ;" and as they are signed, one by the plaintiffs and the other by the defendants, it is urged that the meaning of the word "we" becomes uncertain, or that the two parts of the memorandum are made contra- dictory. Beside this, one part of the contract was altered by the addi- tional agreement written by the defendants' agent and signed by the plaintiffs, " to be shipped immediately, if vessels are not sent;" and no corresponding alteration has been signed by the defendants. The first difiiculty seems to be capable of a satisfactory solution. The printed part of the memorandum clearly contemplates that the shipment of the coal is to be made in vessels to be furnished by the vendors, although they assumed no responsibility about the vessels except reasonable diligence in procuring them. The insertion of the written clause, " We will send our own vessels," could only be explained as importing a change in this respect. In the part of the contract signed by the plaintifis, "we" would mean the purchaser. In the other part the phrase follows the expression " your wharves," when speaking of the wharves of the defendants; and "we" is thus used in contradistinction from " you," the vendors. The agent of the vendors signs the paper; but still, if not with perfect grammatical correctness of expression, it is sutficiently obvious that in using the word "we" he means the purchasers. The additional clause written upon the part of the memorandum retained by the defendants presents a more difiicult question, though it shews very clearly who were meant by "we" in the part of the con- tract just considered. But it is obvious that it was not meant to impair the contract which had been made. It is an additional stijtula- tion to take effect upon a contingency which has not haj)pened. The evidence shewed that vessels were sent by the })laintifts. And if the 604 SANBORN V. FLAGLER. [CHAP. I. contingency had happened, it was only the substitution of a new mode of ])erformance of which the defendants or phiintiffs might have availed themselves, even if made only by parol. Cummings v. Arnold, 3 Met. 486 ; Stearns v. Hall, 9 Cush. 31. If it were not binding on the defendants because no memorandum of it was signed by them, it could not prevent the plaintiifs from enforcing the original contract. It is obviously inadmissible for the defendants to set it up as changing the contract as evidenced by the completed memorandum, and at the same time to deny its obligation for want of their own signature. It was held by the English Court of Exchequer in the recent case of Bluck V. Gompertz, 7 Welsh., Hurlst. & Gord. 862, that where a correc- tion was made upon the memorandum of a contract by the defendant, and signed only by the plaintiff, the original signature of the defendant was a sufficient signing under the statute. That decision would be applicable to the present case if the memorandum had been contained in one paper, or if the indorsement had been made upon the part con- taining the signature of the defendants' agent. It is more doubtful whether it can be held to have the same effect where the memorandum is contained on separate papers, and we do not put the decision on that ground. The other grounds of exception taken at the trial have not been insisted on by the jjlaintiff 's counsel, and are clearly untenable. JEkcceptions sustained.^ S. T. SANBORN and Another v. JOHN H. FLAGLER. Supreme Judicial Court of Massachusetts, November, 1864. [Reported in 9 Allen, 474.] Contract brought originally by the plaintiffs, who were partners under the firm of Sanborn, Richardson, & Co., against John H. Flagler and Holdane, as partners under the firm of Holdane & Co. The writ was served only upon Flagler, and he alone appeared to defend the action. The plaintiffs alleged that the defendants had refused to deliver to them fifty tons of best refined iron, in accordance with the terms of a written agreement entered into between them. The defendant in his answer set up among other defences the Statute of Frauds. At the trial in the Superior Court before Morton, J., Josiah B. Richardson, one of the plaintiffs, was called to the stand and produced 1 See Rhoades v. Castner, 12 Allen, 130. — Ed. SECT. VI.] SANBORN V. FLAGLER. 605 to be oifored in evidence a paper, of which the following is a copy as near as can be made : — Will deliver S. R. & Co. best refined iron 50 tons within 90 days — at 5 ct p lb 4 of cash. Plates to be 10 to 16 inches wide and 9 ft to 11 long. This oflFer good till 2 o'clock Sept. 11, 1862. J. H. F. J. B. R. The witness was proceeding to testify in relation to the execution and delivery of the same, when the defendant objected that the paper was not on its face or in fact any siifticient note or memorandum in writing of the alleged bargain signed by the party to be charged, and that parol evidence was not admissible to add to, modify, or explain the paper so as to make it such a memorandum as could be admitted. But the judge ruled that the paper w^as a sufficient note or memoran- dum under the statute, and would bind the defendant if he was a member of the firm of Holdane & Co. The witness then testified that the agreement was Avritten by him, and that he and the defendant signed their initials, the defendant writing the initials " J. II. F.," and he the initials " J. B. R.," and that before two o'clock on the day named, and before the defendant left the plaintiffs' office, he accepted the prop- osition, and so stated to the defendant verbally. The witness also testified that he signed his initials on behalf of the plaintiffs, and tliat he understood the defendant to sign for the firm of Holdane & Co. This evidence was not controverted by the defendant. The judge ruled that said paper with the explanation given, if Richardson was believed, was a sufficient note or memorandum, and was binding on the defendant if the jury found him to be a partner as alleged. The jury found a verdict for the plaintiffs, and the defendant alleged exceptions. C. T. Russell, for the defendant, cited Abeel v. Radcliff", 13 Johns. 297 ; Goss v. Nugent, 5 B. & Ad. 58 ; Watenuan v. Meigs, 4 Cush. 497 ; Champion v. Plummer, 1 New R. 252 ; Sherburne v. Shaw, 1 N. H. 157; Webster v. Ela, 5 N. H. 540; Bailey v. Ogdens, 3 Johns. 419 ; Nichols v. Johnson, 10 Conn. 192 ; Morton v. Dean, 13 Met. 385 ; Brown v. Parker, 7 Allen, 337 ; Shaw v. Finney, 13 Met. 453 ; Sylvester v. Smith, 9 Mass. 119 ; Pentz v. Stanton, 10 Wend. 275 ; Colly, on Part. § 414 A. A. Banney, for the plaintiffs. BiGELOW, C. J. The note or memorandum on which the plaintiflTs rely to maintain their action contains all the requisites essential to constitute a binding contract within the Statute of Frauds. It is not denied by the defendant that a verbal acceptance of a written offer to sell merchandise is sufficient to constitute a complete and obligatoiy agreement, on which to charge the person by whom it is signed. In 606 SANBORN V. FLAGLER. [CHAP. I. such case, if the memorandum is otherwise sufficient when it is assented to by him to wdioni the proposal has been made, the con- tract is consummated by the meeting of the minds of the two parties, and the evidence necessary to render it valid and capable of enforce- ment is supplied by the signature of the party sought to be charged to the offer to sell. Indeed, the rule being well settled that the signature of the defendant only is necessary to make a binding con- tract within the provisions of the statute relating to the sales of mer- chandise, it necessarily follows that an oifer to sell and an express agreement to sell stand on the same footing, inasmuch as the latter, until it is accepted by the other party, is in effect nothing more than a proposition to sell on the terms indicated. The acceptance of the contract by the party seeking to enforce it may always be proved by evidence aliunde. The objections on which the defendants rely are twofold. The first is that the note or memorandum '^ \ J^ In the Privy Council, February 26 and March 20, 1858.i ppeal from the Court of Error and Appeal of Upper Canada. [Reported in 11 Moore's Privy Council Cases, 551.] This was an action brought by the respondent against the appel- lant in the Court of Common Pleas at Toronto, in Upper Canada, to \ 1 Present : The Eight Hon. T. Pemberton Leigh, the Eight Hon. Sir Edward r^ Kyan, tli,e Eight Hon. Sir John Dodson, and the Eight Hon. Sir Cresswell Cresswell. SECT. I.] GILMOUR V. SUPPLE. 625 recover the sura of £2,307 Is. 7d., the price of 71,445 feet of timber, at 7^d. per foot. The declaration contained a special count and indebitatus counts. The special count alleged that, in consideration that the respondent would sell and deliver to the ap})ellant a raft of timber, then at Ca- rouge, at l^d. per foot, and deliver it at Indian Cove Booms, the appel- lant promised to pay for the raft one-third in cash, one-third in sixty days, and one-third in ninety days after delivery. The count then alleged a delivery of the raft of timber to the appellant at the appointed place, but that the appellant had not paid the price. The indebitatus counts comprised a claim for the price of goods sold and delivered. The appellant pleaded the general issue to the whole declaration ; and a plea traversing the delivery of the raft, as alleged in the first count. The action was tried at the Ottawa Spring Assizes, 1855, before Mr. Justice Richards. The following facts appeared in the evidence upon the trial : On the 20th of October, 1856, the respondent was possessed of a raft of timber then at Carouge, a place on the river St. Lawrence, about eight or nine miles higher up the river than the Indian Cove. The Indian Cove Avas a cove on the river where the appellant occupied certain wharves, and certain parts of the river adjoining, enclosed by booms, for receiving and securing rafts of timber. Shortly before that day the respondent had caused the pieces of timber forming the raft to be measured by an oflBcer called the supervisor of cullers, appointed under the Canadian Act, 8th & 9th Vict., c. 49, and the number of pieces and the contents of each piece was by the supervisor set down in specifications thereof. By these specifications it appeared that the raft contained 1,977 pieces of white pine and 104 pieces of red pine, measuring 71,445 feet of timber. On the 28th of October, 1856, the respondent sold the raft to the appellant and his partners, John Gilmour and David Gilmour, trading under the firm of Allan Gilmour & Co., and the following memorandum of the bargain was signed by the parties : — Sold Allan Gilmour & Co., a raft of timbernow at Carouge, containing white and red pine, the quantity about 71,000 feet, to be delivered at Indian Cove Booms. Price for the whole, l\d. per foot. Payments, one-third cash, one- third sixty, and ninety days after date. John Supple, A. G. & Co. Quebec, 28th of October, 1856. At the same time, the specification made^ by the supervisor was de- livered by the respondent to the appellant. On the 24th of that month the raft was taken out of the booms at Carouge, and by steamer towed down the river to the Indian Cove Booms, where it arrived between four and five o'clock of the same day. It was about high- water when the raft was taken out of the booms at Carouge^ being 626 GILMOUR V. SUPPLE. CHAP. II. the i;sual and proper time for the purpose. On the arrival of the steamer with the raft opposite to the appellant's booms, called the Indian Cove Booms, the steamer was about to put the raft in at the upper end of one of the appellant's wharves, called the Long Wharf; but in pursuance of the direction of a j^erson named Welch, who was the appellant's foreman at the booms, the raft was placed at the lower end of the wharf, and was made fast to the booms there by the crew of the steamer and a man in the emj^loy of the respondent named McCrea, who had accompanied the raft to the Indian Cove Booms. McCrea immediately went to the appellant's agent there, who prom- ised to order Welch, the foreman at the booms, to take charge of the raft. After some delay, Welch, accompanied by McCrea, went to the raft, taking with him four men and some ropes and chains, and with these ropes and chains he fastened the raft to the booms. Welch stated that, on account of the wet and the state of the tide, he could not then get the raft into the booms, but that he would do so in the course of the night. At that time the weather was fine, and no danger was aj^prehended. During the night a storm arose, and Welch endeav- ored by means of an anchor and chain cable to secure the raft, which had never been taken within the booms; but* notwithstanding this, and great exertions made by Welch, the raft was carried away by the storm, and the chief part of it was lost ; but some pieces of the raft were scattered on the banks of the river. On the following days the appellant sent his men to collect as much of the wood as was saved, and this was put into the booms. Conflicting evidence was given by the appellant's witnesses and by the i-espondent's witnesses in reply, as to what constituted a receipt of a raft of timber at booms, and as to whether the raft in question ar- rived in reasonable time to be received by the buyer. From the evi- dence of the usage, it appeared that when a raft is sold to be delivered at booms, the seller delivers the raft outside the booms, and the buyer is at the expense of taking the raft within the booms ; that where a specification is made out by the supervisor, showing the quantities of wood the seller sells by the specification, which is handed to the buyer, and when the raft has arrived at the booms, the buyer usually checks the number of j^ieces by the specification, which the witnesses gener- ally described as " like checking an invoice " of goods ; that checking the specification was sometimes done within and sometimes without the booms ; and that generally the buyer contented himself with averaging the measurement ; but when there was a deficiency in the number of pieces or measurement, a deduction was made from the price accordingly. The judge, in his charge to the jury, said, that the question in the end must be decided as a fact by the jury, whether there was a deliv- ery to the appellant of the raft or not ; that if they were satisfied there SECT. I.] GILMOUR V. SUPPLE. 627 was an actual taking possession by the appellant or his servants, then that the respondent was entitled to recover. That, as to the usage of the trade, it did not appear to him that there had been any very clear settled usage shown, except that delivery at a boom, meant delivery out- side of the boom. The fact of the time being reasonable for the deliv- ery, the calmness of the day and night at the time of the arrival there, any want of notice to the appellant's servant of objection to receive it then, and the mode of securing, were all facts to go to the jury, to be considered by them in coming to their conclusion. That the facts stated by appellant's servants as to their conduct, what they did and said, the unreasonableness of the hour, the state of the tide, and the impossibility of ascertaining the quantity of the timber, were all facts to be considered as showing that appellant's servants did not receive the raft. And he told the jury that if there was an actual delivery to the appellant's servants, and taking possession by them, the respon- dent was entitled to a verdict ; but if the securing the raft by them was to assist in preserving the property merely as the property of the respondent, not considering that they were taking possession of it for their master, then their acts in that respect ought not to be considered as evidence of acceptance. If the fastening of the raft by the appel- lant's servants was with a view of keeping it for their employers to secure it, to take into the boom when the tide rose, then that was evidence of its being received. That there could be no fair pretence for keeping the raft outside the booms to measure it, as the raft had been measured at Carouge, and that the specifications, which were prima fcicie evidence of its contents, were in the hands of the appel- lant ; that the fact of the appellant's servants collecting the floating timber after the loss, was evidence to be taken into consideration, whether the raft had been delivered and accepted by the appellant. The whole evidence went to the jury, and they found that the raft had been delivered to and received by the appellant, and a verdict was entered for the respondent with £2,307 Is. Id. damages. In the following term a rule nisi was obtained to set aside the ver- dict and enter a nonsuit, pursuant to leave reserved at the trial, or for a new trial, on the ground that the verdict was against law and evi- dence, and for misdirection of the judge, the reception of improper evidence, and the rejection of admissible evidence ; and because the verdict was perverse and against evidence. In Trinity Term, 1855, the Court of Common Pleas, after argument, gave judgment, dis- charging the rule. The appellant appealed from that judgment to the Court of Error and Appeal at Toronto in Upper Canada. The grounds of appeal were : First, that there could be no delivery or acceptance of the property sold, sufticient to sustain the action, whilst any thing remained to be done in order to ascertain the quan- 628 GILMOUR V. SUPPLE. [CHAP. II. tity or price. That according to the terms of the contract and the evidence, it was necessary that there should have been a counting or examination of the contents of the raft, after its arrival at the appel- lant's booms, before there could have been such a delivery or accep- tance as the respondent required to prove ; and that, such counting or examination never having taken place, there was no delivery or accep- tance ; and the appellant submitted that the respondent failed in his action. Second, that the misdirection complained of was on the fol- lowing points : in telling the jury that the conduct of the appellant's partners after the accident, in causing part of the wrecked timber to be collected, and otherwise dealing with the property, was a fact which was open to them to consider, in common with all the other facts of the case, as evidence of an admission that the appellant and his part- ners considered themselves responsible for the loss ; the appellant sub- mitting that no such inference could be legally drawn from such a fact. The appellant ftirther alleged, that the judge misdirected the jury in telling them that the culler's specifications were prmid facie evidence of the exact contents of the raft, so as to dispense with the necessity for the appellant's having any opportunity to ascertain such contents. The appellant submitted that the specifications were in themselves no evidence against him and in no way binding upon him. Tliird, that the reception of improper evidence objected to by the appellant, consisted in allowing admissions and offers of compromise, stated by a witness (Hamilton) to have been made without prejudice and with a view to an amicable settlement, to go to the jury as evidence against the appellant. The admissible evidence tendered by the appellant and rejected at the trial, was the declaration or statement made by the deceased watchman. Kief, to White in the ordinary course of his duty, as to the statements of the respondent's raftsman, McCrea, at the time of the accident. That McCrea's statements were material evi- dence, formed part of the res ^esto, and the watchman's report to his superior of those statements was admissible evidence. Fourth, the appellant submitted that the verdict was perverse and against the weight of evidence ; that the plaintiff's case rested wholly on the evi- dence of the witness McCrea, who alone proved any thing sufiicient to constitute a delivery of the raft ; and that his evidence was contra- dicted by all the witnesses of the appellant, five or six in number, and according to their evidence there was no delivery, direct or indirect. The respondent contended, in his answer to the grounds of appeal, that the verdict was right, and the judgment of the court discharging the appellant's rule correct ; that there was legal proof of a delivery and acceptance by the appellant, or of either a delivery or an accep- tance sufiicient in law; that the contract of sale was complete, and that the property in the timber had passed to the appellant before the loss ; that nothing remained to be done in the way of counting or SECT. I.] GILMOUR V. SUPPLE. 629 ascertaining the quantity contained in the raft to prevent the property passinor or to leave the risk in the respondent ; and that there was no substantial misdirection at the trial, nor rejection of legal or admission of illegal evidence. The judgment of the Court of Common Pleas was affinned by the Court of Error and Appeal, on the 5th of March, 1856, and the appeal dismissed Avith costs. Against this judgment the appellant brought the present appeal. The Attorney-General (Sir Fitz-Eoy Kelly), Mr. Wilde,,Ql. C, and Mr. W. Murray, for the appellant. The judge at the trial ought to have explained to the jury the legal rights of the parties under the contract ; that the fact of the timber having to be measured, the property did not in law vest in the appel- lant, in order that they might put a proper construction upon the acts and conduct of the parties. We submit that in law the verdict should have been entered for the appellant. The measurement of the raft at the place of delivery was an act to be done by the seller before the price could be ascertained, and was a condition precedent to the abso- lute vesting of the property in the appellant. Logan v. Le Mesurier ' is identical with the present case.- . . . That case falls within the piin- ciple laid down in Simmons v. Swift.^ There 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 day sjiecified, and a part was weighed and delivered to him. In such circumstances, the Court of King's Bench held that the property in the residue did not vest in the purchaser until it was weighed. [Sir Cresswell Cress- well : In that case, Littledale, J.,* doubted Avhether the property did not pass by the contract, and that doubt he thought was not incon- sistent with Hanson v. Meyer.^] In Hanson v. Meyer, it was part of the contract that the starch should be weighed by the vendor before delivery, and it was determined by the Court that the absolute prop- erty did not vest in the purchaser till it was weighed. The cases of Rugg V. Minett,*' Wallace v. Breeds,'^ Austen v. Craven,* Acraman v Morrice,^ Shepley v. Davis,^" Busk v. Davis," and Godts v. Rose,^'- show that where any thing remains to be done by the seller, until he has (Jone it the property does not pass to the purchaser. No opportunity was given the appellant of checking the specifications or measure- ment of the timber which the contract provided. The fact of a pub- lic officer under the Canadian Act, 8th & 9th Vict. c. 49, having at the 1 6 Moore's P. C. Cases, 116. 2 The learned counsel here stated the case cited. — Ed. 3 5 Bar. & Cr. 857. * 5 Bar. & Cr. 864. » 6 East, 614. 6 11 East, 210. 1 13 East, 522. 8 4 Taunt. 644. 9 8 Com. Ben. Rep. 449. '" 5 Taunt. 617. 11 2 Mau. & Sel. 397. ^'- 17 Com. Ben. Rep. 229. VOL. I. 41 s> 630 GILMODR V. SUPPLE. [CHAP. II. respondent's instance measiai-ed the timber, cannot affect the appellant's right to have the same measured by himself. He was not bound by the specifications as to the quantity. There was no evidence that the performance of this necessary act had been waived by the appellant, or of any authority from the buyer to his servants to accept the raft without measurement. Again, the seller had a lien on the timber until the cash Avas paid and the bills given, and it nowhere appears in the evidence that he authorized his servant to or intended to abandon such lien. The right of property in the raft at the time of the stoim, was, therefore, still in the respondent, and the loss which happened was at his risk. There was no delivery to the appellant, Startup v. Macdonald.^ Mr. Hugh Hill, Q. C, and Mr. Unthank, for the respondent. The sale of the raft was complete ; the quantity of the timber in it had already been ascertained, and nothing remained in the respondent but to deliver the raft at the Indian Cove Booms, and upon delivery the property immediately vested in the appellant. Nothing 'more re- mained to be done by the seller, the transaction was perfect upon the ascertainment of the quantity of the timber and delivery to the appel- lant. Tansley v. Turner,^ Rohde v. Thwaites,^ Swanwick v. Sothern,* Alexander v. Gardner.^ The case of Logan v. Le Mesui-ier,^ relied upon by the appellant, differs materially from the present. There the raft of timber was by the contract to be measured off on its arrival at the boom. Here it was measured off before the sale, and its quantity known. Whether there was a delivery or not, was a question for the jury, and the judge who tried the case below properly submitted that question to them, and they found that there had been a delivery to the appellant. The collection of the pieces of timber by and at the expense of the appellant's firm was an important fact in the case, as it tended to shew that the appellant and his partners regarded the raft as deliv- ered to them, and as having become their property. The consideration of the judgment was reserved, and now delivered The Right Hon. Sir Ceesswell Cresswell. This action was origin- ally brought in the Court of Common Pleas by the respondent against the appellant. The first count of the declaration alleged that in coif- sideration that the plaintiff would sell and deliver to the defendant a raft of timber then lying at Carouge, containing about 71,000 feet, and deliver the same at Indian Cove Booms, at the price of 7|c?. per foot, amounting to £2,307 Is. Id., the defendant undertook to pay for the same, one-third in cash, one-third at sixty days, and one-third at ninety days from the delivery. Averment of delivery at Indian Cove Booms, 1 6 Man. & Gr. 593. 2 2 Bingh N. C. 151. 3 6 Bar. & Cr. 388. * 9 Ad. & Ell. 895. 6 1 Bingh. N. C. 671. 6 6 Moore's P. C. Cases, 116. SECT. I.] GILMOUR V. SUPPLE. 631 and non-payment. Count for goods sold and delivered. Plea, non assumpsit. Secondly, to the first count, that the plaintiff did not de- liver the raft. At the trial the plaintiff gave in evidence that he was possessed of a raft of timber lying at Carouge, and that on the 20th of October, 1853, he entered into a contract in writing with the defendant in these words : — Sold Allan Gilmour & Co., a raft of timber now at Carouge, containing white and red pine, the quantity about 71,00U feet, to be delivered at Indian Cove Booms ; price for the whole, lid. per foot ; payments one-third cash, sixty and ninety days' date. John Supple. Quebec, 20th October, 1853. A. G. & Co. The contract was written by defendant, and signed by him " A. G. & Co.," and by plaintiff, "John Supple." He also proved that before the contract was made the raft had been measured for him by an ofiicer aj^pointed under a Canadian act, by whom a specification was made out, shewing the contents of each log, and making a total of 71,443 feet. That specification was given by the plaintiff to the defendant before the contract was made ; he therefore knew what quantity of timber the seller would charge him with, notwithstanding the fonri of the written contract, which left it unascertained. The defendant re- tained the specification, and sent it over to Indian Cove, where he had booms and an establishment for receiving and storing timber. The evidence shewed it to be usual for purchasers of rafts sometimes before, sometimes after, they were placed within the booms, to check over the logs received with the specification previously delivered, to see that they corresponded with it ; but there was no evidence of its being usual to measure the contents of each log to ascertain the num- ber of feet contained in it. It was also proved that delivery at a boom meant delivery outside the boom. The raft was towed down the river from Carouge, or Cap Rouge, to Indian Cove (about eight miles) by a steamboat, employed by the plaintiff; one of his men went with it, and when at Indian Cove gave notice to the defendant's servants there that it had arrived, and they together fastened it outside the booms. There was conflicting evi- dence as to whether possession of the raft was given up by the jilain- tiff's servant, and taken by the defendant's. In the night a storm arose, the raft was broken up and dispersed, and a great portion of it lost. The judge told the jury that if there was an actual delivery to the defendant's servants, and taking possession by them, the plaintift' was entitled to recover, but that otherwise they should find for the defend- ant. The jury found for the plaintiff. The defendant moved, in pur- suance of leave reserved for a nonsuit, or verdict for defendant, on the 632 GILMOUR V. SUPPLE. [CHAP. II. ground that there could be no deUvery or acceptance of the property- sold sufficient to sustain the action, while any thing remained to be done in order to ascertain the quantity or price ; that, according to the terms of the contract and the evidence, it was necessary that there should have been a counting or examination of the contents of the raft after its arrival at the defendant's booms, before there could have been such a delivery or acceptance as the plaintiiF was required to prove, and that, such counting or examination never having taken place, there was no delivery or acceptance. It was also contended that the verdict was against evidence; but it is not now necessary to consider that question, it being admitted that if the property was changed the ver- dict must stand. A rule to show cause was granted, and after argu- ment discharged. The defendant then appealed to the Court of Error and Appeal, but the judgment of the Court of Common Pleas was affirmed, and the appeal dismissed. From that judgment the defendant appealed to Her Majesty in Council ; and here, as in the Canadian courts, it was con- tended that, by virtue of this contract and the acts done in pursuance of it, the property in the raft did not vest in the defendant, but was still in the seller and at his risk when the loss happened. It is impossible to examine the decisions on this subject without being struck by the ingenuity with which sellers have contended that the property in goods contracted for had or had not become vested in the buyers, according as it suited their interest, and buyers or their representatives have, with equal ingenuity, endeavored to show that they had or had not acquired the property in that for which they con- tracted; and judges have not unnaturally appeared anxious to find reasons for giving a judgment which seemed to them most consistent with natural justice. Under such circumstances, it cannot occasion much surprise if some of the numerous reported decisions have been made to depend upon very nice and subtle distinctions, and if some of them should not appear altogether reconcilable with each other. Never- theless, we think that in all of them certain rules and principles have been recognized, by the application of which to this case we may be enabled to arrive at a correct judgment upon it. By the law of England, by a contract for the sale of specific ascei-- ttained goods the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties. Various circumstances have been treated by our courts as sufficiently indicating such contrary intention. If it appears that the seller is to do something to the goods sold on his own behalf^ the property will not be changed until he has done it, or waived his right to do it. The case of Hanson v. Meyer (6 East, 614), one of the earliest re- ported on this subject, furnishes an instance of this kind. Meyer had SECT. I.] GILMOUR V. SUPPLE. 633 a quantity of starch, weight unknowii, lying in the warehouse of a third person. A broker employed by a person named Wallace pur- chased the whole of the starch of Meyer, more or less, whatever it was, at £6 per cwt.; it was in papers; the weight was to be afterwards ascer- tained at the price aforesaid. The mode of delivery in such cases was stated to be as follows : " The seller gives the buyer a note addressed to the warehouse-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." Such a note Avas given, and on two several days the warehouse-keeper in jiursuance of it weighed and delivered 21 cwt. 1 qr. 6 lb. and 15 cwt. 1 qr. 4 lb. Before the residue had been weighed or delivered, Wallace became bankrupt, and Meyer then took it away from the warehouse, and the assignees of Wallace sued him in trover for it. The court held that they could not recover, for that the particular terms of the contract made weighing a condition precedent to the absolute vesting of the property, and that the seller did not, by weighing and delivering part, waive the preliminary act of weighing in respect of any part of the commodity contracted for. The only authority given to the warehouse- keeper was to weigh and deliver, and unless he weighed he had no authority to deliver. But it would seem that if the warehouse-keeper had been authorized to deliver without weighing, and possession had, under that authority, been given to the purchaser, the property would have vested absolutely in him, and the seller would have waived his right to weigh before delivery. Another rule may be extracted from the case of Rugg v. Minett, 11 East, 210, namely, that where the seller is to do some act for the bene- fit of the buyer, to place the goods sold in a state to be delivered, until he has done it the property does not pass. In this case it was for the interest of the seller to contend that it did pass. The circumstances were as follow : A quantity of turpentine in casks was sold by auction for the defendant, in whose warehouse it was lying. The casks were marked as of a certain weight, and it was agreed that they should be taken at that weight ; but it was further agreed that they should be filled up by the seller. The plaintiff bought thirty casks, and paid money on account. Twenty casks were afterwards filled up by the warehouseman of the defendant ; but before the other ten could be filled the whole were consumed by fire. It was held that the property in the twenty passed, but not in the ten ; and that the loss must be borne by the parties respectively in those proportions. So, also, if an act remains to be done by or on behalf of both parties before the goods are delivered, the projicrty is not changed ; of which Wallace v. Breeds, 13 East, 522, furnishes an instance, where Lord Ellenborough observed, that the Courts had frequently laid hold of such circumstances as existed in that case to retain the property in 634 GILMOUR V. SUPPLE. [CHAP. II. favor of an unpaid seller; and that rule was acted upon by the Court of King's Bench in Simmons v. Swift, 5 Barn. & Cr. 857, Avhich was an action for the price of a stack of bark, sold at £9 5s. per ton of 21 cwt. It appeared that after the sale it was agreed between the parties that the bark should be weighed by two persons, one of whom was named by the seller, the other by the buyer. Part was weighed and delivered ; the rest was much damaged by a flood before it was weighed, where- upon the buyer refused to take it. The court held that as the bark was to be weighed before delivery to ascertain the price, and that act had not been done, the pi-operty remained- in the seller, and that he must bear the loss. There, by express agreement between them, both parties were, by their agents, to take part in the act of weighing. But the case of Logan v. Le Mesurier, 6 Moore, P. C. Cases, 116, was prin- cipally relied on by the counsel for the appellant. . . .^ That case differs very materially from the present. In this case the terms of the written contract do not show that any future measurement of the raft was con- templated. The seller had had the raft measured by a person whos6 posi- tion would be a voucher for his accuracy. The specification showing the exact measurement of each log was handed by him to the jDur- chaser, and was in his hands at the time when the contract was entered into ; he retained it, and sent it over to his servants at the place where the raft was to be delivered, in order that they might check the raft delivered by it. There is nothing in these circumstances from which it can be inferred that the seller was to make any further measurement of the raft in order to ascertain the price, which would be computed from the measurement already made. The buyer might, for his own satisfaction, as was said in Swan wick v. Sothern, 9 Ad. & Ell. 895, measure it when delivered, but the seller had no such privilege or duty ; and after his servant had given up possession, and the servants of the defendants had taken it, he could neither have claimed to resume pos- session of the raft as being his projjerty, nor on the ground that he had a lien upon it for the price. Moreover, in this case the evidence showed that, according to the usage of the trade, neither party would have measured the timber at the place of delivery, so as to ascertain the amount to be paid for it. If the buyer had compared the logs deliv- ered with the specification, still that document would have been referred to for the purpose of ascertaining their contents. There was, there- fore, nothing more to be done by the seller on his, own behalf ; he had ascertained the whole price of the raft by the measurement previously made ; nor was there any thing to be done by him for the buyer : the seller had, according to his contract, conveyed the raft to Indian Cove, and according to the finding of the jury had delivered it there. Nor was there any thing further to be done in which both were to concur, ' 1 The learned judge here stated that case. — Ed. SECT. I.] OLYPHANT V. BAKER. 635 as in Simmons v. Swift ; the case, therefore, depends upon the effect of a contract for the sale of certain ascertained goods, without any thing to limit or control its legal operation. By such a contract the prop- erty was changed, and the loss must fall on the buyer. Their lordships must, therefore, humbly advise Her Majesty to affirm the judgment appealed from, and to dismiss this appeal, with costs. OLYPHANT V. BAKER. Supreme Court op New York, May Term, 1848. [Reported in 5 Denio, 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, non 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 delivered when said Baker may call for it. I agree to hold the barley free of storage until the first day of Jan- uarv next. The barlev is to be weighed out of the warehouse, unless Mr. Baker shall agree to take the weight on the books. I hereby acknowledge the receipt of one hundred dollars on the above contract. Mount Morris, Dec. 15, 1845. 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 fi'om and after the first day of Januaiy 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 Avith him for the storage of the barley, for him, the defendant, fi'om 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, the barley still remaining in it. After this arrangement with Camp and on the twenjty-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, $95, 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, \ 636 OLYPHANT V. BAKER. [CHAP. II. was a little over 1112 bushels. About the middle of January, the building with the grain in it was accidentally destroyed by fii*e. The referee reported in favor of the defendant. a. p. Wisner and 0. Hastings^ for the plaintiff, moved to set aside the report. E. D. Smith and E. Gnffi?i, 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. In 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 en- titled to payment before he parted with the property. The purchaser 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. He was entitled to have it weighed out to him, if he chose, for the pui-pose of ascertaining the exact quantity and aggregate amount of the purchase- 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 should 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 proj^erty 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 Coweij, 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 Wend. 31. In this case it does not clearly appear that the precise quantity of the barley was ascertained and communicated to the defendant. The witness says, indeed, that there were 1112 bushels and some pounds, and that he made out a bill and presented it to the defendant ; but he does SECT. I.] OLYPHANT V. BAKER, 637 not state that the precise quantity of the barley was put in such Inll ; and on liis 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 Avith the property until the balance of the pur- chase-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 thoucrh 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 any thing in this case to show any different in- tention 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. 360. In this case the price per bushel for the barley was specified in the writ- ten contract, although the precise quantity sold was not then known to the parties ; that, according to the contract, was to be ascertained by weighing the barley, unless the defendant should agree to take it as the weight might appear on the warehouse 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, ipso facto et eo instantly transfer the right of property to the pur- chaser. The barley was not afterwards weighed by any one ; that mode of ascertaining the amount of the ijurchase-money may therefore be 638 OLYPHANT V. BAKER. [CHAP. II. 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 contract of sale had been entered into the plaintiiF'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 de- fendant and payment demanded. He paid thi'ee 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 Avas 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 lien 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, woi\ld 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 the 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 pi-ice then specified and assented to by both parties. On the first of January, Camp went into possession of the 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 store-house, and his right of property SECT, ir.] HANSON V. MEYER. 639 was previously complete by tlie purchase. Property, the right of pos- session and the actual possession, were here united, and the plaintiff had no longer any right whatever to the barley. His lien for the pur- chase-money was gone, as he had voluntarily 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 propei-ty by the defendant. 2 Kent, 500, 502 ; Ross, 65-6, 72-3 ; Chaplin v. Rogers, 1 East, 192 ; Ilarman y, Anderson, 2 Camp. 243 ; Hurry v. Mangles, 1 id. 452 ; Hollingsworth v. Napier, 3 Caines, 182, 2d ed. and note at ]). 184 ; Bentall v. Burn, 3 B. & C. 423 ; Carter v. Williams, 19 Pick. 1. The sale being completely executed, the pur- chaser and owner, not the seller, should stand the loss. I think the report of the referee should be set aside. McKissocK, J., concurred. He-port set aside. \ , Sales of Specific Goods to lohich something remains to be done. HANSON AND Another, Assignees of Wallace and Hawes, '^^ j Bankrupts, v. MEYER. In the King's Bench, Jult 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, C. 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 Michaelmas term, the court by consent in 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. Ilawes under a commission of bankrupt issued against them. The defendant is a mer- chant in London. In Januai-y, 1801, the bankrupts employed Wright, >\i their broker, to purchase of the defendant a quantity of starch, about four tons, belonging to the defendant, and which was then lying in the 640 HANSON V. MEYER. [CHAP. II. Bull Porters' warehouse in Seething Lane ; and Wright accordingly purchased the starch of the defendant at £6 per cwt, and sent to the bankrujDts, his princiiDals, the following note : — Dear Sirs, — I have bought that small parcel of starch which you saw of Mr. James Meyer for your account, 61. per cwt. by bill at 2 months ; 14 days for delivery from the 14th instant. Yours, &c. T. Wright. Januaky 15th, 1801. The starch lay at the Bull Poi-ters'. The broker purchased for the bankrupts all Meyer's starch that lay there, more or less, whatever it was, at 6^. per hundred-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 Jajies 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 the starch, which weighed — cwt. qr. lb. 21 1 6 And on the 31st Jan. 250 9 1 20 And on the 2d Feb. .400 15 1 4 r 1190 46 ]2 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 residue 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 SECT. II.] HANSON V. MEYER. 641 that he was, then the verdict was to stand ; if not, then a new trial was to be granted upon such terms as tlie court should direct. Hwnxjhreys^ for the plaintiffs. This was an entire contract which could not be severed or apportioned, and therefore upon the delivery of any part of the starch to the bankrupts, the property of the whole became vested in them. It was not a contract for so many hundred- weight of starch, but for all the defendant's starch which lay at the Bull Porters' warehouse ; the xoeight only of which was to be after- wards ascertained ; but the whole was to be paid for by one bill. And there is the more reason for holding such a contract to be entire, because the price of the whole may be governed by the average quality, and the part received may be the worst : or at any rate it may be an inducement to a purchaser to give more for the whole tlian he would for a part, in order to withdraw so much competition out of the market. After the order for delivery the bankrupts might have taken the whole as well as a part. In Bro. Abr. Api)ortionment, pi. 7, it is said, that "a contract cannot be severed or apportioned, &c., because it is entire ; and if it be destroyed in i)art, it is destroyed in the whole." Again, Bro. Abr., Contract, pi. 35 : " If a man sell a lease of land and certain cloths for £10 the contract is entire and cannot be severed ; though one of the things were by a defeasible title," «fcc. So in Hawkins v. Cardy ^ it was ruled that a bill of exchange, being on'e entire contract, could not be apportioned by indorsement, so as to make the drawer liable in part to different holders. If the vendees had con- tinned solvent, and after taking part of the starch a fire had consumed the remainder in the warehouse, they would still have been liable ; for after the sale, the commodity is at the lisk of the vendee. Bro. Abr., Contract, pi. 26. Up.on the same principle, if goods purchased are to be paid for before they are taken away, and afterwards the vendor gives the vendee liberty to take away a part without payment, that would dis- pense with the condition as to the remainder, according to the doctrine in Dmnpor's case ; ^ and the only remedy of the vendor would be upon the contract for the value of the goods sold. It is clear from the cases of Slubey v. Heyward ^ and Hammond v. Anderson,* that after a part- delivery there can be no stopi)ing in transitu, which is decisive as to the property of the whole being absolutely vested in the vendee. And yet in the latter case the vendor put in his claim before the expiration of fourteen days, during which time the goods were to remain at his charge in the wharfinger's Avarehouse. The only distinction between the two cases is, that here the starch was to remain in the warehouse at the expense of the vendor till it was weighed ; but that was merely to ascertain the price, and would not alter the legal property. It was 1 1 Ld. Ray. 360. 2 4 Rep. 119 b. 8 2 H. Blac. 604. * 1 New Rep. 69. 642 HANSON V. MEYER. [CHAP II. also observed, that no cases in equity had occurred which applied pointedly to the present. Fawell v. Heelis ^ was mentioned as coming nearest, where it was holden that a vendor of an estate, who had taken a bond for the consideration-money, had no lien on the estate against the creditors of the vendee, for whose benefit the estate was assigned ; and here the vendor had relied on the security of a bill which was to be given payable at a future day. Ilolroyd, contra, after observing that it was just and reasonable, that upon every sale of goods, the vendor should either receive the stipulated price, or should have power to retain the goods, or so much of them as were not absolutely delivered over to the vendee upon credit, contended, 1st, that the legal property of so much of the starch as remained unweighed in the warehouse did not pass to the vendees ; or, 2dly, if it did, yet the vendor retained a lien upon it for the stipulated price of the whole. 1st, on a sale of specific goods (and these may be taken to be so, being a specific quantity of starch, though the amount was not ascertained at the time of the contract), the property does not pass except upon payment or tender of payment by the buyer, or where the time of i^ayment is by consent jiostponed.^ Now, here, by the terms of the contract, fourteen days were to be allowed for the delivery on the one hand, and on the other the payment was to be by a bill at two months ; the vendees, therefore, were not bound to pay for the starch till it was delivered, nor was the vendor bound to part with it till he received the bill. In Knight v. Hopper,^ where the note of the contract of sale was to this purj^ose : " Bought by Knight, of Hop- per, 100 pieces of muslin at 40s. per piece, to be fetched away by ten pieces at a time, and paid for as taken away," what was relied upon by Holt, C. J., as altering the property immediately .was, that the pieces were marked and sealed by the vendee ; and there too the price was fixed ; but here there was no act done by the vendees to mark the goods as their own. It was not an order simply to deliver, but to " weigh and deliver ; " the weighing was to precede the delivery : and even the price could not be ascertained till they were weighed ; so that till then it could not be known whether the vendees would pay the price or not ; but certainly the vendor was not bound to j^art with the goods till he had a bill at two months for the ascertained value. In a case * where a son employed his fiither to buy a frame for him, and the father purchased it in his own name, and paid part of the money, and gave a note for the rest ; Holt, C. J., held, that by the payment of the money and giving the note, the property of the frame was immediately vested in the father ; and that the bill of sale which was made a month afterwards to the son did not devest the property out of the father and 1 Arabl. 724. 2 2 Blac. Com. 446, 447. 3 Skin. 647. * Anon. 12 Mod. S44. SECT. 11.] HANSON V. MEYER. 643 vest it in the son ; tliougli it would have vested it in the son if it had been made at the time of the sale. And he added, that earnest does not alter the property, it only hinds the bargain; and the property remains in the vendor till payment, or delivery of the goods. In 2 Black. Com. 443, it is said that a contract executory, as if two agree to change horses next week, vests only a right, and their recip- rocal property in each other's horse is not in possession, but in action, &c., for a contract executory conveys only a chose in action. Here then till the goods were weighed and the price ascertained, and the bill given or at least tendered, the contract remained executory, and no property passed ; but each only had his remedy upon the contract on failure of performance by the other. 2d. At any rate, however, if the property did pass to the vendees, the vendor had a lien on the goods for the price, or the bill, provided the vendees had remained solvent and capable of giving such a security. If the rest of the goods had remained in the vendor's own possession, there could have been no doubt that he might have retained any part for the price at least of that part. If one ordered an hundred pair of shoes of a shoemaker at so much a pair to be paid for by a bill ; though the shoemaker had delivered half, yet if the vendee became insolvent the ti-adesman would not be bound to deliver the remainder without payment. And yet the insolvency does not rescind the contract; but the vendor has an equitable lien for the price, and this lien continues notwithstanding even a part payment ; as in Hodgson v. Loy ^ and Feise v. Wray,^ where part payment of the goods was holden not to devest the ven- dor's right to stop in transitu ; and a fortiori it cannot devest his lien upon the goods while they still continue in his possession ; for Lord Kenyon himself put it upon that ground, saying, " that the right of the vendor to stop goods in transitu in case of the insolvency of the ven- dee was a kind of equitable lien adopted by the law for the purposes of substantial justice, and that it did not proceed on the ground of rescinding the contract." Then it cannot vary the case that the goods here were in the hands of a middleman ; for they remained all the time in the Bull Porters' warehouse, in the vendor's name and at his expense. In the cases in the Common Pleas there was a severance by the vendees themselves of part of the goods from the rest, which could not have been done without a possession of the whole by them, so as to bar the vendor's right of stopping any part as in transitu' And in Hammond v. Anderson,^ there was this further material cir- cumstance, that all the goods had been weighed out to the vendee. But cases of tra?isitus do not atfect the question of lieu, which can only arise while the goods are in the actual or constructive possession of the vendor. Liens are mutual ; and a sale is only an exchange of 1 7 Term Rep. 440, 445. 2 3 East, 93. 3 1 New Rep. 69. 644 HANSON V. MEYER. [CHAP. II. goods for money ; but if a delivery of part of the goods contracted for without payment, be a waiver of the vendor's lien for the price, then by payment of part of the money by the purchaser he would waive his lien on the remainder, which might be recovered from him by action without a delivery of the goods. Suppose an exchange of two horses for one, would a delivery of one of the two preclude the owner's lien on the other till the delivery of the one horse for which the two were to be exchanged ? There is no distinction in reason between an exchange of goods for goods, and of goods for money. If an action be brought by a vendee, after part of the price of goods paid, he must allege that he paid or offered to pay the remainder. The principle is general, that he who sues another for a breach of contract must aver performance, or what is equivalent to performance on his part ; as in Morton v. Lamb ^ and Callonel v. Briggs ; ^ and therefore the vendor of goods has a lien on any part of them for the price of the whole ; he only lessens his security by delivering up any part before payment.^ . . . In Langfort v. Administratrix of Tiler,^ the defendant in the lifetime of the intestate, lier husband, having bought of the plaintiff four tubs of tea, one of which she paid for and took away, leaving 50/. earnest for the other three ; Holt, C. J., held, that notwithstanding the earnest (which only bound the bargain, and gave a right to demand the rest on payment of the money), the money must be paid upon fetching away the goods, because no other time for payment was appointed ; and that if the vendee did not come and pay for the goods in a reasonable time, after request, the agreement was dissolved, and the vendor was at liberty to sell them to any other person. In detinue,^ where there had been a part delivery of a certain quantity of corn contracted for, and payment for what was so delivered, the Court con- sidered that the vendor had a lien upon the remainder for the residue of the money, and was not bound to deliver it till payment, and might plead non detinet. And the distinction was taken, that if goods be bought outright, the bargain is void if the vendee do not pay the price agreed upon immediately ; but if a day of payment be appointed, the vendor shall have his action of debt, the vendee an action of detinue. As to the position in Dumpor's case,^ that a condition waived in part is waived in toto^ it cannot apply to liens which at most are only condi- tions in law founded on principles of equity, and not like conditions 1 7 Term Rep. 125. '^ Salk. 112. 3 The part omitted is not material to the subject of this chapter. — Ed. 4 Salk. 113. The same case is reported in 6 Mod. 162, where the case is stated to be, that the goods were contracted to be sold by the defendant to the plaintiff, who paid for one of the tubs, and gave 50s. earnest for the remainder ; and the declara- tion contained two counts, one on the agreement as it appears for the non-delivery of the other tubs ; the other, to recover back the 50s. as so much received to the plaintifl^'s use. The result of the doctrine is the same in both books. 6 Anonym., Dy. 29 6. "4 Rep. 119 b. SECT. II.] HANSON V. MEYER. 645 stipulated for by the parties themselves, which are always construed strictly, being in general to defeat an estate or create a ioHciture. Iluni'phreys in reply said, that the property was altered by a sale as well where a future day of payment was given as where the goods were paid for at the time. 1 Com. Dig. 313, Agreement, B 3, cites 10 H. 7, 8 a; 14 H. 8, 20 a; Dy. 30 a. It is true the vendor might have withheld the order for delivery till he received the Ijill which was agreed to be taken for payment ; but he waived that benefit, and gave an order for the delivery of the whole. Then the severance of a part was as much evidence of a possession of the whole by the vendee in this case as in the late cases in the Common Pleas. Those cases went on the ground that the sale of the goods being by one entire contract, possession of part was possession of the whole out of which such part was taken. And if the property passed by the contract, the payment of the warehouse rent afterwards by the vendor cannot alter it. Cur. adv. vult. Lord Ellexborough, 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 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. 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 puq>oses, efl^ectually 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- mainder 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 plaintiffs it is contended that a delivery of part of an entire quantity of goods contracted for is a virtual deliv- ery of the Avhole, so as to vest in the vendee the entire property iu 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 decidius: at present what might be the legal effect of such part delivery in a case where the payment of price Avas 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 VOL. I. 42 646 HANSON V. MEYER. [CHAP. II. 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 any thmg 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 no ingredient 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. Heyward, 2 H. Bl. 504. Without, therefore, touching the question which has been the main subject of argument in this case, and upon which my opinion at tiisi prius principally turned, and without in any degree questioning the authority of the above-mentioned two cases from the Common Pleas, this verdict may be sustained, on the ground that the weighing which was indispensably necessary to precede the delivery 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. ^fy^^^^- TTuTTTT^ y^ /^ 7^~^i^^^^L^ SECT. II.] ^ RUGG V. MINETT. 647 RUGG AND Others v. MIXETT and Othees. In the King's Bench, May 9, 1809. [jReportec? in 11 East, 210.] In an action for money had and received by the defendants to the use of the plaintiifs, a verdict was found for the plaintiffs for £14:15, 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 turj^entine 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) Avere knocked dowm to Acres so actintr for the plaintiffs. No conditions of sale were distributed prior to the sale ; but the auctioneer, before the bidding commenced, read aloud the fol- lo'SA'ing 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 the rate of 2s. per ton per month, by the purchaser. 3d. The goods to be taken at the net weight printed in the catalogue. 4th. The goods to be taken aAvay 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. j^er lot under £10 ; Is. Of?, from £10 to £25 ; and 2s. above £25 ; lot-money to be paid by the buyer to the auc- tioneer. Tare allowed for turpentine Is. hd. Upon the turi)entine 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 wei'e to be filled up before they were delivered to the purchasers, and that in order to effect this, the two last lots Avould be sold at uncertain 648 RUGG V. MINETT. [CHAP. II. quantities, and the preceding lots would be filled fi-om them. The whole of the turpentine, with the exception of the three lots before mentioned, were sold to the plaintifis ; 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 plaintifis 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 plaintifis, on the morning of the 10th of May, 1808, before the fire, by Acres, who paid on behalf of the plaintifis £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 plaintifis, 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 sufii- cient to fill up all those bought by the plaintifis ; and also those bought by the buyers of the three lots. In filling the casks sold to the plain- tifis 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 plaintifis' lots, and placing them ready with the bungs of the casks out for the custom-house ofiicer 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 turpentine knocked down to the plaintifis; the casks not having been weighed again by the plaintiffs, or gauged by the custom-house ofl&cer. While the money paid by the plaintiffs to the defendants on account of the turpentine remained in their hands, they received notice fi'om 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 plaintifis were entitled 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, contended that the contract for the sale was I SECT. II.] RUGG V. MINETT. 649 still executory ^ at the time of the loss by fire, inasmuch as there still remained something for the vendors to do ; and consequently that the loss must fall upon them, and not upon the vendees. By the conditions of sale, thirty days were to be allowed to the vendees for taking the casks from the warehouse of the vendors; and before they were removed the vendors were out of the two last casks to fill up all the rest, so as to make them correspond with the weights at which they were marked ; and that was the more material, because until it was done, it could not be ascertained what was the whole price to be paid, as those two casks were to be paid for according to their contents after the rest were filled up ; the weighing of them therefore must necessarily precede the de- livery, and the remainder of the whole purchase-money was to be paid on the delivery of the goods. This brings the case within the decision of Hanson v. Meyer,- where the vendee had agreed to purchase all the starch of the vendor then lying in the Avarehouse of a third person at so much per cwt. by bill at two months, the weight of which starch was afterwards to be ascertained, and fourteen days were to be allowed for the delivery ; and the vendor having given a note to the vendee, addressed to the warehouseman, directing him to iceigh and deliver to the vendee all his starch, the court held that the absolute property in the goods did not vest in the vendee before the weighing, which was to precede the delivery and to ascertain the price ; and that, the vendee having become bankrupt before the whole had been weighed and deliv- ered, the vendor miajht retain the remainder. It is true that in that case the whole was to be weighed before deUvery ; and here only the two last casks ; but here also all the prior casks were to be filled up, which was not done at the time of the loss ; and none of them were in a condition to be delivered, as the bungs were left out, in order to per- mit the custom-house officer to guage the casks, without which they could not be removed ; and it was part of the business of the vendors to replace the bungs, and put the casks in a proper condition to be de- livered. In Hammond v. Anderson,^ all the bales lying at a wharf, which had been sold for an entire sum, had been taken possession of by the vendee and weighed, and i)art had been removed by him before his bankruptcy ; and therefore it was held that the vendor had uo right to stop what remained iu the hands of the whai-finger. In Hinde v. White- house,* though the sugars were in the king's warehouses under the locks of the king and the owner, from whence they «ould not be removed till the duties were paid, Avhich were to be paid by the sellers; yet they had been Aveighed, and the duties ascertained ; and one of the condi- tions of sale at the auction was, that the sugars were to be taken with all defects as they then were, at the king's weights and tares, with the 1 1 Com. Dig. 541. •^ 6 East, 614. 8 1 New Rep. 69. * 7 East, 558. 650 RUGG V. MINETT. [CHAP. II, allowance of draft, or reweighecl giving up the draft, and to be at the purchaser's risk from the time of the sale ; by which latter was evidently- meant from the time when the lot was knocked down to the highest bidder ; and besides, the acceptance of the sample by the purchaser, as part of the thing purchased, was held to bind the sale. If a horse were sold, and agreed to be delivered by the vendor after he was shod, and the horse died before, the loss would fall upon the vendor. So here, the act of filling up the casks was to be performed by the vendors before delivery ; and though if the case rested upon that circumstance alone, a distinction might be taken as to those casks which had been filled up, yet the vendees were entitled to have the whole rebunged before delivery. [Lokd Ellenbokotjgh, C. J., observed, that the ven- dees were entitled to have the casks filled up and the bungs belonging to them ; but that the vendors had no concern with the unbunging or bunging of them, the former of which was done on account of the cus- tom-house oflicer intervening to do his duty before the goods were removed by the vendees. And upon inquiry at whose instance the gauging was to be performed, it was admitted that the vendees could not have removed the goods till they were guaged ; and therefore the court considered that it was their duty to get them gauged. The court also inquired as to the number of casks which had been filled up ; and it was agreed that all had been filled up except ten, on which they asked the defendant's counsel what answer he had to give to those ten.] Carr, for the defendants, admitted that the vendors could not claim the value of the two casks, out of which turpentine had been taken to fill up the others, because the quantities they contained were not ascer- tained by weighing at the time of the loss ; but with respect to the last ten which had not been filled up, he still contended that the property passed by the sale ; for by the contract the mark on each cask was con- clusive as to the quantity, and the price being also ascertained, every thing material to the perfection of a contract of sale was complete ; and at any rate the vendees should have called upon the vendors to fill up the remainder. [Lord Ellenborotjgh, C. J. Still the fact is, that by the vendors not having filled up the last ten casks, they were not in a deliverable state at the time of the loss ; and it was certainly a mate- rial act to be done, to make up the quantity marked.] The warehouse- man who was to do it was the common agent of both ; and this case is so far distinguishable from that of Hanson v. Meyer, that there the ven- dee could not have removed the goods till they were weighed ; but here the quantity and price being ascertained, the vendees might have waived calling on the vendors to fill up the casks, and might have taken them away when they pleased. 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 SECT. II.] RUGG V. MINETT. 651 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, every thing 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 i)urpose of the gauger'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, every thing 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 Blaxc, J. The case is to l)e considered as involving so m miv dis- tinct contracts as there were distinct lo ts boug ht l:>v the i)laintiti's . The turpentine was purchased at so much per cwt., and it was to be taken 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 sellers, 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 furtlier remained to be done by the sellers^. But It was necessary that the custom-house officer should gauge them before they could be removed. Then the warehouseman who was act- 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 casks which were filled up, they were from that time at the risk of the buyers ; but those wliich were not tilled up continued at the risk of the sellers. Bavley, 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 652 ZAGDRY V. FURNELL. [CHAP. 11. 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 officer ; and as that was to be procured to be done by the buyers, Acres, who left out the bungs for the j^urpose of enabling the officer to gauge, must be taken to have acted as the agent of the buyers for that pui-pose ; and therefore, nothing more remaining to be done by the sellers, the property passed. But with respect to the other casks, some- thing did remain to be done by the sellers, namely, the filling them up ; and it is not sufficient for them to say that they were not called upon to do so by the buyers ; for if they meant to relieve themselves fi-om 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 plain tifis on the ten casks should be settled out of court ; and that the verdict should be entered accordingly. ZAGURY V. FURNELL akd Another. T Nisi Prius, coram Lord Ellenborough, July 19, 1809. [Reported in 2 Campbell, 240.] Special assumpsit for not accepting bills of exchange for the price of certain goat skins sold by the plaintiff" to the defendants, to be paid for in this manner ; together with counts for goods bargained and sold, and goods sold and delivei-ed. The bought note was in the following form : — Bought of Mr. S. Zagury, of Great Prescott Street, 289 bales of goat skins from Mogadore, per Commerce, Capt. John Horswell, containing five dozen in each bale, at the rate of 575. 6d. per dozen, to be taken as they now lay, with all faults, paid for by good bills at 5 months. London, 27th April, 1809. 14 days prompt. It appeared by the usage of trade it is the duty of the seller of goat skins by bales, in this manner, to count them over, that it may be seen whether each bale contains the number specified in the contract, and that, on the 14th of May, before any of the skins in question had been counted over, the whole were destroyed by fire at the wharf where they lay at the time of the sale. The Attorney- General, for the defendant, contended, on the au- thority of Hanson v. Meyer, 6 East, 614, and Hinde v. Whitehouse, 7 East, 558, that the action could not be maintained. Something SECT. II.] STONARD V. DUNKIN. 653 remained to be done by the vendor to ascertain the amount of the price. Till the enumeration took ])lace, it Avas impossible to say for what sum the bills should be drawn. The plaintiff had not shown, and could not show, that he had a right to draw the bills, which the defendant refused to accept. Till the skins were counted, therefore, they remained at the risk of the seller, and he must submit to the loss. Garrow, contra, argued that the loss must fall upon the person whose property the goods were ; and there could be no doubt that from the moment the contract was signed, the property of the goods vested in the purchaser. As to the number of the skins, probable evi- dence must be sufficient in this as in other cases. It would be for the jury to say whether they believed that there were five dozen, or what smaller number, in each bale. Lord Ellenboeougu was of opinion, that as the enumeration of the skins was necessary to ascertain the price, this was an act for the benefit of the seller, and as this act remained to be done by him when the fire happened, there was not a complete transfer to the purchaser, and the skins continued at the seller's risk. The number of skins actually contained iu the 289 bales being uncertain, the plaintiff had failed to show that he was authorized by the terms of the contract to draw the bills which the defendants had refused to accept. Plaintiff nonsuited} / STONARD y. DUXKIN and Another. ^'^^ ^ y At Nisi Prius, coram Lord Ellenborough, January 20, 1810. [Reported in 2 Campbell, 344.J Trover for malt ; the question being, whether the plaintiff or the assignees of one Knight were entitled to it. The plaintiff gave in evidence an order from Knight to the defend- ants, who are warehousemen, to hold the malt on the jjlaintiff's account, a written acknowledgment from the defendant^ that they held it on t'iie'plainii H'^s account, and tkat he had advanced £7,500 to Knight, for which^lhy maTT was to be a security. 1 The plaintiff afterwards brought an action on the same contract in the Court of Common Pleas, which was tried at tlie sittings after hist Hilary term. Sir J. Mans- field, C. J., likewise directed a nonsuit, being of opinion that it was necessary to show the number of skins ; and that, without this evidence, the plaintiff could not recover on the general counts for goods bargained and sold, any more than on the special counts for not accepting the bills of exchange. Vide Rugg v. Minett, 11 East, 210; Phillimore v. Barry, 1 Campb. 513. 654 WITHERS V. LYSS. [CHAP. II. Garrow, for the defendants, contended, that the malt, notwithstand- ing, passed under the commission to Knight's assignees, as, from the universal usage and consent of the trade (which he undertook to prove), remeasuring was necessary to a transfer of property in articles of this nature, and the bankruptcy intervened before the malt in question was remeasured. Lord ELLENBOROUGn. "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 on 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 his title. y '/ u Verdict for the ^^Ic^i'titiff. ITHERS* AND Another v. LYSS and Others. Prius, coram Gibbs, C. J., June 24, 1815. [Reported in 4 Campbell, 237.] Trover for a quantity of rosin. The defendants, Lyss & Co., in September, 1812, sold, and were paid for the rosin in question, which was then in their warehouse, to Withers, & Co., the plaintiffs. Not having immediate occasion for the rosin, the plaintiffs requested that it might be kept in their names and at their disposal, by the defendants, which was accordingly done. On the 21st September the same rosin was sold by the plaintiffs to D. Bromer, through the intervention of a broker. The following is a copy of the sale note : — Messrs. Withers & Co. I have this day sold by your order, and for your account, to Mr. D. Bromer, 30 tons (more or less) of town made transparent rosin, in matts, at 13s. 9c?. per cwt., with customary allowances, payable at the end of 14 days, by acceptance, at 6 months' date. On the same day the plaintiffs wi'ote and delivered to Bromer a delivery order for the rosin, in the following words : — Messrs. Lyss & Co. Please to weigh and deliver to Mr. D. Bromer, or order, our transparent rosin, in matts (about 30 tons, more or less). Withers & Co. This order was lodged with the defendants by Bromer, and on the 6th October they were ready to weigh and deliver the rosin to him, but he never sent any person to see it weighed. In consequence, it never SECT. II.] WITHERS V. LYSS. 655 was weicfhecl, and it lias ever since remained in the defendants' ware- house. On the 17th of October Bromer stopped payment, and on the 19th of the same month the defendants received a written countermand of the order to deliver the rosin to him, with notice to hold it on the plaintiiF's account. A commission of bankruptcy issued against Bromer on the 2d of Xovember. There was afterwards a demand and refusal to deliver up the rosin to the plaintiffs. Vatighan, Serjt., for the plaintiffs, contended, that till the rosin was weighed the delivery to Bromer was not complete, and the right to stop in transitu subsisted upon his insolvency. Shepherd, S. G., contra, distinguished the present from the cases lately decided upon this subject by this circumstance, that here the whole of the rosin was sold to Bromer. It was a sale to him of a specific parcel of rosin, and no question about the identity of the subject- matter sold could arise. Therefore, upon the lodging of the delivery order with the defendants they became his agents, and held the article on his account. Suppose the rosin had been sent home to Bromer's own warehouse, without being weighed, there can be no doubt that the delivery would have been complete. But what difference can it make that it remained at the warehouse of his agents, for which he was paying rent. That part of the defendants' warehouse, in which the rosin lay, was his as much as if the whole had been demised to him. On the statute of James, likewise, he argued that the goods would pass to the assignees of Bromer. GiBBS, C. J. Here something was still to be done to ascertain the price of the commodity. The rosin was sold at 1.3s. M. per cwt., and the quantity was uncertain. Therefore, till it was weighed, the bill of exchange by which payment was to be made could not be drawn. That being so, according to the decisions both of this court and the Court of King's Bench, the delivery was not complete, and the right to stop in transitu subsisted. I think it makes no difference that the wjiole of the rosin Avas sold. The principle, I take to be, that while any thing remains to be done to ascertain the price, the possession is not considered as transferred to the purchaser. Had the rosin been burnt in the defendants' warehouse without being weighed, how could payment have been made according to the terms of the contract ? If nothing remains to be done to ascertain the price, I allow that a de- livery order lodged with the warehousman is a sufficient transfer of the possession, although no entry for that purpose be made in his books. The order here is, " weigh and deliver." There could be no delivery under it without weighing, and the goods never were delivered to Bromer. The statute of James depends on the pre\aous question, for if they were never delivered to hun they could not be in his order and disposition. Verdict for the 2)la i?ii ij's. />\f V ^' ^ y A iJ^ « 6^'" ,"1'^ P U HAWES V. WATSON. [CHAP. II. ^OHAWES AND Another v. WATSON and Another. In the King's Bench, January 28, 1824. [Reported in 2 Barnewall Sf Cresswell, 640.] Trover for a quantity of tallow. Plea, not guilty. At the trial before Abbott, C. J., at the London sittings after Michaelmas 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, Moberly & Bell sent to the plaintiffs the following transfer note, signed by the defendants, who were wharfingers : — 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, the defendants having, by their note of the 27th of September, SECT. II.] HAWES V. WATSON. 657 acknowledged that they heUl the tallow on account of the plahitiffs, 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,^ is an authority to shew, that the absolute property in the tallow Avould not vest in Moberly & Bell, the first vendee, until it was weighed. The contract in that case was in terras similar to the contract made between the original vendors and Moberly & Bell. The weighing must precede the delivery, in order that the price may be ascertained. In that case too, part of the goods had been Aveighed and delivered, yet it was held that the vendor might retain the remainder, which continued unweighed in his posses- sion ; and Shepley v. Davis - 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 by the defendants, by which they acknowledged that they held the tallow as their agents. If we were now to hold, that, notwithstanding that acknowledgment and that pajanent, 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 in 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. Baylet, 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. betwee n th e ori o inal vendor and a p ur<^h,gs(^r f^(^vn t,|]^ 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 any thing which can be considered as sanctioning the sale by his vendee, that destroys all right of the former to stop in transitu. Stoveld V. Hughes,^ llarman v. Anderson.^ HoLROYD, J. I think .that the note given by the defendants makes an end of the present question. When that note was given, the tal- low became the property of the plaintiffs, and is to be consiilored from that time as kept by the defendants as the agents of the plaintifls, and the latter Avere to be liable from the 10th October for all charges. 1 6 East, 614. 2 5 Taunt. 617. 3 14 East, 308. * 2 Campb. 243. 658 HAWES V. WATSON. [CHAP. II. 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 ascertained) at Ql 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 the 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 the vendees, and that they would be consid- ered as subject to charges from a certain period. I think, therefore, that the wharfinger then held the tallow as the goods of the plaintiffs and as their agents, although there was not any actual weighing of them ; and that the plaintiffs were then in possession by the defendants as their agents, they having acknowledged themselves as such by their note. For these reasons I am of opinion that the plaintiffs are en- titled 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 1 The learned judge here stated the cases of Harman v. Anderson, 2 Campb. 243, and Stonard v. Dunkin, id. 344. — Ed. SECT. II.] SIMMONS V. SWIFT. 659 1' 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 i)aid for by all except the first. It appears to me that we should disturb an established principle if Ave 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 Avhen it can be done without disturbing the rights of third persons. Here, that can- not be done, and therefore I think that Raikes & Co. had not any right to stop in transitu^ and that the plaintiffs are therefore entitled to recover \<^^ y Mule discharged. >- 'l'''^'^'^ HENRY SIMMONS y. HEZ^KIAH SWIFT. ^ ^1^ J ^. / In the King's Bench, Trinity Term, 1826. ^ [Reported in 5 Barnewall ^ Cresswell, 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 3^. Sd., sub- ject to the opinion of this court upon the 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 town of Monmouth. Previously to the 23d of October, 1824, the plaintiff was possessed of a quantity of oak bark, which was stacked at a place called Redbrook, on the banks of the river Wye, about two miles below the town of Monmouth, and which, 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 bs. per ton of twenty-one hundred-weight, to Hezekiah Swift, which he agrees to take, and pay for it on the 80th 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 Avho was at Avork in a wood near to Redbrook, to see the bark Avcighed on behalf of his brother, which William Simmons accordingly did, and was paid for his 660 SIMMONS V. SWIFT. [CHAP. II. trouble by his brother's wife. WilUam 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 pui-jDOse 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, iipon 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, Madley, 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 suflicient 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 bark 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 who were passing up the river in a barge. On the fourth day of December, 1824, the plaintiff called at the defendant's counting-house, and the defend- 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 weight 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. I 8d, for which the verdict was taken. Oldncdl Bussell, for the plaintiff. The property in the bark vested in SECT, II.] SIMMONS V. SWIFT. 661 the defendant as soon as the contract was made, and the subsequent delivery of a part was in law a delivery of the whole. Slubey v. Hey- ward,^ Hammond v. Anderson.- The case of Hanson v. Meyer ' will be relied on to shew that the property had not vested ; but there something remained to be done by the vendor; it was part of the con- tract that the goods sold should be weighed before they were deliv- ered. Upon the facts found in this case no act remained to be done by the vendor. The contract was for an absolute sale, the purchaser was to take the bark and pay for it on a day specified ; and it was not made a condition that the bark should be previously weighed. The pur- chaser was at liberty to take the bark immediately, and in fact did take a part. Since the decision of Hanson v. Meyer several cases somewhat similar have occurred, in which it was held that goods contracted for had not vested in the purchaser, Rugg v. Minett,* Wallace v. Breeds,^ Austen v. Craven,® White v. Wilks,'' Busk v. Davis,* Shepley v. Davis ;' but in each of them it was made necessary, either by express contract or by the usage of trade, that some further act should be done by the vendor before the goods were transferred to the purchaser. [Bayley, J. When did the delivery in this case take place ? ] As soon as the vendee took away a part of the goods. In 2 Bl. Com. 448, it is said : " As soon as the bargain is struck the property of the goods is trans- ferred to the vendee, and that of the price to the vendor, but the ven- dee cannot take the goods until he tenders the price agreed on." [HoLROYD, J. The declaration i s for go ods s old^ and dtdi vexiiiL not for goods bargained and sold.] If the property vested in the defendant, then a delivery^of'part was clearly a delivery of the wdiole. Campbell, contra. This action for goods sold and delivered cannot be maintained unless the plaintiff makes out not only that the prop- erty in the whole of the bark vested in the defendant, but also that the whole was delivered. He must show that he had divested himself of all lien upon the bark, and that the defendant might have main- tained trover for it without paying or offering to pay the price. Goodall V. Skelton.^" This case is directly within the authority of Hanson v. Meyer ; the bark Avas sold at a certain sum per ton, it was therefore necessary to weigh it in order to ascertain the price. Weighing, then, was made necessary by the contract, and it was an act to be done by the vendor. If weighing was to precede the delivery, the bark, until weighed, remained in the possession of the vendor, and the vendee could have no right to weigh it, but was bound to call upon the vendor to do it. The authority of Hanson v. Meyer has never been called in question ; it is therefore sufficient for the decision of this case ; it 1 2 H. Bl. 504. 2 1 N. R. 69. 3 6 East, 614. < 11 East, 216. 5 13 East, 522. 6 4 Taunt. 644. 7 5 Taunt. 176. 8 2 M. & S. 397. » 5 Taunt. 617. 10 2 H. Bl. 316. TOL. I. 48 662 SIMMONS V. SWIFT. [CHAP. II. proves that the property never vested in the defendant, and if it had vested still there was no delivery. Batlet, 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, w^hether there had been such a delivery of the bark as would support this form of action. It is not, perhaps, nec- essary 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 pur- chase 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 any thing remains to be done on the part of the seller, until that is done the property is not changed. In Rugg v. Minett and Wallace v. Breeds, 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 thing sold was to be separated from a larger quantity of the same commodity. This case was difi*erent ; the sxxbject-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 jjaid for at a certain price per ton. The bar- gain does not specify the mode in Avhich the weight was to be ascer- tained, but it Avas necessary that it should be ascertained before the price could be calculated, and the concurrence of the seller in the act of Aveighing was necessary. He might insist upon keeping possession until the bark had been weighed. If he was anxious to get rid of the liability to accidental loss, he might give notice to the buj^er that he should at a certain time Aveigh the bark, but until that act Avas done it remained at his risk. In Hanson v. Meyer, Aveighing Avas the only 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 Aveighed ; that was introduced in the delivery order, but the nature of the contract made it necessary. So here the contract made weitdiing necessary, for Avithout 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 svimper ton, that it Aveighed so many tons, and that the price in the Avhole 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 be- come bankrupt AA'ere seeking to recoA'cr the goods sold ; but the lan- guage of Lord Ellenborough as to the necessity of AA'eighing in order to ascertain the price before the property could be changed is applica- SECT. II.] SIMMONS V. SWIFT. 663 ble to the present case, and decides it. I therefore think that the bark which remained unweighed at the time of the loss was at the risk of the seller ; and even if the proi^erty 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. HoLKOYi), 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 ])roperty 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 pai-t Avith the goods until the -weigliing 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 30th of November ; there was neither a j^er- formance of the weighing nor an offer to perform it. LiTTLEDALE, J. I entertain some doubt Avhether the j^roperty 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 tliere 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, although the property might 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 jiaid. Here there was not a delivery in fact, nor was the delivery of pax"t a con- structive delivery of the whole. Tliis 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 right to stop in tran- situ. I think further that an action for goods bargained and sold would not lie merely because the i:)roperty passed. The mere bargain would not suffice, because no specific i^rice was fixed ; nor could the plaintiff recover on a quantwn valebat, for the contract was to j^ay by weight ; and therefore, until the commodity was weighed, there would be nothing to guide the jury in the amount of damages to be given. The seller Avas 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. 664 LAIDLER V. BURLINSON. [CHAP. II. LAIDLER V. BURLINSON. In the Exchequer, Easter Term, 1837. [Reported in 2 Meeson Sf Welsby, 602.] Teoyer for one-fourth part of a ship. The defendant pleaded, first, not guilty ; secondly, that the plaintiiF was not possessed as of his own property of the said one-fourth part of the ship ; and thirdly, that before the supposed conversion, one James Laing became a bankrupt, and the defendant was appointed his assignee, and that at the time of the bankruptcy the ship was in the possession, order, and disposition of him, the said James Laing, as reputed owner, by consent of the true owner. Upon the two first pleas, the plaintiff took issue, and to the last plea he replied, that the said ship was not by the consent and per- mission of the plaintiff, as true owner thereof, in the possession, order, or disposition of the said James Laing as reputed owner; and upon this also issue was joined. At the trial at the Spring Assizes for Northum- berland, 1836, before Lord Denman, C. J., a verdict was found for the plaintiff for £200, subject to the opinion of this court upon the fol- fowing case : — In the year 1833, and until the time of his bankruptcy, James Laing carried on business as a ship-builder at Middlesborough, in the county of York. An agreement signed by James Laing and the plaintiff, and the other parties whose names purport to be thereimto signed, was produced in evidence at the trial, which was as follows : — Middlesborough, June 10, 1833. Particulars of build and description of a new ship now about one-third built, in the yard of James Laing. Length of keel aground, 75 ft. 6 in. ; rake forward, 7 ft. ; rake of post, 1 ft. 6 in. ; extreme breadth, 24 ft. 4 in. ; depth of hold, 13 ft. 4 in. ; and will admeasure 200 tons register, and carry 14 keels of coals at 12 ft. 9 in. water. Keelfiners, Eng. elm forward, and aft, Am. ; in midships, frame all Eng. ; also stern, sternpost, and hooks ; floors, lOi to 11 in., sided and moulded first futtocks, 8i by 9 ; second ditto, 7^ by 8 ; top timbers, 7 by 6 at the wales, and 4 in. top height; keelsons. Am. oak; outside plank below the light marks, Am. elm, birch, or Engl, beech, 2h in. in the flat; three strakes of 4 in. in each bilge, and two strakes of 3 in. and 2J upwards ; from thence 3 in. oak to the wales ; the wales three strakes of 4 in., two black strakes 3 in. and 2|, top-sides 2i in. ; paint strake and covering boards 3 in. ; water ways 4 in. ; all oak decks ; 3 in. red pine ceiling ; one strake of 3 in. next the keelson ; part of floor 2| in. ; three strakes of 3i in. in the bilge, from thence 2i in. in the midships, and 2 in. the ends; two strakes of 3 in. beam clamps, 4 in. stringer above the H B. and ceiling, between decks 2 in. and one strake of 3 in. deck beam clamp. To have 11 H beams and 15 deck beams, fastened with wood or iron lodging knees ; to have five hooks forward, and have sufficient coaming, windlass, bits, catheads, rudder, capstern, boats, checkers, hatches, bulkheads, and the hull to be com- SECT. II. LAIDLER V. BURLINSON. 665 pleted in every respect with carpentry, joiner, blacksmith, turner, painter, and plumber work, long-boat and skiff, and to be fitted out with all spars, masts, cordage, chains, anchors, cooper stores, and every other stores sufficient and as usual in the coal trade, and ready to take in a cargo of coals without any extra whatever, and to be launched in the early part of September next. Two chain cables eighty-five fathoms each, one chain hawser sixty fathoms, hempen tow-line and two warps, a spare topsail, foresail, and fore-topmost staysail ; the paint- strakes to be English oak ; for the sum of 17501, and payment as follows, oppo- site to each respective name. This agreement was signed by James Laing, and after his signature followed these words : — We, the undersigned, hereby engage to take shares in the before-mentioned vessel, as set opposite to our respective names, and also the mode of payment : — Tees Coal Company payment for one-fourth, 6 mo. 29, Bill. £200 7 mo. 12, Cash, 233 2 11 James Laing. John Atkinson, one-eighth ; payment in rope and canvas. Thomas Laidler, one-fourth, William B. Earle, one-eighth. William Fairbridge, one-sixteenth, cash, £55, July 25, 1833. Philip and Joseph Heselton, one-eighth. Anthony Harris, for one-sixteenth, cash f j p t o" o- and goods, £103, 15*. 9d. — 12 mo. 5, 1833. ^ ^^ ^ '"^* MiDDLESBOROUGH, July 14, 1833. I hereby agree to accept the above price and mode of payment. James Laing. In the month of October, 1833, the plaintiff entered into and signed the above agreement. William B. Earle, Fairbridge, and P. and J. Heselton afterwaixls, and before the act of bankruptcy, at separate times entered into and signed tlie agreement. Antliony Harris, whose name appears last as a party subscribing it, on the 18th of January, 1834 (and not before, although it purports to bear date in December), the day after James Laing committed the act of bankruptcy on which the fiat hereinafter mentioned was founded, entered into and signed the agreement in question. It is to be taken, for the purpose of this case, that whatever might be the effect of the agreement as to passing the property in the respective shares to the sevei-al parties, at all events one-sixteenth, which A. Harris agreed to buy, did not pass to him, but became vested in the defendant, as assignee of James Laing under his bankruptcy. In order to prove payment by the plaintiff to Laing for his proportion of the ship, he gave in evidence the folloM'ing facts, viz. : that in the month of June, 1833, he had accepted a bill for £30, drawn by Laing upon him, and which was paid by him when due ; also that another bill, dated 29th October, 1833, was drawn by Laing upon and accepted by the plaintiff for £293 6s. Sd. : and he tlien proved that on the 5th of December, 1833, timber to the amount in value of £129 125. 666 LAIDLER V. BURLTNSON. [CHAP. II. %cl. Avas supplied by him to Laing, which was expressly agi-eed at the time of the supply to be taken in part payment for the said vessel. In the month of June, 1833, the said James Laing had the ship, in respect of which this action is brought, about one-third built, and in his shipyard, and he had at that time no other ship upon the stocks ; and fi-om that time until the time of the bankruptcy of James Laing he proceeded with the building of this ship, and after the signature of the plaintiff to this agreement, expended large sums of money in and about building it. The Tees Coal Company, whose signature appears to the agi-eement, consisted at that time of two persons named Taylor and Harris. Harris used to go and look at the vessel when building, and occasionally found foult with the work, which was improved in conse- quence, and the bankrupt had told his foreman to act under Harris's direction. On the 17th of January, 1834, Laing committed an act of bankruptcy, and on the 25th of the same month a fiat issued thereon against him, under which he was adjudged a bankrupt ; and the defend- ant was duly appointed assignee of his estate and effects. At the time of the bankruptcy the frame of the said vessel was on the stocks in Laing's building yard, in an unfinished state, and after the bankruptcy some men continued to work and receive their money fi'om Harris. The messenger under the fiat seized and took possession of the ship in the building yard of James Laing. The vessel was ultimately completed. To prove a conversion by the defendant of the ship in question, the plaintiff's attorney proved that on the 24th of January, 1835, he, on the part of the plaintiff, made a demand of the vessel on the defendant, who answered that he had sold it for £970 or £980 to a person named Metcalfe, who, at the time of the demand, and at the time of the com- mencement of this action, had possession of it. The vessel, at the time of the bankruptcy, was not in the possession, order, or disposition of the bankrupt as reputed owner thereof. The first question for the opinion of the court is, whether or not the property in one-fourth of the vessel passed to the plaintiff under the above circumstances ; if not, a verdict to be entered for the defendant. If the court shall be of opinion that the property passed, but that the defendant had not been guilty of a conversion, then a nonsuit to be entered ; but if the property passed, and the defendant had been guilty of a conversion, then a verdict for the plaintiff for £200. It is to be taken as a fact, that if the property in one-fourth passed to the plain- tiff the defendant was tenant in common of the vessel with the plaintiff. S. Temple, for the plaintiff. The first question is, whether, by this agreement, the property in the ship passed from the bankrupt to the purchasers. The distinction is this, where an artisan, directed to make an article not in being, prepares to make it, and goes on execut- SECT. II.] LAIDLER V. BURLINSON. 66T ing the order, but has power within the tenns of the contract to deliver that article or a similar one, no property passes until the article is actually delivered ; but where the article is in being at the time, the property vests at once in the purchaser, and the artisan is bound to deliver that specific article. In Mucklow v. Mangles,^ it was held that if a person contracts with another for a chattel which is not in exist- ence at the time of the contract, though the purchaser pays the whole value in advance, and the seller proceeds to execute the order, the former acquires no property in the chattel until it is finished and delivered to him. Heath, J., there says : " If the thing be in exist- ence at the time of the order, the property of it passes by the contract, but not so where the subject is to be made." This decision was recog- nized in Woods v. Russell," which is more like the present case, and is an authority in point. [Aldersox, B. In Woods v. Russell, that was not the important point.] The observations of Abbott, C. J., in de- livering the judgment of the court, are strongly applicable. He says : " 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 specifically to the defendant the very ship so in pro- gress, and to vest in the defendant a property in that ship, and that as between him and the builder he is entitled to insist upon the com- pletion of that very shi]), and that the builder is not entitled to require him to accept any other." It is true that this conclusion is somewhat qualified in Clarke v. Spence,^ where Williams, J., in delivering the judgment of the court, after reading the above passage, says : " If it be intended in this passage that the specific appropriation of the parts of a vessel while in progress, however made, of itself vests the property in the person who gives the order, the proposition in so general a form may be doubtful." But the present case is much stronger in its circum- stances than Woods v. Russell. There no ship was in existence at the time of the contract, and it was held to be an appropriation of the specific chattel only when the first instalment Avas paid ; but here there was an express contract for a specific chattel, one-third of Avhich was in exist- ence at the time. The agreement states it to be " one-third built." Xo . instalments were to be paid from time to time, but the whole purchase- money was to be paid, and was paid. The bankrupt could not have built for these parties another ship answering the description, but was bound to deliver that identical ship. In Woods v. Russell, it is true, there was the usual certificate of the builder that the ship was regis- tered, which, in Clarke v. Spence, was thought to have influenced the 1 1 Taunt. 318. 2 5 B. & Aid. 942. 3 4 Ad. & Ell. 467, 6 Nev. & Man. 399. 668 LAIDLER V. BURLINSON. [CHAP. H. decision of the court. But the judgment does not proceed merely on that ground, but also on the ground that the property vested by the payment of instalments in respect of an existing chattel, Abbott, C. J., says : " But this case does not depend merely upon the payment of the instalments ; so that we are not called upon to decide how far that payment vests the property in the defendant, because here Paton (the builder) signed the certificate 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 consid- ered from that time as being in the defendant." " 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 ? " That fact is not used as evidencing an actual delivery of the ship, but as shewing an acknowledgment by the bankrupt that the property was gone from him, and his consent that it should vest in the purchaser. Here the agreeement shews the same kind of acknowledgment — it is a testification of his consent that the property had passed out of him. In Clarke v. Spence, the only doubt that existed was, whether the gen- eral words of Lord Tenterden ought not to be qualified, and they were qualified accordingly ; but the general decision in that case would still be in favor of the present plaintiff. [Lord Abinger, C. B. In Clarke V. Spence, it was part of the contract that the ship was to be built un- der the superintendence of an agent of the purchaser.] There was no stipulation to that effect here, but in fact it was superintended by Har- ris, the agent of the Tees Coal Company. The case is in this respect certainly not so strong as Clarke v. Spence, but stronger than Woods V. Russell. Harris must be considered as superintendent for the pur- chasers generally. Secondly, it is said that this action will not lie, because it is an action by one tenant in common against another ; but the defendant is not entitled to that defence upon this record, since he cannot shew, under the plea of not guilty, that he was justified, as tenant in common with the plaintiff, in committing the conversion in fact. Stancliffe v. Hardwick.^ It was there expressly held, that if the defendant has made a conversion in fact of the chattel (as by a sale), which he jDroposes to justify by his joint control over it, he must plead in confession and avoidance, inasmuch as the plea of not guilty puts in issue the fact of the conversion only, and not the tortious nature of it.2 W. H. Watson, contra. First, no property passed by this agreement. The contract is, in the first part, rather a soi't of prospectus of the ship, and of the mode in which she is ultimately to be completed. It is 1 2 C. M. & R. 1. 2 See also Vernon v. Shipton, 2 M. & W. 9. SECT. II.] LAIDLER V. BURLINSON. 669 headed " Particulars of build and description of a new ship now about one-third built." It does not purport to be a sale of a third part, as the hull of a vessel. The instrument goes on to describe the timber, anchors, &c., to be used and applied in the building of it " for the sum of £1750." As far as that goes, it is a mere offer to sell a complete ship for so much. [Parke, B. It appears to be a sort of what the civilians called ohligatio certi corporis^ which you say does not pass the property. The builder might be guilty of a breach of contract if he did not finish that ship ; but the question is, if he finished it, and sold it to another, would trover lie ?] The terms of acceptance are these : " We, the undersigned, hereby agree to take shares in the before-men- tioned vessel, as set opposite to our respective names, and also the mode of payment." That is, not we agree then to buy, but to take shares in the vessel when complete. The parties sign at different periods. It is not like the case of one single party agreeing that a vessel is to be built for him, and to be under his superintendence. And there was in fact no superintendence ; Harris merely went there like a person going to a coach-maker to see how his carriage, which he has ordered, is going on building. Where the specific article is ready for delivery, and the price fixed, the property passes ; but if it is incomplete, and incapable of de- livery, the property does not pass until the article is completed, and there is an assent on the part of the purchaser that it is conformable to the contract. It is expressly so laid down in Clarke v. Spence. [Lord Abixger, C. B. Is assent or dissent material? May not the purchaser renounce it if it is not according to the contract, though the property may have passed ?] No : he would be bound to take to it if the prop- erty had passed, and must bring his action for the injury done him by the breach of the contract. If the property has passed, there is no power of rejection. [Parke, B. If the parties only agreed to buy that particular ship when complete, the property would not pass, though the builder could not comply Avith the contract by delivering another ship.] In Clarke -o. Spence there was no power of rejection. The judges there begin by laying down certain known principles of law : ^ " That, in gen- eral, under a contract for the building a vessel, or making any other thing not existing in specie at the time of the contract, no property vests in the party whom, for distinction, we Avill call the purchaser, during the progress of the work, nor until the vessel or thing is finished and delivered, or at least ready for delivery, and approved by the pur- chaser ; and that, even w^hen the contract contains a specification of the dimensions and other particulars of the vessel or thing, and fixes the precise mode and time of payment by months and days." [Alder- sox, B. There the payments Avere according to the corresponding por- tions of the work done, and it was a sale of each specific portion as 1 4 Ad. & Ell. 466. • 670 LAIDLER V. BURLTNSON. [CHAP. II. completed.] Woods v. Russell has no application to the present case ; it was decided on the ground of there being a certificate of registry. In Goode v. Langley,^ A. agreed with B. to make a gig for a given price. The body of the gig and wheels were selected by B., and A. promised to deliver it in a few days. The full price was paid. Before it was finished it was seized by the sheriff under a Ji. fa. against A. 'The gig was afterwards finished and delivered to B., with the assent of the judgment creditor ; the sheriff subsequently retook it to secure his poundage. It was held that he had no I'ight to do so, and that B. might maintain trover for the gig; but there the court proceeded merely on the ground that the sheriff had made a second seizure of the goods, and that he could not protect himself for seizing twice. It Avas there argued that the right to the price and the vesting of the property were correlative ; and the court might easily have disposed of the case by saying that the property had passed to B. by a selection of part of the chattel, if they had thought so. In Atkinson v. Bell,^ A. having a patent for certain spinning machinery, received an order from B. to have some spinning frames made for him. A. employed C. to make the machines for B., and informed the latter of it. After the machines had been completed, A. ordered them to be altered. They were afterwards completed according to this new order, and packed up in boxes for B., and C. informed B. that they were ready, but he refused to accept them ; and it was held that C. could not recover the price from B. in an action for goods bargained and sold, or for work, labour, and mate- rials. The argument was there rested on the ground that specific articles were pointed out to the purchaser as those with which the machines were to be completed. But Bayley, J., says : " When goods are ordered to be made, while they are in progress the materials belong to the maker. The property does not vest in the party who gave the oi'der until the thing ordered is complete. And although while the goods are in ^^rogress 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 ren- der himself liable to an action for so doing, still a good title is given to the party to whom they are so delivered." So here, all that appears is an intention that the ship in question should be delivered when finished, which intention might have been altered. The property might have passed if the j^laintiff had assented after the ship was finished, but there was no such assent. Supposing the builder had died whilst it was un- finished, and his executor had been without assets, and unable to com- plete the vessel, if the argument on the other side is good for any thing, the purchaser would be entitled to the hull without paying any part of the price. But there is a greater difticulty still. The contract is by 1 7 B. & Cr. 26. 2 g B. & C. 277, 2 Man. & R. 292, s. c. SECT. II.] LAIDLER V. BURLINSON. 671 five or six persons to take shares. Who is to say whether the sliip is built according to the contract ? The money is to be paid by the terms of the contract, according to the shares set opposite their respective names. It is obvious that payment and delivery would be contempora- neous. The entire contract is in the hands of the builder. The times and mode of payment will not alter it ; Avhoncver the money was to be paid, the contract only is to be looked to for the intention of the parties. [Lord Ahingee, C. B. It all turns on the contract.] Temple, in reply. It is said that this is not a contract for an imme- diate purchase of the ship in its then state, but when completed. The words are, "We hereby engage to take shares in the before-mentioned vessel ; " it is said that that means " vessel when completed ; " but sup- pose the words had been, " We hereby engage to buy shares ; " that would certainly have shewn a present intention, and the words used are in substance the same. The contract does not say " when finished." If actual payment is important to sheAV a purchase at the time of a specific chattel, according to Woods v. Russell and Clarke v. Spence, here there has been an appropriation by payment. [Pakke, B. No : the agreement itself was evidence in those cases of the intention of the parties that the property should pass at the time. This case would have been like Woods v. Russell, if the agreement had been to pay so much down, and so much when finished.] The contract vests a prop- erty at the time of signing. It makes no diiference that the purchasers sign at different times, as the vendor signs only once. [Aldeeson, B. The contracts for shares were signed at different times ; w^hat specific portion of the congeries of planks does each buy ?] It was the piu*- chase of a ship which was described to be in a certain condition on the 10th of June, 1833; and it continues to exist six months afterAvards, although more Avork was then done to it. The vendor signs only once at that date ; it is not a contract signed by him at different times for the sale of a different article. The signature of the bankrupt at the time is evidence of an intention to vest the property in the purchasers, and that it was to take eftect Avhen signed. If the purchasers had not been bound, they would not have paid the money afterwards. The payment shews that the contract was not to have effect afterwards, but %7i p7'cese)itL Lord Abinger, C. B. There is no occasion to qualify the doctrine laid down in Woods v. Russell or Clarke v. Spence. I consider the principle which those cases establish to be, that a man may purchase a ship as it is in progress of building; and by the terms employed there, the contract was of that character ; a superintendent was appointed, and money paid at particular stages. The court held that that was evidence of an intention to become the purchaser of the particular ship, and that the payment of the first instalment vested the property in the purchasers. Suppose the builder had died after the first instalment was 672 LAIDLER V. BURLINSON. [CHAP. II. paid, the ship in its then state would have become the property of the purchaser, and not of the executors. A party may agree to pui'chase a ship when finished or as she then stands. Of which sort is this con- tract ? Did it pass the property to the purchaser presently, or was it to pass when the shij) was finished ? I think it is of the latter descrip- tion. There would have been a specific sum appropriated, if a sale in the present state had been intended. The contract is also for goods to be supplied, cables, &c., when she was finished. If the seller became bankrupt, or died, what sum could be recovered ? No price is appro- priated by the parties. It is not till she is finished and delivered that the sale takes effect. Paeke, B. I concur in the view which has been taken by the Lord Chief Baron. The whole case resolves itself into a construction of the contract. Was it a present bargain and sale of the materials of the ship lying there ? If a man bargain for a specific chattel, though it is not delivered, the property passes, and an action lies for the non-deliv- ery, or of trover. Langfort v. Tiler.^ But it is equally clear that a chattel which is to be delivered infuturo does not pass by the contract. Two questions arise : First, is this an article which would corresjiond with the terms of the contract? Secondly, is it a contract for an article to be finished ? In the latter case, the article must be finished before the property vests. In the first, an action would lie at once for the non- delivery. The contract describes all the several particulars to be sup- plied, and then it concludes, " We, the undersigned, agree to take shares in the before-mentioned vessel." The plaintiff" is a purchaser of one- fourth. It is clear that he was not to pay for the materials as then existing; and also that many other parties, according to the stipula- tions, were to have an interest in the ship when finished. It is most like the case of Mucklow v. Mangles.- There is no sum here which can be said to be the price of the chattel in its then state. In Woods u. Russell there were three ingredients, on which the judgment of the court was founded. First, a sum was paid, which appropriated the work as then finished ; secondly, a superintendent was employed ; thirdly, there was the certificate of registry. In Clarke v. Spence two of these circumstances concurred. The payment by instalments was evidence of appropriation of the work as the instalments were paid. But here there is no sum which can by any possibility be considered as the price of the materials then put together. It was an entire contract to pur- chase the ship when finished, and no property passed till then. BoLLAND, B. In Woods v. Russell and Clarke u. Spence, the con- tract was made for a specific thing in existence; here it is treated throughout as executory. Alderson, B. To vest the property, the identical goods must be 1 1 Salkeld, 113; Sheppard's Touchstone, 224, 225. 2 i Taunt. 318. SECT. II.] SWANWICK V. SOTHERN. 673 sold and the price fixed. What were the specific goods here? If one- third of the ship was sold, it would vest ; but if it was to be the ship when complete, that was not ascertained at the time, and did not pass. In Woods V. Russell, the contract was for the sale of specific parts of the ship, to be paid for successively at particular stages of it ; and it was held, that it vested the property in the ship so in progress. That was the construction of the contract ; and on similar words in Clarke V. Spence the same construction was jjut by the court. y j ,_^ Judgment for the defendant. (Ut^-^f^ SWANWICK AND Another v. SOTHERN and Others, u ^^^/tl- ' ■ Z^ I'T^ ^ jj^ ^gg Queen's Bench, February 6, 1839. /^^ r^^ *i^^/ \Reported in 9 Adolphus Sf Ellis, 895.] ^ "^ 7^"^ '^^^ Trover for 1028 bushels of oats. Pleas : 1. Not guilty ; 2. Tlfat — the oats were not the property of the plaintifl^s, 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 plaintiiFs 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 . 1 ^ ' delivery order given, addressed to the Avarehouse-keeper : — ' \ nJ n Mr. Wm. Eaton, Duke's Quay. ^^ Deliver Mr. John Marsden 1028 \\ bushels oats, bin 40, O. W., and you ^ •will please weigh theui over and charge us the expense. Joseph Turner & Co. Oct. 3d, 1836. The warehouse-keej^er 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 || bushel oats, in bin 40, O. Ware- house ; and let them be weighed over and send a note up. I will see it paid. Fr. & Jno. Marsden. Manchester, 5th Oct., 1836. Swanwick and Hall, the plaintifl^s, accepted a bill drawn by Marsden, October 7, 1836, for the value of the oats, which was duly honoured. 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 674 SWANWICK V. SOTHERN. [CHAP. II. order. The oats were transferred to the phiintiffs in the defendant's books, but without weighing over. There wei-e no oats in bin 40 bnt J^^guaBtilj: niL'iitioned 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 plaintiffs 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 indem- nity. 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 wesigh, till delivery, when_the_^rain was w^eighed 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 liad a right to stop in transitu. Patteson, J,, thought that, on the above state of facts, the plaintiffs were entitled to recover, but he gave leave to move for a nonsuit; and the plaintiffs had a verdict. In Easter term, 1837, a rule nisi was obtained for a nonsuit or a new trial. In Hilary term, 1839, Cresswell and Tomlinson shewed cause. No weighing was necessary in this case to vest a right in the plaintiffs ; as between them and the defendants, at least, the attornment of the defendant's warehousetnen was of itself conclusive. Stonard v. Dunkin,^ Harman v. Anderson,'^ Lucas V. Dorrien,^ Barton v. Boddington,* Gosling v. Birnie,^ Holl V. Griffin,*' which cases agree, in principle, with Dixon v. Hamond '' and Hawes v. Watson.^ Even if this had been a question between vendor and vendee, it might be contended, on the authority of Whitehouse v. Frost,® that the transaction here proved made the sale and delivery complete, there being an order for the transfer of a specific quantity of goods, and that order accepted; and, con- sequently, that no question as to the right of stopping in transitu could any longer arise. And, further, the goods here were transferred as a pledge for a specific sum of money advanced by the plaintiffs ; the defendants held the oats in trust for them, and no longer subject to the control of Turner & Co. Haille v. Smith,^° I'ecognized in Patten v. Thompson." Shepley v. Davis ^^ was cited in moving for the present rule. There, ten tons of hemp, in the hands of a wharfinger, were sold, and an order given directing him to weigh and deliver, and the property was held not to pass before weighing ; but the ten tons were part of a larger mass, and weighing was necessary to ascer- 1 2 Camp. 344. 2 2 Camp. 243. 3 7 Taunt. 278. * 1 Car. & P. 207. 5 7 Bing. 339. 6 10 Bing. 246. 1 2 B. & Aid. 310. 8 2 B. & C. 540. 9 12 East, 614. 10 1 Bos. & P. 563. 11 5 M. & S. 350. ^'^ 5 Taunt. 617. SECT. 11.] SWANWICK V. SOTHERN. 675 tain what was to be delivevecl. And in Hanson v. Meycr,^ a similar case, also cited in moving, it could not be ascertained without weigh- ing Avhat quantity of goods the purchaser was to receive, and for what sum he was to give a bill according to the contract, and therefore weighing was held a condition precedent to the vesting of tlie jjrop- erty. This view of the case Avas relied upon in Ilawes v. Watson,- where both Hanson v. Meyer ^ and Shepley v. Davis'* were cited. Here the purchasers contracted for a specific parcel of goods, namely, all the oats which were lying in a certain bin, and gave their acceptance for the price. IVif/htincm and IV. H. V^atson^ contra. It is not disputed, on the defendants' part, that if there had been a general unqualified delivery order, received and accepted by their agent, even without a transfer in their books. Turner & Co. would have lost their property in these goods, and could not have stopped them in transitu. But the order here was, "Deliver to S. & H. 1028 ^f bushels of oats in bin 40, and let them be weighed over and send a note up. I will see it paid." It does not appear that the plaintiffs were bound to take them if they exceeded or fell short of the bulk contracted for, and weighing was necessary to ascertain whether they did exceed or fall short. They did, in fact, when weighed fall short of the quantity named. [Wil- liams, J. Was not the quantity designated by its forming the contents of a jjarticular bin ? Littledale, J. If they were to take all that that bin contained, weighing seems to have been immaterial.] The bargain was for 1028 ^f bushels. It cannot be contended that the purchasers were bound to take the oats, however much they might fall short of that quantity ; and, if they might have refused them for deficiency, then Aveighing was essential to the completion of the sale. [Pattesox, J. Within Avhat time do you say that the weighing must have taken place ? None was specified. In Shepley v. Davis,* a time was pointed out within which the goods must have been weighed and delivered.] Here either party might, at any time, have required that the oats should be Aveighed. The case falls within the princii)le of Hanson v. Meyer,^ Busk v. Davis,^ Shepley v. Davis,'' and Withers v. Lyss.® Some- thinof remained to be done betAveen the vendor and vendee to ascertain what Avas to be delivered ; and therefore there had been no complete transfer. If Turner is divested of his property in the oats, it ought to be in his power to sue Marsden on the contract between them ; but the facts Avould not support an action by Turner against Marsden. Our. adv. vuU. Lord Denmak, C. J., now delivered the judgment of the court. 1 6 East, 614. 2 2 B. & C. 540. 3 6 East, 614. * 5 Taunt. 617. 5 Cited ill Shepley v. Davis, 5 Taunt. 622, note (a) ; s. c. 2 M. & S. 397. 6 4 Camp. 237. 676 ACRAMAN V. MORRICE. [CHAP. II. The question in this case turns upon the construction of two delivery- orders. [His lordship then read the orders set out, p. 673, 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 tran- situ. 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 wharfin- ger's books will not defeat the right of stoppage in tra^isitu as between buyer and seller. Hanson v. Meyer,^ Shepley v. Davis,^ Busk v. Davis ^ abundantly shew this. Therefore, if part of a bulk be sold, so that weighing or separation is necessary to detennine the identity or indi- viduality (as Lord Ellenborough expresses it in Busk v. Davis ^) 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. 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 ; * and in such case the transfer in the book of the wharfinger is sufficient. We are of opinion that the present case is of the latter description, and that this property passed as be- tween buyer and seller. We have therefore no occasion to resort to the doctrine of estoppel, which is strongly enforced in Hawes v. Watson ; ^ 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. H'^le discharged. r\ ACRAMAN AifD Others, Assignees of Thomas Swift v. MORRICE. In The Common Pleas, November 22, 1849. {Reported in 19 Law Journal Reports, Common Pleas, 57.] Trover by the assignees of Thomas Swift, a bankrupt, for the con- version of 1000 pieces of oak timber. 1 6 East, 614. 2 5 Taunt. 617. 3 2 M. & S. 397. 4 1 New Kep. 69. 5 2 B, & C 640. •>\ SECT. II,] ACRAMAN V. MORRICE. 677 Pleas, first, not cruilty; second, not possesserl. At the trial before Coleridge, J., at the Bristol Summer Assizes in 1848, the following facts were given in evidence : It appeared that Swift, the bankrupt, was an extensive timber merchant in Wales, and that the defendant, Avho was a contractor for the supply of timber for the royal navy, had been in the habit of dealing with him for some years. The contracts were sometimes in writing and sometimes oral. The course of business between the parties was this : After Swift had "1 felled the trees which he wished to dispose of, the defendant's agent { selected those which were fit for the defendant's pui-pose, and marked out certain poitions of the trunks as the subjects of the purchase. After this was done, it was the duty of Swift to lop and top the trees, cut off the sidings and square the trunks, and then at his own expense convey the trunks, which had been marked out, to the defendant's wharf at Chepstow, and deliver them there. In the beginning of the year 1848, the defendant's agent had selected and marked out a num- ber of trees felled by Swift, being the subject of a contract entered into between him and the defendant, which was not reduced to Avrit- ing so as to satisfy the Statute of Frauds.^ On the 15th of April, 1849, a fiat in bankruptcy was issued against Swift; and at that time twenty- five of the trees which had been selected and marked had been removed by him to a wharf of his at Iladnock, for the purpose of trans- mission, but had not yet been topped, lopped, or^ sided, the marked parts remaining unsevered from the bodies of the trees. In the month of May, the messenger of the Court of Bankruptcy took possession of the unsevered timber, and a few days afterwards the defendant's agent sent men to Hadnock who severed the trees, and carried away the por- tions which had been marked out. For these pieces of timber the assignees of the bankrupt brought the present action. The questions raised at the trial were whetlier the case was within, the Statute of Frauds, and Avhether, by the selecting and marking of the timber by the defendant's agent, there had been a sufficient deliv- ery and acceptance of the goods to satisfy the statute, and vest the property in the defendant. The learned judge expressed his opinion that the i)laintiffs were entitled to the verdict, and the jury accord- ingly found for the plaintiffs, with 95/. damages ; leave being reserved to the defendant to move to enter a verdict for him, if the court should be of opinion that under the circumstances of the case he was entitled to it. A rule nisi having been obtained accordingly, — Hutt, luiu/lake, Serjt., and Montague Smith now shewed cause. It is submitted tliat according to the facts of this case as they stood at the time of Swift's bankruptcy, the property in the timber remained in 1 According to the report in 8 C. B. 449, the timber had been paid for by the defendant. — Ed. VOL. I. 44 678 ACRAMAN V. MORRICE. [CHAP. II. him, and had not passed to the defendant. The transaction in ques- tion amounted to a sale of certain parts of the trees only. It is neces- sary in order to change the property in goods sold, not only that the specific goods should have been ascertained, but also that they should be in a condition in Avhich they are ready for delivery. [Wilde, C. J. The case is similar to that of Rugg v. Minett,^ which was decided on the principle, that when any thing remains to be done by the seller of goods before delivery to the purchaser, the property does not pass.] In that case the purchaser bought turpentine in casks at so much per cwt., and all the casks except two were to be filled up by the seller from those two, and it was held that the property in those casks which were filled up passed to the purchaser, but not in those which had not been filled up. [Maule, J. Siippose a .person bought a particiilar piece of cloth which he marked to be cut out from a large piece, the property would not pass till the piece wns cut oiit^ That case seems to differ from a purchase of a' quantity of a liquid, Tay'TDO^ gallons. There perhaps any 500 gallons would do.] In the case of Bill v. "Bament,2 ^]jg defendant purchased goods of the plaintiff's agent. The goods arrived at the agent's warehouse, and by the orders of the de- fendant the mark on them was changed. It was held that there was, no delivery, and therefore no acceptance to satisfy the Statute of Frauds. [Wilde, C. J. There was a strong case in tbis court about a wagon, Maberley v. Sheppard.^ There the defendant employed the plaintiff to build a wagon, and, while it was in the plaintiff's yard, sent a third person to fix some iron Avork on it ; and it was held that this did not constitute an acceptance under the statute.] In Simmons v. Swift,^ there was a purchase of a stack of bark at a certain price per ton. Part of it was weighed and delivered ; but it was held that the property in the rest did not pass, because the amount had not been ascertained by weighing. In Laidler v. Burlinson,^ it was held that by an agreement for a share of a ship then in the process of building, the property did not pass, although the purchaser interfered with the building, because the subject of purchase contemplated by the contract was the ship when built, and not the mater' als of it as they existed at the time when the contract was entered into. In the argument in Rugg V. Minett, the case was put of a horse sold, and agreed to be delivered by the vendor after he was shod, and it was argued that if the horse died the loss would fall on the vendor. [Maule, J. Sup- pose we call the wood in the present case when severed, by the name of beams, then this is a contract for beams to be made out of certain 1 11 East, 210. 2 9 Mee. & W. 36 ; s. c. 11 Law J. Kep. (n. s.) Exch. 81. 3 10 Bing. 99 ; s. c. 2 Law J. Rep. (n. s.) C. P. 181. 4 5 B. & C. 857 ; s. c. 5 Law J. Kep. K. B. 10. 6 2 Mee. & W. 602; s. c. 6 Law J. Rep. (n. s.) Exch. 160. SECT. II.] ACRAMAN V. MORRICE. 679 specified trunks, and the purchaser might have his action for a breach of the contract, but the property wouhl not ])ass by the selection of the trunks.] The contract was executory till the severance. The cases which shew that the ascertaining of goods, the subject of a sale, where something remains to be done to them, is not sufficient under the Statute of Frauds without acceptance, receipt, and assent, are col- lected in Baldey v. Parker ^ and Maberley v. Sheppard. Cockburn (Harstoic was with him), in support of the rule. The general proposition of law wluch establishes that the property in goods sold does not pass " when something remains to be done " is not de- nied. But what is the true meaning of those words? They must mean when something remains to be done necessary for the purpose of appropriation. The ])rescnt case is like that of a purchase of twenty sheep not selected from a flock, where the vendor afterwards selected twenty, and the purchaser assented and put his mark on them, and the vendor agreed to send them home. [Wilde, C. J. This is more like a case where the vendor agrees to shear the sheep.] It is submit- ted that, if in such a case he did not shear, the purchaser might do so and leave the avooI. [Maule, J. There Avere portions of these trees not sold. You say, that immediately on the sale the marked parts became the chattels of the defendant. Is there such a thing as a tenancy of a sp ecific g^uantityw an undivided chayMteljJ Kone of the cases cited correspond exactly with the j^resent. [Maule, J. There is a case of Hanson v. Meyer,- which is in point. There the vendee purchased all the vendor's starch at the Avarehouse of X. at so much per cwt., and got an order from the vendor to the Avarehouseman to AA'eigh and deliA^er all the starch. Part was weighed and deli\-ered ; and on the bankruptcy of the vendee, the vendor was held entitled to retain the remainder, because there Avas no delivery or acceptance of it till it Avas Aveighed. Tlie present case seems like one of a contract for the purchase of flour to be made out of certain Avheat, Avhere, according to the present argument, the property in the interior part of each grain would pass to the purchaser.] Here the siDecific thing con- tracted for exists, Avhich AA'ould not be the case Avith the flour. [Maule, J. It is clear that the assignees may maintain trover for the tops of the trees. My only difliculty is Avhether several people may have property in different parts of the same chattel.] Wilde, C. J. The defendant's counsel has not succeeded in rais- ing any doubt in my mind with regard to this case. It seems to me, indeed, that the case is free from difficulty. On the purchase of goods, when anv thing remains to be done before deliverv, the Acndor has a right to retain possession if the vendee becomes bankrupt. In the present case several things remained to be done. The buyer having 1 2 B. & C. 37 ; s. c. 1 Law J. Rep. K. B. 229. 2 g East, 614. 680 ACRAMAN V. MORRICE. [CHAP. II. selectefl the parts which he wished to purchase, it became the duty of the seller to sever those parts, and having done so, to convey them to Chepstow, and there to deliver them at the defendant's whai-f. Now, that which the buyer did in order to enable the seller to perform his part of the contract, cannot be considered as an acceptance of the tim- ber. It was done for a totally different purpose than that of accepting the goods. Delivery means not only delivery, but acceptance ; and, therefore, there was no delivery in this case. The defendant agreed to accept the timber Avhen severed and delivered at Chepstow. The seller had yet to incur the expense of sawing the timber and conveying it to the defendant's wharf The vendor becomes bankrupt, and the defendant unfairly wishes to get hold of the trees, and does that which he had no right to do. I think, for these reasons, that the property in the timber did not pass to the defendant, and that he was guilty of a trespass and conversion ; and that, therefore, the verdict was right, and ought not to be disturbed. Maule, J. I am of the same opinion. The trees vested in the assignees, unless there was a change of possession by what had been done by the vendee. The way in which the defendant seeks to shew that the plaintiff was out of possession, and that he was in possession, is this : He sets up a contract for certain portions of the trees, which, were to be severed by the bankrupt, and conveyed at his expense to the defendant's wharf. The right of the defendant is the creature of that contract. His right, under the contract, was to insist that par- ticular trees should be dealt with in a particular manner, and that the portions selected should be delivered to him. Subject to that con- tract, the interest of the bankrupt passed to his assignees, and they had the right to keep the trees subject to the defendant's claim. The defendant could not have insisted on taking away the trees before the bankruptcy, because the contract did not give him a right to present possession. Williams, J. I am entirely of the same opinion. If the Statute of Frauds had never passed, or this property had been of a price under 10^., the rights of the parties would have been the same. Talfourd, J., concurred. SECT. II.] LOGAN V. LE MESURIER. 681 ^ JAMES LOGAN and TIART LOGAN, Appellants, and WILLIAM LE MESURIER, IIAVILAND LE MESURIER, ROUTH, and WILLIAM HENRY TILSTON, Respondents} In the Privy Council, December 6, 7, & 13, 1847. On Appeal from the Provincial Court of Appeals for the Province of Lower Canada. [Reported in 6 Moore's Privy Council Cases, 116.] This was an action brought in the Court of King's Bench at Mon- treal, in which the present respondents sought to i*ecover the sum of £1,979 3s. 4c?., which had been paid by them to the appellants as the price of a raft of red pine timber, sold by the appellants to the respon- dents by a Avritten contract dated 3d December, 1834, and which raft of timber was wrecked and dispersed at Quebec, on the 20th June, 1835. The respondents also claiined by the action damages for the non-delivery of the timber. The contract was as follows : " Hart Logan & Co. of Montreal, sell, and Le Mesurier, Routh & Co. of the same place, buy, a quantity of red pine timber, the property of Thomas Durrell of Hull, L. C, but under control of the sellers, now lying above the rapids, near the Chaudiere Falls, Ottawa River, and stated by the said Thomas Durrell to consist of 1,391 pieces, measuring 50,000 feet, more or less, deliverable at Quebec, on or before the 15th of June next, and payable by the purchasei-'s promissory notes at ninety days' date from this date, at the rate of 9hd. per foot measured off. Should the quantity turn out more than above stated, the sui'plus to be paid for by the purchasers at 9^1. per foot, on delivery, and should it fall short, the difference to be refunded by the sellers. Signed in duplicate Montreal, 3d December, 1834. Hart, Logan & Co., Le Mesurier, Routh & Co. To be delivered at M. B. Farlin's booms, at Sillery Cove, Quebec." On the 5th of December, 1834, the respondents' promissory notes for the sum of £1,979 3s. 4d., at ninety days, were delivered to the appellants in terms of the contract. The timber thus purchased was not delivered on the 15th of June, 1835, the day specified in the contract ; but late in the day of the 19th of June a raft floated down to Quebec, under the charge of one Ostrom, and arrived at .the 2:)art of the river nearly opposite to the appointed 1 Present : Lord Brougliam, Lord Langdale, Lord Campbell, the Right lion. Dr Lushiugton, and the llight Hon. T. Pemberton Leigh. 682 LOGAN V. LE MESURIER. [CHAP. II. place for delivery, viz., Farlin's booms, at Sillery Cove, Quebec, which purported to consist of the timber so purchased. The booms at Sillery Cove being full, the raft was, at the instance of Farlin, removed to a short distance from the spot and properly secured. In the course of the followinsf nio-ht before the raft was or could be received Avithin the booms, it was broken up and dispersed by a violent storm, wherein the greater part of the timber was wholly lost. After the dispersion, the respondents collected all the timber that they were able to recover, and paid salvage for it, and dressed and shipped on their own account what had been so saved. They also purchased other timber at the rate of lOhd. per foot, the then market price, to fulfil certain contracts they had made upon the presumption that the timber would be deliv- ered to them according to the terms of the contract. The respondents afterwards brought an action in the District Court of Montreal to recover back from the appellants the above sum of £1,979 35. 4(1, the amount of the promissory notes, which had been paid at maturity, and also for damages, laid at £400, for the non-deliv- ery of the timber according to the contract. The appellants resisted this demand, and at the same time, by incidental or cross suit, claimed to recover from the respondents the residue of the price, amounting, as was alleged, to £197 18s. 4cl The declaration consisted of two counts : the first count set forth the aboA'e contract ; it then averred payment of the price, according to the contract, by making and delivering promissory notes of the plaintiffs, and satisfying the same Avhen due ; and assigned for breach that the defendants had not on the 15th of June, or at any time since, delivered to the plaintiffs at the booms of Farlin, at Sillery Cove, nor elsewhere, the said quantity of timber, or any part thereof, but had therein wholly made default. It was further averred, that on or about the 19th of June, the timber, then being in the possession of the de- fendants, was by the force and violence of the Avinds and AvaA^es wrecked, scattered, destroyed, and AA^holly lost, Avithout any default on the part of the plaintiffs ; and that the plaintiffs Avere thereby not only deprived of the above sum of £1,979 os. 4d., so paid by them as the price of the timber, and of the interest thereon, but had suffered damages to the amount of £400, by reason of their being obliged, through the de- fendants' default, to purchase other timber at a higher price, to enable them to fulfil certain contracts Avhich they had entered into upon the faith of the due performance of their contract by the defendants. The second count differed from the first only by setting forth that the timber Avas deliA'erable at the city of Quebec generally, Avithout speci- fying the booms of Farlin, and the breach Avas assigned in respect of the non-delivery at the city of Quebec. The defendants pleaded to the first count ; first, that on the 15th of June, 1835, they did deliver the timber at the booms of Farlin, at Sillery Cove, and that the same ( SECT. II.] LOGAN V. LE MESURIER. 683 was then received by the plaintiffs. Second, that on the 19th of June, 1835, they delivered the timber at the booms, &c., omitting the allega- tion that it was received by the plaintiffs, and averred performance of their contract generally. Third, that on the 19th of June, 1835, and before they the defendants had been placed €?i demeure, they delivered the timber at the booms, &c., according to their contract. Fourth, that on the 19th of June, 1835, and before they had been placed en demeure, they delivered the timber to Farlin, the agent of the plain- tiffs in that behalf Fifth, that on the 19th of June they delivered the timber at the booms of Farlin to the plaintiffs, and that it was then in the power of the ]ilaintiffs to take and receive the same into the booms, but that the plaintiffs, although requested, neglected and refused so to do ; and that on the 20th of June, 1835, there arose a storm of unusual violence, by wliich the timber was broken away from its moor- ings, and was broken up, dispersed, and carried away ; and the pieces composing the raft were lost, except 500 pieces, Avhich it was averred the ]ilaintiffs succeeded in saving and recovering for themselves, and which came into the hands of the plaintiffs and were used and appro- priated by them ; that if the timber had been received into the booms the whole would have been saved ; and that the loss was attributable to the storm, and to the negligence of the plaintiffs in leaving the tim- ber exposed, and not to any want of due care on the part of the de- fendants. Sixth, that after the making of the promise, and before the defendants had been placed e7i demeure, to wit, on the 19th of June, 1835, the defendants delivered the timber at the booms, &c., to Far- lin, the agent of the plaintiffs. That it was incumbent on Farlin and the plaintiffs to receive the timber into the booms, and that they were requested to do so, but that neither Farlin nor the i)laintiffs would re- ceive the timber into the booms ; that on the contrary, the booms, by the act of Farlin, were so completely filled- Avith timber, that neither he nor the plaintiffs could receive the timber into the booms. That the booms could not have admitted the timber at any period of time between the earliest moment of the 19th of June and the latest hour of the 20th ; that, in consequence, the timber remained out of the booms ; that afterwards, and whilst it was so lying out of the booms, a storm arose, by which it Avas broken away from its moorings, and dispersed and carried away, except 500 pieces saved, and appropriated as before mentioned by the plaintiffs. That if the timber had been received into the booms on the 19th of June, when so delivered tliereat, the pieces would have been measured off, and no part would have been lost ; and that but for the negligence and refusal of the plaintiffs and Farlin, the timber Avould have been measured off and saved. Seventh, that on the 19th of June, 1835, the defendants did deliver the timber at the booms, &c., and that they could not deliver the same at an earlier day, by reason of the unusual lateness of the spring of the year 1835. 684 LOGAN V. LE MESURIER. [CHAP. II. To the second count the pleas were in all respects similar, except as to such slight variations as were rendered necessary by the difference in the statement of the place where the timber was deliverable. In addition to these pleas, the defendants pleaded also the follow- ing peremptory exceptions to both counts of the declaration : First, that on the 19th of June, 1835, and before they had been placed en demeure, they did deliver the timber to the i^laintiffs at the booms of Farlin, and the same was then and there received by the plaintiffs. Second, that on the 19th of June, 1835, and before they had been placed en demeure^ they did deliver tlie timber at the city of Quebec. Each of these exceptions and peremptory exceptions concluded with an averment, that in fact the timber contained 50,000 feet at the least. The incidental demand (or declaration) in the cross-action of the defendants, consisted of three counts; the first of which, after setting forth the contract, averred a delivery of the timber at the booms, &c., and that the same turned out to contain 55,000 feet; and assigned for a breach, the non-payment, by the incidental defendants, of the price of the surplus 5,000 feet, amounting to £197 18s. 4f?. The second count alleged a delivery on the 19th of June, before the incidental plaintiffs were placed en demeure. The third count, after setting forth the contract and the delivery on the 19th of June, before the incidental plaintiffs were placed en demeure^ and averring that the quantity de- livered was 55,000 feet, proceeded to allege, that after the timber had been delivered at the booms, it was allowed by the incidental defend- ants to remain outside, and insecure against accidents of weather ; that a storm arose whereby it was broken away, and dispersed, except 500 pieces saved and appropriated as before ; that if the timber had been received into the booms and secured, the number of feet contained in it could have been measured off by tlie incidental defendants, and no part would have been lost ; and concluded with a similar breach as to the non-payment of the sum of £197 18s. '^d. currency, the price of the surplus quantity above 50,000 feet, at 9\d. per foot. The issues were completed by general replication and answers to the pleas and exceptions of the defendants, and by general pleadings to the incidental demand, whereby the whole of the material facts averred on the one side and on the other were respectively denied. Evidence was then taken on both sides, and the cause having been heard on the merits, the judgment of the Court of King's Bench was declared in the following terms : " The court having duly deliberated, proceeding first to adjudicate upon the principal demand, and consid- ering that the defendants, incidental plaintiffs, have established in evi- dence a good and sufficient ofier and tender to make a true and legal delivery to the said plaintiffs of a quantity of red pine timber, in con- formity with the contract or agreement sous seign^^nve entered into SECT. II.] LOGAN V. LE MESURIER. 685 between the parties, and dated Montreal, the third day of December, 1834 ; which offer being refused by the phuntiffs, incidental defendants, the quantity of red pine timber was immediately afterwards dispersed, and the actual delivery of it prevented hy /orce majeure, and that the defendants and incidental ]»laintiffs are not guilty of any lireach of the contract : It is adjudged that the principal demand be, and the same is hereby dismissed with costs to the defendants, incidental j)laintifrs. And the court proceeding to adjudge upon the incidental demand made in this cause, it is considered and adjudged that the incidental plaintiffs in this cause do recover from the incidental defendants tlie sum of £140 \0s. bd., being the balance remaining due upon tlie price and value of 53,560 feet of red pine timber, the quantity sold by the incidental plaintiffs to the incidental defendants, under the contract or agreement above mentioned of the third day of December, 1834, and of which the delivery was as aforesaid tendered by the incidental plaintiffs to the incidental defendants, and by them refused ; and the same was dispersed, and the actual delivery thereof was prevented by force majeure as aforesaid, the timber being calculated at the rate of 9^-d. per foot, with interest thereon from the first day of December, 1835, date of the filing of the incidental demand, until actual payment and costs of the incidental demand, to which the court condemns the incidental defendants." From this judgment the present respondents appealed to the Court of Appeals for Lower Canada, assigning error in the general form. And the appeal having been heard, judgment was, on the tenth day of November, 1845, pronounced by that court, reversing the judgment of the court Ijclow ; the material part of which Avas in the following terms : " This court, considering that it appears from the evidence adduced in the cause, that on or about the 19th of the month of June, at a place called Convent Cove, near Quebec, the aforesaid quantity of red pine timber, then and there being in possession of the defend- ants, and of their agents and servants, unmeasured and undelivered to the appellants, was, by the force and violence of the winds and waves, wrecked, scattered, destroyed, and lost, without any default on the part of them, the appellants, whereby they were deprived of the sum of £1,979 35. Ad., so by them paid to the respondents, as and for the price of the quantity of red pine timber so to be delivered, and of the lawful interest of that sum, from the 6th of March, 1835, when the same was paid, and considering, likewise, that the appellants were com- pelled and obliged to buy and purchase, and did buy and purchase other red pine timber, at a greater and higher price, to wit, at and after the rate of lO^d. for each foot thereof, to enable them, the appellants, to fulfil and perform certain contracts and promises by them entered into and made in the way of tlieir business as merchants at Quebec afore- said, under the presumption and belief that the respondents would 6SQ LOGAN V. LE MEfeURIER. [CHAP. 11. have delivered to them the quantity of red pine timber, according to the tenor and effect of the said contract or agreement, for the sale and delivery thereof at Sillery Cove, near Quebec, on or before the 15th of June, 1835. And this court, considering further that upon the sale of goods by admensuration, which may happen to be destroyed before measurement, the loss is cast upon the seller, that the stipulations of admeasurement and of delivery at a particular place, rendered the sale conditional and incomplete until the occurrence of those events, and that in the mean time the risk, '■ joericulum rei venclitce^ is not to be borne by the purchasers : that after the expiration of the time fixed for the delivery, the purchaser was not bound to receive the property, the contract having been determined by the sellers' breach of its condi- tions, and that in the performance of all commercial contracts punctu- ality is required, the rule of the civil law, ' dies interjyellat pro homine^ being strictly applicable to them : it is therefore by the court now here considered and adjudged, and the respondents are hereby adjudged and condemned to pay and satisfy to the appellants : First, the sum of £1,979 3s. 4f?., with interest thereon, from the 13th of July, 1835, the day of the service of the judicial demand in this cause, till paid. And secondly, the sum of £312 10^, being the difference in value of the quantity of 50,000 feet of red pine, between the market price thereof in the month of June, 1845, and the price of 9^~c?. per foot, being the contract price for which the respondents w^ere to have delivered the quantity of red pine timber to the appellants, with interest on the sum of £312 10s. from this date, till paid. And this court hereby dis- misses the demand of the respondents as incidental plaintiffs in the court below, reserving to them, the respondents, nevertheless, all such recourse as they legally may have and take for the value of such quan- tities or parcels of the red pine timber, as may have come into their hands and possession, belonging to the respondents, subsequent to the 19th of June, 1835. And lastly, this court doth adjudge and condemn the respondents to pay to the appellants, as w^ell the costs of the suit or action as of the incidental demand in the court below, together with the costs of the appeal. It is ordered, that the record and pro- ceedings in this cause be remitted to the Court of Queen's Bench for the district ot Montreal." From this judgment the present appeal to Her Majesty in Council was brought. Sir Frederick Thesiger^ Q. C, Mr. Greemoood, Q. C, and Mr. Benson, for the appellants. This contract of sale was an absolute, and not a conditional contract. [Lord Campbell : What law is to govern this case ? the old French law, in force in Low^er Canada, or the law of England ?] A conflict of laws cannot arise in this case, as the old French law, in force in Lower Canada, and the law of England, upon this question, are the same. SECT. II.] LOGAN V. LE MESURIER. 687 We submit tliat the property vested, on the execution of the contract, in the purchasers. Nothing furtlier was requisite to be done by the vendors; and, therefore, any loss whicli might occur subsequently was at the risk of the purchasers. 1 Pothier, Tr. du Cont. de Vent. part iv. pp. 579, 584. It was the sale of a certain thing, assumed to contain a certain quantity. To the same effect are the English author- ities. Thus in Tarling u. Baxter,' Mr. Justice Ilolroyd says, "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 delivered, the pro])erty in the goods immediately passes to the buyer, and that in the price to the seller." And this case has been fol- loAved by Swanwick v. Sothern,- Zagury v. Furnell,'' Hanson v. Meyer,'* Martindale v. Sniith,^ Dixon v. Yates,'' Alexanders. Gardner," Gillett v. Hill,* Clarke v. Spence.^ [Lord Brougham: The case of Simmons v. Swift," is an authority against you. There it was held that where the quantity had to be ascertained before the price could be fixed, the con- tract was not coni])letc until delivery. It is on all fours with this case.] That case is distinguishable from the present. The judgment there proceeded upon the circumstance that the vendor was to weigh the goods. Here is a sale of a specific article, assumed to contain a certain quantity, which is to regulate the price. If any step was to be taken to ascertain the price, Ave admit that the contract is not complete. Simmons v. Swift. [Lord Campbell: Plow can you show the exact amount of the price ? The timber was to be paid for at the rate of 9?,c?. per foot measured off.] That might refer to a former measurement; we admit that there was to be a future measurement. The appellants, afler execution of the contract, and payment of the stipulated price, became mere bailees and agents of the respondents, and were only bound to use the same diligence, and to take the same care of the timber as they Avould have done if the property had been their own, Fragano v. Long," Kent's Comms., vol. ii. 491 ; Smith's Mercantile Law, p. 399 (2d edit.) ; they were not responsible for any loss which might arise, without wilful default of their own, and which would have arisen from the act of God, and vis major. By the terms of the contract of sale, the goods were to be delivered at Farlin's boom, on or before the 15th of June. Supi)osing the de- livery, at that time, was a condition precedent, and that the delivery did not take place till the 19th, instead of the loth of June, for there was a delivery and acceptance by Farlin, who nuist be treated as the axithorizcd agent of the purchasers; still, if time Avas a condition prece- dent, if there was a breach of the contract in that respect, the breach 1 6 B. & Cr. 365. '^ 9 Ad. & Ell. 895. 3 2 Camp. 240. * 6 East, 614. » 1 Q. B. Rep. 389. 6 5 b. &. Ad. 313, 343. 1 1 Bing. N. C. 671. » 2 Cro. & Mee. 530. 9 4 Ad. & Ell. 448. 10 5 B. & Cr. 857. " 4 B. & Cr. 219. 4> 688 LOGAN V. LE MESURIER. [CHAP. II. was waived by the acceptance by the purchasers of the remainder of the timber after the breaking up of the raft. Hotham v. East India Company,^ Glahohn v. Uays,^ Bornmann v. Tooke,^ Havelock v. Geddes," Ritchie v. Atkinson,^ Clipsham v. Vertue,^ Alexander v. Gardner,'' Porter v. Shephard,« Pordage v. Cole.« Abbott on " Ship- ping," p. 251 (2d edit.). The purchasers, after the loss, treated the property as their own. It is clear that the respondents took a great part of the timber under the contract. [Lord Brougham : The re- spondents say that the contract was at an end, and that the timber came to their hands irrespective of such contract.] A party cannot repudiate part of a contract. The vendors might have their cross- action for damages for non-performance of the entire contract. David- son V. Gwynne,i° Marshall v. Lynn," Constable v. Cloberie.^^ Even if the delivery, on the 19th, instead of the 15th of June, was not sufficiently excused, the appellants, though liable to damages if sustained by the purchasers by reason of the delay, were not compellable to refund the price of the timber; but the damage which they have sustained was not caused by the non-delivery on the 15th of June, but by the respondents not having taken proper measures to have Farlin's booms ready when the timber was delivered and accepted by them. The judgment of the Court of Appeals is, at all events, erroneous, in not having allowed, in reduction of damages, the value of the timber of which the respondents had obtained possession. Mr. Crowder, Q. C, and Mr. Ifartin, Q. C, for the respondents. The cause of action is for the non-delivery on the 15th of June, ac- cording to the terms of the contract. The only answer that could be made to that, was accord and satisfaction, or release: waiver could have nothing to do with it. The sale in question was a sale by ad- measurement, and not per aversionem; consequently the risk of the loss by casus fortuitus or ms major remained with the seller until either admeasurement had taken place or the purchaser was in default. Where the thing sold is not ascertained, or the price is not ascertained, the risk remains with the vendor. Pothier, Tr. du Cont. de Vent., pt. iv., n. 308, et seq. ; Viunius (Arnoldus), lib. iii., tit. 24 ;i^ 2 Burge's " Comms. on Confl. of Laws," 535 ; Voet, lib. 18, tit. 6, n. 4, "X>e Pericido et ComP And the English authorities, Simmons v. Swift," and Swanwick v. Sothern, are consistent with the principles of the civil law. The delivery and the measurement had not taken place at the time of the loss, which was occasioned without any default on the part of the purchasers. But even if the sale had been such as 1 1 Term Eep. 638. 2 2 Man. & Gr. 257. ' 1 Camp. 377. 4 10 East, 555. ^ lo East, 295. 6 5 Q. B. Rep. 265. 1 1 Bing. N. C. 671. ^ 6 Term Rep. 665. 9 1 Saund. 320. 10 12 East, 381. ^^ 6 Mee. & W. 109. " Palm. 397. 13 Edit. Amst. 1655, 4to. l* 5 B. & Cr. 857. SECT. II.] LOGAN V. LE ME3URIER. 689 to transfer to the piu'chasers the risk intermediate between the sale anfl the delivery, the sellers not having delivered or been ready to deliver at the time and place appointed in the contract, the risk, from the lime of such default, reverted to them ; the rule of the civil law, " (7/es inter- pellat pro homine^'' or that the lapse of the time specified alone, without any interpellation, is sufhcient to place the party in default, is applicable, and the sellers not having delivered the timber on or before the 15th of June, the time specified in the contract, were en demeure accordingly. There is nothing to excuse the breach ; the one alleged, namely, the lateness of the season, is no excuse. This was a breach, which nothing Init a waiver on the i)art of the purchasers could satisfy. To enable the sellers to take the benefit of the waiver, they must show that Farlin Avas the purchasers' agent for receiving the timber on the 19th of June. This Avas not so, therefore the whole loss falls on the appellants, and the respondents had a right to succeed in their action. Pothier, Tr. du Cont. de Vent., pt. iv., n. 312. The case of Swanwick V. Sothern,^ relied on by the ai)pellants, is against this proposition ; but its authority is impeached, and not to be supported. There is some doubt whether the fiicts of the case correspond Avith the judgment; and the taking possession of the timber saved, alter the raft Avas broken up, Avas not a Avaiver, it only created a new contract. The appellants set up a rijrht to the value of the timber, but seek to have it allowed in reduc- tion of damages. But if the contract has not been performed, an action on the contract Avill not lie, though sustainable for the value. They could not have both remedies by an action of damages and an action upon the ncAv contract. Story " On Bailments," p. 401. Mondel v. Steel.^ Ko injustice can be sustained by carrying out the judgment of the coui't beloAv in holding that the appellants are entitled to recover the value of the timber salved, and the respondents are entitled to recover the amount of the promissory notes and the damage for non- delivery. Lord Brougham. In this case, there was no contest betAveen the parties as to the laAV which should govern the decision of the question, because it appeal's, when the matter is duly considered, that the old French laAV, administered by the courts of the province of Lower Can- ada, and grounded on the civil law, is, in substance, the same with our oAvn, touching the subject-matter of the case noAV be ore us. The application of that laAV to the facts of this case remains alone to be con- sidered. We have here, not an agreement to sell, but a contract of sale with certain terms adjected ; and the main question is, Avhether or not that contract Avas completed, and passed the property to the l)uyer, before the accident happened Avhich partially destroyed the subject- matter of the contract. 1 9 Ad. & Ell. 895. « s Mee. & W. 858. 690 LOGAN V. LE MESURIER. [CHAP, II. !N'ow, to constitute a sale which shall immediately j^ass the property, it is necessary that the thing sold should be certain, should be ascer- tained in the first instance, and that there should be a price, either ascertained or ascertainable. But the parties may buy or sell a given, thing, nothing remaining to be done for ascertaining the specific thing itself, but the price to be afterwards ascertained in the manner fixed by the contract of sale, or upon a quantum valeat: or they may agree that the sale shall be complete, and the property pass in the specific thing, chattel, or other goods, although the delivery of possession is postponed, and although something shall remain to be done by the seller before the delivery ; or they may agree that nothing remains to be done for ascertaining the thing sold ; yet, that the sale shall not be complete, and the property shall not pass, before something is done to ascertain the amount of the price. The question must always be, what "was the intention of the parties in this respect ; and that is, of course, to be collected from the terms of the contract. If those terms do not show an intention of immediately passing the jDroperty until something is done by the seller, before delivery of possession, then the sale cannot be deemed perfected, and the property does not pass until that thing is done. It is unnecessary to go through the cases relating to these positions. None c>f them will be found at all to impugn them. Indeed, taken together, they clearly support it, as does the old French, and the civil law. In applying this doctrine to the contract before us, there may be some doubt raised by the peculiarity of the terras, inasmuch as, on the one hand, a certain chattel is sold, and a price fixed in reference to an assumed measurement, the statement of which is parcel of the con- tract, and the price is to be paid immediately, with a reserved right for the one party to recover part of that price, and for the other party to receive more, in case that assumption shall prove to have been in- correct ; while, on the other hand, the seller is to retain possession, to carry the chattel to a certain place, there to deliver it at a certain time, and to make the measurement before the delivery. But, taking the whole of these terms together, it appears to us that, until the measure- ment and delivery was made, the sale was not complete, there being nothing in the terms to show an intention that the property should pass before the measurement ; but, on the contrary, the intention rather appearing to be, that the transfer should be postponed until the meas- urement at the delivery. The timber is fully specified by the description, and the place where it lay ; it is further said to be the property of Durrell, but under the control of the sellers. Durrell's statement of the quantity is given, that it measured " 50,000 feet, more or less ; " it is to be delivered on or before a certain day, the 15th of June, at Farlin's Boom, Quebec, and the jDayment, to be made by a promissory note immediately, is to SECT. II.] LOGAN V. LE MESURIER. 691 be at the rate of 9.U7. per foot, measured off, that is, when measxired off; and, as the seller is to carry and to deliver it at Quebec, he is the party to measure it there, at or before the delivery. Then, should the quantity be found, when measured, to exceed the estimate, an addi- tional sum is to be given ; if it fall short, a part of the sum paid is to be returned. Taking the Avhole of the terms together, it ajjpears to ns, that the first i)art of the contract, selling an ascertained chattel for an ascertainable sum (and which, if it stood alone, would pass the ])rop- erty), actually paid upon an hypothesis or estimate, is controlled Ijy the subsequent part of *the contract providing for the possession, carriage, measurement, and delivery, all by the seller, with the readjustment of the price by repayment or increase of the sum paid upon estimate, in the event of the estimate pi'oving erroneous, and that so tlie prop- erty did not pass before the measurement and delivery at Quebec. If again, it be said that the measurement was not to be made by the seller, but in the manner alleged by the appellants, this can make no difference in the result of the agreement, because in what way soever, and by whatsoever mode, the measurement was to be after the delivery at Quebec. Instead of a sale, then, which the first part of the contract would import, if standing alone, it is only a contract to deliver at a certain place and time, and the property did not pass before that delivery. That the timber was not delivered at the place prescribed by the contract, we take, upon considering the whole of the evidence, to be sufficiently clear, and that it was not delivered anywhere at the time prescribed, is undisjjuted. The taking possession of a part of the tim- ber after the day, not at the place, and Avhen the stonn had broken up the raft, cannot of course be considered as a delivery, nor can it be considered as an acceptance of the whole, nor as showing by the party's admission, that the property passed before the accident, when the terms of the contract show that it did not so pass- It follows, from the whole, that the action is maintainable for recovery of the price jjaid, and for the difference between the contract price of 9k?. per foot, and lO^c?., the market price at the time when the timber ought to have been delivered. But from the sum of £1,979 3s. Ad., and the sum of £312 10s., must be deducted the value of the timber taken possession of by the respondents at lQ\d. per foot, less the sums paid by them for salvage and other charges. With respect to the quantity which they might have received on demand, a further sum may be deducted if the quantity can be agreed on ; and if no such furthe • deduction be made, then the property in that timber remains with the seller. Our desire is, that the parties should come to an un- derstanding upon these deductions, in order that the sums may be inserted in the judgment, and all further proceedings in the province become unnecessary. 692 TURLEY V. BATES. [CHAP. II. The following report was made by tlieir lordships, which was duly- confirmed by an Order in Council, bearing date the 11th of February, 1848: — The Lords of the Committee, in obedience to your Majesty's said Order of Reference, have taken the said appeal into consideration, and having heard coun- sel on both sides, their lordships do this day agree humbly to report to your Majesty as their opinion, that the said Judgment of the said Court of Appeals rendered in the said cause, or action, on the lOtb of November, 1845, ought to be varied, by reducing the amount of the said sums of £1,979 2>s. 4(i., and £312 10s., making together £2,291 13s. 4d., thereby adjudged and ordered to be paid by the said Appellant, James Logan, to the said Respondents, Henry Le Mesurier, Haviland Le Mesurier, Routh, and William Henry Tilstone, to the sum of £1,200 sterling, to be paid with lawful interest thereon, according to the law of Canada, from the 6th day of March, 1834, until the time of payment ; and their lordships are further of opinion, that such part of the said judgment of the Court of Appeals as relates to the costs of the said suit or action ought to be affirmed, and that each party do^ay their own costs in this appeal to your Majesty in CouncilL/ ^ , lA ifJ ,jj\ r ^\[P \y vi/f^^^^^ '^^^ Exchequer, June 6, 1863. '^ jV v^ j J, ^ [>' [Reported in 2 Hurlstone ^- Coltman, 200.] 1 v^ ^yTHE declaration contained a special count, alleging that the plaintiff Y* 1j\/oargained and sold, and the defendant bought from the plaintiff, a A^^ quantity of fire-clay then deposited on certain land of the plaintiff, at ' t/^ the price of two shillings per ton, upon the terras 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, Sfoods sold and delivered, and on an account stated. The defendant, as to the first count, pleaded a denial of the buymg and selling, and of the plaintiff's readiness to deliver and suffer the defendant 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 I SECT. II.] TURLEY V. BATES. 693 in the judgment, post, 697, The phiintifF was an iron and coal master at Cosely, in Staffordshire. In the year 1854, and between that and tlie year 1857, he excavated and raised from his colliery, the Cosely Moore Colliery, a quantity of fire clay. Tliis clay was stacked in a heap on land of the plaintiff near to the bank of his coHiery. Before December, 1860, a portion of this heap had been sold and re- ,-^ moved. In that month a quantity, estimated by tlie plaintiff at about ^"^ 1500 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. According to the case for the plaintiff, the bargain concluded was for the sale and purchase of the entire heap as then stacked, at the price of two shillings per ton; the plaintiff being M'illing to take that price, instead of a higher one which he had demanded, provided the whole heap was taken away, so that the ground might be cleared ; that the defendant 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 defendant'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 was contended by the defendant that the bar- gain was not for the whole heap as it stood, but only for such portion of the clay as tfie defendant chose to send for and cart away, and, after having it weighed at Johnson's machine, to pay for it at the rate afore- said. 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, furthei- 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 four first occasions of carting away, the clay was weighed at Johnson's machine. On one occasion, the last, and Avithout any notice to the plaintiff, clay was loaded by the defendant's servants and carted away in an opposite direction to the weighing machine, and such clay Tvas taken to a canal, where it was loaded into a boat and taken by water carriage to Liverpool. The plaintiff, whilst the defendant's men were carting this last clay, saw them and followed them, and the clay VOL. I. 45 694 ' TURLEY V. BATES. [CHAP. II. 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 he denied his liability to take or pay for more than had been re- moved. 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 bar- gain ; 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 Johnson'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 clay 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 clay not removed, at the contract price of two shillings per ton ; leave being reserved to the defendant to limit the verdict to the iirst 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 term a rule for a new trial, on the ground of mis- direction on the point of warranty, was applied for and refused ; but a rule nisi was granted, pursuant to the leave reserved, to limit the ver- dict to the first count and reduce the damages to nominal damages ; against which Pigott, Serjt., and M. James showed cause in the present term (June 6). The question is whether the property in the clay passed to the defendant, so as to entitle the plaintiff to recover the agreed price under the count for goods bargained and sold. The rule of law is clear that where, on a contract of sale, any thing remains to be done on the part of the seller, until that is done the property does not vest in the buyer. Simmons v. Swift.^ In Hanson v. Meyer,^ by the partic- ular terms of the contract, the price was made to depend on the weight of the goods, and therefore, until their weight was ascertained, the buyer had no right of property in them. But in this case, by the terms of the contract, the defendant was to cart away the clay at his own 1 6 B. & C. 857. 2 6 East, 614. SECT. II.] TURLEY V. BATES. 695 expense, and weigh it at the weighing machine of a third person. [Channell, B., referred to Gihnour v. Supple.^] Nothing remained to be done on the part of the plaintiff, and the defendant had a right to the possession of the clay, the weight of which was to he ascertained by him. Suppose a butcher bought an ox in a field, under a contract that when killed he should ascei'tain its weight, and he afterwards took the ox away and killed it, could it be said that no property vested in him until it was weighed. [Martin, B. That is merely the same question in another form.] In Gilmour v. Supple, Sir C. Cresswell, in delivering the opinion of the court, said : " By the law of England, by a contract for the sale of specific ascertained goods, the property im- mediately vests in the buyer, and a right to the price in the seller, un- less it can be shown that such was not the intention of the parties." Here, by the terms of the contract, the parties intended that tlie prop- erty in the clay should pass to the defendant before it was weighed, because the defendant undertook to remove and Aveigli it. Could the plaintiff retake possession of it because it was not weighed? In Blackburn on Contract of Sale, p. 151, it is said that the rules " are twofold : the first is that where, by the agreement, the vendor is to do any thing to the goods for the purpose of putting them into that state in which the pvxrchaser is to be bound to accept them, or, as it is some- times worded, into a deliverable state, the performance of those things shall (in the absence of circumstances indicating a contrary intention) be taken to be a condition precedent to the vesting of the property. The second is, that where any thing remains to be done to the goods for the puq^ose of ascertaining 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 perfoiTuance of these things, also, shall be a condition precedent to the transfer of the property, although the in- dividual goods be ascertained, and they are in the state in which they ought to be accepted." In Rugg v. Minett,^ and Zagury v. Furnell,^ something remained to be done by the sellers to ascertain the amount of the price, and that not having been done, the goods, whicl^ were destroyed by fire, remained at the seller's risk. But where the buyer, for his own satisfaction, has the option of weighing the goods, but the seller has no such privilege or duty, the sale is complete, and the prop- erty transferred to the buyer as soon as the bargain has been concluded. Swanwick v. Sothern.^ Suppose the defendant had taken away and sold all the clay, would it have been any answer to an action for the price that he had never weighed it ? [Bramweli., B. Suppose a con- \ tract for the supply of gas at so much per cubic foot, the gas would be | consumed before the quantity was ascertained, and could it be said [ that until that was done the property did not pass? JIiLvrtln, B. i 1 11 Moo. P. C. 551. 2 11 East, 210. 3 2 Camp. 240. ♦ 9 A. & E. 895. 696 TURLEY V. BATES. [CHAP. II. Was not the defendant a wrong-doer in taking the goods without weighing them ?] If so, the plaintiff may waive the tort and sue for their price. Overend and Quain, in support of the rule. It is immaterial whether the act is to be done by the buyer or seller ; so long as any thing re- mains to be done for the purpose of ascertaining the price of the goods, or their weight, or measurement, the right of property and risk of loss are not altered. Addison on Contracts, p. 223, 4th ed. ; Gilmour v. Sup- ple.^ The French code prescribes the same rule of law. Code Civil, liv. iii., tit. vi., ch. 1, art. 1585,2 1586,^ 1587.* If it appears by the terms of the contract that the intention of the parties was that no prop- erty should pass until something was done, it will not pass. In Gil- mour V. Supple,^ Sir C. Cressweli said : " Another rule may be extracted from the case of Rugg v. Minett,^ namely, that where the seller is to do some act for the benefit of the buyer, to place the goods sold in a state to be delivered, until he has done it the property does not pass. ... So, also, if an act remains to be done by or on behalf of both parties before the goods are delivered, the property is not changed; of which Wallace v. Breeds ^ furnishes an instance." Therefore it is a question of intention. In the case put of gas to be supplied at so much the cubic foot, it is evident that the quantity could not be ascertained until the gas was consumed, and therefore the intention was that the property should pass. In Kent's Commentaries, vol. 2, part v., lee. xxxix., p. 496, 10th ed., it is said, "It is a fundamental principle per- vadino- everywhere the doctrine of sales of chattels, that if the goods of different value be sold in bulk and not separately, and for a single price, ovper aversionem, in the language of the civilians, the sale is perfect, and the risk with the buyer ; but if they be sold by number, weight, or measure, the sale is incomplete, and the lisk continues Avith the seller, until the specific property be separated and identified." The rule is stated in similar terms by Troplong in his commentary on the Droit Civil^ \liv. 3, tit. 6], " De la Vented' ch. 1 (Art. 1585), § 90.' They also cited 1 11 Moo. P. C. 551. 2 1585. "Lorsque des marchandises ne soiit pas vendues en bloc, mais au poids, au eompte, ou a la mesure, la vente n'est point parfaite, en ce sens que les choses vendues sont aux risques du vendeur, jusqu'a ce qu'elles soient pesees, compte'es, ou mesurees ; mais I'acheteur peut en demander ou la delivrance ou des dommages- interets, s'il y a lieu en cas d'inexe'cution de I'engagement." 3 1586. " Si, au contraire, les marchandises ont ete' vendues en bloc, la vente est parfaite quoiqu'e les marchandises n'aient pas encore e'te pese'es, compte'es, ou mesu- rees 4 1587. " A regard du vin, de I'huile, et des autres choses que I'on est dans I'usage de gouter avant d'en faire I'achat, il n'y a point de vente tant que I'acheteur ne les a pas goutees et agre'ees." 5 11 East, 210. « 13 East, 522. 1 " Le prix est incertain tant que le mesurage n'a pas fait connaitre le detail de la quantite' vendue. Or, I'incertitude dans le prix rend la vente conditionnelle, lorsque. SECT. II.] TURLEY V. BATES. 697 from Blackburn on Contract of Sale, p. 177, the extract from Pothier, "2>?< Contrat de Verite^'' partie iv., and the judgment of Littledale, J., in Simmons v. Swift.^ Our. adv. vidt. The judgment of the court was delivered, in the following Michael- mas vacation (December 6), by Channell, B. This was an action tried before me at the Middle- sex sittings, in last Easter term. (His lordship then stated the pleadings, and proceeded.) At the trial a verdict was found for the plaintiff, damages £112 10s. 6c?., with leave reserved to the defendant to move to reduce the verdict to nominal damages on the ground here- inafter mentioned. (His lordship then stated the facts as above set forth, p. 692.) This rule was argued before the Lord Chief Baron, my brother Bramwell, and myself For the plaintiff it was contended, that where full authority was given to the buyer to remove the clay sold, and all that the seller liad to do according to the contract was complete, and where every thing that remained to be done was to be done by the buyer at his own ex- pense; 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 property, 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 jury, that there had been a removal and weighing of part of the clay, yet no property passed in any clay 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 several cases decided in our courts, which were said to govern the question, 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 quantity, to be ascertained by weighing, that until the goods had been weighed, and the price so ascertained, the con- tract was incomplete ; which rule it was said was in accordance with the rule given in Pothier, Contr. de Vente, with Kent's Commentaries, vol. 2, p. 496, NcAv York edition, 1848, the Code Civil, liv. iii., tit. vi., ch. 1, art. 1585, 1586, 1587. The rule as stated in Blackburn on Contract ot Sale, p. 152, is, '*that pour passer de rincertain au certain, il faut remplir une condition telle que celle du comptage, du mesurage ou du pesage." 1 5 B. & C. 857, 864. 698 TURLEY V. BATES. [CHAP. II. where any thing remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing ihe goods where the price is to depend on the quantity or quahty of the goods, the performance of these things, also, shall be a condition precedent to the transfer of the property, although the individual goods be ascer- tained, and they are in the state in which they ought to be accepted." After adverting to the rule as one 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 I 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 the act of weighing when the price is to depend on the weight, there seems little reason why, in cases whei'e the specific goods are agreed u2:)on, it should be supposed" to l^e the intention of the parties to render the delajl-fiOh.^t ^ct,, in which the buyer is to concur, beneficial to him. Whilst the price remains unascertained, the sale is clearly not for a cer- tain 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 require 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 here, and to rest upon the authority of the English decided cases. Several cases are then cited in the treatise : Hanson v. Meyer,^ Hinde V. Whitehouse,^ Rugg v. Minett,^ Zagury v. Furnell,* Simmons v. Swift,s Laidler v. Burlinson,® Tripp v. Armitage.'^ The author further observes, " that if it appear from the agreement that the intention of the parties is that the property shall pass pres- ently, the property does pass, though there remain acts to be done by the vendor before the goods are dehverable ; " citing Woods v. Russell,* Clarke v. Spence.^ 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 of the property, it was meant by the learned author to include 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 act. In Hanson v. Meyer the weighing was to precede the delivery, and was a condition precedent to the purchaser's right to take possession, and to a comj^lete present right of property. In Hinde v. Whitehouse, 1 6 East, 614. 2 7 East, 558. 3 11 East, 210. * 2 Campb. 240. 5 5 b. & C. 857. « 2 M. & W. 602. 7 4 M. & W. 687. 8 5 B. & A. 942. » 4 A. & E. 448. SECT. II.] TURLEY V. BATES. 699 which was a case of a sale by auction, it was held that thougli the duties to the crown remained to be paid by the seller, before possession could be had by the buyer, the jjroperty 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 Ellenboroufh stated the test to be, " whether every thing had been done by the sellers which lay upon them to perform in order to put the goods in a deliv- erable 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 Avas 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 any thing remains to be done on the part of the seller, until that is done the property is not changed." From a consideration of these cases, it appears that the principle involved 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 every case. This is clearly laid down in the case of Logan v. Le Mesurier,^ and in Ilinde v. Whitehouse,^ cited sujyra, and in Blackburn on Contract of Sale, p. 151. In the present case the jury have, in effect, adopted the 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 property in the whole heap should pass, notwithstanding the clay was to be weighed at Johnson's machine ; and we, therefore, think that the rule to reduce the damages must be dis- charged. Mule discharged. 1 6 Moo. r. C. C. 116. 27 East, 558. V. OGDEN. [chap. II. ^ RSHAW V. OGDEN and Others. In the Exchequer, May 8, 1865. [Reported in 3 Ilurlstone <^- Coltman, 717.] The declaration contained a special count for not accepting certain goods, to wit, cotton waste. Also, counts for goods bargained and sold, and goods sold and delivered. Pleas {inter alia). To the first count, that the defendants did not buy the goods ; to the indebitatus counts, never indebted. Issues thereon. ^^ At the trial before Mellor, J., at the last Leeds Assizes, the following V^ facts appeared: In December, 1863, the plaintiff, a cotton spinner, hav- nI ing some cotton waste for sale, one Greenhalgh, an agent of the defend- v^^ ants, who were also cotton spinners, went to the plaintiff's warehouse, i\ when he was shewn by the warehouseman five stacks of cotton waste. nI ^ He asked for a sample, and was told it was not the plaintiff's course of V business to sell by sample ; but that he might examine the stacks, and \ take a sample himself, which he did. After some negotiation Green- ' i halgh agreed to purchase four of the stacks, at \s. ^d. a pound, the de- "^ fendants to send their paclcer and sacks, and their cart to remove it. ^ On the 3d of January following, the defendants sent their packer with eighty-one sacks to pack the waste ; and he, with the assistance of the plaintiff's men, packed the four stacks into those sacks. On the 5th of January, twenty-one sacks were weighed, put into the defendants' cart and taken to tlieir premises, together with a delivery order stating the H^ weight. The remainder of the sacks were not weighed. On the same 'CN^ day the twenty-one sacks of cotton waste were returned to the plaintiff k 1^ ^ by the defendants with a note, stating that the waste was of an inferior I ^ I description to that purchased by them. The defendants' carter took ^\ x^ the horse out of the cart, and left it loaded with the waste outside .'^ V\^ the warehouse of the plaintiff, who, to prevent it from spoiling, ordered ^^ ^"^ it to be placed under shelter, and the next day removed it from the s^ cart into his warehouse. V. The learned judge left it to the jury to say whether, under all the '^^'^ircumstances, the defendants did accept and actually receive part of the cotton waste ; if so, the plaintiff was entitled to their verdict. The jury found in the affirmative, and a verdict was entered for the plaintiff for £784 on the count for goods bargained and sold, leave being reserved to the defendants to move to enter a nonsuit. "^ Brett, in the present term, obtained a rule nisi accordingly, on the ^grounds: first, that there was no evidence of an acceptance and actual 1^.. SECT, II.] KERSHAW V. OGDEN. 701 receipt of the goods, so as to constitute a Ijinding contract within the 17th section of the Statute of Frauds, 29 Car. 2, c. 3 ; secondly, that the property in the goods did not pass to the defendants; against which Edward James and IlolJcar, now shewed cause. First, there was a sufficient acceptance and actual receipt of part of the goods to satisfy the 17th section of the Statute of Frauds. The defendants purchased certain ascertained goods, viz., four specific stacks of cotton waste; and when the defendants' packer put it into their sacks there was an accept- ance of it by them. There was also an actual receipt of the cotton waste by the defendants, for their servants put it into their cart and took it to their premises. It is not necessary that tlie acceptance of the goods should follow or be contemporaneous with the receipt of them. Cusack V. Robinson.^ In that case the accejitance was at Liverpool, and the receipt in London. [Pollock, C. B. TJie Error from the Superior Court of the city and county of New ^i__^ York. Ward sued Shaw in an action of trover for two oxen, being fat cattle, taken by him as sheriff out of the possession of one Crawbuck, by virtue of an execution in favor of one Piatt. The oxen came into the possession of Crawbuck under these circumstances : he was a \ butcher and agreed to purchase them of Ward at $7.50 for each cwt., which the quarters should weigh when slaughtered, he to take i v ^ the cattle into his possession, prepare them for slaughtering, slaughter \ them in the Aveek in which the contract was made, and when slaugh- * tered take the quarters to market, weigh them, and pay for the cattle the amount the weight of the quarters would come to at 87.50 for each cwt., Avhich sum was to be received by Ward in full, as well of all other parts of the cattle as the quarters. Crawbuck took the cattle into his possession, and on the same day they were levied upon under Piatt's execution, which was issued on a judgment obtained previous ^ to the contract between Ward and Crawbuck, and taken away. On , •', ^« the trial of the cause, the presiding judge charged the jury, that the | '^ i) i contract between Ward and Crawbuck, and the delivery of the cattle ' ^ [^ to Crawbuck vested the title and ownership in Crawbuck, and that they ^'^^y were subject to the execution. The plaintiff excepted to the decision. /^^ The jury found for the defendant, and the Superior Court refused on 1/* ^ motion to set aside the verdict (Mr. Justice Oakley dissenting). The ///-^ plaintiff sued out a writ of error. S. P. Staples, for plaintiff in error. J. 0. Grim and J. B. Whiting for defendant in error. By the court. Savage, C. J. The question is whether Crawbuck had an interest in the cattle which could be sold on execution. The sheriff and the plaintiff in the execution are possessed of the rights of Crawbuck and no more. Had Crawbuck sold the cattle to a purchaser for valuable consideration, without notice of the terms on which he 704 WARD V. SHAW. [CHAP. II. possessed them, other considerations might prevail ; but in this case no new credit has been given to Crawbuck in consequence of his hav- ing the cattle in his possession. Piatt's debt accrued antecedent to the transaction in question, and of course was not contracted upon the credit of this property. If he fails, he is in no worse situation than he was before the sale of the oxen. The question, then, is one between vendor and vendee, and as be- tween them certain principles have been settled. 1. Where no credit is agreed to be given for the price of an article sold, the payment and delivery are concurrent acts. The vendor may refuse to deliver with- out payment ; but if he does deliver freely and absolutely, and with- out any fraud on the part of the vendee, the condition of payment simultaneously with the delivery is waived; confidence is reposed, credit is given, and the property passes. This was so decided in Chapman v. Lathrop, 6 Cowen, 110, -and is supported by the cases there cited, 4 Mass. 405, 5 T. R. 231, and also by Harris v. Smith, 3 Serg. & Rawle, 20, 24, and by Chancellor Kent, 2 Kent's Com. 391. But where part only of the property has been delivered, without demanding compliance with the condition, the vendor may refuse to deliver the residue until performance of the condition. 1 Camp. 427. 2. If the vendor deliver the goods, accompanied with a declar- ation that he does not consider them sold until payment is made, according to a previous contract, the sale is conditional, and the prop- erty does not pass by the delivery as between the parties to the sale. 4 Mass. 405; 17 id. 606. Two things are essential to the transfer of the title to personal property upon a cash sale : payment by the ven- dee, and actual or constructive delivery by the vendor. The first may be waived by the vendor, and the cases above cited show that an abso- lute delivery is such waiver, but that a delivery subject to the condi- tion of payment is not. 3. It is also a settled principle, that where any thing remains to be done by the vendor before the article is to be delivered, the right of property has not passed. So in the case of Hanson v. Meyer, 6 East, 615, where a quantity of starch was con- tracted to be sold at a certain price per hundred, the vendor gave the vendee an order, addressed to the keeper of the warehouse Avhere the starch lay, directing him to weigh and deliver all his starch, it was held that the property did not pass before the weighing, which was to pre- cede the delivery and to ascertain the price. The language of Lord Ellenborough in that case is applicable here: "By the terms of the bargain, two things, in the nature of conditions or preliminary acts, necessarily preceded the absolute vesting in them (the purchasers) the property contracted for. The first of them is one which does so ac- cording to the generally received rule of law in contracts of sale; to. wit, the payment of the price or consideration for the sale. The sec- ond, which is the act of weighing, does so in consequence of the par- SECT. II.] WARD V. SHAW. 705 ticular terms of this contract, by which tlie price is made to depend upon the weight. The weiglit tlierefore must be ascertained, in order that the price may be known and paid." Vide Outwater v. Dodge, 7 Cowen, 86. The sale being for cash, and by weight, the vendor is not bound to deliver until payment is made. Payment cannot be made until the price is ascertained ))y the act of Avcighing. Should, therefore, tlie vendee refuse to slaugliter the oxen according to contract, and put them to work on a farm, the vendor may retake them. Should lie re- fuse to pay, after weighing the quarters, the oAvner may take posses- sion of his slaughtered cattle, for the property has not passed under such a contract, until payment is made or waived. The terms of the contract in this case forbid the idea of a waiver of j^ayment when the cattle were delivered to be prepared for slaughter. The rule laid down in Hanson v. Meyer is, that the property does not pass when any thing remains to be done by the vendor ; when the tiling to be done is necessary to ascertain the price, and the sale is for cash, it can make no difference whether that thing is to be done by the vendor or vendee. The property is not to pass till payment ; the price must precede the payment, and until tlie price is ascertained, payment cannot be made or waived, unless by express terms ; the acts of the vendor cannot be- fore that time be construed into a waiver. This case is unlike most of the English cases, where the property was in a warehouse of a third person. I put the case upon its own circumstances ; the delivery was for a special purpose, not an absolute delivery to the vendee as such, but rather as bailee. There was an act to be done to ascertain the price. In general, the act of weighing or measuring is to be done by the seller, but parties have a right to stip- ulate that the purchaser shall do such act. It is sufficient that the vendor has an interest in the act to be done, and has a right to be present ; when the Aveiglit is ascertained, then, and not before, can the vendor demand payment. If payment is then made or waived, the property passes absolutely, otherwise not. If I am correct in this view of the case, Crawbuck had no interest in the cattle which could be soM on Piatt's execution. I am of opinion, thPi'cfore, that the court below erred, and that tlie judgment must bo reversed ; a venire de novo to issue by that court, and the costs to abide the event. i '\^^ 7,06 V V A "^\\jSeRRY v/ WHEELER. [CHAP. II. \y' \J^l (^ V^ \^ TERRY V. WHEELER. y \y\ New York Court of Appeals, December Term, 1862. [Repotted in 25 New York Reports, 520.] Appeal from the Supreme Court. Action by the assignee of Lewis Elmore, to recover the price paid for a quantity of lumber, purchased fs by Elmore of the defendant, at his lumber yai"d in Troy, which the ^ defendant agreed but failed to deliver at the railroad in Troy. The s^ defendant denied his liability, on the ground that the title to the prop- 's erty vested in Elmore at the time of the sale ; and that the property N was destroyed by fire immediately after the sale, without fault on his W part. The cause was tried before the court, which found the following v> facts : — ^ s. 1. That on the 24th of August, 1854, the defendant sold to Lewis .^ Elmore, by a written bill of sale, a quantity of lumber of the character, *> at the price, and upon the terms set forth in the bill of sale, and that ^ payment therefor was made as stated in said bill. ^ The bill of sale was as follows : — I Troy, N. Y., August 24, 1854. Mr. Lewis Elmore, Bought of E. B. Wheeler. l^ (Terms : Three montbs from date of sale.) 4,160 feet clear pine $34 $141.44 4, 779 „ 4 „ 24 114.69 7,319 „ box „ 20 146.38 <| Inspection 2.03 600 piece boards 17c 102.00 $506.54 Cr. By deduction for cash 5.00 Aug. 25. By cash • 250.00 Yournote due Nov. 28 .... 251.54 $506.54 Rec'd payment as above, E. B. Wheeler, per Wm. A. Craig. To be delivered to the cars free of charge. ^«*^,«..,.,,,^^«=^-^.----- E. B.Wheeler. Craig. 2. That after such sale and payment, and after delivery of said bill of sale, and in the afternoon of the same day, the memorandum there- upon, as follows, " to be delivered to the cars fi-ee of charge " was in- dorsed and signed by the clerk of the defendant. Whether this was SECT. II.] TERRY V. WHEELER. 707 done by the authority of the defendant, or whether the defendant then recognized its purport as a part of the original agreement, the court held it not necessary to decide, the pai'ol evidence being held compe- tent and sufficient on that point. 3. That the lumber so sold was, at the time of sale upon the de- fendant's yard, at the city of Troy, and had been inspected and meas- ured ; that the three first items named in the bill constituted one separate pile designated as the lumber sold to Elmore ; and as to the remaining item, viz., 600 pieces, these were to be taken from the top of another pile containing more than that number, and a mark was made, showing how far the 600 pieces came on that pile. 4. That the note mentioned in the bill of sale Avas transferred by the defendant before maturity, and paid by Elmore before his assign- ment to the plaintiff. 5. That the lumber so sold was on the same day of the sale, and within a few hours thereaftei-, and before the removal of any part thereof, and without any ftiult or delay on the part of the defendant, accidentally consumed by tire. 6. That at the time of the written contract of sale, and as a part of the agreement for sale, the defendant stipulated by parol to deliver said lumber at the railroad free of charge, no time for such delivery being specified. 7. That Elmore, on March 1st, 1855, assigned to the plaintiff the cause of action for which this suit was brought. The court also decided, that upon the question of an agreement to deliver the lumber, there was no conflict of evidence ; that the testi- mony of the defendant and his witnesses upon that point was substan- tially to the same effect as the testimony of Elmore. And, although requested, the court declined to consider the evidence upon that point as conflicting, or to pass upon the credibility of any or either of the witnesses. And the court decided that, as the lumber sold was to be delivered by the defendant and was not delivered by him, he was liable to the plaintiff, and on that ground judgment was rendered in fiivor of the plaintiff for the amount claimed. The defendant's counsel excepted to each and every of the find- ings of fiict and conclusions of law by the court, and to the refusal to examine and decide upon the credibility of witnesses. After the introduction of .the bill of sale by the plaintiff, on the trial, the defendant's counsel moved that the parol evidence in regard to the sale should be stricken out, on the ground that the bill of sale was the contract, and parol evidence was not admissible to contradict it. The motion was denied, on the ground that the agreement to deliver need not be put in the bill, and that parol evidence on that subject was competent and did not disagree wuth it. To this decision an excep- tion was taken. 708 TERRY V. WHEELER, [CHAP. II. The Supreme Court at general term affirmed the judgment, and the defendant brought this apjDeal. William A. Beach, for the appellant. William L. Learned, for the respondent. Selden, J. There may be some doubt whether the parol evidence in regard to the agreement to deliver the lumber was admissible, but if it were necessary to decide that question, I should regard it as admissible on the ground that what is called the bill of sale was in substance a mere receipt for the purchase-money, and did not purport to be a contract. Dunn v. Hewitt, 2 Denio, 637 ; Blood v. Harring- ton, 8 Pick. 552 ; Filkins v. Whyland, 24 :N'. Y. 338. If the lumber had not been paid for, and the instrument, omitting the receipt, had been signed by the defendant and delivered, as a note or memorandum of the sale, it would then have been the evidence of a contract executory on one part at least, and not open to explanation by parol. But look- ing at the whole instrument, I think it is to be regarded as a receipt, and not a contract within the cases above cited. Of course, in this view, the memorandum at the foot of the bill is not regarded as a part of it; if it were, its character would be changed from a receipt to an executory contract, conclusive upon the pai'ties, except so far as it was still a receipt. Egleston v. Knickerbacker, 6 Barb. 458. The point which is made upon the contradictory character of the evidence in relation to the contract to deliA^er the lumber on the cars, and its sufficiency to establish such contract, presents only a question of fact, which this court cannot review. Where the finding of a court or referee upon a question of fact is ambiguous, the evidence may be referred to for the purpose of removing the ambiguity, but not to re- verse or modify a distinct finding, or to establish an independent fact not found. 19 K Y. 210 ; 21 id. 550 ; 22 id. 324 ; 23 id. 344. We can no more review the decision of the court, that the testimony was not conflicting, than we can the conclusion that it was sufficient ; and we can do neither Avithout making a precedent which would open to review here the details of the evidence in all cases. But in the view Avhich I take of the remaining question, it becomes immaterial whether there was a contract to deliver at the cars or not. The lumber had not been actually delivered, but remained in the pos- session of the vendor. In the absence of any express contract to deliver, there was an implied one to deliyer at the yard of the vendor, when called for. In either case the lumber did not remain at the risk of the vendor, if the title did not remain in him. The risk a,ttends_ upon the title, not uj)on the possession, where there is no special agree- ^^^^nt upon the subject. Tarling v. Baxter, 6 B. & C. 360 ; Willis v. Willis, 6 Dana, 49 ; Hinde v. Whitehouse, 7 East, 558 ; Joyce v. Adams, 4 Seld. 296 ; 2 Kent's Com. 492, 496 ; Noy's Maxims, 88. I entertain no doubt that, upon the facts found in this case, the title was SECT. II.] TERRY V. WHEELER. 709 in the vendee. Tlie lumber Avas selected by both parties and desig- nated as the lumber sold to Elmore, except the GOO pieces, which were selected by the parties, and the precise pieces sold designated with as much precision as if the- purchaser had marked every piece witli his name. That which was sold by measurement was inspected and measured, and the quantity ascertained ; the jjrice for the whole Avas agreed upon and paid, and a bill of parcels receipted and delivered to the purchaser. These facts, I think, vested the title in the purchaser, notwithstanding the agreement of the seller to deliver the IuihI^lt free ofcharge at the cars. " The sale of a specific cliattel passes the proj)- erty therein" to the vendee, without delivery." Chitty on Contr., 8th Am. ed., j). 332. " 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." Olyphant v. Baker, 5 Denio, 382. The authorities are numerous, where the expression is used that if any thing remains to be done by the seller, the title does not pass ; but the cases which are referred to to sustain that position, only go the length of showing that where something is to be done by the seller to ascertain the identity, quantity, or quality of the article sold, or to put it in the condition which the terms of the contract require, the title does not i)ass. 2 Kent's Com. 496 ; Hanson v. Myer, 6 East, C14 ; Simmons v. Swift, 5 B. & C. 857 ; Joyce v. Adams, 4 Seld. 291 ; Field v. Moore, Lalor's Sup. 418. The list of cases to this effect might be indefinitely in- creased ; but no case has been referred to by counsel, nor have I dis- covered any, in which, where the article sold was perfectly identified and paid for, it Avas held that a stipulation of the seller to deliver at a particular place prevented the title from passing. If the payment Avas to be made on or after delivery, at a particular place, it might fairly be inferi-ed that the contract Avas 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 prop- erty 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 oAvner. The questions Avhich arise in such cases, as to sales, are questions of intention, such as aiise in all other cases of the inter- pretation of contracts ; and Avhen the focts are ascertained, either by the Avritten agreement of the ])arties or by the findings of a court, as they are here, they are questions of laAV. That the parties to the con- tract in this case intended to pass the title to the lumber immediately, appears very clear ; nor do I suppose that any one Avould question it, were it not for the ap])arent hardship of the case to the purchaser. If the property, instead of being lumber, had been sheep or coavs capable VOL. I. 46 710 BISHOP V. SHILLITO. [CHAP. II. of increase (which follows the ownership), and there had been a sud- den and large increase to the flock, or drove, before they could be delivered at the point agreed upon, I think no one would have said that the defendant could have discharged his obligation to deliver, and yet retained the increase. Such, however, must be the conclusion, if the plaintiff's position is maintained. The judgment should be re- versed and a new trial granted. All the judges concurring, Judgment reversed and new trial ordered. V) which it appeared, that the plaintiif, who was an auctioneer, on the J \ ^ 11th of June, 1846, sold at auction for Kettell & Collins, on the wharf '^ Ni opposite tlieir store, sixteen hogsheads of molasses, which were pur- ^ \a chased by Davis, Brown, & Company, the terms of sale being a satis- ^ factory note at four months, or three per cent off for cash ; that, on the day of the sale, the plaintiff's clerk called on the purchasers, and stated to Davis, one of the firm, that their note would not be satisfactory, and was answered by Davis that it would be time enough for Kettell & Collins to refuse the note when it was ofiered to them, but that he should comply with the terms of the sale and pay cash three per cent off; that after this promise, and on the same day, the goods were delivered ; that on the 12th of June, being the day after the sale and delivery, the bill of parcels was sent, with the words, "4 mos. 3 per cent off," writ- ten on the margin ; that, on the 13th, the clerk of the plaintiff called on the purchasers for the money, and was told by Davis that he would see the plaintiff and make it satisfactory; that, on the IGth, fifteen hogs- heads of the molasses (one having been sold) Avere taken with all the stock of Davis, Brown, & Company, by the defendant, as a deputy ^heriff on an execution in favor of Joseph Brown ; that afterwards, on J 1 1 ^ ^ 3 i SECT. III.] C0G6iLL V. HARTFORD AND NEW HAVEN R.R. CO. < l^L ^ the day of the seizure, the pLiintifF sent to Davis, Brown, & Company, to get the mohisses, and was informed by them that there was an at- tacliment on it, and that he couki not have it without a writ of re- plevin ; tliat, on the 20th of June, the fifteen hogsheads were replevied \ by the plaintiff, a formal demand thereof having been previously made ; ^ that the plaintiff liad made no advances on the molasses, but was merely \ s employed to sell the same at auction ; and that it was customary, in ?\ ^ cash sales, to deliver the goods before the money was paid. N^ W. Dehon, for the plaintiff. >a ''^j A. B. Ely (with Avhom was S. Bartlett), for the defendant. ^ >v^ Metcalf, J. The court are of opinion that the sale, in this case, \^ ^ was conditional, an ,1 ., livered and the property pass without tlie immediate return of the note, ' ' ' and if there had been no laches or want of diligence in reclaiming the property when it was found that the note did not come back, the prop- . erty did not pass ; and the facts which the defendants offered to prove would not constitute a defence." The defendants submitted to a verdict for the plaintiffs, and alleged exceptions to these instructions. This case was argued and decided at October term, 1853. ^. W. Bond, for the defendants. M. A. Chapman and J. WelU, for the plaintiffs. BiGELOw, J. It has long been the settled rule of law in this com- monwealth, that a sale and delivery of goods, on condition that the property is not to vest until the purchase-money is paid or secured, does not pass the title to the vendee, and that the vendor, in case the condition is not fulfilled, has a right to repossess himself of the goods, both against the vendee and against his creditors, claiming to hold them under attachments. Hussey v. Thornton, 4 Mass. 405 ; Marston V. Baldwin, 17 Mass. 606; Barrett v. Pritchard,2 Pick. 512; Whitwell V. Vincent, 4 Pick. 449 ; Hill v. Freeman, 3 Cush. 257. In the case at bar, the jury have found that the original sale and delivery by the plaintiffs were conditional. But the defendants claim to hold the goods in controversy, as bailees of a bona fide purchaser from the original vendee, on the ground that, having purchased them in good faith, the rule above stated is not applicable, and that a valid title to the property is vested in such purchaser. This position is sup- posed to be supported by a dictum of Chief Justice Parsons in Hussey V. Thornton, by which it is implied that in such cases the vendor can- not reclaim goods in the possession of bona fide purchasers from his vendee. But the authority of this dictum, so for as it ever had any, was entirely overthrown in Ayer v. Bartlett, 6 Pick. 78, where Chief Justice Parker said that it could not be sustained, as a general proposition. Some of the elementary writers have stated such a dpc- trine in unqualified terms ; but the authorities cited by them in its support do not sustain the text. Hilliard on Sales, 100, et seq. ; Story on Sales, § 313. Chancellor Kent, after stating the rule as to vendees SECT. III.] COGGILL V. HARTFORD AND NEW HAVEN R.R. CO. 715 and attaching creditors, in conformity with the decisions above cited, adds, that as to bona fide purchasers, the rule might be otherwise. 2 Kent, Com. (6th ed.)"498. In Hill v. Freeman, 3 Cush. 259, the most recent case on the subject in oiu* own reports, the court say that the right of the vendor to reclaim property in such cases, in the hands of bona fide purchasers, is an open question. Looking, then, at this case, as we think we may, as one not depend- ing on authority, but to be determined on just and sound princi])lcs, it is difficult to see any good and satisfactory reason for the distinction, which is attempted to be made, between the rights of the vendee and liis (Tciiirorsto jTOods'sold and delivered on condition, and those oihona ^le purc-liastr.s. All the cases turn on the principle that the com- pliance with the conditions of sale and delivery is, by the terms of the contract, precedent to the transfer of the property from the vendor to the vendee. The vendee, in such cases, acquires no property in the goods. He is only a bailee for a specific purpose. The delivery, which in ordinary cases passes the title to the vendee, must take effect accord- ing to the agreement of the parties, and can operate to vest the prop- erty, only when the contingency contemplated by the contract arises. | The vendee therefore, in such cases, having no title to the proi)erty, \ can pass none to others. He has only a bare right of possession ; and I those who claim under him, either as creditors or purchasers, can ac- . quire no higher or better title. * Such is the necessary result of carrying into effect the intention of the parties to a conditional sale and delivery. Any other rule would be equivalent to the denial of the i validityofsuch coTitracts. But they certainly viuhite no \-\\\v of law, rior are they contrary to sound policy. The cases above cited expressly recoo-nize them as le^ral and valid contracts between the vendor on the one hand, and the vendee and his creditors on the other. If valid to this extent, it necessarily follows that they are so for all purposes. If the property does not pass out of the vendor for one purpose, it cer- tainly does not for another. If it remains in him at all, it is because such is the agreement of the parties, and it cannot be devested by any act of the vendee until the contract is fulfilled. A bona fide purchaser, as well as an attaching creditor, must acquire his title through the vendee. If the latter has no title, he can communicate none. The purchaser and the attaching creditor are, in this respect, upon the same footing. No equities can intervene to give the former a better right as against the original vendor tlian the latter; they are in mqxiali jure. Neither of them has a legal title to hold the property. A mere possession by the vendee carries with it no right or author- ity to transfer the title. That continues in the vendor until the con- ditions of sale and delivery are complied with by the vendee, or are waived by the vendor. And this constitutes the precise distinction between a sale and delivery of goods on condition, and a sale procured 716 COGGILL V. HARTFORD AND NEW HAVEN R.R. CO. [CHAP. II. by fraud or false representations on the part of the vendee. In the latter case, the property passes by the sale and delivery, because such was the agreement and intent of the parties. Therefore the vendee, having the property as well as the possession of the goods, can pass a good title to a purchaser, who takes the goods in good faith and without notice of the fraud. But the vendor can reclaim the goods by rescinding the contract and avoiding the sale, so long as they remain in the hands of the vendee, or of any one Avho has taken them with notice of the fraud, or without paying a valuable consideration for them. In such case, the title to the goods is in the vendee, though defeasible at the option of the vendor, because the vendee, or those claimincr under him with knowledge of the fraud, cannot honestly or legally hold the property as against him. But, in the case of a con- ditional sale and delivery, the title does not pass from the vendor until the condition is fulfilled. The vendee obtains no right under such sale, to dispose of the property, but only to hold it until the terms of the contract are complied with. White v. Garden, 10 C. B. 919. It is urged, and this we suppose to be the main argument on which the contrary doctrine is founded, that as possession of personal prop- erty is prima facie evidence of title, it would furnish fraudulent parties with the means of defrauding honest purchasers, to intrust them with the apparent ownership of property, while the real title is allowed to remain in a third party, who can reclaim it at pleasure. If a vendor, by collusion with his vendee, entered into the contract, and annexed the conditions for the purpose of enabling the latter to obtain a false credit, or to impose on innocent persons, by means of the property placed in his possession, the argument would be decisive. In such case the vendor, being a party to a fraud, would be estopped to set up any title to the property ; and creditors, as well as innocent purchasers of the vendee, might well claim to hold it, on the ground that it was placed in his possession for a fraudulent purpose. But when the con- tract of sale is entered into in good faith, for the purpose of enabling the vendor to realize his purchase-money, or obtain security for it in conformity with the original terms of the bargain, the argument ab in- convenienti is without any foundation in principle or authority. The general rule of the common law has always been that a man who has no authority to sell cannot, by making a sale, transfer the property to another. Chit. Con. (8th Amer. ed.) 342. Except in cases of sale in market overt, which do not exist in this commonwealth, possession of itself confers no authority to sell. A lessee of chattels or a bailee for a special purpose can pass no title to a vendee, Avithout authority from the lessor or bailor ; and yet the property is intrusted to their posses- sion, as apparent owners, in the same manner as to a vendee under a conditional sale. Besides, there is no good reason or equity in placing the burden of a fi-audulent sale by a vendee, in violation of the con- SECT. III.] WHITNEY V. EATON. 717 dition on which he received the property, upon a bona fide vendor, ratlier than upon a bona fide purchaser. On tlie contrary, if either is to lose by liis fraudulent act, it should be the latter, Avho has dealt with a party having no authority, instead of the fonner, who relies upon a valid subsisting contract as the foundation of his claim. It is the duty of the purchaser to inquire, and see that his vendor has a good title to the jjroperty Avhich he undertakes to sell. These views are sup]iorted by the authorities. Long on Sales (2d Amer. ed.) 189, and cases cited ; Copland V. Bosquet, 4 Wash. C. C. 588 ; D'Wolf v. Babbett, 4 Mason, 294 ; Luey v. Bundy, 9 N. H. 298 ; Porter v. Pettengill, 12 N. H. 299 ; Herring w. Willard, 2 Sandf. 418 ; Barrett v. Pritchard, 2 Pick. 512 ; Dresser Manuf. Co. v. Waterston, 3 Met. 9. The instructions given to the jury in the present case, were in con- fomiity with these i)rinciples; and were carefully guarded, so as to prevent the plaintiffs from recovering if they had been guilty of laches in reclaiming their property, or had in any way waived the con- ditions on which the property in controversy was sold and delivered to the original vendee. Exceptions overruled} » 1 (■■t \{^ <)v*^ GEORGE WHITNEY v. ROBERT B. EATON and Otiiers.^-t^^^^ }/}Si^'^y'^urchaser8 A^ v"^ without notice, who have paid a full consideration for the goods, but \ r^^ they took only such title as the insolvents themselves could have jv \J/ \> /^< TZ^.^^ /^^c/^-^ i/^/C^rc-y >^'7^V/^^ (p. asserted had they been actors. Hill v. Freeman, 8 Cush. 257 ; Tyler v. 1 Approved and followed in Sargent v. Metcalf, 5 Gray, 306, and Deshon i'. Bige- low, 8 Gray, 159. — Ed. ^c^/Z-^^'^^^^^^^^^^^"-^ ^ '' ^2^^^^-^^ ^- 718 WHITNEY V. EATON. [CHAP. II. Freeman, 3 Cash. 261. But if the sale was conditional, if the condi- tion had not been complied with nor waived, a bona fide purchaser could not hold. Coggill v. Hartford and New Haven Railroad, 3 Gray, 545. The case is submitted to the court on an agreement of facts, with liberty to draw all such inferences as the facts will warrant. It is stated explicitly, in the agreed statement of facts, that the defendants, through their broker, agreed to pay for the indigo in their negotiable note at six months. But it is argued on the part of the defendants, that the giving of a negotiable note at six months by the purchasers was not a part of the contract. The only ground on which this argument is placed is, that in the memorandum entered by the broker of the de- fendants in his book, stating the fact of the sale, the giving of their own note by the defendants is not mentioned as part of the contract. But as here was no attempt to enforce an executory agreement for a sale of goods, either by the vendor to require an acceptance of goods sold, or by the vendee to require a delivery of them, the fact of a memorandum in writinsr to bind the bars-ain under the Statute of Frauds is not in question. After a delivery in fact, pursuant to some contract of sale, the only question is, Avhether by the terms of such contract such delivery of itself vested the property in the vendee, and this might be proved by any competent evidence bearing upon the terms of sale. And such conclusion is quite consistent with the provi- •sion in the last paragraph of the agreed statement of facts, that if any facts therein contained would be incompetent as evidence in a jury trial, the same shall be considered as stricken out, and neither party preju- diced thereby. It was competent therefore to prove such fact by the testimony of the broker, by correspondence, or otherwise ; and therefore it was competent for the parties to agree to it. But further, under the authority given to the court, by which they are not only authorized, but bound, to draw such inferences of fact as , a jury would and ought to draw, we are strongly inclined to believe, \ that when merchandise is sold at wholesale on a long credit, the under- 1 standing is so general that it is to be paid for by note or bill of ex- change, that a jury would be warranted to infer from the circumstances ' that such Avas the intent and meaning of the stipulation in this case. A negotiable security is more beneficial to the vendor than a sale on account ; it gives him conclusive j^roof of his debt, and is more availa- ble for use by enabling him to raise money on it. If any negotiable contract was to be given for the merchandise, nothing could be moi-e simple and less onerous to the vendees than their own promissory note to the vendor; and it is most favorable to the defendants to presume that their own note was intended. If such were the terms of sale, then it was a conditional sale and delivery ; payment by note was a condi- tion precedent, and until compliance with it the proj^erty did not pass. )» v^t^ lA'v'Vri,^ SECT, IIT.] WHITNEY V. EATON. 719 Cases above cited; Blanchard v. Child, 7 Gray, loo; Burbank v. Crooker, 7 Gray, 158. That liore was no waiver, and no intention that the sale should be deemed absolute without p.ayment by note, as in the case of Riddle v- Varnum, 20 Pick. 280, will appear, we think, by an examination of the facts. For this purpose dates may be material. It appears that the 14tli of September was Monday, therefore the sale on the 8th was on the Tuesday previous. But it was made by the defendants' broker, and was not made known to them until Thursday, the 10th, and then by the plaintiff. On that day he paid the duties and warehouse charges, and gave the defendants an order by which the goods were delivered to their truckman and carried to their store. It is agreed that the com- putation of the tare for the purpose of this sale was to be done there under the defendants' direction. The plaintiff called on two different days, between that and the time of the defendants' stopping payment, to inquire if the tare was fixed, and was told it was not; these calls must have been on the 11th and 12th, Friday and Saturday; and on Saturday the defendants stopped payment, though this was not known to the plaintiff till Monday the 14th, and he thereupon demanded back the indiso. It is stated as a fact, that the boxes were "tared" on the 1 1th, and so entered on the defendants' books; if it was so, a false answer was given to the plaintiff. It further appears that no notice of this act was given to the plaintiff till after the failure of the defendants, and after the commencement of this suit. This conduct rebuts the presumption that the plaintiff intended to sell without a note, or had waived that condition. Had this been a sale of these cases of indigo on a credit of six months on book account, without note, we are not prepared to say that the act of "taring" was an act which remained to be done, so as to suspend the vesting of the. property ; because, as it was to be ascertained solely to determine the number of net pounds to be paid for, it might have been done after the goods had been definitively delivered, but before the time of payment, with equal benefit to both parties. But if tlie contract was to pay by promissory note, then the giving of the note must necessarily precede the vesting of the property by the sale, and of course the "taring" of the goods was necessary to determine the true price of the goods, and fix the amount of the whole purchase- money. Some other circumstances lead to the same result. No bill of sale was made out by the plaintiff and sent to the defendants ; no entry as of goods sold was made in the books of the plaintiff; no inti- mation given by the defendants to the plaintiff that the goods were sold on book account, and that " taring " was not necessary to complete the sale. On the whole case, the court are of opinion that the sale of indigo was inchoate, incomplete, conditional on a condition precedent not per- 720 . FARLOW V. ELLIS, [CHAP. II. formed, so that the property had not vested in the vendees when they became insolvent ; that the right of possession followed the right of property at the time of demand, a^ of the commencement of this suit in replevin. , U/ I jr Judgment for the plaintiff. KS A^ -^!t k \fO\Y^ S. FARLOW y. ABNER ELLIS and Axother. PREME Judicial Court of Massachusetts, March, 1860. [Reported in 15 Gray, 229.] jr Replevin of thirty-one cases of indigo, claimed by the plaintiff on the ground that he had made sale of them to Eaton, Hill, & Candler, on conditions which had not been complied with. Answer, that the indigo was not the property of the plaintiff, but of Eaton, Hill, & Candler, who had consigned it to the defendants, and that the defendants had a lien thereon for advances. At the trial in the Superior Court of Suffolk at January term, 1859, before Nash, J,, the plaintiff's evidence tended to show that on the 7th of August, 1857, a merchandise broker negotiated a sale to Eaton, Hill, & Candler, of thirty-five cases of indigo, the property of the plaintiff, and then in the government warehouse, for " s atisfacto ij_£a£ er six months ; " that on the next day the plaintiff was informed of the sale; "and on the 10th of August called on Eaton, Hill, & Candler, to arrange the paper, and they requested him to take as much of their paper as he, on making inquiries, should find satisfactory; that on the 12th or 13th of August the plaintiff called on Eaton, Hill, & Candler, and told them that he would take one-third of the amount in the paper of their firm ; and they requested him to call in three or four days, and they would have the matter arranged and give him good Boston accept- ances; that on the 12th or 13th of August, there was sent to Eaton, Hill, & Candler a custom-house permit for the thirty-five cases (to the bearer of which it is customary, in the absence of any circumstances of suspicion, to deliver the goods on payment of the storage accrued), the weigher's certificate, and a bill of parcels in this form : " Messrs. Eaton, Hill, & Candler bought of J. S. Farlow, Boston, August 8, 1857. [Marks, quantities, and prices.] $14,751.55, six months, satisfactory paper;" that there were many subsequent interviews between the plaintiff and Eaton, Hill, & Candler; that on the 2d of September, Eaton, Hill, & Candler removed the indigo from the government warehouse to their shop ; that on the 7th of September the plaintiff informed Eaton, Hill, & Candler, that the paper which they proposed to give him was not satisfactory; that on Saturday the 12th of September, Eaton, Hill, & SECT. III.] FARLOW V. ELLIS. 721 Candler failed ; on the 14th the plaintiflT demanded a compliance with the terms of the sale, or in default thereof a retin-n of the goods, and on the 16th the goods were demanded and replevied; and that nothing was said between the plaintiff and Eaton, Hill, & Candler in reference / to the delivery being conditional, or subject to the condition, before the 15th of September. The plaintiff was allowed, against the objection of the defendants, to introduce evidence to prove a custom or practice of trade in cases of conditional sales, to deliver the property forthwith, Avithout first exact- ing the conditions of the sale, as matter of indulgence in the business community. J The defendants asked the court to rule, "that although the jury V ^ should be satisfied that there had been a conditional sale of this indigo, -^? ^^^^ yet that a delivery of the property, without any thing being said about the condition, as in this case, under the proved and admitted facts, amounted in law to such a delivery as would pass the property to the buyer." But the court, declining so. to rule, instructed the jury " that such a delivery was presumed to be absolute and presumptive evidence of a waiver of the condition ; but that this presumption might be con- trolled and explained ; and that it was a question of fact for the jury to determine, on all the evidence, whether the delivery was or was not subject to the condition." The jury returned a verdict for the plaintiff, and the defendants alleged exceptions. J. G. Abbott, for the defendants, cited Smith v. Lynes, 3 Sandf 203 ; Carleton v. Sumner, 4 Pick. 516 ; Smith v. Dennie, 6 Pick. 266 ; Bowen V. Burk, 13 Penn. State, 146 ; Leedom v. Philips, 1 Yeates, 529 ; Har- ris V. Smith, 3 S. & R. 20 ; Hennequin v. Sands, 25 Wend. 640 ; Chap- man V. Lathrop, 6 Cow. 110 ; Furniss v. Hone, 8 Wend. 247 ; People v. Haynes, 14 Wend. 546 ; Lupin v. Marie, 6 Wend. 77 ; Clark v. New England Mutual Fire Ins. Co., 6 Cush. 342 ; Underbill v. Agawam Mu- tual Fire Ins. Co., 6 Cush. 440 ; Gerrish v. Norris, 9 Cush. 170. H. W. Paine and C. P. Curtis, Jr., for the plaintiff. Shaw, C. J. It seems originally to have been questioned whether the sale of indigo by the plaintiff to Eaton, Hill, & Candler was con- ditional ; but it is now admitted that it was on condition of being paid therefor in satisfactory paper at six months. The question therefore is, whether this was such a delivery, without compliance with the con- dition, as to make the sale absolute, so as to vest the property in the vendee from the delivery. If there was a waiver of the condition and the ])roperty vested absolutely in the vendees, then the plaintiff had no right to recover, whether these defendants had acquired any title from those vendees or not. The sole ground on which the i)laintiff can recover in this suit is, that he never parted with that property which he had in the indigo before the negotiation with Eaton, Hill, & Candler. 722 FARLOW V. ELLIS. [CHAP. II. The transfer of personal property is effected by an executed con- tract ; and this consists of a contract or agreement on the terms of sale, by the parties or their agents, and a delivery, actual or construc- tive, pursuant to the terms of such agreement. Delivery is essential ; without delivery the property does not vest in the vendee so as to enable him to make title to a third party ; and until it vests in the vendee it remains in the vendor. The question then on trial in this case was, whether the plaintiff had Avaived the condition of this sale, and manifested by his language or conduct an intention or a willingness to waive the condition and make the sale absolute, without having the satisfactory paper. When there is a condition made at the contract of sale favorable to the vendor, and solely for his benefit, he may, if he choose, waive it, and treat the contvact as if no such condition had been embraced in it. Waiver is a voluntary relinquishment or renunciation of some right, a foregoing or giving up of some benefit or advantage, which, but for such waiver, he Avould have enjoyed. It may be proved by express declaration ; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage ; or by a course of acts and conduct, or by so neglecting and foiling to act, as to induce a belief that it was his in- tention and purpose to waive. Still, voluntary choice not to claim is of the essence of waiver, and not mere negligence ; though from such negligence unexplained such intention may be inferred. The question of waiver therefore is a question of fact for a jury ; it may be proved by various species of proofs and evidence, by declarations, by acts, and by nonfeasance or forbearing to claim or act ; but however proved, the question is. Has he Avillingly given up and forborne to claim tlie benefit of the condition ? In this case it was. Did the plain- tiff voluntarily deliver the goods, without intending to rely on the condition ? Let us apply these rules to the present case. Here there was a con- tract of sale through a broker on the 7th of August, 1857. It was on condition of having satisfactory paper, that is, the purchaser's own notes or acceptances, if satisfactory to the seller, otlierwise with in- dorsers or sureties. It was not a general sale on credit. There was not a formal delivery by the seller to the buyer ; the delivery was con- structive. The first act done by the plaintiff toAvards a delivery was on the 12th of August, by sending to the purchasers a bill of parcels, specifying the terms of the sale, a custom-house permit, the goods beinf in a government warehouse, and the weigher's certificate. There was no order of the vendor on the warehouse-keeper to deliver the goods to the vendees, which would authorize the warehouse keeper to transfer the indigo from the credit of the plaintiff to that of Eaton, Hill, & Candler. Such an order would have constituted a constructive delivery, like the London dock warrant. The most the case finds is a SECT. III.] FARLOW V. ELLIS. 723 custom to consider the custom-house permit sufficient to authorize tlie bearer to take the custody of the goods. But it is a mere naked authority, not coupled witli an interest, and revocable ; so that, until actually executed by taking possession, it did not amount to a delivery. Nor was the indigo actually removed from the United States ware- house until the 2d of September. But this sending of the custom- house permit was the only act done by the plaintiff towards a delivery, and was the act by which the purchasers obtained the»custody of the indigo : and this permit was accompanied by the bill of parcels, stating the condition to be payment in satisfactory i)aper. Much other evi- dence was in the case. We think the direction of the judge who tried the cause was cor- rect, both in what he declined to rule, and in the instruction actually given. The instruction requested assumes a state of ftcts which the jury were yet to find from the evidence; and it asks that the jury may find a verdict on part of the evidence, to the exclusion of other material evidence. In what the judge did instruct, the first part was clearly favorable to the defendants, and what they asked, namely, that a delivery Avith- out compliance \\'ith the condition was presumed to be absolute, and a waiver of the condition. In the other part, the court are of opinion that the instruction was correct, that this presumption of f ict might be controlled, and that it was a question of fact for the jury. There was proper evidence on both sides to go to the jury, they were rightly directed both as to the burden of proof and as to the law of the case ; and the court are therefore of opinion that the exceptions must be overruled. As to the admission of proof of the custom, it seems to us that it was nothing more than has been proved in many other cases, that by a general understanding among merchants, where merchandise is sold on condition, the goods are actually placed in the custody of the buyer before compliance M'ith the condition, and that such change of custody is not de facto a waiver of condition, and that the projierty does not thereby pass. Such was the decision in the cases of Hill v. Freeman, 3 Cush. 257, and Tyler v. Freeman, 3 Cush. 261. Mcceptions overruled. SMITH V. LYNES. [CHAP. II. SMITH V. LYNES and Others. New York Court op Appeals, July, 1851. [Reported in 1 Selden, 41.] This was an action of replevin brought against the defendants for detaining certain pieces of carpeting chiimed by the plaintiff as his property. On the trial of the cause in the Superior Court in the city of New York, the following facts were proved. On the 3d Qf November, 1847, the plaintiff, by a written agreement entered into with the defendant Benjamin Lynes, agreed to deliver to Lynes all the carpets which should be manufactured by him (the plain- tiff) with a certain number of looms at his factory in Westchester county between the date of the agreement and the first day of June, 1848 ; Lynes to pay for the same in his notes indorsed by Thompson & Co., payable six months after date, except goods to the amount of $'2UUU for which the notes of Lynes without indorsement were to be taken. The goods were delivered as they were manufactured, and notes for part of the goods received were given on the 23d of Jan- uary, 1848. Several parcels were delivered to Lynes on the 22d and 28th of January, the 8th, 14th, and 25th of February, and the 7th of March. No notes were given after the 8th of February, and no appli- cation or demand was made for notes after that date until the day on which this suit was commenced. On the 7tli of March, Lynes by his clerk gave the plaintiff a receipt for nine pieces of carpeting, and on the back of the receipt was a mem- orandum in pencil written by Mr. Lynes, as folloAVs : — Messrs. Thompson & Co. are up to Thompsonville, but expect to be down on Wednesday or Thursday, and I will have them ready. B. L. The defendant Lynes, sworn as a witness for the plaintiff, testified that by this memorandum he meant he would have the notes for the goods ready for the plaintiff. Lynes had made an agreement with Thompson & Co., before his agreement Avith the plaintiff, by which they agreed to take from him the o-oods Avhich he afterwards purchased from the plaintiff. The goods were sent by the plaintiff to Lynes and left at his store. A part of them were delivered by Lynes to Thompson & Co., the members of which firm are defendants in this suit. On the 15th gf March, 1848, the plaintiff called upon Lynes and demanded from him the goods, or payment, or his notes. Lynes refused to give either. The plaintiff SECT. III.] SMITH V. LYNES. 725 then on the same day called upon Tliompson & Co., and demanded of them the goods in their possession received by them from Lynes. They refused to deliver them. Dean, one of the finn, admitted that $500 or $600 worth of the goods had not been paid for. Tlie suit was commenced on the day the goods were demanded. Tlie balance due the ])lnintiff from'Lynes at that time was $2,!S04.42. The defendants, after proof of the above facts, moved for a nonsuit on the following grounds, viz. : 1. That the delivery of the goods by the plaintiff to the defendant Lynes was absolute, and vested the title thereto in him. 2. That there had been no proper and sufficient de- mand, nor any refusal of the notes, which, under the contract, Avere to have been given in payment for the goods. 3. That as to the goods sold by Lynes to the defendants, Thonijjson & Co., they having been- sold to Thompson dition can be inferred, no declaration at the time, ic/dch, though not ^ "::» necessary, is imj^ortant, and no call for security until it was forgotten "^ \i ) ®^' abandoned, and perhaps never would have been recurred to if the !Vn \> goods had not been attached." According to this decision, as well as ^^ the intimation of Justice Nelson in Furniss v. Hone, and the language of Chancellor Kent in his Commentaries, 2 Kent, 496, it does not seem to be necessary to a qualified or conditional delivery, that the qualifica- tion or condition intended to be annexed to the delivery should at the time be declared by the vendor in express terms. The delivery will be conditional, if the intent of the parties that it should be so can be inferred from their acts and the circumstances of the case. The learned judge who tried this cause was evidently mistaken in the proposition advanced by him, that, to make a delivery conditional, it must be de- clared to be so in express terms. Where the delivery is absolute without any contemporaneous declaration qualifying it, the onus of the proof of the condition rests upon the vendor. If no such proof is offered, the delivery will be deemed absolute, and the title to the goods will pass to the vendee. 8 Wend. 256, Nelson, J.; Buck v. Grimshaw, 1 Edw. Ch. 140. Every absolute delivery of goods sold on condition, is presumptive evidence of a waiver of the condition by the vendor, and of an intention on his part to rely wholly on the per- gonal security of the vendee for the payment of the price of the goods. SECT. 111.] SMITH V. LYNES. 727 The cases citetl by the counsel of the appclhint do not conflict with the foregoinj; propositions. In the cases ot'lJussell v. Minor, 'I'l Wend. 659, and of Keeler v. Fiehl, 1 Paige, 312, express conditions were an- nexed to the delivery of the goods. In Palmer v. Hand, 13 John. 434, the delivery of the timber was not complete before payment was demanded. In Haggerty v. Palmer, G John. Ch. 437, the delivery was held to be conditional in accordance Avith a usage of the city of New York, known to the purchaser, and the validity of which was not called in question by the parties to the suit. In the case now under review, the goods were sold on condition of being paid for (excepting 8'iOOO worth) on delivery, by indorsed notes. The goods were delivered in parcels at the purchaser's store on several days in January, February, and March. There is no evidence to show that the delivery of any of these parcels was in express terras made subject to any condition. The delivery being shown, it belonged to the plaintiff to prove that it was conditional. Ko question can arise as to any of the parcels except the one delivered on the 7th of JMarch. Several parcels had been delivered previous to that day without exacting the delivery of the indorsed notes stipulated in the contract. As to these parcels the delivery must be deemed to be absolute, and the condition regarded as waived. The memorandum indorsed on the receipt given for the goods delivered on the 7th of March, in which Lynes declares in substance that on Wednesday or Timrsday he will " have them ready " (which Lynes swears referred to the notes), tends to show a promise on the part of Lynes to pro- cure the indorsed notes and deliver them to the plaintiflj and that the goods delivered on the 7th of March, were delivered on the condition of the subsequent delivery by Lynes to the plaintiff of such notes. If the goods were delivered on the faith of that jn-omise, and in ex- pectation that it would be performed, this case resembles that of Kussell V. Minor, 22 Wend. 662. In that case the seller delivered a portion of the goods sold to the purchaser, and asked the latter for his note for the quantity delivered, and the purchaser replied that he would give his note for the whole when the remainder was delivered, and that the parcel then delivered could remain till that time. The Court of Errors held that the de- livery of the parcel was conditional. Senator Edwards, with whom the majority of the court concurred, put the question of waiver of the condition of the sale, on the intention of the parties at the time of the delivery ; and from the facts of that case, he came to the conclusion that neither party intended that the condition of the sale should be waived. Senator Wager took a similar view of the question. If the memorandum indorsed on the receipt of the 7th of March tends to show a state of facts which will bring this case within the principle of the case of Russell v. Minor (which I think quite clear), the non- 728 WAIT V. GREEN. [CHAP. H. suit of the plaintiff was erroneons so far as relates to the goods deliv- ered on the 7th of March ; and the judge who tried the cause erred in not submitting it to the jury to determine whether the goods deliv- ered on that day were delivered absolutely or conditionally ; that is, whether the plaintiff intended to deliver them absolutely, and thereby to waive the condition on which the sale Avas made. 6 Pick. 266, 267. There is no evidence in the case to show that the goods found in the possession of Thompson & Co., and replevied by the sheriff, were a part of the goods delivered on the 7th of March. These goods they purchased from B. Lynes, without any notice, for aught the case shows, of the nature of the contract of sale between him and the plaintiff. As to all the goods therefore purchased by Thompson & Co. from B. Lynes, and paid for by them, they are entitled to the protection of bona fide purchasers without notice, even if the delivery to Lynes was conditional. 6 Johns. Ch. 437 ; 1 Paige, 312 ; 1 Edw. Ch. 146. As it does not appear that any part of the goods taken by the sheriff from the possession of Thompson & Co. were a part of the goods delivered on the 7th of March, although a part of these goods should not have been paid for by Thompson & Co. to Lynes, they can nevertheless jus- tify under Lynes, whose title to all the parcels delivered previous to the 7th March is undoubtedly perfect, in consequence of the absolute and unconditional delivery to him by the plaintiff of all such parcels. The nonsuit was therefore beyond all question correct as to the defend- ants, Thompson, Schoonmaker, and Dean, the members of the firm of Thompson & Co. But for the reasons before assigned, it was errone- ous as to Benjamin Lynes. It must therefore be set aside, and the judgment of the Superior Court must be reversed. Ordered accordingly} f/)/ ^5 ^ Y ■ «.\.> vf ISAAC WAIT ?;. CHARLES S. GREEN. J^ ^ New York Court of Appeals, March, 1867. > ^^ [Reported in 86 New York Reports, 555.] '& IT. R. 3Iygatt, for the appellant. .^ ^ J. T. Davis, for the respondent. ^v/ vJ^ BocKES, J. This is an appeal from a judgment ordered for the de- V^ fendant at General Term. "\ The case is this : Catharine Comins sold and delivered a horse to V Thomas E. Billington, and took his note for $100, at five months, with J \* 1 See Fleeman v. McKean, 25 Barb. 474. — Ed. SECT. III.] WAIT V. GREEN. 729 interest, payable at the Union Bank, Watertown. Directly under the note, and on the same piece of paper, was a memoranrliun, signed by Billington, as follows : " Given for one bay horse. The said Mrs. Comins holds the said Ji0,rse. as her property until the "above note is paid." Mrs. Comins transferred the note, with the memorandum un- derwritten, before due, to the plaintiff, calling his attention at the time to the memorandum, and stating that it was guaranteed, or just as good as guaranteed. Billington sold and delivered the horse to the defendant for a full consideration, and without notice to the latter of the condition attached to the sale to him. The note was not paid at maturity, whereupon the plaintiff demanded the horse from the de- fendant. He refused to surrender it, and this action was commenced for its recovery, with damages for its detention. It seems to have been assumed that the transaction between the plaintiff and Mrs. Comins on the sale of the note, gave the former all rififhts in regard to the claim on the horse which Mrs. Comins had. Such was evidently the clear intention and understanding of the par- ties. But it is unnecessary in this case to consider this point of objec- tion. Let it be conceded that the sale and delivery was conditional, that the agreement was that the horse should remain the property of Mrs. Comins until paid for, and that the plaintiff succeeded to all her rights, and that the defendant was a bona fide purchaser from Billington; and the authorities are full to the effect that the defendant will be pro- tected in his title. When chattels are thus sold and delivered con-^ ditionally, the vendor's right to the property remains good as against j the vendee and his voluntary assignee, and others who purchase with knowledge of the condition, but.jiot as against bo)ia fide purchasers from the vendee. 2 Kent, 498 ; 6 Johns -"Ch. 438 ; 1 Ed. Ch. 140 ; 3. D^ier, 352 ; 4 benio, 323-327; 6 Duer, 238; 25 Barb. 474; 1 Paige, 312 ; 37 Barb. 509 ; 5 X. Y. 41 ; 31 id. 507. These cases are not all direct decisions on the question under consideration. Several of them, however, are authoritative in support of the proposition above stated. I think particular reference need to be made only to Smith v. Lynes, 5 N. Y. 41. In this case the action was against Lynes, the vendee, and Thompson & Co., who were bona fide purchasers of part of the goods from Lynes. This court held that if the sale and delivery to Lynes Avas conditional, no title passed as between the plaintiffs and him, but that good title was obtained by Thompson & Co., in so far qs they were bona fide purchasers from Lynes. Paige, J., in de- liveiing the opinion of the court, says : " As to all the goods there- fore pui-chased by Thompson & Co. from L>-nes, and paid for by them, they are entitled to the protection of bona fide purchasers without notice, even if the delivery to Lynes was conditional." " The nonsuit was therefore beyond all question correct as to the de- fendants Thompson, Schoonmaker, and Dean, the members of the firm 730 BALLARD V. BURGETT. [CHAP. II. of Thompson & Co." This decision fully sustains the opinion expressed by Strong, J., in Fleeman v. McKean, 25 Barb. 474, 483, 484, to the effect that Avhen the original owner voluntarily places the goods in the hands of the purchaser and thus makes him the ostensible proprietor, a sale by the possessor to a bo7ia fide dealer without notice would be valid and pass the title. The judgment in this case is right, and must be affirmed with costs. ^ All concur. Affirmed. Si ^ ^ WILLIAM W. BALLARD and JOSEPH C. SAMPSON, Resjyoii- J Vf j^ dents, V. RICHARD BURGP^TT, Appellant. ] r^ New York Court of Appeals, March, 1869. ' .' \ ")^ {Reported in 40 New York Reports, 314.] ^^ Kj Appeal from a judgment of the General Term of the Supreme ^ ,,)s,: Court, affirming a judgment in favor of the plaintiffs, entered upon the f* x^ report of a referee. ^ V The facts sufficiently appear in the opinions of the court. >* Hudson Anslej/, for the a]ipellant. ■\'' Jenkins and Goodicill, for the respondents, \ Grover, J. The referee finds as facts : That the plaintiffs, in the month of October, 1865, sold the oxen in question to one William France for $180, with the agreement that the oxen were to remain the propert}^ of the plaintiffs until paid for ; that France had never paid the plaintiffs for the oxen ; that in April, 1866, said France sold and delivered the oxen to defendant, who purchased without any notice of plaintiffs' claim. The question presented by this appeal is, whether the defendant, by virtue of his purchase of the oxen from I France, has acquired title thereto as against the plaintiffs. From the /facts found, the defendant must be regarded as a bona fide purchaser from France. The finding of the referee as to the contract between the plaintiffs and France is a little obscure. A sale and delivery of personal property by one person to another is incompatible with the ownership of such property continuing in the seller. A sale, and delivery of personal property always, when consummated, transfers the title from the seller to the purchaser ; but the referee expressly finds that the agreement was that the oxen Avere to remain the property of plaintiff until the $180 Avere paid. It is manifest that the referee did not intend to find an absolute sale and delivery. The true consti'uc- tion of the finding is, I think, that the plaintiffs agreed with France ^^/t^^ Ci-i^^C>i^ <^^7T/t£^. c^y^ '^', j^-c^ c^*^t^ 9/ic: -^- SECT. III.l BALLARD f. BDRGETT. 7.^1, .- _ that Avhen he should pay to them S180, they should sell him the oxen, / and that until such payment or other termination of the contract, he / should have possession, and that they deliver the oxen to him pursu- ant to this a^reeraent. It is conceded that under such an agreement France acquired no valid title to the oxen, and that upon his failure to pay pursuant to the contract, the plaintiifs had as against him a perfect title. But it is claimed that France, although he had no title himself, but only the right to acquire title by paying the money, never- theless, by selling to a bona fide purchaser, such purchaser acquired from him a valid title against the plaintiff. If this be so, this class of cases constitute an exception to the general rule, that a purchaser of personal property other than commercial paper acquires no better title than that of his vendor. There are some exceptions to this rule ; and it is claimed by the counsel of the appellant that this is one. I can conceive no substantial principle upon which such an exception can be i sustained. The possession of the contemplated purchaser gives him ' no better opportunity to impose upon purchasers than that of an ordi- nary bailee. In the latter case, it has never been clal med that any title would be acquired by a purchaser from such bailee. Posses- si on b y a vendor wit hout title has never been held sufficient to confer a title upon a purchaser from him . Clearly, the existence of an executory contract, by which a vendor not in possessio n may acquire title upon the performance of some act by him, will not enable him to confer a title u])on a purchaser from him. If neither of these facts, separately considered, will enable a vendor to confer title, I am unable to see how such result can be produced by uniting them in a vendor. That is all the basis of the defendant's title. It is insisted by the counsel of the appellant that the title of the purchaser in this class of cases is established by the authorities. Wait v. Green, 36 N. Y. 556, is claimed to be directly in point. The opinion of the learned judge would seem to sustain the position of the counsel ; but an exam- ination of the facts will show, I think, that the point was not neces- sarily involved in the decision of the case. The facts as stated are, that Catherine Comins sold and delivered a horse to one Billington, and took his note therefor for 8100, payable in five months with inter- est. Directly under the note, and on the same piece of paper, was a memorandum, signed by Billington, as follows: "Given for one bay hoi'se ; the said Mrs. Comins holds the horse as her property until the above note is paid." The fair intendment from the above fact is, I think, that Mrs. Comins intended to sell and deliver the horse to Bil- lington, and transfer the title to him, and take back from him security for the payment of the note given for the purchase price in the nature of a chattel mortgage upon the horse. It is clear that had the horse died without fault of Billington, before the payment of the note, such death would have been no defence to an action on the note. The 732 BALLARD V. BURGETT. [CHAP. II. horse was at the risk of Billington. This is a strong, if not conclu- sive circumstance, showing the correctness of the above construction of the facts. Not so in the case at bar. Had the oxen died with- out the fault of France, no action could have been sustained by the plaintiffs for the purchase-money. That in no event could be recovered unless the plaintiffs were able to give France a title to the oxen, unless their ability so to do had been prevented by France. The title of the oxen in the present case was in the plaintiffs, and they were at their risk. Haggerty v. Palmer, 6 Johns. Ch,, was cited by the learned judge. That was a case wliere goods were sold at auction in New York, to be paid for in approved indorsed notes. The goods were delivered to the purchaser without delivery of the notes. The latter assigned them to a trustee for the benefit of creditors. Held, by the chancellor, that the trustee was accountable to the vendor for the goods and their proceeds. The point adjudged has no analogy to the present case. Buck v. Grirashaw, 1 Ed. Ch. 140, also cited, was a case where Buck sold Grimshaw a quantity of cotton for cash on delivery ; a part was delivered Avithout payment ; Giimshaw loaded this part upon a vessel, and received a bill of lading, and transferred the bill of lading to Sands & Co., from whom he received advances thereon ; he after- wards failed without having paid for the cotton delivered. Held, that the delivery to Grimshaw was absolute ; that the title of the cotton was thereby changed, and that Sands & Co., who had made advances upon the bill of lading, could hold it against the vendor. It may be remarked, that this falls within the class of cases where sales have been made for cash on delivery, and the property has been delivered without exacting payment, [and] it has been held that the title passed by deliv- ery, and the vendor retained a lien upon the property for the purchase- money, but that such lien was not available against a bona fide pur- chaser of the property. In Caldwell v. Bartlett, 3 Duer, 341, the question was whether, where the owner delivered goods upon a con- tract of sale, intending to part with the property to a fraudulent pur- chaser, such owner can reclaim the goods from a honafide purchaser from the fraudulent vendee. Held, that he could not. The rule acted upon in this case is sustained by numerous authorities. This rule was recoonized in Beavers v. Lane, 6 Duer, 232 ; and in the same case it was held, that where the delivery was upon condition that immediate payment should be made, the vendor, in case it was not made, could not recover the property from one who purchased from his vendor in ifnorance of such condition. The latter position is identical Avith the principle recognized by Buck v. GrimshaAV, supra. An examination of Covin V. Hill, 4 Denio, will show that the' points decided give no sup- port to the rule contended for by the appellant's counsel in this case. The same remark applies to Fleeman v. McKean, 25 Barb. 474, as to the questions decided, although some remarks in the opinion may seem SECT. III.] . ■ BALLARD V. BURGETT. 733 to conntcnnnce it. The case principally relied on is that of Smith v. Lynes, 1 Selden, 41. All that was (Ictennincfl by this case was, that where the sale is upon condition that the goods should be paid for on delivery, and they are delivered without payment being made, a bona fide purchaser from the vendee acquires a title, discharged of the lien for the purchase-money. Crocker v. Crocker, 31 N. Y, 507, holds that, where the legal title to corporate stock was in the hands of one charged with a trust in behalf of another, a purchaser from the trustee, ignorant of the trust, acquires a good title. Keeler v. Field, 1 Paige, 31'2, in- volved only the question whether a vendor who was to receive pay- ment upon delivery, but who had delivered the goods without payment, could enforce his lien against one Avho had received the goods from the vendee as security for an antecedent debt. Held, that he could. The question in the Western Transportation Co. v. Marshall, 37 Barb. 5u9, appealed in this court,^ Avas whether a vendor for cash on delivery, who had made delivery without payment, and who had permitted the ven- •dee to load the goods upon a vessel, and receive a bill of lading there- for, could recover the goods from the owner of the vessel, or the holder of the bill of lading, who had made advances thereon to the purchaser. It Avas held that he could not. It Avill be seen that in no one of the cases referred to in Wait v. Green has it been determined that one to whom property has been delivered without any intention to transfer the title, upon a contract for a sale in future, upon payment being made of a certain sum, and that in the mean time the contem]ilated pur- chaser shall enjoy the use of the property, can confer a good title to a purchaser from him. In Herring v. Hoppock, 15 N. Y. 409, it Avas de- termined by this court, that one Avho has bai-gained for the purchase of a chattel, and agreed to pay therefor at a future day, and has received a delivery under an agreement that no title should vest in him until payment, acquired no title ; and that a creditor of such person, Avho had levied an execution thereon, Avas liable to the OAvner for the conversion of the chattel. This Avould be decisiA^e of the present case, unless it be held that chattels so delivered are to be placed upon the same ground as commercial pa])er in respect to purchasers. A like doctrine was held by the Supreme Court of Vermont, in BigcloAv v. Huntley, 8 Vermont, 151. This precise question Avas determined by the Sujn-enie Court of Massachusetts, in Sargent v. Metcalf, 5 Gray, 300, where it Avas held that the purchaser acquired no title. The same rule Avas held by the Supreme Court of Connecticut, in Hart v. Carpenter, 24 Ccnn. 427. My conclusion both upon principle and authority is, that the iniichaser from France acquired no title, and that the judgment of the Supreme Court affirming that of the referee should be affirmed.- 1 See G Abb. Pr. Rep. n. s. 280.— Ed. 2 Lott J., delivered a concurring opinion. — Ed. 734 WHITEHOUSE V. FROST. [CHAP. 11. All the judges concurred for affirmance, except James and Murray, JJ., who could not distinguish the case from Wait v. Green, 36 N. Y. 556. i Jxidgment affirmed. r^ 0^ \.i-" V V V .^^ ^7 7^^ ^K* The plaintiffs are assignees of John Townsend, late a merchant at \^ Xiiverpool; the two Frosts are merchants and partners in Liverpool; NT ■ M * and the other defendants, Dutton & Bancroft, are also merchants and vT \U partners in the same town. On the 7th of February, 1809, Townsend \$:^ si - ^ pxirchased fi-om the defendants, J. & L. Frost, ten tons of oil, at £39 V ^^^ per ton, amounting to £390, for which ToAvnsend was to give his ac- 1 ^ ^^^ ceptance payable four months after date ; and a bill of parcels was V V ^ i rendered to Townsend by the Frosts, a copy of which is as follows : — ^ Liverpool, 7th February, 1809. Mr. JouN Townsend, Bought of J. & L. Fkost, V. Ten tons Greenland -whale oil in Mr. Staniforth's cisterns, at your risk, V at £39 "^**?^. . . . , .'" .... £390 ^ ^1809. February 14. By acceptance £390 < In THE Klvg's Bench, May 21, 1811. i . J V '^ [Reported in 13 East, 522.] . ^ / ^_ ^ In trover for fifty tons of Greenland oil, a verdict Avas found for the \ vT^ plaintifls for £2200 at the trial before Lord Ellenborough, C. J., at l/^ di'\ ^, i Guildhall, subject to the opinion of the court on this case: — i . '^j Anderson & Eades being traders and copartners, on the 1st of l/^jLt/'X ^ I^V' February, 1810, before their bankruptcy, purchased of Ileselton & p s , ■^<'- Smith, through their brokers Bay & Pierce, fifty tons of Greenland v ^^•'^••'*- 3^ ijjy oil, then lying at Griffin's Wharf, in casks, at £44 per ton, to be paid for ^y* ^ ^ V , by the buyers' acceptance, at four months from the expiration of four- ^ \ t teen days; and the following sale-note was thereupon delivered to C/>T? — ^^ N^ Anderson & Eades : — / /'/ A >s^ ^. Sold for Ileselton & Smith to Anderson & Eades fifty tons of Greenland/ _ — ^kN '"v:*^ oil at £44 pt-r ton, in casks, to be received at Griffin's Wharf in fourteen days, and p;iid for by the buyers' acceptance, at four months from the expiration of fourteen days. Allowance for foot-dirt and water as customary. Day & Pierce, Brokers. February 1, IS 10. The defendants are wharfingers and copartners, and carry on their business at Griffin's Wharf, where the oil purchased Avas lying. On the 13th of February, 1810, Anderson & Eades applied by letter to He- selton & Smith lor an order of delivery of the oil ; which order Avas given as folloAvs : — Messrs. Breeds «& Farncomb, Griffin's Wharf: Pleasi- to deliver to Messrs. Anderson & Eades tifty tons of our Greenland oil, ex ninety tons. H. &S. February 15, 1810. The order Avas sent to the defendants' wharf, and received by their clerk in their counting-house on the loth of February. On the 14th, 740 • WALLACE V. BREEDS. [CHAP. II. Anderson & Eades being then in insolvent circumstances, the order was countermanded by Heselton & Smith ; and at the time of such countermand nothing had been done upon the order : the oil remained in the same state as at the time of sale. The oil has since been de- livered to Heselton &• Smith by the defendants. On the 4th of April, 1810, Anderson & Eades became bankrupts: shortly after- wards a commission was duly issued against them, under which the plaintiffs were chosen assignees, and on the 15th of June, 1810, de- manded the 50 tons of oil from the defendants. Before Greenland oil is delivered, it is the constant custom to have the casks searched by a cooper employed by the seller ; and it is also the custom for a broker, on behalf both of the buyer and seller, to attend to make a minute of the foot-dirt and water in each cask ; and the casks are then filled up by the seller's cooper at the seller's expense, and delivered in a complete state, containing the quantity sold ; none of which circum- stances had taken place at the time of the countermand. At the time of the sale and countermand Heselton & Smith had 90 tons of oil, contained in 180 casks, lying at the defendants' wharf If the plain- tiffs were entitled to recover, the verdict was to stand ; if not, then a nonsuit was to be entered. Scarlett, for the plaintiffs, contended that the property in the 50 tons of oil passed to the bankrupts, upon the order for delivery to them fi-om the sellers, received by the defendants, the wharfingers, on the day before the countermand. He compared this to the case of Whitehouse v. Frost,^ where a similar order for delivery of 10 out of 40 tons of oil, the whole of which remained in the custody of the orig- inal owners (which order was made by the former purchaser of tjie 10 tons, and was accepted by the original owners, but not measured out by them), was held to pass the property to the sub-vendees of the 10 tons, who afterwards became bankru])ts before the delivery. And he endeavored to distinguish this from Rugg v. Minett,^ which was a sale of turpentine in casks, by auction, at so much a cwt., where the casks were to be taken at a certain marked quantity ; except the two last, out of which the seller Avas to fill up all the rest before they were delivered. There the property in the casks which were filled up was held to pass to the purchasers, notwithstanding they remained in the warehouse of the seller ; but it was not held to pass in those casks which remained to be filled up by the seller, nor in the two last, which were sold at uncertain quantities. But there the price could not be ascertained till the casks were filled up, the turpentine having been sold by the cwt. ; nor as to the two last casks, till the actual measure- ment of what remained after filling up the rest : the contract, there- fore, was not completed for want of ascertaining the quantity sold, 1 12 East, 614. 2 n East, 210. SECT. IV.] AUSTEN V. CRAVEN. 741 "svliich was to be done by tbe seller. Whereas here the sale was of a sjiecific quantity, and at a certain ])rice ; and nothing remained to be done to ascertain either the quantity ^ or the price, but only it was to be measured out by the wharfingers, as in Whitehouse v. Frost it was to be measured out by the original owners, in whose custody it re- mained. And as to the custom for the seller's cooper to search the casks previous to the delivery of the oil, that cannot vary the quantity or price of it, and so cannot affect the contract of sale ; nor can tbe subsequent allowance for foot-dirt water, which was to be ascertained by the common agent of the buyer and seller. LoHD Er.i.ENBORouGii, C. J. The difference between this case and that of Whitehouse v. Frost is, that tliere nothing remained to be done by the seller in order to complete the sale as between him and the buyer ; but here it is expressly found that some things did remain to be done by the seller Avhich were to precede the delivery to the buyer : the casks were to be searched by a cooper employed by the seller, and after the foot-dirt and water in each cask were ascertained by the broker attending on behalf of both parties, the casks were to be filled up by the seller's cooper at his expense, and delivered in a complete state, containing the quantity sold. These were material acts to be done by the seller before the delivery to the buyer : and the courts have frequently laid hold of circumstances like these to retain the property in favor of the unpaid seller; and before the oil was measured out and these things were done, the delivery was counter- manded. The other judges concurred in a judgment of nonsuit to be entered. 1 AUSTEN -f^ CRAYEN AND i-ti^, 2;»>l'^ ANOTHER. X - tr%^ , X P n ^^ In the Common Pleas, November 10, 1812. ■' ■i [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 Kruse, 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, Ch. J., it appeared that the plaintiff had in his two first counts incorrectly described the contract ; it therefore became a ques- 1 Vide Zagury v. Furnell, 2 Campb. N. P. Cas. 240. VOL. I. . 48 S^ 26 7//i^^ ^ //^/^ 742 AUSTEN V. CRAVEN. [CHAP. II. tion whether the plaintiff eonld recover in trover under the following circumstances: On the 7th of December, 1809, the defendants, who were sugar refiners, 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 quality called Turkey C. at 75^., and 50 others of the quality called Turkey A. at 108s., to be deliverecHVee on b9fli4_aJBi'iii§.^ 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 day of April, 1810; after that time, if not shipped, the buyer 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 any 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 j^rice, the 150 hogsheads lastly 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 they 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 lie had contracted for them, and required the defendants to deliver "fchem, which they, being unable to obtain payment 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 defendant s, having told the plaintiff that he might safely buy and' pay Kruse, could not afterwards set up that lien. F or 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 plaintifl^, subject to this objec- tion, which was I'eserved by the chief justice ; and in Easter term, /Shejy/ierd, Serjt., obtained a rule nisi to set aside the verdict, and enter a nonsuit, against which Vciicghan, Serjt., now showed cause; he relied chiefly on the case of Whitehouse v. Frost, 12 East, 614, where after a purchase of 40 tons of SECT. IV.] AUSTEN V. CRAVEN, 743 oil in one cistern, and a resale of 10 tons thereof, it was held, that the purchaser of the 10 tons could recover for them in trover, without any previous separation. [The court manifested considerable doubts upon that decision ; and Heath, J., asked, if 10 tons had leaked out of the cistern, to whom those 10 tons should be deemed to belong?] Ilar- man v. Anderson, 2 Camp. N. P. 24.8. After an invoice of goods lying in a warehouse at a wharf, and an order to the wharfinger to deliver them to the vendee, and an actual transfer made in the w liarfinger's books to the name of the purchaser, it was held that the right of stop- page in transitu ceased ; and the like law, although the wharfinger had not made a transfer in his books. It a])pears by the delendant's admission, that these goods had been separated from the bulk of their stock, for they said they had the 50 hogsheads belonging to Kruse, which they would deliver to the plaintiff. If they had any 50 hogs- heads of that quality in their warehouse, they must, after that declar- ation, be deemed to have appropriated them to the plaintifl^" and could not say that they were not his property. [Ginns, J. Their language is explained by the other evidence : their admission is, that they have entered into a contract for the sale of 200 hogsheads to Kruse, out of which they will deliver these 50 in part performance.] Tlie weight of hogsheads of sugar varies but little, and is well known in the market ; and every thing is to be intended in support of a verdict. Shepherd and I^est, Serjts., in support of the rule. It is not the usage of the trade to pack the loaves which the refiners manufiicture, into hogsheads, until they are wanted to be so packed for the purpose of exportation, and it by no means follows because a manufacturer who agrees to furnish certain goods, and to pack them in a particular way, happens to have one parcel of goods of that description so packed at the time of making his contract, that the contract shall therefore attach npon that very parcel. This is merely a contract for certain quantities of sugar of certain qualities, not in existence at the time of the con- tract. In the sale of the oil were several ingredients not found here. First, it was, from the date of the contract, to be at the pui-chaser''s risk; next, the specific oil was in existence, contained in a particular place, and vessel named; thirdly, Dutton & Bancroft, the original owners, had made a complete transfer of the whole 40 tons to the Frosts; whereas here, even if the sugars contracted for existed i?i specie, there was nothing like a delivery to Kruse of the possession, nor had Kruse ever done that which Avas necessary to entitle himself to the possession. The plaintiff, too, demanded a simple delivery of the goods, whereas, in order that the defendants might avail themselves of the drawback, he had no right to require the sugars to be delivered elsewhere than on board a British ship, which he omitted to name : that sti)»ulation is introduced into the contract for the defendants' benefit. Nor could the price be ascertained until the sugars were 744 WHITE V. WILKS. [CHAP. II. weighed off, which had never been performed ; for different hogsheads of sugar vary much in Aveight, and the goods are sold at so much per cwt. Hanson v. Meyer, 6 East, 614. But, what is stronger, there is no proof that the defendants ever had any sugars of this quality in a state capable of being weighed. Mansfield, C. J. What the plaintiff's counsel says would have 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 goodj Any sugars o f 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 liquid, 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 say nothing on that case ; sufiice it that it is very distinguishable from this. Hide absolute. WHITE AND Others, Assignees of SHUTTLEWORTH and Another, £anh-upt, v. WILKS. In the Common Pleas, November 9, 1813. [Reported in 5 Taunton, 176.] This was an action of trover for linseed oil, tried at the sittings in London, after Trinity term, 1813, before Mansfield, C. J. : the case was, that Cleasby, the broker for both parties, inade out and delivered to the bankrupts a note of sale, as follows : — London, January 14, 1812. Messrs. Sliuttleworth & Goodfellow bought of Matthias Wilks, 20 tons of oil at 60Z., — 1200Z. Mr. Wilks holds the above oil in cisterns for Messrs. Shuttleworth & Goodfellow's accommodation, charging Is. per ton per week rent. A further contract was also written in these terms : — London, January 14, 1812. Bought this day by order of Messrs. Shuttleworth & Goodfellow, of Matthias Wilks, 20 tons of linseed oil, at 60Z. per ton, usual allowances, to be delivered in one month, and paid for in four days, by their acceptance at four months. SECT. IV.] WHITE V. WILKS. T45 • In pursuance of these terms a bill was presented to the bankrupts for acceptance, and being called for on the day on which the bankrupts stopped ))aynient, was given u]) not accei)ted, for which a cause was at the same time assigned, that the seller refused to give, at the end of the four days, an order for the delivery of the oil to the bankrupts. At the time of making this contract, the defendant, who was an oil- • • • 1 merchant, was possessed of large quantities of od, lying m several different cisterns, at different warehouses; no particular cistern or ware- house was mentioned to the buyers as that from which the oil sold to the bankru])ts was to be taken, nor did the broker know where the particular oil lay which was to satisfy this contract, nor was any spe- cific quantity of twenty tons weighed out for the purchaser. Before oil is actually delivered, it is the custom of the trade to weigh it out, and se[)arate it from the mass, after which an order is given to the warehouse-keeper to deliver it to the purchaser. The vendor, upon application, had refused to deliver the oil to the plaintiffs. Lens, Serjt., for the plaintiffs, contended, upon the authority of the decision of the Court of King's Bench, in Whitehouse v. Frost, 12 East, 614, and Hurry v. Mangles, 1 Camp. N. P. 452, that the sale in this case was complete, and the plaintiffs entitled to recover ; he relied on the con- tract that the goods should remain in the vendor's warehouse at a certain rent, as equivalent to an actual admeasurement and delivery. Shepherd, Serjt., for the defendant, contended that there had been no complete sale, because no specific portion of the oil had been sold, and there had been no delivery. Mansfield, C. J., was of opinion, following the cases of Zagury v. Furnell, and Austen v. Craven, that there was no complete sale, because the contract did not attach upon any partic- ular parcel of oil, nor had there been any actual delivery, and non- suited the plaintiffs. Zetis now moved to set aside the nonsuit and have a new trial, upon the authority of the cases which he had cited at the trial. Mansfield, C. J. In the case of Austen v. Craven, this court, in direct opposition to the cases cited, held that trover Avould not lie for sugars which had not been specifically separated from the vendor's stock; and although the objection was not made fully comprehensible upon the first trial of that cause, yet as soon as it came to be stated in court, it became too clear to be resisted ; and although the case was an extremely hard one, inasmuch as the very persons who refused to de- liver the sugars had told the purchaser that he might safely pay the bankrupt for them, we held that he could not recover, and unless it can be shown that that decision was wrong, it is impossible that the plaintiffs should prevail in this case. The o bjection here is, that no sp^t'cific quantity of oil was sold. The quantity agreed to be sold was mixed with a much larger quantity; and not only that, but it was mixed with several different quantities : how was it to be separated ? • 746 WHITE V. WILKS. [CHAP. II. In the cases where the payment of rent for warehouse room has been an ingredient to make a complete sale, the question has always been on the constructive delivery, not on the separation of the goods from the mass ; in all those cases there has been a complete separation of the goods sold, and the only doubt has been, whether there were a symbolical delivery. This, too, is the case of a liquid, which makes the difficulty much greater than in the case of a solid substance.^ Heath, J. The payment of rent is not equivalent to a delivery of the goods. Suppose a part of the oil in some of these cisterns were lost or burnt, who is to know whether it is the vendor's or the pur- chaser's oil that is destroyed? We do not pretend to reconcile the case of Austen v. Craven with that of Whitehouse v. Frost ; it would be impossible so to do ; and unless the plaintiff can overthrow that case, it is impossible to grant a new trial here : there are, besides, num- bers of old cases, in which it has been held, that the plaintiff could not succeed for want of a sufficient certainty and separation of the goods sold. The court refused the laile. Chambee, J., was absent in consequence of indisposition. 1 The ingenious experiments of Count Rumford have demonstrated that every change of temperature in the particles of a fluid, occasions a change in tlie relative local position of those particles ; those which receive an increase of heat becoming specifically lighter, and immediately rising to the top, and those which give out their heat and become cold, becoming at the same time specifically heavier by reason of their condensation, and consequently sinking to the bottom ; hence it follows that if the vendor of a portion of a fluid should, upon a contract of sale, attempt, without previously drawing it oflT, to assign to the buyer any specific portion of the mass less than the whole, as, for instance, that part which at the time of the contract constitutes the uppermost twenty tons, or the lowermost twenty tons in the vat, it would be im- possible for him specifically to fulfil such a contract; for, as the temperature of the atmosphere is continually changing with every cloud that intercepts the rays of the sun, and with every alteration of the wind, the particles that formed the portion ex- pressed to be sold, would instantly after the contract made begin to be displaced, and to be replaced by others ; and it would be an absolute miracle if that very assemblage of particles which at the time of the contract occupied the part of the vessel afiected to be sold, should, after such repeated mixtures with the residue of the mass, have reassembled in their original position, just at the moment when the purchaser came to draw off what he had bought. SECT. IV.] BUSK V, DAVIS. 747 BUSK AXD A>'OTHER V. DAVIS AND Anotiier. In the King's Bench, February 9, 1814. [Reported in 2 37ai(/e ^- Selwyn, 397.] Trover for flax. At the trial before Lord Ellenborough, C. .T., at the London sittings after last terra, it ap]>earefl that the plaintiffs, in September, 1812, having about 18 tons of Riga flax, then lying in mats (and entered as mats) at the defendants' wharf, sold a part of it, through tlie intervention of a broker, to one Bromer. The sold note was in the following terms : — Sold, on account of Busk & Co., 10 tons of Riga flax, marked P D R., at Davis's wharf, sound and of a merchantable quality, " ex"' the Vrow Maria, at £118 per ton, the amount to be paid by the buyer's acceptance at three months from to-day, allowing 6 months and 14 days discount. Tare and draft as cus- tomary, London, Sept. 23, 1812. » A few days afterwards the plaintiffs gave Bromer the following written order on the defendants, which was. immediately sent by Bromer to the defendants, and entered in their books : — Messrs. D.wis & Co., Ph-asf deliver to Mr. D. Bromer or order ten tons Riga P D R flax, " ex " Vrow Maria. Busk & Co. Sept. 23, Oct. 7, 1812. It is usual to allow 14 days for delivery, during which time the sellers are liable for warehouse rent, and the purchaser afterwards. On the 17th of October (after the 14 days had expired) Bromer stopped payment, and the flax remaining at Davis's wharf in the same state as at the time of sale, the plaintiffs gave an order countermanding the delivery. Kiga flax is usually imported in mats, varying in quantity from 3 to 5 or 6 cwt. The quantity is ascertained by being weighed by the wharfinger.^ The sale of 10 tons may require the flax mats to be broken, and tare and draft must be deducted before the bill of parcels can be made out. The tare is allowed by the weight, for the weight of mat and ropes; 14 lbs. upon mats under 3 cwt., and 20 lbs. upon mats of 3 cwt. and over. Draft is 2 lbs. per mat. The plaintifls ^ Wlien the rule nisi was moved, Le Blanc, J., inquired who was to he at the ex- pense of tlie weijiliinrr, and said it mifiht be material to ascertain that fact; but upon showing cause it did not appear that that fact had been agreed ; it seems to have been considered that the wharfingers were at least the agents of both parties. 748 BUSK V. DAVIS. [chap. II. had not received any return of the weight from the whai-fingers. Under these circumstances his lordship Avas of opinion that as an ulterior process of weighing was to be performed by the seller before the delivery could take place, the transfer of the property to the buyer was not complete, that process not having been performed ; and there- upon a verdict was found for the plaintiffs. Park obtained a rule nisi for a new trial, and relied on Harman v. Anderson,^ Whitehouse v. Frost,^ and Jackson v. Anderson.^ Scarlett and Brougham showed cause, and contended that the sale was not so complete as to vest the property in Bromer, and preclude the plaintiffs from countermanding the order for delivery. This was a sale of a certain quantity of flax, the delivery of which was to be ascertained by weight, which weighing was to be done by the wharf- ingers as agents for the sellers, and until that was done, it remained in fieri what portion of the whole bulk was to be delivered in order to satisfy the quantity sold. Therefore, though the price and quantity were certain, yet the precise thing to be delivered was uncertain, and what remained to be done for ascertaining it was necessarily to pre- cede the delivery, and so this case is governed by Wallace v. Breeds * and Hanson v. Meyer.'^ In the former it was stated to be usual, after sale, for the cooj^er of the seller to search the casks of oil, and for the broker of both j^arties to examine them with a view to certain allow- ances, and then the casks were filled up by the seller ; in the latter, there was no doubt as to what was to be delivered, for it was a sale of all the starch, but the weighing was necessary to the ascertainment of the price ; and in both it was adjudged that these acts which were to precede the delivery were essential to complete the transfer, and that the property was not divested out of the vendors by the mere sale and order on the wharfingers to deliver, but that the vendors might, upon the insolvency of the vendees, countermand the delivery. And in this case, if, after the sale, a fire had consumed the flax upon the defend- ants' wharf, according to Rugg v. Minett,^ the loss would not have fallen upon the vendee. As to Whitehouse v. Frost, there are the same circumstances of difference between the present and that case that Lord Ellenborough, C. J., pointed out between Wallace v. Breeds '^ and that case ; and his lordship added that the courts frequently laid hold of such circumstances to retain the property in favor of the un- paid seller. And if those two cases should be thought inconsistent with each other, it may be observed that Wallace v. Breeds is later, and was decided upon consideration of the former case. In Harman V. Anderson there could be no doubt that the transfer was complete, 1 2 Canipb. N. P. C. 243. 2 12 East, 614. 3 4 Taunt. 24. * 13 East, 522. 5 6 East, G14. 6 11 East, 210. See also Zagury v. Furnell, 2 Campb. N. P. C. 240. 7 13 East, 625. SECT. IV.] BUSK V. DAVIS. 749 because no weighing was necessary to the delivery, nor was any allow- ance to be made, neither was there any uncertainty as to the ])recise tiling to be delivered, but the delivery was symbolically executed as much as if the goods had been delivered into the party's own hands. Park and Taddi/, contra, admitted the rule to this extent, that if any thing remained to be done between vendor and vendee in order to complete the sale, the contract was still open ; but they denied that such Avas the case here. And they rested their argument mainly on Whitehouse v. Frost, and the language of Le Blanc, J., in that case,^ that "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 price." Now here both price and quantity, as it is admitted, were ascertained by the contract ; and nothing remained to be done as between the buyer and seller, although the whartingers, before they could finally execute the order for delivery, were to ascer- tain it by weighing. Therefore, again, in the words of Le Blanc, J., in the same case, " though something remained to be done as between the vendee and the ])ersons who retained the custody of the flax, be- fore the vendee could be put into separate possession of the ])art sold, yet as between him and his vendors, nothing remained to perfect the sale." The weitrhinfr was not an ingredient in the contract, but was rather like the weighing in Hammond v. Anderson,- for the satisfaction of the buyer, whereas the case has been argued as if it were a sale not of an ascertained quantity, but of an unascertained number of mats to be ascertained bv weiuhinEC. And Jackson v. Anderson,^ as well as Whitehouse v. Frost, shows that an order for the transfer of jiart of an integral quantity will vest the property in that part, though it be inter- mixed with and not separated from the whole. The case of Hanson v. Meyer might have apjilied if the price here had been made to depend upon the weighing ; and so, perhaps, might AVallace v. Breeds, if the order for delivery there had been entered in the wharfingers' books, but at the time of the countermand nothing had been done upon the order. Lord Ellenborough, C. J. The question in this case is whether the pro[)erty has been so ascertained as to be considered in law as eftectually delivered, the oi'der to deliver having been given to the wharfingers, and entered in their books. That would not of itself be sufficient unless the flax were in a deliverable state, and if farther acts were necessary to be done by the seller to make it so. Here it appears that farther acts were necessary, for the flax was to be weighed, and the por- tion of the entire bulk to be delivered was to be ascertained, and if the weight of any number of unbroken mats was insutticient to satisfy the quantity agreed upon, it would have been necessary to break open some mats in orjer to make up that quantity. Therefore it was impossible for 1 12 East, 621. "^ 1 N. R. 69. 3 i Taunt. 24. 750 BUSK V. DAVIS, [chap. II. the puvcliaser to say that any precise number of mats exchisively be- longed to him. If the weight did not divide itself in an integral manner, it would be necessary to break up and take some fraction of another mat. Every component part, therefore, was uncertain : it was uncertain how many gross mats there would be, or what fraction of a broken mat ; for, as it has been suggested, any certain number of mats miglit fall short of the entire precise quantity of ten tons. That is only one circumstance to shew that there was some uncertainty at the time of the contract, which was to be reduced to certainty by some- thing to be done afterwards, that is, by weighing, in order to ascertain the entire quantity. If, then, some further acts were to be done in order to regulate the identity and (if I may use such a phrase) the individuality of the thing to be delivered, I cannot say that it was in a state fit for immediate delivery, and that the order to deliver entered in the wharfingers' books operated as a complete delivery. I think this case falls within the authority of Wallace v. Breeds, and that the delivery was incomplete at the time of the countermand. Le Blanc, J. The question is between the vendor and vendee. The difficulty arises from not keeping that correctly in view. The question is, whether every thing has been done as between them to complete the delivery ; if not, the vendor had a right to countermand the delivery. The contract was for a specific quantity; the price was ascertained; the order for delivery had been sent to the wharfingers, and they had accepted and entered it in their books ; and 14 days were allowed for the deliverv, from which time the goods Avere to lie at the wharf at the charge of the vendee. But another thing was necessary to make this symbolical delivery equivalent to an actual delivery. It was to be ascertained what particular goods the vendee was to have. Now that is the point where this case is defectiA'e. The vendor had a much larger quantity, not lying together in one mass, but in several packages, which it was necessary to divide before it could be ascertained what part was his and what was to belong to the purchaser. Ton tons out of the 18 were to be delivered, and in order to do that it was necessaiy to ascertain how many mats or packages constituted the precise quantity of 10 tons, or what aliquot part of a mat or package, which was to be done by the weighing of the wharf- inger, who was the agent, for this purpose, of both parties. It was the same thing, therefore, as if the weighing had been to be performed by the vendor and vendee, or in their presence. Now that has not been done ; and, therefore, the jiarticular portion of the goods that was to belong to the vendee has not been ascertained as between them. This circumstance distinguishes the case from Wliitehouse v. Frost, which has been most pressed in argument. And in all the other oases where something remained to be done to ascertain either the price, or quan- tity, or thing to be delivered, a symbolical delivery has been holden SECT. IV.] BUSK V. DAVIS. 751 not to suppl}fctlie place of an actual delivery. Here something was to be done not to ascertain the price or rjuantity (thouirh upon the quan- tity of mats and ro)»es -would depend what was to be the allowance for tare and draft, but I lay that out of the question), yet something was to be done to ascertain the individuality. In Whitehouse v. Frost, the owner of a large quantity of oil in the mass sold a certain quantity of it to B, Avho contracted to sell the same to C, specifically as an un- divided quantity, and gave him an order upon the owner for the deliv- ery, which oi-der the owner accepted. The question that arose was not between the owner and B, but between C and B, who, as far as it was in his power, had done every act to complete the delivery, for he only pretended to sell an undivided quantity. Therefore, whatever miirht have been the case as between the owner and B, the court were of opinion that as betAveen the stiljvendee and ]>, the sale Avas com- plete, B having done all that could be done, as between them, to make the deliveiy effectual. Here it apj^ears that all had not been done by both parties to ascertain Avhat Avas to be delivered, and until that Avas done, the symbolical delivery left the transaction incomplete. Bayley, J. I am of the same opinion. In the case of Whitehouse V. Frost, nothing remained to be done by the seller, and on that ground the decision of that case Avas founded. There the vendor sold an un- divided one-fourth part of the quantity. The court must have jtro- ceeded on the rule laid do\A'n in Rugg v. Minett, because that case had been recently decided, and they had it then before them. There the party bought a number of casks of turpentine, Avhich Avere to be filled up by the vendor ; all Avere filled x\p exce])t ten, and the property of all those Avhich Avere filled up Avas considered as having passed to the A'en- dees ; but as to the others, that it remained in the vendor, and the Avhole having been consumed by fire, that the ten casks continued at the vendor's risk, but not the rest ; and the reason Avas, that as to those nothing remained to be done on the part of the vendor, but as to the ten casks something still remained to be done. Here also it remained with the vendor to have the Aveight of the ten tons ascertained, and to say what specific mats Avere to be delivered. The })urchaser had no right to point out the specific mats, the sellers only had that option. Therefore, as something still remained to be done by the ])laintifis, Avho Avere the sellers, and they had an option and election Avhut mats they Avould set apart, they had a right to consider the contract as still incomplete, and to countermand the delivery. Dampiek, J. Nothing remained to be done in order to ascertain the price or quantity, but it remained at the option of the sellers to ascertain Avhat particular mats Avere to be delivered, and that Avas to be ascertained bv them bv Aveiohino; Avhich stood in the way of a com- plete delivery in fact, and hindered the symbolical delivery from being 752 SHEPLEY V. DAVIS. [CHAP. II. equivalent to an actual delivery. And unless there has been some- thing equivalent to an actual delivery, the inclination of the courts has been to hold the sale not complete. Bule discharged. ' ^ rj 0^ SHEPLEY V. DAVIS and Another. hS %y^ y [Reported in b Taunton, %\1.] V o)^ Trover for ten tons of hemp. The cause was tried before Mans- ^^ In the COiMMON Pleas, June 16, 1814. >c ^ field, C. J., at Guildhall, at the sittings after Trinity term, 1813, when \ a verdict was found for the plaintiff, with £1110 damages, and 40s. costs, subject to a case which stated that the defendants were wharfingers, and on the 10th October, 1812, had in their possession at Davis's Wharf, ' thirty tons of Riga Rhine hemp, piled up together, the property of the plaintiff, and booked in his name, which hemp had, on 18th September, 1812, been received into the possession of the defendants, as wharfin- gers, from on board the ship Clara Magdalena, in the names of Mullet & Evans, and on the 3d October following, had been transferred in the defendants' books into the name of the plaintifl'. A contract, dated on 10th October, for the purchase and sale often tons, part of the before- mentioned hemp, was made by Grant, a broker, who signed it with the consent of the plaintiff and D. Bromer. Sold for M. Shepley, Esq., to T. Bromer, Esq., ten tons of Riga Rhine hemp, ex Clara Magdalena, at Davis's Wharf, at £110 per ton, payable by the "^X^ acceptance of the buyer, half at three, and half at four months, allowing the \^ usual discount, and fourteen days for delivery. ^ The plaintiff signed an order, dated on the same day, — "^ To the proprietors of Davis's Wharf, to weigh and deliver to Bromer or bearer ten tons of hemp, ex Clara Magdalena. The quantity often tons was never weighed off by the defendants, or jejiai-ated from the rest of the thirty tons ; nor were the defendants ever required by Bromer (or by his assignees after his bankruptcy), to weigh offer separate the same; but on the 11th October,. 1812, the plaintiff's order was delivered to the defendants, and entered in their books, and the ten tons, as part of the above-mentioned thirty tons, stood in the defendants' books as the property of Bromer, on and from that day. On 17th October, 1812, the plaintiff gave notice to the defendants that Bromer had stopped payment, and required them not to weigh or de- SECT. IV.] SHEPLEY V. DAVIS. 753 liver the hemp under the before-mentioned order. No bill of exchange for the ]irico was acccj^tcd l)y Bromer, or drawn upon liiin by the jjlain- tiff. Tlie jdaintiff, before this action brouglit, demanded of tlie defend- ants a delivery to himself of these ten tons of hemp, offering to pay them their demand for warehousing the same, and their charges in respect thereof, which the defendants refused. It is usual in the trade for the holders of similar orders, on selling their interest to a new pur- chaser, to indorse such order, and for the same to be again indorsed to future purchasers, without the intervention, of any actual weighing otf, until the article is at last taken away. The case was argued in Easter term. Jiest, Serjt., for the plaintiff, urged that the delivery of the hemp to the bankruj)t was inconij)lete, because the order was given before the expiration of tlie 14 days, and was to weigh and deliver. At the time of sale the ten tons were not a separate quantity, but parcel of a larger mass, and were to be weighed off; and that operation had not been yet performed : nor had the purchaser done all that depended on him, by api^lying to the defendants to weigh it, until after which operation no particular ])art of the hemp Avas approju-iated to the jnirchaser. The practice stated in the trade to sell a mere equitable right, is immaterial ; but if it could in any case avail, yet here the bankrupt Avas not the assignee of a contract, but the original purchaser, and the practice was therefore inapplicable. The stipulated bill had not been required or given, wliicli, where it forms a part of the contract, is essential to be performed as a condition precedent, before the projx'rty can pass, ac- cording to Hanson v. Meyer, 6 East, G14; and equally so, though the price here was ascertained before weighing. The order for delivery, too, was here countermanded before the fourteen days had expired. Whitehouse v. Frost, 12 East, 614, which will be cited for the defend- ants, has been overruled in the case of White v. Wilks, 5 Taunt. 176. There, too, the bill had been given. Lens, Serjt., for the defendants. Hanson v. Meyer is inapplicable, for the question there arose on a sale of the whole mass, and the weighing there was necessary for ascertaining the amount of the bill to be given : here the case is on the sale of a definite part only, the price of which is known. This contract Avas complete on signing it ; the period of four- teen days given for delivery is not a locus poRuitentlcE ; the delivery might be made within that time. In many of the cases that have arisen on a stoppage in transitu, a symbolical delivery has been held to determine that right ; and here the transfer in tlie wharfingers' books made the delivery of the ten tons comjdete. So the payment of ware- house rent by the purchaser, has been held to be the test of a complete delivery. In Wallace v. Breeds, 13 East, 522, and other similar cases, something remained to be done by the seller, and the property did not pass till those acts Avere complete. The case of Whitehouse v. Frost 754 SHEPLEY V. DAVIS. "^ [CHAP. II. is founded on sound law; and this case is stronger than that, inasmuch as the Several parts of the hemp are not so miscible as of tlie oil. The bargain here is complete, and this is the attempt of one tenant in com- mon to recover his share from the other, which rehation puts an end to this action ; or if there be not a tenancy in common, the separation and division for the purposes of sale is sufficiently complete by the written transfer of the legal title and symbolical delivery ; and the assignees of the bankrupt have a vested right to one-third part of the entire mass. In the case of White v. Wilks, the plaintiff was the buyer; here, the seller. Jackson v. Anderson, 4 Taunt, 24, was dissimilar to the present case ; there the money was originally sent by the consignor, destined and appropriated to different persons, and the mere accident of the coins being mixed in one cask could not alter the property in them ; but, if there be a complete sale of a certain portion of any mass of goods, made by the owner of the whole, the vendor and vendee are tenants in common, jBest, in reply. Lord Ellenborough distinctly held, in Hanson v. Meyer, tliat botli the amount of the price must be ascertained, and the quantity separated. There is no case where the courts have held the sale complete, if a bill, being stipulated for, has not been given. It is immaterial whether the price is to be paid in money or bills, and where a contract is to transfer goods on jjayiuent of money, no one will con- tend the transfer is complete witliout payment of the money. This is not distinguishable from White v. Wilks. Here is no tenancy in com- mon. The property in these ten tons resides entirely in the vendor, or entirely in the vendee, depending on the question whether the sale is complete or not. If the sale were complete, the admixture of the goods would not make a tenancy in common. So held in Jackson v. Anderson, But the plaintiff is at all events entitled to the other twenty tons, and may apply his declaration to a part of them ; his first argu- ment, however, is the sound foundation of his right. Cur. adv. vtdt. GiBBS, C. J,, now delivered the judgment of the court. After re- capitulating the case, and observing that the usage mentioned at the end of it, for the holders of such orders to indorse them over to future purchasers, certainly could not give a larger right to the indorsees of such orders than the person had who indorsed them, he stated that the real question was, whether, under the circuijistanccs of the case, the plaintiff had, on the 17th of October, a right to rescind the con- tract, and countermand the order to weigh off and deliver. If he had, the propeity remained in him, and the defendants Avere guilty of a con- version in refusing to deliver it up on the plaintiffs demand. If he had no right then to rescind the contract, he had no claim to have the hemp redelivered to him, and consequently cannot maintain this action. This i SECT. IV.] GILLETT V. HILL. 755 depends upon the question, Avliethcr tlie delivery under this order was complete, for, iftlie delivery Avas conijilete, tlie contract was executed, and could not be rescinded. It" any thing remained to be done, as between the vendor and vendee, the delivery could not be complete ; and the vendor, ui)on the insolvency of the vendee, might rescind the contract. There is no authority to the defendants the wharfingers to deliver, but what this order gives. The questiou is, whether a delivery had taken place under it. See then Avliat this order Avas, and how much of it was executed. The order is to weigh and deliver: it gives no authority to deliver the hemp until the defendants had weighed it ' off. The defendants had not weighed it off before the insolvenc y and count ermand of the order ; anTT consequently no delivery cou ld have taken place Vithin the meaning of the onler; and tlie vendor might still rescuid tlie^ohtract] We are confirmed in this reasoning by the case of Busk v. Davis, in the Court of King's Bench, communicated to us by ]Mr. Justice Dampier. Independently of the reasoning I have mentioned, the case I am now citing is directly in point. We are of opinion, therefore, that the delivery not being complete, the vendor was at liberty to rescind his contract, and that he being at liberty to rescind it, the refusal by the Avarehouseman to deliver the goods to him Avas a conversion, and that therefore the plaintiff is en- titled to recover, f/' V Judgment for the i^laintijlf. ^ fS^ Wj!^^\ GILLETT V. HILL and Another. ^;^ ^,^^^ <^icC^^^ s^ (/' Q^ d/ <'^ ^^ '^^^ Exchequer, Hilary Term, 1834. r/ f/ /jC^, -< \ ^ Vy^KV*^ [fi^ortecf in 2 Crompton ^ Meeson, 530.] A . ^^ //^/) / ^^ Trover to recover the A'alue of fifteen sacks of flour. //«/,/ /T^^ " //cT ^ At the trial before Lord Lyndhurst, C. B., at the London sittings after last Trinity term, it appeared that one Orbcll, a miller, had given /'^^ '' the plaintiff an order on the defendants, who Avere his (OrbelFs) wharf- J^c'' ingers, for the deliA'cry of tAventy sacks of flour, Avhicli order was in the ^^ ^/ folloAving terms : — Mrs. E. Hill & Son, Please to deliver to Mr. Gillett twenty sacks of households. Richard Orrell. This order was presented by the plaintiff's carman at the defendants' counting-house, but the defendants' foreman said that they had not more than five sacks to spare, but he might have that quantity. The 756 GILLETT V. HILL. [CHAP. 11. carman then went away leaving the delivery order with the defendants' foreman, and it was filed by the clerk in the usnal 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 plaintiff" should have it as soon as they got any. Shortly after this, another 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 order from the plaintiff" to that effect, and that the five sacks were accord- ingly delivered. The 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 wei-e, they were appropriated to prior orders. But no such orders were produced by the defendants. It was objected for the defendants, that, as no specific fifteen sacks of flour 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 2)laintiff"'s 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 delivery 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. Bompas, Seijt., in Michaelmas term last, obtained a rule for a new trial, against which tT. Williams was to have shown cause, but the court called on bompas, Serjt., and Hoggins, in support of the rule. An action of trover was not maintainable, inasmuch as there was no appropriation by the defendants of any twenty specific sacks to the order delivered by the plaintiff". Where a delivery order is made upon a party having a quantity of goods in his hands, and he makes no ap- propriation of any particular goods to such order, the proper form of action is assum2)sit. If any thing remains to be done on the part of the vendor before the goods are to be delivered, an absolute right of property does not vest in the vendee, and trover is not maintainable. Hanson v. Meyer.^ In this case the remaining fifteen sacks were to be selected by the defendants from the other flour of Orbell's in their pos- 1 6 East, 614. SECT, IV.] GILLETT V. HILL. 757 session, as five sacks only were clelivered. [Baylkt, B. If I have one hundred sacks of flour in your liands, and I agree to sell fifty, and you dispose of them elsewhere, have I not a right to maintain trover for them ?] If there were any specific number appropriated, tliere might be such a right. Rugg v. Minett ^ shows that where nothing remains to be done by the vendor, the property in the goods vests in the ven- dee; but not where there is any thing to be done by the seller in order to put the goods in a deliverable state in the place from \\'hence they are to be taken by the buyer. So in Busk v. Davis,- where the plaintiff sold ten out of eighteen tons of flax, then lying in mats at the defend- ants' wharf, at so much per ton, and gave the vendee an order on the defendants, the wharfingers, to deliver ten tons to the vendee or order, which the defendants entered in their books ; but the quantity to be delivered was to be ascertained by the wharfingers' weighing it, and an allowance for tare and draft was to be made by the weight ; it was held that the sale was not complete to pass the property, those acts not hav- ing been done by the wharfingers, nor any delivery made ; and that the plaintiffs on the insolvency of the vendee might countermand the delivery. [Vaugiian, B. What remained here to be done by the wharf- ingers?] The fifteen sacks were not selected and appropriated to the order to deliver to the plaintiff. [Batlet, B. If when the delivery order was brought you had said, " I have different sorts of flour, and I must select which," then perhaps you must have selected before the right to it vested in the plaintiff'; but by accepting the order you agree to deliver twenty specific sacks.] If any thing remained to be done to shew the individuality of the sacks, it is submitted that the right of property did not vest. In Busk v. Davis, Lord Ellenborough says : " If some further acts were to be done in order to regulate the identity and (if I may use the phrase) the individuality of the thing to be delivered, I cannot say that it was in a state fit for immediate delivery, and that the order to deliver entered in the wharfingers' books operated as a complete delivery." And Le Blanc, J., says: "Here something was to be done, not to ascertain the price or quantity, but something was to be done to ascertain the individuality." It is submitted, that, unless there Avas some appropriation of fifteen specific sacks to the delivery order for the plaiutift''s use, he had no right to take them, and no prop- erty in them vested in him, so as to entitle him to maintain trover. LoKD Lyndhurst, C. B. I am of opinion that there ought not to be a new trial in this case. A point of law has been attemi)ted to be raised, but the case was decided by the verdict of the jmy 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 i)re- sented, was accepted, and accepted generally ; at least there was no 1 11 East, 210. 2 2 Maule & S. 397. VOL. I. 49 758 GILLETT V. HILL. [CHAP. II. evidence of any qualification of the 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 generally were filed by them in the com-se of their business. That view of the case was confirmed by the evidence of the plaintiif 's carman, who stated that, after leaving the first order for twenty sacks, he had afterwards brought an order from the plaintiflT " for five sacks ex 20," and that five sacks were delivered according to that order. The jury were of opinion that the order for twenty 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 plaintifi" knew that the defendants had more in their possession. I think, there- fore, that the vei'dict was right, and that trover is maintainable. There must, therefore, be no rule. Bayley, B. I am of the same opinion. There is no doubt that there was orioinally an order signed by Orbell, and addressed to the defend- ants, requesting them to deliver twenty sacks of flour to the plaintiflp. 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 the vendee until the vendor has made his selection, and trover is not maintainable before that is done. K I aoree to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part of the whole quantity I 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. This was an order SECT. IV.] GILLETT V. HILL. 759 to deliver twenty sacks of flour, not out of a gi-eater quantity, but twenty sacks specifically ; aiul 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 plaintift', and that the verdict is riiiht. Vaughan, 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 show property in the plaintifl', and iJOssession and a conversion by the defendant. All those requisites are in my ojnnion complied with in this case. Attend- ing to the facts of the case, the delivery order is taken to the Avharlinger to see if the party giving the order has the 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 plaintiflf's right to call upon them to deliver twenty sacks of flour. Having received that order, it is binding on them. If they Avere 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 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 particular 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 plaintifl" 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 sufficient evi- dence of property, possession, and conversion, to warrant the jury in finding their verdict for the plaintiff", and to sustain this form of action. GuRNEY, B., concurred. Hide dlscJianjcd. \V J^ -^ WOODLEY AND Anothee v. COVENTRY akd Othees. \^ \\i In the Exchequer, April IT, \^^^^^cfc/z'i^jc £^ •^ [i?epo?-^e(^ in 2 Hurlstone ^ Coltman, 164.] 6''7/y7 ^^iSy^g^f Tr l^ ffH iff/"^ ^^^ barrels of flour. ^-^ ^-^^ ?7>7^> ^ ^^^ ^ ^^^ ^ iPleas : first, not guilty ; secondly, that the goods were not the plain- tiffs' as alleged. '^^^f'T^^^/// /^ J At the trial before Pollock, C B., at the London sittings, after last j Michaelmas term, the following facts appeared. The plaintiffs and defendants were com factors in Mark Lane, London. One of the defendants, M. Coventry, was the owner and keeper of a corn and flour warehouse at Shad Thames. Li August, 1862, one Clarke, a dealer in flour, and whose business consisted in buying it from factors and re- selling it to bakers and other retailers at a small profit, applied to the V plaintiffs for advances on a quantity of flour which he had purchased of the defendants, and he delivered to the plaintiffs the following order : — Jack's Coffee House, Mark Lane, August 25, 1862. Mr. M. Coventry, deliver to Messrs. Woodley & Meadows, 130 barrels flour, Columbia Mills . 218 ,, ,, Diamond ,, Joseph Clarke. The plaintiffs, before consenting to make any advance on this order, sent it to the warehouse by a clerk, who made the inquiry there whether " it was all in order," and receiving an answer, " Yes," there- upon lodged the order at the warehouse, when it was accepted. The clerk also took samples from the bulk, and reported what had passed to the plaintiffs, who thereupon advanced to Clarke £950 on this and some other flour, for which Clarke had previously given them a delivery order. The plaintiffs subsequently sold small quantities of the flour, which were delivered by the warehouseman to the plaintiffs' purchasers in pursuance of ordinary delivery orders for that purjjose. On the 9th of September, Clarke was declared bankrupt, and absconded without having paid for the flour, and the defendants refused to deliver any more of it to the i^laintiffs. It appeared by the evidence on behalf of the defendants, that on the \ 23d of August, Clarke purchased of them at their stand in the com ^ \ market 350 barrels of flour, and received a sale note, and the defend- ;:;^ * ants also gave Clarke the flowing delivery order : — V -; M^ SECT. IV.] WOODLEY V. COVENTRY. 761 Corn Exchange, 23 | 8, 1862. Mr. M. Coventry, 20, Shad Thames. 130 barrels of flour, Columbia Mills, ex Oder. 220 ,, ,, ,, Diamond ,, ex A(juila. All charges after fourteen days to be jjaid by buyer. No refusal will be ac- cepted, unless sufficient reason be given at our stand by 11 o'clock next market day. For Coventry & Co., J. M. Hall. N. B. — No corn to be delivered but to printed notes from our house. This order Avas lodged by Clarke the same day at the warehouse of the defendant, M. Coventry, in Shad Thames, and Clarke's name was entered in tlie defendants' book as tlie purchaser of that quantity of flour. Two barrels of flour were afterwards delivered by the defend- ants tipon Clarke's order. When Clarke sold this flour to the plaintiffs there were in the warehouse 361 barrels of flour, Columbia Mills, ex " Oder," and 506 barrels of flour. Diamond Mills, ex " Aquila." The whole were in one warehouse, and there had been no separation or approi^riation of any particular barrels to Clarke. The usual course of business was, upon the lodgment of a delivery order, to make an entry of the names and quantities in a book kept for that purpose, and to give out samples from the bulk. It was not the practice to set apart or appropriate any specific barrels to any contract or delivery order; but the usual course was, when delivery orders were presented for actual delivery of any quantity, to deliver that quantity as it came from the bulk, and in the order in which deliveries were required. At the time when Clarke absconded and the defendants refused to deliver the flour to the plaintiffs, there was a much larger quantity of flour in the ware- house, both of Columbia Mills, ex "Oder," and Diamond Mills, ex' "Aquila," than sufficient to answer the delivery orders lodged by the plaintiffs. The defendants endeavored to establish a case of fraud and collusion between the defendants and Clarke, but failed. It was objected on behalf of the defendants, that, as there had been no appropriation of any specific barrels of floui', no property passed fi'om the defendants to Clarke, and therefore he could convey no prop- erty to the jilaintifls. The learned judge overruled the objection, and a verdict was found for the plaintiffs, with £310 damages. Shee, Serjt., in the following term obtained a rule nisi for a new trial on the ground of misdirection in the judge holding that the property had passed from the defendants to Clarke, and from Clarke to the plaintiffs, although no specific barrels of flour had been set apart or otherwise appropriated to the contract between the defendants and Clarke ; against which Jjush {Karslake and W. D. Meadows with hini) now shewed cause. This is not a question Avhether, as between vendor and vendee, the property in the flour passed, but a question between the vendor and a 762 WOODLEY V. COVENTRY. [CHAP. II. purchaser from the vendee, that purchaser having advanced money upon it. The rule that upon a contract of sale no property passes unless there lias been a specific appropriation of the goods, does not apply. The defendants, as warehousemen, having assented to the delivery order, and transferred the flour from Clarke's name to that of the plaintifis, are estopped from denying, as against the plaintiiFs, that Clarke had a right to make such an order, or that they had the goods represented by it, and that the property in the goods passed to the plaintiffs. In Stonard v. Dunkin^ a warehouseman, on receiving an order from the seller of malt to hold it on account of the purchaser, gave a written acknowledgment that he so held it, and he was not allowed to set up as a defence for not delivering it to the purchaser, that by the usage of trade the property in malt sold was not trans- ferred until it was remeasured, and that, before the malt in question was remeasured, the seller became bankrupt. There Lord Ellen- borough said : " Whatever the j-ule 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 on his account. By so doing they attorned to him, and I should entirely overset the secmity of mercantile dealings, were I now to suffer them to contest his title." That case was recognized in Hawes v. Watson,^ where the vendor of some tallow lying at a wharf gave a written order upon the wharfingers to weigh, deliver, transfer, and rehouse the same. The vendee resold the tallow, and delivered to the purchaser a written acknowledgment fi-om the wharfingers that they had transferred the tallow to his account, and debited him with the charges from a certain period, and it was held that, although the tallow was not weighed, the Avharfinger could not, after his acknowledgment, deny that he held it as the agent of the purchaser. That doctrine was confinned in Gosling v. Birnie.'' The court then called upon WatMn Williams to support the rule. This action is founded in property in the goods and not in contract. It is conceded by the plaintiffs that this being merely an executory contract for the sale of a certain quantity of flour, and no specific flour having been appro- priated to it, no property in fact passed, and that the property still remained in the defendants ; the question, therefore, is now narrowed to this, whether, under the circumstances, the defendants are estopped from setting up the true state of facts, showing that the flour which was the subject of these transactions was not any specific flour, none ever having been separated or appropriated from a larger bulk to this contract. As between the defendants and Clarke, unquestion- ably the rights of the jjarties were still merely in contract, as no right of property in any particular flour had vested in him ; and the 1 2 Camp. 344. 2 2 B. & C. 540. ^ 7 Bing. 339. SECT. IV.] . WOODLEY V. COVENTRY. 763 sole question is, "whether the defendants have so conducted them- selves in their dealings with the plaintiffs, or have said or done any thing to estoj) them from relying upon the real facts, so far as they afford a defence to this action. No doul)t the defendants are esto])]ied from setting up any facts inconsistent with what they led the plaintiffs to believe the facts really were. That is the true nature of estoppel ; but beyond that the defendants are not estopped. The class of cases referred to, of whicli there are a large number, do not apply to the present case at all. The conditions precedent to the passing of the property in goods from a vendor to a purchaser are divisible into two distinct classes. First, there is the necessary condition, that the goods in which the property is to pass shall be specific and individual. Secondly, there is the class of cases where the goods are specific, but by the terms of the dealing something has to be done, or is to happen, before the pi'operty vests in the purchaser. Now, in the latter class of cases, a warehouseman, who accepts and acknowledges a delivery order coming from the original vendor, is estopped from disputing the non- performance of any of the conditions upon which a delivery of the specific goods is to take place, as it would be inconsistent with his acceptance, of an order for delivery; so also, no doubt, he would be estopped, as indeed in all cases, from disputing that he had any goods applicable to the delivery order. All the cases referred to belong to this class; but the present case belongs to the former class, and there is no authority to be found which decides that the mere acknowledg- ment of a delivery order does away with the necessity for the perform- ance of that condition precedent to the passing of the property which consists in the goods being specific and identified, which depends not on the mere agreement of the ])arties, but upon the reason and neces- sity of the thing. The defendants have not said or done any thing inconsistent with the facts they set up and rely upon. Tliey never represented that the goods were specifically appropriated, or that any particular goods belonged to Clarke. They were asked whether the delivex-y order was in order, and they said, " Yes," and they do not now seek to dispute that fact. If there had not been sufficient goods to satisfy the order, they would, no doubt, have been estopped from setting that up, as it would not be consistent with what they had previously stated; but it is not inconsistent with the delivery order being right, that the goods should be part of an entire bulk, and not specifically appropriated to the contract or the order. The legal consequence of this latter circumstance is another matter; and it no doubt hapjiens that it has the effect of showing that the i)laintiffs have no rights or remedies founded upon property in the goods, and have only the con- tract to resort to ; and the question, therefore, in one form comes to this, whether the plaintiffs have any rights founded in ]n-operty, or whether their rights are merely in contract. [Bkasiwell, B. What 764 WOODLEY V. COVENTRY. . [CHAP. II. remedy do you say the plaintiffs could have adopted?] The plaintiffs had a right to avail themselves of the contract between the defendants and Clarke, the benefit of which had been transferred to them, and they might have sued in Clarke's name, and to such an action the de- fendants had a good defence. As to the merits of the case, the sole question is. Who is to suffer for Clarke's fraud? If the plaintiffs can enforce a right of property in the goods the defendants must suffer, but if the transaction still remains in contract the plaintiffs will lose their money. Hardship ought really to be out of the question, and the matter is one of pure law. Now the estoppel can only be as to facts, and what have the defendants done or said to estop them from showing that the goods to which this delivery order related, form an •undivided part of a larger bulk? They do not want to dispute that there were goods applicable to this contract ■ and delivery order ; they only say that the goods are not specific, but an undivided part of a larger bulk. Suppose in the present instance the fact of no property in the goods having passed to the plaintiffs had been attended with no substantial consequences to them, and that whilst they were deprived merely of this form of remedy by action of trover, the remedy on the contract had been equally available and had not been impaired by the conduct of their vendor, Clarke ; could it have been contended for a moment that the defendants were estopped from showing the facts now sought to be set up?. The particular bearing or effect of a fact upon the legal rights of parties is not the true test whether a party by his conduct is estopped from setting up the truth as to that fact. Further, • if there is an estoppel, it must be mutual ; and suppose there had been a fire at the warehouse, and half the flour had been burned, could the defendants have cast the loss, or any part of it, on the plaintiffs? [Pollock, C. B. It was the defendants' duty to have appropriated 348 barrels of flour to the order when they accepted it, and it is their own fault if they are in such a difiiculty.] The defendants were guilty of no default or neglect ; and every thing was done in the usual and ordinary course, and that makes the point as to the estoppel the more clear. The usual course was not to appropriate from the bulk until actual delivery, so that when the delivery order was lodged, and the plaintiffs were told that it was right, there was nothing at all, according to the usual course of business, to justify the plaintiffs in coming to the conclusion that it meant that any particular flour had been transferred to Clarke, or to themselves. Here the defendants seek to set up facts in no way inconsistent with any thing they have said or done, or induced the plaiutifls to believe in. It is no ground for the estoppel that the facts relied on by the defendants would have the legal effect of pre- venting the plaintiffs from resorting to one description of rights and remedies. Martin, B. I am of opinion that the rule ought to be discharged. SECT. IV.] WOODLEY V. COVENTRY. 765 Tlie question dcpcnfls on the real nature of tlie transaction as between the phiintitls and tlie defendants. I think, upon the authority of Hawes v. Watson,^ that the question is not whether Clarke was the owner of the flour, but whether, as between the plaintiffs and the defendants, the latter must not be taken to have assented that there were 348 barrels of flour at their warehouse deliverable to the plaintifl's' order; and if so, the i)roperty attached in the sense that the defendants are pre- cluded in a court of law from denying that they held that number of barrels on the plaintiffs' account. In strictness, the question whether the defendants assented is one of fact for the jury, but I am satisfied the jury would have found that such was the real nature of the trans- action. Bramwell, B. I am also of opinion that the rule ought to be dis- charged. I think the case is precluded by authority, and I also think that convenience and good sense lean in the same direction. I doubt whether any question could have been properly left to the jury. It seems to me that my lord would have had to say to them, " If you find that Clarke, having some flour to dispose of, assumed to deal with 348 barrels, and the defendants recognized his act, and admitted that they held that quantity of flour for him, the plaintiffs are entitled to recover." That, however, would not have been leaving to them any question, but only what Avas the fact. Mr. Williams says that the effect of the transaction is not that which I have suggested, but merely to give Clarke a right to demand the delivery of a certain number of barrels of flour, and which right he transferred to the plaintiffs. But that is not so. When the delivery order was presented to the defend-- ants, they might have said, " We will not accept this order, for there are not 348 barrels of flour in our warehouse of which Clarke has a right to dispose. There is a much larger quantity in the warehouse, out of which Clarke has a right to 348 when selected and appropriated to him, but, until that is done, he has no right to any, for they are not his." But, instead of saying that, the defendants in effect say, " We recognize a right in Clarke to dispose of 348 barrels," which could only be upon the supposition that the property in 348 l)arrels had passed to him. That being the eflTect of the transaction, there was no question to leave to the jury. Mr. Williams has also suggested that we ought not only to look at the result of the evidence, but also consider what would have been the position of the parties if the flour had been burnt. Perhaps, in that case, the defendants would have had to bear the loss, because there Avas no appropriation of the flour ; but it is unnecessary to consider whether or no they would have been entitled to be paid for it. It frequently happens that a person by making an acknowledgment precludes himself from setting up something favor- 1 2 B. & C. 540. 766 KNIGHTS V. WIFFEN. [chap. II. able to him ; and the only observation that arises is, that people should be more cautious. Then Mr. Williams says that the defendants are not to blame. I do not say they are, because persons are not to blame for not making provision against what may be called an abnormal con- dition of things, that is to say, insolvency or fraud. Therefore no one can blame the defendants because they did not reject the order, "While, however, in one sense they were not in fault, in another sense they were, for by recognizing the order they placed themselves in the difficulty which has been suggested of having no remedy against the plaintiffs if the goods were burnt, and nevertheless being liable in this action. Seeing, therefore, that the case is concluded by authority, and that no question could have been left to the jury unless it were one which they must inevitably have found in favor of the plaintiffs, viz., whether the effect of the transaction was that the defendant recognized the right of Clarke to dispose of 348 barrels of flour, I think the rule ought to be discharged. Pollock, C. B. I entirely agree with the rest of the court that the rule ought to be discharged. At the trial it was never suggested that any question ought to be left to the jury. In the course of the reply of the plaintiffs' counsel, the jury took the matter into their own hands, and said that they were perfectly satisfied, upon the facts proved, that the plaintiffs were entitled to recover. The real question was whether the defendants had so conducted themselves that the plaintiffs had a right to say, " We call upon you to dehver to us the flour which you say you held on our behalf." The question whether the property passed, as between vendor and vendee, never arose : the only question was whether the defendants had acknowledged that they held the flour on behalf of the plaintiffs, for, if so, according to law and justice, they were bound to deliver it or pay the damages. ^ ^, ^^ Mule discharged. y KNIGHTS V. WIFFEN. In the Queen's Bench, June 18, 1870. {Reported in Law RepoHs, 5 Queen's Bench, 660.] >ECLAEATioK for convcrsiou of sixty quarters of barley of the ' C ' plaintiff. Pleas : 1. Not guilty. 2. That the barley was not the property of the plaintiff. Issue thereon. *i { At the trial before Keating, J., at the Surrey Spring Assizes, it ap- X '^ ^ SECT. IV.] KNIGHTS V. WIFFEN. 767 peared that the defeiiflant, a corn-merchant, liad a large quantity of barley, in sacks, lying in his granary, Avhich adjoined the Stanstead Station of the Great Eastern Railway. He sohl eighty (juarters 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 i)laintiff, who paid him for them, and received from him the follow- ing 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. JCNE 27, 1868. Underneath was written, — Thomas Knights, Jr., Ilemingford Gray, near St. Ives, Huntingdonshire. The plaintiff sent this document to the . station-master, and wrote with it: — Sir, — I enclose Mr. R. W. IMaris 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, Avho said, " All right ] when you ge t the forwarding note I will put the barley on the line." Samples were afterwards grven"'ro'*thc slntion-iiiastcr, wKTch 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 I85. 7d., the amount claimed. A rule was obtained pursuant to the leave reserved, on the gi'ound 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 delivery order of the vendee (Maris), and thus passed the projierty in the sixty sacks of barley; or for a new trial on the ground that the judge ought to have directed a verdict i'ov the plaintiff for three sacks at least. Wood Bill {Bay with him) showed cause. There was no apjiro- priation of the barley so as to pass the property, nor was there any thing done by the defendant to estop him from denying that the prop- 768 KNIGHTS V. WIFFEN. [CHAP. II. erty had passed. [Lush, J. The rule in Pickard v. Sears ^ applies.] This case does not come within the rule ; there was nothing here to estop the defendant. Woodley v. Coventry^ will be relied on by the other side ; the argument for the plaintiffs in that case was that the statement of the warehouseman that "all was right" estopped the defendants, " for the plaintiffs paid their money on the faith of that statement." And all the cases cited in support of that argument are cases where money had been jjaid on the faith of the statement set up as an estoppel ; and in Biddle v. Bond,^ Blackburn, J., delivering the judgment of the court, thus refers to those cases : " Several cases were cited on the argument at the bar, and more might have been cited, such as Stonard v. Dunkin,* Gosling v. Birnie,^ and Hawes v. Watson,^ in which a bailee, who, by attorning to a purchaser of the goods, has, in effect, represented to him that the property has passed to him (though such was not the fact), and has thereby induced him to alter his position, and pay the price to his vendor, has been held estopped from denying the pi'operty of the person to whom he has thus attorned, by setting up a title in a third person inconsistent with the representation on which h5 had induced the plaintiff to act. We in no way question that those cases were rightly decided." Here the purchase-money had been paid by the plaintiff before the statement was made. The distinction between Gillett v. Hill '' and the present case is, that that was the case of a wharfinger with goods in his pos- session which were not his own property, receiving without remark a delivery order respecting those goods from the purchaser ; and the jury found that there had been an acceptance of the delivery order for the full quantity of goods mentioned therein ; and Lord Lyndhurst, C. B., says : ^ " The case has been argued on the ground of there having been more than twenty sacks of flour belonging to Orbell," the vendor, "in the defendant's possession ; but there is no distinct proof on the part of the defendants that they had more of Orbell's flour in their posses- sion than those twenty sacks, or that the plaintiff knew that the defendants had more in their possession. I think, therefore, that the Verdict was right, and that trover is maintainable." The fact wanting in that case is supplied in the present case. The forwarding order was not sent for some days. It cannot be said that possession had passed here. [Blackbuen, J., referred to Farina v. Home.^] Ingham (with him Parry, Serjt., and Kemp) in support of the rule. ■ The defendant is estopped from saying the property did not pass. " The general rule of law is, that whatever a man's real intention may be, if he manifests an intention to another party, so as to induce the latter to act 1 6 Ad. & E. 469. 2 2 H. & C. 164; 32 L. J. (Ex.) 185. 3 6 B. & S. 225, 231 ; 34 L. J. (Q. B.) 137, 139. < 2 Camp. 344. 5 7 Bing. 339. 6 2 B. & C. 540. ' 2 C. & M. 530. 8 2 C. & M. 534. . 9 16 M. & W. 119. SECT. 'IV.] KNIGHTS V. WIFFEN. 769 iij^on it, he will be estopi^ed from denying that tiie intention as mani- fested was his real intention." Benjamin on Sale, p. 39. Here the sta- tion-master, being constituted the plaintiif's agent, went to the defendant and said, in effect, " Do you hold sixty sacks of barley, the property of the plaintiff? " His reply amounted to this : " I do hold them, and will deal with them as you wish." Woodley v. Coventry ^ is in j)oint. There defendants, corn-factors, sold 850 barrels of flour to C, and gave him a delivery order on the defendants. C. gave the order to the plaintiffs, who sent it to the defendants' warehouse, where the flour remained. The warehouseman said, " It is all right," and gave samjjles of the flour, and the plaintiffs thereui)on advanced money to C. In point of fact, no api)ropriation had been made of 850 barrels from a larger number in the defendants' warehouse. C. became bankrupt, and the price remained unpaid to the defendants. The plaintiffs having brought trover for the flour, it was held that the defendants were estopped by their conduct from saying that the property in the flour did not pass to the plaintiffs. So here the plaintiff, although he had already paid for the barley, altered his jjosition in consequence of the defendant's statement, for he allowed the goods to remain ; and the defendant did not say, " When you get the delivery order I will hold for you," but, " When you get a forwarding note, I, acting as your agent, will do whatever you require about the goods." Blackburx, 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 Wiften had in his own warehouse a large quantity of barley, and he sold to Maris eighty 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 any 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 y Knights in the shape of a delivery order addressed to a station-master of the Great Eastern Railway, 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 autliorizing the station-master to hold for him. The station-master went to Witt"en, and showed him the delivery order and letter, and Wift"en said, " All right ; when you receive the forwarding note, I will place the barley on 2 11. &C. 164; 32 L.J. (Ex) 185. 770 KNIGHTS V. WIFFEN. [CHAP. II. the line." What does that mean? It amounts to this, that Maris having given the order to enable Knights to obtain the barley, Wiffen recognized Knights as the 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 sixty quarters of barley to Maris's order ; I will hold it for you ; and when the forwarding-note comes I will put it on the railway for you." Upon that statement Knights rested assured, and I Wiffen, by accepting the transfer which had been informally addressed / to the station-master, bound himself to Knights. The latter accord- ingly, 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 barley, and that you would hold the goods for me. You cannot refuse to deliver to me ; if you do refuse it will be a conver- sion." 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 whole quantity as against Maris, until I am paid the full price." No doubt the law is that until an appropriation from a bulk is made, so that the vendor has said what portion belongs to him, and what portion belongs to the buyer, the goods remain in solido, and no property passes. But can Wiffen here be permitted to say, " I never set aside any quarters " ? As to that, Woodley v. Coven- try ^ is very much in point ; with this difference only, that there the plaintiff acted on the statement of the warehouseman, and altered his position by paying 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 reasonable 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 * it is patent that the defendant knew the money was paid. In Hawes v. Watson ^ 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 money was going to be paid. In the present case the money 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 con- duct. The defendant knew that, when he assented to the delivery order, the plaintiff, as a reasonable man, would rest satisfied. If the 1 2H. &C. 164; 32L. J. (Ex.) 185. 2 2 Campb. 344. 3 2 B. & C. 540. SECT. IV.] KNIGHTS V. WIFFEN. 771 plaintiff had been met by a refusal on the part of the defendant, he could have gone to Maris, and have demanded back his money, very likely he might not have derived 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 })roperty had been passed to him. If once the fact is established that the plaintiff's position is altered by relying on the statement and taking no steps further, tlie case becomes identi- cal with Woodley v. Coventry,^ and Hawes v. Watson.- It is to be observed, moreover, that the judgment of the court in Woodley v. Coventry ^ 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 plaintiffs, they altered their j^osition. In Gillett v. Hill ' there Avas no pa}Tiient of the price, and the Court of Exchequer gave judgment against the wharfin- gers, on the ground that they were esto])ped 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 plain- tiff altered his position, relying on the defendant's conduct when the delivery order was presented. The plaintiff may Avell say, "I abstained from active measures in consequence of your statement, and I am enti- tled to hold you precluded from denying that what you stated was true." Mellor, J. I am entirely of the same opinion. Lord Elleuborough says in Stonard v. Dunkin,* " 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, wdien 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. 16'J, and I am not aware that any of the cases he cites and comments on in sup|)ort of his reasoning have been ever overruled, qualified, or questioned. He says, " This is a rule, which, Avithin the limits applied by law, is of great equity ; for Avhen parties have agreed to act upon an assumed state of facts, their rights betAveen themselves are justly made to de-pend on the conventional .state of facts, and not on the truth. The reason of the rule ceases at once Avlien a stranger to the arrangement seeks to avail himself of the statements Avhich Avere not made as a basis for him to act upon. They are for a stranger evidence against the party mak- ing the statement, but no more than evidence which may be rebutted; betAveen the parties thoy form an estoppel in laAV." 1 2 H. & C. 164; 32 L. J. (Ex.) 186. 3 2 C. & M. 530. \ 2 2 B. & C. 540. * 2 Campb. 344. 772 CEOFOOT V. BENNETT. [CHAP. II. Lush, J. I also think that the plaintiff is entitled to judgment on this short and intelligible ground, supported by sound reason and by- all the authorities, that the defendant, by what he said to the station- 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. The plaintiff might, on a refusal 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 Woodley V. Coventry,! [^ principle. There the party actually paid the money, here the plaintiff had already paid the money first ; but if his order had been rejected he might have required his money back. / jMule absolute to enter a verdict for the plaintiff . ROFOOT V. BENNETT. i)RK Court of Appeals, May Term, 1849. \Iteported in 2 Comstock, 258.] Sylvester Croeoot sued Bennett in the Supreme Court in tres- pass for taking a quantity of brick. On the trial before Willard, J., at the Washington circuit in 1847, it appeared that Horace Crofoot, on ^ "^ the 2d of September, 1846, in consideration of a previous indebtedness to nJ ( J^ and a new advance by the defendant, transferred to him by writing all 's» <^ the brick in two kilns previously burnt in Crofoot's yard, supposed to '"^^ be 45,000, and 43,000 to be taken out of a new kiln which he was then ^ OJ putting up. It was stated in the writing that the defendant had paid i In for the brick, and that they were to be good merchantable brick. On ^ N the next day the defendant went to the yard for the purpose of having ^ t' all the brick delivered to him, and on that occasion the brick already ^ ^ burnt, as well as those unbiirnt, were pointed out to the defendant by I ' ^ Horace Crofoot, and the defendant took possession of the premises ^ N^ where the brick were and gave directions about them ; but none of •j^V^ those in the uuburnt kiln were counted out or marked, or set apart « ^ from the residue. Horace Crofoot agreed with the defendant to burn '^ V^ the unfinished kiln, which he accordingly did. On the 6th of October "^ A following Horace Crofoot executed to the plaintiff, who was his brother, S nJ a bill of sale of all the bricks in such new kiln. On the 8th of the same ^ vS ^ 1 2 H. & C. 164 ; 32 L. J. (Ex.) 185. .^ SECT. IV.] CROFOOT V. BENNETT. 773 month tlie defendant o])encd tlic kiln and took tlierefrom and carried away tlie quantity wliicli had been purchased by liim out of tliat kiln^ and for that taking the phiintiff brought this action. Justice Willard held that these facts made out a good delivery to the defendant on the 2d and 3d days of September, of the bricks in question ; that as against him the ))laintifrhad no title, and that the defence was made out. The defen(hint had a verdict, which the Supreme Court refused to set aside on bill of exceptions, and the plaintiff, after judgment in the defendant's favor, appealed to this court. A. T. Wilson^ for appellant. jr. Parry^ for respondent. Strong, J. It is said in the opinion of the Supreme Court, that the title to the unburnt bricks passed to the defendant on the 3d of Sep- tember, before they had been separated from the mass in the new kiln, or burnt. In this I think they were wrong. Chancellor Kent says that when the goods sold are mingled with others, they must be as- certained, designated, and separated from the mass, before the property can ])ass. It is a fundamental princii)le pervading everywhere the doctrine of sales of chattels, that if goods be sold while mingled with others, by number, Aveight, or measure, the sale is incomplete, and the title continues with the seller, until the bargained property be sep- arated and identified. 2 Kent's Com. 49G. These rules are fully supported by the authorities cited by the chancellor. The reason is, that the sale cannot apply to any article until it is clearly designated, and its identity thus ascertained. In the case uinb r consideration, it. could not be said with certainty that any particular brick belonged to _the defe ndant until they had been separated from the mass. If some of those in an unfinished state had been spoiled in the burning, or had been stolen, they could not have been considered as the property of the defendant, and the loss would not have follen upon him. But if the ^oods sold are clearly identified, then, although it may be necessary to number, weigh, or measure them, in order to ascertain what would JBetTie price of the whole at a rate agreed upon between the i)arties, the Title will pass. If a flock of sheei) is sold at so much the head, and it is agreed that they shall be counted after the sale in order to deter- mine the entire price of the Avholc, the sale is valid and complete. But if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated, and their identity thus ascertained and determined. The distinction in all these cases docs not depend so much upon what is to be done, as upon the object which is to be etfected by it. If that is specification, the property is not changed ; if it is merely to ascertain the total value at designated rates, the change of title is effected. In this case, the judge who tried the cause did not decide directly that the defendant had acquired a title to the bricks which he took before they had been separated. The question was, VOL. I. 50 774 CROFOOT V. BENNETT. [CHAP. 11. however, distinctly raised by the plaintiff's counsel, and was in effect decided against him. Although the judge erred in that, the judgment will not therefore be reversed if in legal intendment the eiTor could not in any manner have prejudiced the plaintiff. It could not have had that effect if the plaintiff must still have failed in the suit had the point been decided in his favor. If the counsel for the plaintiff had insisted that the question- of de- livery of the bricks should have been submitted to the jury as one of fact, there was enough in the evidence to have called upon the judge to adopt that course ; but this position was not taken by the counsel : on the contrary, he called upon the judge to decide it as a question of law, upon facts which were not. controverted, and, assuming those facts to be true, the judge decided that point correctly. The delivery was not simply of the specific bricks eventually taken by the plaintiff, but of the whole with the privilege of selection. The formal delivery of the yard must have been designed by the parties to carry with it the possession of the bricks, or it would have been a mere idle ceremony. The defendant then took possession of the whole, and gave directions about burning those which were yet in an unfinished state. It made no difference that such directions were given to one who had an in- terest in a portion of them, and had previously owned the whole. . If one sells an article, and delivers it, the delivery would be none the less effectual because the vendor happened to be emjiloyed to perform, spme additional work upon it, even at his own expejise. And surely goods may be delivered by one to another having an interest in them, al- though the prior possessor may not part with all his title to the whole. Under these circumstances, trespass Avoiild not lie at the suit of the vendor, or his subsequent vendee. The goods being in the possession of another, the vendee took his title with an implied, if not a positive, notice of the rights of the possessor, to which the interest acquired by him was subordinate. In order to maintain trespass, it is necessary that the plaintiff should have the actual possession of the property, or an absolute title to it, which gives the right of possession. In this case, while the actual possession w^as in the defendant, it does not appear that any possession whatever had been delivered to the plaintiff; neither had he the absolute property in any of the bricks until the de- fendant had exercised his right of selection. The defendant had, therefore, made out a full defence to the plaintiff's action, as was cor- rectly decided by the judge ; and although he may have placed the decision on different and possibly insufiicient grounds, yet, as the judg- ment was right, it should not be disturbed. Jewett, C. J., and Bkokson, J., dissented. Judgment affirmed. ^1 un^ ^^f^^^^'^'-'/Z ...J V '/^"^ KIMBERLY V. PATCHIN. ' 775 N I ^N j^'^t)', i\^ KIMBERLY et al. v. PATCHIN. ^^^'^^yz^lAc, /^ V ,>Ne\v York Court of Appeals, June Term, 18o9/^ r,— tT"^ anIV ^ W [/Zepor^ed m 19 New York Reports, 330.] ^, 2 *:^-«-Jw -^^t^ Appeal from the Supreme Court. Action to recover the vahie of 6000 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, tAvo piles of wheat, amounting to 6249 bushels. John Shuttleworth proposed to purchase 6000 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 Avas then made at seventy cents per bushel, Dickinson signing and delivering to Shuttleworth a memorandum, as follows : — Littlefort, February 17, 1848. John SnuxxLEWORxn Bought of D. O. Dickinson 6000 bushels of wheat, delivered on board, 70 cents $4,200 Received his draft upon John Shuttleworth, of Buffalo, for $2,100 To remit me 1,600 Five drafts of $100 each 500 4,200 D. O. Dickinson. He also signed and delivered to Shuttleworth, this paper, viz. : — Littlefort, February 18, lb48. 6000 bushels wheat. Received in store 6000 bushels of wheat, subject to the order of John Shut- tleworth, 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, shortly afterwards, sold the whole quantity of Avheat 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 11. Reynolds, for the appellant. John L. Talcott, for the respondents. 776 KIMBERLY V. PATCHIN. [CHAP. II. 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 Littlefort, Wisconsin. The defendant claims through a sale made by Dickinson to one Shuttleworth on the 18th of February, 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 jDerson 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 6000 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 6000 bushels subject to the vendee's order; of the price $2600 was paid down, and the residue 81600, which was to be paid at a future day, the purchaser afterwards offei-ed 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 temis 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 required to show that the title was completely divested, unless a diffi- culty exists yet to be considered. Tlie quantity of wheat in store to which the contract related, was estimated by the parties at about 6000 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 624:9, being an excess of 249 bushels. When Shuttleworth bought the 6000 bushels, that quantity was mixed in the storehouse with the excess, and no measurement or sej^aration was made. The sale was not in bulk, but precisely of the 6000 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 quantity, 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 many 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 *hing sold must be ascertained. This is a self-evident truth, when SECT. IV.] KIMBERLY V. PATCHIN. 777 applied to those subjects of property which are distinguishable by their physical attributes from all other things, and, therefore, are capable of exact identification. No person can be said to own a horse ur 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 legally, 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 by the purchaser without any further act on the part of the seller. But property can be acquired and held in many things which are incapable of such an identification. Articles of this nature are sold, not by a description which refers to and distinguishes the particular thing, but in quantities, which are ascertained by weight, measure, or count ; the constituent parts which make up the mass being undis- tinguishablc from each other by 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 only in masses or quantities, and in that mode, therefore, they 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 philosophy to identify each constituent particle composing a quan- tity, so the law does not require such an identification. Where the quantity 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 delivery indeed cannot be made unless the whole is transferred to the possession of the purchaser, or unless the — particular quantity sold is separated from the residue. But actuar ,*" *^*'*^ , delivery is not indispensable in any case in order to pass a title, if the '^ *' ^^ thing 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. ^t'C^C/T It appeal's 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 f icts of the case : in the storehouse of Dickinson there was a quantity not precisely known. In any conceivable circumstances could Shuttleworth become owner of 6000 bushels, and Dickinson of the residue, which turned out to be 249 bushels, without the portion of either being divided from the other? The answer to this inquiry is plain. Suppose a third person, 778 KTMBERLY V. PATCHIN. [CHAP. II. being the prior owner of the whole, had given to S. a bill of sale of 6000 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, Avhat 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 6000 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 dej^osited with him 6000 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 6000 bushels, Avould 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. Com. 405. These and other illustrations which might be suggested, demonstrate the possibility of a divided ownership in the 6249 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 Avhole, he could stipulate and asrree that the other should thenceforth own 6000 bushels Avithout a separation from the residue. And this, I think, is precisely what was done. The 6000 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 sold and the quantity i;nsold again to one common mass. Now the contract of sale and of bailment, both made at the same time, produced this very result. The formalities of measurement and delivery pursu- ant to the sale, and of redelivery according to the bailment — resulting in the same mixture as before — most assuredly Avere not necessary in order to pass the title, because these formalities would leave the prop- erty in the very same condition under which it Avas 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 Avere disjjensed Avith 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. BECT. IV.] KIMBKRLY V. PATCHIN. 779 There are in the books a considerable number of cases having a real or some apparent bearing upon the question umler 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. Fi'ost, 12 East, G14, 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. Tlie jturchaser 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, wliich, it was said, placed the vendors in the relation of bailees to the quantity sold. This was in 1810. In the following year the case of Jackson v. Anderson, 4 Taunt. 24, was decided in the King's Bench. That was an action of trover for 1960 pieces of coin called Spanish dollars. Mr. Fielding, at Buenos Ayres, remitted to Laycock & Co., at London, 84700, and advised the plaintiffs that 19G0 of the number were designed for them in i)ayraent for goods bought of them. Lay- cock & Co. received the 4700 pieces, and pledged the whole of them to the defendant, who sold them to the Bank of England. It Avas held : 1. That the letter of advice was a sufficient appropriation of §1900 to the plaintiffs. 2. That the plaintiffs and defendant did not become joint-tenants or tenants in common of the doHars. 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 directly involved the plaintiffs' title, and it was held that the sale or approjn-iation 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 the same brand and quality. It was held by the Virginia Court of Appeals, upon very elaborate consideration, and after a review of all the cases, that the title was transferred by the sale. See also Danion V. Osborn, 1 Pick. 477 ; Crofoot v. Bennett, 2 Comst. 258. In the last mentioned, which was decided in this court, the sale was of 43,000 bricks in an unfinished kiln containing a larger quantity. A formal possession of the whole In-ick-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 Avithout being separated, I do not see how a formal delivery of 780 KIMBERLY V. PATCHIN. [CHAP. II. 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. Referrino: now to cases where it has been held that sales of this general nature Avere 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 quality would then have been ascertained. As it Avas, the subject of the contract was not identified in any manner. The remarks of the judge, ^evidently not made with much deliberation, must be construed with reference to the particular facts of the case. In Austen v. Craven, 4 Taunt. 644, there was a contract to sell 200 hogsheads of sugar, to be of four different kinds and qualities which were 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 be weighed in order to ascertain the price. In these circumstances the case was considered plainly dis- tinguishable from Whitehouse v. Frost, svjjra, and it was held that the title did not pass. I do not see the slightest ground for question- ing the decision, although, perhaps, one or two remarks of Chief Justice Mansfield are capable of a Avider 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 SECT. IV.] KIMBERLY V. PATCHIN. 781 doubt whether the title passes on a mere sale note by measure or wciglit out of a larger quantity of the same kind and quality, 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 may 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 effectually, 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 6000 bushels of wheat, but, waiving all further acts to be done, in order to complete the transaction, he ac- knowledged himself, by another instrument, to hold the same wheat in store as the b.iilee thereof for the purchaser. If his obligations from that time were not simply and precisely those of a bailee, it is because the law Avculd 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 con- tend 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 Avishes 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 yet 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 u. Suydam, 3 Seld. 357. The owner of flour delivered it in various parcels to a warehouseman, and from time to time took receijjts from him. One of these receipts was held by the defendants and others by the plain- tiffs, both p;irties having accepted and paid drafts on the faith thereof. The defendants' receipt Avas the first in jjoint of time, and was for 536 barrels, beins: 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 Y82 KIMBERLY V. PATCHIN. [CHAP. 11. 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, Avho had foiled 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 by reason ot the priority of their title ; and this gi-ound 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, Avhether the title passes. If the owner of the flour had held it in his own Avarehouse, 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 thfe defendant, under the sale to Shuttleworth, acquired a perfect title to the 6000 bushels of wheat. Of that quantity he took possession at Buffalo, by a Avrit of replevin against the master of the vessel in which the whole had been transported to that place. For that taking the suit Avas brought, and it results that the plaintiff cannot recover. It is unnecessary to decide Avhether the parties to the original sale becaiue tenants in com- mon. If a tenancy in common arises in such cases, it must be Avith some peculiar incidents not usually belonging to that species of owner- ship. I think each party Avould have the right of severing the tenancy by his oAvn act ; that is, the right of taking the portion of the mass which belonged to him, being accountable only if he invaded the quan- tity Avhich belonged to the other. But assuming that the case is one of strict tenancy in common, the defendant became the OAvner of 6000 and the plaintiffs of 249 parts of the Avhole. As neither could main- SECT. IV.] SCUDDER V. WORSTER. 783 tain an action against the other for taking possession merely of the whole, more clearly he cannot if the other takes only the quantity whicli belongs to him. The judgment must be reversed and a new trial granted. Gray and Grover, J.T., dissented; Strong, J., expressed himself as inclined to concur, if necessary to a decision, but it being unnecessary, he reserved his judgment. j^^-L^ v*'^ Judgment reversed and new trial ordered.} HARYEY SCUDDER v. JOHN 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 fiacts, which, so far as necessary to a proper understanding of the points involved, sufficiently appear in the opinion. H. A. Scudder, for the plaintiff. W. G. Jiicssell, for the defendants. Dewey, J.^ . . . It appears from the facts stated, that on February 10, 1850, a contract was made by the defendants with Secomb, Taylor, & Company, to sell them 250 barrels of pork. branded "Worcester & Plart;" 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 therefor, payable in six months ; that it was further agreed that the pork should remain in defendants' cellar on storage, at the risk and expense of the ]5urchasers ; that Secomb, Taylor, & Comixiny, 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, Avith 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 tlic defendants assented. On the 25th of June, Secomb, Tay- lor, & Company became insolvent, and on the same day the plaintiff 1 Followed in Russell i'. Carrington, 42 N. Y. 118. — Ed. i The part omitted does not affect the merits of the case. — Ed. 784 SCUDDER V. WORSTER. [CHAP. II. called uiDon 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 by the defendants, an action of replevin was instituted, and 150 barrels of pork, the same now in controversy, were taken and removed from said cellar, and delivered to the plain- tiff. The further fact is stated in the case, and it is this which raises the question of property in the plaintiff, that the pork bargained and sold in the manner above stated was in the cellar of the defendants, and a parcel of a larger quantity of the same brand, and also with some of a different brand, and so continued parcel of a larger quantity of similar branfl, up to the time of the suing out of the plaintiff's writ of replevin : though this flict was not at the time of the sale stated to the purchasers, or to the plaintiff when he purchased of Secomb, Taylor, & Company. Had these 250 barrels of pork been a separate parcel, or had 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 the purchaser. There was nothing required to liave been done but this separation from the general mass of like kind, to have placed the sale beyond all question or doubt as to its validity. The cases cited by the plaintiff's counsel fully establish the position, that what was done in this case would have 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 he served this process, were the property of the plaintiff, or had ever passed to him. In addition, however, to the numerous cases cited to establish the general principles contended for on the part of the plain- \ tiff, and Avhich would have been decisive, if it had been a sale of all the pork in the cellar, or a particular parcel, or certain barrels having 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 held 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 123 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 SECT. IV.] SCUDDER V. WORSTER. 785 pay for the 119, upon tlie f^rouncl that tlie sale was not perfected for want of separation from tlie 123 barrels. The court refused to sustain the defence, and gave judgment for the plaintiff. In reference to this case, Grimke, J., in Woods u. McGee, 7 Ohio, 127, says : " It is impos- 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 pnnciples." Jackson v. Anderson, 4 Taunt. 24, was an action of trover to recover for the conversion of 1969 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 84918, 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 619G9 from the entire mass ; that there had been no separation, and of course the plaintiff had no property in any particular portion of the money. 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 $1909 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 disi)0sed of all the dol- lars, 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 per- formed for Wellman & Ropes, but the bags belonging to the plaintiff . were in no way distinguished by marks, or separated from the other coffee of Wellman & Ropes. The plaintiff on liis 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 Liberty, and which we hold subject to his order at any time he may please to call for the same." The point taken in the case was that the plaintiff had not the sole property, but only an undi- vided interest, and so could not maintain replevin. The court ruled that the ]>laintiff was not a tenant in common, but might have taken the number of bags to Avhich he was entitled, at his own selection, and might maintain his action. This case, on the face of it, seems to go ftir 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 786 SCUDDER V. WORSTER. [CHAP. II. borne iu mind in reference to this case, that it did not arise between vendor and vendee. The interest in the seventy-six bags of coffee did not originate by purchase from Welbtian & RojDes. They became the specific property of the plaintiff in that action on an adjustment of an adventure, the whole proceeds of which were in his hands; and separated 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 constitute a delivery, and how for 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 iu 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 Hutch- inson V. Hunter, 7 Barr, 140, which was an action of assum2ysU to re- cover 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 bar- rels, it was held that the plaintiff could not recover, the sale never having been consummated. Rogers, J., says : " The fundamental rule which applies to this case is, that the parties must be agreed as to the specific goods on which the contract is to attach before there can be a bargain and sale. The goods must 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 the sale of 2000 pieces of wall paper, the purchaser giving his notes therefor to the vendor, and taking away with him 1000 pieces, and it was agreed that the other 1000 pieces should remain until called for by the purchaser, upon a question of property in the remaining lODO pieces between the assignees of the vendor and the purchaser, it was held that these 1000 pieces not having been selected by the buyer, or separated, SECT. IV.] SCDDDER V. WORSTER. 787 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 : " Tliat the prop- erty cannot pass until there be a specific identification in some way of the particular goods which the party bargains for. The law knows no such thing as a floating right of property, which may attach itself either to one parcel or the other, as may be found convenient afterwards." The case of Waldo v. Belcher, 11 Iredell, 609, was the case of a sale of corn by a vendor, having in his store 3100 bushels of corn, and selling 2800 bushels of the same, but the 2800 bushels were never separated from the 3100, and the whole was, after the sale, destroyed by fire ; and it was held that the property in the 2800 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. Ilun- uewell, 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 quantity on hand to less than nine arches. Upon a question of property between the vendee and an attaching creditor of the vendor, it was held the purchaser took no property in the bricks, the sale being of part of a large mass, not deliv- ered nor specifically designated. Blackburn, in his Treatise on Sales, p 122, presents the law on this subject thus : " Until the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supply goods answering a particular description, and since the vendor would fulfil his part of the contract by furnishing any 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 plaintifi", 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 788 GUSHING V. BREED. [CHAP. II. 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 Avas also urged that the defendants were estopped to deny that the 150 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 150 barrels of pork, this position might be tenable, and the defendants estopped to deny 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 plaintiff 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} /.. ,V^ lyNATHAN GUSHING and Others v. ASA A. BREED and Another. ME Judicial Court of Massachusetts, January Term, 1867. [Reported in 14 Allen, 376.] Conteact to recover the price of 500 bushels of oats sold and de- livered. The answer admitted the sale and delivery of 105 bushels, and offered judgment for the price thereof; and denied the residue. At the trial in the Superior Court, before Russell, J., without a jury, \ i the following facts appeared. The plaintiffs were owners of a cargo of I \^ black oats, received by the schooner Seven Brothers, which on being \ Tweio-hed was found to contain 6695 bushels, and was elevated and ^ stored in the Merchants' Grain Elevator, a grain warehouse in Boston, •^ not belonging to either the plaintiffs or defendants, but to persons N whose business it was to receive, elevate, store, weigh, and deliver ^ J grain. The cargo was put into two bins, and the plaintiffs thereafter \i V J 1 See Weld v. Cutler, ^ray, 195. ^ k H:' '-^ SECT. TV.] GUSHING V. BREED. 789 agreed to sell to the defendants 500 bushels thereof, at ninety-one cents a bushel, and accordingly delivered to them an order ujion the proprietors of the elevator, dated June 23, 1SG4, the body of wliich was as follows: "Please deliver Breed & Co., or order, 500 bushels black oats from cargo per schooner Seven Brothers?, storage com- mencing, to the person or persons in whose favor this order is drawn, June 29, 186-4." This order Avas presented on June 25, 1804, to the proprietors of the elevator, who accepted the same in the usual manner by retaining the order and entering it in their books, ami on the same day delivered to the defendants 105 bushels of the oats. Before July 5, 1SG4, the whole cargo had been sold and delivered and removed from the elevator except 1274 bushels; and this amount, which re- mained in the elevator, included o05 bushels of the quantity agreed to be sold to the defendants. On the 5th of July a fire occurred, without the fault of either of the parties to this action, and rendered the oats which remained in the elevator nearly worthless. The ]irice for weigh- ing and elevating these oats was charged to the plaintiffs. It was the general usage of dealers of grain in Boston to place cargoes and other large quantities of grain in elevators, where the same remained until sold, either in entire lots or in smaller quantities, by orders given by the vendor to the purchaser, and after such sale it was removed fi-om the elevator or kept therein at the election of thfr purchaser. After the acceptance of such order by the proprietors of the elevator, the grain covered thereby was treated by them in all respects as the property of the purchaser; the vendor had no further control over it, and did no act in reference to separating it from the rest, or removing it from the elevator; but the proprietoi"S held the same subject to the order of the purchaser, obeyed his directions in all respects in reference thereto, received orders from him in the same manner as from the original vendor, or weighed it out to him in such quantities and at such times as he required, they guaranteeing to deliver out the full number of bushels weighed into the elevator. They made no charge to the purchaser except for storage. Different cargoes of the same quality, belonging to different owners, were some- times mingled in the bins. Parcels of grain, bought as above, were paid for according to contract, and without regai-d to whether or not they had been separated and removed from the elevator, and all damage to grain so sold, from internal causes occurring after the de- livery of the order, was borne by the inirchaser. All the above usages were known to the defendants; but they objected to the evidence to prove the same. Upon these facts, the judge ruled that there was no such change of title to the grain, except as to the 105 bushels actually removed by the defendants from the elevator, as to make the defendants liable to this action ; and found that the plaintiffs were only entitled to recover tho VOL. I, 51 790 GUSHING V. BREED. [CHAP. II. price agreed for the 105 bushels, with interest. The plaintiffs alleged exceptions. W. Gaston and W. A. Field, for the plaintiffs. This is the case of a sale of an undivided part of a cargo in the possession of third per- sons wlio had control of it, and whom the purchasers made their agents for storing and delivering the quantity bought, as they might dtrect. The purchasers could have had a separation when they desired it, and the portion sold was left unseparated solely in accordance with their wishes. Regarded as a sale of an undivided part, the transaction was complete. The case of Weld v. Cutler, 2 Gray, 196, establishes that separation is not always necessary to complete a sale. Possession of the whole by the purchaser, with the right to separate his portion, is all that is necessary. In the present case, the warehousemen had possession of the whole ; and their possession was coupled with an interest, for they had accepted delivery orders for parcels of the cargo. The plaintiffs had lost all control over the quantity covered by the orders which they had drawn. The warehousemen charged storage to the defendants ; and after the date when by the terms of the order they began to charge storage to the defendants, certainly they were the agents of the defendants, in possession, and with the right of pos- session over the whole, so far as was necessary to enable them to de- liver what was covered by the orders which they had accepted. It is no test of a completed sale, as between vendor and purchaser, that the vendor's creditors may attach the property, or that a right of stoppage in transitu may exist. Nor is it a test, that the purchaser could not maintain replevin. Of course replevin would not lie with- out an actual separation. Scudder v. Worster, 11 Cush. 573 ; Ropes v. Lane, 9 Allen, 502. And in those cases no such usages of trade ap- peared as in the present case. The English cases also are distinguish- able from this. In most of them no usage of trade was proved, and the goods remained in the actual possession of the vendors, or something remained to be done by them. In Maine and New York, the decisions o-o further than is necessary for this case. Waldron v. Chase, 37 Maine, 414; Kiniberly v. Patchin, 19 N. Y. 330. The customs and usages of trade here proved were reasonable. Clark v. Baker, 11 Met. 186. C. B. Goodrich and I. J. Austin, for the defendants. Weighing and separation of the quantity of oats sold were acts which the vendors were bound to perform. They had a right to select from either of the two ■bins. Any five hundred bushels, which constituted a part of the cargo >of the Seven Brothers, wherever stored, would have answered the con- tract. Riddle V. Varnum, 20 Pick. 283 ; Scudder v. Worster, 11 Cush. .573 ; Weld v. Cutler, 2 Gray, 196 ; Claflin v. Boston and Lowell Railroad, 7 Allen, 344; Ropes v. Lane, 9 Allen, 502; S. C. 11 Allen, 591 ; Han- son V. Meyer, 6 East, 614; White v. Wilks, 5 Taunt. 176; Shepley v. Davis, ib. 617 ; Busk v. Davis, 2 M. & S. 397 ; Aldridge v. Johnson, 7 SECT. IV.] GUSHING ?'. BREED. / / 791 / El. & Bl. 885. The order of the plaintiffs did not pass the title to any specific five hundred l)us]iels of oats. It iinjilied a request to the ware- liousemen to se])arate, weigh, and deliver that quantity. These acts were to be performed by the agents of tlie vendors. But the defend- ants had no right to enter the warehouse, and separate their jjroperty. The evidence of usage was inadmissible. The effect and object of it were to control and change the terms of the contract between the paities, by showing the opinion of certain warehousemen and persons Avho deposit grain for storage, as to the legal effect of a contract to sell, and of a Avritten order by vendors upon their agents. Although the vendors after the delivery of such orders might not interfere personally, yet their agents would separate, Aveigh, and deliver the grain at their cost, and the A'endors are responsible for the acts of their agents in doing so, and might countermand the order and the se])aration, weigh- ing, and delivery. The supposed usage is inconsistent Avith the contract made by the parties, and with the legal rights and duties resulting there- from. It is unreasonable, because under it the property of diflerent owners may be mingled, and a purchaser from one i)erson may be com- pelled to receive property owned by another. So if, by reason of mis- takes in Aveig-hing or of shrinking, the quantity is insufficient to answer all the orders, the purchaser may be compelled to receive the personal responsibility of the Avarehouseman. The suj)posed usage is incon- sistent Avith the policy of the law regulating public warehouses, and is calculated to create confusion and uncertainty in mercantile contracts. St. 18G0, c. 206; Dickinson v. Gay, 7 Allen, 29; Dodd v. Farlow, 11 Allen, 426. Chapmax, J. The use of elevators for the storage of grain has in- troduced some ncAV methods of dealing, but the rights of parties Avho ado2)t these methods must be determined by the princij^les of the com- mon laAV. The proprietors of the elevator are the agents of the various parties for Avhom they act. When several parties have ston-d various parcels of grain in the elevator, and it is put into one iu.i>.-«, .uruiding to a usage*To"wTi7ch Ihey iifust'^ aie tenants in coninuju of tlie grain. Each is entitled to such a 2>roj)ortion • as tlic ([uantity placed there by him bears tO the Avhole mas!=!'. When one uf them sells a certain number of bushels, it is a sale of projierty OAvned by him in common. It is not necessary to take it aAvay in order to complete the purchase. If the A'endor gives an order on the agents to clelTver Ttfb tlie vendee, and the agents accept the order, and agree Avith the vendee to store the property for him, and give \\\\\\ a receij)t therefor, the delivery is thereby comjilete, and the proi)erty belongs to the A'endee. The vendor has nothing more to do to complete the sale, nor has he any further dominion over the property. The agent holds it as the property of the vendee, OAvned by him in common Avith the other grain in the elevator. It is elementary law that a tenant in com- 792 MUCKLOW V. MANGLES. [CHAP. II. mon of personal property in the hands of an agent may sell the whole or any part of his interest in the property by the method above stated, or by any other method equivalent to it. Actual separation aadtuking., away are not necessary to comjplete the sale. As to the property sold, the agent acts for a new principal, and holds his property for him. The law is the same, whether the proprietors are numerous or the vendor and vendee are owners of the whole. If the vendee resells the whole or a part of what he has purchased, his vendee may, by the same course of dealing, become also a tenant in common as to the part which he has bought. This is not like the class of sales where the vendor retains the pos- session, because there is something further for him to do, such as measuring, or weighing, or marking, as in Scudder v. Worster, 11 Cush. 573 ; nor like the case of Weld v. Cutler, 2 Gray, 195, where the whole of a pile of coal was delivered to the vendee in order that he might make the separation. But the property is in the hands of an agent ; and the same person who was the agent of the vendor to keep, becomes the agent of the vendee to keep ; and the possession of the agent becomes the possession of the principal. Hatch v. Bayley, 12 Cush. 27, and cases cited. The tenancy in common results from the method of storage which has been agi'eed upon, and supersedes the necessity of measuring, weighing, or separating the part sold. „. ^o delivery is necessary to a tenant in common. Beaumont v. Crane, 14 Mass. 400. Upon these j^rinciples, the plaintiffs are entitled to recover the amount due them for the property thus sold and delivered to the de- fendants. The damage occasioned to this property by the fire must be borne by the /defendants, as owners of the jH-operty. Jjc aL/' JExce2)tions sustained. "^ ^^^ ^ SECTION V. ^ yfl' I \^ Specification of the goods hy subsequent a/ppropriation. K y^ MUCKLOW AND Others, Assignees of Roylaxd, v. MANGLES. ^ In The Commox Pleas, June 18, 1808. [Reported in 1 Taunton, 318.] Up. Trover by the assignees of a bankrupt for a barge and other effects, pon the trial before Mansfield, C. J., at Westminster, at the sittings ■^ >^ ^( SECT, v.] MUCKLOW V. MANGLES. 793 in this term, it was proved that Royhind, who was a bargc-buihler, liad undertaken to buihl tlie barge in question for Pocock. Before the work was begun, Pocock advanced to Ko}dand 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 stei-n. Two days after the comple- tion of tiie work, and before a commission of bankrupt had issued, the defendant, who was an officer of the sherift' 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 indemnity. The jury found a verdict for the plaintiffs. ^est, Serjt., now moved that the sum of £190, the value of the barge, might be deducted from the amount of the verdict, inasmuch as the property had absolutely vested in Pocock, who had paid for the barge, and could, he said, have recovered it in trover against Royland ; and the assignees could not be in a better condition than Royland him- self. This was not such a permissive possession in the bankrupt as is described in the Stat. 21 Jac. 1, c. 19, for the bankrupt had not had time to deliver it after it was finished. Ex ixirte Flyn & Field, 1 Atk. 185. Flyn & Field bought of Matthews and paid for two-thirds of 500 barrels of tar, the whole to be sold by them for account as follows : two-thirds their account, and one-third Matthews' account ; JNIatthews' to bear charges of cartage and porterage in sending off. Matthews becoming a bankrupt, the chancellor, on petition, held, that Flyn & Field were entitled to two-thirds of the tar, for that this was only a temporary custody, till the petitioners could conveniently ship it for Ireland, and it could not with propriety be said that the tar was in the " possession, order, and disposition " of the bankrupt. Mansfield, C. J. The only efiect of the payment is, that the bank- rupt was under a contract to finish the barge ; that is quite a differ- ent thing from a contract of sale, and until the barge was fiiuslied we- cannot say that "it was so 'lar ^Pocock's property that he could have taken it'away. It was not finished at the time when Royland com- niittecl tlie act of bankruptcy ; it was finished only two days before the execution. In the case cited it Avas necessarily held that the tar was not in the possession of the bankrupt ; otherwise, in every case of ten- ancy 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, JDo ut facias. It comes within the cases which have been held to be executory contracts, and as such not Avithin the statute of frauds, as contracts for the sale of goods. A tradesman of^en finishes goods, which he is making in pursuance of an order given by one 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 com- 794 WOODS V. RUSSELL. [CHAP. II. plain ; 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 where 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 refused the rule} \ DS AND Another, Assignees of Alexander Paton, a Bank- rupt, V. RUSSELL. In the King's Bench, June 26, 1822. [Reported in 5 Barnewall Sj- Alderson, 942.] / This case was tried before Bayley, J., at the summer assizes, 1820, and came on for argument in the course of Easter term, upon a special case, which it is unnecessary to set out, as the focts are fully stated in the judgment delivered by the court. The case was argued by Zittledale, for the plaintiffs. The property in the ship, rudder, and cordage continued in Paton at the time when he committed the act of bankruptcy, the ship not being then completed. The case of Mucklow V. Mangles - is an authority expressly in point. There the bankrupt, a barge-builder, had undertaken to build a barge for Pocock, and the latter had paid the Avhole value in advance, and his name was actually painted on the stern of the vessel after the completion of the Avork ; but before delivery, and before any commission of bankrupt had issued against the barge-builder, the barge was seized in execution for a debt of the bankrupt. It was held, that no property in the barge passed to Pocock until its completion and delivery, and consequently that the assignees were entitled to recover the value. Here the bank- rupt was only under a contract to deliver the ship, and although the stipulated time for building had actually elapsed, yet the vessel was not completed and launched until after the act of bankruptcy. The certificate under 26 G. 3, c. 60, § 12, clearly is not to be given till the ship is completed, and until that time, therefore, no property passes to the vendee. Groves v. Buck,^ ToAvers v. Osborne.* But at all events, the case falls within the statute of James, for the ship was in the hands of the bankrupt as the reputed owner. Hay v. Fairbairn,^ Robinson v. M'Doimell.? fx \^ Doubted in Carruthers v. Payne, 5 Bing. 270. — Ed. ^ K^ 1 Taunt. 318. 3 3 M. & S. 178. \^ 1 Str. 506. \ \V. 5 2 B. & A. 193. Je 2 B. & A. 134 SECT, v.] WOODS V. RUSSELL. 795 Ilolf, contra. Tliore are two questions in this case : first, wliether the |)roi)erty in the ship, rudder, and cordat^e ever passed to tlie de- fendant; and, secondly, assuming that it did, wliether it continueil in the possession of the bankrupt at tlie time of the act of bankruptcy, as the reputed owner, with the consent of the true owner, within the statute of James. Here the pro])erty passed to tlie defendant under the contract, for there was a delivery to him before the 3Uth June. The vessel was clearly completed when she was capable of being sur- veyed and measured. The officers of the customs had taken the usual bond from the master previously to the bankruptcy; the builder, too, on the 2Gth June, had given the defendant the certificate required by the '2Gth G. 3, c. GO, § 20, and from that lime he must be taken to have consented that the defendant should have the possession. Secondly, assuming the property to have passed to the defendant, it did not con- tinue, with his consent, in the possession of the bankrupt as reputed owner. That is a question of fact, which ought to have been found. MuUer v. Moss,^ and Oliver v. Bartlctt.- Besides, the circumstance of the vessel's having been registered in the name of the defendant, and of his having advertised her for freight, aftbrd the strongest evidence that he, and not the bankrui)t, was the reputed owner of the ship. Cur. adv. vult. Abbott, C. J., now delivered the judgment of the court. This was an action of trover for a ship, rudder, and cordage, by the assignees of Alexander Paton, a bankrui)t, and the facts were shortly as follows: Paton was a ship-builder, and in October, 1818, he en- tered into a written contract with the defendant to build and comiilete a ship for the defendant, and finish and launch her in April, 1819 ; and the defendant was to pay fur 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 sliij) was launched. The 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, su])erin- tended the building. In May, 1819, the defendant advertised the ship for charter, and on the IGth of June chartered her, with Paton's privity, for a voyage from Newcastle to Newfoundland. Before the 2Gtli of June the ship was measured and surveyed, with Paton's privity, with the intent that the defendant might get her registered in his name. On the 19th June the master entered into the usual bond for delivering up the register ; on the 25th l*aton signed the usual certificate of her build, &c., and on the 26th the ship was registered in the defendant's name. On that day the defendant paid Paton the third instalment. Paton's 1 1 M. & S. 338. 2 3 B. Moore, 597. 796 WOODS V. EUSSELL. [CHAP. II. certificate described the 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, iipon 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, andTthe 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 en- f titled to recover the value of the ship, in which case the value, subject [ to a deduction, w^as to be taken at £3000 ; or, if not, whether they were I entitled to recover the value of the rudder anTl cordage ; and, should f the coiu't be of opinion that they were entitled to neither, a nonsuit f was to be entered ; and upon these points alone the case was argued before the court. It has occun-ed, however, to the court, that a third' question arises upon the facts, Avhich neither party could have intended to exclude, which is this : whether, if the plaintiffs are not entitled to recover the whole value of the ship, they may not be entitled to re- cover to the extent of so much of the fourth instalment as, if the de- fendant 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 u]ion a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid ac- cording to the progress of the work ; part when the keel is laid, part when they are at the light plank. The,.paynient of these instalments appears to us to appropriate specifically to the defenciant the very ship ^Si'm pi'ogi'Gss, and to vest in the defendant a property in tTiatsHip, and that, as between him and the builder, he is entitled to insist upon the completion of that very ship, and that the builder is not entitled to re- quire him to accept any other. But this case does not depend merely upon the payment of the instalments ; so that we are not called upon to decide how far that payment vests the property in the defendant, because here Paton signed the certificate 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 being in the defendant. The defend- ant 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 SECT, v.] WOODS r'. RUSSELL. 797 tliiiik the lecal effect of signing the certificate, fur tlie purpose of hav- ing the shij) registered was, from the time the registry was complete, to vest the general property in the defendant. In order to register the ship in the defendant's name, an oatli would be requisite that tlie de- fendant was the owner ; and Avhen Paton concurred in what he knew was to lead to that oath, must he not be taken to have consented that the ownershij) 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 distinguislia'ble from the present, because the bargain there for buihliiig the' barge dbesTiSt appear to have stipulated for the advances which were made; and those advances do nut appear to have been regulated by the progress of the work. Mr. Justice Heath's opinion ajjpears 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 liberty to have substituted any other he was building, and the builder had done no act expressing an unequivocal consent that the general jjroperty should be considered vested in the purchaser. The ])ainting of the name upon the stern, the only act there, pledged the builder to nuthing; it ex- pressed an intention that the barge should be Pocock's, but it did no more. He miffht change that intention and obliterate the name. But the signing of the certificate here, to the intent that the defendant mioht obtain a registry in his own name, Avas a consent that what was necessary to enable the defendant to obtain such registi'y, should, as between them, be considered as complete; and that, as the defendant Avould have to swear that he was sole owner of the ship, the owner- ship should be considered his. We are, therefore, of opinion, that the assignees, who claim under Paton, are bound equally Avith him ; and as this is not a case within the statute of James, the i)laintiffs are not en- titled to recover the general value of the ship. And as to the rudder and cordage, 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 opiniuu against the defendant. Though the general ownership was vested in the defendant, 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 shij), would have had a lien upon it till those bills Avere given ; and as the defendant thought fit to take the ship before it Avas complete, at\er having given bills for the first three instalments only, avc think he ought to have given a bill for so much of the fourth instalment as, ac- cording to the value of Avhat remained to be done, Paton Avas entitled to receive ; and that, unless Avhat remained to be done Avould be equal 798 FRAGANO V. LONG. [CHAP. II. to the whole of the fourth insttihiient, his taking the ship, without giving or tendering such a bill, was a wrongful taking. We are, there- fore, of opinion that, according to the provision made in that respect in the case, it ought to he referred to Mr. Bainbridge and Mr. Clayton, and such third person as tliey shall apj:)oint, to take an account of the want of materials stipulated to be provided by Paton not on board, and the fair expense of launching, and to enter tlie verdict accordingly. 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 lessythan £750, a verdict for the difference to be entered for the plaintiff. Judgment accordingly. K FRAGANO V. LONG. In the King's Bench, Easter Term, 1825. [liejmted in 4 Bamewall ^ Cresswell, 219.] Assumpsit 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 fol- lowing facts appeared in evidence. Mason & Sons, hardwaremen at Birmingham, in April, 1822, received an order from the plaintiff resid- ing 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 Binning- hani, 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 > Y] \ arrival. —r--- ^\j The order then specified the goods. In pursuance of this order, the cask of hardware in question marked Avith the plaintiff's initials was sent by the canal from Birmingham, by Mason & Sons, to Messrs. Stokes, their shipping agents at Liverpool, with directions to forward X the same to Naples. An insurance was effected, and the interest \^ ^ ^ declared to be in Fragano. On the 3d of July, Messrs. Stokes received V\ 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 Tlieresa was lying, and deliv- \» ■ x^red them on the quay to the mate of that vessel, who gave the follow- ^ ^ ^ing receipt : — i v^ ^ Received in good order and condition on board the James and Theresa, for ^3 v^ Naples, one cask of hardware. \N>Y G. F. Sauvei. Smith, Mate. \^ ^ From W. & J. Stokes. SECT, v.] FRAGANO V. LONG. 799 Tlic goods -were left in tlie custody of the mate, and before they were actually put on board, by some accident the cask fell into the water, by whicli the injury complained of was sustained. Upon this evidence tlie jury, under the direction of the learned judge, found a verdict for tlie plaintiff. In Michaelmas term a rule nial 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 i)laintitf; secondly, that by the terms of the order, the goods were not to be at the plaintiff's risk until after their arrival at Naples. F. Pollock was now called upon to support the nile. The plaintiff ought to have been nonsuited in this case, for it did not appear that the pro))erty in the goods ever vested in him. The receipt given by the mate of the vessel left the goods in the power of Messrs. Stokes, and he would have been bound to deliver them, according to any order subsequently given by Messrs. Stokes. Craven v. llyder.^ But no bill of lading or other document making the goods deliverable to the plain- tiff was ever signed ; he, therefore, never had such a property in them as would enable him to maintain this action. Then, secondly, the goods were to be paid for three months after their arrival ; if they never arrived the plaintiff could never be called upon for payment ; they were not, therefore, at his risk until they arrived at Naples. Crompton, contra, was desired by the court to confine himself to the last point. That was a mere arrangement as to the time of i)ayment, and could not prevent the vesting of the goods in the phiintifJ". Kugg V. Minett.- The order for insurance makes it quite clear that the goods were to be at his risk as soon as they lefl Birmingham. Bayley, J. Considering this case ai)art from the order given by the plaintiff, it is quite free from doubt either in law or justice. It a])pears, however, that the plaintiff sent an order to Mason *fc 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 ariival." 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, Fra- o-ano must have borne the loss. At Liverpool, Stokes & Co., Mason's shipping 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 posi- tion is not correct, although there might have been some difficulty had Stokes & Co. set u]) an adverse interest. It therefore seems to ine, that as the goods left Mason's warehouse by the order of the i)laintiff, Tliey were at his risk, and that he can maintain an action for them, "TiSesTthe form of the order which he gave for them deprives him of 1 6 Taunt. 433. 2 n East, 210. 800 PRAGANO V. LONG. [CHAP. 11. 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 an-ival was a condition precedent to Mason's right to sue for the price. If, however, the goods were not to be paid for unless the^ arrived, why'should the plaintiff insure them ? That shows that the^ arrivalwas not considered as a condition precedent to the payment. fr'TTfe' 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 does not vary the case, and that the verdict was properly found for the plaintiff. HoLROTD, J. I also think that the verdict found for the jilaintiff was rio-ht. 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, ^ItFough'the defendant waTnol informed of his existence. Then it has been urged that Fragano had no interest in the goods, and the terras of the order have been adverted to in support of that argument; but I think that the goods became his property as soon as they were sent off by Mason & Co. When goods are to be delivered at a distance from the vendor, and no charge is made by him for the carriage, they become the property of the buyer as soon as they 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 liability to the vendors. The expiration of three months was to be the time of payment if the goods an-ived ; if they did not arrive, the law would imply a promise to pay in a reasonable time. LiTTLEDALE, J., concurred. Mule discharged. ^ ATKINSON V. BELL. 801 ^^ • ^iit-t^ "^■^KllviSO^Jii AXD Others, Asaifjnecs of ^leddon, y. BELL a>?D Vy. In the King's Bench, Easter Term, 1828. VJ ^ \N \\i [Reported in 8 Barnewall ^- Cresswell, 277.] \ Assumpsit for goods sold and delivered, goods bargained and sold, work and labor, and materials found and ])rovided. At tlie trial before Hullock, B., at the summer assizes for Lancaster, 1827, it ajipeared that the defendants were linen and thread manufiicturers at Whitehaven, in Cumberland. The bankrupt, Sleddon, before his bankruptcy 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 eflfect of it, on the 12th November, 1825, by letter ordered him to procure to be made for them as soon as possible a j^reparing frame and two spinning frames, in the manner he most approved of In January, 1826, 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, wliile two other machines of these 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. The^ were altered accordingly, packed in boxes by Kay's directions, and remained on Sleddon's premis"es7'"0h tTie 23d of June, 1826, Sleddon wrote to the. defendants, and informed them that the two frames had been ready for the last three Aveeks, and begged to know by what conveyance they were to be sent. On the 8th of August a commission of bankrupt issued airainst 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 tlie defend- ants. The learned judge Avas 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 Farke now showed cause. The plaintiff is not enti- tled to recover on the count f )r goods bargained and sold, because that form of action is not maintainable unless there be a contract for w 802 ATKINSON V. BELL. [CHAP. II. specific goods, and unless every thing has been done so as to vest the property in those goods in the purcliaser, and entitle him to maintain trover upon tendering the price. If the contract can be satisfied by selling any goods of a certain description, this action will not lie ; but the proper remedy is by a special action of assumpsit for not accepting. As soon as specific goods have been selected by the vendor, and accepted by the vendee, and every thing done to vest the property, this action will lie, but not until then. Now here the defendants did not agree to accejit any particular goods. They merely ordered machines to be made for them in a particular mode ; and the only remedy for the breach of such a contract is a special action on the case for not accepting. That the proj^erty in these machines did not pass to the defendants is clear ; for in case of a destruction by fire, the loss could not have fallen on them, but it must haA^e fallen on the bankrupt. If the bankrupt had delivered them to another person, the defendants could not have maintained trover for them. They could only have brought an action against the bankrupt for breach of contract, in not making machines according to order. They remained the property of the maker, who might have performed his contract by delivering any other similar machines. Suppose an execution to have issued against the defendants, could these machines have been seized by the sherifl:*as their goods ? They continued the goods of the bankrupt, although he might be liable to an action for breach of the contract. There was no proof of any selection of these goods by the defendants. Mucklow v. Mangles Ms an authority to show that no property in a chattel bar- gained for vests in the person who orders it until it be finished and delivered, even though the price be paid. And according to the opinion expressed by Littledale, J., in Simmons v. Swift,^ goods bar- gained and sold will not lie merely because the property passes. The mere bargain will not suffice unless the price be ascertained. Secondly, the plaintifis cannot recover on the count for work and labor ; for that count is applicable to those cases only in which the work is done on account of the defendants. Here it was done upon the plaintiff''s own account, in working up his own materials into machines, Avhich, when completed and accepted, and not until then, could be the property of the defendants. The case of Towers v. Osborne® is of very doubtful authority, and was said to be an extreme case by Lord Tenterden, C. J., in Garbutt v. Watson.* Cross^ Serjt., and Tomlinson., contra. There was a specific appro- priation of these machines to the defendants after they were finished. Kay was the agent of the defendants; and their letter of the 12th of November, 1825, gave him the most ample powers to act as he thought 1 1 Taunt. 318. 2 5 b. & C. 857. 3 1 Str. 506. * 6 B. & A. 613. SECT, v.] ATKINSON V. BELL. 803 best for their interest, and therefore lie h:u\ sufficient autliority to appropriate the machines to tliem if he tliought proper. After tlie macliines were completed, tlu y were, by Kay's order, altered according to the latest improvement, and to correspond with otlier machines of these defendants altered by Sleddon, under Kay's superintendence, and intended to be used in the same mill. That was an acceptaiH-o of these speciiic machines by the defendants through Kay. It thei'efore operated as a purchase of them. This case falls within the jirinciple of the decision in Woods v. Russell.^ There it Avas held, that an un- finished chattel may be apiirojiriated, and that the ai)jtroi)riatic)n vests the pro]>erty in the chattel in the ])erson by whose order it has been made. It is not true that the bankrupt could by his own act substitute other machines, for he could not send out any without the consent of Kay, the patentee. He could not sell them without the pemiission of Kay. They could not have been seized under an execution against the goods of Sleddon, because the sheriff couhl not make any title to them without Kay's consent. In Rohde v. Thwaites^ an a])proi)riation of goods by the seller, assented to by the buyer, was held to vest the property in the latter. Here Sleddon, by Kay's permission, ajipro- priated the goods to the defendants, and they by their agent Kay assented to that ajiprojiriation. Secondly, the plaintiffs are entitled to recover on the count for work and labor. For here the machines, but for the orders given by the de- fendants, would never have been in existence. The property in the thing ordered vests, when it is completed, by relation in the orderer, and the person who made it may then sue for work and labor. In Towers v. Osborne ^ the action appears to have been for the value or price of a bespoken chariot, and not a mere action for damages for not accepting;, and in Garbutt v. Watson,^ the form of the remedy in Towers v. Osborne was not questioned. They also cited Dunmore v. Taylor.s Bayley, J. I think the rule for entering a verdict for the ]>laintiff ought to be discharged. If the declaration had contained a cf)unt for not accepting the machines, the ])laiiiti{fs might have been entitled to recover; and I think now that, upon payment of costs, they should be allowed to set aside the nonsuit, and add other counts to the declara- tion, and have a new trial. But I catniot say that tlu' iinqicTty p;i--rd to the (k'fendants, so as to enable the plaintiffs to recover on the counts f;*]- ._;. M.ds l)argained and sold, or for work and labor. It is said, that the ri' 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- 1 5 B. & A. 942. 2 6 B. & C. 388. ' 1 Str. 506. « 5 B. & A. 613. * Peake, N. P. 41. 804 ATKINSON V. BELL. [CHAP. IL ress the materifils belong to the maker. The property does not vest in the party who gives the order vintil the thing ordered is completed. And although while the goods are in progress the maker may intind 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. J[t^ is true that Kay. sawj,h.ese,ihings while they were in^gro^ress^ aiid knew that the bankrupt intended them for the defendants ; yet the^ might afterwards have been delivered to a third 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 ^ is distinguishable. The foundation 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 pay- ment of those portions of the price the ship Avas 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 ex- ecution had issued against Sleddon, the sheriff might have seized the machines. They were Sleddon's goods, although they were intended for the defendants, and he had written to tell them so. If they had expressed their assent, then this case would have been within Rohde v. Thwaites,- and there would have been a complete appropriation vest- ing the jiroperty in the defendants. But there was not any such assejii.'Uu... —^ to the api^ropriation made by the bankrupt, and therefore no action for' '^)ods bargained and sold was maintainable, ^hen as to ^he 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 materi- als 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 ^^erson. No right to maintain any action ivests 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 may 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 1 5 B. & A. 942. 2 6 B. & C. 388. SECT, v.] SWAIN V. SHEPHERD. 805 himself, and not for the person "who employerl him. I think that in this case tlie ])laintiff 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 macliines. I have entertained great doubt during the argument, whether a verdict mio-ht not be sustained on the count for work and labor and materials found, I think it will not lie for goods bargained and sold, because there Avas no specific appropriation of the machines assented to by 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 which never became the proj^erty of the defendants. I am of opinion, therefore, that the work was done for the bankrupt, and not for the deiendants. LiTTLEDALE, J. I am of the same opinion. Goods bargained and sold will not lie unless there be a sale. There 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 jjroperty 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 any thing that passed, and that the defend- ants could not have maintained trover against the party to whom they were delivered. In the case of an execution or a bankruptcy, these machines must have been treated as the goods of the maker. As to the count for work and labor and materials, the labor was bestowed, and the materials were found, for the purpose of ultimately 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. O \Ride absolute^ on payment of costs. ^ ^/,„^ (V :v ^^ /(^ ' y SWAIN V. SHEPHERD. Lr /"^ At Nisi Prius, coram Parke, J., September 4, 1832. rv [Repoi-ted in 1 Moody '?*^ ^^^^^ ELLIOTT y. PYBUS. - ^^^^ ^"^'•''yflN THE Common Pleas, April 28, 1834. . . J^'^^^ ^^ ^ [Reported in 10 Bingham, 612.] j^P^ Assumpsit for goods bargained and sold ; work and labor ; /and on an account stated. At the trial before Arabin, Serjt., in the sheriff's court, London, it appeared that the defendant had ordered the plaintiff to make a ruling- machine, according to a plan of the defendant, and deposited £4 towards the payment. The defendant from time to time superintended the construction of the machine ; and before it was finished an alteration was made in its construction at his request. When it was complete he saw it, and paid £2 more on account, but omitted to come to a final settlement. SECT, v.] ELLIOTT V. PYBUS. 807 The plaintiff thereupon sent to him to fetch the machine away, and pay £10 195. 8<:^., the balance of the price. The defendant admitted that the machine was made accoi*ding to his order, but requested the phuutiif to send it home before it was paid for. This the jjlaintiff refused to do, and ordered his attorney to pro- ceed for payment. In answer to an appUcation to that effect, the de- fendant called on the attorney, complained of the exorbitance of the price demanded, and went away, saying he would not pay it. He returned, however, in about an hour, and said he would endeavor to arrange it, if they would give him time. The defendant's counsel declined to address the jury, insisting that there had been no acceptance of the machine by the defendant ; that the property in it had never passed to him ; and that, consequently, the plaintiff could not recover on a count for goods bargained and sold, but should have declared specially against the defendant for not fetch- ing and paying for the machine he had ordered. Atkinson v. Bell ^ and Mucklow v. Mangles '^ were relied on. The learned seijeant, thought there had been ultimately a sufficient assent by the defendant to the price demanded by the plaintiff, to sustain the count for goods bargained and sold, and directed a verdict for the plaintiff, with leave for the defendant to move to set it aside, and enter a nonsuit instead. Wilde, Serjt., having obtained a rule nisi accordingly, Talfotird, Serjt., showed cause. In Atkinson v. Bell, the patentee of certain spinning machinery, who had received an order from the defendant to have some spinning frames made for him, employed the plaintiff to make the machines for the defendant, and informed the latter that he had so done : after the machines had been so completed, the patentee ordered them to be altered : they were afterwards completed according to that new order, and packed up in boxes for the defendant, and the plaintiff informed the defendant that they were ready, but he refused to accept them ; and it was held that the plaintiff could not recover the price from the defendant in an action for goods bargained and sold, or for work and labor, and materials. So, in Mucklow v. Mangles, it was , held that if a person contracts with another for a chattel which is not in existence at the time of the contract, though he pays him the whole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel till it is finished and delivered to him. But those cases are distinguishable fi'om the present, for in neither of them was there any assent on the part of the defendant to accept the article in question. And in Atkinson v. Bell, Bayley, J., says, "If the defendants had expressed their assent, then this case would have been within Rohde y. Thwaites, and there would have been a 1 8 B. & C. 277. 2 1 Taunt. 318. 808 ELLIOTT V. PYBU8. [CHAP. IT. complete appropriation, vesting the property in the defendants." Here, when the defendant said he would arrange it if they would give him time, there was such an assent as effected a transfer of the property to him ; so that he might have sued for it in trover, and must have borne the loss if the article had been stolen or destroyed by fire ; and the case falls within the principle of Woods v. Russell.^ . . . Wilde. In the present case the property never passed to the defend- ant, and he could not have sued for the article in trover. The plaintiff never lost his lien on it, which he would have done if there had been an acceptance on the part of the defendant. But the defendant never assented to the price ; and from his requiring time to arrange it, it may be inferred he persisted in his objections to the amount, and refused to accept the machine. In Woods v. Russell there were periodical pay- ments, which kept pace with the Avork, and no objection was made to the price. In Mucklow v. Mangles it was held the property in the barge did not pass, although the defendant's name had been painted on the stern; and so, in Atkinson v. Bell, the acts of the defendant's agent in the progress of the work were as strong as those of the defendant here ; and yet it was held, that an action for goods bargained and sold would not lie. TiNDAL, C. J. In this case the plaintiff and defendant, by mutual consent, appear to have considered the learned serjeant as standing in the place of the jury, whom the defendant's counsel refused to address. The learned serjeant was of opinion that there had been such an ac- ceptance of the machine, which the defendant had ordered, as to enti- tle the plaintiff to sue for the price in a count for goods bargained and sold ; and the question is, whether his opinion is consistent with pre- ceding decisions, particularly those of Atkinson v. Bell and Mucklow V. Mangles. We think we shall do no violence to the principle estab- lished in those cases if we uphold the present decision. Theprinci]]]^ concisely stated, is this: that a count for goods bargained and sold can only be maintained where the property in the goods has passed from the plaintiff to the defendant "Tlie' present caseV"therefore, resolves itself into a question, whetherthere has been any agreement as to price between the plaintiff and defendant, for the deposits of £4 and £2 made by the defendant in advance of payment relieve the case from any question which might otherwise have arisen under the Statute of Frauds. Is the case then distinguishable from Atkinson v. Bell and Mucklow V. Mangles, in respect of any such agreement as to price as may be considered an acceptance of the article? In Mucklow v. Mangles, the defendant never did assent to any specific price. Here, although at one time the defendant refused to accept the machine 1 5 B. & Aid. 942. [The learned counsel here stated that case, and also Rohde w. Thwaites, 6 B. & Cr. 388. — Ed.] SECT, v.] ELLIOTT V. PYBUS. 809 because he thought the price charged too high, yet he ultimately came in to the plaintiff's terms, although he was unable to furnish the money at the time. I allude particularly to two conversations, in one of which the defendant is represented to have admitted that the machine was made according to his orders, and requested tliat the plaintiff would send it home before it was paid for, but the plaintiff refused to send it unless the whole of his demand was satisfied ; and, in the other, " that he would endeavor to arrange it if he could get time." This looks as if he wanted time only, and as if the question between him and the plaintiff was rather as to the time than as to the amount of payment. I agree that this comes, at last, to the question, whether or not the property has passed to the defendant ; and that the ])laintiff cannot sus- tain his action for goods bargained and sold, unless when the defendant is in a condition to recover the goods in trover, and must sustain the loss in case of their being stolen or destroyed by fire.^ . . . Taking the whole of the circumstances in the present case together, I think it is one in Avhich the property passed to the defendant from the moment he assented to the price demanded by the plaintiff; and the contest was rather as to the time than a% to the amount of payment. Park, J. The distinctions m the various cases on this subject run extremely fine. But the question here is a question of fact, whether there has been such an appropriation of the machine by the defendant as would change the property. The chief justice has entered very fully into the subject, and I agree in his observations. It was, in a manner, left to the learned serjeant at the trial to decide, in the place of the jury, whether or not there had been a change of property ; a jury Avould have been justified on this evidence in finding an ultimate assent by the defendant to the price demanded by the plaintiff, and consequently such an appropriation as would pass the property. Gaselee, J. If this had gone to the jury, and they had found that the defendant assented to the price fixed by the plaintifl^, no one could have objected to their verdict. By consent of the parties it was left to the decision of the learned serjeant who presided ; and I concur in the opinion he pronounced. Aldersox, J. The learned seijeant reports it as his opinion, that the evidence was sufficient to show an acceptance by the defendant. If, therefore, he had been required to leave that point to the jury, he would have left it with such observations as would probably have induced them to find the fact the same way. Had they so found it, the case would have been decided by such a finding. Hide- discharged. 1 The learned judge here cited and stated the case of Tempest v. Fitzgerald, 3 B. & Aid. 680. — Ed. 810 ALEXANDER V. GA/dNER. fyr^^^{^ [chap. II. ALEXANDER AjfD Another v. GARDNER and Another. i % In the Common Pleas, May 6, 1835. [Reported in 1 Bingham's New Cases, 671.] Assumpsit for goods bargained and sold under the following circum- stances : — The plaintiffs, merchants in London, and agents for L'ish houses in the sale of buttei-, being in exj^ectation of a cargo from Murphy, of Sligo, entered, by 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 Murphy & Co.'s Sligo butter, at 71*. Qd. per cwt. free on board for first quality ; 45. and 6s. difference for inferiors. Payment, bill at two months from the date of landing. To be shipped this month. An average and tares within six days of landing, if required. for weights -UN ^ ^ 5 On the 11th of November, the plaintiffs received from Murphy the invoice 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 London, the butter had not been shipped till the 6th of November. This circumstance was immediately communicated to the defendants, who at first refused to abide by the contract, on the ground that the butters were to have been shipped in October. In a little time, how- ever, 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, num- ber 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 substituted, as is usual in the trade. The bill of lading described the casks by their marks, .5iid.,^everal 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 ; whereupon the defendants, not having effected any insurance, refused to pay. At the trial before Tindal, C. J., it was contended on their part that, under the circumstances above stated, the action for goods bargained and sold did not lie ; and that the 2:)laintiffs, 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 J^ ^f i. 4 si f SECT, v.] ALEXANDER V. GARDNER. 811 landed ; since, according to the contract, payment was not to be made till two months after landing. The jury found that the condition for shii)ping in October had been waived by the defendants, and returned a verdict for £414, the contract price of the butters. Tcdfourd, 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,' where the owner of a stack of bark entered into a contract to sell it at a cer- tain price per ton, and the purchaser agi-eod to take and pnv for it on a day specified, and a part was afterwards weighed and delivered to him ; it was held, that 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,- 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 plaintiflfs should have set out in their declaration the special circumstances of their demand. Bom2Kis, Serjt., and Martin showed cause. The action for o-oods bargained and sold will lie ; for the property in the butters passed to the defendants by the contract. It was not necessary to that end that they should have been in the actual ])ossession of the plaintiffs. The invoice and bill of lading were symbols of possession, and by the trans- fer of those symbols the property passed to the defendants. Lickbarrow V. Mason,^ Ilaille v. Smith,* Cuming v. Brown,*^ Barrow v. Coles.® The plaintiffs had no longer an insurable interest. Hibbert v. Carter.'' In Simmons v. Swift the bargain was held incomplete, because something remained to be done on the part of the vendor, namely, the weighinoa part of the bark; but here, at the time of the contract, the quantity, quality, weight, and price of the butters were all ascertained by the contract itself. Rohde v. Thwaites,^ Atkinson v. Bell,^ and Elliott y. Pybus,'° are strong authorities for the plaintiffs. The condition for shipping in October was expressly waived by the defendants ; there was no agreement for extending the time ; and therefore Goss v. Lord 1 5 B. & C. 857. 2 5 B. & Adol. 58. 3 2T. R. 63. M B. & r. 563. 6 9 East, 50G. « 3 Campb. 92 7 1 T. R. 745. 8 6 B. & C. 388. 9 8B.&C.277. 10 10 Bing. 512. 812 ALEXANDER V. GARDNER. [CHAP. 11. Nugent has no application. Even if the contract here were conditional, the condition having been waived, it was not necessary to declare specially. 2 Wms. Saund. 269 b, note. As to the objection that the goods Avore to be paid for in two months after landing, that was a stip- ulation ascertaining only the time of payment, and not rendering the landing a condition precedent.^ . . . Talfourd QJidi Kelly m support of the rule. Looking to this transaction, it was not a contract for the bargain and sale of goods at the time of the contract, and did not become so by any subsequent circumstances. For, — First, the plaintiffs did not make out their case by shewing simply the indorsement of the bill of lading : they were obliged to connect it with, and to produce the sjDCcial contract. Secondly, the goods were not in their possession even Avhen the bill of lading was transferred ; and, — Lastly, the landing of the goods was a condition precedent to their being paid for ; and as the contract was in writing, the condition for shipping in October could not be waived orally. In none of the cases cited were there any special provisions in the contract, with reference to which the rights of the parties were to be decided; and in all of them the goods sold were in the possession of the vendors ; but here the plaintiffs, not being in possession of the goods, were not in a situation to carry the contract absolutely into effect. If Fragano v. Long had been an action for goods bargained and sold, it would have afforded an answer to the objection made in this case, that the landing of the goods Avas a condition precedent to the j)roperty vesting in the defendants ; but it was an action by the purchaser of goods against a ship-owner for negligence in conveying them ; and the purchaser, having actually insured the goods, was the party at whose risk they were carried. Here the defendants had not insured, and for the reasons before urged, were not the responsible proprietors. TiNDAL, C. J. The question in this cause is, whether an action for goods bargained and sold is maintainable against the defendants. They contend that such an action does not lie against them, but that under the circumstances of the case, the plaintiffs should have declared specially. 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 71^. Qd. 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, jDayable two months after the landing of the goods, 1 The learned counsel here cited and stated the case of Fragano v. Long, 4 B. & Cr. 219. — Ed. SECT, v.] ALEXANDER V. GARDNER. 813 Fpon this contract three objections liave been raised to the action for goods bargained and sold. First, that the butters were not in the possession of the phiintiffs at the time of the contract. Secondly, that they were not shipped in October as the contract re- quired ; and, Thirdly, that as the payment was to be at two months alter 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 forai. And I agree that the plaintiffs must show that the property 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 the first objection, if the goods were ascertained and ac- cepted before Ifie-actioh was brought, it is no objection that they were n ol in" f lie~possessr6n oTtTie ji)! ain tiffs at the time of the contract. In Rolide V. ThwaiteSj^Ke'vericlor, having in his warehouse a quantity of sugar in bulk, agreed to sell twenty hogsheads : four hogsheads were delivered ; the vendor filled up and ajjpropriated to the vendee sixteen other hogsheads ; informed him that they were ready, and desired him to take them away ; the vendee said he would take them as soon as he could ; and it was held, that the appro]u-iation having been made by the vendor and assented to by the vendee, the sixteen 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 "pi-ice were all specified in the invoice ; and the bill of lading was regu- larly 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 plaintiffs' recovery is, that the buttei-s were to be paid for by a bill at two months after landing. But the ob- ject of that stipulation was merely to fix the time of payment, and not CS"imike the landing a condition precedent. For that point it is enough bo'TcTer'to the decision in Fragano v. Long. The present case, therefore, is brought within the result of all the 1 6 B. & C. 388. 814 ALEXANDER V. GARDNER. [CHAP. II. decisions, as stated by Serjeant Williams, in the note 2 Wms. Saund. 269 b. 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. 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 there 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 sufficient to say that the right to sue for goods bargained and, sold is complete. The defendants' argu- ment turns on the princijile, that goods sold remain at the risk of the vendor, till every thing is done to complete the contract : Hinde v. Whitehouse ; ^ or till a specific appropriatioYi 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 weighed and delivered to him : it was held that the residue did not vest in the purchaser xmtil 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 de- livered. In that I entirely concur. But see what the case was in Rohde V. Thwaites. Tbere 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, informed him that they were ready, and desired him to take them 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 the 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 payment, is answered by Fragano v. Long. There 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 amval." The 1 7 East, 558. SECT, v.] ALEXANDER V. GARDNER. 815 veiiflors flespntchcd tlie goods by the canul 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 wliose negligence they were much damaged : it was held, that the property in the goooLtJ\e,,iSy':ft^nPJ.^ vessel Avas rammed, and £402 lis. -when the vessel was timbered,. ij;ej;fe., paid nric.ord^i;^ t o the^^agreenuMit, Ix Core llio l>,iii1^ 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 , / ?^-^ /^ "^ Avhich the first plea Avas pleaded, that the plaintiffs were not possessed ^ V ^ of their own property as assignees of the goods and chattels to which'Ov^ ^^ jH. 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 '*' g goods aijd chattels particularly mentioned in and excepted by the first r/^^^/^ j ^ ^ plea, payment into court of £129, which the plaintiffs took out of court /^ N ^'in discharge of those causes of action. At the trial before Lord Abin- ^^^/^ ^ il g6''? C. B., at the last Gloucestershire assizes, the following appeared to ^ Vj 1^ be the facts of the case : — ,/^^w>/ ^vi 1^ In the year 1837, a company was formed for the erection of a new hotel _^ ^^ ^ in Cheltenham, and a deed Avas executed for regulating the affairs of the ' / '^ X(S; \ company, by which the defendants were appointed trustees. Advertise- j^j^2^^:^>*- \^ '^ meats havins; been issued for tenders for buildincj the hotel, the bankrupt, Bennett, who then carried on business as a builder and timber-merchant '^> ■^ 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 ,!7^^^.^- Messrs. Churchill & Mallory had agreed to do the smith's and iron- ..^^ ^ mongery work, and Mark Barrett the painting, ])lun\bing, and glazing, %^ y >^ by agreements of even date therewith, and that Bennett bad agreed to ~y^ 1? do all the Avork, save as aforesaid, at the price of £15,381 ^s. 4c?. ; it ''^ Avas AAdtnessed that Bennett thereby covenanted for himself, his heirs, •^^.' executors, and administrators, Avith the defendants, that he Avould build the hotel (except as aforesaid), and render the same fit for habitation, ^ ^ly to the satisfaction of R. W. Jearrad (the architect employed by the '^'^'"'^^^i^^ defendants), by the times therein mentioned (enumerating various / ^ times by Avhich specified portions of the Avork Avere to be completed) ; that, should Bennett neglect to complete any one portion of the Avork ^^ ^^ f/^/^ <^ 830 TRIPP V. ARMITAGE. [CHAP. II- by the time therein appointed, or several portions of the works by the times therein respectively appointed, he should forfeit and pay the sura of £250 as liquidated damages, and the defendants should be entitled to set it off, &c. The agreement then contained the following clause : " And furtlier, that, should the said T. H. Bennett, his executors or administrators, at any time or times, omit to go on Avith, 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 bankrupt, or insolvent, or being arrested should go to gaol, before the said work should be completed and finished, then and in any 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 Avork 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 jDart of the said trustees should be absolutely nidi and void, to all intents and purposes Avhatsoever; 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 archi- tect 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. Ben- nett, his executors or administrators, to the hotel, as compared with the whole work to be done for the said price of £15,381 8s. 4c?." 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 by Jearrad, direct the same to be done, then such additions or variations should be made, but should not in any respect vacate, alter, annul, or make void the agreement, but the diflference 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 the architect's certificate indispensable. Certain additional works were contemplated as the building proceeded, Avhich 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 Jearrad, the architect, that the work had been done. In that month, Bennett, 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 SECT, v.] TRIPP V. ARMITAGE. 831 gronnfl (i.e. on the hotel premises), £140 ; joiner's work prepjired, £1000." The trustees tliereupon agi-eed tliat 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 from time to time from Jearrad, under which he received several sums of money for work not actually done. Duiing the progress of the building, one Tuinbull was the clerk of the works, and the course of business was for him to inspect every article that came in iinder any of the contracts, and none were received except on his apjiroval. Some sash-frames for the windows had been sent in by Bennett, and approved. of by Turnbull, and, before the banki-uj)tcyj had been again taken from the premises to a workshop of Bennett's, for the purpose of having affixed to them some iron ])ul- leys, which had been sujjplied to the defendants by Churchman & Mallory, under their contract. At the time of the bankruptcy, these sash-frames, with the pulleys affixed to them, wei'e at Bennett's work- shop. "^"OTi the 22d of November, Bennett committed an act of bankruptcy, on which a fiat subsequently issued, and the plaintiils were a])pointed his assignees. Between the 22d and the 25th of November, the sash- frames, to which the pulleys had been so attached, and alsi^ ihe various articles excepted out of the first plea, were delivered ivponthg, prem- ises of the company. There were also on the hotel ])remises, 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 armi'^} ?^^ o^ l>y Turnbull, and were in a prepared state, bilTnot yet fixed. On taking an account between the value of the AvoiTc actually done and fixed at the time of the bankruptcy, 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 Avas brought by the assignees to recover the value of the materials which were upon the premises, unfixed, at the time of the bankruptcy, of the sash-frames, and of the other materials delivered on the premises afler 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 bankruptcy 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 they 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 only evidence of a conversion of the sash-fVumcs was a demand and refusal, the demand not being iiniited in terms to the wood-work of the frames. The value of the frames with the pulleys was £9 55. ; of the pulleys, £1 95. The learned judge directed the jury, that if the advances were made to Bennett on the understanding and 832 TRIPP V. ARMITAGE. [CHAP. II. agreement that the materials brought upon the premises should be con- sidered as a pledge for those advances, they should find a verdict for the defendants ; and lie intimated an opinion that the sash-frames had been so far specifically ap])ropriated to the defendants as to prevent the plain- tiffs from recovering in respect of them. The jury found a verdict for the defendants, nnd the learned judge gave the plaintiffs leave to move to enter a verdict for £9 bs., the value of the sash-frames. TaJfo'urd, Serjt., having on a former day in this term, obtained a rule nisi accordingly, Maule and Greaves showed cause. The question in this case is, "whetlier the plaintiffs, as assignees of Bennett, were entitled to the sash-frames in the state in which they were at the time when they were demanded and refused ; that demand and refusal being the only evidence of a conversion. The defendants contend that they were not so entitled, on several grounds. First, the frames had then become, in entirety, the property of the defendants. Nothing more is necessary by law (independently of statutable limitations), in order to pass the property in a chattel sold, or supplied for a valuable consideration, than that there be a contract with respect to it and an indication of the specific chattel that is to pass by tliat contract. Where the con- tract is to supply on the one hand, and to purchase on the other, goods of a given species, but not specific goods, there no property passes by the contract itself; but wherever specific goods are to be supplied, and those goods alone will satisfy the contract, there the projjcrty vests at once in the purchaser. But even in the former case, when the con- tract comes to be performed, and the specific goods* are ascertained and indicated to which the contract is to attach, the property equally passes. " The very appropriation of the chattel is equivalent to de- livery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the j^rice, is equivalent to his accepting possession : " per Parke, J., in Dixon v. Yates.^ In Mucklow y. Mangles,^ which may be cited as an authority the other way, the article was not finished nor appropriated. Maberley v. Shcppard ^ is relied on for the plaintiffs ; but that was a case falling within the provisions of the Statute of Frauds, and was decided entirely on the ground that the requisites of section 17 of that statute had not been complied with. And Tindal, C. J., there says : " If the wagon had been completed and ready for delivery, and the defendant had then sent a Avorkman of his own to perform any additional work upon it, such conduct on the part of the defend- ant might have amounted to an acceptance." But no question arises on the Statute of Frauds in the present case : first, because there is here a note in writing sufficient to satisfy the statute ; secondly, the 1 5 B. & Adol. 340. 2 i Taunt. 318. 3 10 Bing. 99; 3 M. & Scott, 436. SECT, v.] TRIPP V. ARMITAGE, 833 payment of the first instalment was part payment of all that was to be paid under the contract; but, thirdly, this is not purely a contract for the sale of goods, within the moaning of the statute. There may be a contract under which chattels are furnished, which is not a contract of sale ; as in the case of board and lodging at so much per week. So, this is a contract for work and labor to be done upon materials which, when com])lete, are to become the property of the defendants ; but it it is not properly a contract for the sale of goods. [Parke, B. The contract is to make these several things, and to put them uj) in the hotel, and then the bankrupt is to be paid one entire sum for the whole work. The contract, therefore, is not complete with reference to these sash-frames, until they are fixed to the house and made part of the freehold. Suppose Bennett's shop had been burnt with the frames in it, whose would have been the loss?] The articles having been actually approved and appropriated by the defendants, they could not have called upon Bennett to furnish others in case of their destruction. As soon as the approval of Turnbull was given, and the frames were combined Avith the pulleys, which undoubtedly were the property of the defendants, there was a designation of the specific articles, to which the previous general contract was to apply, and the property passed. The criterion, however, as to the risk by fire is not perfect ; it does not follow that, because a party is the owner of goods, they are necessarily at his risk. See Bailey v. Culverwell.^ The rule of law to be collected from the cases on this subject is, that wherever the article which is -the subject of the contract is identified, either in the contract itself, or afterwards by the assent and ajjproval of the par- ties, the property passes. Atkinson v. Bell,- Woods v. Russell,'' Elliott V. Pybus,'* Clarke v. Spence,^ Rohde v. Thwaites,^ Sparkes v. Marshall."^ [Parke, B. In all those cases there was a bargain for the specific article ; here there has been none. The parties here had no intention of making any such bargain ; the contract merely is, that the builder is to do the necessary work of his dei)artment for the house.] It is immaterial to the application of the rule of law, whether the contract is solely and properly for the sale of goods or not. This was not a contract to build a house, but, inter alia, to furnish sash-frames ; the contract could not be performed without furnishing them. Then they were appropriated, by being incorporated with the defendants' iron work, and approved by the party nominated by them for that pur- pose.^ . . . 1 8 B & Cr. 452, 454. 2 3 id. 277 ; 2 Man. & R. 292. 3 5 B. & Aid. 942 ; 1 D. & R. 587. * 10 Biug. 512 ; 4 M. & Scott, 389. 5 4 Ad. & K. 448 ; 6 Nev. & M. 399. « 6 B. & Cr. 388 ; 9 D. & R. 293. ^ 2 Bing. N. C. 7G1 ; 3 Scott, 172. 8 The parts omitted are not relevant to the subject of this chapter. — Ed. 834 TRIPP V. ARMITAGE. [CHAP. II. B. V. Richards (with wliom were Talfourd^ Seijt., and TF. J. Alexander)^ 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. The defendants undoubtedly intended to pay money into court to cover all matters on Avhich there was any doubt, and to rest only upon a defence which was perfectly clear ; and on a great part of their case, amounting to several hundred pounds, they did make out a clear defence; but there unfortunately occurred this little omission with respect to these sashes, which has given rise to the whole question now in dispute. The case has been very ably and ingeniously argued by Mr. Maule, but I cannot at all adopt the first ground he has taken, namely, that by reason of the approbation of Turnbull, the clerk of. the works, and the application of the pulleys sent by the defendants to be fij^edlP.jtbe sashes, the property was appropriated to the defendants. \ My reason for not acceding to that argument is shortly this: that this is not a contract for the sale and purchase of goods as movable chat- I, tels; it is a contract to make up materials, and to fix them; and until I the^' are^ fixed, by the nature of the contract the property will not \ passf'^it Is'saidtlia't althougli'ffi^^^ in the first I |in§tance, yet it may become, by circumstances specific ; that althovigh I la man may agree to buy goods generally, and on the part of the ven- I fdor the contract may be complied with by supplying any goods he \|chooses of the description named, yet, if particular goods be afterwards fpointed out and designated between the parties, the contract is thereby "modified, and becomes then an undertaking to supply the specific goods, the property in which thereby passes to the vendee. Uttt^lhis is not a contract to ]»uv('haso gooils at all, — it is a contract for several "works to'be done. Wherever the property of "the goods passes by the contract, and has become vested in the purchaser, if they are destroyed by any accident, the purchaser would be responsible. But I think Ave 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 pay for any thing 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 by 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 entirely concur. With respect to the first point, which has been insisted upon at so much length and with so much SECT, v.] ELLERSHAW V. MAGNIAC. 835 ingenuity and ability by Mr. Maulc, I think tlie answer is a very short one. I admit that the cases wliich have been cited and com- mented upon by him arc perfectly good law : but there is one most material distinction between them and the present, viz., that in all those cases there was a contract with resjiect to a pai'ticular chattel, which l»y the r'Milracl \\':is to Ijccoiiir tin,' prdpcri \- of" the person taking it, under certain circumstances; 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 thiiio-s window-frames for the house, and fix them in the house, subject to the approbation of a surveyor ; and it was never intended by this contract, that the articles so to be fixed should become the prop- erty of the defendants, until they were fixed to the freehold. It is said that the approbation of the surveyor is sufUcicnt to constitute an acceptance by the defendants; but that approbation is not given eo ammo at all ; it is only to ascertain that they are such materials 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 performance of the larger contract, that they are to be paid for. That ai)])ears to me to be a sufficient answer to the first and j^rincipal point which has been argued by Mr. Maule against the rule. . . . jGrURNEY, B. I am of the same opinion. It is clear, upon this con- tract, that the property in the framps had not passed out of the bank- rupt to the defendants. 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 themselves of both ; and they make their own default in not severing the one from the other, the ground of their refusal to deliver up that which the assignees were entitled to. jRule absolute to enter a verdict on so much of the declaration as ajyplied to the sash-frames ; damages^ £7 IQs. ^XLERSIIAW V. MAGNIAC axd Others. In the Exchequer, April 22, 1843. . [Reported in 6 Exchequer Reports, 570, note (a).] This was a feigned issue to try whether the plaintiiF Avas entitled to a cargo of linseed and wheat, or any and what part thereof, on the arrival of a vessel called the Woodhouse at the port of Hull, on the lOthof June, 1841. 836 ELLERSHAW V. MAGNIAC. [CHAP. II. At the trial before Lord Abinger, C. B., at the London sittings after Hilary term, 1843, the following facts appeared: On the 8th of May, 1840, the plaintiff, a merchant at Leeds, entered into a contract with John Cortazzi, of London (who, together with James Cortazzi, of Odessa, carried on business as merchants at London and Odessa, under the firm of James & John Cortazzi), for the purchase of 1700 quarters of Odessa linseed, to be paid for half by drafts on the buyer, at three months from the time of the advice of the sale reaching Odessa, and the remainder at three months from the date of shipment. On the 12th of May, John Cortazzi wrote to James Cortazzi, at Odessa, for- warding a copy of the contract with the plaintiff; and on the 17th, James Cortazzi drew upon the plaintiff, on account of the linseed, two bills of exchange, for payment respectively of £912 10s., and £490, three months afterdate; which bills Avcre duly accepted and paid by the plaintiff ^^'hen due. In order to fetch the linseed from Odessa, the plaintiff on the 24th of July, 1840, entered into the following charter-party: — • It is this day mutually agreed between Messrs. Terry & Sons, owners of the good ship or vessel called Woodhouse of the burden, &c., and John Ellershaw, of Leeds, merchant, that the said ship, being tight, &c., shall, with all convenient speed, sail and proceed to Odessa, or so near thereto as she may safely get ; and there take on board, from agents of the said freighter about 1700 quarters of linseed in bulk (the ship to be allowed to take a cargo of coal from England to any port in the Mediterranean or Black Sea, not exceeding what she can reasonably stow, &c.), and, being so loaded, shall forthwith proceed to Hull, or as near thereto as she may safely get, and deliver the same to the order of the freighter, on being paid freight at and after the rate of 75. &d. per ton, &c. (the act of God, &c., excepted). Twenty days are to be allowed the said mer- chant (if the ship is not sooner despatched) for loading at Odessa, and fifteen days for discharging at Hull, and for demurrage over and above the said lying days the said freighter to pay the sum of £5 per day. The vessel proceeded on her outward voyage with a cargo of coal, and arrived at Odessa on the 20th of December. The master applied to the Odessa house for the linseed, and produced a copy of the charter- party, Avhen he was informed that the cargo should be shipped in due time. On the 21st of December, James Cortazzi wrote to John Cor- tazzi as follows : — The Woodhouse is arrived : we have about 800 chetwerts of linseed ready for her, and hope to have the rest in time. On the 4th of January, 1841, the Odessa house commenced loading the vessel with linseed, and continued to load it at intervals, until the 25th of January, by which time she received on board 1074 bags, hav- ing been lying on demurrage for five days. On the 18th of January, James Cortazzi wrote to John Cortazzi as follows : — SECT, v.] ELLERSHAW V. MAGNIAC. 837 With regard to your sales of linseed, Mr. Ellershaw will receive a part by the Woodliouse. On the 25th of January (the day on which the loariiiig of the Woodhouse was completed), James Cortazzi wrote to Jolin Cortazzi as follows : — By Friday's post you shall have the bill of lading of the linseed by the Wood- house. On the 5th of February the master signed a bill of lading in the fol- lowing form : — Shipped in good order and -well conditioned by James and John Cortazzi in and upon the good ship called Woodhouse whereof is master for this present voyage J. Tate, and now riding at anchor in the harbor of Odessa, and bouml for Hull, 547 chetwerts of linseed, being marked and numbered as in the ntargin, and are to be delivered in like good order and well conditioned at the port of Hull (the act of God, &c., excepted), unto order, or to assigns, paying freight for tlie said goods as per charter-party, with primage and average accustomed. In wit- ness, &c. The Odessa house having subsequently informed the master that they were unable to procure any more linseed, he consented to receive wheat in substitution thereof, and similar bills of lading were signed by the master. The amount of the bills of exchange paid by the plaintiff considerably exceeded the A'alue of the linseed shipped. The Odes.sa house, being in difficulties, indorsed the bills of lading to one Poel, for advances made by him ; and Poel transferred them to the defendants. The vessel arrived at Hull on the lOth of June, 18-41, when the defend- ants claimed the cargo as holders of the bills of ladingr. It was submitted on behalf of the defendants, that under the above circumstances the pro])erty in the cargo never vested in the plaintiff; and the learned judge, being of that opinion, directed a verdict for the defendants, reserving leave to the plaintiff to move to enter a verdict for him. Worthy (with whom was Cov;ling) in the following Easter term moved accordingly. He argued that as the goods were purchased and put on board the vessel in pursuance of the contract, the Odessa house intending them for the plaintiff, and knowing that the bills of exchange had been paid, they could not vary the consignment by ])rocuring the master to sign a bill of lading, making the goods deliverable to order or assigns. He cited Ogle v. Atkinson.'' The court," however, were of opinion that there was not such a de- livery of the goods as to vest the property or right of possession in the plaintiff; the circumstance of the shi])pers making the linseed deliver- able to order by the bill of lading, clearly showing their intention to 1 5 Taunt. 759. ^ Lord Abinger, C. B., Parke, B., Alderson, B. TOL. I. 64 838 WILKINS V. BROMHEAD. [CHAP. II. preserve the right of property and possession in themselves, until they had made an assignment of the bill of lading to some other person ; and though the goods might have been purchased with an intention that they should be delivered to Ellershaw, that intention was never exe- -, :w....-..=jiv3,„«ai.,^,,.,;^_^,i^;.^,.,„^,^,^^ j^yjQ refused. WILKINS V. BROMHEAD and HUTTON. In the Common Pleas, January 23, 18i4. [Reported in 6 Manning ^- Granger, 963.] against the defendants, who were assignees of Smith & Bryant, bankrupts, for a greenhouse and materials. Pleas, not guilty, and not possessed; on both of which pleas issue was joined. >* At the trial of the cause, before Coleridge, J., at the last Bristol sum- A ^ mer assizes, it appeared that the plaintiif, a gentleman residing near ^ ^i \ Cardiff, in Glamorganshire, in October, 1841, employed the bankrupts ^ i' Smith & Bryant, who were carpenters at Bristol, to make him a green- ' tji \ house for the price of £50: it was also agreed that Smith & Bryant \ \ V should put up the greenhouse on tlie plaintiff's premises at Cardiff, for \ N^ the further sum of £14 14s. Smith & Bryant, having finished the ^^^ I wood-work, sent the sashes to a glazier of the name of Wait, to be ^ X glazed. The whole work being completed, but not permanently fixed too-ether, Smith & Bryant, in June, 1842, informed the plaintiff, by ^ Company ^ & Bryant "to keep the greenhouse, and take care of it, till he sent for it." In February, 1845, pending an action against Bryant, the whole was sent by him to Wait without the knowledge of the plaintiff, to secure it from an execution against Bryant. Bryant asked Wait to place the greenhouse in his warehouse, alleging that Smith & Bryant had not room for it on their premises, telling him also that it was the plaintiff's property, and requesting Wait to keep it till he sent for it, which Wait agreed to do. On the 14th of March a fiat in bankruptcy issued ao-ainst Smith & Bryant, imder which the defendants Avere ap- pointed assignees. On the 22d of April the greenhouse was removed by Wait to the premises of the bankrujits, and was taken possession of by the messenger under the fiat. On the 9th of May, 1843, an agent of the plaintiff made a demand of the greenhouse upon the solicitor of the fiat, at the same time leaving with him a written demand, addressed to the defendants. The solici- SECT, v.] WILKINS V. BROMHEAD. 839 tor, on the 12tli, informed the plaintiff's agent that the opinion of counsel had been taken, and that the assignees were advised not to give up the greenhouse ; and he accepted a notice, and indorsed a re- fusal, dating it on the 9th. On the part of the defendants it was contended that there was no evidence for the jury of the plaintiff's property in the greenhouse; and Atkinson v. Bell ^ was cited; and that even assuming that there was some evidence of property in the plaintiff, the greenhouse, at the time of the fiat, was in the possession, order, and dis];)osition of the l)ank- rupts, with the consent of the owner, within the 6 G. 4, c. 16, § 72.^ A further point was taken, that there Avas no evidence of a conversion by the defendants; but it was abandoned on the argument. The learned judge having refused to nonsuit the plaintiff, the defend- ants' counsel declined to address the jury, who were directed to find for the plaintiff, on both issues. A verdict was returned accordingly, damages £50 ; leave being reserved to move to enter a nonsuit, if the court should think either objection well founded. Bompas, Serjt., in Michaelmas term last, obtained a rule ms? accord- ingly^ — citing Thacktlnvaite v. Cock,'' White v. AVilks,* and Knowles V. Ilorsfall.^ Channel}., Serjt. (with whom was Butt), showed cause. The ques- tion is, whether, on the points taken, there was any evidence which justified the judge in leaving the case to the jury. First, it is quite clear that the property in the greenhouse vested in the i)laiiitiff: it was completely finished, and he ])aid the whole price for it; and there was a complete appropriation of it by the bankrupts to the phiintiff when they sent it to Wait's warehouse to be kept for him, with express notice that it belonged to him. Atkinson v. Bell® was cited at the trial for the defendants. That case, however, is very different from the present. There the defendant, the vendee, expressly refused to accept the machines; whereas here not only did the plaintiff assent to receive the greenhouse, but he actually paid for it. Mucklow v. Mangles,'' also, does not apply. In tliat case thei-e was a payment in advance, but there was no appropiiation of the article by the vendor with the assent of the vendee. In Goodall v. Skelton ^ there M-as clearly no delivery, so as to warrant the plaintiff in suing as for goods sold and delivered. Supposing this greenhouse to have been destroyed by fire Avhilst upon the premises of Wait, the loss Avould clearly have fallen on the plaintifl^ Tarling v. Baxter." . . . Sir 2\ Wilde and Bumpas, Serjts., in support of the rule. The first 1 8 B. & C. 277, 2 Mann. & Ryl. 292. 2 The arguments and decision upon this point have been omitted. — Ed. 3 3 Taunt. 487. * 5 Taunt. 17G. » 5 B. «& Aid. 134. c 8 B. & C. 277, 2 Mann. & Kyi. 21)2. 7 i Taunt. 318. 8 2 II. Blac. 316. 9 B. & C. 360, 9 Dowl. & li;-!. 272. 840 WILKINS V. BROMHEAD. [CHAP. II. question is, whether the property in the greenhouse passed to the plain- tiff. Tliere is a known distinction between the case of a sale of a spe- cific article in existence at the time, and that of an article ordered to be made : in the former case the property passes by the contract, although a lien may remain for the price ; in the latter case, until the article has been so far accepted that the buyer cannot repudiate it, the property continues in the vendor.^ . . . There can be no doubt that here the bankrupts intended to appropriate the greenhouse to the plain- tiff; but his assent to such appropriation was wanting. [Maule, J. Suppose the bankrupts had shown the greenhouse to the plaintiff, and be had then paid for it?] That would have made all the difference. The circumstance of the bankrupts having represented to the plaintiff that they had finished the greenhouse, and demanded the £50, and of the plaintiff having assented to the demand and paid the money, did not vest the property in the plaintiff. Notwithstanding the payment of the price, no change of property could take place, unless there was such an acceptance by the plaintiff as would preclude him from repudi- atiufT the sri'eenhouse Avhen he saw it ; and there was no evidence of any such acceptance. Suppose the bankrupts had sold this identical o-reenhouse after the remittance of the £50, could the plaintiff have maintained trover for it? It is clear that the bankrupts might have performed their contract by sending him another greenhouse. Had this greenhouse been destroyed by fire whilst on the bankrupts' prem- ises, the loss would unquestionably have been theirs. The cases that have arisen upon the statute of frauds are most pertinent to the present inquiry. It is apprehended that delivery imports acceptance. [Maule, J. But acceptance does not import delivery.] Suppose a verbal contract to deliver an article in the country, and the buyer comes to London, inspects the article and does something to it, that is an acceptance which imports delivery for many legal purposes. It is submitted that there cannot be an acceptance without some offer to deliver on the other side. Here, the plaintiff not having come for the article, the bankrupts sent it to Wait's premises ; which, so far as this question is concerned, was the same as sending it to another shop of their own. [Maule, J. Wait is told to keep it till the plaintiff sent for it.] But to keep it in what sense ? Not as delivered to the plain- tiff. All that was meant was, that the greenhouse was an order which the bankrupts had executed for the plaintiff. It is clear that here has been no such delivery and acceptance as Avould preclude the vendee from setting up the statute of frauds, or objecting to receive the article. Elmore v. Stone," Rugg v. Minett.'^ Suppose a tailor to write to a customer in the country, saying that his clothes were made, and 1 The learned counsel here cited Mucklow v. Mangles, 1 Taunt. 318, and Atkinson V.Bell, 8 B. & Cr. 277. —Ed. 2 1 Taunt. 458. ' 11 East, 210. SECT, v.] WILKINS V. BRO.MHEAD. 841 that he, the tailor, wanted money; that the customer sent the money, and then came to town and found the clothes too larcre : could he not* return them? In Howe v. Palmer,^ where a vendee verbally agreed, at a public market, with the agent of the vendor, to purchase twelve bushels of taies (then in the vendor's possession, constituting part of a larger quantity in bulk), to remain in the vendor's possession till called for, and the agent, on his return home, measured the twelve bushels and set them apart for the vendee, it was held that this did not amount to an acceptance by the latter, so as to take the case out of the seventeenth section of the Statute of Frauds. [Cukssweli., J. referred to Alexander v. Gardner,^ as resembling the present case.] In that case, an invoice, and an indorsed bill of lading, of the butters had been sent to the vendees. In Carter v. Toussaint,^ a horse was sold by verbal contract, but no time was fixed for the payment of the price ; the horse was to remain with the vendors for twenty days without any charge to the vendee ; at the expiration of that time the horse was sent to grass by the direction of the vendee, and by his desire entered as the horse of one of the vendors : and it was held that there was no acce^jtance of the hoi-se by the vendee, Avithin the Statute of Frauds. [Maule, J. In that case there was a sale of a chattel for more than £10, and no memorandum in writing. Suppose the price of the horse had been under that sum? If part payment of the price will satisfy the Statute of Frauds, will not the payment of the whole price do so ?] By merely paying for an unseen article, the party does not so conclude himself as to prevent him from repudiating it afterwards. . . . TixDAL, C. J. The motion before the court proceeds upon two distinct grounds : the first ground is, that, under the contract, no prop- erty in the greenhouse in question passed to the plaintiff; the second, admitting that the property did pass by the contract, as the greenhouse remained in the possession of the bankrujjts, or of Wait, down to the time of the bankruptcy, it must be taken to be property in their order and disposition, as reputed owners, with the consent and permission of the true owner, and, consequently, that it vested in their assignees. As to the first point, there can be no doubt l)ut that a contract for the making of a chattel does not of itself vest- the property in the chattel, when completed, in the person giving the order. But here the ques- tion turns, not upon the original contract between the plaintiff" and Smith & Bryant, but upon the circumstances M'hich afterwards took place, viz., the i)ayment by the plaintiflT, after the greeidiouse had been completed, of the stipulated price, the appropriation and setting ai)art by the bankrupts of the greenhouse for the plaintiff, and his assent to such appropriation. There was an appropriation on the one side, and 1 3 B. & Aid. 321. 2 1 ^cw Cases, G71, 1 Scott, 030. 3 6 B. & Aid. 855, 1 D. & R. 615. 842 WILKINS V. BROMHEAD. [CHAP. H. an nsscnt to such appropriation on the other; which, I thinlc, was quite sufficient to pass the property to the phiintiff. It may be that the original contract did not pass the property; but the parties maybe said to liave entered into a new contract. I cannot conceive why, under the circumstances of this case, the property in an article made to order should not pass upon its completion, as it would have done if it had been in existence at the time of the original contract. The objections raised upon this point Avere mainly founded upon Atkinson V. Bell.^ But, if that case be examined, it will be found not to apply. Tlie decision there turned entirely on the absence of assent on the part of the purchasers to the appropriation of the machines by the vendor. It is said, by Bayley, J., "These were Sleddon's goods, although they were intended for the defendants, and he had written to tell them so. If they had expressed their assent, then this case would have been within Rohde v. Thwaites,- and there would have been a complete appropriation, vesting the propei'ty in the defendants. But there was not any such assent to the appropriation made by the bankrupt ; and, therefore, no action for goods bargained and sold was maintainable." Holroyd, J., observes, "I think the action will not lie for goods bar- gained and sold, because there was no specific appropriation of the machines assented to by the purchasers, and the property in the goods therefore remained in the maker." And Littledale, J., adds, "There could not be any sale in this case, unless there was an assent, by the defendants, to take the articles." Looking at the facts of this case, it seems to me that there is complete evidence of assent, on the part of the ]ilaintifF, to the appropriation made by the vendors. The plaintiif was informed by letter that the greenhouse was finished, and was requested to remit the price. He did so, at the same time requesting the vendors to keep the greenhouse for hira until he sent for it. It has been argued, that the letter of the plaintifi^, desiring Smith & Bryant to keep the greenhouse for him, Avas written before the article was seen, and that it would be hard if it were held to be such an accept- ance as Avould preclude him from rejecting the article if it afterwards turned out defective in its construction. If a purchaser's assent to the appropriation Avas shown to have been obtained by misrepresentation, it seems to me it would probably be held to be no assent at all. But that is not the case here ; and although the plaintiff" thought proper to assent to the appropriation Avithout seeing the greenhouse, the assent was not the less complete. Upon this point, therefore, I think that the property vested in the plaintiff*, so as to enable him to maintain this action. . . . Erskine, J. I also think that this rule should be discharged. With respect to the first point, I am of opinion, on the authority of the cases 1 8 B. & C. 277, 2 Mann. & Ryl. 292. 2 6 B. & C. 388, 9 Dovvl. & Ryl. 293. SECT, v.] WILKINS V. BROMHEAD. 843 relied upon for the defendants, that the property in* this greenhouse passed to the i)laintift". It is conceded, on all hands, that the rule laid down in IMucklow v. Mangles^ is the correct one, viz., that, wliile the article remains unfinished, no property in it passes, notwithstanding the vendor may intend it for the purchaser, or may put liis name upon it, or otherwise show an intention to appropriate it, and that a ])ayment of money on account makes no difference. Here, however, the green- house was completed and after it was so completed the makers a]ipro- priated it to the purchaser. Tiie latter, before paying for it, might have required to see it ; but, instead of doing so, he transmitted the price. But that is not all; he also requested the bankrupts to keep the greenhouse for him, thereby assenting to the appropriation which they had made. "WlicMi the latter deposited it with Wait, they gave notice that it was the ])laintiff 's property, and requested Wait to take care of it for him. The reason why it was held in Atkinson v. Bell' that the action for goods bargained and sold could not be maintained, was, that, although there had been an appropriation, no assent, on the part of the persons for whom the articles were made, had been shown. The language of the judges, as read by the lord chief justice, shows that to have been the only ground on which the case Avas decided. *' If," says Bayley, J., "the defendants had expressed their assent, then this case would have been within Rohde v. Thw'aites,^ and there would have been a complete appropriation vesting the property in the de- fendants." What Avas the assent in Rohde v. Thwaites Avhich was, in that learned judge's o]nnion, sufficient to pass the property? There the vendee never saw the sugars ; but, having received a message from the seller that they were ready for him, he sent word back that he would take them away as soon as he could : and it was held to be such an assent that the property passed. Moreover, there is here a strong fact which did not appear in Rohde v. Thwaites ; for the pur- chaser paid the price, and requested the vendors to keep the green- house for him. It appears to me that the property completely passed to the plaintiff, and that if the article had been accidentally destroyed while in the possession of the bankrupts or of Wait, it would have been the plaintiff's loss. . . . Maule, J. ... As to the first point there seems to me to have been a complete appropriation on the part of the vendors, and an assent thereto on the part of the purchaser. A good deal has been said about acceptance and the Statute of Frauds ; but I do not think that either has any thing whatever to do with this case. This is not like the case of Do lit facias ; for here payment has been made for a completed article. The clear understanding was, that the plaintifi' was to have the greenhouse, and the bankrupts the £50. That the bankrupts so 1 1 Taunt. 318. 2 8 B. & C. 277, 2 Mann. &, Ryl. 292. 3 6 B. & C. S83, 9 D. & R. 293. 844 CUNLIFFB V. HARRISON. [CHAP. 11. understood the transaction is clear ; as they treat the greenhouse as being no longer their property, but as belonging to the plaintiff. In these cases it is not necessary that tlie vendee should actually see the article when completed, provided there is sufficient to show that the identical thing offered or appropriated by the one party, is accepted and assented to by the other, as made in the performance of the con- tract. Of this there was evidence on which any jury would have found for the plaintiff. . . . Ckesswell, J. I am of the same opinion. The first point comes very much to this, — whether the contract was not in effect an agree- ment for the sale of a specific chattel ; for although, in the first instance, the bankrupts contracted to build the greenhouse for the plaintiff, after the article was finished there was an appropriation of it to the plaintiff, and a clear assent on his part to such approj^riation. I therefore think the property passed to the plaintiff. . . . Mule discharged} y / — V'' ' /L 'It'' CtlNLIFFE V. HAERISOK and Othees. Ay a' • In the Exchequer, June 24, 1851. ys ir [Reported in 6 Exchequer Reports, 903.] V Assumpsit for goods sold and delivered. Plea, non assumj^seruyit, and issue thereon. At the trial before Piatt, B., at the last Liverpool assizes, it appeared that the action was brought to recover the sum of £460, the price of ten hogsheads of claret, as sold to the defendants under the following circumstances. The defendants, wine-merchants at Liverpool, in the year 1847 had given a verbal order to the plaintiff, a wine-merchant at Boui'deaux, for some hogsheads of claret; but it did not clearly appear Avhat was the precise number of hogsheads or- dered. In pursuance of this order, on the 29th of September, the plaintiff sent fifteen hogsheads of claret, and at the same time sent a letter to say that, according to the defendants' order, he had sent fifteen hogsheads of the finest claret. The defendants, on receiving notice of the arrival of the wine, on the 12th of October, wrote to the plaintiff the following letter : — We requested that only ten hogsheads might be shipped, and ten reserved for shipment in the spring in case we should need it. We therefore can only take 1 The defendant, Bromhead, afterwards brought an action in Q. B. against his attorney. Hall, for defending the action without liis authority, and he obtained a ver- dict. At the trial, coram Erie, J., at Bristol, 1845, it was proved that the bankrupts sent the greenhouse to Wait, to prevent its being taken in execution as their property, but it did not appear on this occasion that any intimation was given to Wait that the greenhouse had become the property of Wilkins. SECT, v.] CUNLIFFE V. HARRISON. 845 ten Iiogslioads to account on their provin^^ satisfactory, and the other five hogs- heads we will hold on your account, waiting your instructions. To tills letter the plaintiff replied on the IStli of October, and after statin;^ that he rej^retted that there should have been any inisnnder- standing as to the nature of the defendants' order, and that clarets were likely to rise in price because other' vintages were of an inferior quality, the letter concluded as follows : — With old friends like yourselves, whatever suits you best is most acceptable to us. The wine is superior. You will ascertain in the si)ritig wlietiier you have room for it ; and you have seen that we are not stringent with old customers as to credit. The defendants placed the fifteen hogsheads in a bonded warehouse in their own names, and shortly afterwards tasted the wine and disap- proved of it ; but they gave no notice to the plaintiff of their disapproval till the following month of April, when they refused to take any part of it. In the month of June the plaintiff requested to have five hogs- heads delivered to his account, and demanded the price of the other ten. On the part of the defendants it was contended that, assuming that there was a contract in Avriting, so as to satisfy the Statute of Frauds, that contract was to take ten hogsheads only, and therefore that the contract was not executed, as ten hogsheads had not been sent, or selected out of the fifteen ; and, secondly, that if that was not so, there was no acceptance within the 17th section of the Statute of Frauds. The learned judge left it to the jury to say whether the defendants had kept the wine an unreasonable time without signifying their dis- approbation of it; and the jury having found that they had, a verdict was entered for the plaintiff, with leave to the defendants to move to set that verdict aside, and to enter a nonsuit, if the court should be of opinion that there was not any evidence in support of the plaintiff's case. Ivnowles having in last Easter term obtained a rule nisi accordingly. Watson and Crompton showed cause, and contended that there was a contract in writing, by which the defendants agreed to purchase ten liogsheads ; and that although fifteen had been sent, the defendants liad an o])portunity of taking ten out of the set, and therefore that in effect it amounted to a delivery often hogsheads; and that the defend- ants, by keejjing the Avine for an unreasonable time without objecting to it, must be presumed to have accepted it. Knoxoles and Tomlinson^ in support of the rule, were not called U23on. Pauke, B. I am of opinion that the rule ought to be absolute to enter a nonsuit. This is an action for goods sold and delivered, the value of Avhich is above £10. There are two questions: first, whether 846 CUNLIFFE V. HARRISON. [CHAP. II. there was any binding contract to satisfy the Statute of Frauds, and whether that contract has been performed ; and secondly, if that be not so, whether there was an acceptance of the goods, so as to bind the defendants by an acceptance within that statute. I think that the phaintiff has failed to establish either of these propositions. The defendants' order in the first instance was a verbal one. Upon looking at the correspondence, it appears that the parties are not agreed upon the precise nature of the contract. The correspondence ])egins by a letter of the 29th of September, in which the plaintiff says that he has sent to the defendants, according to their partner's order, fifteen hogs- heads of the finest claret. On the 12th of October, the defendants replied by the following letter. [His lordship read the material parts, and proceeded:] Now the defendants' account of the contract is, that they agreed to purchase ten hogsheads only, and to take those ten only if they should prove satisfactory, reserving to themselves there- fore the power of approving of them. If we take that to be the true account of the contract, it was a contract for ten hogsheads only, and the defendants were not bound to receive them unless they Avere satis- fied with them. They had a right to have ten specific hogsheads deUvered to them, aiia t^ey were nori^^ to pay for them unless they were satisfactory. If ten only had been delivered, and they had forborne t.Q...1;a]ke, any object^ four montlis, that would have been sufficient evidence that they approved of the quality of the wine. In this view of the case, the plaintiff, in order to maintain his action, must prove that a specific ten were delivered. But the delivery of fifteen hogsheads, under a contract to deliver ten, is no performance of that 'contract, for t%^.perspn to 'whoiu they^are sent "c^^^ tell which are the ten thTat are to be his; and it is no answer to the objec- tion to say, that he may choose which ten he likes, for that Avould be to force a iicav contract upon him. I think there was not evidence, eillier that there was any selection of any particular ten, or tliat the precise quantity agreed upon was sent. The delivery of more than ten is a proposal for a new contract. If this be the true account of the contract, it has not been performed. I think it is also perfectly clear that the defendants never accepted the ten hogsheads. They objected to the quality of the whole. But then the plaintiff relies upon the letter of the 18th of October. I do not think that letter removes the difficulty. [His lordship read it and proceeded :] Now it seems to me that this is a proposal for a new contract, that the matter shall lie over till the spring, and that the defendants shall then taste the wine and decide whether they will take it or not. That second contract has cer- tainly never been performed, for the defendants were at liberty to make their objection in the spring on trying the wine ; and they did try it, and rejected it. It therefore seems to mo in either view, that the plain- tiff has not made out his case, for there Avas no acceptance within the 8ECT. v.] WOOD V. BELL. 847 Statute; and if there was any contrnct in writincj, it was a contract for ten lioiislieads only, and tlie defendants never had tlie partieular ten selected and delivered to them; and consequently they are not liable in the present form of action, Alderson, B., and Pi.att, B., concurred. Mautix, B. I am of the same opinion. I think there was no evi- dence of a contract for fifteen hogsheads; but assuming that there was evidence of a contract for t(.'n, and that the defendants had expressed themselves satisfied with the quality of the wine, and had agreed to take ten out of the fifteen, I am of ojiinion that the ])laintift" could not maintain this action for the ten ; for I think that the ten ought to have been separated from the fifteen. But then the defendants afterwards, and before the plaintiff could have maintained an action for coods sold and delivered, refused to take any ])art of the wine. I therefore think that the defendants ought to succeed in the present action, although it may be that the refusal to take the wine was not bondjide, but groinided upon the fact that th(j wine had fallen in price. Mule absolute. ^ W^$TERN WOOD v. WILLIAM BELL, JAMES RHODES, '*' AND FREDERICK MOSER. \v upon the tact that the In the Queen's Bench, January 12, 1856. {Reported in 5 Ellis Sp Bladburn, 772 ] l:^ In the Exchequer Chamber, May 2, 1856. ^ \ ^fv [Reported in 6 Ellis Sf Blackburn, 355.] ■H A SPECIAL case was stated in this action for the opinion of the court. ^ There were no pleadings, but only a Avrit issued on the 27th day of "^ March, 1855. The plaintiff claimed to recover certain property, or its i value, and damages -for its detention; said property consisting of an \^ >^ ^>4 unfinished steam ves.sel, called the Britannia, and certain materials V^ ^ ^ intended and prepared to be used in her further construction; also j >N parts of unfinished engines, in course of construction for tlu' Britan- ^S ^ nia. The defendants were assiixnces of William .Tovce, wlio became Vi 'l^ bankrui)t on the 11th day of December, 1854, being then engaged in r**"^ '^ ^ building the Britannia under a contract Avith the plaintiff. When W ^\ the action was brought, the defendants were in possession of the prop- erty in question, claiming title to it as part of the estate of Joyce, and they had refused to deliver it to the plaintiff. A few days before ^ 848 WOOD V. BELL. [CHAP. II. the bankruptcy, the unfinished parts of the engines before referred to were inventoried for the plaintiff as belonging to the Britannia, the inventory being made out by a person employed by the plaintiff for that purpose, Avith the assistance of Joyce. The remaining facts upon which the title to the property depended, are sufficiently stated in the judgment of the court. It was agreed that the court should draw such inferences of fact as a jury ought to do.^ The case was aro-ued in last Michaelmas terra. JBovill, for the plaintiff. The decisions have established, both among ship-builders and amongst lawyers, the doctrine that the person who has ordered a ship to be built may make payments in advance of the price, so as, in case the builder fails, to have the security of the un- finished ship if it be appropriated to him. Woods v. RusselP was the first case. There the bankrupt builder, Paton, had signed the cer- tificate to enable Russell, the person for whom he was building the vessel, to register her. Lord Tenterden, in delivering the judgment of the King's Bench, whereby it was decided that the property of the^ ship vested in Russell, relies much on this. He says:^ "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 conside^■ed as complete, and that, as the defendant would have to swear that he was the sole owner of the ship, the OAvnership should be considered his." In the present case, the punching of Wood's name upon the keel of the Britannia, and Joyce's assent to the making of the inventory, are strong evidence that Joyce agreed that the OAvner- ship should be considered Wood's. In Clarke v. Spence,* this court, in an elaborate judgment, acted upon the principle that the ship in building Avas appropriated at each stage. In the judgment of the court it is said that, as the construction put upon a ship-building con- tract in Woods v. Russell has probably been acted upon, since that decision, by persons engaged in ship-building, Ave feel that Ave ought not to depart from such construction." [Lord Campbell, C. J. Clarke V. Spencc,* if it is to be questioned at all, must be questioned in a court of error. But the defendants, no doubt, Avill seek to distinguish it.] The foct, on which the court there much relied, that the ship Avas built under the superintendence of a person appointed by the party ordering the ship, exists in the present case. In Goss v. Quinton,^ the ship was considered to be appropriated by facts not more clearly indi- cating an intention than those in the present case. Then, assuming that the plaintiff Avas entitled to the ship, he is 1 The statement of the case has been materially abbreviated. — Ed. 2 5 B. & Aid. 942. 3 5 B. & Aid. 947. * 4 A. & E. 448. 5 3 M. & G. 825. SECT, v.] WOOD V. BELL. 849 entitled to compensation in damages for the loss of her use. Bodley V. Reynolds/ Fletcher v. Taylcur.- /Shee, Serjt., contra. The ])rinciples laid down in Woods v. Rus- sell* and Clarke v. Spence* are not disputed. The question is, whether they are applicable to the present case. Where a contract provides that, as the ship reaches certain stages, instalments of the price shall be paid, it indicates an intention that the property in the unfinished ship shall vest as each of those stages is attained. Woods V. Russell and Clarke v. Spence decide that this intention is eftectual in law. But, unless the contract for the purchase of a chattel to be built amounts to a purchase of unfinished articles, the property does not vest till the chattel is complete. Atkinson v. Bell.^ The fact that the price was paid in advance is immaterial, unless it Avas part of the contract that the property should be purchased piecemeal. Mucklow V. Mangles,*' Laidler v. Burlinson,'' Blackburn on Contract of Sale, 160. In the present case, the prepayments stipulated for are to be made on fixed days, irrespective of the stage to which the vessel should have progressed. They cannot, therefore, be taken to indicate an intention to purchase the ship by ])ieces. [Erle, J. But assuming for the mo- ment that the law was as you state it, and that both Wood and Joyce knew it, would not their subsequent conduct amount to an appropria- tion of this unfinished vessel to Wood '?] In one sense it -would. In Wait u. Baker,* Parke, B., says: "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 may mean that both jjarties 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 position, suppose a carriage is ordered to be built at a coach-maker's ; he may make any one he pleases, and, if it agrees 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 that a particular carriage shall be deliv- ered. It would depend upon circumstances whether the })roperty passes, or Avhether merely the original contract is altered from one which would have been satisfied by the delivery of any carriage an- swering the terras of the contract, into another contract to su])ply the particular carriage, — which, in the Roman law, was called obliyatio certi corporis, where a person is bound to deliver a particular chattel, 1 8 Q. B. 779. 2 17 Com. B. 21. s 5 b. & Aid. 942. < 4 A. & !<:. 448. » 8 B. & C. 277, 282. 6 1 Taunt. 318. 7 2 M. & W. 602. 8 2 Exch. 1, 8. 850 WOOD V. BELL. [CIIAP. IL but where the property does not pass, as it never did by the Roman law, until actual delivery ; although the property, after tlie 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 different; here property does not pass until there is a bar- gain with res])ect to a specific article, and every thing is done which, according 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 ]\Ir. Butt uses it on the 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." In Laidler v. Burlinson,^ the bankrupt builder acted under the superintendence of Harris, one of the intended purchasers; in Atkinson v. Cell,^ there had been alterations made by a person of the name of Kay, who acted for the intended purchasers. So, in Mucklow v. Mangles,^ the painting of the name of the intended purchaser on the stern was evidence of an appropi'iation such as to make it an ohligatio certi corporis. Yet in no one of these cases did the property pass. The principles laid down by Parke, B., in Wait v. Baker,* are precisely those of Bayley, J., in Atkinson v. Bell,^ who says: "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 progress 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 afterw^ards have been delivered to a third person." The case of Woods v. Russell^ is distinguishable. The foundation 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 irrev- ocably appropriated to the person paying the money. That was a purchase of tlie 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 Avas 1 2 M. & W. 602. 2 8 B. & C. 277. ^ i Taunt. 318. * 2 Exch. 1. 5 8 B. & C. 282. 6 5 b. & Aid. 942. SECT, v.] WOOD V. BELL. 851 held to be to vest the general property in the purchaser. And in Laid- ler V. Biulinson,' the court lay down the same princi])les. At all events, the property in the loose materials cannot have vested. [Lord Camp- bell, C. J. The articles specified in the case had been, under the circumstances, appropriated to the Britannia, so as to be part of her. Whether the Britannia was the property of the plaintiff is a different matter.] Then, as to the special damages, they are not recoverable. Reid V. Fairbanks.- [Lokd Campbell, C. J. Whatever be the meas- ure of the damages in cases of contract, we cannot say that there may not be special damages in tort beyond the value of the chattel. Bod- ley V. Reynolds ^ is express; and we approve of it.] JBovill^ in reply. There Avas here an assent by both parties to take the property. A subsequent assent may convert what before was a mere agreement to sell into an actual sale ; and the property thereby passes. Rohde v. Thwaites,^ Blackburn on Contract of Sale, 127. Cur. adv. vult. Lord Campbell, C. J., now delivered judgment. The facts of this case, so far as they are material to the decision of the question before us, may be briefly stated as follows. Early in March, 1854, Joyce, a ship-builder and manufacturer of steam-engines for ships, contracted with Wood, the plaintiff, to build for him a screw steamer, according to specifications then rendered to him by one John Hall, for £16,000, ^^ayable in instalments of four several sums of £1000 each, on days named in four successive months; £3000 on a day rntniecTTn two months from the last of the four preceding, provided the vessel was then plated and her decks laid; £3000 on a day named in the second month from the last preceding, provided she was then ready for trial ; £3000 on a day named in three months from that last named, provided she was according to contract, and properly com- pleted ; and the fourth and last £3000 on a day named, two months from that last named, or by bill of exchange to be due at that time. Under this contract the building of the vessel commenced in the same ~1rnbnth of March, 1854, and Avas carried on to December in that year, ■when all work in Joyce's building yard ceased, he having become a bankrupt ; she being at that time on the slip, in frame, not decked, and about two-thij-ds or more ])lated. The instalments contracted for were paid in advance; the building of tEe^ vessel was carried on under the superintendence of Mr. Hall on behalf of the plaintiff; he examined the materials intended for her before they were used ; caused alterations to be made in them when he thought it necessary, and other materials to be substituted for such as he rejected. Soon after the building of the 1 2 M. & W. 602. -i 13 Com. B. 692. 3 8 Q. B. 779. * 6 B. & C. 388. 852 WOOD V. BELL. [CHAP. H. ship began, the plaintiff named her the Britannia; and she was thence- forth known by that name by Joyce and his workmen. In July, John Hall, by the plaintiff's direction, requested Joyce to have the plaintiff's name punched on her keel. Joyce knew that this was for the purpose of securing her to the plaintiff; and he consented to its being done. It was not, however, done at that time, because her keel was not for enough advanced for the purpose; it was, hoAvever, done in October by direction of Joyce, on a second requisition made on behalf of the plaintiff. In the month of November, the solicitors of the plaintiff pressed Joyce, whose affairs had become embarrassed, to make a formal assignment to him of the Britannia, and the engine and other fittings then in preparation for her, which he dechned to do, on the ground that he would thereby be signing himself and his creditors out of every thing he possessed ; but, at the same time, he admitted that she Avas the property of the plaintiff. Her steam- engines were designed on a peculiar plan to economize room; and.^,.,,^^^ engine room was adapted to this construction ; the -engine work was carried on contemporaneously by Joyce with the building of the vessel; the parts of the engines Avere made and marked so as to fit together ; they are easily recognizable as parts of the same whole ; and during the period in question none other Avere constructed by him. Iron plates and angle irons made for the Britannia, upon her designs, and pre- arranged for different parts of her, but not yet riveted to her, and plankings intended and prepared for her, but not fastened to her, Avere on Joyce's Avharf at the date of the bankruptcy. Upon these facts the first and most material question for our deter- mination is, whether the Britannia and the different descriptions of property before enumerated, or any and Avhich of them, belong to the plaintifi; or to the defendants, the assignees of Joyce? The answer to this question must depend on the construction of the contract between the parties. At the time at which it Avas made Joyce Avas free to make such contract as he should please in respect of his goods, and of the produce of his labor. We are to ascertain, therefore, Avhat in fact Avas the contract Avhich he did make. When a man contracts Avith another to make any article for him for a given price, the general rule is, in the absence of all circumstances from Avhich a contrary conclusion may be inferred, that no property passes in the chattel until it be completed and ready for delivery ; on the other hand, Avhere a bargain is made for the purchase of an existing ascertained chattel, the general rule, in the same absence of opposing circumstances, is, that the property passes immediately to the vendee ; that is, that there is at once a com- plete bargain and sale. But these general rules are both and equally founded on the presumed intention of the parties. If, in the first, there are attendant circumstances from Avhich the intention may be inferred that the property shall pass in the incomplete and groAving chattel as SECT, v.] WOOD V. BELL. 853 the m:mufactuvo of it proceeds, or even in ascertained materials from which it is to be carried to perfection, that intention will be effectu- ated ; and equally in the latter, if it appear that the parties intended to postpone the transfer of the property till the payment of the price or the performance of any other condition, such intention will be u])held in the courts of law. This principle we believe to be settled : and what- ever apparent difference may be found in the leading decisions on this point turns rather on the weight given to particular circumstances as evidences of intention, that is to say, in the ap])lication of the same principle to the determination of the cases, rather than to any dispute about the principle itself Previous decisions, therefore, are mainly useftil as serving to guide our judgment in estimating the weight of circumstances as evidence of intention ; and in this way they are of great importance ; because, where certain incidents have been held to disclose the intention to pass immediately, or to postpone the passino- of property, it may be presumed that succeeding judges will give a similar effect to the same incidents in succeeding contracts; and parties therefore, especially in trade contracts, will purposely introduce or withhold them, in order to give effect with more certainty to their intention, the oneway or the other. Cases therefore such as Woods v. Russell,^ Clarke v. Spence,^ Laidler v. Burlinson ^ (and many others might be named), were most -properly referred to in argument ; and we ought, for both the reasons we have just mentioned, carefully to adhere to whatever we find decided in them which is applicable to any con- tract which we may have to construe. Still it must be remembered, after all, that what we have to determine is a question of fact, namely, what upon a careful consideration of all the circumstances we believe to have been the contract into which the parties have entered. Look- ing then to the facts of this case, we find that the vessel was to be paid for by instalments, the four first on days named, and unconditionally, with no express reference to the stage in her building to which she might be advanced on the arrival of those days; nor are we enabled to say that the sums named for each payment would be commensurate with her probable progress on those days. The three next instalments are also made payable on days certain ; but the two first of these payments are made to depend on her having been carried on to certain specific stages in her building on those days respectively ; and this, as an indi- cation of intention, seems to us substantially the same as if the days had not been fixed, but the payments made to be due expressly when those stages had been reached : the payment of the third is made to depend on her being, on the day named, built according to contract ; and this is not inconsistent with her being the property of the plaintiff, even though she should not be in all respects built according to cou- 1 5 B. & Aid. 942. 2 4 A. & E. 448. » 2 M. & W. 602. VOL. I. 55 854 WOOD V. BELL. [CHAP. II. I tract ; the instalment may be made liable to detention in order to secure her being made so : the last instalment is made payable at a later day ; and no inference can be drawn either way from that circumstance. The differences we have pointed out as to the times of payment were relied upon by my brother Shee as distinguishing this case from Woods V. Russell 1 and Clarke v. Spence.^ We do not think the differences \ very material when looked on merely with a view of ascertaining the ' intention of the parties ; and we attach the less importance to them, because the former case was not decided upon the inference to be drawn from this incident in the contract; and in Clarke v. Spence, it is ad- mitted that this incident, taken alone, rather shows an appropriation of the particular parts so paid for, than the transference of the gtftieral property at any time before the whole vessel is completed. The next circumstance was considered in Clarke v. Spence to be more material, namely, that the building was to be carried on under the superintend- ence of an agent of the plaintiff's, who was to decide on the introduc- tion of all materials into her. It certainly could not be contemplated that he was to superintend the building of more than one vessel under this contract, or that he was to superintend the building of any vessel which Joyce could at his pleasure transfer to another person ; still it must be admitted that this is by no means conclusive as to the ques- tion of property ; it may be that it would have been a breach of contract not to deliver this specific vessel to the plaintiff as soon as she was com- pleted, and yet the property, until she was completed, might have re- mained in Joyce. But two facts still remain. Joyce, at the instance of the plaintiff, punches his name on her keel, expressly for the purpose of securing her to the plaintiff; and, although he refuses, after this, to exe- cute a formal assignment of her to the plaintiff, he at the same time admits her to be the plaintiff's property. Both these circum- stances occur when Joyce was the master of his property, and appear to us of the greatest importance ; they tlirow a light on the preceding cir- cumstances, and show how they are to be understood, in so far as they were in themselves ambiguous ; and they would be all but conclusive evidence against Joyce, as direct recognitions that the property in the vessel had passed from himself to the plaintiff. If it be said that the request on the part of the plaintiff to have a formal assignment is evi- dence of an admission on his part that the property had not yet passed to him, the answer is that it was not unnatural, or inconsistent with the claim he now sets up, that he should, under the circumstances, desire some more direct and producible evidence of his title than that on which he must otherwise stand. And, if it be said that Joyce's refusal to execute the assignment detracts from the weight of his admission, because inconsistent with it, the answer is, that it is more fairly attrib- 1 5 B. & Aid. 942. 4 A. & E. 448. SECT, v.] WOOD V. BELL. 855 utable to the unprincipled desire of a failing man to cling to that which he may yet look to as the means of raising money while in his posses- sion, and, as he may suppose, of staving off his entire ruin. The admission referred to is a circumstance exactly of the same kind as that on which the decision in Woods v. RusselP mainly turned, namely, Paton's signing the certificate to enable Russell to have th*e ship regis- tered in his own name. On this Abbott, C. J., remarks : " In order to register the ship in Russell's name, an oath would be requisite that he was the owner ; and Avheu Taton 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?" And when Joyce tells the solicitors of the plaintiff that the ship is the prop- erty of the plaintiff, can he, or the assignees who claim under him, be heard to allege the contrary as to a fact which must have been entirely within his own knowledge? On a review of all these circumstances, which are all consistent with each other, and Avhich miitually strengthen each other, we have come to the conclusion fhat the property in the Britannia passed to the plaintiff as she advanced in her progress towards completion ; and, if this be so, it was scarcely contended but that the same decision ought to be come to with resjDCct to the engines, plates, irons, and plankings designed and in a course of preparation for her, and intended to be fixed in her. The question as to these last seems to be governed by the decision as to the rudder and cordage in Woods v. Russell. In the course of the argument we intimate our opinion that special damage beyond the mere value of the property might be recoverable ; and we remain of that opinion. Our judgment, therefore, will be for the plaintiff, with the usual costs. Judgment was afterwards entered that the plaintiff do recover against the defendants " the said ship Britannia, the said parts of en- gines, the said iron plates, and angle irons, and the said j^lanking and timbers, and also 2200?., the special damages by the said Western Wood sustained, and ascertained by the said," &c. (an arbitrator), " and also," &c. (costs). The defendants suggested error on this judgment, in the Court of Exchequer Chamber ; Avhich the plaintiff denied. The case was now argued. Shee, Serjt., for the party suggesting error (the defendants below). First : as to the ship. . The defendants do not dispute the principles laid down in the court below ; but they deny the aj)plioability to the particular facts of this case. The general rule is that the property in 1 6 B. & Aid. 942. 856 WOOD V. BELL. [chap. II. an article made to order does not pass till the article is complete ; but it may pass before, if the parties agree that it shall. The question is, whether this case is within the general rule or the exception. The general rule prevailed in Mucklow v. Mangles/ though there the name of the intended purchaser had, as here, been put on the ship : and Abbott, C. tr., in Woods v. Russell," considered that circumstance im- material ; and he decided Woods v. Russell, on grounds not existing here. The ship there was chartered by the purchaser ; and the builder was a party to the registration in the name of the purchaser. The case, as is said in the judgment, did not depend on the payment of the instalments. And in the 5th edition of Abbott on Shipping (the last published in the author's lifetime), p. 44, the decision is not put on that footing. Clarke v. Spence ^ was decided mainly on the authority of Woods V. Russell, though the only circumstance common to the two cases seems to have been the payment of instalments, and the appoint- ment by the purchasers of a person to superintend the work. In Laidler v. Burlinson,* the Court of Exchequer decided that the prop- erty did not pass, under the particular circumstances of that case ; and the decision, perhaps, does not go far towards determining the present case. But it cannot be collected from the facts here that any intention existed of passing the property in the vessel while in an incomplete state. The word " intention " is always liable to ambiguity : the safe course is to rely only on an intention executed. Ellershaw v. Magniac.^ Supposing the ship itself to have passed, the next question is as to the materials which had not been affixed to the ship. All that appears is that the builder intended to use them for the ship : he did not in fact so use them : nor if they were not approved of, could he have done so. In Woods v. Russell, the rudder and cordage seem to have been bought for the ship with the intention of making them a part, eo instanti. In Baker v. Gra}^,^ the builder agreed with the intended purchaser that, if the builder failed to complete the ship according to the ao-reement, the purchaser might use such of the builder's materials as should be applicable to the purpose. The builder not having com- pleted the ship according to contract, the purchaser took possession of the incomplete ship, and also selected some of the builder's materials, a part of which he placed in the carcass of the ship ; but before he had used any, the builder became bankrupt: and it was held that the assio-nees were entitled to the materials. Tripp v. Armitage "^ is to the same eftect. [Jervis, C. J., referred to Goss v. Quinton.* ] As to the question of special damage. The damage sustained by the plaintiff is the value of the ship at the time of the conversion. 1 1 Taunt. 318. 2 5 B. & Aid. 942. » 4 A. & E. 448. 4 2 M. & W. 602. 5 6 Exch. 570, note. « 17 Com. B. 462. 1 4 M. & W. 687. 8 3 M. & G. 825. SECT, v.] WOOD V. BELL. 857 Reid V. Fairbanks.^ It is not necessary to dispute the authority of cases in wliieh si)ecial damage is stated and proved ; such as Davis v. Oswell ^ and Bodley v. Reynolds.'* Here, there being no pleadings, no special damages can be understood to be claimed ; and they cannot be recovered unless claimed. Moon v. Raphael.^ Nor, according to general principles, can the loss of part of contingent and remote profits form part of the damages recoverable. In Sedgwick on the Measure of Damages, p. 78 (ch. 3), it is said, after referring to Flureau v. Thorn- hill:'^ "Both the English and American courts have generally adhered to this denial of profits as any part of the damages to be compensated; and that whether in cases of contract or of tort." Bovill, contra (for the plaintiff below). First: the plaintiff was en- titled to recover in respect of the body of the ship. (On this point he was stopped by the court.) As to the materials which were not fixed. In Woods v. Russell,' the cordage and rudder were not fixed. [Bramwell, B. If you defend the judgment below, as to the body of the ship, on the principle which seems there adopted, of an intention executed and irrevocable, you Avill find it difficult to apply that to the materials which were not fixed.] The goods were irrevocably appropriated as soon as one party hail selected them for the purpose, and the act of selection had been adopted by the other party. Blackburn on the Effect of the Contract of Sale, 126, 129. Joyce could not have sold these materials to a third party. [Bramwell, B. Suppose the builder had a forest of timber, and marked certain grooving trees.] Those would not be chattels at all. [Ai>DERS0x, B. Suppose a bulk of timber, and half of it to have been actually used in the building of the ship, the builder intending to use the rest in the same way.] All would probably be held to pass. [Cresswell, J. One contract only is set up.] There is a fresh contract at the time of each assent. [Cresswell, J. At what price?] At the price actually paid. [Cresswell, J. That will apply to the ship only.] The inventory furnishes evidence of the conduct of the parties from which the same' inference arises as in the case of the ship. As to the special damage. The objection to the absence of allega- tion does not arise, there having been no record at all. The question is, whether the facts show such damage. And it is plain that the plaintiff, if he had received the ship at the time when he was entitled to it by the contract, might have earned a considerable sum by em- ploying it. [Jervis, C. J. Certainly, in an action for non-delivery of a plank, you would not be confined to the value which it might bear 1 13 Com. B. G92. '-i 7 Car. & P. 804. 3 8 Q. B. 779. * 2 New Ca. 310. 5 2 W. Bl. 1078. 6 5 b. & Aid. 942. 858 WOOD V. BELL. [CHAP. II. at the time of the verdict : it might have rotted in the mean while.] The plaintiff is to recover all he has lost by the conversion. Jervis, C. J. I think this case should go back to the arbitrator. In substance, the judgment below is reversed. I agree with the court below that the ship passed. That question is merely one of fact ; as well put in Mr. Blackburn's useful work,^ the property does not pass merely by its being manufactured, but only when it is the intention of the parties that it shall pass. And here I think the facts show such an intention. I further concur with the details of the judgment below, so far as the ship is concerned. But I do not think that, as the court below seems to have held without much consideration, the unfixed materials destined for the ship did pass. They do not appear to have been circumstanced exactly as the rudder and cordage were in Woods V. Russell,^ where they had become, it seems, a part of the ship. Here they are merely provided for the ship. If the circumstances in Woods V. Russell were the same as here, I should doubt whether the de- cision in that case was right ; and I should say the same as to Goss v. Quinton.^ The question is, What is the ship ? not, What is meant for the ship ? I think those things pass which have been fitted to the ship, and have once formed part of her, as, for instance, a door hung upon hinges, although afterwards removed for convenience. I do not think the circumstance that materials have been fitted and intended for the ship, makes them part of the ship. The consequence is that the arbitrator has assessed the damages at 2200/. on an assumption which we consider wrong, as he will have included many items in respect ot which the plaintiff is not entitled to damages. The case may as well stand over for a few days ; and in the mean while a schedule may be made out, showing what each party claims. Pollock, C. B., Alderson, B., Ckesswell, J., Crowder, J., Willes, J., and Bramwell, B., concurred. In the following Trinity term (June 2, 1856), before Jervis, C. J., Pollock, C. B., Cresswell, Williams, Crowder, and Willes, JJ., and Martin and Bramwell, BB., the case was resumed ; Shee^ Serjt., appeai-ing for the defendants below, and Bovill for the plaintiff below : when a discussion took place as to the principle upon which the dama- ges were to be assessed. The Court said that, the judgment being wrong as to a part and the damages being entire, the regular course was to order a venire de novo; that consequently here the case ought to go back to the arbitra- tor ; and, as the plaintiff was entitled to recover in respect of the ship, but not in respect of the unfixed materials, the arbitrator would assess the damages, if any, recoverable in respect of the shijD only. But they declined giving any more specific directions as to the damages. 1 On the Effect of the Contract of Sale, Part II. ch. 2. 2 5 B. & Aid. 942. a 3 m. & G. 825. A ' ^ SECT, v.] ^^^ ^^AlDItlii^^JbHN^^^^ /^//%C^^ JAMES WILSIIER ALDRmGE w. PATRICK JOUXSOnT*^ '^ ^ /'V*: >»/^ Z-- In the Queen's Bench, June 5, 1857. [Reported in 7 JE^/ZiS ^ Blackburn, 885.] ^ , ^^ /^^, -»** This was an action brouirht bv the plaintiff to recover ceruiin adoas ■(■■U^/if^ This was an action brought by the plaintiff to recover certain gdoas alleged to be his property, and to have been detained by the defend- ant; or the value of such goods, and damages for their detention; and also to recover damages for the wrongful conversion of the same goods by the defendant. The defendant pleaded to the whole declaration : first, not guilty ; and, secondly, that the goods were not the plaintiff's property. On the trial before Erie, J., at the sittings in London in last Hilary term, a verdict was found for the plaintiff, by consent, for the whole amount of his claim, and costs 40s., subject to the opinion of the court upon the following case: — The plaintiff is a corn-merchant at Witham, in Essex; and the defendant is the official assignee of the estate and effects of one James Watling Knights, a bankrupt, who, up to the time of his bankruptcy, as hereinafter mentioned, carried on business at Ipswich in Suffolk as an auctioneer and seed-merchant. On 12th September, 1856, the plaintiff took thirty-four bullocks to Ipswich for the purpose of having them sold by auction by the said J. W. Knights, and instructed Knights to sell them if they should fetch a certain price. Tliey did not, however, fetch that price, and conse- quently were bought in by the plaintiff. Knights then informed the plaintiff that he had a quantity of barley in his granary, and proposed to exchange a portion of it for the plaintiff's bullocks. The plaintiff went and looked at the barley, which consisted at that time of one large heap containing between 200 and 300 quarters. He weighed a bushel of it for the purpose of ascertaining its quality, and took a sam- ple away with him; but no bargain was made on that day; and the bullocks were sent to Colchester the same evening. On the following day (13th September), the plaintiff and Knights were at Colchester market ; and the plaintiff sold two of his bullocks there ; after which a conversation took place, between the plaintiff and Knights, upon the subject of the exchange proposed on the previous day, which resulted in the following arrangement between them : — It was agreed that Knights should have the remaining thirty-two bullocks at the price of £6 apiece, and that the plaintiff should take in exchange 100 quarters of the barley wliich he had seen at Ipswich the ^^^ 860 ALDRIDGE V. JOHNSON. [CHAP. II. day before, at the price of £2 3s. a quarter. The difference between the value of the barley and of the bullocks, viz., £23, was to be paid in cash by the plaintiff to Knights. It was further agreed that the plain- tiff should send his own sacks to Ipswich on the following Monday (15th), and that Knights should fill the sacks with the barley, take them to the railway, and place them upon trucks, free of charge, to be conveyed to the plaintiff at Witham. Something was also said about a sura of £20 7.s., which the plaintiff owed Knights for some goods which he had previously purchased ; but it was agreed that this trans- action should not interfere with the arrangement which was then being made. As soon as this arrangement was effected, the plaintiff made a note of it in his pocket-book, and the thirty-two bullocks were then and there delivered by the plaintiff to Knights. On the following Monday, pursuant to the above arrangement, the plaintiff sent to Ipswich 200 sacks (being a sufficient number to contain the whole 100 quarters of barley). Some of these sacks were marked in the plaintiff's name; and they were all duly received by Knights: but the barley was not delivered or forwarded to the plaintiff. On 16th September the plaintiff wrote to Knights for a sample of the barley, which was accordingly sent. On 17th September, Knights sent one of his men named Abel Smith, to fill 155 out of the 200 sacks with barley from the above-mentioned heap ; and accordingly Smith proceeded to the granary, and, with the assistance of other persons, filled 155 of the sacks with bnrley from the heap (each sack containing one coomb, or half a quarter). After the sacks had been filled, there was left in the heap some seventy or eighty quarters ; so that the quantity put into the sacks was only about half the bulk. By the further direction of Knights, Smith applied, the same day, at the railway station at Ipswich, for some trucks, to convey the 155 sacks to the plaintiff at Witham, but was not able to obtain any. On the following Saturday (20th), the plaintiff again saw Knights at rColchester market, and complained to him of the non-delivery of the barley. He said he was sorry that he bad not sent it; but that he had been very busy and unable to get trucks, and that it should be sent on the Monday following without fail. On the following Monday morning (22d), Knights gave directions to a clerk in his employ, named Mulley, to get some trucks, and have the 155 full sacks, which were then standing in the granary, put upon them to be sent to the plaintiff. Mulley accordingly applied for the trucks, but without success. After giving these directions. Knights himself went up to London, saw the plaintiff in Mark Lane, and told him that the barley would be put upon the rail that day. In the course of the same morning, the })laintiff had sent to Ipswich a person in his employ named Church, to demand of Knights the 100 quarters of barley. Accordingly, Church called at Knights' about J SECT, v.] ALDRIDGE V. JOHNSON. 861 noon, and found that he was away from homo, but saw Mullcy, and demanded tlie barley of him. Mulley said that he couhi get no trucks to put it upon, and that Church had better try liimsclf to get some' that, if lie could procure any, the barley should be put upon the rail that afternoon ; but that, at any rate, it should be forwarded the first thing the next morning. After this Church returned to Witliam. While the above communication was passing between Mulley and Church, the former received from Kniglits a telegraphic despatch in the followinf; terms: — If you have not put oats on rail, do not, nor allow more barley to go if applied for. Private. The barley mentioned in the said despatch was the same barley in respect to which Knights had given Mulley directions in the morning; but Mulley did not mention to Church the contents of the despatch, nor the fact that he had received any communication from Knights. The barley was not forwarded to the i^laintifi'the next day, but re- mained in the sacks till the following Wednesday ; when Abel Smith, by Knights's directions, turned it all out of the sacks again on to the I heap from which it was taken, so as to be undistinguishable from the rest of the heap. On Thursday, 25th September, in consequence of information which the plaintift'had received, he Avent himself to Ipswich, and saw Knights at his own house. Pie remonstrated with him for not sendinsr the barley ; and after some conversation. Knights stated that he was sorry to say he was in trouble, and had a notice of bankruptcy served upon him. On 29th September, Knights filed a petition for arrangement un- der the 211th section of the Bankrupt Law Consolidation Act, 1849.^ And at the first sitting which Avas held in the matter of that petition, on the 4th November folloAving, Knights was adjudicated a bankrupt; and the defendant was then named and made the ofiicial assignee of his estate and effects. On 18th November this action was commenced, the plaintiflf having previously demanded the barley of the defendant, and tendered to him the diiFerence between the price of the barley and the price of the bullocks. The barley remained at Knights' granary until Christmas, when it was removed. '^ Jiittleston, for the plaintiff. The first question is whether, before the bankruptcy, the property in the barley passed to the plaintifi"; secondly, whether, if so, there was a conA'ersion by the defendant. There is no question as to apparent possession, the bankrupt not having had pos- session by the consent of the plaintiff. As to the first question, the j)laintift' contends that all the hundred 1 Stat. 12 & 13 Vict. c. lOG. '^ The statement of this case has been somewhat abbreviated. — Ed. 862 ALDRIDGE V. JOHNSON. [CHAP. II. quarters passed. The principal part of the consideration, the bullocks, was received by the bankrupt : and barley was delivered into the plain- tiff's sacks in pursuance of the bargain. It is true that all the barley was not so delivered : but what was delivered was taken from a specific heap ; and that sufficiently defined the identity. [Crompton, J. Which hundred quarters was the plaintiff to have ?] Whatever hundred the bankrupt might put into the plaintiff's sacks. [Crompton, J. That might be any hundred. Lord Campbell, C. J. Really your propo- sition as to the whole is not tenable.] The plaintiff then insists only on the portion put into the 155 sacks. By the arrangement, the plain- tiff was to send his own sacks : he does send them ; and the bankrupt delivers the barley into them, and does all that is in his power to send them off. That trucks could not be found at the time to despatch the sacks, does not render this the less a delivery. [Lord Campbell, C. J. Suppose the plaintiff had been present, and had, after the barley was put into the sacks, sealed up the sacks, without taking them away.] No doubt the property would then have passed ; and what actually took place was quite as effectual. [Lord Campbell, C, J. Certainly the property may be in the vendee, though it is in the manual posses- sion of the vendor.] That is so. In Rohde v. Thwaites ^ a vendor sold twenty hogsheads of sugar out of a larger quantity ; he delivered four and filled up and appropriated other sixteen, desiring the vendee to take them away ; the vendee said that he would take them as soon as he could ; and, in an action by the vendor for goods bargained and sold, it was held that the property in the sixteen passed, though they were not removed from the premises of the vendor. [Erle, J. That case would be exactly in point, if there it appeared that there remained a duty, on the part of the vendor, to forward. Cromptojs", J. You will say that the sacks were in the bankrupt's hands in order that he might perform a certain duty, not that he might otherwise meddle with them.] Yes. [Lord Campbell, C, J. You say that his doing more was a wrongful conversion.] It was so. There was no question as to the bankrupt's original intention to appropriate ; for he gave orders to send the sacks away by the railway. It is immaterial that there was no tender before the bankruptcy. But indeed no tender was necessary at all : there was no lien. Nor did the bankrupt or defendant profess to hold the barley on the ground that it might be retained till the money was paid. The assignee can be in no better position than the bank- rupt. Then as to the conversion. [Crompton, J. When you demanded the barley of the assignee, what was he to do? How could he separate your barley from the rest ? You have a case against the bankrupt ; but how could the assignee deliver?] The bankrupt could not, by hav- 1 6 B. & C, 388. 1 SECT, v.] ALDRIDGE V. JOHNSON. 863 ing mixed up the plaintiff's property with his own, gain the right of retaining it ; nor can his assignee be in a better position. [Crompton, J. The assignee is not liable for the tortious act of the bankrupt. Ekle, J. Where a party mixes up another man's property inseparably with his own, the consequence is that he loses his own. Lord Camp- bell, C. J. Yes, unless the portion mixed up be quite insignificant. Ekle, J. Then if the plaintiff was entitled to take the whole from the bankrupt, he would be entitled to take it from the assignee.] Those consequences would follow. [Crompton, J. I find it stated that the whole was removed ; that must mean a removal by the assignees.] That is enough to constitute a conversion. But, further, there is at any rate no defence as to the sacks. [Cromp- ton, J. Surely that point is disposed of by my brother Coleridge's ordei".^] Then that is not insisted on. Prentice^ contra. The barley placed in the sacks was taken from the bulk, of which an unascertained hundred quarters had been sold : the particular portion placed in the sacks was not sold. [Crompton, J. The property would not pass if any thing remained to be done by the vendor.] In order that the separation of the particular quantity may effect a transfer of the property there must be an assent by the vendee; the reason of which is, that the vendee is entitled to see that the por tion separated corresponds with the bulk. [Erle, J. If the portion is separated in conformity with the contract, surely the property in that passes.] The vendor might have substituted another portion be- fore the sacks arrived at the railway : till then the property did not pass, by the agreement. In Blackburn's treatise on the Effect of the Contract of Sale, p. 1*26, the law is thus stated : " The specific goods miist be agreed upon ; that is, both parties must be pledged, the one to give and the other to accept those specific goods." Here, though the vendee did assent to the goods being placed in his sacks, the property did not pass till he had inspected the barley. Holroyd, J., in Rohde V. Thwaites,^ makes not only the selection by the vendor essential, but also the " adoption of that act " by the vendee. Suppose the goods had been burnt. [Erle, J. That was the test in my mind : I think the plaintiff would have had to bear the loss, according to the prin- ciples laid down in Rugg y. Minett.*] In p. 128 of Mr. Blackburn's treatise, the final a])propriation which transfers the property is stated to take place when the party who is to do the first act makes the elec- tion ; the property being made certain by such election ; for which Sir Rowland Hey ward's case* is cited. Here the act to be done was de- spatching the barley. [Erle, J. Mr. Blackburn has expressed himself with perfect accuracy. He says: "Where, from the terms of an exec- utory agreement to sell unspecified goods, the vendor is to despatch the 1 It has not been deemed necessary to give the facts as to this order. — Ed. 2 6 B. & C. 393. 3 11 East, 210. * 2 Rep. 35 a. 864 ALDRIDGE V. JOHNSON. [CHAP. II, goods, or to do any thing to them that cannot be done till the goods are appropriated, he has the right to choose what the goods shall be j and the property is transferred the moment the despatch or other act has commenced, for then an appropriation is made finally and con- clusively, by the authority conferred in the agreement."] In the case of goods sent by a carrier, the delivery to the carrier is the transfer. The necessity of commencing the act agreed upon, in order to fix the appropriation, appears by the two cases cited by Mr. Blackburn, Fra- gano v. Long ^ and Atkinson v. Bell.^ Here the act agreed upon was the sending : nothing short of that fixed the property. Wallace v. Breeds ^ illustrates this. Further, the contract was indivisible : putting a portion into the sack could not transfer the goods sold. [Lord Camp- bell, C. J. Do you say none passed ?] Yes : the plaintift' might have refused to receive a part. [Crompton, J. Is there not evidence that the plaintiff" assented to the appropriation ? Did he not know of it ? Lord Campbell, C. J. May there not be an anticipative assent, " I will take to what you put into the sacks " ?] Then, next, there was no conversion by the assignee. If there was any conversion, it was completed by the bankrupt : after that, his as- signee could not convert. [Lord Campbell, C. J. That is not so. If a man takes my horse, he converts it : if he hands it over to another, who refuses to give it up to me on demand, that other converts also. If the bankrupt had divested the property from the plaintiff", it would be otherwise : but he has only done a wrongful act. Here the assignee denies the plaintiff''s claim to any part ; and he is right in claiming all, if the former part of your argument be correct.] No distinct act of con- version by the assignee is shown. Bittleston., in rej^ly, was stopped by the court. Lord Campbell, C. J. In cases of this sort there often is great doubt and great difficulty ; but the present case seems to me on both points free fi-om all doubt and difficulty. I think that no portion of what re- mained in bulk ever vested in the plaintiff". We cannot tell what part of that is to vest. No rule of the law of vendor and purcha.ser is raqjg clear than this : that, until the appropriation and separation of a partic- ular quantity, oi' signification of assent to the particular quantity, the property is not transferred. Therefore, except as to what was put into the 155 sacks, there must be jiidgment for the defendant. It is equally clear that, as to what was put into those sacks, there must be judgment for the plaintiff". Looking to all that was done, when the bankrupt put the barley into the sacks, eo instanti the property in each sackful vested in the plaintiff". I consider that here was a priori an assent by the plaintifiT, He had inspected and approved of the barley in bulk. He sent his sacks to be filled out of that bulk. There can be no doubt of 1 4 B. & C. 219. 2 8 B. & C. 277. 13 East, 522. SECT, v.] ALDRIDGE V. JOHNSON. 865 his assent to the appropriation of such bulk as should have been put into the sacks. There was also evidence of his subsequent a])propria- tion by his order that it should be sent on. There remained nothing to be done by the vendor, who had appropriated a part by the direction of the vendee. It is the same as if boxes had been filled and sent on by the bankrupt, in which case it cannot be disputed that the property would pass ; and it can make no difference that the plaintitF ordered the sacks to be forwarded by the vendor. As to the question of conversion, the property being in the plaintiff, he has done nothing to divest him- self of it. It is not like the case of confusion of goods, where the owner of such articles as oil or wine mixes them with similar articles belonor- ing to another. That is a wrongful act by the owner, for which he is punished by losing his property. Here the plaintiff has done nothing wrong. It was wrong of the bankrupt to mix what had been put into the sacks with the rest of the barley ; but no wrong has been done by the plaintiff. That being so, the plaintiff's property comes into tlie hands of the defendant as the bankrupt's assignee. If the defendant had a lien, he does not detain the barley on that ground. He denies the plaintiff's property altogether, and cannot therefore claim a lien. He claims all the barley, and claims all of it as being the property of the bankrupt. He therefore has converted the plaintiff's property. Coleridge, J. I am of the same opinion. I think the property in that poi'tion which was put into the plaintiff's sacks passed to the plain- tiff. That portion was subtracted by the vendor from the bulk, in part performance of the contract; and there is abundant evidence of appro- priation, as far as the bankrupt could appropriate. There is also abundant evidence of assent by the plaintiff. He had before assented to the quality of the bulk ; and, after the portion was put into the sacks, he desired that they should be sent to him. There is thus evidence of the completion of the act of appropriation. Atkinson v. Bell ^ is a very different case. There the goods were in the coui'se of being made ; and many alterations had taken place; and the purchaser had never done any act by which he adopted the jiarticular thing made. Here is a complete appropriation. As to the conversion, notliing that either the bankrupt or the assignee could do without the plaintiff's consent could divest the plaintiff's property ; and the removal is abundant proof of the conversion. Ekle, J. I also am clearly of opinion that the property in what was put into the sacks passed to the plaintiff. It is clear that, where there is an agreement for the sale and purchase of a particular chattel, the chattel passes at once. If the thing sold is not ascertained, and some- thing is to be done before it is ascertained, it does not pass till it is ascertained. Sometimes the right of ascertainment rests with the ven- CD dee, sometimes solely with the vendor. Here it is vested in the vendor only, the bankrupt. When he had done the outward act which showed I 8 B. & C. 277. 866 ALDRIDGE V. JOHNSON. [CHAP. II. which part was to be the vendee's property, his election was made and the pi-operty passed. That might be shown by sending the goods by the railway ; and in such case the property would not pass till the goods were despatched. But it might also be shown by other acts. Here was an ascertained bulk, of which the plaintiff agreed to buy about half. It was left to the bankrupt to decide what portion should be delivered under that contract. As soon as he does that, his election has been indicated ; the decisive act was putting the portion into the sacks. If it were necessary to rest the decision on the assent of the vendee in addition to this, I am of opinion that there is abundant evidence of such assent ; for the vendee demanded, over and over again, the portion which had been put into the sacks. I think Mr. Blackburn has expressed the law with great clearness and accuracy. He first takes the case where one party appropriates and the other assents, and then the case where, by virtue of the original agreement, the authority to appropriate is in one party only. As to the question of conversion, I am of opinion, on the grounds which have already been stated, that the assignee has converted the plaintiff's property. Crompton, J. As to the first point, respecting the part not put into the sacks, I never felt any doubt. As to the second point, I do not feel so clear as the other members of the court, though I do not say that I disagree with them. It is suggested that the plaintiff said to the bank- rupt, in effect, I will buy wliat you will put into the sacks. After that was done, I much doubt whether the bankrupt could meddle with the sacks and turn out what had been put in. It may be that the bargain was as my lord and my brother Erie put it, that the plaintiff would take what the vendor should put in. On that view, when the barley was put into the sacks it was just as if it had been sent by a carrier. Also I agree that, if the plaintiff sent for the barley after it was in the sacks, that would be an assent to the appropriation. But I doubt whether, as the case is stated, it is quite clear that the plaintiff knew that the barley had been put into the sacks: if he did, there was clear evidence of assent. Then it is argued, on behalf of the defendant, that the contract was entire, and that either all or none of the barley must pass. I do not agree to that. There was an apj^ropriation of so much ; and so much passed. As to the conversion, the law is, beyond ques- tion, as my lord puts it ; a prior conversion does not prevent a subse- quent conversion. The true owner may waive the first conversion. It is difticult to say what the assignee was to do. But I think that, if he removes all, it is a conversion of the part which belongs to the plaintiff: if he sells all, an action for money had and i«eceived may be brought in respect of that part. I think therefore that, as he has removed all, he has been guilty of a conversion. Judgment for plaintiff as to the part put into the sacks: as to the residue^ judgment for defendant. SECT, v.] LANGTON V, HIGGINS. 867 ELIZABETH LANGTON y. HIGGINS In the Exchequer, May 5, 1859. [Reported in '4 Hurlstone ^' Norman, 402.] The first count of the declaration was in detiniie for cases and bottles of oil of jDeppermint. The second count was in trover for the same goods. Pleas. — First: not guilty. Secondly: that the goods were not, nor were any or either of them, the plaintiff's, as alleged. At the trial before Martin, B., at the London sittings after last Hilary term, the following facts appeared : The plaintiff was a Avhole-. sale druggist in London, and the defendant Avas a wholesale druggist at Liverpool. For many years past the plaintiff had been in the habit of contracting with one Carter, a fanner at Leverington in Cambridge- | shire, for the purchase of all the oil of 2)e]ipcrmint to be distilled from ^ the crop of peppermint which might be groAvn on his farm in that year. The contracts were made in the early part of the year, and Carter obtained from the plaintiff advances in respect of them. On the 27th January, 1858, the plaintiff and Carter entered into the fol- lowing agreement : — London, Jan. 27, 1858. The undersigned, Frederick Carter of Leverington, agrees to sell to Messrs. William Langtoii & Co., of London, the whole of his crop of oil of peppermint grown in the year 1858, at the rate of 21s. per lb. But should the said crop amount to 250 bottles of oil, he agrees to deduct Qd. per lb. from the said 21s. and above that quantity Is. per lb., provided the Messrs. L.mgton find the said 21s. per lb. is more than they can reasonably afford. This agi'eement is made upon the condition that Messrs. Langton & Co. ad- vance the said Frederick Carter £1000 on account of the above-named crop, and pay the amount due at the time of delivery by two, four, and six months' bills. Fred. Carter. Previously to this agreement advances had been made by the plain- tiff to Carter, to the extent of £310, and on the day the agreement was signed Carter gave to the plaintiff a bill of sale of his live and dead stock, crop of oil of pe23])enuint, crops of corn, furniture, &c., as a security for the £310, and further advances to the extent of £1000. It was usual for the plaintiff to send to Carter bottles to be filled with the oil of peppermint, and, in September, Carter ajijilied for the bottles and some gut-skin to cover them. The ])laintiff accordingly sent him two gross of bottles Avith gut-skin. On the 8th of October, Carter wrote to the plaintiff, " We shall lose no time in getting the oil off." It was the business of Mrs. Carter to put the oil of peppermint in the 868 LANGTON V. HIGGTNS. [CHAP. II. bottles, which, as on previous occasions, she did in the following man- ner : She first weighed the empty bottles and then filled them with the oil. She then weighed them again, having previously marked the tare and weight of each bottle on a piece of paper pasted on it. She then marked the gross weight of the oil and the bottle, and added them together on the same paper. She then subtracted the tare and placed the net weight and the number of the bottle upon the paper and laid the bottle aside. After the bottles were filled, by Carter's direction, she made out invoices and address cards, which she placed in Carter's desk. She Avas engaged in these operations about nine days, and finished on the 29th of September. On all previous occasions, the bottles, Avhen filled, were placed in cases and delivered to a carrier to take to the railway station, to be forwarded to the plaintifi" in London. Carter left his home on the 15th of October, and has not since been heard of The defendant purchased of Carter fifteen cases of the oil of peppermint, nine of which were delivered to him at Liverpool on the 16th of September, and the others on the 23d. It was submitted on behalf of the defendant that under these cir- cumstances the property in the oil of pej^permint did not vest in the plaintiff. The learned judge directed a verdict for the plaintiff for £626 15s., reserving leave to the defendant to move to enter a nonsuit, or to reduce the amount to the value of the bottles. Edward Jcones, in the present term, obtained a rule nisi accord- ingly ; against which Atherton and Quain showed cause. The property in the oil of pep- permint vested in the plaintiff by the agreement of the 27th January, 1858. That is an absolute sale to him of all the oil of pepj^ermint grown on the vendor's farm in that year. It will perhaps be argued that, as the agreement was made in January, and according to the ordinary course of events the oil of peppermint would not be in exist- ence until the September following, no property in the particular commodity passed by that contract. But at all events, what was done in September, coupled with the agreement, was sufiicient to pass the property. At the vendor's request the plaintiff sent his bottles which were filled with the oil of peppemiint, and invoices were made out to him. That is a sufiicient appropriation. In Aldridge v. Johnson,^ the plaintiff agreed with K, to purchase of him 100 out of 200 quarters of barley, which the plaintiff had seen in bulk and approved of, and he paid i^art of the price. It was agreed that the plaintiff should send sacks for the barley, and that K. should fill the sacks with the barley, take them to a railway, place them upon trucks there free of charge, and send them to the plaintiff. The plaintiff sent sacks enough for a part only of the one hundred quarters; those K. filled, and he also 1 7 E. & B. 885. I SECT, v.] LANGTON V. HIGGINS. 869 endeavored to find trucks for them, but was unable to do so. The plaintiff repeatedly sent to K. demanding the barley. K. finally de- tained it, and emptied the barley from the sacks into the bulk. It was held by Lord Campbell, C. J., Coleridge, J., and Erie, J., that the por- tion of the barley piit into the sacks passed to the plaintiff". So here the property passed when the oil of peppermint was put into the plain- tiflf's bottles. If the assent of the plaintiff was necessary, there is sufficient evidence of it. This is not like the case of a purchase of something not then in esse, and which must conform to a certain de- scrii)tion. In such case there is reason for requiring the approval of the purchaser in order to vest the pi-operty in him, for otherwise he might be bound to pay for an article Avhich did not correspond with his order. Here there was a sale to the plaintiff of the whole crop of oil of pepper- mint grown on the particular farm, and the moment it was obtained he was bound to accept it, Avhatever might be its quality. The result of the authorities is that, in the case of a sale of unascertained goods, the property passes immediately they are ascertained and appropri- ated. Chitty on Contracts, p. 342, 6th ed. They also argued that the property passed by the bill of sale, citing Fetch v. Tutin.^ Edward James and Leofric Temple, in support of the rule. In order to pass the property, there must have been an appropriation by the vendor, with the assent of the vendee. Again, if any act remained to be done on the part of the vendor the property would not pass. Smith's Mercantile Law, p. 465, 5th ed. There was no appropriation. It is true that the oil of peppermint was put into bottles belonging to the plaintiff, but the invoices were not made out until all the bottles were filled, which was on the 29th September, and on the 23d Sep- tember nine cases of the oil of peppermint had been sent to the de- fendant. The„]bottles were not filled with the intention of sending them to the plaintiff, and until they were packed and delivered to the c.ai-rier the property would not pass. Turner u. The Trustees of the Liverpool Docks shows that notwithstanding a delivery to a carrier, the vendor may reserve to himself a jus disponendi of the goods. [Martin, B. Under this contract all that the vendor was bound to do was to put the oilof peppermint in the bottles, and upon that being done the property in it vested in the plaintiff'.] The course of dealing between the parties had been for the vendor to deliver the oil of pep- permint to a carrier to take to tlie railway station ; and if this had been a question between the vendor and v^endee, the contract being silent upon the subject, it is clear that the usage would prevail. Al- dridge y. Johnson*^ differs materially from the present case. There the vendee ascertained that a portion of the barley had been put into the sacks, and required that they should be sent to him ; the vendor 1 15 M. & W. 110. ME. &B. 885. VOL. I, 66 870 LANGTON V. HIGGINS. [CHAP. II. applied at the railway station for trucks to convey them to the plain- tiff, but was unable to get any. According to the report of that case in the Law Journal/ Erie, J., said : " As soon as the vendor had done an outward act indicating his election, viz., by filling the sacks and directing them to be sent to the railway, the property passed." So in this case there was a further act to be done after the bottles were filled, viz., the delivery of them to a carrier to take to the railway station. [Pollock, C. B. In the acknowledged and sanctioned reports of Ellis and Blackburn, Erie, J., is stated to have said : " Here was an ascertained bulk of which the plaintiff agreed to buy about half. It was left to the bankrupt (the vendor) to decide what portion should be delivered under that contract. As soon as he does that, his election has been indicated ; the decisive act was putting the portion into the sacks."] The question in these cases is, What is the intention of the parties to be collected from the contract and their course of dealing ? If there is no intention of passing the property until something is done by the vendor before delivery of possession, the property does not pass until that act is done. Logan v. Le Mesurier,'^ Acraman v. Morrice.^ Pollock, C. B. The rule must be discharged. My judgment is founded upon the decision in Aldridge v. Johnson,* viz., that the putting the barley into the sacks was an appropriation which passed the property. I doubt whether it was necessary to tie up the sacks, or do any thing more than put the barley in them ; as when goods are put on board a ship it is not necessary to stow down the hatchway ; the filling the sacks with the barley was a decisive act of appropriation and delivery. Here it must be taken that what Mrs. Carter did was the act of Carter, and I am of opinion that the putting the oil of pep- permint into the bottles was the same thing as delivering it to the plaintiff. Martin, B. I am of the same opinion. Taking the language of the judgment in Aldridge v. Johnson to have been as reported in Ellis and Blackburn, viz., that the contract was complete, so as to vest the property in the plaintiff, as soon as the barley was put into the sacks, I think that case was rightly decided. It seems to me that the law on this subject is correctly laid down in the case of Logan v. Le Mesu- rier. The defendant's counsel chiefly founded their argument upon the obhgation of the vendor to deliver the goods to the . carrier to convey them to the railway station. If they had estabhshed that, it might have altered the case, but they have failed to do so. In my opinion, when two parties enter into a contract and put it into writing, that writing determines the terms of their bargain ; and they cannot add to it by showing that at the time the contract was made, they had 1 26 L. J., Q. B. 296. 2 6 Moore, P. C. 116. 3 8 C. B. 449. < 7 E. & B. 885. SECT, v.] LANGTON V. HIGGINS. 871 been nccustomerl to do something further, still less by showing that something further was usually clone by the vendor. However, I found my judgment on one of the most useful rules in the law, viz., that when parties have put their contract into writing, that writing deter- mines what the bargain is. Here there is a contract, by wliich the party signing it agrees to sell to the plaintiff the whole of his crop oi oil of peppermint grown in the year 1858, at the rate of 21s. perj^oimd- In my judgment, when that crop was weighed and placed in the bottles of the plaintiff, the property vested in her. The rule of law is, that where the article corresponds with that agreed to be sold, and every thing Avhich is to be done by the vendor is done by him, the property passes to the vendee, and he is liable for the price. That will be found in Shep. Touch., p. 224, 225. Bramwelt,, B. I am also of opinion that the rule ought to be dis- charged. The contract is to sell the whole of the vendor's crop of oil of peppermint grown in a certain year. I do not think that when the oil was made the property passed, — possibly there may have been an ohligatio certi corjporis ; but it appears to me that when the oil was put into the plaintiff's bottles the property in it vested in her. I do not dissenTlToni what was said by my brother Mailin with respect to the delivery to a carrier. It may be that the vendor would be bound to show some act of delivery before he could sue for the price ; but, how- ever that may be, I am of opinion that the property vested in the plaintiff when the oil was put into her bottles. Looking at the princi- ple, there ought to be no doubt. A person agrees to buy a certain article, and sends his bottles to the seller to put the article into. The seller puts the article into the buyer's bottles ; then is there any rule to say that the property does not pass? The buyer in effect says, "I will trust you to deliver into my bottles, and by that means to aj^pro- priate to me, the article which I have bought of you." On the other hand the seller must be taken to say, " You have sent your bottles, and I will put the article in them for you." In all reason, when a vendee sends his shij), or cart, or cask, or bottle to the vendor, and he puts the article sold into it, that is a delivery to the vendee. If we could sup- pose the case of a metal vessel filled with a commodity which rendered the vessel useless for subsequent purposes, it would be monstrous if the vendor could say, " I have destroyed your vessel by putting into it the article you purchased, but still the property in the article never passed to you." Or suppose a vendor was to deliver a ton of coals into the vendee's cellar, could he say, " I have put the coals in your cellar, but I have a right to take them away again " ? But independently of reason, there, is an authority on the subject. In Blackburn on Con- tracts, it is said that the projjcrty does not pass unless there, is an intention to pass it, and various cases are cited in support of that posi- tion. It is then said, p. 151, that two rules have been laid down on the 872 LANGTON V. BIGGINS. [CHAP. II. subject. The first is, " that where by the agreement the vendor is to do any thing to the goods, for the purpose of putting them into that state in which the purchaser is to be bound to acce2:»t tliem, or, as it is some- times Avorded, into a deliverable state, the performance of those things shall (in the absence of circumstances indicating a contrary intention) be taken to be a condition precedent to the vesting of the property." The second rule is, " that where any thing remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measur- ing, or testing th^ goods, where the price is to depend on the quantity or quality of the goods, the performance of those tilings also shall be a condition precedent to the transfer of the property, although the indi- vidual goods be ascertained, and they are in the state in which they ought to be accepted." That is not only good law, but good sense. Then can there be more complete evidence of intention to pass the property than when the vendee sends her bottles to be filled with the article purchased, and the vendor puts it into the bottles? Therefore, both upon principle and authority, I think that the property in the oil passed to the plaintiff when it was put into the bottles. The case of Aldridge v. Johnson ^ is jirecisely in point. Lord Campbell, C. J., there said : " Looking to all that was done when the bankrupt (the vendor) put the barley in the sacks, eo instanti the projjerty in each sackful passed to the plaintiff." It is true that in the Law Journal, Erie, J., is reported to have said that the outward act indicat- ing the vendor's intention was by filling the sacks "and directing them to be sent to the railway." But Crompton, J., who doubted upon another point, said that " when the barley was put into the sacks, it was just as if it had been sent by a carrier." Therefore there is not only reason and general authority, but also the case of Aldridge v. Johnson, to warrant our judgment. The only difficulty I had was this : Suppose the oil of peppermint had been badly manufactured, I am not prepared to assent to the argument that the plaintiff would not have had a power of rejection. Again, suj^pose only a portion of the oil had been put into the bottles, inasmuch as the plaintiff was not bound to take a part only, would the property vest? Aldridge v. Johnson is an authoiity on that point. It may be that the plaintiff would have the option of refusing to take a part only of the oil or of accepting it, but that right is not inconsistent with the property vest- ing at his election. It might vest in him conclusively, but at all events it would vest when he exercised his option. For these reasons, I think that the rule ought to be discharged. Mule discharged. 1 7 E. & B. 885. CAMPBELL V. THE MERSEY DOCKS, ETC. CAMPBELL V. THE MERSEY DOCKS AND HARBOR BOARD iiS^-=* In THE Common Pleas, April 21, 1863. [Reported in 14 Common Bench Reports, New Series, 4l2.] //^ This was an action brought by the plaintiff to recover the vahie of 250 bales of Surat cotton alleged to be the property of the plaintiff, and to have been converted by the defendants under the following circumstances : — A cargo of cotton ex Bosphorus, consisting of 500 bales, arrived in one of the company's docks early in September, 1862. The plaintiff was the broker for the goods, and had himself bought 250 bales, and had sold the rest to other parties. The landing commenced on the 8th, and was continued on the 9th and 10th, when the Avhole were landed. All had one mark, but no numbers; the numbers being affixed by the company's officers at the time of landing and weighing. The course of business was, for the broker to take a sample from each bale, and to submit the samples to the inspection of two indifferent brokers, and on their fiat the contracts were affirmed or disaffirmed. On the present occasion the contracts were affirmed. On the. 13th of September, a warrant or certificate of warehousing, pursuant to the 228th section of the company's act (20 & 21 Vict. c. 162), was sent to the plaintiff for 250 bales described as being numbered from 1 to 250 and as "entered by J. P. Campbell on the 10th of September, 1862 ; rent payable from the 15th of September." The plaintiff there- upon paid for the 250 bales, getting the warrant indorsed to him, with a delivery order "for the above-mentioned goods," dated the 15th of September. On the 7th of October, the plaintiff resold the cotton, and sent the warrant, indorsed, with a delivery order for the cotton therein mentioned. The buyer repudiated the contract, on the ground that the cotton did not correspond with the samples ; and then, upon the plaintiff demanding back the warrant, the company's officers for the first time informed him that 200 of the bales numbered 1 to 250 had been inadvertently delivered on the 11th and 13th of September to other persons, and they offered him a fresh warrant for other num- bers. The plaintiffj however, declined to accept it, and brought this action. At the trial, before Keating, J., at the last assizes at Liverpool, it was insisted on the part of the plaintiff that the bales mentioned in the warrant were so eai--marked and appropriated to him by the act of the company as to vest the property in him as from the 10th of Sep- tember. ^*^^C-^y^ 874 CAMPBELL V. THE MERSEY DOCKS, ETC. [CHAP. II. On the other hand, it Avns submitted that the mere act of appropria- tion by the company of 250 out of a larger number of bales was not sufficient to vest the property in the specific bales in the plaintiff with- out an assent to such appropriation on his part. To this latter argument the learned judge inclined, and he directed the jury accordingly. One of the jury asked his lordship whether the indorsement of the warrant by the plaintiff did not amount to an assent on his part to the appropriation. The learned judge said it was not conclusive ; but that it was open to the company to show that the approi^riation was a mis- take on the part of one of their clerks. A verdict having been found for the defendants, Edward James, Q. C. (with whom was J. A. Russell), moved for a new trial, on the ground of misdirection, and that the verdict was against the weight of evidence. He submitted that by the entry in the plaintiff's name and the warrant or certificate of warehousing, there was a complete appropriation of the bales numbered 1 to 250 to the plaintiff, and that no assent on his part was necessary to vest the property in those specific bales in him ; and that, if any assent was necessary, there was abundant evidence that such assent was given ; and consequently that the defendants could not discharge their duty by the deliveiy of any others. Erl]^, C. J. I am of opinion that there should be no rule in this case. This was an action for the alleged conversion by the defendants of 250 bales of cotton oiat of a cargo consisting of 500 bales ; and the question is whether or not the property in those 250 bales ever vested in the plaintiff. For the affirmative of that proposition, the plaintiff I'elies on a delivery order from the vendors and the fact that the de- fendants by their warrant or certificate of warehousing had sjiecifically appropriated to him the bales ex Bosphorus numbered from 1 to 250. If there was no appropriation by the company to the plaintiff of the specific numbers, his case entirely fails. There certainly was some evidence of appropriation ; and the question left to the jury upon that was, whether the evidence of that appropriation did not arise from a mistake on the part of the company's clerk. The learned judge is not dissatisfied with the finding of the jury upon that question. Then it is said that the learned judge misdirected the jury in telling them that the mere act of appropriation by the company would not vest the property in the plaintiff, unless he had assented to that appropriation. If there was no appropriation, this point becomes immaterial. But, if it be material, I venture to say that the law as laid down by the learned, judge was well laid down. It has been established by a long series of cases, — of which it will be enough to refer to Hanson v. Meyer, 6 East, 614; Rugg v. Minett, 11 East, 210 ; and Rohde v. Thwaites, 6 B. & C. 388, 9 D. & R. 293, — that the purchaser of an unascertained SECT, v.] YOUNG V. MATTHEWS. 875 portion of a larger bulk acquires no property in any part until there has been a*e]iarntion and an approj^iation assented to both by vendor and vendee. Nothing passes until there is an assent, express or ini])lied, on the part of the vendee. The warehouseman may in some cases be the agent of the vendee for the purpose of such assent; but noth- ing passes until there has been a separation and an appropriation assented to. WiLLES, J. I am entirely of the same opinion. The real question was, whctlier the api)ropriation of numbers 1 to 250 was not a mistake. The jury found in substance that it was. No property in the goods therefore ever vested in the plaintiff. Mr. James complains of the alternative which was put, — assuming that there was an appropriation, was that ap]>ropriation assented to by the plaintiff? The cases to which my lord has referred show what the law on the subject is. And perhaps the case of Godts v. Rose, 17 C. B. 229, is even more in point to show that there must not only be an appropriation, but an appro- priation assented to by the vendee. The assent of the vendee may be given pi'ior to the appropriation by the vendor; it may be either express or ini])lied ; and it may be given by an agent of the party, — by the warehouseman or wharfinger, for instance. In stating the prop- osition as he did, I think my brother Keating stated a proposition which is in strict accordance with law. Byles, J., concurred. Bule refused. YOUNG AND Another v. MATTHEWS. yf cz^^r^ In the Common Pleas, November 3, 1866. [Reported in Law Reports, 2 Common Pleas, 127.] Trover for bricks. Pleas, not guilty, and not possessed. This cnse was tried before Erie, C. J., at the sittings for London after last Trinity term, when the following facts were proved: — The plaintiffs were the assignees of Moxon, a bankruj^t. Moxon was a builder and brickmaker, and in the early part of 1865 had drawn several bills of excliange on one Northen, who had accepted them for his accom- modation. When the bills becaine due Moxon was unable to p:iy them, and agreed to sell Northen 1,300,000 bricks, and an invoice of them was made out to him. Northen sent an agent to the brickfield with an order from Moxon 876 YOUNG V. MATTHEWS. [CHAP. II. for the delivery of the hricks, and Moxon's foreman then stated that the ecclesiastical commissioners, who were the owners of the field, had put in a distress for rent, but that if the man in possession were paid out, he should be ready to deliver the bricks, and he pointed out three clamps from which he should make the delivery, of which one consisted of finished bricks, a second w^as still burning, and the third consisted of bricks which had been moulded, but not burnt. Northen's agent then said, " Do I clearly understand that you are prepared, and will hold and deliver this said quantity of bricks?" and Moxon'^s foreman said, "Yes." Subsequently on November 24, 1865, Moxon became bankrupt, and the ecclesiastical commissioners then sold, under the distress, sufficient bricks to cover the rent, and Northen afterwards sold the remainder to the defendant, who removed them from the field. A verdict was found for the defendant, and leave was reserved to the plaintiffs to move to enter the verdict for them, on the ground that there was no such appropriation of the goods as to pass the property in them under the contract of sale. Brown, Q. C, moved for a rule, pursuant to the leave reserved, and contended that the property in the bricks could not have passed to Northen at the time of the sale, nor at the interview with Moxon's foreman, something more remaining to be done before the bricks would be ready for delivery. He cited Rugg v. Minett.^ [Willes, J., re- ferred to Acraman v. Morrice.^] Eble, C. J. I am of opinion that there should be no rule in this case. The question is, whether the property in the bricks passed to Northen or not, and in determining this we are to look at the intention of the parties. It is very material that Northen had made large ad- vances to Moxon, and when the latter became embarrassed he might well wish to have all he could appropriated to him. The well-known general rule, that the property does not pass to the buyer while any thing remains to be done by the seller, either to complete the goods or to ascertain the price, does not, therefore, apply to the present case. • There is no doubt that the parties could pass the property in all the bricks, whether finished or not, if such was their intention ; and what passed amounted to this : Northen's agent said, " Are all these appro- priated to my principal ? " and the seller's agent said, " Yes." Even if this were not so, it might be contended, on the authority of Langton V. Waring,^ that the defendant had an equitable right to the goods as a security for the price he had paid for them ; and that the assignees, who must have an equitable as well as legal title, cannot therefore 1 11 East, 210. 2 8 C. B. 449 ; 19 L. J. (C. P.) 57. » 18 C. B, (n. b.) 315. SECT, v.] JENNER V. SMITH. 877 recover. Under the circumstances, however, it is unnecessary to decide this. AYiLLES, J. I am of the same opinion. Byles, J. This is not Uke a sale of unascertained goods ; the goods were ascertained and pointed out, though not finished ; and it apj^ears to have been the intention of the parties that the property in them should pass to Northen. Keating, J., concurred. Hule refused. J^TytC /-^^ -^ JENNER V. SMITH J^ A^/.x^> ''/'//^SIn the Common Pleas, April 30, 1869. j /^^^ Jyt/^ JTy , ^-1 ^ - — [Reported in Law Reports, 4 Common Pleas, 270.] . y -"7^ "y^ ^<7 — Action for goods bargained and sold and goods sold arfa aelivered. //^//^^ "^"^'^^ Pleas: Never indebted, payment, and payment of Ss. 2c?. into court. >^ (^^ / J Replication, taking issue, and damages ultra. ^^^^^i'%2^ The cause was tried before Brett, J., at the sittings at Westminster ^ after last Michaelmas term. The facts were as follows: On the 14tli^//^^^^ of October, 1867, the plaintiff, who is a hop-merchant in London, met . the defendant, a maltster of Devizes, at Weyhill Fair, Hants. The '^ ^^^ defendant wished to buy of the plaintiff four pockets of Carpenter's 2^/i^^^ Sussex hops which the plaintiff had there ; but, as the plaintiff hadJl-.' ^» already sold two of them, he proposed to sell the defendant in lieu of' them two pockets of Tliorpe's, of which he showed him a sample, offer- ing to let the defendant have the two j^ockets of Carpenter's at £9 per cwt. (the price of that day's fair being £9 95.), if he would take two pockets of Thorpe's at £7 15s. per cwt. The plaintiff at the same • time or shortly after informed the defendant that the last-mentioned two pockets were lying at Prid & Son's warehouse, Kentish Buildings, South wark, and agreed that he should have them upon the same terms as if they had been in bulk at the fair, that is, that he should be at no expense for warehousing or carriage. The defendant consented to purchase the four pockets upon these terms, and took aAvay with him the two pockets of Carpenter's, but requested that the two pockets of Thorpe's should not be sent until he wrote for them. The plaintiff had at this time three pockets of Tliorpe's hops at the warehouse of Prid & Son. On the 21st of October, the plaintiff's son went to the warehouse, and instructed the warehouseman to set apart two of the three pockets of Thorpe's for the defendant; and the ware- houseman thereupon placed on two of them, numbered respectively 878 JENNER V. SMITH. [CHAP. II. one and three, what is called a " wait order card," that is, a card upon which was written, " To wait orders," and the name of the vendee. No alteration, however, was made in the warehouse books ; and the plaintiff, the original depositor, still remained liable for the rent. On the 4th of November, the plaintiff sent the defendant an invoice as follows, at the same time inclosing a draft for acceptance : — Mr. S. Smith, Bought of Charles Jenner, 2 pockets Sussex hops (Carpenter, 1867), No, 2 ... 1 cwt. 2 qrs. 26 lbs. 4 ... 1 cwt. 2 qrs. 13 lbs. 3 cwt. 1 qr. 11 lbs. fa) £9 per cwt. £30 25. 8d. 2 pockets Sussex hops (Thorpe, 1867), No. 1 ... 1 cwt. 2 qrs. 27 lbs. 3 ... 1 cwt. qr. 21 lbs. 2 cwt. 3 qrs. 20 lbs. (a) £7 15s. per cwt. £22 13s. lOd. £52 16s. 6d. The two last pockets of hops are lying to your order. On the 8th of November the defendant wrote to the plaintiff as follows : — SiK^ — I have returned your bill unsigned ; but, as I have never received the two pockets of hops or heard any thing about them, I concluded you had not thought of sending them, and have made an exchange for some malt, and shall not require them. As I will never sign a bill, I will pay, as was agreed, in Feb- ruary, the weight of the two Carpenter's. The defendant subsequently paid the price of the two pockets which he had received, all but a small balance which was covered by the pay- ment into court. It was objected on the part of the defendant that, as to the two pockets of Thorpe's hops, there was no contract binding within the Statute of Frauds, no delivery or acceptance, or part payment, and no evidence of goods bargained and sold. For the plaintiff it was insisted that the whole was one bargain, and consequently that there had been a part delivery and part payment, and that the property in the whole four pockets passed by the contract. The learned judge ruled that it was one entire contract, and that, therefore, there had been a part delivery so as to make a contract bind- ing within the Statute of Frauds ; that the plaintiff could not rely upon the part payment, because the defendant, at the time of making the payment, repudiated the bargain as to the two pockets in question; that, though there was a binding contract, the property did not pass thereby, inasmuch as the contract was to deliver two out of a larger number of pockets of Thorpe's hops equal to sample, the price to be de- SECT, v.] JENNER V. SMITH. 879 termined accorrling to the weight; and that there had been no sufficient appropriation afterwards to pass the proj^erty, because Prid & Son never bound tlieiaselves to liold for the defendant instead of for the phiintiff. He thereu2)on nonsuited the phiintiff, reserving liim leave to move to enter a verdict for £22 135. lOcl, the court to draw inferences of fact. 3Iorgan JJoyd, in Hilary term last, obtained a rule nisi accordingly. H. T. Cole^ Q. C, and Bromley showed cause. The rule of law which must govern this case is laid down in Blackburn on the Contract of Sale, pp. 151, 152 : Where the vendor is to do any thing to the goods for the purpose of putting them into a deliverable state, or for the pur- pose of ascertaining the price, as, by weighing, measuring, &c., the performance of those things is a condition precedent to the transfer of the property : Hanson v. Meyer ; ^ Rugg v. Minett ; ^ Castle v. Sworder ;^ Simmons v. Swift;* Farina v. Home;^ Hunt v. Hecht ; ^ Acraman v. Morrice ; ' Godts v. Rose.^ Here two things remained to be done before the property in the two pockets of Thorpe's hops could vest in the defendant : he had a right to object to them if not equal to sample ; and the price was to be ascertained by the weight. The plaintift' had three pockets at Prid's warehouse. He might have had a hundred. That which was done at the warehouse Avithout the knowledge or assent of the defendant was not such an appropriation as to pass the projierty to him in the two so selected. In the course of the argu- ment in Bannerman v. Wliite," Willes, J., says : " The property docs not pass by the contract of sale ; but only \\\)0\\ acceptance, after inspec- tion and weighing. Our law is peculiar in that respect." In Ald- ridge v. Johnson,^° Lord Campbell, C. J., says : " No rule of the law of vendor and purchaser is more clear than this, that, until the appropri- ation and sei>aration of a particular quantity, or signification of assent to the particular quantity, the property is not transfei'red." And Erie, C. J., affirms the same principle in Campbell v. Mersey Dock Trustees.^^ [Benjamin on the Sale of Personal Property, 115, 222, 223, was also referred to.] Morgan Lloyd., in support of the rule. This case is governed by the rule laid down by Erie, J., in Aldridge v. Johnson.^- [Keating, J. There the bulk had been seen and apj)roved of, all that remained to be done was to appropriate the quantity sold to the plaintifi'; and it was 1 6 East, 614. . 2 H East, 210. 3 6 H. & N. 828 ; 30 L. J. (Ex.) 310. •« 5 B. & C. 857. 5 16 M. & W. 119. « 8 Ex. 814; 22 L. J. (Ex.) 293. 7 8 C. B. 449 ; 19 L. J. (C. P.) 57. 8 17 c. B. 229 ; 25 L. J. (C. P.) 61. 9 10 C. B. fN. s.) 844, 855. 10 7 E. & B. 885, 898 ; 20 L. J. (Q. B.) 296, 299. 11 14 C. B. (n. s.) 412. 12 7 E. & B. 885, 900 ; 26 L. J. (Q. B.) at p. 300. 880 JENNER V. SMITH. [CHAP. II. held that the filling his sacks was an appropriation, with his assent, of so much of the barley as had been put into the sacks. But here there was no appropriation. Could not the plaintiff have satisfied his con- tract by delivering to the defendant any two pockets of Thorpe's hops which were equal to the sample ?] It is submitted he could not. The plaintiff at the time of the bargain informed the defendant that he had some pockets of Thorpe's hops at Prid & Son's Af arehouse, of which he contracted to sell him two. That gave the plaintiff authority to set aside two of those pockets as the hops contracted for, to await the purchaser's convenience. The plaintiff accordingly Avent to the ware- house and instructed the warehouseman to set apart two pockets to await the orders of the purchaser. Having thus made his election, and communicated it to the defendant by the letter of the 4th of November, the appropriation was complete, and could not be recalled. Blackburn on the Contract of Sale, p. 128, citing Heyward's Case,^ Fragano v. Long,^ and Atkinson v. Bell.^ If the two pockets were equal to sample, — and there was no suggestion that they were not, — the appropriation was made Avith the assent of the defendant; for, when the invoice Avas sent to him with the number and Aveight of each pocket, and an intimation that they were lying at the Avarehouse to his order, he did not repudiate it. [Brett, J. My brother Blackburn treats the subject of appropriation at p. 127. There is no pretence for saying there Avas any previous authority here ; and there Avas no subse- quent assent to the appropriation, for the defendant, in his reply to the letter inclosing the invoice, repudiated the Avhole transaction.] The defendant's request that the plaintiff Avould keep the two pockets of Thorpe's hops until he should want them, Avas an authority to the latter to make the appropriation. [Keating, J. It is difficult to say that the right of selection is conceded to the vendor, whilst the corre- spondence of the bulk Avith the sample and the price remain to be ascertained.] The price per cwt. was agreed on; and the Aveighing rule is inapplicable to a sale of specific packages, Keating, J. I am of opinion that this rule should be discharged. The action is brought to recover the price of two pockets of hops as sold and delivered and bargained and sold. It appears that the parties met in October, 1867, at Weyhill Fair, and that it was orally agreed betAveen them that the defendant should purchase of the plaintiff tAvo pockets of Carpenter's Sussex hops, which were then in the fair, and had been inspected by the defendant, at £9 per cwt., and also tAvo pockets of Thorpe's hops, of Avhich a sample Avas shown, at £7 15s. per CAvt. After the purchase had been agreed on, the defendant Avas in- formed that the latter Avere lying in a Avarehouse in London, and he requested that they might be left there until he sent Avord that he was 1 2 Co. Kep. 36. 2 4 B. & C. 219. s g b. & C. 277. SECT, v.] JENNER V. SMITH. 881 ready to receive them. On the 4th of November the plaintiff sent an invoice describing the numbers, weight, and price of the four pockets, with an intimation that tlie two |)Ockets of Thorpe's were lyin"- at the warehouse to tlie defendant's orders. The phiintilf had tliree pockets of Thorpe's hops at the warehouse ; and he had in the mean time gone to the warehouse and directed the warehouse-keeper to put certain marks upon two of them, to indicate that they were sohl ami were to wait the orders of the purchaser. No alteration, however, was made in the books of 'the warehouse-keeper; nor was any intimation of this api)ropriation of the two pockets given to the defendant until the 4th of November, when the invoice was forwarded to him. The defendant declined to accept the two pockets. At the trial various objections were urged. It was said, amongst other things, that there was no con- tract as to the two pockets of Thorpe's hops to bind the defendant within § 17 of the Statute of Frauds ; that the contracts for the pur- chase of the two pockets of Carpenter's hops and for the two pockets of Thorpe's were distinct contracts ; and that, consequently, there had been no delivery or part-payment to take the case out of the statute. My brother Brett ruled that the contract was entire, and the objection founded upon the Statute of Frauds was thus got rid of. Then came the question whether the covmt for goods sold and delivered or goods bargained and sold could be maintained, the property in the goods not having passed. Upon this my brother Brett nonsuited the plaintiff, but gave leave to move to enter a verdict for the plaintiff for the price of the two pockets in dispute, reserving power to the court to draw such inferences as a jury might draw. The question before us, there- fore is, whether, upon the facts proved, we can see that the property in the hops passed to the defendant so as to make him liable in this action. The general rule of law was not contested on the part of the plaintiff, that, where an article (not specific) is sold, but something remains to be done by the vendor before it is despatched to the vendee, no property passes by the contract of sale. It was contended on the part of the defendant that much remained to be done before the prop- erty could pass, — that, the hops having been sold by sample, they would require to be inspected, and to be weighed, in order to ascertain the price. On the other hand it was urged that, though that may be 80 as a general rule, Aldridge v. Johnson ^ and other cases show that, if it appears from the contract that the vendee has made the vendor his agent for the purpose of weighing and doing all the other acts necessary to be done to pass the property, the property in the goods will pass so soon as those acts are done. It is, however, observable that in Aldridge v. Johnson the bulk of the barley had been inspected and approved, and all that remained to be done was to sever and 1 7 E. & B. 886; 26 L. J. (Q. B.) 296. 882 JENNER V. SMITH. [CHAP. II. measure the portion to be appropriated to the vendee ; and that the vendor had filled a number of sacks which had been sent by the vendee, thereby measuring it. The barley which was to be appro- priated to the fulfilment of the contract was therefore severed from the bulk and measured with the assent of both parties. There could be no doubt that the property in the barley so dealt with passed. Mr. Lloyd sought to bring the present case within that by saying that a similar extensive authority was conferred by the defendant on the plaintiff in this case. I cannot draw any such inference from the facts proved here : on the contrary, I think they negative it. I cannot sup- pose that the defendant meant to part with the right of objecting to the correspondence of the hops with the sample, or of insisting on the weight being ascertained, before the property passed. It is true, there was an intimation to the warehouse-keeper that the two pockets num- bered one and three had been sold to the defendant ; but no transfer was made in his books, and he still held them at the charge and at the risk of the vendor. I think it is impossible for the court to draw the inference that an authority such as was given in Aldridge v. Johnson^ was given here ; and if no such authority was given, the case is brought within the multitude of authorities in which it has been held that, where there is a sale of unascertained goods with reference to which something remains to be done by the vendor . before delivery to the vendee, no property passes until that has been done. Brett, J. At the trial I proposed to nonsuit the plaintiff, on the ground that there was no evidence to go to the jury in support of the count for goods bargained and sold. It was not then suggested that there was any authority from the defendant to the plaintiff" to select the two pockets for him. If it had been, I should not have nonsuited the iDlaintiflT, but would have left that question to the jury. The ques- tion now is, not whether there was any evidence for the jury, but whether the court can infer from the facts proved, that the property in the two pockets of Thorpe's passed. It is clear that no property 1 passed by the contract itself The contract was for a sale by sample of unascertained hoj)s, the price depending on the weight. Then comes the case put by my brother Blackburn in the passage at p. 127, to which I referred in the course of the argument. Here there was no previous authority given to the plaintiff" to ajjpropriate ; and, if not, what evidence was there to show that the appropriation of the two pockets in Prid & Son's warehouse was ever assented to by the de- fendant '? The defendant's assent might have been given in either of two ways, — by himself, or by an authorized agent. By himself, after the receij^t of the letter containing the invoice ; or by the warehouse- keepers, if there had been any evidence of agency or authority in them 1 7 E. & B. 885; 26 L. J. (Q. B.) 296. SECT, v.] MERRITT V. JOHNSON. 883 to accept, and assent by thera to hold the hops for liim. I think tlie defendant's letter refusing to accept the draft was strong, if not con- clusive, to show that there had been no such assent by the defendant. And, as to Prid & Son, the evidence lails on both points. They never agreed to hold the two ])ockets on behalf of the purchaser ; and, if they did, there is no evidence of any authority from liiia that tliey might do so. Mr. Lloyd has strongly put forward a point which was not made at the trial, viz., that there was evidence that, by agreement between the jiarties, the purchaser gave authority to the seller to select the two pockets for him. If he did so, he gave up his power to object to the weighing and to the goods not corresponding with the sample ; for he could not give such authority and reserve his right so to object; and indeed it has not been contended that he gave up those rights. That seems to me to be conclusive to show that the defendant never gave the plaintiff authority to make the selection so as to bind him. Under the circumstances, therefore, it is impossible to say that the property passed ; consequently the plaintiff cannot recover as for goods bargained and sold. Hule discharged. D. MERRITT v. JOHNSON. Supreme Court op New York, February Term, 1811. [Reported in 7 Johnson, 473.] This was an action of trover. At the trial, the following facts were proved : — On the 24th September, 1805, Joseph Travis and Ebenezer Merritt entered into an agreement by which Travis, who is a shipwright, in consideration of $1300, agreed to biuld a sloop for him, of certain dimensions, expressed in the agreement. Travis engaged to furnish the timber requisite to complete the frame of the vessel, at the ship- yard. The joiner's work was to be done at the expense of Ebenezer Merritt. The vessel was to be completed and launched on or before 4th July, 1806. Ebenezer Merritt engaged to pay Travis one-third of the sum of 11800 as soon as one-third of the work was done, one-third of tlie same sum as soon as two-thirds of the Avork were done, and the other third of the said sum when the whole of the work was completed, if in the opinion of A. and B. the sloop was well built, &c. ; and if they decided she was well built, &c., then Ebenezer Merritt was to pay a further sum of fifty dollars, otherwise such sum was not to be paid ; and Travis was to pay all damages arising from a breach of his agree- ment, &c. 884 MERRITT V. JOHNSON. [CHAP. II. In pursuance of this agreement, Ebenezer Merritt furnished various materials for the vessel, and advanced money to Travis with which to purchase other materials. On the 1st of May, 1806, Ebenezer Merritt assigned the contract with Travis, and his interest in the vessel, then unfinished, to the plaintiff, who continued to furnish materials, and advance money to Travis on the contract, until about one-third of the vessel was finished, being planked up to the whales, and the whole ex- penditure amounted to about $1030 ; Travis having furnished such matei-ials as he was bound by the contract to supply up to that period. At this time Si fieri facias was issued out of this court on a judgment against Travis, on which the sheriff seized and sold the vessel in her unfinished state, as the property of Travis. The plaintiff named in the execution purchased the vessel at the sheriff's sale, and afterwards sold her for $200, to the defendant in this suit, wlio was acquainted with all the facts, and was told b_y the vendor that he w^ould not war- rant the title, unless he received a full price, which the defendant refused to pay. In August, 1808, the plaintiff made a formal demand of the vessel of the defendant who refused to deliver her ; but afterwards com- pleted and sold her. At the time of the sheriff's sale nothing was due from the plaintiff to Travis on the contract. The vessel was built upon ground belonging to third persons, which Travis hired, with a house and the privilege of building vessels on the ground, at the rent of thirty-five dollars per annum. A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts, and w^hich w^as submitted to the court without argument. Per Cueiam. The plaintiff has not shown a riglit of property in the sloop so as to entitle him to an action of trover. The sloop was built by Travis, not on the ground of the plaintiff, or of Ebenezer Merritt, from wiiom he purchased his present right of action. It was built on ground belonging to third persons, and hired by Travis for this pur- pose. The principal part of the materials for the sloop, such as the timber for the frame, Avas furnished by Travis, and the sloop was one- third finished and planked up to the wales, when she was seized and sold by the sheriff as the property of Travis, and under that sale the defendant holds the possession. The plaintiff's right rested entirely on the contract with Travis ; and the sloop did not become his prop- erty until finished and delivered. The ground on which the frame of the sloop stood, did, for that occasion, belong to Travis, and as he furnished all the timber for the fi-ame, he certainly contributed the principal part of the materials. There is then no just pretence for con- sidering the property of the unfinished sloop as vested in Merritt. When the materials of another are united to materials of mine, by my labor, or by the labor of another, and mine are the principal materials, SECT, v.] JOHNSON V. HUNT. 885 and those of the other only accessory, I acquire the riglit of property in tlie wliole, by right of accession. This is considered as a general principle in the acquisition of property. It is so laid down by Brac- ton (de acqid. rerum dom. c. 2, §§ 3, 4), and Pothier illustrates it by a variety of clear and apposite examples. Traite die Droit de Proprietey No. 169, 180. Molloy (b. 2, c. 1, § 7) applies a similar principle to the very case of building a vessel, and he refers to the Pandects, Lib. 6, 1, 61, where it is admitted that if one repairs his vessel with an- other's materials, the property of the vessel remains in him ; but if he builds a vessel from the foundation, Avith the materials of another, the vessel belongs to the owner of the materials. Gothofredus, in his notes upon this passage, says that if one builds a ship with his own and another's materials, the ship is his property, unless the keel was fur- nished by the other, and then the property would follow the keel, which he considers instar soli et fundi. But Avithout pursuing these distinctions further, it is sufficient to observe that upon the principles acknowledged by all the writers, the property of the vessel in question was in Travis when she was sold under the execution against him, and judgment must accordingly be rendered for the defendant. Judgment for the defendant. JOHNSON V. HUNT. Supreme Court op New York, January Term, 1834. [Reported in 11 Wendell, 135.] This was an action of replevin, tried at the Albany circuit in September, 1831, before the Hon. James Vanderpoel, one of the circuit judges. On the 21st August, 1829, a contract was entered into by which the defendant agreed to build a house for the plaintiftj finding the ma- terials for the Avood-work, and doing the work, and engaging to complete the job by the 1st May, 1830. The plaintilF on his part engaged to pay for the same $1525, in manner following : when timber should be delivered on the ground for framing, 8100 ; Avhen the frame should be raised, $200 ; on the first of December, $150 ; the like sum on the first day of each of the four succeeding months, " provided the work shall advance according to the payments made; " making §1050 to be i)aid by the first day of April, and the remainder, viz., $475, when the house should be finished. After the house was enclosed, the defendant worked plank belonging to him into eight columnsforpiazzas, one-half of which VOL. I. 67 886 JOHNSON V. HUNT. [CHAP. II. were intended for the house building for the plaintiff, and the other half for a house which the defendant was then buildino; for a Mr. Earl. These columns were worked in the house building for the plaintiiF, and to make room for the masons to do their work, the columns were re- moved to the store of a Mr. Burrows. The defendant also procured and deposited in the same store four carved capitals and three bases for the columns, and six carved window and door caps. After a barn was enclosed, which the defendant was building for the j^laintiff on the same lot on which the house was erected, the columns and other materials were removed thereto, and subsequently four of the columns w^ere taken therefrom and used in the erection of Earl's house. The other columns and the carved work remained in the barn until June or July, 1830, when the defendant broke open the barn and took and earned them away. For this proj^erty the action was brought. The plaintifi" proved payments made by him to the defendant, to the amount of $1700, and that the defendant, about two weeks previous to taking the property from the barn, abandoned the job he had undertaken, saying he would not work any more at it, unless the plaintiff" would pay him m^ore money. It was proved on the part of the defendant, in pursuance of a notice attached to his plea, that on the 5th May, 1830, while the projjerty in question remained in the store of Burrows, it was levied upon by a deputy of the sheriff" of Albany, by "\artue of an execution against the defendant for the sum of $556, who left the same in the possession of the defendant. The value of the property was testified to. The judge ruled that the plank from Avhich the columns were worked, though purchased by the defendant, became the property of the plaintiff" Avhen the same were delivered uj^on the i)laintiff"'s lot ; and though the lumber used in j^reparing the columns in question had not been separated from that used in preparing the columns for Earl's house at the time of the levy, yet that it was subsequently sej^arated, and that it was reasonable to j^resume that the defendant intended it for the house of the plaintiff"; and as to the carved work, that, though it had not been delivered upon the jDremises of the plaintiff" at the time of the levy, still it had been procured for the plaintiff"'s house, and immediately upon its being so procured, and before a delivery i;pon the premises of the plaintiff", it became the property of the plaintiff". To which de- cision the defendant excepted. The jury, under the charge of the judge, found a verdict for the plaintiff", which the defendant now moved to set aside. e/i Incline, for the defendant. The ownership of the property claimed in this suit was either in the defendant or in the sheriff" of Albany, and of course the plaintiff" ought not to have recovered. Until worked into the house and become j)art of the realty, it was not the property of the plaintiff". Had it been destroyed in the store of Burrows, or while in the barn, the loss would have fallen upon the defendant, and not upon SECT, v.] JOHNSON V. HUNT. 887 the plaintiff. lie cited 1 Taunt. 318, 7 Johns. R. 473, 15 id. 349, 7 Wendell, 406. 3L T. Reynolds, for phiintiff. The cases cited on the other side relate exclusively to personal property. Here the property was con- nected with the realty. The payments were to be made as the woi'k progressed, and the moment materials appropriated to the building were brought upon the ground, the right of ownership attacheil in the plaintiff as effectually as when subsequently affixed to the building, as the i^rocuring of the materials and the working of them uj) for the finish- ing of the building are fairly to be presumed as the inducements to the advances made by the plaintiff. By the court. Savage, C. J. By the contract, the defendant was to procure the materials and build the house for the plaintiff. The mate- rials were purchased by the defendant, were his own, and at his risk. The fact that such materials were intended for the plaintiff's house did not change the property. Had the defendant acted as the i:)laintLff'8 agent in purchasing the materials, then indeed the pi'operty would have been the plaintiff's. The contract, however, does not give counte- nance to any such idea, nor Avas such a construction contended for. The judge at the circuit held that the proj^erty was vested in the plain- tiff by the act of the defendant in j^urchasing it, intending to work it into the jjlaintiff's house. In this the judge certainly erred. When the defendant purchased the property, it became his own ; he might sell it again, and purchase other materials to use in the 2)laintitF's house; and if he 23rocured such as the contract required, the plaintiff could not complain. Suppose he had purchased })lank which were rotten and totally unfit for the use, but still intending them for the plaintiff's house, the plaintiff would not be bound to receive them. Or suppose the plank were purchased in Troy or Albany, or at the mill where manufactured, and before they were removed a fire had destroyed them, would the plaintiff say the loss was his? If the property was ever in the defendant, when was it changed ? As personal property, clearly it did not pass until delivery, and there is no evidence in the case of a delivery by the defendant, or the receipt of it by the plaintiff. It was not intended by the contract that it should pass as personal projicrty; it was to become the property of the })laintiff when it was worked into his house, and not before. The mere act of bringing the plank upon the plaintiff's lot, for the purpose of working it into columns, did not change the j^roperty ; nor did the act of working the plank into pieces to put up have that effect, for we see the same defendant, at the same time and place, working up other plank of the same lot into materials for columns for Earfs house. If the act of working the plank in the plaintiff's house made them his property, then he owned the whole ; but that is not pretended. If the working them with intent to put them up in the plaintiff's house made them his, then the intent changed 888 JOHNSON V. HUNT. [CHAP. II. the property, without any act by either of the contracting parties. That would be a very unsafe rule of property. The property of one man does not become the property of another, unless by some act indicating a delivery by one and an acceptance by the other. Had the property in question been burned when in Burrow's store, and had the defendant been perfectly solvent, I presume the plaintiif Avould not have consid- ered the loss his own ; surely the law would not so have adjudged it. Where any thing remains to be done by the vendor before the article is to be delivered, the right of property does not pass. 7 Wendell, 406, and cases there cited. Here the columns were to be put together and erected before they became the plaintiif's. In the case of Mucklow V. Mangles, 1 Taunt. 319, a boat-builder contracted to build a barge for one Pocock, and received payment in advance. He finished the barge and painted Pocock'a name on the stern; but before delivery it was levied on by the sheriff, under an execution against the boat-builder. It was held that the property had not passed to Pocock. Heath, J., says it comes within the cases which have been held to be executory. He adds, " A tradesman often finishes goods which he is making in pursuance of an order given by one per- son, and sells them to another; yet the person giving the order could not bring trover." The case of Merritt v. Johnson, 7 Johns. R. 473, was a stronger case than Mucklow v. Mangles. One Travis agreed to build a sloop for E. Merritt, and to furnish the timber for tlie same. Travis partly finished the sloop, furnishing the greater part of the materials ; but D. Merritt, the plaintiff, to whom the contract was as- signed by E. Merritt, also furnished part of the materials and advanced money to Travis on the contract. When the vessel was about one-third finished, it was levied on under an execution against Travis. The plaintiff brought an action of trover for the vessel, but the court said that his right of action rested on the contract with Travis, and that the sloop did not become his until finished and delivered. The court take notice of the fact that the sloop was built upon ground hired by Travis ; but had the fact been different, I do not see how the result would have been varied under the contract in that case, by which Merritt was to pay as the work progressed, leaving one-third to be paid when the whole of the Avork was finished. In this case there could not be a formal delivery of the house after it was finished ; the house, standing on the plaintiff's groimd, became his as fast as the pai'ts added to it became attached, so as to become part of the freehold ; but with that difterence, the case of the sloop is not distinguishable in principle. The slooj) was personal property, and therefore the property was not changed until delivery. The house in question was real property, but the materials of which it was composed were personal property, and did not pass to the plaintiff until delivery, or until they became affixed to the freehold ; at the time of the levy, they were the property of SECT, v.] DEMENT V. SMITH. 889 Hunt, the defendant. The plaintiff tlierefore had no title, and could not recover upon the evidence before the court. jLA / A^ew trial granted ; costs to abide the event. Z^^- \^ <-C, I O^^^ *^ <~Z^i^ 'Z^^^ t-c^ y/ ^^ XL BEMENT u. SMITH. ^^'^^ / ^ *-< Supreme Court op New York, July Term, 1836. [Reported in 15 Wendell, 493.] This was an action of assumpsit, tried at the Seneca circuit in November, 1834, before the Hon. Daniel Moseley, one of the circuit judges. In March, 1834, the defendant employed the i)laintiff, a carriage maker, to build a sulky for him, to he 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 sulky 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- \m borhood; Avhich he accordingly did, and in July, 1834, commenced this \ suit. It was jDroved that the value of the sulky Avas 880, and that it \ v^ was worth 810 more than Putnam's. The declaration contained three vr special counts, substantially alike, setting forth the contract, alleging v^ pei'formance on the part of the plaintiff, by a delivery of the sulky, ^ r^ and stating a refusal to perform, on the part of tlie defendant. The x declaration also contained a general count, for work and labor, and r\ ^ goods sold. The judge, after denying a motion for a nonsuit, made on ^^ C^ the assumed grounds of variance between the declaration and proof^ charged the jury 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 Avas not the value of the sulky, but only the exi)ense of taking it to the residence of the defendant, delay, loss of sale, &c. The judge declined so to charge, and reiterated the instruction that the value of the article was the measure of damages. The jury found for the plaintiff, with 883.126 damages. The defendant ^ 890 BEMENT V. SMITH. [CHAP. II. moved for a new trial. The cause was submitted on written argu- ments. W. B. Smith, for the defendant, insisted that the plaintiff ought to have been nonsuited, he having, in each of his special counts, alleged a delivery of the carriage, and the proof showing a mere tender and refusal to accept. It cannot be held that there has been a delivery, unless some act be shown on the part of the purchaser, recognizing the property as his, after it has existence. The plaintiff should have de- clared as for goods bargained and sold, framing his declaration specially on the contract, for not accepting or refusing to complete the bargain. 7 T. R 67 ; Peake's N. P. 41 ; Chitty on Contracts, 124 ; 4 Co. 93 ; 4 Esp. N. P. 251.' A delivery cannot be presumed, when the presump- tion is rebutted by positive proof 2 Kent's Comm. 396. The plain- tiff could not recover under the common count, the term of credit not having expired. 1 Chitty's PI. 380. The judge erred in his instruc- tions to the jury, as to the rule of damages. Here was not a complete bargain and sale. The property did not pass at the time of the con- tract, nor at the time of tender, as the defendant refused to accept. There was no change of property, and the plaintiff was therefore enti- tled to recover only damages for the breach of the contract, and not the value of the carriage. 2 Kent's Comm. 364 ; 1 Chitty's PI. 170 ; 10 Petersdorff's Abr. 244; 15 id. 194; Saund. on PL & Ev. 874; 2 Comyn on Cont. 227. 0. 11. Piatt and J. F. Stevens, for plaintiff. By 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 sulky was equival nt to a delivery, and sustained the averment in the declaration that the sulky was delivered ; and 2. Whether the rule of damages should be the value of the sulky, or the particular damages 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 in 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 pay for it, on delivery, 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 delivery was not complete, that was the 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 them. The case of Towers v. Osborne, Strange, 506, was like this. The question here presented was not raised, but the defendant there sought to screen himself under the Statute of Frauds. The SECT, v.] BEMENT V. SMITH. 891 defendant bespoke a chariot, and when it was made, refused to take it; so far the cases are ])arallel. In an action for the vahie, it was objected that the contract was not binding, there being no note in writing, nor earnest, nor dehvery. The objection was overruled. In tliat case the action was brought for the vahie, 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. K. 58, was an action in which the plaintiff declared against the defendant on a contract whereby the plaintifl" 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. Tlie 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 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 plaintiiF, and a refusal of the 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 his action. The plaintiff, in his special counts, does not declare for the sale and deliv- ery, 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 Josej^h 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, therefoi*e, is as to the damages which the plaintiff Avas entitled to recover. It is true that the plaintiff does not I'ecover directly as for goods sold ; but in the case of Towers v. Osborne the ])laintiff recovered the value of the chariot, and in Crook- shank V. Burrell the recovery 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 892 BEMENT V. SMITH. [CHAP. II. was not the true measure, we may infer that the point would have been raised. Upon principle, I may 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, and sue for the diflerence between the contract price and the actual sale. Sands and Crump v. 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 the case, that the subsequent sale of the residue was not a waiver of the contract, the vendor being at liberty to dispose of it bond fide^ in consequence of the refusal of the purchaser to accept the wheat. This case shows that where there has been a valid contract of sale, the vendor is entitled to the full price, whether the vendee receive the goods or not. I cannot see why the same principle is not applicable in this case. Here was a valid contract to make and deliver the sulky. The plaintiff performed the contract on his part. The defendant refused to receive the sulky. The plaintiff might, upon notice, have sold the sulky at auction, and if it sold for less than 180, 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- sary, 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 certainly 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 tliis case Avas entitled to his verdict. The question upon tlie action being j^rematurely 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. Nexo trial denied. ot, »^ SECT, v.] DOWNER V. THOMPSON. ' '893 DOWNER V. TIIOMPSOK Supreme Court of New York, October Term, 1841. [Reported in 2 Hill, 137.] Assumpsit, tried at the Oneida circuit on the 8th of October, 1840, before Gridley, C. J. The dechiration contained counts for goods bargained and sold, and also for goods sold and delivered. The facts appearing on the trial were as follows : — The defendant, who resided at Hastings, Westchester county, on the 21st of August, 1838, addressed an order to the plaintiff, who resided at Chittenango, Madison county, for 250 barrels of cement, to be for- warded as soon as practicable. On the 4th of September following, the plaintiff shipped on board a canal boat 260 barrels, which arrived at Hastings on the 17th of the same month, and were offered to the defendant. He objected, among other things, that there were more barrels than he had ordered, and finally refused to receive any of the cement. The boatmen having it in charge proceeded to New York, and there stored it. The defendant's counsel insisted at the trial that the evidence did not sustain either the count for goods bargained and sold, or that for goods sold and delivered. He therefore moved for a nonsuit, which was granted, and the plaintiff excej^ted. The latter now moved for a new trial on a bill of exceptions. W. McCall and S. Beardsley^ for plaintiff. C. P. KirJdand and J. A. Spencer, for defendant. By the court, Cowex, J. The difficulty of the plaintiff lies in his not having numerically complied with the order, which Avas for 250, not 260 barrels. Had he shipped the 250 barrels, no doubt the prop- erty would have passed, and the count for goods sold and delivered been well sustained; because a delivery to the carrier for the account and risk of the consignee, is in law a delivery to the latter. • Coxe v. Harden, 4 East, 211. But neither count was satisfied by the shipment or offer of the 250 barrels from among a larger number, the true amount being neither counted nor Aveighed out. The property yet remained to be specified before the defendant could knoAV what to call his own; and it is entirely settled, that Avhere any act yet remains to be done by the vendor, such as weighing, measuring, or counting out of a common parcel, no property passes. Short of this there is no sale, much less a delivery. Long on Sales, 267 et seq., ed. of 1839. The excejition at page 274, mentioned by the jjlaintiff's counsel, of a 894 ANDREWS V. DURANT. [chap. II. certain number of dollars sent in a barrel among others not intended for the consignee, is a difterent case. It went on the ground that the dollars were all of the same value, which cannot be predicated of the barrels in question. Beside, there is perhaps some difficulty in sustain- ing the exception without running foul of a strong current of cases. We think no action will lie, unless it be a special assumpsit for not ^accepting the cement. J^ew trial denied. ^ / ANDREWS AND Others v. DURANT and Others. New York Court of Appeals, June Term, 1854. [Reported in 1 Kernan, 35.] Appeal from a judgment of the general term of the Supreme Court held in Albany county. The plaintiiFs brought an action in the nature of trover for a barge in an unfinished state, which they alleged the defendants had converted to their own use. The defendants denied the allegations in the complaint, and set up title to the barge in them- selves. The cause was tried before the Hon. M. Watson, a justice of the Supreme Court, in April, 1850, without a jury. The following facts appeared on the trial. On the 24th April, 1849, the defendants entered into a contract, in writing, with William H. Bridger & Co., ship-builders, by which the latter agreed " to build " for the defendants, for the sum of 15000, a barge of certain dimensions and with a certain ^ size and description of timbers, &c., which were particularly specified, V except the rail, which was to be " according to direction of superin- ^tendent." The fui-ther provisions of the contract ^vere as follo-ws: u" All the materials to be furnished by the builder, and all to be of the ^ first quality, and the work subject to the superintendent, who shall ave the jDrivilege of rejecting any timber he may think is not suitable, and object to any work not done in a workmanlike manner. The model of the boat to be made like barge I. L. Brown. The boat to be furnished complete, and ready for the ship-chandler according to the above specification on the first day of August next, and delivered to Dui-ant, Lathrop, & Co., the defendants, at Kingston. In case the barge is not complete by the time specified above, or within ten days of that time, W. H. Bridger & Co. agree to forfeit tw^o hundred and fifty dollars for every week's delay. Payment: The said five thousand dollars to be paid as follows; viz., one thousand dollars when keel is ialH, one thousand dollars when frame is up, one thousand dollars when planked and calked, and two thousand dollars when completed and delivered." SECT, v.] ANDREWS V. DURANT. 895 Bridger & Co. proceeiled in the construction of the barge until tlic 4th dny of Auoust, 1849, wlien, having stojiped payment, tliey assigned the unfinished vessel with their other proi)eity, to the 2)laintifl[s as trus^ tees for the benefit of their creditors, accordinjx to certain classes of preference. The barge had been so far advanced in its construction as to be planked, and the_defGudaats had paid the builders §3000 accord- ing to the contract, that is to say, ^1000 at eacli of the three separate stages of the Avork first referred to in the contract, Avhen the builders failed. The defendants, having obtained possession of the barge, ])ro- posed to the plaintiffs to finish it, and offered in that event to pay them the balance of the contract price, but this was declined; and the i)lain- tiffs demanded the barge of the defendants, who would not give it up. The defendants then ])rocured it to be completed on their own account, at an expense of $700. The person who acted as superintendent in the building of the barge was sworn, and testified that he was em- ployed exclusively by the defendants and was paid by them. Judgment was rendered by Justice Watson in favor of the defend- ants, and the plaintiffs excepted: it was affirmed at the general term. The plaintiffs appealed to this court. JSf. Hill, tfun., for the appellants. I. The promise of Bridger & Bishop was to build and complete the barge, and deliver it at Kings- ton on a future day, they to find all the materials. It was therefore not a contract of sale, and no title vested in the defendants. Merritt V. Johnson, 7 John. 478 ; Gregory v. Stryker, 2 Denio, 628 ; Johnson V. Hunt, 11 Wend. 139. 1. Such a contract, until entirely executed, has uniformly been treated in this country as one for work and mate- rials, not of sale ; and the same doctrine j^revailed in England until after 1822. See cases above cited, and also Mucklow v. Mano-les, 1 Taunt. 318; Towers v. Osborne, 1 Strange, 506; Groves v. Buck, 3 Maule & Selw. 178 ; Lawrence, J., 2 Taunt. 42 ; Hight v. Ripley, 19 Maine, 137 ; Crookshank v. Burrill, 18 John. 58 ; Sewall v. Fitch, 8 Cowen, 215; Mixer v. Ilowarth, 21 Pick. 205; Spencer v. Cone, 1 Mete. 283. 2. The idea that a provision in the contract for advances by the employer, at specific stages of the Avork, changes it into a con- tract of sale, is directly at war with the law as settled here for nearly half a century. Merritt v. Johnson, 7 John. 473 ; Gregory v. Stryker, 2 Denio, 628 ; Johnson v. Hunt, 11 Wend. 139. 3. Nor is it pretended that the provision as to a superintendent can have any such effect, the intent of it being merely to prevent disputes, and avoid the necessity of specifying the work and materials with more minuteness. 15 Eng. Com. Law, 218. 4. So of the circumstance that the employer cannot be obliged to accept any other vessel than the one built of the specific materials ; this being equally true of Merritt v. Johnson, where both parties contributed work and materials. 7 John. 473, 4, 5 ; 11 Wend. 139, Savage, C. J.; Blackburn on Sale, 158, 9, 160; 21 Pick. 205. 896 ANDREWS V. DURANT. [CHAP. II. II. The first departure from the intelligible rule established by the above decisions was suggested in Woods v. Russell, 5 Barn, & Aid. 942 ; and neither the dicta of that case, nor the decision Avhich adopted them, should control the present, for the following reasons (see 5 Barn. & Aid. 946, 7, 8 ; 31 Eng. Cora. Law R. 112) : 1. These dicta were not only without precedent at the time, but against it, and were adopted with manifest reluctance; the court acknowledging its ina- bility to reconcile them with established principles. Clarke v. Spence, 31 Eng. Com. Law R. 107, 111 to 114. 2. They frustrate the more obvious intent of the parties as evinced by the terms of the contract, that being for building a vessel, to be delivered complete, at a fixed time and place; not for transferring parts of it before. 31 Eng. Com. Law R. 112, 113, 114. 3. They separate the visible possession from the ownership, Avhich is contrary to the policy of the law, as it misleads those supplying materials and labor on credit, as well as others. 7 Durnf & East, 233, Kenyon, C. J. ; 9 John. 243, Kent, C. J. 4. The very reason and policy on which they were adopted in England, i. e. that they " had probably been acted on since by persons engaged in ship-building," should insure their rejection here. 31 Eng. Com. Law R. 114; Merritt v. Johnson, 7 John. 473 ; Johnson v. Hunt, 11 Wend. 139 ; Gregory v. Stryker, 2 Denio, 628 ; 23 Wend. 340, Cowen, J. 5. They rest upon no intelligible or satisfactory foundation, at least none which can be maintained without overruling the principle of Johnson V. Merritt, and the cases which have followed it. 15 Eng. Com. Law R. 218 ; Co. Litt. 379 b. 6. This innovation in England resulted in a confusion of rights and in raising various perplexing questions, which have not yet been solved by the courts. 31 Eng. Com. Law R. 110, note. III. The parties are presumed to have contracted, in reference to the well-known general rule established by Merritt v. Johnson, and there is no probability that they meant to adopt the exception since engrafted on it in England. 2 How. R. 612, Baldwin, J. ; Cowen & Hill's Notes, 1456. S. H. Hammond^ for the respondents. I. We insist that the barge was the property of the respondents, from the time the keel was laid, and approved by the superintendent, and the first payment was made. 1. Because upon no other principle can exact and equal justice be done to all parties. The purchaser inspects through his superintendent and receives the property in its then state, and pays according to the contract, for the particular thing thus inspected and approved, and is protected in his payment by his title to the specific thing for which he pays. The builder is protected by his lien upon the property, which secures him the payment of the future instalments as they become due. 2. The respondents contracted for a particular and specific thing, and not for a barge answering a general or particular description. They SECT, v.] ANDREWS V. DURANT. 897 paid their money, not for a barge, but for that specific barge. At each stage of the work, there was a j^ractical delivery to, and acceptance of it by tlie purchaser. When the keel was laid, it was tendered as a finished keel, was accepted and paid for. When the frame was up, it was tendered as a finished frame, was accepted and paid for. When it was " planked and ceiled," it was again tendered as the frame of that same barge, planked and ceiled, was inspected, accepted and paid for. This view of the matter is in entire accordance even with the authorities cited by the learned counsel for the appellants, and is entirely consistent with the theory of the law, as he claims it to be. 3. This very identical question is as clearly settled by authority in favor of the respondents as any question ever was or ever can be. Story on Sales, p. 254-5, §§ 315, 316; Chit, on Cont. 5th Amcr. from 3d Lond. ed. 378-9 ; Long on Sales, 288 ; Woods v. Russell, 5 Barn. & Aid. 942 ; Clarke v. Spence, 4 Ad. & El. 448 ; Abbott on Ship. 5th Am. ed. 4, 5 ; Maine Sup. Court, Law Reg. vol. 1, No. 8, p. 434 ; Wilkinson's Law of Shipping, p. 27 et seq.; Faculties' Decisions of the Court of Sessions in Scotland, vol. 9, p. 446. The case of Woods v. Russell, and that of Clarke v. Spence, have been frequently referred to by the English Courts with approbation, and as settling the law on the precise question involved in the case. 2 Mees. & Welsh. 602. The principle of those cases, as we have already shown, is recognized by every P^nglish and American elementary writer as the fixed law, and there is no case to be found, either in England or in this country, in which the court has overruled or questioned its soundness. II. The cases cited by the appellant do not affect the question now bfefore the court, because in none of them was the price payable by instalments at particular stages of the work, nor was the thing to be made built or to be built under a superintendent employed and paid by the purchaser. These cases affirm a general ])rinciple which we do not deny or seek to evade, a principle moreover which does not conflict at all with our position. Denio, J. In general a contract for the building of a vessel or other thing not yet m esse does not vest any property in the party for whom it is agreed to be constructed during the progress of the work, nor until it is finished and delivered, or at least ready for delivery and approved "by such party. All the authoritie>; aLiixe in this. Towers v. Osborne, 1 Stra. 506; Mucklow v. Mangles, 1 Taunt. 318; Johnson V. Hunt, 11 Wend. 139; Crookshank u. Burrill, 18 John. 58; Sewall V. Fitch, 8 Cow. 215; Mixer y. Ilowarth, 21 Pick. 205. And the law is the same though it be agreed that payment shall be made to the builder during the progress of the Avork, and such payments are made accordingly. In Mucklow v. Mangles, which arose out of a contract for building a barge, the whole price was paid in 898 ANDREWS V. DURANT. [chap. II. advance, the vessel was built, and the name of the person who con- tracted for it was painted on the stern, yet it was held that the title remained in the builder. In Merritt v. Johnson, 7 John. 473, where a sloop was agreed to be built and one-third of the price was to be paid when one-third of the work was done, two-thirds when two-thirds were done, and the balance when it was completed, and before it was finished it Avas sold on execution against the builder after more than a y\ third had been done and more than that proportion of the price had A//< A>een paid, the court decided that the vessel was the property of the ,iy ^builder, and not of the person who engaged it to be constructed. Where during the course of the transaction the vessel or other thing agreed to be built is identified and appropriated so that the mechanic would be bound to complete and deliver that particular thing, and could not without violating his contract substitute another similar /article though otherwise corresponding with the agreement, there - ,y Iwould seem to be more reason for holding that the property was trans- ) Vferred ; still it has never been held that this was enough to pass the 1/ /lA^ title. In Laidler v. Burlinson, 2 Mees. & Welsh. 602, the vessel was about one-third built when the contract was made. The builder and owners agreed to finish that j^articular vessel in a manner specially agreed upon for a price which was the equivalent for the finished ves- sel. Before it was completed the builder became bankrupt, and the possession passed into the hands of his assignee. The Court of Ex- chequer held the true construction of the contract to be that the title was to pass when the ship was completed, and not before. The parties only agreed to buy a particular shij) when complete, and although the builder could not comply with the contract by delivering another ship, still it was considered an executory contract merely. In Atkinson v. Bell, 8 Barn. & Cress. 277, the same principle Avas held in respect to a contract for making sjiinning machinery, and in Clarke v. Spence, 4 Adolph. & El. 448, which is the case principally relied on by the de- fendants, it was admitted by the court that the appropriation of the particular ship to the contract then in question, by the approval of the materials and labor by the superintendent, did not of itself vest the property in the jjurchaser until the whole thing contracted for had been completed. In the case before us, it cannot be denied but that the barge, as fast as its several parts were finished with the ai)proval of the superintend- enT^TJecli'iVie specifically appropriated to the fulfilment of this contract, so that Bridgcr & Co. could not have fulfilled their agreement with the defendants in any other way than by completing and delivering tHatTdentrcalToat. This results from the consideration that the super- intendent could not be called upon to inspect and approve of the work and materials of another barge, after having performed that duty as to one ; so that the contract would be broken up unless it ajjplied itself SECT, v.] ANDREWS V. DURANT. 899 to this vessel. But it is clear that tliis circumstance alone docs not operate to trnns'fer the title. The precise "question in this case is whether the concurrence of both particulars — the payment of parts of the price at specified stai^es of the work, and the intervention of a s uperinte ndent to insj^ect and a])})r()\(' (if tin w • irk and materials — produces a result Avhich neither of them separately Avould effect. It is no doubt coniiietent for the parties to agree when and upon Avhat con- ditions the property in the subject of such a contract shall vest in the prospective owner. The present question is therefore simply one of construction. The inquiry is Avhether the parties intended by the pro- visions which they have inserted in their contract, that as soon as the first payment had become payable and had been paid, the projiertv in the unfinished barge should vest in the defendants, so that thereafter it should be at their risk as to casualties, and be liable for their debts, and pass to their representatives in case of their death. Such an agree- ment would be lawful if made, and the doubt only is whether the parties haA'e so contracted. The courts in England, under contracts in all material respects like this, have held that the title passed. In Woods v. Russell, 5 Barn. & Aid. 942, the question came before the Court of King's Bench, and Abbott, C. J., distinctly declared his opinion that the payment of the instalments under such a contract vested the property in the ship in the party for whom it was to have been constructed. But there was another feature in the case upon wdiich it w\as finally decided. The builder had signed a certificate for the purpose of enabling the other party to procure the vessel to be registered in his name, and it Avas so registered accordingly Avhile it was yet unfinished and before the ques- tion arose. The court held that the legal effect of signing the certif- icate for the purpose of procuring the registry was, from the time the registry Avas complete, to vest the general property in the party con- tracting to have the ship built. This case Avas decided in 1822, and Avas the first announcement of the principle upon Avhich the defendants' counsel rely in the English courts. The case of Clarke v. Spence was decided in 18oG. It arose out of a contract for building a vessel, Avhich contained both the features of superintendence and of pavments according to specific stages of the work, as in AVoods v. Russell, and as in the contract noAV before the court. The Court of Kiup's Bench Avas clearly of opinion that as ftist as the diflTerent parts of the vessel Avere approved and added to the fiibric they became appropriated to the purchaser by AV'ay of contract, and that Avhen the last of them Avere so added, and the vessel AA^as thereby comjjleted, it vested in the i»urchaser. The court conceded that by the general rules of law, until the last of the necessary materials Avas added the thing contracted for Avas not in existence ; and they said they had not been able to find any authority for holding that Avhile the article did not exist as a Avhole and Avas in- 900 ANDREWS V. DURANT. [CHAP. II. complete, the general property in such parts of it as had been from time to time constructed should vest in the purchaser, except what was said in the case of Woods v. Russell : and that was admitted to be a dictum merely, and not the jDoint on which the case was decided. The court, however, decided uj)on the authority of that case, though with some hesitation, as they said, that the rights of the parties in the case before it, after the making of the first payment, were the same as if so much of the vessel as was then consti-ucted had originally be- longed to the party contracting for its construction and had been delivered by him to the builder to be added to and finished ; and they said it would follow that every plank and article subsequently added would, as added, become the property of the party contracting with the builder. The dictum in Woods v. Russell was incidentally referred to as the law in Atkinson v. Bell, 8 Barn. & Cress. 277, and the doc- trine there stated, and confirmed in Clarke v. Spence, was assumed to be correct in Laidler v. Burlinson before refeiTcd to. It has also been generally adopted by systematic writers in treatises published or re- vised since the decision of Clarke v. Spence, that case and Woods v. Russell being always referred to as the authority on which it rests. Story on Sales, §§ 315, 316; Chit, on Cont. 378, 9; Abbott on Ship. 4, 5. It is scarcely necessary to say that the English cases since the Rev- olution are not regarded as authority in our courts. Upon disputed doctrines of the common law they are entitled to respectful consider- ation ; but where the question relates to the construction or eflect of a written contract they have no greater Aveight than may be due to the reasons given in their support. Can it, then, be fairly collected from the provisions of this contract, that the title to the unfinished barge was to be transferred from the builder to the other party upon the making of the first payment, contrary to the principle well settled and generally understood that a contract for the construction of an article not in existence is executory until the thing is finished and ready for delivery ? In the first place, I should say that so marked a circumstance Avould be stated in words of unequivocal import, and would not be left to rest upon construction, if a change of property was really intended. The provision for superintendence by the agent of the intended owner, though it serves to identify and appropriate the article as soon as its construction is commenced, does not, as we have seen, work any change of property. Such would not ordinarily be the intention to be deduced from such a circumstance. Many of the ma- terials of which a vessel is comjjosed are ultimately covered so as to be concealed from the eye when it is finished; and as the safety of life and property is concerned in the soundness and strength of these materials, it is but a reasonable precaution to be taken by one who engages a vessel to be constructed, to ascertain as the work progresses i SECT, v.] ANDREWS V. DURANT. 901 that every thing is stanch and durable ; and such a provision, as it seems to me, does not tend to show a design that there shall be a change of property as fast as any materials or work are inspected and approved. It amounts only to an agreement that when the whole is completed the party will receive it in fultilment of the contract. The provision for advances at particular stages of the work is a very usual one where an expensive undertaking is contracted for, and it only shows that the party advancing is willing thus to assist the artisan provided that he can see that the work is going on in good faith, so as to afford a reasonable prospect that he will realize the avails of his ex- penditure in a reasonable period. The argument for the defendants would be somewhat stronger if we could say that the amount to be advanced at the several stages mentioned was understood by the par- ties to be the price or equivalent for the labor and materials already expended. This by no means ap])ears, but on the contrary there is strong reason to believe that in this case a considerable portion of the price was to be at all times kept back in order to secure the speedy completion of the contract. When Bridger & Co. failed only 83000 of the §5000 had been paid, and they would not be entitled to any more until the barge was finished, and yet it cost only 6700 to complete it. This renders it improbable that the parties could have intended the sale and purchase of so much as Avas done at the several stages of the work at which payments were to be made, if indeed such a contract were not in itself so much out of the course of the ordinary conduct of parties as not to be assumed without unequivocal language. The decision in Clarke v. Spence is placed very much upon the idea that parties may have contracted in reference to the doctrine an- nounced in Woods v. Russell. That argument can have no force here, but on the contrary the inference to be drawn from our own cases, and particularly from Merritt v. Johnson, would be that the title remained in the builder under such a contract until the completion of the vessel. The foregoing considerations have led me to the conclusion that the modern English rule is not founded upon sufficient reasons, and that it ought not to be followed. The judgment of the Supreme Court should therefore be reversed, and a new trial ordered. Parker, J. The question we are called upon to decide is, whether, under the rules of law applicable to the contract, the barge, at the time of the assignment to the plaintiffs, belonged to Bri^lger & Bishop, who constructed it, or to the defendants, who employed them to build it. The general rule is, that if a person contract with another for a chattel which is not in existence at the time of the contract, though he pay him the wdiole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel till it is finished and delivered to him. The case of Mucklow, assignee of VOL. I. 5y 902 ANDREWS V. DURANT. fCHAP. II. Royland, v. Mangles, decided in England in 1808, 1 Taunt. 318, recog- nized, to the fullest extent, the general rule I have stated. It was an action of trover by the assignees of a bankrupt for a barge and other effects. Royland, who was a barge builder, had undertaken to build the barge in question for Pocock. Before the work was begun, Po- cock advanced to Royland some money on account, and as it proceeded he paid him more, to the amount of £190 in all, being the full value of the barge. When it was nearly finished, Pocock's name was painted on the stern. Two days after the completion of the work, and before a commission of bankruptcy had issued, the defendant, who was an officer of the sheriff, took the barge under an execution against Roy- land, the barge at the time of the levy not having been delivered to Pocock. It was held that the title to the barge had ncA^er passed from Royl-md to Pocock, and judgment was given for the plaintiff. The correctness of this decision has never been questioned, either in England or this country, but has been repeatedly followed in both. In this State, the more prominent cases are Merritt v. Johnson, 7 John. 473; Gregory v. Stryker, 2 Denio, 628; and Johnson v. Hunt, 11 Wend. 139. But it is sought to take this case out of the general rule, because the work was to be performed under the direction of a suj^erintendent employed by the defendants, and was to be paid for at specific stages of the Avork. The first of the English cases relied on to sustain that position, is that of Woods, assignee of Paton, v. Russell, 5 Barn. & Aid. 942, which was decided in 1822. Paton, a ship-builder, had con- tracted with Russell to build a ship for him and complete it in April, 1819 ; Russell to pay in four instalments. The first and second instal- ments were duly paid. In March, 1819, Russell appointed a master, who superintended the building. On Paton's signing the usual cer- tificate of her build, the ship was registered in Russell's name, and on that day he paid Paton the third instalment. It was held that the general property was vested in Russell from the time the registry was completed, but that the plaintiff had a lien for the work done after payment of the third instalment. There seems to me to be enough in that case to sustain the judgment, independent of the circumstances relied upon by the defendants in this action. The registry of the ves- sel in the name of Russell on the certificate, and by the aid and pro- curement of Paton, was equivalent to a delivery, and was conclusive to show that the parties to the contract agreed that from that time the property belonged to Russell. In delivering the opinion of the court, Abbott, C. J. said, " It is part of the terms of the contract, that given portions of the price should be paid according to the progress of the work ; pai-t when the keel is laid and part when they are at the light plank. The payment of these instalments appears to us to appropriate specifically to the de- SECT, v.] ANDREWS V. DURANT. 903 fenclant the very ship so in progress, and to vest in the defendant a property in that ship ; and that as between him and the buildei-, he is entitled to insist upon the completion of that very shi]i, and tliat the builder is not entitled to require him to accept any other. But this case does not depend merely upon the payment of the instalments ; so that we are not called upon to decide how far that payment vests the property in the defendant, because here Paton signed the certifi- cate 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 being in the defendant." The decision in Woods v. Russell seems very improperly to have been considered as resting on the ground first stated in the extract I have made. Atkinson v. Bell, 8 Barn. & Cress. 277; 15 Eng. Com. L. 216. And so far it has evidently been looked upon with distrust and followed with reluctance in the later decisions of the English courts. "In Clarke et al. v. Spence et al., 4 Adol. & Ellis, 448, 31 Eng. Com, L. 107, the plaintifi" contracted with a ship-builder to build him a ship for a certain sum, to be paid in instalments, as the work proceeded. An agent of the plaintiff was to superintend the building. The builder became bankrupt befoi'e the ship was completed. Altei'wards the as- signees completed the ship, and all the instalments were paid or tendered. In trover, by the plaintifi" against the assignees, for the ship, it was held that on the first instalment being paid, the property in the por- tion then finislied became vested in the plaintifi", subject to the right of the builder to retain such portion for the purpose of com})leting the work and earning the rest of the price, and that each material, subse- quently added, became, as it was added, the property of the general owner. This decision was made, as was said by Williams, J., who delivered the judgment of the court, "with some hesitation," and en- tirely upon the authority of the expression in the opinion of the court in Woods V. Russell, first above quoted. Williams, J., conceded that the facts in the case of Woods v. Russell did not make it necessary to determine the point whether the building of the vessel under the superintendence of a person appointed by the pui'chaser, and the pay- ment of instalments at particular stages of the work, vested the gen- eral property in the purchaser, and added, "Neither did the decision of the court proceed ultimately on any such point, but on the ground that the vessel by virtue of the certificate of the builder had been registered in the name of the purchaser, and that the builder had by his own act declared the general property to be in the purchaser." And he proceeded in a very full and able opinion to show that the opinion, thus extra-judicially expressed in Woods v. Russell, was in conflict with well-established rules of law. Williams, J., said, " Until the last of the necessary materials be added, the vessel is not com- 904 ANDREWS V. DURANT. [CHAP. II. plete ; the thing contracted for is not in existence ; for the contract is for a complete vessel, and not for parts of a vessel ; and we have not been able to find any authority for saying that whilst the thing con- tracted for is not in existence as a whole, and is incomplete, the gen- eral property in such parts of it as are from time to time constructed shall vest in the purchaser, except the above passage in the case of Woods V. Russell." And he followed the authority of Woods v. Rus- sell on the ground that it had been subsequently recognized, and that such construction had probably been acted upon since the decision, by persons engaged in ship-building. The cases of Woods v. Russell and Clarke v. Spence were recognized in Laidler v. Burliuson, 2 Mees. & Welsh. 602, though they were not followed, being inapplicable to the case then before the court. It cannot be denied but the decision in Clarke v. Spence covers the whole ground assumed by the defendant's counsel in this case, but it has never yet been followed in this country. In Moody v. Brown, 34 Maine R. 107, allusion is made to such an exception to the general rule, but it was unnecessarily made, inasmuch as it was adjudged that the case did not come w^ithin such an exception. It has also been stated in the elementary books as resting on the English decisions I have cited. Story on Sales, §§ 315, 316; Chitty on Cont. 378; Long on Sales, 288. I find no adjudged case in which the exception claimed has been applied in this country, and the case of Clarke v. Spence, not beino- authority of itself, ought not to be followed here if it is in con- flict with well-settled principles of law, or inconsistent with decisions made in our own State. We are not placed in a situation to feel any of the embarrassment from a supposed precedent under which the court felt compelled in the case of Clarke v. Spence to make a decision inconsistent with their own reasoning and against their own good judgment. A well-established general rule, if founded upon principle, should not be invaded by an exception without good reason. The question is simply what was the contract of the parties. 2 Mees. & Welsh. 602. If it was intended that certain parts of the ves- sel should pass to the defendants, as the work progressed and was paid for it was very easy ^br the parties to have so provided in the contract in express terms. As they did not do this, we must gather the intent from the contract as expressed. It is not a contract to purchase parts of a barge, but an entire vessel ; and the general rule that the title does not pass till completion and delivery, must control the construc- tion unless a different contract is to be implied from the fact that the barge was built under the superintendence of a person employed and paid by the defendants, and was paid for by instalments at certain stages of the work. It cannot be claimed that the employment of a superintendent who decided upon the quaUty of the materials and approved the work, SECT, v.] , ANDREWS V. DURANT. 905 amounted to a delivery of the parts as the work progressed ; but it is supposed that inasmuch as it bound the builders to deliver that par- ticular barge and took away from tliem the right to substitute another in its place, it amounted, together Avith the payments, to a transfer of the general property to the jjurchaser. The mere payment by instal- ments at specific stages does not of itself imply any thing further towards a change of title to property than the payment of instalments at fixed periods of time. Now, conceding that the effect of both these circumstances combined is to place the builder in a situation in which he Avould be bound to finish and deliver the s{)ecific vessel begun, it by no means follows that they vest the title to the vessel in the purchaser before its completion. It becomes, in such case, simply a contract for the finishing and delivery of that particular vessel ; and the obligations upon the parties are the same as if the builder had contracted to finish and deliver a particular vessel partly constructed at the time of the contract. Merritt v. Johnson, 7 John. 473, Avas a case in which it was adjudged that the property to the vessel remained in the builder until comple- tion and delivery, though some of the materials employed had been furnished by the purchaser. The question of ownership by no means depends upon the right that a particular article in preference to another shall be finished for the purchaser. In Merritt v. Johnson, supra, Travis agreed to build a ship for E. Merritt and to furnish the timber for the frame, and E. Merritt was to pay in instalments and furnish the materials for the joiner's Avork. E. Merritt furnished various materials and advanced money to Travis with which to purchase other materials, and after- wards assigned the contract to D. Merritt, who continued to furnish materials and advance money to Travis on the contract, until about one-third the vess*el was finished, Travis having furnished the materials he was bound to suj^jdy under the contract, when it was levied on under an execution against Travis and sold by the sheriff to C, who afterwards completed the vessel and sold her to Johnson. An action of trover being brought by D. Merritt against Johnson, it was held that the property in the vessel was in Johnson, and that D. Merritt could not have any property in the vessel under the contract until she was completed and delivered to him. This was therefore a case where the ownershij) remained in the builder, though he would have no right to have substituted another vessel in its place, part of the materials having been furnished by the purchaser. It appeared in Merritt i). Johnson that the ship was built upon ground hired by Travis, and in this suit the barge remained at the yard of the builders. It is said, however, in Johnson v. Hunt, 11 Wend. 139, that had the fact been difierent in Merritt v. Johnson it would not have change>[ I Action of tort for the conversion of an unfinished ship. Answer, ^ \'^ i property in the defendants as assignees of Currier & Townsend, in- > % ' ^ solvent debtors. The case was submitted to the judgment of the \^ ^ "l"^ court, with power to draw such inferences as a jury might, upon an \ .^ y\ agreed statement of facts, in substance as follows: — S» J <| On the 14th of March, 1856, an agreement in writing was made be- i \ Ni tween the plaintiffs and Currier & Townsend, by which the latter J r^ V ^iiif^ertook to build, finish, and complete, ready for sea, for the plaintiffs, ^ * \ \i^ first-class copper-fastened ship, to be ready for sea, at a wharf in \\ ? 4 ^ewburyport, by the 1st of July, 1856; the plaintiffs agreed to pay to T '^ i \k Currier '& Townsend, " from time to time, while said ship is building, ^ the sum of twenty to twenty-five thousand dollars, and when the ship A IS ready for sea, such amount as shall make altogether the sura of fifty- eight thousand dollars ; " and it was agreed that " no interest is to be charged on the amounts advanced" to Currier & Townsend by the plaintiffs. ' ■ On the 22d of March, the plaintiffs farther agreed in writing to pay J ^ ^ Currier & Townsend, "till the amount of twenty to twenty-five thou- ^ jk 3 ^^ sand dollars is paid as per contract, one thousand dollars every week, ^ \^\^ Saturday." > V^ \\i The making of the first agreement was preceded by verbal negotiar- ^ tions, in the course of which the plaintiffs informed Currier & Town- send that Captain Israel P. Williams would superintend in their behalf the building of the ship, and Currier & Townsend gave their assent to this arrangement. Captain Williams had previously superintended tl\e building of another ship by Currier & Townsend for the plaintiffs. On the 15th of March, the plaintiffs addressed a note to Currier & Townsend, stating that they had employed Caj^tain Williams to super- intend the building of the ship, and requesting that he might be con- sidered their agent in all things pertaining to such superintendence. 1 Approved and followed in Green v. Hall, 1 Houston (Del.), 506, 546. — Ed. SECT, v.] WILLIAMS V. JACKMAN. 907 This note was delivered on the same day by Captain Williams to Cur- rier & Townsend at their place of business. About the same time, Currier & Townsend began to build the ship, and carried on the work till the 9th of the following May. Every day during this time. Captain Williams Ayas at the ship-yard where the ship was building, giving directions, making suggestions, talking with Currier & Townsend about the work, and devoting his whole time to superintending it; and the plaintiffs paid him his exj)enses, and three dollars a day for his services. The plaintiffs paid three thousand dollars to Currier & Townsend on the 22d of March, and one thousand dollars on Saturday of every week thereafter, until the work was stopped. This money was paid on one occasion by one of the plaintiffs, and on every other occasion by Captain Williams, who called at the plaintiffs' place of business on Saturday of every week to receive it, and at the same time reported to them the progress made in the work. Currier & Townsend signed receipts for the money as paid on account of a ship building by them for the plaintiffs. On the 21st of May, Currier & Townsend petitioned for the benefit of the insolvent laws, and, upon due proceedings had, the defendants were chosen their assignees, and the shi}> came into their possession as such. The defendants, upon notice of the plaintiffs' claim, refused to deliver the ship to them, and finished and sold her for the benefit of all the creditors. /S. E. Sewall and S. H. Phillips^ for the i^laintiffs. It has long been settled law in England and Scotland, and has been generally recog- nized in this country, that the payment by instalments for a ship built under the superintendence of the person for whom she is built, makes him the owner of her, from the time of the first payment. Woods v. Russell, 5 B. & Aid. 942; Rohde v. Thwaites, 6 B. & C. 392; Elliott V. Pybus, 10 Bing. 516 ; Atkinson v. Bell, 8 B. & C. 282 ; Clarke y. Spence, 4 Ad. & El. 448 ; Wood v. Bell, 5 El. & BI. 772, and 6 El. & Bl. 355 ; Laidler v. Burlinson, 2 M. & W. 602 ; Moody v. Browne, 34 Maine, 107; Butterworth u. McKinly, 11 Humph. 209; Abbott on Shipping, 4, 5; Maude & Pollock on Shipping, 18, 19; Blackburn on Sales, 160, 161 ; Long on Sales (Rand's ed.), 288 ; Story on Sales, §§234,316; Chit. Con. (oth Amer. ed.) 378; Addison on Con. 223, 1034; 2 Parsons on Con. 30, note; Bell on Sales, 17. The intention of both parties was to vest in the plaintiffs the title to the ship while building, and between them no delivery or change of possession is necessary. The intention of the vendor to pass, and of the vendee to accejjt, the title is sufficient. Lanfear v. Sumner, 17 Mass. IIU; Damon v. Osborn, 1 Pick. 476; Brown v. Bellows, 4 Pick, 193 ; Shumway v. Rutter, 7 Pick. 58 ; Ludwig v. Fuller, 17 Maine, 162 ; The defendants as assignees can have no greater riglits than Currier & Townsend had. Lanfear v. Sumner, 17 Mass. 115; Lempriere v. Pas- 908 WILLIAMS V. JACKMAN. [CHAP. II. ley, 2 T. R. 490 ; Mitchell v. Winslow, 2 Story, 637. But if delivery was necessary, the circumstances show a delivery to Captain Williams, as the plaintiffs' agent, and the rest follows by right of accession. Glover v. Austin, 6 Pick. 209 ; Sumner v. Hamlet, 12 Pick. 82. In Mucklow V. Mangles, 1 Taunt. 318, there was no sup^-intendence of the building of the vessel, and nothing was done indicating accept- ance of the work ; and that case was doubted by Park, J., in Carruthers V. Payne, 5 Bing. 270. In Merritt v. Jolmson, 7 Johns. 473, also, there was no superintendence. The decision in Andrews v. Durant, 1 Kernan, 35, cannot overbalance the authorities already cited. The omission, in the original contract, of any provision for superin- tendence is immaterial, since the superintendent was appointed and eno-ao-ed in his duties the very day after the date of the contract. Wood V. Bell, above cited. Nor is the plaintiffs' title affected by the fact that the amount of the weekly payments was not made to depend upon the progress of the work. It is obvious that at least one thou- sand dollars in value of work and materials would be put into the ship each week, and the plaintiffs would not be held to make the weekly payments agreed upon, unless at least equal amounts in labor and materials had been previously put into the ship. J^. a. Curtis and C. T. Btcssell, for the defendants, cited also Baker V. Gray, 17 C. B. 462 ; Oldfield v. Lowe, 9 B. & C. 73 ; Tripp v. Armi- tage, 4 M. & W. 687 ; 1 Parsons' Marit. Law, 74 ; Decker v. Furniss, 4 Kernan, 611 ; Low v. Austin, 20 N. Y. 181; Brown v. Morgan, 2 Bosw. 485 ; Comfort v. Kiersted, 26 Barb. 472 ; Jql^nson v. Hunt, 11 Wend. 135 ; Bonsey v. Amee, 8 Pick. 236 ; Sumner v. Hamlet, 12 Pick. 82; Mixer V. Howarth, 21 Pick. 205; Spencer v. Cone, 1 Met. 283; Lamb v. Crafts, 12 Met. 356 ; Forsyth v. Dickson, 1 Grant, 26 ; Clemens V. Davis, 7 Barr, 263 ; Pritchett v. Jones, 4 Rawle, 266 ; U. S. St. 1850, c. 27, §1. BiGELOW, C. J. Under a contract for supplying labor and materials and making a chattel, no property passes to the vendee till the chattel is completed and delivered, or ready to be delivered. This is the gen- eral rule of law. It must prevail in all cases, unless a contrary intent is expressed or clearly implied from the terms of the contract. In the case at bar, no such intent appears. The contract of the builders was to finish the vessel, and have her ready for sea at a speci- fied place on or before a day certain. The vendees were to pay a fixed sum when the vessel was completed and ready for delivery. They were also to advance certain sums, from time to time, amounting to less than half the stipulated price, in anticipation of the completion of the work, but the sums so to be advanced were not graduated or measured by the amount of work done or of materials furnished or the progress made towards the final fulfilment of the contract. There was no stipulation to pay instalments at certain specified successive SECT, v.] MOODY V. BROWN. 909 stages of the work ; it was a mere agreement to make certain pay- ments, by way of advance, which were fixed upon arl)itrarily, without reference to the extent of the hibor and materials actually expended and used for the construction of the vessel at the time they were to be made. Nor was there any right reserved to the vendees to control or direct the work, or to exercise any superintendence or control over it, during its progress. It is true that the agent of the vendees was allowed to be present in the ship-yard Avhere the vessel was building, but this was by permission only granted by the builders. It was no part of the original contract, and the builders might, at any time, have revoked this permission, Avithout violating any part of their agreement. The case at bar is clearly distinguishable from the cases determined by the English courts, Avhich have been cited in the argument. To say the least, some of those decisions rest upon very questionable grounds. They have been carefully reviewed, and the validity of the reasons by which it is attempted to vindicate them has been impugned by approved text-writers, and in judicial decisions by courts in this coun- try. The case of Andrews v. Durant, 1 Kernan, 35, contains an elaborate discussion of all the decided cases, and an ex])osition of the application of the rule of law to contracts for the building of ships, adopted in the State of New York, and confirmed by subsequent de- cisions. Judgment for the defendants} , , '^ MOODY V. BROWN. '' '^'^ • ^"^ ^ Supreme Judicial Court of Maine, 1852. / ■^' ' , ^ /^ ^ ^ y / {Reported in 34 Maine Reports, 107.] t-^ / ./^^"^^ ^-^,^-y^ On exceptions from the district court, ITathaway, J. / /n*^ Assumpsit, on account for materials and labor furnished, and one on »-^^ an account for articles sold and delivered. The account was for stereo- l^^^ type plates, $18; alteration of same, $4; and some interest and express- jf^^vt^ge, making in all $125.04. A witness for the plaintifi" testified that in behalf of the plaintiff he presented the bill and requested payment, to which the defendant replied that he had ordered the plates, but did not feel able to take them ; that there was a mistake in them, which the plaintiff was to correct at his own expense ; that he afterwards carried the plates to the store of the defendant, Avho refused to take them ; that he left them there, against the remonstrance of the defendant ; that the defendant afterwards offered to pay $20 for the whole bill ; that at a still subse- 1 See Briggs v. A Light Boat, 7 Allen, 287, 292-3, per Bigelow, C. J. —Ed. 910 MOODY V. BROWN. [CHAP. II. quent period, the witness asked the defendant when he would pay the $20, who rephed that he would do it in a few days ; and that the de- fendant afterwards repeatedly said he would pay the twenty dollars. The judge instructed the jury, that, if defendant contracted for the plates to be made for him, and refused to accept them when made, although he might be liable to plaintiff in an action for damages for not fulfilling his contract, yet he would not be liable in this action for their value, as for goods sold and" 3eiivered ; that if they were left at de- fendant's store against his consent and remonstrance, such a proceeding on the part of the plaintiff could have no effect to vary the liabilities of defendant. But if afterwards defendant offered to pay the twenty dollars in full for the bill, and if that offer was accepted, the plaintiff would be entitled to recover the twenty dollars and interest thereon from the time such offer Avas accepted, but that the defendant would not be bound by that offer, unless it was accepted. J. E. Godfrey^ for plaintiff. Where an agreement is performed on one part, it cannot be repudi- ated on the other. The tender of the plates was tantamount to a delivery, and the rule of damages is the value of the plates, for which this action was brought. The case of Bement v. Smith, 15 Wend. 493, is in point, and con- clusive for the plaintiff. It is identical with this, except that here the goods were not only tendered, but left with the defendant. 18 Johns. 58 ; Strange, 506. Simpson^ for the defendant. The opinion of the court, Sheplet, C. J., Wells, Rice, and Apple- ton, JJ., was drawn up by Shepley, C. J. There is not a perfect agreement of the decided cases upon the question presented by the exceptions. The law appears to be entirely settled in England in accordance with the instructions. Atkinson v. Bell, 8 B. & C. 277 ; Elliott v. Pybus, 10 Bing. 512 ; Clarke v. Spence, 4 Ad. & El. 448. The case of Bement u. Smith, 15 Wend. 493, decides the law to be otherwise in the State of New York. The case of Towers v. Osborne, Stra. 506, was referred to as an authority for it. The plaintiff in that case does appear to have recovered for the value of a chariot, which the defendant had refused to take. No question appears to have been made respecting his right to do so, if he was entitled to maintain an action. The only question decided was, whether the case was within the Statute of Frauds. In the case of Bement v. Smith, C. J. Savage appears to have con- sidered the plaintiff entitled upon principle to recover for the value of an article manufactured according to order and tendered to a customer refusing to receive it. SECT. VI.] WALLET V. MONTGOMERY. 911 This can only be correct ujion the ground tliat by a tender the prop- erty passes from the manufacturer to the customer against his will. This is not the ordinary eifect of a tender. If the property does not pass, and the manufacturer may commence an action and recover for its A'alue, while his action is ])ending it may be seized and sold by one of his creditors, and his legal rights be tliereby varied, or he may receive benefit of its value twice, while the customer loses the value. The correct principle appears to have been stated by Tindal, C. J., in the case of Elliott v. Pybus, that the manufacturer's right to recover for the value depends upon the question, whetlier the pro]ierty has passed from him to the customer. The value should not be recovered of the customer, ludess he has become the owner of the property, and can protect it against any assignee or creditor of the manufacturer. To effect a change in the property there must be an assent of both parties. It is admitted that the mere order given for the manufacture of the article does not affect the title. It will continue to be the prop- erty of the manufacturer until comi)leted and tendered. There is no assent of the other party to a change of the title exhibited by a tender and refusal. There must be proof of an acceptance or of acts or words respecting it, from which an acceptance may be inferred, to pass the property. This appears to be the result of the best-considered cases. There is a ])articular class of cases to which this rule does not apply, where the customer employs a superintendent and pays for the prop- erty manuflact)^recU)y instalments as the work is performed. ' J^ (jy \U i/ ] Exceptions oveiruled. <^ A' if. " SECTION .-. ijjippropriation, conditional upon paying or securing the price. 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 Ellcnborough, C. J., at the sittings in London after last term, that the plaintiff, a merchant at Liverpool, o-ave an order for the timber to Schumann & Co., merchants, residing 912 WALLEY V. MONTGOMERY. [CHAP. II. at Memel; in pursuance of which Schumann & Co. informed the plain- tiflf by letter of tlie 1st of May, 1802, that they 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, 1?02. 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. 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 accord- ing to charter-party ; " which was signed by Rose, the captain, and in- dorsed in blank by Schumann & Co. The charter-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 defendant at the same time, who appeared from the circumstances to have acted as their agent, though he did not avow himself to be act- ing in that character at the time ; by virtue of which bill of lading the defendant 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 the bills drawn on him by Schumann & Co. and demanding the timber, which 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 fi'om the captain, telling him that he was ready to perform 'his part of the contract ; but the captain said that 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 plaintiff was nonsuited. Gibbs and Park showed cause against a rule for setting aside the nonsuit and granting a new trial, and contended that no legal title to the timber vested in the plaintiff, so as to enable him to maintain trover for it. For, 1st, the bill of lading to the plaintiff was only con- ditional, "he paying freight for the said goods according to charter- SECT. VI.] WALLEY V. MONTGOMERY. 913 party." It Avas incumbent on him tlicvcfore to show that he liaart of Oddy & Co., the right of the shippers ceased, and the prop- erty vested absolutely in Oddy & Co, or their assigns. Though in Bohtlingk v. Ingiis,^ it was considered that a claim by the consignees upon the captain while the goods were in transitu was equivalent to an actual stoppage of them ; because the captain should not decide the property by his own wrongful act in making the delivery to the assignees of the consignees after notice from the consignors to with- 1 3 East, 381. SECT. VI.] COXE V. HARDEN. 919 hold the goods. It Avould be very inconvenient to commerce if it were established that the property of goods shipped remained in the sliippers till delivery of a bill of lading indorsed ; for bills of lading are seldom given in the coasting trade, and in others it often haijpens that they are sent unindorsed ; and the entries at the custom-house, which are required to be made Avithin a given time under penalty of confiscation, must be made by persons properly authorized. Giles, in reply, said that the indorsement of the bill of lading trans- ferred by a consequence of law the legal pi'operty in the goods to the plaintiffs, whatever might be the intention of the jjarties ; and there- fore it was not like a power of attorney, Avhich only enables the attor- ney to sue in the name of his principal : and the only effect of the want of a valuable consideration paid by tlie plaintiffs is, that they stand in the same situation as Oddy & Co. would have done, in which view of the case the time of making such indorsement cannot vary the ques- tion ; though certainly a bill of lading operates after the landing of the goods. [Le Blanc, J. It does not aj)pear in the case when the bill of lading was indorsed to the plaintiffs; therefore we cannot take notice of that fact.] Then, as between Browne & Co. and Oddy & Co., the property never passed from the first to the last mentioned. No con- sideration was ever paid by Oddy & Co., and the legal title never passed from the shipjjers who shipped on their own account, as appears by the express words of the bill of lading. LoKD ELLENBOKoiKiii, C. J. If it wcrc necessary to decide whether or not the plaintiffs could maintain this action, supposing the property not to have passed to Oddy & Co., I should think that they could not; for no decision of a court of law upon the subject of bills of lading has gone further than to say that the assignment of a bill of lading by the consignees for a valuable consideration, and without notice by the party taking it of a better title, passes the property in the goods thereby consigned. But no consideration having been paid by the plaintiffs in this case for such assignment, they took the bill of lading merely as agents for Browne & Co., and wthout any property in themselves in the goods. The analogy between bills of lading and bills of exchange has been pushed in the argument beyond all warrant of authority ; but I agree to the extent of the doctrine in the case of Lickbarrow v. Mason, that an indorsement of a bill of lading for a valuable consider- ation, and without notice by the indorsee of a better title, passes the property. But supposing the plaintiffs to stand in the situation of Browne & Co., they would still not be entitled to recover. The goods were originally purchased for Oddy & Co., by their orders, and ship|)ed for their use and at their risk ; they were therefore entitled to the pos- session of them as soon as they arrived, the shippers not having stopped them, in transitu ; and the only thing which stood between Oddy & Co. and such possession was the circumstance of the captain's having 920 ' COXE V. HARDEN. [CHAP. II. si2:ned bills of lading in such terms as did not entitle them to call upon him for a delivery under their bill of lading. But that difficulty has been removed; for the captain has actually delivered the goods to their assigns. Whether in consequence of that Browne & Co. may maintain an action against the captain is another question ; but it is enough to say that the delivery has been made, that is, made to those to whom and for whose use the goods were sent, and at whose risk they were without doubt while in transitti, and in whom the property therefore was, subject only to a sort oi jus postliminii, the right in the shippers of stopping them in transitu ; but here that right was not attempted to be exercised till after the goods were arrived and deliv- ered into the hands of the persons for whom they were destined, when it was too late. I observe indeed at the foot of the account of sales that the net proceeds are only stated to be carried provisionally to the credit of Oddy & Co. ; but that is sufficiently explained by what fol- lows, because the property was under litigation. But that cannot affect the question of right as between Browne & Co. and Oddy & Co., to which latter the possession of the defendants can alone be referred. Then the goods which were shipped by the orders and at the risk of Oddy & Co. became their property subject only to the shipper's right of stoppage while in transitu, which right not having been exercised during that period, the goods on delivery became the indefeasible property of Oddy & Co., and they were entitled to transfer their right in them to the defendants. Gkose, J. As to the question touching the property in the goods, it is clearly in the defendants. They were originally ordered to be shipped by Oddy & Co., under whom the defendants claim ; they were accordingly shipped on account of Oddy & Co., and at their risk ; that vested the property in them by law, subject only to be devested by the shippers stopping the goods in transitu. Then has the property been so devested '? We only find that the shippers transmitted a bill of ladino- indorsed to the plaintiffs, to authorize them to receive the goods from the captain. When that indorsement was made does not appear in the case ; it might have been after the goods got to the hands of the defendants. At any rate it came too late after actual delivery to the vendees. Besides, to entitle these plaintiffs to sue, it should appear that the bill of lading was indorsed to them for a valuable consideration. Nothing therefore is shown to devest the property, which originally vested in Oddy & Co. upon the shipment of the goods. After such shipment they might have insured the goods as their property, and would have been entitled to recover the value if lost. And without insurance the loss, if any, in the course of the voyage must have been borne by them. Lawrence, J. It is not necessary to decide the first point, relative to the want of title in the plaintiffs to maintain trover ; but it seems to SECT. VI.] COXE V. HARDEN. 921 me that the plaintiffs' coiinsol has attempted to carry the eftect of the indorsement of a bill of hiding much farther than it has hitherto gone. The indorsement of the bill of lading to the plaintiffs in this case was no more than Browne & Co. giving an authority to the captain to deliver the flax to the person to whom such indorsement directed the delivery to be made. The object in making it was only to enable the plaintiffs to take possession of the flax on account of the shippers, as a matter of precaution in case of the insolvency of Oddy & Co. ; the shippers trusting that the captain would not deliver the goods without a proper authority. There was certainly no intention on their part to transfer the property to the plaintiffs. But supposing that were other- wise, still the plaintiffs would not be entitled to recover. Upon the shipment of the goods on account, and at the risk of Oddy & Co., the property became vested in them, and so it continued from that time, subject only to the consignors' right of stopping it in transitu. That is so clear that no authority is wanted to establish it. Then the right of stopping them not having been exercised while the goods were in tratisitu, when Oddy & Co. got possession of them they had a right to transfer them to the defendants. Le Blanc, J. The only difficulty in the argument arises from taking into consideration the case as between the captain and the ship- pers, and appl}dng it to the question between the latter and the con- signees. The captain, indeed, undertook by the bills of lading which he signed to deliver the goods- only to the order of the shippers, and he may be liable to answer to them for the breach of that contract. But the question is different as between these parties ; for supposing that the plaintifis got the legal property from Browne & Co. by the bare indorsement of the bill of lading, which I much doubt, yet it appears that the goods had been ordered by Oddy & Co., and were shipped on their account and at their risk, by Browne & Co. Then, upon such shipment, without any bill of lading, they became the prop- erty of Oddy & Co., subject only to the right of Browne & Co. to stop them in transitu. Then whether the ]>laintiffs be the agents of Browne & Co. or have a property themselves in the goods transferred to them by the shippers, yet as they could only exercise the right of stoppage while the goods were in ti'ansitu, when once they were in the possession of Oddy & Co., or of those Avho had authority from them to receive them (whether received rightfully or M^rongfully from the captain), the right of stoppage ceased, and the property became indefeasibly vested in Oddy & Co., without any further control of the shippers over it. Upon this ground alone the defendants are entitled to retain the value of the goods. Postea to the defendants. [chap. II. ' \^\ 1/ "" ^^^^ ^' ^-ATKINSON Ind Another. In the Common Pleas, November 15, 1814. [Reported in 5 Taunton, 759.] Trover for a quantity of hemp and flax. The cause was tried be- fore 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 plaintiff" consigned wines to Sniidt & 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, 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 ship, Smidt & Co. procured other goods to be shipped on freight ; the captain, by agreement with the plaintiff" (his owner), was to have £15 per cent primage upon the ship's home- ward 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 Smfdt & 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 in- voices, dated 18-30 June, expressing the flax to be shipped on board the Bremen packet, for the account and the risk of the plaintiff"; and Smidt & Co., after enumerating all the 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, they i^romised to furnish the plaintiff" with the vouchers of the whole shipment; and in another mentioned having before sent him the bill of lading and invoices of those shipments, performed on the plaintiff''s account on board the Bremen packet, and they annexed the SECT. VI.] OGLE r. ATKINSON. 923 duplicate of the vouchors. After the captain hud received the goods, he was requested by Smidt & Co. to sii^n a hill of lading for them, TleTiyera'Ble 'to ' ' ■ ■ or his order, for whicli \\v \va< to receive freight at tEe'rates therein specified. "TTie captain ol)jected to sigh the Bills of lading with a blank for the name of the conpignee, until Smidt & Co. assured him that was of no consequence, as the goods were to be de- livered to his owner, upon which he signed it. . The first-mentioned letter to the plaintiff, which contained the invoices an' 1 1. ill 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 liis not accepting the drafts, Ruckers might become pos- sessors of the bills of lading ; and after stating the amount of the goods loaded for the plaintiff, and charges, and that there would be very little of the proceeds of his wines remaining at his disposal, they added that they drew on him only £2500, which bills they remitted to Messrs. Ruckei-s. They conceived that sum to be the balance due to them, w^hich the plaintiff disputed. In a letter of 2-14 July, Smidt & Co. instructed Lehr to take the necessary measure, that in case Smidt & Co.'s drafts of £1300 and £1200 at three months, drawn on the 4-16 June, were not accepted, he should otherwise dispose of the bills of lading he had in hand, and let Messrs. Ruckers receive the goods and dispose of them. Lehr, in pursuance 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. haY,.e deliver the goods to you, to be the goods of Ogle if he accepts certain bills, the defence would avail; but no such things passes^ cannot annex to this delivery the qualification that they are to be the plaintifl"'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 delivered 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 therefore think that the property of the goods entirely vested in the SECT. VI.] BRANDT V. BOWLBY. 925 plaintiff, anfl that the subsequent acts of the consignors and their agents cannot j)revent hiui from recovering against the defendants ; the judgment tlierefore must be for the plaintitf. Hkatii, J. I am of the same opinion. As to the preUminary point first taken, it is peculiar to the action of ejectment, that he who is entrusted with the possession of land must deliver it back to his lessor, but that rule extends to no other action. As to the merits, it is ad- mitted that at the time of the delivery into the ship, the property was vested in the plaintiff, unless there was something to divest it. It is afterwards said, there was a reservation of the right of the vendor. This, however, is never communicated to the plaintiff, but only to the vendor's agent ; that could not, therefore, affect the right of the plain- tiff, which had before vested. It is similar to the mental reservation of the Jesuits. Chambee, J. I am of the same opinion. Here is an explicit, plain, direct declaration by the parties that the goods are Ogle's, and I can see nothing to revoke or alter it. Dallas, J., concurred. It is properly admitted by the counsel for the defendant, that a delivery on board Ogle's ship was an absolute delivery, unless there were something to make it otherwise, and when the captain is desired to sign a blank bill of lading, and he objects, he is told it will make no difference, inasmuch as the delivery to Ogle is to be in all events absolute. Judgment for the plaintiff . TBRAXDT and Another v. BOWLBY and Another. \' ^>' v\ In the King's Bench, November 7, 1831. ^ [Reported in 2 Bamewall ^ Adolphus, 932.] J* AssiTMPSiT against the defendants, as owners of the ship Helena, for ^ k not delivering to the plaintiffs' orders or assigns at London a cargo of ^ wheat shipi)ed Ijy them. At the trial before Lord Tenterden, C J., at the London sittings after last Trinity term, the following appeared to be the iticts of the case : The plaintiffs were merchants, having establishments at St. Petersburg and Archangel, and Emanuel H. Brandt, brother of one of the plaintiffs, was their agent residing in London. Mr. Berkeley, a commission merchant, who lived at New- castle-upon-Tyne, being desirous of making some purchases in corn, sent, in June and July, 1830, to the plaintiffs (through Emanuel H. Brandt) several orders for the purchase of corn on his account, direct- ing them to draw upon Esdaile & Co., bankers in London, for the 926 BRANDT V. BOWLBY. [CHAP. II. amount, and also upon Harris & Co., in London, to a certain extent. Berkeley chartered four ships, and, among the rest, the Helena, belong- ing to the defendants, and sent them to Russia to be freighted by the plaintiffs. A dispute arose between Berkeley and E. H. Brandt, and the former sent a letter on the 28th of July cancelhng every order he had given. That letter was forwarded to St. Petersburg by E. H. Brandt. Various shipments were made by the houses in Russia, on account of Berkeley, and were transmitted to England in the vessels chartered by him. Bills were drawn upon Esdaile & Co. for the amount, but on their arrival they were dishonored, and the cargoes were refused. The question in this case arose as to a cargo shipped by the Helena. By a letter dated August 8, 1830, to Berkeley, the plaintiffs wrote as follows : — We have succeeded in purchasinij a cvix^o of wheat for the Helena, and shall despatch it as soon as possible to the address of R. Harris & Sons, London, which house we shall address to-day with regard to eifecting the insurance. We trust what we have done for you will meet your approval, although by a com- munication received from Mr. E. H. Brandt subsequently to our having made this purchase we learn that you have been induced to cancel the several orders in our hands. This cargo was afterwards shipped in the Helena for England, and the plaintiffs wrote the following letter to Berkeley : — St. Petersburg, August 26, 1830. We now have much pleasure in waiting upon you with invoice and bill of lad- ing of 770 chests of wheat shipped for your account and risk per the Helena, Mann. For the amount of the former, if found correct, you will please give us credit with £810 4s. bd. An indorsed bill of lading we have this day forwarded to Messrs. R. Harris & Sons, of London, at the same time drawing upon them for £673 155. ; and for the balance remaining thus in our flivor, viz., £130 9s. bd., we this day make free to value upon you at three months' date, payable in London to the order of Emanuel H Brandt, Avhich draft we beg to recommend to your kind protection. An unindorsed bill of lading was enclosed, and an invoice of " wheat bought by order and for account of J. Berkeley, Esq., Newcastle, and shipped at his risk to London, to the address of R. Harris & Sons there, per the Helena, Captain James Mann." The bills of exchange enclosed in this letter drawn upon Berkeley and Harris & Co. were presented for acceptance and refused. Whereupon E. H. Brandt de- livered the indorsed bill of lading to Harris & Co., and desired them to accept the bill of exchange draAvn upon them on his account, and to effect an insurance upon the cargo, which they were to receive on its arrival. In a letter dated September 29, 1830, from E. H. Brandt to Mr. Hedley (who acted as an agent for Berkeley), he wrote, — Mr. Berkeley refuses to receive the cargoes or give any instructions for the acceptance of the bills, and I have been obliged for the security of the property SECT. VI,] BRANDT V. BOWLBY. 927 to insure tlie cargoes, and give the captain orders where to proceed to, though of course I still hold Mr. Berkeley answerable for the consequences of his be- havior. I conceive that you are bound to see that his engagements are fulfilled, and I call on you to see Mr. B. immediately and make arrangements for the acceptance of all the bills without delay. On the 2d of October, Berkeley confirmed the revocation of his orders, and on the 24th of November, E. H. Brandt gave notice to Hedlev that he should retain the whole of the Avheat for his brother; after whicli Berkeley offered to pay the price of the Avheat and the cliarges, but it was refused. The captain delivered the cargo of the Helena to Berkeley's orders at Grangemouth, and not to Harris & Co., in London, according to the bill of lading. Upon proof of these facts, the Lord Chief Justice directed the jury to find a verdict for the plain- tiffs, and to assess the damages at the price of tlie cargo when it reached the port of discharge. Campbell^ for the defendants, moved for a new trial, on the ground of misdirection, or to reduce the amount of damages. The ship-own- ers, who have d'elivered over the cargo of the Helena to Berkeley, if answ^erable at all to the plaintiffs, are only so in nominal damages. Berkeley had sent out orders to Brandt & Co., the plaintiffs, to which they had assented, and thereby a contract was established be- tween them. Afterwards Berkeley sent to cancel all his orders; but he could not of himself rescind the contract ; Brandt & Co. must also have assented to such cancelling. But they did not so assent after they had received the letter of cancellation; they despatched the cargo by the Helena, witli an invoice stating it to have been bought for his account and shipped at his risk. On that shipment, then, the property vested in him. [Lord Tenterden, C. J. He had refused to receive it before that.] But he was afterwards willing to receive it, and offered to pay the invoice price, and all the charges due upon the cargo. It is clear that trover could not have been maintained against Berkeley for the wheat if he had got possession of it. Coxe v. Harden.^ There goods were purchased abroad and shipped on account and at the risk of the consignee, and bills of lading were taken from the captain to deliver them to the consignor's own order. One of them was trans- mitted unindorsed, together with an invoice, to the consignee, enclosed in a letter, informing him that the consignor had drawn upon him for the amount, and an indorsed bill of lading was sent to the consignor's agent. It was held that on the shipment, the property in the goods vested in the consignee. That case is quite analogous to the present, and proves that the wheat could not have been recovered from Berke- ley. [Parke, J. In the present case the letter enclosing the bill of ladino- informed the consignee that an indorsed bill of lading had been 1 4 East, 211. sS^ 928 BRANDT V. BOWLBY. [CHAP. II. sent to another person. That was not so in the case cited.] But sup- posing the court to be of a contrary opinion, then the proper measure of damages was the invoice price of the wheat and the charges, not the value at the port of discharge. The amount of the damages ought therefore to be reduced. Lord Tenterden, C. J. There ought to be no rule in this case. It is an action against the defendants as ship-owners, on the bill of lading, by the terms of which the captain undertakes to deliver certain goods shipped for London, at London, to the pluintiiFs' orders. The com- plaint against the defendants is, that instead of delivering them to the plaintiffs' orders, they delivered them at another place, and to a person who had not the plaintiffs' orders. This was a breach of the contract for which tlie plaintiffs might undoubtedly maintain an action against the ship-owners. But they defend themselves under Berkeley, and say that he had a right to receive the goods, for the property had vested in him, and therefore the plaintiffs are not entitled to more than nominal damages. Let us see how that is. The wheat had been purchased on his order, which he revoked. By the original terms of the contract it was to be sent to London, and bills were to be drawn upon Harris & Co. for the amount. Berkeley, however, insisted he would have noth- ing to do Avith it. Emanuel H. Brandt insisted he should, and that he would hold him to his engagement. The plaintiffs send the letter of the 26th of August stating that they have shipped the wheat on his account. At the same time they inform him that they have forwarded an indorsed bill of lading to Harris & Co., and have drawn upon him and them for the amount. He directed them not to accept the bills drawn on them, and they Avere not accepted. Can it be said that he has performed his part of the contract, which was not only to receive the goods, but also that Harris & Co. should accept bills for payment of the value? He could have no right to the goods unless he allowed Harris &, Co. to accept the bills ; for that was a part of the bargain. After the refusal to accept, E. H. Brandt effected an insurance on the goods for the use of the plaintiffs. It is impossible, thereforCj to say that the property had vested in Berkeley; ^^^ the defendantswefe'' not justified in delivering the wheat to him. The damages ought' ^ be the value of the cargo at the time when it was to have been de- livered, that is, at the port of discharge. Parke, J. I am of the same opinion. This is an action on the bill of lading for not delivering to the assignee of the plaintiffs. The de- fendants have not done that, but have delivered to a third j^arty. In order to defend themselves, they must establish the right of that third party, but in that they have failed. It appears that Berkeley gave orders to the plaintiffs to purchase wheat on his account, and that they consented to execute those orders. Bei'keley, however, took upon himself, in his letter of the 28th of July, to cancel his orders. Now? SECT. VI.] ' BRANDT V. BOWLBY. 929 I agree to the law laid down in argument, that a contract cannot be rescinded by one only of two contracting i:)arties ; but the question in this case is, whether the property in the goods shipped ever vested in Berkeley at all. That depends entirely on the intention of the con- signors. It is said that the plaintiffs, by the very act of shij)j)ing the wheat in pursuance of Berkeley's order, ii-revocal)ly appropriated the property in it to him. I think that is not the effect of their conduct ; for, looking to the letter of the 26th of August, it manifestly appears that they intended that the property should not vest in Berkeley unless the bills were accepted. They stated in that letter that they had drawn upon Harris & Sons and Berkeley bills amounting to £810, the price of the wheat, payable to E. 11. Brandt ; and they recom- mended them to his, Berkeley's, protection. They also stated that they had forwarded to Harris & Sons an indorsed bill of lading, and they enclosed to Berkeley an unindorsed bill of lading. The fact of their transmitting the latter bill of lading to Berkeley, and an indorsed one to Harris & Sons, shows clearly that they did not intend that the property in the wheat should vest absolutely in Berkeley, but should be subject to a condition that the bills were accepted. As they were not accepted, Berkeley has not performed the condition on which the vest- ing of the property in him was to depend, and therefore it never did vest in him. The only remaining question is as to the amount of damages. As between the parties in this cause, the plaiutiffs are entitled to be put in the same situation as they would have been in if the cargo had Tseen delivered to their order at the time when it Avas de- livered to Berkeley ; and the sum it would have fetched at that time is the amount of the loss sustained by the non-performance of the de- fendants' contract. Taunton, J. The bills drawn by the plaintiffs in payment of this cargo not having been accepted, no property vested in Berkeley. It cannot be said that by the letter of the 29th of September, E. H. Brandt set up again the contract which had been rescinded. That letter is not a waiver of the breach of the contract, but a remonstrance on its non- completion and the non-acceptance of the bills. He does not say, We shall hold Berkeley to his original contract, but that he will be held answerable for the consequences of his behavior. That must mean for any damage which may accrue from his not performing the contract. As to the amount of damages, I think the value of the wheat on its arrival at the port of discharge where it was delivered to Berkeley, is the amount of the loss sustained by the defendants' breach of con- tract. Patteson, J. I am of the same opinion. In Coxe v. Harden,^ trover was brought by the hidorsee of a bill of lading to recover the 1 4 East, 211. 930 WILMSHURST V. BOWKER. [chap. II. \\ \ 1 1^ ^ I V value of goods, the possession of which had been obtained by the as- signee of the party on whose account they were shipped ; and although the decision in that case was that the action was not maintainable, Lord Ellenborough, C. J., and Le Blanc, J., seem to intimate that an action might have been maintainable by the consignors against the captain. The present action is by the shipper against the owners for not delivering according to the bill of lading. I think such an action is maintainable ; and that being so, the only question is, what damages are recoverable ? Prima facie the plaintiffs are entitled to recover the sum which the cargo would have brought when it ought to have been delivered to the plaintiffs' assignee. It has been said that the property absolutely vested in Berkeley by the shipment, and if so, that the plain- tiffs are entitled to recover nominal damages only ; but it seems to me that the bills drawn for the cargo not having been accepted, Berkeley had not performed his part of the contract, and therefore the property did not vest in him, and consequently that the plaintiffs, were entitled to recover the full value. Rule refused. / v^^-i'^- 1^ WILMSHURST and Another v. BOWKER and Anotheb In the Common Pleas, May 8, 1841. ^^^^^^^^z^^^^^^^ [Reported in 2 Manning ^- Granger, 792.] In the Exchequer Chamber, February 3, [Reported in 7 Manning ^' Granger, 882.] 1844. .^UT^ Case. The first count ' stated in substance that, on the 25th Octo- ber, 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 the possession 1 The declaration also contained a count in trover, the pleadings connected with which came before the court on demurrer in Hilary term, 1839. Judgment was given for the defendants on the ground that tlie plaintiff had not such a right of possession to the wheat as would entitle them to maintain trover. See 5 New Cases, 541, 7 £cott, 561. SECT. VI.] WILMSHURST V. BOWKER. 931 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; and the defendants made out an invoice of said wheat, stating the same to be shipped by order and for the account and risk of the plain- tiffs, 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 j^lain- 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 owners thereof respectively ; of all which the defendants had notice. Breach : That afterwards, on the said 27th of October, the })laintiffs 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 Lightowler 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 plaintiffs, revoked and rescinded the said sale of the said wheat to the plaintiffs, and caused and procui-ed the said wheat to be stopped in its passage to the plaintiffs, and forthwith upon such stoppage, and without the plaintiffs haA'ing notice thereof or of their intention so to do, hindered and prevented the same from being deliv- ered to the plaintiffs ; ^:)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 M'ith 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 pay- m ent 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 receij)t by the 932 WILMSHURST V. BOWKER. [CHAP. TT. 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 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 wdieat, 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 Loudon 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," &c. 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 1 The statement of the pleadings has been materially abbreviated. — Ed. SECT. VI.] WILMSHURST V. BOWKER. 933 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 ft letter, wherein they requested the plaintiffs to remit to them the amount of the invoice, after having added to it the chai-ges 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 29th, the plaintiffs received the policy of insurance on the wheat from the defendants' agents, with an account of the charges thereon, amounting to £5 12s. Id. On the 30th, the plaintiffs trans- mitted to the defendants by post a bill for £796 2s. \d. (being the invoice price of the wheat and the charges for insurance), in the fol- lowing form : — -«- ^^. ^ ^. '^ Lynn, October 27, 1836. £796 2s. \d. ^° / / Two months after date pay to our grdwr^ven hundred and ninety-six pounds, two shillings, and one penny, value«?ecfeL\(i^d. Messrs. Wilmshurst & SoN,,;?']\f%ri4iants, Cranbrook. 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 your 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, — I 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 mer- chants. However, we now send you a bankers' acceptance, and trust you will see the wheat forwarded immediately. In this letter a bill was inclosed as follows : — i»* d' Lynn, October 27, 1836. £790 25. Id. '*'°*/"/ Two months after date pay to our omeif"sq^en hundred and ninety-six pounds, two shillings, and one penny, value i^(^(^. Messrs. Wilmshurst, Hague^^'ai'^j^, 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 Immediately after they returned the first draft, the defendants got VOL. 1. 60 934 WILMSHURST V. BOWKER. [CHAP. II. the wheat back from Captain Lightowler. They subsequently Sold it at 56s. 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 plaintiifs obtaining a rule for judgment no??, 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 (the omission of the stipulation as to the terms of payment), the court to have the same power of amendment as the judge at 7iisi priiis. The damages were assessed contingently at £77. Butt having obtained in Hilary term, 1840, a rule nisi for judgment non obstante veredicto, on the third plea. Greenwood now showed cause. The question is, whether the ven- dors were bound to perform their part of the contract, although the vendees had failed to fulfil theirs. It is clear that the latter had no vio'ht to retain the invoice and the bill of lading, without remitting to the former a bankers' draft on London ; for the sale of the wheat, and the sending of the draft, were not collateral, but were to be contem- poraneous acts. Brandt v. Bowlby ^ is very similar to the present case, and is a decisive authority for the defendants.^ . . . That case is even stronger than this ; there the Avheat was shipped in a vessel chartered by the vendee, but here the wheat was purchased in bulk, and was put on board of a general ship. The principle laid down in Bi-andt v. Bowlby is not opposed to Walley v. Montgomery ; ^ for there the consignee was ready and offered to perform his part of the contract. Here the right of possession would not vest in the vendees imtil they sent the bankers' draft, and on their failure to do so, the vendors had, according to the authority of Langfort v. Administratrix of Tiler,'* a right to rescind the contract. It will be contended on the other side, that the delivery of the wheat to the carrier was a delivery to the consignees, and that the contract could not afterwards be rescinded. Brandt v. Bowlby, however, is a direct authority against that proposition ; and Barber v. Taylor ^ shows that the contract was still in fieri, although the goods were on shipboard ; and that, on the fiiilure of either party to perform his part of the contract," it might be determined. According to Bishop V. Shillito,® even if the wheat had been actually delivered to the plain- tiffs, the defendants, on the non-performance by the former of the stipu- 1 2 B. & Ad. 932. 2 The learned counsel here stated that case. — Ed. 3 3 East, 585. * 1 Salk. 113. 5 5 M. & W. 527. 6 2 B. & Aid. 329, n. SECT. VI.] WILMSHURST V. BOWKER. 935 lations of the sale, might have maintained trover for it.^ . . . There are many authorities to sliow that the mere signing of tlic bill of lading does not vest the goods absolutely in the vendee. In Mitchel v. Ede,'^ Lord Denman, speaking of the nature and operation of the bill of lading, says, "As between the owner and shipper of the goods and the captain, it fixes and determines the duty of the latter as to the person to whom it is (at the time) the pleasure of the former that the goods should be delivered. But there is nothing final or irrevocable in its nature. The owner of the goods may change his jjurpose at any rate before the delivery of the goods themselves, or of the bill of lading to the party named in it, and may order the delivery to be to some other person, to B. instead of to A." Here, according to the terms of the con- tract, it was necessary for the goods to be shipped before the bill of lading could be obtained. Reliance will be placed on an insurance having been effected upon the goods on account of the vendees; but the effect of that was to vest the goods in them, not absolutely, but only subject to the terms indorsed on the bill of lading. It was held in Bloxam v. Sanders,''' that although a vendee of goods acquires a right of property by the contract of sale, yet he does not acquire a right of possession to the goods until he pays or tenders the price. It will be said that the liability to the loss in case of the destruction of the goods is the true criterion; but such liability, and the right of possession and of property, are not convertible terms. In Simmons v. Swift,* Bayley, J., says, " 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 any thing remains to be done on the part of the seller, until that is done the property is not changed." There is a recognized distinction between a contract for the sale of a specific chattel, and for the delivery of a quantity from the bulk. In the former case the property passes ; in the latter, even after there has been an appropriation of the goods by the vendors, a distinct assent on the part of the vendees is necessary to vest the goods in them. Kohde V. Thwaites,^ Atkinson v. Bell.*' That a delivery to a general shij) is not equivalent to a delivery to the vendee, is clear on three grounds : in the former case, there is, first, the right to stop tn transitu; secondly, the right of the vendor to insist on the vendee's compliance with the terms of the contract ; and, thirdly, the right of the vendee to refuse 1 The learned counsel here quoted from the judgment in Wilmshurst v. Bowker, 5Bing. N. C. 541. — Ed. 2 11 A. & E. 888, 3 P. & D. 513. 3 4 B. & C. 941, 7 D. & R. 396. * 5 B. & C. 857, 8 D. & R. 693. 5 6 B. & C. 388, 9 D. & R. 293. 6 8 B. & C. 277, 2 M. & R. 292. 936 WILMSHURST V. BOWKER. [CHAP. IT. the goods, as not being according to the contract. The effect of the shipment of the goods is to appropriate the goods to the vendee if he assents to take them ; and the goods are at his risk, not because the property in them is vested in him, but because he is bound to accept them if they answer the contract.^ . . . Fearon v. Bowers ^ shows that what took phice here did not amount to an absohite dehvery of the wheat to the phnintiffs. In Dixon v. Yates,^ Littledale, J., lays it down, that " so long as goods sold and unpaid for remain in the immediate possession of the vendor, he may refuse to deliver them ; and if they remain in the possession of his agent, i. e. a warehouseman or carrier, he may stop them." In Feise v. Wray,* Grose, J., says, " This is a common case of consignor and consignee, where the former has not been paid for his goods, and he gets the bill of lading honestly into his possession, and stops the goods while they are in transitu. How, then, can we say that he is a tort-feasor, and guilty of a conver- sion?" ^ ... It is clear, upon the authorities, that if there is stipulation in the contract that tlic goods are to be paid for in a particular way, which stipulation is not fulfilled by the vendee, the vendor may rescind the contract. Here the invoice and the bill of lading were only delivered to the vendees conditionally on their sending the vendors a banker's draft on London, and upon their failing to do so, the property, or at all events the right of possession to the goods, never vested in them. Butt, in support of the rule. This case rests on clear principles of law. It is not a case of a qualified, but of an absolute bill of lading, which was delivered to the vendees. The authorities, therefore, in which the bills of lading were qualified, or where they never came to the hands of the vendee, are inapplicable. Neither is Brandt v. Bowlby in point ; for there the vendee had at first refused to accept the goods. The cases cited to show that an unpaid vendor may stop goods in transitu, although the property in the goods has vested in the vendee, will not be disputed. Here the goods were delivered to the captain of the vessel, who received them at the risk of the vendees. Walley v. Montgomery is a direct authority for the plaintiffs.'' . . . [Maule, J. Here, if the vendors had sent the bill of lading by a clerk, would he have been bound to deliver it to the vendees without receiving a bank- er's draft ? Do you say that the vendees had a right to retain the bill of lading without sending such draft ?] There is a clear distinction 1 The learned counsel here quoted from the opinion of Lord Loughborough in Mason v. Lickbarrow, 1 H. Bl. 363. — Ed. 2 1 H. Bl. 364, n. 3 5 b. & Ad. 313, 2 N. & M. 177. 4 3 East, 93, 101. 5 The learned counsel here cited Bohtliugk v. Inglis, 3 East, 381, and Barrow v. Coles, 3 Campb. 92. —Ed. 6 The learned counsel stated that case. — Ed. SECT. VI.] WILMSHURST V. BOWKER. 937 between the case of an unpaid vendor still retaining the goods, and one where, as here, the vendors have parted with the possession. The authorities which have been cited to show that tlie right of property and possession of the goods did not vest in the vendee until payment of the price, were all cases where the vendors still retained the posses- sion of the goods. In Rohde v. Thwaites and Atkinson v. Bell, the question was, whether there had been an appropriation or acceptance of the goods, so as to satisfy the Statute of Frauds. It is said that this was not a sale of any specific wheat ; but it is submitted that it was. [Maule, J. Suppose the defendants, after the contract, had bought 300 quarters of wheat, and had sent it to the plaintiffs, could they have refused to take them ? This is a general contract, and comprehends therefore any 300 quarters of wheat.] If any thing turns on this point, there is nothing in the case to show that this wheat was part of a larger quantity in bulk. [Tindal, C. J. It has a httle bearing, though not much, on the question whether the property in the goods passed to the vendees.] Simmonds v. Swift was cited to show that the liability to bear the loss of goods is not the true criterion to prove whether the property has vested in the vendee ; but, although not conclusive, it is always put as a strong test. The former decision in this case is no authority against the plaintiffs; for the lord chief justice in delivering the judgment of the court abstained from deciding the present ques- tion ; observing that upon the then state of the record, it was unneces- sary to determine " whether the defendants, upon the neglect of the plaintiffs to remit the draft upon the London bankers, had the right forthwith to rescind the sale." Mitchel v. Ede was a very different case from the present.^ . . . Fragano v. Long,^ Alexander v. Gardner," and Tansley v. Turner,* all show clearly that the property in the wheat passed to the plaintiffs. The distinction between a delivery to an agent and to the vendee is only material where the vendor has a right to stop in trmisiiu, and it becomes important to know whether the goods have arrived at their ultimate destination. No authority has been cited in which it has been held that a vendor may stop in tran- situ, except in the case of the vendee's insolvency or bankruptcy. Here it is expressly stated in the declaration, that the defendants had parted with the possession of the wheat. [Erskine, J. You must incorporate the plea with the declaration.] The plea merely alleges that there was a condition in the contract ; it does not say that the draft was to be sent before the delivery of the goods, but only on the receipt of the invoice and the bill of lading. It is consistent with the contract that the bill of ladiuo- was to be transmitted after the goods had been de- spatched. The plea docs not even aver that a reasonable time had ^ The learned counsel here cited Dutton v. Solomonson, 3 B. & P. 582. — Ed. 2 4 B. & C. 219, 6 D. & 11. 283. 3 i New Cases, 671, 1 Scott, 630. * 2 New Cases, 151, 2 Scott, 238. 938 WILMSHURST V. BOWKER. [CHAP. 11. elapsed for sending the draft; neither does it state when the goods were stopped. It is submitted that there was here a perfect delivery in law of the goods. It is admitted that the plaintiffs would have been liable in case of loss, and there is nothing in the contract to show that the plaintiffs were not to have possession of the goods previously to sending the bankers' draft ; for the meaning of the contract appears to be, that it should be sent after the receipt of the bill of lading. The conti'act was substantially for the purchase of goods at two months' credit. No right of the vendors to stop the goods is shown on the record. Their only remedy against the plaintiffs for not sending the draft was, by bringing an action upon the contract. Cur. adv. vxdt. TiNDAL, 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 Avheat in transitu, ujjon 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,'^ and in many cases in the com- mon law reports ; * 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 particular terms of this contract, the con- signors have not reserved to themselves 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 con- tract, iipon 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 delivery of possession. And we are of opinion that the intention of the parties, under this contract, was, that the consignors should retain tlie power of withholding the actual delivery of the wheat, in case the consignees failed in remitting the bankers' draft, not upon the delivery of the wheat, but on the receipt of the bill of lading, which, in the ordinary course of business, would 1 His lordship's statement of the case has been omitted. — Ed. 2 6 Rob. Adm. Rep. 321. 3 Vide 2 N. & M. 644. SECT. VI.] WILMSHURST V. BOWKER. 939 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 remit- ting of the bankers' draft to be simultaneous or concuiTent 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. When 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 Bloxam v. Sanders,^ "has no right to have the pos- session of the goods until he pays the price." In the present case, it is part of the stipulation that something shall l)e done by the buyer before the time when, in the usual course of business, the goods can be actu- ally delivered ; namely, u]>on the handing over of the bill of lading to the buyers, which ordinarily ])recedes 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 ; ^ in which, al- though it was held that the consignors had no right to stop in 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, Avere ready and offered so to do ; nor, indeed, docs it ap- pear in that case to have been a condition that the bills should be accepted at any certain time before the actual delivery. In the j^resent case we hold that upon the proper construction of the plea, the con- tract 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 perlbrmed on the part of the plaintiffs, the consignees, the defend- ants, the consignors, were justified in preventing the wheat from being delivered. Mule discharged. The plaintiffs brought a writ of en'or upon the foregoing judgment, and assigned errors which were argued in the Exchequer Chamber before Lord Abin'ger, C. B., Pakke, B., Pattesox, J., Aldekson, B., Coleridge, J., Rolfe, B., Wightmax, J. M. B. Hill (with whom was Butt), for the plaintiffs.'^ . . . The first question is, whether, after the constructive delivery stated in the declaration, the defendants could stop the wheat in transitu, ujton the grounds set forth in the third ])lea. That the i>roperty in the Avheat vested in the plaintiffs, is clear; and the sto])page cannot be justified on the ordinary ground, which, as stated in the judgment ol 1 4 B. & C. 948, 7 D. & R. 405. 2 3 East, 585. ^ The learned eounsel's statement of the case lias been omitted. — Ed. 940 WILMSHURST V. BOWKER. [CHAP. II. the court below, is limited to cases of bankruptcy or insolvency in the vendee. The contract between the parties cannot be put higher than this, — that the defendants were not bound to part with the possession of the bill of lading until they had received a banker's draft. [Pahkb, B. They might have indorsed the bill of lading specially, or they might have ti-ansmitted it to an agent, with instructions to hand it over to the plaintiifs against the banker's draft.] By the general indorse- ment and delivery of the bill of lading, the defendants waived the con- dition and destroyed their right to stop in transitu. But the provision as to the banker's draft was inserted merely for the purpose of fixing the terms, and the time of payment. It was not intended to operate as a condition precedent. Upon the defendants' construction there would be an inconsistency in the terms of the contract : the banker's draft could not be sent until after the arrival of the bill of lading and invoice. [Lord Abingee, C. B. An uncertain sum, viz., the amount of the insurance, was to be added to the invoice price.] The court below say : " We are of opinion that the intention of the parties under this contract was, that the consignors should retain the power of with- holding the actual delivery of the wheat, in case the consignees failed in remitting the banker's draft, not uj^on the delivery of the wheat, but on the receipt of the bill of lading, which, in the ordinary course of busi- ness, 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 banker's draft, to be simultaneous 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 their stipu- lation, the consignors might withhold the actual delivery of the cargo." That clearly is a misconception of the true nature of the contract. [Paeke, B. The property vested in the plaintiffs on the delivery of the wheat to Lightowler.] The delivery to Lightowler, and the trans- mission of the bill of lading indorsed, gave the plaintiffs both the prop- erty and the possession, subject to be devested in the event of bankruptcy or insolvency, — by analogy to the doctrine of revendica- tion.^ If the master refused to redeliver the wheat to the defendants, they could have had no remedy against him. (Here he was stopped by the court.) Greenxoood^ for the defendants. The contract was a contract of sale upon special terms which have not been com])lied with. The rule that a delivery to a carrier for the account and risk of the vendee, is a de- livery to the vendee himself, subject to the vendor's right to stop the goods in transitu in case of insolvency or bankruptcy, applies only where there are no special terms of payment. This case has been twice before the Court of Common Pleas, and on both occasions it was * See the note to Westzynthius In re, 2 Nev. & M. 650. SECT. VI.] WILMSHURST V. BOWKER. 941 held that the intention of the parties, to be collected from the terras of the contract, was that the remitting of the banker's draft and the receipt of the bill of lading and invoice should, at least, be simultane- ous acts. A third party, to Avhom the bill of lading had been indorsed for value, would have been entitled to the possession of the wheat not- withstanding the plaintiffs had failed to remit the banker's draft ; but it is otherwise as between the original parties. [Lord Auixgkr, C. B. No doubt, where goods are sold upon a condition,^ the property does not vest until the condition is performed. Alderson", B. You infer that, when the plea does not state that it was part of the contract that the property should not vest in the vendees until they had remitted a banker's draft. Pakke, B. Or rather a right to retake the goods on breach of a condition subsequent.] In Brandt v. Bowlby,- the facts were very much like those of the present case, and it w\as held that by reason of the breach by the vendees of their engagement to accept bills for the price, the property did not vest. [Lord Abinger, C. B. There the goods remained in the hands of the vendor's agent. Parke, B.® . . . Here the goods were shipped upon the account and risk of the plaintiffs, and were made deliverable to them. If I drew any inference from the plea, it would be that which the plaintiffs draw.] The sale being subject to a condition which has never been performed, the plaintiffs never had the right of possession. If the wheat had come into the actual possession of the plaintiffs, the plaintiffs might have maintained trover. Bishop v. Shillito.-* Whalley u. Montgomery* is the converse of this case. Lord Abingek, C. B. We are quite unanimoiis ; and, however reluctant we may be to overturn a considered judgment of the Court of Common Pleas, we find ourselves unable to come to any 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 bank- er's draft could not be simultaneous acts; the plaintitts must have received the bill of lading and invoice before they 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. 1 Q. d. iijion a condition precedent. '^ 2 B. & Ad. 932. 3 His lordship here stated the case of Ogle v. Atkinson, 5 Taunt. 759. — Ed. * 2 B. & Aid. 329, n. * 3 East, 585. [chap. II. ''V' ^ |.l/|t42 / \V "^AIT y. BAKER. y^^ ii ' /J, ^ WAIT AND Another v. BAKER. •^/ ' 'lL J In THE Exchequer, February 5 & 7, 1848. . [Reported in 2 Exchequer RepoHs, 1.] Trover for 500 quarters of barley. Pleas, not guilty, 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 foots appeared : The defendant, a corn-factor at Bristol, had occasional dealings with a person of the name of Leth- brido-e, who was also a corn-factor at Plymouth, and on the 5th of De- cember, 1846, Avrote to him the following letter: — I hear that the crop of barley 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 any thing 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 vou in due course. Send me sample in letter, describing weight, tfec. To which Lethbridge wrote the following answer on the 9th of that month : — I beg to inform you that I have not yet commenced buying barley in Kings- bridge 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 tbe following letter to the defend- ant: — I herewith hand you samples of common and chevalier barley of the neighbor- hood 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 42s. per quarter chevalier, in equal quantities, for cash, on handing bills of lad- ing, or acceptance at two months' date, adding interest at the rate of £5 per cent per annum, subject to your reply 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 40s. per quarter f. o. b., for cash pay- ments, on receipt 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 your reply by 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 the best possible freight I can get her for. Please instruct me in this, and say if for Bristol or any other port. SECT. VI.] WAIT v: BAKER. 943 On the 19th the defendant Avrote in answer: — T took it for granted that you would got a vessel for the barley I have bought of you f. o. b., and therefore did not instruct you to seek one. I trust that you will be particular to select a good ship, 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 samples are sealed and held in the custody of a tliinl 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 fi-eight, 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 the receipt of the charter-party (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 you bill of lading in the course of the week. And again on the 1st of January, 1847 : — I hope to be able to send you invoice and bill of lading of Emerald on Tues- day or Wednesday. 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 you. 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 deliverable 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 quality of the cargo, and asserted that it was 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 matter, the defendant offered Lethbridge the amount of the cargo in money, and said that he accepted the cargo. Lethbridge, however, refused to accept the money and to indorse the 944 "WAIT V. BAKER. [CHAP. II. bill of lading to the defendant ; but took the bill of lading from the 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 16th, and on the 18th the defendant proceeded on board and claimed the cargo as the owner, and unshipped 1240 bushels of the barley, worth £422 145. ; 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 de- fendant. His lordship thereui^on 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, Crowder, Barstoio, and Greemoood appeared to show cause, but were stopped by the court, who called upon JSutt and Montague Smith, in support of the rule. In this case the property in the barley, which came to Bristol in the Emerald, passed to the defendant. Although, in general, it is necessary, in order to pass the property in goods shipped on board a vessel, that the bill of lading should be indorsed to the party claiming the property, that is not the only mode as betAveen vendor and vendee, where they are the parties to the original contract. And payment is not a condition precedent. Here the barley was put on board at the risk of the vendee, — the vessel was hired by him, although the charter-party was made in Leth- bridge's name ; and it is submitted that he was the defendant's agent for this puri)0se. The vendee would have been liable for freight; the contract, although made for the vendee by the vendor, was, in this respect, the same as if it had been made by a third party. The charter- party was not under seal. In a letter of the 19th of December, the defendant requested Lethbridge to get a proper vessel, in order that he (the vendee) " might get the insurance done correctly." It is clear that the intention of the parties was, that the vessel should be the vendee's, and that the risk should be his. The cargo was to be free on board. There was, therefore, a delivery on board the defendant's ship, and an appropi'iation of the cargo. [Parke, B. At what moment was the acceptance of the cargo complete ? Appropriation may mean that there has been a selection, or an agreement that a particular cargo shall be the thing transferred. Property never passes unless there be some agreement to the effect that the property shall pass. By the English law, property may pass by an agreement ; but the rule is otherwise in the Roman law. The property surely has passed in the present case, SECT. VI.] WAIT V. BAKER. 945 by the indorsement of the bill of lading, to the phiintifis.] Tlie lien of Lethbridge was at an end when the money was tendered at Bristol, and when the defendant said, " I accept that particular cargo of 500 quarters." [Rolfe, B. The jury do not find an unconditional tender and acceptance of the money. Aldekson, B. It is clear that what took place at Bristol was not sufficient to pass the property. You must therefore show, independently of that proceeding, that the property passed ; for the defendant there disputed the quality of the corn, and the parties did not agree as to the thing.] ^ . . . Parice, B. I am of opinion that the rule in the present case oiight to be discharged. It is perfectly clear that the original contract be- tween the parties was not for a specific chattel. That contract would be satisfied by the delivery of any 500 quarters of corn, provided the corn answered the character of that which was agreed to be delivered. By the original contract, therefore, no property passed ; and that mat- ter admits of no doubt whatever. In order, therefore, to depiive the original owner of the property, it must be shown in this form of action — the action being lor the recovery of the property — that, at some subsequent time, the property passed. It may be admitted, that if goods are ordered by 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 ordered, the moment the goods, which have been selected in ]:)ursuance of the contract, are delivered to the carrier, the carrier becomes the agent of the vendee, and such a de- livery amounts to a delivery to the vendee ; and if there is a binding contract between the vendor and vendee, either by note in writing, or by part payment, or subsequently by part acceptance, then there is no doubt that the property passes by such delivery to the carrier. It is necessary, of course, that the goods should agree with the contract. In this case, it is said that the delivery of the goods on shipboard is equiv- alent to the delivery I have mentioned, because the ship was engaged on the part of Lethbridge as agent for the defendant. But assuming that it was so, the delivery of the goods on board the sliip was not » 'Helivery of them to the defendant, but a delivery 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. By that bill of lading the goods were to be carried by the master of tlie 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 cari'ier, but as a person car- ryifig them on behalf of Lethbridge. There is no breacli of duty on 1 The learned counsel licre stated the case of Ogle v. Atkinson, 5 Taunt. 759 ; to which Alderson, B., said : " There the ship was the plaintiff's ; the indorsement of the bill of lading was an afterthought." — Ed. 946 WAIT V. BAKER. [CHAP. II. the part of Letlibridge, as he stipulates under the original contract that the price is to be paid on the delivery of the bill of lading. It is clearly 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 delivery of the 500 quarters to the captain, to be cTe^ livered 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 which had that 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 may mean that both parties have agreed that a certain article \j shall be delivered in pursuance of the contract, and yet the property ^ jcnay not pass in either case. For the purpose of illustrating this posi- A jftion, suppose a carriage is ordered to be built at a coachmaker's ; he A\ f may make any one he pleases, and, if it agree with the order, the party 1 i,; 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 that a particular carriage shall be delivered. It would depend upon circumstances whether the 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 terms 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 chattel, 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 different : here property does not pass until there is a bargain with respect to a specific article, and every thing is done which, according 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 the 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 ( r SECT. VI.] WAIT V. BAKER. 947 IS, \\hether the circumstances Avhich occurred at Bristol afterwards amount to an agreement by both parties tliat tlie 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 proj^erty 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 wished 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 fading was left, there was n'oligreement between the two parties that that specific cargo should become tbe i)roperty of the defendant. If that is so, the case remains, as to tlie 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 plaintiifs, 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. Alderson, B. I am of tlie same oi)inion. The circumstances of the case clearly show that, when the cargo was put on board the vessel, the property in the cargo did not pass. The vendor at that time chooses a certain quantity of corn, which he intends to offer to the party in performance of his contract ; but he keeps it as his property in the mean time. Such being the state of matters, the proi)erty in that state arrives at Bristol, and there is nothing to show that there was any transaction which amounted to an agreement between the parties to alter that arrangement; therefore the property did not pass at all; and as the one party has not tendered the barley in discharge of his contract, the other party has his action against him. RoLFE, B., and Platt, B., concurred. Hide discharged. ' 1j ,948^ /i/^ ' /v ^ JEN^fJs v.^feRo^vN.yJ . [chap. ti. v.^ f / / -/ \ FRANCIS JENKYNS v. WILLIAM BKOWN, JOSEPH SHIP- » LEY, SAMUEL NICHOLSON, and Others. x^ , In the Queen's Bench, December 18, 1849. V / [Reported in 14 Queen's Bench Reports, 496.] Trover for Indian corn. Pleas: 1. Not guilty; 2. Tliat plaintiff was not possessed, &c. Issues thereon. On the trial before Erie, J., at the Liverpool summer assizes, 1848, it aj^peared that the plaintiff was a corn-merchant living in London, and employing Messrs. Klingender & Co., as his agents at New Orleans. In April, 1847, Khngender & Co. purchased for plaintiff, at New Orleans, the Indian corn in question with their own money. They drew two bills on the plaintiff, one for £975 10s. Gel, the other for £1537 14s. lOcl, both at thirty days' sight, for the amount; and in the body of these bills it Avas stated that they were to be placed to the account of the corn. These bills they sold ^ to the defendant Samuel Nicholson at the regular value of the bills, handing over to him at the same time, as security, the bills of lading for the corn, shipped as after mentioned, which were made payable to the order of Messrs Klingen- der & Co., and indorsed by them. It was agreed between Klingender & Co. and Nicholson, that the latter might sell the corn if the bills were not paid. Nicholson was a partner with the other defendants, the firm having houses of business both at New Orleans and at Liver- pool. The corn was shipped for Liverpool by different vessels ; and the invoices were made out, j^urporting that the corn was " consigned to order, by order, and for account and risk, of Francis Jenkyns, Esq., London." The invoices were sent to the plaintiff from New Orleans by Klingender & Co., after the indorsement of the bills of exchange and handing of the bills of lading to Nicholson, with a letter to plaintiff, advising him of the shipment, and of the drawing of the bills \ of exchange, requesting him to accept them, and adding : " Bills of lading as before accompany the draft. This closes our present pur- chases for you." The corn arrived at Liverpool. Nicholson forwarded I ^^i \the bills of exchange and bills of lading to the Liverpool house of i ^^ ^defendants. The bills of exchange were presented for acceptance xto plaintiff, and accepted by him, payable at Messrs. Smith & '^Payne's, bankers, London : and they became due on the 17th June, 2^ ul848. They were deposited, together with the bills of lading, by the ► X \^ 1 It was stated that this was a common mode of deahng with bills at New Orleans ^*s*^ instead of discounting them. \iS^: SECT. VI.] JENKYNS V. BROWN. 949 defendants, with Messrs. Denison & Co., hankers, London. On the 17th of June, the phiintiff called at Messrs. Denison & Co.'s, and demanded the bills of lading, offering to take up the bills of exchange. He was told that the bills of exchange had been sent to the clearing-house, was then sup] )osed to be the fact; but it afterwards turned out that they had been locked up, together with the bills of lading, at jMessra. Denison's. The plaintiff was requested to call the next day at Messi-s. Denison's, but did not do so. The bills of exchange were afterwards presented for payment at Smith & Payne's, but were not paid. The defendants sued the plaintiff on the bills of exchange, and obtained a verdict. Subsequently to this, the ])laintiff became bankru]it ; but he afterwards made arrangements with his creditors, in consequence of which the fiat was annulled. At the time of these arrangements, the following instrument was signed on behalf of the defendants, and given to the 2)laintiff : — London, February 9, 1848. Received of F. Jenkyns £230 18s. 8d. in cash, and a promissory note, £(39 Is. 4cZ., due 12 May, in full of all claim on him, as per agreement, it being under- stood that, in default of payment of the above promissory note, our original claim revives. £300. For Brown, Shipley, & Co. OVKKEXD, GuitXEY, & Co. Afterwards the plaintiff demanded of defendants the bills of lading; but the defendants claimed to retain them, insisting that the account had been taken on the supposition that they were indemnified to the amount of the value of the corn. Defendants afterwards sold the corn. The present action was then brought. The learned judge told the jury that no property in the corn had passed to the plaintiff, except upon the condition of his paying the bills of exchange, and that his offer to take up these bills on the 17th of June did not satisfy the condition ; and, under his lordsliip's direction,^ a verdict was found for the defendants on the second issue, and for the plaintiff on the first. In Michaelmas term, 1848, Wats07i^ for the plaintiff, obtained a rule nisi for a new trial, on the ground of misdirection. In last term, 3fartin and CoicUng showed cause. The question is, what Klingen- der & Co. meant as to the property in the corn. They bought it with their ow n money ; and they might either make it their own property, or the property absolutely of the plaintiff, or the property of the i)lain- tiff conditionally. They did the last, the condition being the payment of the bills. This construction was put on a similar transaction in 1 The plaintifTs counsel did not require any question to be put to the jury, both sides leaving the result to the court, as the inference from facts not disputed. VOL. I. 61 950 JENKYNS V. BROWN. [CHAP. II. Waitv. Baker.^ There the party imposing the condition was the vendor himself; but an agent has the same rights as the vendor, and may reserve a lien, or enforce a stoppage in transitu. Nor was the interest of the defendants, as assignees of Klingender & Co., pnt an end to by the offer to take uj) the bills on 17th June. The tender could do no more than suspend the right of the holder of the bills to recover before a fresh demand made. In effect there was merely a failure to present the bills; that did not fulfil the condition of payment; and, till the fulfilment of that condition, no property passed to the plaintiff. It is not a question of lien : the property has never passed to the plaintiff at all. It is not the invoice, but the bill of lading, that is the symbol of property. The bills of lading are made out to the order of Klingender & Co. ; that was clear evidence that the property did not then pass to the plaintiff. Wait v. Baker, Van Casteel v. Booker.^ At what time, then, could the property pass to the plaintiff? The next step was the indorse- ment of the bills of lading to the defendants for valuable considera- tion. The letter accompanying the transmission of the invoices w^as not written till after the transfer of the bills of lading to the defend- ants : so that, even if the transmission of the invoices in itself would have affected the property, as against Klingender & Co., it took place after the vesting of the right of the defendants, and could not defeat that right. Assuming that personal property can be so dealt with as to pass on the performance of a condition (which is questionable), the condition has not been performed. The payijient has never been made by the plaintiff: he might, instead of withdrawing his tender upon the non-production of the bills of exchange and bills of lading, have paid the money, and relied upon his supposed right to have the bills given up. The receipt of February 9, 1848, was not an abandonment by the defendants of their right on the bills of exchange and bills of lading : it was given on the supposition that the corn was to be retained by them to meet the bills, as far as it could, the receipt being for a composition on the ultimate balance between the plaintiff and the defendants. Watson and Overend, contra. The effect of the shipment, the draw- ing upon the plaintiff, the invoices, and the bills of lading, was to con- fer the property upon the plaintiff at once, with a reservation to Kling- ender & Co. of a lien for the price. [Erle, J. Might not Klingender & Co. have reserved the property to themselves by express words? And have not the bills of lading made for delivery to their order the same effect ?] They have not. If the corn had been lost at sea, the plaintiff miist have borne the loss, having accepted the goods on the terms of the invoices. Klingender & Co. therefore could transfer only the right to the lien ; and the defendants were in the position of 2 Exch. 1. 2 2 Exch. 691, 708. SECT. VI.] JENKYNS V. BROWN. 951 an un])ai(l vcndov hokliiip^ the projjcrty nnder a lion for the payment. Then the offer of payment discharged the Hen; the rule that a tender is no defence to an action if there be a subsequent demand and refusal is inapplicable to this question. It seems that in Scarfe v. Morgan,^ if there had been an absolute refusal to acce^Jt payment, the court would have held the lien to be determined : the same principle may be col- lected from Stevenson v. Blakelock,- Cowell v. Simj)son,'^ and Crozer v. Pilling.'' Immediately upon the tender, the defendants became wrong- ful holders. The offer of payment destroys the plea ipso facto. [Erle, J. You went to the wrong place. The bills ought not, in the course of business, to have been at Denison's. Wigiitman, J. You should have gone to Smith & Payne's.] The bills were in fact at Denison's. In Wait v. Baker,*^ the vendee had not accepted the bill of lading or invoice so as to afftrm the sale. Van Casteel v. Booker® more nearly resembles this case. The court there considered the case to be that of a right of lien in an unpaid vendor. Cur. ado. vidt. Coleridge, J., now delivered judgment. Although Klingender & Co. bought the corn in question abroad as agents for the plaintiff, yet as they paid for it with their o>vn money it becaihe their property ; and, after the* shipment, the cargo continued their jproperty, as there is no evidence of an intention that it should pass, and as the taking of a bill of lading deliverable to their own order is nearly conclusive evidence that it did not pass. By delivering this bill of lading, indorsed to the defendants, as a security for the ])ayment of the bills of exchange drawn on the plaintiff for the value of the cargo, and giving power to sell in case of failure of payment (the bills of exchange having been purchased by the defendant), they passed to the defendant for value a sj)ecial property in the cargo ; and by after- wards sending the invoice with the bills of exchange and letters of advice to the plaintiff, they passed to him the general pro2)erty in the cargo, subject to this special property. Under this arrangement the plaintiff's right of possession would not arise till the bills should be paid. On the day of maturity the plaintiff offered payment of the bills to tlie holder of them ; but as they were accidentally mislaid on that day, the payment was not received, and the plaintiff was desired to pay on the following morning. This he was not then, and has not since, been able to do. U])on these facts the plaintiff has contended that the defendants had no interest in the cargo beyond a lien for the amount of the bills, and that such lien was discharged by the offer of that amount; and that 1 4 M. & W. 270. 2 1 M. & S. 535. 3 iq Ves. 276. 4 4 B. & C. 26. 5 2 Exch. 1. « 2 Exch. 691. 952 TURNER V. TRUSTEES OF LIVERPOOL DOCKS. [CHAP. 11. thereby the plaintiff was entitled to demand possession of the cargo without payment, and, on refusal, to maintain trover. But we think that the defendants had a special property in the cargo, according to the intention of the parties as above stated, when the bill of lading was delivered to them. We also think that the offer of the money on the one hand, and the request on the other for a day's delay before receiving it on account of an accident, did not amount to a ten- der and refusal of the payment, and did not discharge the plaintiff from his duty to pay the bills before his right to the possession of the cargo attached. The law bearing upon many of these points is clearly laid down in Wait V. Baker ^ and Van Casteel v. Booker,^ with wdiich we agree. It follows that the verdict for the defendant was right ; and the rule must be discharged. J^ule discharged. /-^ ^ ^t<^ TURNER AisTD Others, ^signees of Higginson and Deane, Bank- rupts, V. THE TRUSTEES of the LIVERPOOL DOCKS. \^ In the Exchequer Chamber, May 20, 1851^ ..,*^ / [Reported in 6 Exchequer Reports, 543.] / ' -j./^"^^^/^ — \ /' -'■ Ekeob on a bill of exceptions. The action was in detinue by the, plaintiffs, as assignees of Higginson and Deane, bankrupts, to recover certain bales of cotton and a quantity of plank. The first count of the , declaration laid the property in the bankrupts before their bankruptcy ; I the second count laid the property in the plaintiffs as assignees. The two first pleas, which were respectively pleaded to the first and second C %\ counts, traversed the propei'ty in the goods as alleged in those counts. i Third plea to the whole declaration : that the goods and chattels were the goods and chattels of certain persons united in copartnership for the purpose of carrying on the trade of bankers, according to the stat- ute in that behalf made, &c., and called "The Bank of Liverpool," as against the plaintiffs as assignees as aforesaid ; wherefore the defend- ants, at the commencement of the suit, detained, and still do detain the said goods; quce est eadem, &c. Verification. The plaintiffs joined issue upon the two first pleas, and replied to the third by traversing the property in the goods as alleged in the plea. The cause was tried before Wightman, J., at the Liveii^ool summer assizes, 1849; and the facts stated in the bill of exceptions (so far as material) are as follows : — 1 2 ExA. 1 2 2 Exch. 691. SECT. VI.] TURNER V. TRUSTEES OF LIVERPOOL DOCKS. 953 On tlic 13th of November, 1847, a fiat in bankruptcy issuefl against Jonatlian Iligginson and Rieliard Deane, of Liveriiuol, niercliants, who carried on business under tlie firm of Barton, Irhim, & Higginson, under Avhich they were adjudged bankrupt on an act of bankruptcy committed by them on the 11th of November, 1847. Iligginson and Deane were, up to and at the time of their bankruptcy, owners of the ship Charlotte, Carter, master, and also of the ship Iligginson.^ On the 18th of August, 1847, the bankrujits wrote to Menlove & Co. of Charleston, South Carolina, ordering them to ship on their (the bank- rupts') account 1000 or more bales of cotton for the homeward cargo of the Charlotte, then on a voyage from Liverpool to Charleston, and con- signed to Menlove & Co. The order was duly executed by Menlove & Co., who purchased and shipped on board the Charlotte 1263 bales of cotton. They also shipped on board the same vessel 74,871 feet of plank. The vessel completed her loading on the 12th of October, on which day the master signed and delivered to Menlove & Co. a bill of lading, stating the shipment of the cotton and timber by Menlove & Co., and making the same deliverable at Liverpool " unto order or to our assigns, he or they paying freight for the said goods, viz., for cotton in round bales, cotton in square bales, nothing, being owners' property." On the same day Menlove & Co. sent to the l)ankrupts the invoice of the timber, stating the same to have been shipped "for Liver- pool, by order and for account and risk of Messrs. Barton, Irlam, & Hio-o-inson there, and addressed to order." On the 19th October, they sent them an abstract invoice of the cotton, which contained the same words as those above quoted from the invoice of the timber. On the 23d October, they sent them the full invoice of the cotton, stating the same to have been shipped " for Liverpool, by order and for account of Messrs. Barton, Irlam, & Higginson there, and to them consigned." The invoice of the timber was dated October 11 ; that of the cotton, October 13. Menlove & Co., not having sufficient funds of the bankrujits to pay for the whole of the cotton and plank, put themselves in funds for that purpose by drawing bills on the bankrujits, Avhich they sold to the Bank of Charleston, delivering to said bank, as collateral security, the bill of lading for the cargo in question, specially indorsed to the Bank of Liver])ool. These bills, with one exception, were dishonored, and taken up by Menlove & Co. ( )u the 16th of October, Menlove & Co. advised the bankrupts of having drawn upon them as stated above, and added, " We deferred drawing as long as possible for the early pur- chases, to give the ship time to be with you before the drafts ; and as the nioney market was so stringent, Ave thought a little time would be 1 The circumstances relating to each vessel being similar, and the same question arising as to each, the argument was, by consent of both parties, coutiued to the Charlotte ; and therefore the facts as to the Iligginson are omitted. 954 TURNER V. TRUSTEES OP LIVERPOOL DOCKS. [CHAP. II. acceptable to you." They also requested the bankrupts to insure the cargo to the amount of its invoice price, which was made up of the price paid by Menlove & Co., with their charges added, including a commission. On the 23d October, they wrote a letter to the bank- rupts, in which they said : — The bank to whom our drafts on you were sold, required the delivery of B/L., which we thought best to comply with, and thereby obtained the very highest rate of exchange that in consequence of the uneasiness felt by purchasers of drafts on England caused by the monetary embarrassments there, [sic] The Charlotte arrived at Liverpool on the 26th of November, 1847, and, on the following day, notice was given to the master that Men- love & Co. claimed to stop the cargo in transitu, and reqiiired him to deliver it to the Bank of Liverpool on their account. On the 11th of February, 1848, the cargo was, by consent, stowed in the warehouse of the defendants. It was proved that the bills of lading wore in the form usual in the American trade ; and that when bills of lading are transferred, it is not the practice of merchants to inquire for the invoice or correspondence, or any thing but the bill of lading. It also appeared fi*om the deposi- tions of merchants of experience at Charleston, that when a merchant at that port is placed in possession of an order for the purchase of prod- uce from an English correspondent, the invariable usage is to reim- burse, unless otherwise placed in funds, by drawing bills of exchange on the Eiiropean house. The xisual course of business is for the merchant who executes an order embracing the jiurchase of produce for a mer- chant in England, to draw bills on the latter, and to raise the money by negotiating the bills. This negotiation generally takes place with a bank, but sometimes with other dealers in bills ; when the bill is taken by a bank, it is always drawn payable to the cashier ; when negotiated to a private dealer, it is drawn as he may direct. In such negotiation the bill is not said to be discounted, as it is almost always sold at an amount exceeding the nominal value. Dealers in exchange, whether banks or individuals, when they have not full confidence in the strength of the bills at both ends, generally require the bill of lading transferred as additional security. The highest exchange, however, is obtained for bills bought without such security, as they are bills drawn on parties whose characters stand high.^ The plaintiffs' counsel objected to the reception of certain portions of the evidence offered on behalf of the defendants ; but the evidence was admitted by the learned judge, who expressed an opinion that the evi- dence objected to did not carry the case further in favor of the defend- ants. The plaintiffs' counsel also contended, that, under the above ^ The statement of facts has been abbreviated. — Ed. SECT. Vr.] TURNER V. TRUSTEES OF LIVERPOOL DOCKS. 955 circumstances, the property and possession of tlie goods in question vested absolutely in Barton, Irlani, & Higginson, on the delivery on boai-d their ship, so that all rights of lien and stoi)page in transitu of Menlove & Co. Avere then at an end ; and that such rights were not revested by Menlove & Co. taking the bills of lading to their o-vvn order, contrary to their contract; that the master had no authority to sign such bills of lading; and even if Menlove & Co. had such riglits of lien and stoppage in trcmsitu, they could not transfer them. Also, that any defence of lien orstopj^age i}i transitu should have been spe- cially pleaded. It Avas agreed on both sides that there was no question of flict for the jury, and that the learned judge should direct them how they should find their verdict ; and 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 vendees, but that they intended to preserve their rights as unpaid vendors, he directed a verdict for the defendants. A bill of exceptions having been tendered to this ruling of the learned judge, the case was argued in last Michaelmas vacation (No- vember 30 and December 2) by Crompt07i {BlacL-burii with him), for the plaintiffs. The principal question is, whether, upon the above documents and evidence, the learned judge was correct in directing a verdict for the defendants. It is submitted that the property and right of possession of the goods in question vested in Barton & Co. by the delivery on board their vessel. Any right of lien or stoppage in transitu was gone when the goods were put on board the vendees' ship, to be carried for them and on their account and risk. Van Casteel v. Booker,- In re Humberston,- Coxe V. Harden.^ The distinction is well established, that where goods are shipped on board a chartered vessel, the right of stoppage in transitu remains, because the master is the agent of the shijiper, and in the situ- ation of a bailee or carrier ; but if the contract is to deliver on board the purchaser's own ship, the transitus is determined by the delivery.* . . . The property in these goods having vested absolutely in Barton & Co., the indorsement by the master of the bill of lading, making the goods deliverable to other persons, can be of no avail.^ . . . Here the contract was distinct, that the goods should be delivered to Barton & Co. on board their ship, which was sent to receive them. It is true, the foreign merchant is under no obligation to comply with the order sent, but may sliip the goods to his own order, deliverable upon 1 2 Exch. 691. 2 1 Y>e Gex, Bank. Cas. 262. » 4 East, 211. ♦ The learned counsel here quoted from Abbott on Shipping (8th ed.), pp. 289, 522. — Ed. * The learned counsel here cited Ogle v. Atkinson, 5 Taunt. 759, and The Con- stantia, 6 Rob. Adm. 327. — Ed. 956 TURNER V. TRUSTEES OF LIVERPOOL DOCKS. [CHAP. II. payment of fi-eight ; but in that case the consignee may refuse to accept the goods. Here, however, it is clear that Menlove & Co. intended the property to pass to Barton & Co. on delivery ; for by the letter of the 16th of October they say that they have drawn the bills of exchange at a long date, in order to give Barton & Co. time to realize money by the sale of the goods. The fact that the goods are stated in the bill of lading to be the owner's property, and freight free, shows that the contract was one of absolute sale, to be executed by delivery on board their vessel. Menlove & Co. could have no right to use the vessel of Barton & Co. for the purpose of carrying their own goods "freight free," neither could they have any right to pledge the goods increased in value by the amount of the freight. The fact that the goods were shipped at the risk of Barton & Co. also shows that the con- tract was for the delivery of the goods to them on board their ship in America, and not at Liverpool. The master had no authority to sign a bill of lading contrary to his express instructions. Menlove & Co. might have sued Barton & Co. for goods sold and delivered the moment they were put on board their vessel. Suppose the goods had perished at sea before the 23d of October, could Barton & Co. on that account have refused to accept the drafts, or could their underwriters have suc- cessfully traversed their interest ? Again, suppose that by the wrongful act of the mariners the goods had been damaged, could Menlove & Co. have maintained an action on the bill of lading against Barton & Co. ? Clearly not, for it Avas a contract by the master to carry the OAvner's property for nothing. Mitchel v. Ede^ is distinguishable, since in that case it was not contrary to the master's duty to bring home the goods on freight. The court there considered that the bill of lading was not conclusive as to the vesting of the property, because it was explained by other circumstances. In Wait v. Baker,- the ship was chartered by the vendor for the use of the vendee, and the master was in the situa- tion of agent for both parties. Van Casteel v. Booker ^ is an authority in the plaintiffs' favor. There the bill of lading was, " he or they pay- ing freight free ; " in this case it is, " nothing, being owners' property, without per cent, primage and average accustomed." That case shows that all the circunistances must be looked at, in order to see whether or no it was the intention of the parties that the property should pass. In Ellershaw u. Magniac,* which is cited in Van Casteel v. Booker, it was held that the vendor had a right to vary the consignment. In Jenkyns v. Brown,^ the cargo was, at the time of the shipment, the property of the plaintifl''s agent, and there was no evidence of an in- tention to pass it. A bill of lading in the ordinary form is a mere con- tract for carriage, and where a person carries his own goods in his own illA. &E. 888. 2 2Exch. 1. » 2 Exch. 69L * 6 Exch. 570, n. * 19 L. J., Q. B. 288. SECT. VI.] TURNER V. TRUSTEES OF LIVERPOOL DOCKS. 957 ship no bill of lading is necessary. Here the bill of lading, coupled with the other circumstances, shows that the property vested in the con- signees, and that the shippers were merely their agents. Where there is a delivery of goods, with an intention to pass the property, the ven- dor cannot subject them to any right of lien or control. Howes u. Ball.^ The owners themselves having made a special contract for the employment of their ship, it was not competent for the master to annul such contract, and substitute another for it with the other contracting party. Abbott on Shipping, p. 130, 8th edit.; Burgon v. Sharpe,* Dewell V. JNIoxon.^ There is a class of cases which show that a bill of lading will not control the lights which a ship-owner has reserved to himself by the cliarter-party. Small v. Moates,* Saville v. Campion.* The indorsement of a bill of lading does not of itself operate as a trans- fer of the property, but is only evidence of it. Newsom v. Thornton,' Haille v. Smith.'' Secondly, even if a right of lien did exist, it could not be transferred. A lien is a personal right, and continues only so long as the possessor holds the goods. M'Combie v. Davies,^ Daubigny V. Daval,^ Legg v. Evans.^" Thirdly, the lien, if any, should have been specially pleaded. As Menlove & Co. had in their hands some funds of Barton & Co., they w^ere not in the situation of unpaid ven- dors. Mason v. Farnell " decided that in detinue the defendant cannot, under the pleas of noti detinet and not possessed, show that he had a common interest with tlie plaintiff in the property sought to be re- covered. That decision, however, is at variance with Lane v. Tewson," in which the Court of Queen's Bench held that in detinue a lien might be set u}) under a plea that the goods were not the goods of the plain- tiff. Fourthly, the evidence objected to was improperly received. That would entitle the plaintiff to a venire cU novo. [Wigutman, J. Nothing was left to the jury ; therefore they could not have been in- fluenced by that evidence.] Coxding {Knowles and Watson with him), for the defendants. The learned judge was correct in directing a verdict for the defendants. It is material, in the first place, to advert to the relative position of the parties. At the time the order was sent to Menlove & Company, they were unprovided with funds to make the })urchases, with a trifling ex- ception. Then what is the usage of trade? The course of dealing at Charleston is to purchase produce for cash ; and that is obtained by the merchant at Charleston drawing bills on the merchant in Eng- land, and when those bills cannot be sold without additional security, the bill of lading is assigned for that purpose. ]\[enlove & Co. were unable to raise money without jjledging the bill of lading; and couse- 1 7 B. & C. 481. 2 2 Campb. 529. ' 1 Taunt. 391. * 9 Eing. 574. » 2 B. & Aid. 503. 6 G East, 17. 1 1 Bos. & P. 563. 8 7 East, 5. » 5 T. R. 604. 10 6 M. & AV. 86. " 12 M. & W. G74. 12 12 A. & E. 116, n. 958 TURNER V. TRUSTEES OF LIVERPOOL DOCKS. [CHAP. H. quently they agreed to indorse it to the Bank of Charleston, This negotiation took pLace before the bills of exchange were drawn, and also prior to any shipment ; for the letter of the 25th of September shows that the outwai-d cargo of the Charlotte was not then dis- charged. Bills were accordingly drawn, by means of which Menlove & Co. were enabled to jiurchase the great bulk of the cargo ; and it is not disputed that the highest rate of exchange was obtained. On the 12th of October, the day before the Charlotte sailed, the bill of lading was drawn " to order of Menlove & Co.," and forwarded to the Bank of Liverpool, who are identified with the Charleston Bank. On the same day an invoice of timber was sent consigned " to order." On the 19th of October, an abstract invoice of cotton was sent in a similar form; and on the 23d an invoice was sent dated the 13th. Under these circumstances, the goods Avhen pui'chased became the property of Menlove & Co. ; for they purchased in their own name, and the credit was given to them exclusively, they having to pay cash. Abbott on ShijDping, p. 516, 8th ed, ; Feise v. Wray.^ Then when did the goods cease to be the property of Menlove & Co. ? No doubt they wrote that they had made purchases for Barton & Co. ; but those letters only show an intention to purchase goods for the latter, not an irrevocable appropriation of them. The proj^erty remained in Menlove & Co., at least until the goods were shipped. Atkinson v. Bell.^ It is said that Menlove & Co., by acceding to the order of Barton & Co., undertook to ship the goods as their property ; but no such consequence follows. If, indeed, Menlove & Co. had undertaken to ship the goods as the unqualified and absolute property of Barton & Co., they would have been bound by such an agreement ; biit the letter of the 18th of August contains nothing specific as to the mode of payment. It must there- fore be read with reference to the usage of trade, and in the sense in which a merchant in the situation of Menlove & Co. would understand it ; that is, that they were to raise funds by drawing bills of exchange, and pledging the bills of lading if necessary. That Barton & Co. contemplated the drawing of bills, is clear from the letter itself, and also from the letter to them of the 23d of September, in which Men- love & Co. inform them that they have drawn the bills. The contract was not to ship the goods absolutely and without reservation, but sub- ject to the special projjerty in respect of the pledge of the bills of lad- ing. Menlove & Co. were therefore justified in shipping the goods in their own name, so as to reserve to themselves the legal property, for the purjjose of securing payment of the funds raised. But whether justified or not, the mere duty to ship the goods in the name of Barton & Co. would not vest the property in them, though the breach of that duty might render Menlove & Co. liable to an action. The words 1 3 East, 93. 2 8 B. & C. 277. 4 SECT. VI.] TURNER V. TRUSTEES OF LIVERPOOL DOCKS. 959 "owners' property," in the bill of Indinj;, mean beneficially so, and were only inserted for the purpose of exculpating the captain for carry- ing "freight free." The important part of the bill of lading is that which states the person to whose order it is drawn. Van Casteel v. Booker ;i Jenkyns v. Brown.^ No real prejudice could ensue from taking the bill of lading in this form, for Barton & Co. were in the situation of mortgagors, and had sufficient interest to insure. 1 Arnould on Insurance, 251 ; Smith v. Lascelles.'' A court of equity would, as in the case of mortgagees, compel the consignors to refund, o;i sale of the goods, what they might receive beyond what was suf- ficient to indemnify them. The invoice, which bears date subsequent to the bill of lading, would not affect the property passed to the bank. An invoice is not, like a bill of lading, a symbol of property. The terms "addressed to order" in the invoice refer to the bill of lading. Whether or no the master acted rightly in receiving the goods as those of Menlove & Co. is immaterial, since his wrongful receii)t of them would not vest the property in Barton & Co. But the master acted rightly, because he was authorized to receive the goods on the same terms as Menlove & Co. were justified in shipping them ; that is, accord- ing to the course of trade, and subject to such security as was neces- sary for the purpose of raising funds. In Wait v. Baker,* the terms of the charter-party do not appear, and the vessel was treated as the pur- chaser's. In Van Casteel v. Booker, in which the bill of lading was like the present, the question was considered as depending on the in- tention of the parties at the time of the shipment. Coxe v. Harden has never been cited with approbation, and as to one point has been overruled by Morison v. Gray ^ and Brandt v. BoAvlby.^ Ogle v. Atkinson ^ is not reconcilable with Mitchel v. Ede « or Ellershaw v. Magniac,^ and can only be supported on the ground of fraud. The case of The Constantia ^'^ has no bearing on the present case, for here the question is not Avhether, if the goods had been consigned to Barton & Co., that consignment could have been altered, but whether they ever were so consigned. Mitchel v. Ede only shows that the consignee alone has power to change the destination. Secondly, it is argued that a lien is a personal right, and cannot be transferred. No doubt that is so in the case of an ordinary lien ; but it is otherwise where, as here, •an unpaid vendor has a property in the goods. His interest differs from, and is greater than, that of an ordinary lien, and is not destroyed by relinquishing possession of the goods. Hobson v. Mellond " shows that there are eases in Avhich a lien is transferable. Further, it is argued that the lien ought to have been pleaded specially ; but that 1 2 Exch. 691. 2 19 L. J., Q. B. 288. » 9 T. R. 187. 4 2 Exch. 1. 5 2 Bing. 260. « 2 B. & Ad. 932. 7 5 Taunt. 759. 8 n a. & E. 888. ^ 6 Exch. 570, n. 10 6 Rob. Adm. Rep. 321. *^ 2 Moo. & Rob. 342. 960 TURNER V. TRUSTEES OF LIVERPOOL DOCKS. [CHAP. H. arsrument altosrether fails, inasmuch as this is not a mere lien. At all events, the decision of the Court of Queen's Bench in Lane v. Tewson is to be preferred to that of Mason v. Farnell.^ Crompton repHed. Cur. adv. vuU. The judgment of the court was now delivered by Pattesox, J.^ . . . The question is whether Menlove & Co. could, under the circumstances, 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 dehvery of the goods on board the bankrupt's own ship, specially appointed for the purpose of bring- ing home those goods, and such deHvery being made to the master, who was the bankrupt's agent for the purpose of receiving them, the absolute property vested in them, the sale being complete by the accept- ance 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 Liver- pool to order or to our (Menlove & Co.'s) assigns, did not prevent such absolute property vesting 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 owner's property, which was inconsistent with the property remaining 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 their principal point were Ogle v. Atkinson,^ Coxe v. Harden,^ the case of The Con- stantia,*' Bohtlingk v. Inghs," and the case of Fowler v. Kymer cited in it. All these cases, however, are clearly distinguishable from the present.* . . . 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 that 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 preserve their right as unpaid vendors, directed the verdict to be 1 12 A. & E. 116, n. 2 12 M. & W. 674. 8 His lordship's statement of the case has been omitted. — Ed. * 5 Taunt. 759. •"* 4 East, 211. 6 6 Rob. Adm. Rep. 327. "^ 3 East, 381. 8 His lordship here stated the cases cited. — Ed. SECT. VI.] TURNER V. TRUSTEES OF LIVERPOOL DOCKS. 961 entered for the defendants. Tliere is no doubt tliat a delivery of goods on board of the purchaser's own ship is a delivery to him, unless the vendor j^rotects 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 the cotton deliverable at Liverpool to their order or assigns ; and there was not, therefore, a delivery of the cotton to the purchasers as OAvners, though there was a delivery on board their ship. The vendors still reserved to themselves, at the time of delivery to the captain, the jus disjjonendi of the goods, which he by signing the bill of lading acknowledged, 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 them- selves the dominion over the cotton, it would not pass to the assignees. The invoice would pass no property, whatever its terms might be ; the property would only pass upon delivery; and the only effect to be at- tributed 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 tenns of the invoice and the expression in the bill of lading, that the cotton is free of freight, being OAvnei-'s property, as showing that the delivery on board the ship was with intention to pass the property absolutely ; but the oi)erativc terms of the bill of lading, as to the deli\'ery of the goods at Liverpool, and the letter of Menlove & Co. of the 28d 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 they delivered the cotton on board, of parting with the dominion over it, or vest- ing the absolute property in the bankrupts. Ui:)on this part of the case, the decisions of the Court of Exchequer in Van Casteel v. Booker ^ and Wait v. Baker ^ are authorities directly in fiivor 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 car- ried, the owners of the ship as such might not be entitled to freight upon a quantum mendt^ 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 authority in the master as a ground for contending that there was an absolute delivery of the goods, so as to vest the property iu the bankrupts immediately upon the delivery, notwithstanding the special terms upon which they were delivered and accepted by the captain, we are clearly of opinion that 1 2 Exch. G9L 2 2 Excb. 1. 962 TURNER V. TRUSTEES OF LIVERPOOL DOCKS. [CHAP. II. it is not competent to them to do so ; and that as Menlove & Co. de- livered 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 jjreserve 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 wei-e not to be delivered to the bankrupt, but to the order of the vendors ; and the want of authority of the master to accept them on such terms will not have the effect of vesting the property absolutely in the bank- rupts. The case of Mitchel v. Ede ^ 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 "t£e vendors of the goods, and reserved to themselves, by the terms upon" which they delivered them on boai'd the ship, the property in those goods until payment duly made. By indorsing and deposit- ing 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 delivery to a carrier for the purpose of his delivering them to the vendee, but a deliA'ery for the purpose of the carrier delivering them according to the order of the vendor, wdio 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 the whole. A question was made as to the admissibility of some of the evi- dence ; 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 sufficient im objectionable 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. 1 11 A. & E. L^t^^i-^^^-^ ct^Uc^f^^^-y ^//C> SECT. TL] KET-tr. COTESWdRTfiT, KEY AXD Others v. COTESWORTH a>-d Others. \\ « In the Exchequer, May 8, 1852. \~^' j^^ [Reported in 7 Exchequer Reports, 595.] Assumpsit for money received by the defendants for the use of the plaintiffs. Plea, ?io?i assimipseriint ; 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 the sum of £671 16s. 9^?., being the proceeds of two cargoes of Indian silk handkerchiefs, consigned by the plaintiffs, merchants at Madras, carry- ing on business under the firm of Bunny & Co., to the defendants, merchants in London, under the following circumstances, which Avere 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 handkerchiefs from the plaintiffs at Madras; and accordingly, on the 7th August, 1845, Ivil- gour & Leith w^rote to the defendants as follows : — We beg to acknowledge the receipt of ycrur fovors of 31st ult. and oth inst. We find it does not answer your views to execute our friends' order for India coods. We thought you would have considered this not as an isolated transac- tion, 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 £12,0U0 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 re- quired every three or four months. We did not think the liability great, as the eoods 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 consignment, 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 Oth of August, wrote to Kiloour & 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 : — 964 KEY V. COTESWORTH. [CHAP. II. 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 consign- ment 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: — 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 fol- lows : — At the request of Messrs. Kilgour & Leith, of Glasgow, we beg to open credit in your favor to the extent of £1500, to be applied to the execution of an order they have given you for Madras handkerchiefs, and for cost of which, as pro- duced, 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 £1500, 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, who received, accepted, and paid the bills drawn on them, in accordance with the letter of the 17th of September, to the extent of £1500 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 handkerchiefs, 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 Providence 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 SECT. VI.] KEY V. COTESWORTH. 965 shi])ped on the said order, and on account of Messrs. Kilgour & Leith. On the same day (21st of August, 1847) the i)laintifts wrote to the defendants as follows : — By the desire of our mutual friends, Messrs. Kilgour & Leith, of Glasgow, we beg to hand you herewith invoice and bill of lading for nine cases Madras hand- kerchiefs, shipped on the Providence, Captain S. Hicks, to your address, and against which we have as usual drawn upon you at six months for the equivalent of the amount of invoice, in £369 2s. 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 injur}- 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 Avere enclosed, and the letter and its contents received by the defendants on the "iCth of October in due course. By the bill of lading, which bore date the 21st of August, the goods Avere 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 de- fendants, " 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 substan- tially 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 band you herewith invoice and bill of lading for eight cases Ventapollam handkerchiefs, shipped in the Essex, Captain W. X. Howard, to your care ; and we have as usual drawn upon you af six months for the equivalent of the amount of invoice in £.'502 ]3.s\ 8d., being at the current exchange of Is. ll^d. per rupee, and which will doubtless meet due honor. We leave the insur- ance to be effected on your side. On the 27th of October, Messrs. Kilgour & Leith stop])ed payment. The goods by the Providence arrived in London on the 21st of Octo- ber, the goods by the Essex on the 3d of March, 1848. Both parcels were received by the defendants under the bills of lading, and both were sold by them, and the proceeds, amounting to £C71 15s. 9d., 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' correspond- ents in London, having received the bill drawn against the goods by the Providenae, caused it to be presented for acceptance to the defend- ants, who ultimately refused to accept it. The second bill was also VOL. I. 62 966 KEY V. COTESWORTH. [CHAP, II. presented for acceptance on the 22cT 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 jury, and nonsuited the jDlaintiffs.-' Sir F. Thesiger, in the following term, obtained a rule nisi to set aside the nonsuit, and for a new trial ; against which Knowles and Willes showed cause. The plaintiifs cannot maintain this action, unless they were the owners of the goods at the time of their sale. It is submitted, however, that, under the circumstances, they had ceased to have any interest in the goods, and that both the property and right of possession vested in Kilgour & Leith. Alexander v. Gard- ner.^ The invoice states that the goods were shipped " on account and risk" of Kilgour & Leith, and any loss in the course of the voyage must have been sustained by them. If they had indorsed over the bills of lading, the indorsee would have been entitled to the goods. Lickbarrow V. Mason.^ Since, then, the plaintiifs could not have maintained trover if the bills of lading had been negotiated, how can they now recover the proceeds of the sale as money received for their use ? The accept- ance of the bills by the defendants was not a condition precedent to the vesting of the property in Kilgour & Co. In Wilmshiirst v. Bowker,^ a quantity of wheat was sold, to be paid for by banker's draft on London, at two months, to be remitted by the vendee on receipt of the invoice and bill of lading ; and it Avas held in the Exchequer Chamber, reversing the judgment of the Court of Common Pleas, that, by the delivery of the wheat on board a vessel for the account and at the risk of the vendee, and the transmission of the bill of lading indorsed by the vendor, the latter had jiarted with his property and right of possession, and could not stop the wheat in transitu^ on fiilure of the vendee to remit the banker's draft. So here the plaintiffs, by the transmission of the bills of lading, have enabled Kilgour & Co. to deal with the goods as their own. If the plaintiffs had intended to retain any control over the property, they should have indorsed the bills of lading specially, or have sent them to their agents, with the bills of exchange annexed. But the bills of lading were received by the defendants before the plaintiffs' agents received the bills of exchange, which shows that they were never intended to be simultaneous acts. The property vested absolutely in Kilgour & Leith, and the plaintiffs' remedy (if any) was by an action against the defendants for not accepting the bills. [Paeke, B. Is not the fact of the bills of lading being accompanied with that stipidation, evidence for the jury that the plaintiffs did not intend the property to pass unless the bills were accepted ?] There was nothing for the jury to determine, because there was no evidence from which they could ^ The statement of the case has been slightly abbreviated. — Ed. 2 1 Bing. N. C. 671. 3 2 T. R. 63. « 7 M. & Gr. 882. SECT. VI.] KEY V. COTESWORTH. 967 infer a condition either precedent or subsequent. If any condition exists, that forms part of the contract, and it is for the court to deter- mine its meaning, and say whether it is conditional or not. Hutchinson I). Bowker;^ Neilson v. Harford ; - Taylor on Evidence, vol. i. p. 42. Here all the facts admit of but one construction, viz., that the property was intended to vest absolutely in the consignees. Howes v. Ball ^ and Brandt v. Bowlby * are instances of conditional contracts. In the cases relied on by the other side, the conduct of the parties was at variance with what the terms of the document implied, and that aiforded evi- dence of a condition. The Attorney -General {Montague Smith with him), in support of the rule. It was for the jury to decide what was the nature of the contract, which, it is submitted, was conditional only ; and without per- formance of the condition, viz., the acceptance of the bills, no property passed to the consignees. It is important to consider the previous transactions between the parties, since the letter of the 5th of February, which contains the order in question, refers to them in these terms : " You will draw for cost, and consign goods as before." It is coHceded that, if the contract depended entirely on written documents, the court, and not the jury, Avould have to determine its meaning. But there is no written contract between these parties. Neither the order, nor the bill of lading, nor the invoice, taken separately or collectively, consti- tute the contract. The mere assignment of the bill of lading does not confer on the assignee any right either of property or possession in the goods, but is only evidence that he has acquired such right. Blackburn on Contracts, p. 279 ; Mitchel v. Ede.^ Van Casteel v. Booker® is also an authority to show that the form of the bill of lading and language of the invoice are not conclusive, but that it is the province of the jury, looking to all the circumstances, to determine what is the nature of the contract. [Martin, B. referred to Turner v. Th(! Liverpool Dock Com- pany.'] The original transaction depends upon the letter of credit of the 17th of September, 1845. Kilgour & Leith had corresponded with the defendants for the purpose of inducing them to become responsible for the payment of the goods, which the plaintiffs would not have sup- plied unless the due payment were secured by the* acceptance of the defendants. Therefore, so far as respects that transaction, it was con- ditional. The drawing was to be " against the consignment," which is a well-understood mercantile expression. Whether it was a condition precedent, defeating the transfer, or a condition subsequent, revesting the property on breach of it, was a question to be determined by the jury ; and in coming to a conclusion on that point, they should have 1 5 M. & W. 535. 2 8 M. & W. 806. ' 1 Man. & R. 288. * 2 B. & Ad. 932. ^ n a. & E. 888. e 2 Exch. 691. 7 6 Exch. 543. 968 KEY V. COTESWORTH. [CHAP. II. considered what had taken place with respect to the previous consign- ments, which were satisfied. In Wilmshurst v. Bowker,^ Lord Abinger, C. B., says, " We accede to the general principle laid down by the court below; and if the facts had been before a jury, we are not pre- pared to say that they might not have drawn the inference that the remitting of a banker's draft Avas a condition precedent to the vesting of the property in the wheat in the plaintiffs." 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 subse- quent, that the defendants should accept the bills drawn on them in respect of the handkerchiefs ; that, upon their refusal to accept, the con- dition precedent was never performed, and the proj^erty 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, which 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 account and risk of Messrs, Kilgour & Leith, followed up by the transmission of the bills of lading to the defendants, — one bill of lading making them the con- signees, and the other the indorsees, — the property and possession ab- solutely vested in Kilgour & Leith, and these goods thereby became theirs, and were at their sole risk, and they alone were entitled to them 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 the goods, with notice t)f the contents of the letters of the 21st of August and 12th of October ; and that, whether it was a sale ujDon 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 con- tained in written documents, and the parties never having had any personal communication with each other. The learned judge was of opinion that there was no question for the jury in this case, and that it was for him to decide what the contract was ; and he thought the sale to Messrs. Kilgour & Leith was an absolute, not a conditional one ; that 1 7 M. & Gr, 882. SECT. VI.] KEY V. COTESWORTH. 969 the property vested in them upon the delivery on board the sliip, and the 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 of Kilgour & Leith, and could not bring an action for the proceeds ; and, by his direction, the plaintiffs were nonsuited. We are of opinion that the ruling of the learned judge was correct. We think that the question, what was the contract between the parties, was, in this case, 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 thqir 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 accejitance 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 ; ^ 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 par- ticular facts to go to the jury, but at all events it was only the obiter dictutn of Lord Abinger. It is sufficient to say, for the reasons before given, we think that in this case there Avas no question of flict 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. Hide discharged. 1 7 M. & Gr. 882. C^; i ^ K,/; GODTS V. ROSE. [CHAP. II. GODTS V. ROSE. In the Common Pleas, November 22, 1855. [Reported in 25 Laiv 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 Avas tried before Jervis, C. J., at the sittings for London after last Trinity term, when it appeared that the plaintiflf, 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 : — 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 allowances. To be free delivered and paid for in fourteen days by cash, less £2 10s. per cent discount. (Signed) Geo. Soanes & Son, 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 fol- lowing transfer order : — London, March 13, 1855. No. 1122. 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. I '^\; The wharfnger thereupon gave the plaintiff the following notice of transfer, directed to the defendant : — Hibernia Wharf, Southwark, March 13, 1855. 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 an^ refined it, and ^^ the same day sent to the wharfinger, who vS r SECT. VI,] GODTS V. ROSE. 971 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 that 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 four- teen days to pay after delivery ; that it was customary to require pay- ment on delivery, but that such was not the meaning of the contract. 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 notice of transfer without the check, and that he said so at the time. The learned judge directed a nonsuit to be entered, and reserved leave to the plaintiff to move to enter a verdict for £265. £yles, Serjt., having obtained a rule nisi accordingly, Eaymond now showed cause. By the contract the property in the . oil and the right to the possession passed to the defendant, and he might have seized it anywhere. The contract means that the delivery is to precede payment, as in Staunton v. Wood,^ and parol evidence was not admissible to explain it. [Jervis, C. J. No point as to the admissibility of such evidence was made at the trial, and it Avas the defendant's counsel who cross-examined the plaintiff's witness as to the meaning of the contract. The result of that evidence was, that delivery and payment were to be concurrent acts within fourteen days.] The contract speaks for itself, and it is similar to that in Spartali v. Benecke,^ where the plaintiff sold wool to the defendant, " to be paid for by cash in one month, less £5 per cent discount," and the court held that the vendee was entitled to a delivery of the wool within the month without payment of the price. So here the vendee is entitled to a delivery Avithin fourteen days, and the vendor is not entitled to payment until fourteen days after delivery. If, therefore, the defend- ant was entitled to the possession of the goods before payment, M'hen once he had got possession he was entitled to keep it, and the plain- tiff's only remedy Avould be by action to recover the price. What passed with the wharfinger is, therefore, immaterial. But supposing the right of possession did not pass to the defendant by the contract, still there was a complete delivery of the goods to him, inasmuch .as when the plaintiff sent the transfer order to the wharfinger, the latter transferred the oil to the defendant's name, and gave him notice that he had done so. As between vendor and vendee the notice Avas im- 1 16 Q. B. Rep. 638. 2 10 Com. B. Rep. 212; s. c. 19 Law J. Rep. (N. S.) C. P. 293. 972 GODTS V. ROSE. [CHAP. II. material, and if a transfer was necessary to pass the propei-ty it was given, and was irrevocable. In Swanwick v. Sothern ^ it was held that if the identity and quantity of the goods are ascertained, the transfer in the books of the wharfinger is sufficient to pass the property in the goods as between buyer and seller ; and in this case no point was made at the trial, that the sale was not of any specific quantity of oil. If the plaintift" intended to insist on his right to payment before delivery, he ought to have done so before giving the transfer order ; but when he had given that, and the wharfinger had acted upon it, it was too late to object to the delivery without payment. Byles, Serjt., and //. James^ in support of the rule. The property in the oil and the right of the possession did not pass by the contract of sale, the contract not being for any specific oil. The vendor might have performed his contract by delivering oil from any of his ware- houses, and it cannot be contended that the vendee might have gone to any one of them, and seized any five tons answering the description in the contract. The present case is distinguishable from Spartali v. Benecke, for the contract there was silent as to when the goods were to be delivered, but here they are to be " free delivered and paid for in fourteen days by cash," the time applying as well to the delivery as to the payment, and the vendee was not entitled to delivery without payment. But if there were any doubt as to that, it was cleared up by the parol evidence introduced by the defendant's counsel on cross- examination. As to the other point, there never was a complete delivery so as to preclude the plaintiff from suing in trover. The oil was to be free delivered where the vendee pleased ; he was not bound to accept a dehvery at the wharfinger's, nor, on the other hand, was the vendor bound to deliver that specific oil at that particular time or place; he therefore appends a condition to the transfer order, that it is not to operate unless the vendee gives a check. The notice to the vendee was not absolute, but conditional ; and with the condition the vendee refused to comply, whereupon the plaintiff" had a right, which he exercised, to revoke the authority to deliver given to the wharfinger. Until the defendant accepted the delivery to the wharfinger, there was no delivery to bind him ; there could be none, therefore, to bind the plaintiff", and the plaintiff' could not have sued the defendant if the latter had refused to accept the wharfinger as his agent. Where prop- erty is assigned by deed to a trustee in trust for a third party, the deed is revocable until assented to by the cestui que trust. Garrard v. Lord Lauderdale "^ and Harland v. Binks.^ In all the cases in which it has been held that the transfer in the wharfinger's books amounts to a delivery, the vendee has, by taking the transfer order himself to the 1 9 Ad. & E. 895. 2 3 Sim. 1. 3 15 Q. B. Rep. 713 ; s. c. 20 Law J. Rep. (N. S.) Q. B. 126. SECT. VI.] GODTS V. ROSE. 973 wharfinger, made the latter his agent. Here the defendant's option of making tlie wharfinger his agent was subject to the condition of first giving the phiintiff a check ; he refused to comply with that condition, and the wharfinger, therefore, never was his agent. Jervis, C. J. I am of opinion that this rule ought to be made abso- lute. Several objections have been made to the maintenance of this action, but I do not think that any of tlieni are entitled to prevail. It is first said that parol evidence was not admissible to explain the written contract, but it hardly 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, and at the time of delivery require payment. Then it is said that such a con- struction conflicts with the decision of tliis court in Spartali v. Ben- ecke ; 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 deliv- ery of the goods at any reasonable time after the date of the contract, within the time specified ; and that the seller was not entitled to pay- ment 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 plaintift' 's contention is right, and it was supported by the evidence given at the tiial, 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 is 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 plaintifl" 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, therefore, no intention to pass the property in the paper or the goods without payment ; and the question 974 GODTS V. EOSE. [CHAP. II. is, whether what was done amounted to a delivery. No doubt, if the vendor had given the vendee the transfer order, and the vendee had taken it to the wharfinoer, 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. Ever- ett,^ 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 bargain 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 ven- dee 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 plaintilF between this and the cases where the transfer order has been carried by the vendee to the wharfinger ; but I am now of opinion that the nonsuit was wrong, and that the plaintiff" is entitled to the verdict. Williams, J. I am of the same opinion. It is not necessary for the decision of this case to put a construction upon the sale note ; the only question is, whether there was such a delivery as passed the property in the goods. The sale was not of any specific oil, but the plaintiflTwas at liberty to deliver any oil answering the description of that contracted for, and he accordingly sent an order to the wharfinger to transfer certain oil at his wharf belonging to the plaintiflf to the defendant. No doubt if that order had been handed to the defendant, and he had taken it to the wharfinger, and it had been agreed between them that the latter should hold the oil for the defendant as his agent, there would have been a complete transfer and delivery. All the cases of attornment, as has been pointed out by the lord chief justice, amount to an arrangement between the three parties, by which the agent of the vendor ceases to hold for him, and consents to hold for the vendee. There is no pretence for saying that there was any such arrangement here, for the plaintiff"'s clerk refused to part with the notice of transfer, except on the condition of having a check, and the notice was in fact detained from him by what amounted to force. The case is the same as if the plaintiflf, before any transfer by the wharf- inger, had changed his mind, and told the wharfinger not to deliver. Crowder, J. I also think that this rule should be made absolute. It is not necessary to put any construction upon the bought and sold notes, for upon the evidence given by a witness on his cross-examina- tion by the defendant's counsel, the contract was understood to be that the delivery and payment were to be concurrent acts within the four- 1 14 East, 582. SECT. VI.] GODTS V. ROSE. 975 teen days. Then the question is, was there any delivery to the de- fendant ? The plaintiff contends tliat there was no intention to deliver except on payment, and that under those circumstances the order was given to the Avharfinger to transfer. That order in itself did not absolutely bind the goods, nor ojieratc as a delivery. Then did the wharfinger's transfer in his books operate as a delivery ? Until that transfer was acce])ted by the vendee there is no authority for saying that it did. But the vendee could only accept the transfer on condi- tion of giving the vendor a check ; he refused to do that, and there was, therefore, no binding acceptance by him of the vendor's offer so as to complete the delivery. WiLLES, J. I am of the same opinion, whatever construction may be put upon the contract, as I do not rely upon the construction of the contract nor upon the color given to it by the evidence at the trial. If it were necessary to put a construction upon it, I should think that the seller was entitled to payment upon delivery ; and I do not say whether the evidence was or was not admissible to explain it. INFy opinion proceeds upon the ground that the property which the seller had in these goods at the time of the contract was never divested. This was not a contract for the sale of specific oil, but of any oil answer- ing a certain description ; possibly evidence might have been given to render it a sale of specific oil, by showing that the parties were speak- ing of some particular oil. But, however that may be, when the con- tract is for goods "not ascertained, the parties have first to agree upon what goods are to be delivered, and the seller may send and the buyer accept any answering the description contracted for. Here the seller selected eleven pipes lying at the wharfinger's, and sent his clerk to the wharfinger to direct the latter to hold them for the buyer. The wharfinger assented to that arrangement ; but as yet there had been no assent on the part of the buyer. The clerk then went to the buyer, and told him that he might have that oil provided he gave a check in payment. In one sense, the buyer assented to the arrangement ; but as he refused to give the check, he did not assent in the sense of making a contract, and there was no complete bargain ad idem for the transfer of this particular oil ; and the property, therefore, never passed to the buyer. The law on this subject is to be found in the judgment of Parke, J., in Dixon v. Yates,^ that in the case of a sale of unascer- tained goods, until both parties have assented to the appropriation of some particular goods to satisfy the contract, the property in them does not pass. Here there was no such assent to the appropriation of this particular oil ; and therefore no property in it ever passed to the de- fendant. Hide absolute. 1 6 B. & Ad. 313 ; s. c. 2 Law J. Eep. (N. S.) K. B. 198. / [chap. II. / AND Another. /«» J ^BROWNE and^^Ano'Wer In the Exchequer, June 12, 1858. [Reported in 3 Hurlstone ^ Norman, 484.] In the Exchequer Chamber, June 23, 1859. [Reported in 4 Hurlstone Sj- Norman, 822.] ^ Declaration. Tliat defendants agreed with the plaintiffs to buy of them a certain quantity, to wit, ten tons, of the best refined rape oil, to be shipped free on board at Rotterdam in September, 1857, at £48 15s. per ton ; to be paid for, on delivery to the defendants of the bills of lad- ing, by bill of exchange to be accepted by the defendants payable three months after date, and to be dated on the day of shipment of the said oil. And although Avithin the month of September, 1857, the plain- tiffs shipped at Rotterdam a certain portion, to wit, five tons, of the best refined rape oil free on board a certain shij) called the Sophie, and the residue thereof free on board a certain other ship, and delivered to the defendants the respective bills of lading of the said oil duly indorsed to the defendants ; and although the plaintiffs performed all conditions precedent, and all things had been done and happened, and all time had elapsed, to entitle the jjlaintiffs to have the said oil paid for by bill of exchange as aforesaid, and to maintain this action ; yet the defend- ants made default in paying for the said portion of the said oil so shipped on board the said ship called the Sophie, and in accepting a bill of exchange for the same. There was also a count for goods bar- gained and sold, and goods sold and delivered. Pleas to first count. First, that defendants did not agree with plain- tiffs as alleged. Secondly, that the plaintiffs did not ship the said portion of the oil on board the shijD called the Sophie. Thirdly, that the plaintiffs did not deliver to the defendants the bill of lading of the said portion of oil shipped on board the Sophie, duly indorsed to the defendants. Fourthly, that the plaintiffs were not ready and willing to deliver the said portion of oil shipped on board the Sophie, or the bill of lading of the same oil, to the defendants, in accordance with the terras of the said agreement. Fifthly, that the said agreement was for the sale often tons of oil generally, and not of any specific or ascertained oil. That the said ship called the Sophie was a general ship, and was not ^ a ship chartered by the defendants or in any way appointed or denoted by them. That the plaintifis, when they shipped the said portion of oil on board the Sophie, took from the master of that vessel a bill of lading of the said oil, making it deliverable to the order of the plaintiffe^or ^ '/vc /-yt JW-l^>^^ ^^ /)^M^^^-^^^^^ ^ ^^.jV?^^ i^^^^^ ^r^/^<^ ^2. r^ SECT. VI.] BROWNE V. HARE. 977 their assigns, and not otherwise. That before any delivery of the saiass the property without the bill of lading, the taking of a bill of lading, and indorsing it to the defendants, which was done in furtherance of the contract, cannot alter the position of the parties. The sending of the bill of lading so indorsed to Gooldeu showed the intent of the i)laintiffs to perform their agreement. It is said that in Wait v. Baker ^ the words " free on board " were in the contract. But it was not shown to have been the intention of the vendor to fulfil the contract. [Williams, J. It is sufiicient for your aro-uraent that the court viewed it in that way.] Here the plaintiffs 1 5 Moo. P. C. 165. In Couturier v. Hastie, 5 II. L. 673, it was said : " The goods are eitlier shipped ' free on board,' wlien they are thenceforward at tlie risk of the vendee, or they are shipped ' to arrive,' which saves the vendee from all risk till thej are safely brought to port." 2 6 Exch. 54o. 3 Blackburn on the Contract of Sale, 128. < 4 B. & C. 219. 5 2 Exch. 1. 988 BROWNE V. HARE. [CHAP. II. did all they contracted to do. [Crompton", J. In Turner v. The Trustees of the Liverpool Docks ^ the court seem to affirm the propo- sition, that if a vendor says, " I will send goods so as to be delivered if the vendee pays for them," it shows that he is shipping to himself. Williams, J. The argument for the plaintiffs may be naiTowed to this, — that there is no difference whether the bill of lading makes the goods deliverable to the vendors' ordei", and they indorse it to the con- signees, or whether it makes the goods deliverable to the consignees.] It is said that the plaintiffs might have struck out the indorsement, and Brind v. Hampshire ^ was relied upon. But by the shipment, in performance of the contract, the property passed, and it could not afterwards be divested by any act of the i^laintiffs. In The Packet de Bilboa,^ the goods were sent at the risk of the shipper, and the prop- erty in them had not passed to the consignee. In The Aurora^ and The Josephine ^ there was nothing to take the property out of the shippers ; the shipments were not under contracts. Raytnond^ in reply. The mere fact of putting goods on board a ship amounts to nothing. In order to ascertain its effect, the contract and character of the shipment must be considered. At the time of this shipment three bills of lading ^ were taken, making the goods de- liverable to the order of the vendors or their assigns. The taking of such bills did not show an intention to ship the goods to the defend- ants in pursuance of the contract. If, after the indorsement of one bill of lading and before it was handed to the defendants, the plaintiffs had thought it convenient to alter the destination of the shipment, they could have done so. Down to the time of the delivei-y of the bill of lading the plaintiffs could have enforced a claim to the oil as against the defendants. [Willes, J. Suppose I order of a person goods to be shipped " free on board," and a bill of lading is sent by post, or by a messenger, and before it reaches its destination the ship is lost. Erle, J. There the bill of lading would be out of the legal control of the party, and the property would pass.] Here there was a contract for a bill of lading which the defendants were to have. The shipment did not pass the property, because the plaintiffs did an act which retained the property in themselves at the instant of the ship- ment. The exj^ression "free on board " means only that the vendor shall pay all expenses till the property is shipped. It is said that the bill of lading may be disregarded ; but if there had been none, and the plaintiffs had wished to retain the property in themselves, they would have said to the master, " You shall carry the goods for me." That is in fact exactly what they have now done. Merely writing the 1 6 Exch. 543. 2 i m. & W. 365. 3 2 Rob. Adm. 133. < 4 Rob. Adm. 218. 5 4 Rob. Adm. 25. " This fact does not appear in the report of the case in the court below. SECT. VI.] BROWNE V. HARE. 989 defendant's name on the bill of lading, without delivery, was no in- dorsement. Marston v. AUen,^ Wait v. Baker - shows that the de- fendants could not have maintained trover for the oil if the j)laintilis had chosen to indorse one of the bills of lading to some one else. Cu7'. adv. vult. The judgment of the court was now delivered by Erlk, J. In this case we are of opinion that the judgment of the court below should be aifirmed. The contract was for the purchase of unascertained goods, and the question has been, when the property passed. For the answer the contract must be resorted to ; and under that we think the prop- erty passed when the goods were placed "free on board," in perform- ance of the contract. In this class of cases the passing of the property may depend, according to the contract, either on mutual consent of both parties, or on the act of the vendor communicated to the purchaser, or on the act of the vendor alone. Here it passed by the act of the vendor alone. If the bill of lading had made the goods "to be deliA^ered to the order of the consignee," the passing of the property would be clear. The bill of lading made them " to be delivered to the order of the consignor," and he indorsed it to the order of the consignee, and sent it to his agent for the consignee. Thus the real question has been on the intention with which the bill of lading was taken in this form ; whether the consignor shipped the goods in performance of his contract to place them " free on board," or for the purpose of retaining a control over them and continuing to be owner, contrary to the contract, as in the case of Wait v. Baker, and, as is explained in Turner v. The Trustees of the Liverpool Dock,' and Van Casteel v. Booker.^ The question was one of fact, and must be taken to have been disposed of at the trial ; the only question before the court below or before us being, whether the mode of taking the bill of lading necessarily prevented the property from passing. In our opinion it did not, under the circumstances, and therefore the judgment must be affirmed. Judgment a-ffirmed. 1 8 M. & W. 494. 2 2 Exch. 1. 3 6 Exch. 543. * 2 Exch. 091. 990 FALKE V. FLETCHER. [CHAP. II. 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 1000 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 ciistom-house business. It was proved that De Mattos was frequently in the habit of employ- ing the plaintiff to charter vessels for the conveyance of salt, and that the course of business was for the plaintiff 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- ances for the amount. The plaintiff charged no commission to De Mattos, but charged such a price for the salt as would remunerate him for his trouble. This course was followed in the present instance, until about 1000 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 filled 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 jury that, if the property in the salt remained in the plaintiff, the sailing away fi-om 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 SECT. VI.] FALKE V. FLETCHER. 991 in the salt when he placed it on hoard, it remained in him as against De Mattos and also as against the defendant. The jury found a verdict for the plaintiiF, with damages, £582 195. 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. Edward James now moved for a new trial, on the ground of mis- direction, and that the damages were wrongly estimated, there having been no conversion until the vessel reached Calcutta. He contended that the salt having been purchased by the plaintiff, as agent for De Mattos, and delivered on board a ship chartered by De Mattos, the property in it had passed to Do Mattos, and that the defendant had a right to refuse to give bills of lading made out in the name of any other person than De Mattos. 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 unjjaid 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 jury, 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 by the cajitain's sailing away from Liveqiool and refusing to give the plaintiff bills of lading in his own name. By reason of his doing so, goods to which the plain- tiff 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 Avhen the defendant caused the goods wrongfully to be taken out of the control of the plaintiff. Williams, J. I am of the same opinion. It is a pure matter of fact : What was the intention of the plaintiff in putting the goods on board ? There was evidence upon this point which might have justi- fied the jury in finding either way. One of the circumstances to be taken into consideration was, that the plaintiff was also the agent for the vendee, and no doubt that was pressed on the part of the defend- ant upon the jury. As to the damages, it is clear that as soon as the plaintiff was deprived of the power to exercise his right to resume pos- session of the goods there was a conversion. WiLLES, J. I am also of opinion that the learned judge left the proper question tothe jury ; namely, whether, looking at all the circumstances, there was an intention by the plaintiff to appropriate the salt to De Mattos and to pass the property to him when he ]nit it on board the vessel. Looking to the course of dealing between the parties, I think it is clear that the jury were right. The practice of sending the bill of 992 MOAKES V. NICHOLSON. [CHAP. II. lading together with the invoice direct to the principal produced great hardships in Key v. Cotesworth,^ the goods having got into the hands of a bankrupt consignee. That eventually led to a practice being adopted similar to that in Turner v. The Trustees of the Liverpool Docks ; ^ namely, for the merchant to ship the goods on board on his own ac- count. That was the course of business adopted in previous transac- tions between the plaintiff and De Mattos, and there is every reason to suppose that in this case also he meant to retain that security. With respect to the argument that has been used, that the plaintiff put the goods on board as agent for De Mattos, that appears to me to be only one circumstance in the case, and not a conclusive one. In one sense, no doubt, he was the agent of De Mattos ; but for the purpose of con- sidering this question he must be treated as a vendor, as was done in Feise v. Wray.^ With respect to the conversion, I am satisfied that the learned judge was right in his direction to the jury. Keating, J., concurred. Bule refused. MOAKES V. NICHOLSON. In the Exchequer, Mat 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 conversion 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 con- tracted for, and it was to be shipped on board a vessel which was char- tered 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 1 7 Exch. Rep. 595 ; s. c. 22 Law J. Rep. (n. s.) Exch. 4. 2 6 Exch. Rep. 543 ; s. c. 20 Law J. Rep. (n. s.) Exch. 393. 3 3 East, 93. SECT. VI.] MOAKES V. NICHOLSON. 993 small portion of the coal was still undistinguished, Pope sold the coal he had contracted for to the plaintiff on the Coal Exchange in London. The plaintiff resold on the same day at a higher price, and before ac- tion 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 freiglit 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 loading, was sent on the 19th of December to Pojdc, 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 the 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 the 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 the coals m transitu^ and that neither Pope nor the plaintiff had any right to the property and possession of the coals. A rule nisi having been obtained pursuant to such leave, D. D. Keane and Barnard now showed cause. There was a com- plete delivery of the coals to Pope when they were delivered on board the vessel chartered by him. The Isle of Arran was demised to Po])e : the transit therefore was at an end when the coals were shipped. The property and the possession had both passed, and the vendor could have no right to intercept them. [Wili.es, J, The coals were dehvered sub- ject to a condition that the property was not to pass until payment.] The answer to that is, that they were delivered on board the buyer's vessel to one who was the buyer's servant, the document of title being made out in his name. [Willes, J. They were put on board under a contract made under such circumstances that it w as no contract at all.] The vendor might, no doubt, as in Turner w. The Trustees of the Liv- erpool Docks, 6 Exch. 543, have so fi-amed the bill of lading as to reserve to himself the jus dispo7iencU ; but he has not taken that pre- caution. In Joyce v. Swann, 17 C. B. 84, it was held, that, where from all the facts it may fairly be inferred that it was the intention of the seller to pass the property in goods shipi)ed to order, the mere circum- stance of the bill of lading being taken in the name of the seller, and re- maining unindorsed, will not prevent its passing. Here every act of the seller is inconsistent with what the defendant now contends. ["Willes, J. Joyce V. Swann hardly touches this case. Here the goods were absolutely delivered to the buyer, and vested in him, unless the words " payment against bill of lading in the hands of my agent in London " 994 MOAKES V. NICHOLSON. [CHAP. II. created a condition subsequent, by which in default of payment the coals were to revest in the seller.] There is nothing here, it is submit- ted, which could amount to a condition subsequent. It would be man- ifestly unjust to allow the defendant, who has put Pope in a position to pass himself off as the true owner of the coals, to turn round and claim them against a bond fide purchaser from Pope. J. A. Russell and Thesiger, in support of the rule. The contract un- der which the coals were put on board the Isle of Arran was, that they should be paid for in cash against the bill of lading; and the only bill of lading now in question is that which was retained by the seller and transmitted to his agent in order to get the cash in pursuance of the tei'ms of that contract. The result is, either that the property in the coals never vested in Pope at all, or vested only subject to the con- dition that it should revest in the seller on non-performance of the condition. Until Pope obtained the stamped bill of lading, he could acquire no property at all. The finding of the jury concludes the mat- ter. If the plaintiff chose to deal with Pope in the absence of the only document that could give him title, he must take the consequences. He cannot be in any better position in regard to title than Pope himself stood in. In the cases i-elied on for the plaintiff, the bill of lading had been handed over : here it was retained. [Erle, C. J. The plaintiff bought without a bill of lading?] He bought on the 12th of December. The bill of lading was dated the 19th. Whether or not the property vests in the buyer in all cases depends upon the terms of the contract. See Wilmshurst y. Bow^ker, 2 M. & G. 792, 3 Scott, N. R. 272 ; in eiTor, 7 M. & G. 882, 8 Scott N. R. 571 ; Brandt v. Bowlby, 2 B. & Ad. 932 ; Browne v. Hare, 4 Hurlst. & N. 822 ; Blackburn's Contract of Sale, 135. Here the terms of the contract clearly negative the passing of any property until the price was paid, and the bill of lading handed over. [WiLLES, J., referred to Smith's Mercantile Law, 5th edit. 464 et seq.^ where the authorities are discussed.] Erle, C. J. I am of opinion that the rule to enter the verdict for the defendant should be made absolute. Moakes brino-s his action on 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 Moakes could have any 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 by the terms of the contract it was distinctly 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 SECT. VI.] MOAKES V. NICHOLSON. 995 condition never was complied witli. This being so, whilst the coals remained an unascertained quantity, Moakes entered into a contract with Poi)e, under which in my opinion he took precisely the same title as Pope had as between him and Jesse. 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 by him with the intention 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 ])ill of lading. If that was the clear intention of Josse, the property did nut 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 property. If the intention was that the ship should be regarded as the warehouse of Josse until the hnpiK'uing 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 de- livery, and no bill of lading existed. He therefore cannot say 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. Byles, J. I am of the same opinion. I must confess I had at first entertained some doubt, because I thought the sale to the plaintiff took place after the shipment and after the bill of lading had been handed to Pope. But it turns out that that is not so. The coals in question were not loaded, nor even distinguished from the rest of the coals in the vendor's yard. It is plain, therefore, that no property passed at the time of the sale. And it would seem from the cases cited that none passed at the time of the shipment. The putting the coals on board the Isle of Arran was clearly not intended by the parties to be a de- livery so as to vest the property in the vendee. According to the evi- dence and the finding of the jury, the captain was a sort of supercargo : the goods were not to become the property of Pope until the conditions of the contract were satisfied. Apart from the representations of the vendor, therefore, it is plain that the plaintift' could have no projierty in the coals. The case appears to me to be perfectly clear and free from doubt. IvEATUNG, J. I am of the same opinion. The course adopted by the vendor to retain the property in the coals, and the control over them, was undoubtedly somewhat slovenly and unbusiness-like. But that his intention was that the property in the coals should not jiass to the vendee until payment, is clear beyond all question. The finding upon that is quite in accordance with the evidence. That being so, nothing which took place afterwards has at all altered the rights of any of the 996 SHEPHERD V. HARRISON. [CHAP. II. parties. I characterize the proceeding as slovenly and nnbusiness- like, because circumstances might have occurred which might have placed the vendor in a precarious position as to the property in the coals ; for, though he may have supposed he amply secured himself by stamj^ing only one of the bills of lading and retaining that one in his own possession, yet if the unstamped bill of lading which was transmit- ted to Pope had been produced to the plaintiff at the time he bought the cargo, and the plaintiff had acted upon it, a question would have arisen which might have placed the defendant's right in some jeopardy. But, at the time the plaintiff bought and paid for the coals, the subject- matter of the contract had not been ascertained. Rule absolute. SHEPHERD V. HARRISON and Another. In THE Queen's Bench, January 15, 1869. « ^ i^ [Reported in Law Reports, 4 Quee:n's Bench, 196.] J .^ In the Exchequer Chamber, May 11, 1869. \ \ -<^ y [Reported in Law Reports, 4 Queen's Bench, 493. J V^ In the House of Lords, April 27, 28, 1871. "% 1 [Reported in Law Reports, 5 House of Lords, 116.] Declaration for the conversion of two hundred bales of cotton. Pleas: 1. Not guilty. 2. That the goods were not the plaintiff's. Issue thereon. At the trial before Mellor, J., at the Manchester spring assizes, 1868, a verdict was entered by consent for the i^laintiff for £1251 13s. 8c?., subject to the opinion of the court upon a case of which the folio-wing is the substance : — - , s The plaintiff is a cotton and general merchant, carrying on business J J 7^ at Manchester, under the style of John Shepherd & Co. The defend- v^ ^ ants are the owners of the screw-steamer Olinda, of Liverpool. Paton, nI-^ ^ Nash, & Co. are merchants at Pernambuco in the Brazils, and George -^ Paton & Co., who carry on business at Liverpool as merchants, are the Liverpool correspondents of Paton, Nash, & Co. Before April, 1866, several transactions had taken place between the plaintiff and Paton, Nash, & Co. In all these (except upon one occa- sion, in 1865, when Paton, Nash, & Co. purchased cotton for the plain- "^ \s tiff), Paton, Nash, ^ Cp^cted as agents for the sale of goods consigned ^.L^:. ^'^ I ^i^,§ :^ SECT. VI.] SHEPHERD V. HARRISON. 997 to them by the plaintiff. In the letter of Paton, Xasli, & Co. to the plaintiff, announcing the purchase on his account, in 18G5, and that they had forwarded the cotton by the Spray, tliey said, "By the English steamer of 13th prox. we sliall send bill of lading and value on you for cost." And George Paton & Co. afterwards wrote to the l^laintiff : " Herewith we beg to hand you bill lading of two hundred and forty bags cotton per Spray. We presume our Pernambuco friends have made a mistake in sending it under cover to us. We also enclose draft on your good selves for £2072 9s. Qd., which we will thank you to return with the needful." In April, 1866, the plaintiff sent to Paton, Nash, & Co. a letter enclosing an order to buy for him, not exceeding one tliousand bales of cotton, firsts, with from two hundred and fifty to three hundred seconds, or a proportionate less quantity of each at a certain price. This order was not executed by them ; and on the 7th of September, 1867, the plaintiff sent another order for the same amount as to quan- tity, but at a less price, to which Paton, Nash, & Co. replied on the 28th of September, 1867, acknowledging the order, and adding, "You do not mention whether jjart of the order is to go against your funds lying here, but we suppose you intend it as a remittance." Further correspondence ensued, the j^laintiff reducing his limit as to price, owing to falls in the market ; and in a letter of the 25th of October, 1867, he wrote, "Pray don't make the mistake you did before about our funds in your hands; they never were intended to" be applied to pay for cotton purchases, but to wait instructions." On the 5th of October, 1867, seven hundred and forty-seven bales of cotton had been purchased by Paton, Nash, & Co., on account of the plaintiff, and they wrote on that day, saying what they had purchased, adding, " 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 pro- ceeds in our hands, and Ave therefore shall value upon you on forward- ing bill of lading." They also wrote another letter to the plaintiff the same day : " We beg now to enclose invoices of three hundred and thirty-nine bales cotton per Capella, costing £1616 Ss. Sd., and two hundred and eight ditto by La Plata, costing £883 7s. Id. We have drawn upon you, as per note at foot, for the sum, to which we beg your protection. We are afraid the Capella will not be able to take the other two hundred bales, therefore it will be as well to insure per steamer or sailing vessel. Note of drafts. No. 926, tavor of Messrs. G. Paton & Co., £1616 Ss. Sd. ; No. 927, do., £883 7s. Id. The bills lading will be handed to you by Messrs. G. Paton & Co." The invoices were made out " on account and risk of Messrs. John Shepherd & Co." These two lots were duly received by the plaintiff, under bills of lading, which were forwarded by Paton, Nash, & Co. to G. Paton & Co., and by them to the plaintiff, together with the two VOL. I. 64 998 SHEPHERD V. HARRISON. [CHAP. II. bills of exchange, with a letter saying : " We also enclose bills for £1616 8s. Sd. and £883 7s. Id., respectively, to which please do the needful, and return to us in course." The plaintiff accepted the bills, and re- turned them to G. Paton & Co., in a letter of the 18th of November, 1867, saying, as to one of the lots, " with the reservation as to the me- diums and seconds not being bought according to our instructions. In case, therefore, of any loss arising from the sale of these, we must claim against you." A long correspondence ensued between the plaintiff and G. Paton & Co., as to whether or not the plaintiff's order had been complied with. The plaintiff paid the two bills at inaturity. The remaining two hundred bales purchased by Paton, Nash, & Co. were shipped by them in defendant's screw-steamer, the Olinda, and they wrote to the plaintiff on the 12th of November, 1867: "Enclosed please find invoice and bill of lading of two hundred bales cotton, ship])ed per Olinda, S. S., costing £861 2s. 7d. at 21i, Rs. 9725.696, and which we hope may prove correct and satisfoctory. We have advanced the captain of the Capella £55 6s. Qd. as per receipt enclosed, to be deducted from the fi-eight on your cotton, and on which you have five per cent commission, anrece- dent that he should accept the bill of exchange for the amount. If the former, the plaintiff is entitled to recover ; if the latter, the defend- ants, the ship-owners, were justified in refusing to let the plaintiff have the cotton, and in handing it over to the agents of Paton, Nash, & Co., under the duplicate bill of lading. No doubt the bill of ladiuo- makes the cotton deliverable to consignors' order, and that circum- stance was relied on in the judgment in Turner y. Liverpool Docks Trustees,^ as showing the intention that the property should not pass 1 6 Ex. 543 ; 20 L. J. (Ex.) 393. 1000 SHEPHERD V. HARRISON. [CHAP. II. at once to the consignees; but the ch-cumstances of that case differ materially from the present. There the bill of exchange was discounted or sold by the consignors, and the bill of lading specially indorsed was handed to the purchasers as a security ; in the present case the bill of lading was indorsed in blank at Pernambuco, and sent with the bill of exchange to the agents of the consignors, and by them handed over to the plaintiff; the passage in the letter of the agents in 1865 shows that this was a mistake, and the transaction, therefore, was precisely the same as if the bill of exchange and bill of lading had been sent direct to the plaintiff. There was the greatest confidence evidently reposed in the plaintiff by both Paton, Nash, & Co. and their agents ; and it is only in time of peril and suspicion that the practice obtains of attaching the bill of exchange to the bill of lading, and making the acceptance or even payment of the one a condition precedent to the delivery of the other. See per Crompton, J., in Giirney v. Behrend;^ but then this intention is shown, as Lord Campbell points out, by attaching the two documents. In Wilmshurst v. Bowker,"^ the facts were very similar to the present, and the Court of Exchequer Chamber unanimously reversed a considered judgment of the Common Pleas, and held that by the delivery of goods by the vendor to the master of a vessel for account and at the risk of the vendee (as in the present case), and by the transmission of the indorsed bill of lading with the bill of exchange to the vendee, the property at once passed to the ven- dee, and the acceptance of the bill of exchange was only a condition subsequent, making the default of acceptance only a breach of contract. [Hannen, J. Moakes v. Nicolson ^ shows it is a question of intention.] No doubt ; and Key v. Cotesworth * shows that the inference to be drawn is that the acceptance of the bill of exchange was not a condi- tion precedent. IToIker, Q. C, for the defendants. The question is, what was the inten- tion of Paton, Nash, & Co., as evidenced by what they did and wrote ; and so far from it being their practice to transmit the bill of exchange and bill of lading direct to the plaintiff, both on the former occasion and in the present instance they send the documents to their agents, for the obvious purpose that they may get the bill of exchange accepted before parting with the bill of lading ; and the fact of the agents having parted with the bill of lading without getting the acceptance cannot affect the case. In all the cases in which property has been held to pass without the acceptance of the bill of exchange, the bill of lading has been indorsed to and sent direct to the purchasers. See Maclach- lan on Shipping, p. 343. Here the bill of lading was indorsed in blank, and sent to the agents not of the plaintiff, but of Paton, Nash, 1 3 E. & B. at pp. 630, 631. 2 7 M. & G. 882. 8 19 C. B. (n. s.) 290; 34 L. J. (C. P.) 273. * 7 Ex. 595; 22 L. J. (Ex.) 4. SECT. VI.] SHEPHERD V. HARRISON. 1001 & Co. Brandt v. Bowlby ^ is undistinguishable from the present case. Wait V. Baker,^ Van Casteel v. Booker,^ and Jenkyns v. Brown,* are also in point for the defendants. In the Last case the court say that the taking of a bill of lading deliverable to the shij^per's own order is nearly conclusive evidence that the property was not intended to pass. Stress has been laid on the invoice being made out on account and at the risk of the plaintiff; but that fict existed in Turner v. Liverpool Docks Trustees,^ and was held immaterial to affect the question. That case is even stronger than the present, as the delivery there was on board the vendees' own ship. But the fact of the bill of lading being made to vendors' order was held to show almost conclusively the inten- tion not to part wath the jus disjionencli. Ellershaw v. Magniac ® is to the same effect; so also is Sheridan v. New Quay Company." Quain^ Q. C, in reply. The material fact has been overlooked that during the whole of the transaction, Paton, Nash, & Co. had in their hands goods or money of the plaintiff to the extent of £3000. Brandt V. Bowlby is distinguishable ; there the bill of lading sent to the pur- chaser had not been indorsed. In Wait v. Baker and Jenkyns v. Brown,^ the indorsed bill of lading had been handed to third persons as a security for the payment of the bills of exchange ; and in all the other cases cited for the defendants, the bills of lading had been so dealt with by the vendors. CocKBUEN, C. J. I am of opinion that our judgment must be for the defendants. I agree that, in one point of view in which the case can be looked at, the question is one of intention ; viz., what was the intention of Paton & Co., of Pernambuco, in sending over this bill of lading ? I agree that this is a matter as to which we, having power to draw inferences of fact, must make up our minds upon, and decide ; but I think we cannot decide it inde})endently of the authorities to which our attention has been called. I think those authorities are conclusive as to the inference which we ought to draw, independently of what may be my own opinion as to the inference to be drawn fi'om the facts we have before us. Cases wei'e cited by Mr. Quain with a view of pointing out the infer- ence we ought to draw in an opjiosite conclusion to that which I feel myself compelled to draw. Those cases are certainly very strong indeed, and conclusive to show, sujtposing the consignor of goods sends them to this country accompanied by bills of lading and bills of ex- change which are to be accepted by the consignee of the goods as the consideration for the consignment, that where the consignor sends 12B. &Ad. 932. . ^ 2 Ex. 1 ; 17 L. J. (Ex.) 307. 3 2 Ex. 691; 18 L. J. (Ex.) 9. •* 14 Q. B. 496, 502; 19 L. J. (Q. B.; 286, 288. 5 6 Ex. 543 ; 20 L. J. (Ex.) 393. 6 g Ex. 570, n. 7 4 C. B. (N. 8.) 618; 28 L. J. (C. P.) 58. 8 14 Q. B. 496 ; 19 L. J. (Q. B.) 286. 1002 SHEPHERD V. HARRISON. [CHAP. II. those documents direct to the consignee, that ought to lead to the inference, and only properly lead to the inference, that he intended the consignee should have at once the disposal of the property and posses- sion of the goods consigned, leaving to him, as a matter simply of obligation under the contract, to return the bills of exchange accepted, not as a condition precedent to the property vesting, but simply as a matter of contract. But, on the other hand, the authorities are equally good, to my mind, to show, where the consignor sends the bill of lading to an agent in this country to be by him handed over to the consignee, and accompanies that with bills of exchange to be accepted by the con- signee, that that indicates a different intention ; A'iz., that the handing over the bill of lading and the acceptance of the bill or bills of exchange should be concurrent parts of one and the same transaction. The case of Brandt v. Bowlby,^ to which our attention was called by Mr. Holker, appears to me to be conclusive of the present case. That case has not the additional circumstances which Mr. Quain referred to as being the reason of the decision in the case of Turner v. Liverpool Docks Trustees,^ and the other cases cited by Mr. Holker. There is no such circumstance in the case of Brandt v. Bowlby as the parting with the bills of exchange and bills of lading, and handing them to the trans- feree of those bills. All that happened in that case was this : The con- signor of the goods sends to the consignee, with the usual invoice, an unindorsed bill of lading. He sends an indorsed bill of lading, as in the pi-esent case, to his agent, accompanied by the bill of exchange, to be by the agent presented to the consignee for acceptance ; the bill of lading to be delivered to the consignee at the same time. Now, that was considered as conclusive to show that the consignor did not intend that the property should vest at once in the consignee, but only upon condition of the accej^tance of the bill of exchange being accomphshed. It is true that in that case there was the additional circumstance, which was relied on as by no means an immaterial one to distinguish that case from this, that an unindorsed bill of lading was sent to the con- signee. Here we have as a fact, not an unindorsed bill of lading sent to the consignee, but no bill of lading at all sent. I see no difference in principle between sending a bill of lading, which, not being indorsed, is inoperative and amounts to nothing, and not sending a bill of lading at all. The case of Brandt v. Bowlby, therefore, seems to be on all-fours with the present, and conclusive of it. I think also, as to the other cases cited by Mr. Holker, the additional circumstance of the bills of exchano-e drawn on the consignee having been made over to a third party for consideration makes no difference. All that can be said is, that a consignor who sends a cargo to England, and draws bills of ex- change on his consignee, and who makes over his right to a third party, 1 2 B. & Ad. 932. « 6 Ex. 543 ; 20 L. J. (Ex.) 898. SECT. VI.] SHEPHERD V. HARRISON. 1003 had a right to retain the bill of lading until the bill of exchange has been accepted; and, until the bill is accepted, it would be the duty of the third party not to hand over the bill of lading, because the indorse- ment of the bill of exchange and the handing of the bill of lading to him is putting the third party in the place of the original party, the consignor. I think, therefore, we are concluded by those cases. How those cases would have been decided, if presented in a form which occurred to my mind more than once, is another thing ; but it will be obvious that, to do justice between the parties, it was right that the bills of exchange not having been accepted by the party to whom the goods were consigned, the consignor should not be i)rejudiced by having the bill of lading operate to transfer the property for which he has not got any consideration or equivalent. Those decisions did jus- tice between the parties under the circumstances which presented them- selves. The question might have been presented in another form. If it is true that until the bills of exchange are accepted as the consideration for handing over the bills of lading, the property does not pass, I am very much afraid, if the property perished, it would be very questionable whether the consignor, who has bought the goods upon the order of his i)rinci]ial, and who has paid his money for them, might not be unable to recover the money. I confess I should ])refer to put the case upon a ditterent ground, which would be equally favorable to the defendants here, and which seems to me to secure the rights of all parties more effectually. That consideration is an additional reason in my mind for decidino- this case in favor of the defendants. The consi!j;nor is acting: in the foreign country as the agent, buying goods for a i)rincipal here, not as the purchaser of goods who sells on his own account to a con- signee in this country. Upon the agent buying them he at once ships the goods on account of and risk of his principal here ; and he calls upon that princi]»al to insure the goods. And it strikes me, as a possi- ble view of the case, that it may be well contended that the property in the goods would at once pass to the consignee ; but then, inasmuch as the agent has paid the money by means of which the goods have been obtained for the principal, the case might be treated as altogether analogous to the case of seller and buyer ; and as the seller of goods has a lien upon them for the price until he is j)aid, so the agent, laying out his money on the goods for his principal, ought by analogy to have a lien upon the goods uutil he has been repaid the m The learned couusel stated that case. — Ed. SECT. VI.] SHEPHERD V. HARRISON. 1007 duties of the parties from this correspondence and these acts. The letter from Paton, Xash, & Co., of the 12th of November, 1867, is the first letter having an immediate bearing on the question. This letter, enclosing an invoice (by which it was stated that the cotton was shipped on account, and at the risk of the plaintiff) did not contain a bill of ladino-, althoufrh we find in the letter the exi)ression : " Enclosed please find invoice and bill of lading of 200 bales of cotton, per Olinda. The consignors had, hoAvever, obtained bills of lading from the captain, making the cotton deliverable to their order or assigns, and they in- dorsed the bills of lading, and they forwarded them, not direct to the plaintiff, but sent them Avith the h'lW of exchange in a letter to their own agents at Liverpool ; but what directions this letter contained we are not informed ; we only know that the consignors did transmit the bill of lading to their agents. Here, then, was a purchase of cotton on account of the plaintiff, and a consignment of cotton to the plaintiff, with invoices made out in his name, and further, "on account and at the risk" of the consignee; no bills of lading sent to him, but all sent to the agents of the consignors, and to them only. What are we, who are to draw inferences of fact, to determine is the effect of these facts ? On the authority of Coxe v. Harden,^ we are called upon by the plaintiff's counsel to hold, as mat- ter of law, that, by the mere fact of the shipment being on account and at the risk of the consignee, the property in the goods so shi]iped at once and in-evocably vested in the consignee. I am of opinion that it did not. No doubt, in the case of Coxe v. Harden, if Ave look at a single sentence in the judgment of Grose, J., that such a shipment vested the property in the consignees by law, subject only to be divested by stoppage in transitu, and had this been laid down as an abstract proposition of laAV independent of the particular circumstances of the case, it Avould be entitled to Aveight, and would be for the respectful consideration of this court. But the facts of that case justified the language. The bill of lading Avas transmitted direct to the consignees, unindorsed it is true, but it enabled them to get possession of the goods, Avhether rightly or Avrongly as far as the caj^tain was concerned is im- material ; and there was nothing in the circumstances of tlie case to shoAV that the delivery of the goods was subject to any condition Avhat- ever, and the transaction Avas closed excejit only the payment of the money. Therefore the judgment in that case cannot be taken as laying it down as a proposition of laAv, that u]ion the shipment of goods on the consignee's account and risk, the property necessarily vests in him; and it leaves the question open to be decided by the peculiar f:icts of each case. In the present case, besides the fact of the invoice being on account and risk of the plaintiff, there is one fact peculiar io it, that 1 iEnsi, 211,218. 1008 SHEPHERD V. HARRISON. [CHAP. II. the letter from Paton, Nash, & Co., of the 12th of November, forward- ing the invoice, and giving the account to the plaintiiF, says the bill of lading is also enclosed, whereas they transmitted it through their own agents, accompanied by the bill of exchange for the price of the goods. What is the inference to be drawn ? That the consio-nors take the bill of lading deliverable to their own order, and transmit the bill indorsed to their agents, though we have not the letter to the agents before us, is cogent to lead us to surmise that the agents were authorized, if not directed, to take the course they pursued, and which it was their duty to take if they had no directions, viz., to send the bill for acceptance, and not finally part with the bill of kding until they had the accept- ance. And the inference I draw from the facts and course of dealing, so far as it is disclosed, is that the accejatance of the bill of exchange was, if not a condition precedent, to be a concurrent act with the de- livery of the bill of lading. Stress has been laid upon the expression in the letter, " Enclosed please find invoice and bill of lading ; " and it was urged that the bill of lading was omitted by mistake ; and it was further urged that in a former transaction the omission was stated to be a mistake. But I do not draw any such inference ; the letter was written by a clerk,^ and I should rather infer that when it came to for- warding the letters with the documents, the principals withdrew the bill of lading, though from the hurry of business the expression in the letter was left as it was. Moreover, on the former occasion it was the agents, and not the principals, who said the sending of the bill of lading under cover to the agents was a mistake ; and what the con- signors did on the former occasion is precisely what they did in the present instance, and what they had done throughout their transactions with the plaintiff, viz., to forward the bill of lading under cover to their agents. We cannot, therefore, draw any inference in favor of the plain- tiflT from this expression in the letter of the 12th of November, 1867. On the contrary, the inference is strongly the other way when we advert to the letter of the consignors' agents to the plaintiff of the 5tli of December, and the letter of the consignors to the plaintiff of the pre- vious October, which are conclusive to show that the intention was (and the question is one of intention only), that the bills of lading were to be handed to the plaintiff by the consignors' agents, as the consign- ors tell him they will be, on the plaintiff accepting the draft drawn by the consignors upon him, — that» the handing over the bill of lading and the accepting the draft were to be concurrent acts. Throughout the transaction, the course has uniformly been for the consignors, though shipping the goods on account and at the risk of the consignee, to transmit the bills of lading, not direct to the plaintiff, but through their own agents with the bill of exchange ; with the obvious purpose 1 The letters of Paton, Nash, & Co. were all signed per pro. SECT. VI.] SHEPHERD V. HARRISON. 1009 and intention to prevent the passing of the property until the hills of exchange had been accepted. But another point was made for the plaintiff; it was insisted, what- ever the course of deahng might have been, that the plaintiff had drawn for a larger sum than was due for the price of the goods, and that the price exceeded the plaintiff's limit; and, therefore, that he was not bound to accept the bill of exchange, and might retain the bill of lad- ing. Possibly he was not bound to accept the bill, though I do not find any express limitation in the plaintifl^'s letter to the lower price, and the consignoi-s seem to have a discretion left them in the matter. But, at all events, he had no right to repudiate the contract in part ; if he did not accept the bill, he could have no right to the goods. On the former occasion, it may be observed, although he made objections to the price, the plaintiff accepted and ultimately paid the bills. For the above reasons, my opinion is that the intention evidenced by the letters and acts of the parties was, that the bill of lading was only to be handed over by the agents and retained by the plaintiff on his accepting the bill of exchange; and, consequently, that the plaintiff had no right to the cotton ; and that the judgment pronounced by the Court of Queen's Bench, in favor of the defendants, was right, and ought to be affirmed. WiLLES, J. I am of the same opinion. CHAX^^ELL, B. I only wish to add a few words. It is quite clear that the bill of lading as to the 200 bales per Olinda was not covered by the letter of the 12th of November ; it is equally clear that the bill of lading was sent to the consignors' agents, and not to the plaintiff, the consignee ; but I am not quite satisfied, that, if the bill of lading had been covered by the letter, Avbich says, "We have therefore drawn upon you a draft so and so, in favor of our agents, to Avhich we beg your protection," the plaintiff Avould have been entitled to keep it with- out accepting the draft ; for what the consignors said may well amount to saying : " We send you a bill of exchange for the price of the cot- ton for your acceptance, and the bill of lading, which you may keep on condition of your returning the draft accepted." The i»laintiff, how- ever, clearly repudiated the contract as far as he could, on the ground that his Umit of price had been exceeded ; and he had, therefore, no right to the goods ; but if the bill of lading had been covered by the letter, I doubt whether it would have altered the case. MoN'TAGUE Smith, J. I am also of opinion that the judgment should be affirmed. Cleasby, B. I am not prepared to dissent from the conclusion of the rest of the court, although I entertained considerable doubt. Look- ing at the question as one of intention, I think when goods are shipped for and on account and at the risk of the consignee, j^rhna facie it must be the intention to pass the property to the consignee. Still, the 1010 SHEPHERD V. HARRISON. [CHAP. II. question really depends on what disposition the consignors intended to make of the bill of lading; if they had sent it to the plaintiff, I cannot doubt the property would have been intended to pass ; they did not, however, do so, but forwarded it to their agents in a letter ; we have not that letter before us ; the letter, as it seems to me, would have been evidence, and would have put an end to all doubt. Not having the letter, I must consider on whom the burden of proof lies ; and as the goods are shipped for and at the risk of the plaintiff, and the consignors send him a letter not inconsistent with his having the property in the goods, it did seem to me that this would shift the burden of proof from the plaintiff, and make it incumbent on the defendants to show that the intention of the consignors was not to pass the property to the plaintiff, by showing the terms of the letter in which they forwarded the bill of lading to their agents. That was my difficulty. However, there are many facts in the case, tending to the conclusion at which the court has arrived ; and I am not prepared to express a formal dissent from the judgment in favor of the defendants. Judgment affirnied. From the foregoing judgment error was brought to the House of Lords. Sir R. Palmer^ Q. C, and Mr. T. H. Jordan^ for the plaintiff in error. The fiicts here show that the plaintiff was entitled to this cotton, and the law is in accordance with the facts. The sending of an invoice and a bill of lading to a consignee vests in him the property in the goods, subject only to be divested by the consignor's right to stop the goods in transitu in case of the consignee's insolvency. Walley v. Montgomery.^ So absolutely was the j^roperty there considered to be vested in the consignee that, the consignor's agent having under another bill of lading obtained possession of the cargo, it was held that an action of trover was maintainable against him, without even a tender of the payment of the freight being made to him or to the cap- tain. The right here was complete not only by the shipping on board "on account and risk" of the plaintiff, as declared both by the letters and the invoices ; but also by the transmission to the i^laintiff of the bill of lading itself. There was no feeling of misgiving as to payment, no idea of any necessity to stop in transitu / for the house at Pernam- buco had in hand ample funds belonging to the plaintiff; and conse- quently when the invoices were sent there could be no doubt of the intention to make the plaintiff the absolute owner of the cotton. The acceptance of the bill of exchange was not a condition precedent to the plaintiff's right to the possession of the cotton. Coxe v. Harden ^ is perhaps a still stronger authority for asserting that, on the shipment of goods on account and at the risk of the consignee, the title to the goods 1 3 East, 585. 2 4 East, 211. I SECT. VI.] SHEPHERD V. HARRISON. 1011 vests absolutely in him. [Lokd Cairns. There the consignee was in actual possession of the goods, by the caittaiii liaviug (k-liverecl them to him.] Lord EUenborough there said : ^ " The goods were originally pur- chased for Oddy & Co. by their order, and shipped for their use and at their risk ; they were therefore entitled to the ]>ossession of them as soon as they arrived, the shippers not having stojijicd them in transitu.^'' And Mr. Justice Grose said : " They were originally ordered to be sh"ip])ed by Oddy & Co., under whom the defendants claim ; they were accord- ingly shijtped on account of Oddy & Co., and at their risk; that vested the i)roperty in them by hiLW, subject only to the shipj^ers' stopping the goods hi transiifuP The lord chief baron in this case, quoting that passage and acknowledging its weight as an abstract proposition of law, tried to get rid of it by applying it subject to the particular cir- cumstances of this case. But the circumstances here do not justify sucli application. The possession of large funds on the credit side of the plaintiff's account renders it impossible to believe that there was any notion of treating him as a customer whose solvency was doubted.- . . . Brandt v. Bowlby ^ was relied on in the court below, but does not seem an authority here ; for the circumstances there were very peculiar, and the person in whom the property of the wheat would have vested had not only sent to cancel his order before the shipment was made, but had afterwards confirmed that cancellation ; his own conduct, as Lord Tenterden's judgment shows, precluded him from setting up what would otherwise have been an absolute title. Wait v. Baker* does not affect the present case ; for not only was the bill of lading made out in the usual form to the shipper's order, but the vendee at one time refused to receiA'e the bill of lading, asserting that the cargo was infe- rior to sample, and on that refusal the bill of lading was indorsed to the plaintiffs. [Lord Cairns. Do not the circumstances here show that the vendors reserved their control over the property?] They do not; they contradict that idea. The letter about the money of the plaintiff in the hands of Paton & Co., the forms of the invoices, the notice enclosed " please find invoice and bill of lading," the transmis- sion of the bill of lading of this very cotton itself, the letter of George Paton & Co. in 1865, in which they say that the transmission to them, and not to the plaintiff, of the bill of lading was a mistake, and a letter in which they suggest to the plaintiff that he should insure, all show an intention at once to vest in the jdaintilf the title to the jn-operty, and that it had vested in him. In Joyce v. Swaun^ it was held that there may be a complete contract so as to pass the goods fi-om the 1 4 East, 217. ^ The learned counsel here cited Guruey v. Behrend, 3 El. & Bl. G22 ; Wilmshurst V. Bowker, 7 M. & Gr. 882 ; and Key v. Cotesworth, 7 Exch. 595. — Ed. 3 2 B. & Ad. 932. 4 2 Exch. 1. 6 17 C. B. (n. s.) 84. 1012 SHEPHERD V. HARRISON. [CHAP. II. seller to the buyer, although the price has not been definitely agreed on between them. Where from all the facts it may fairly be inferred that it was the intention of the seller to pass the jjroperty in goods shipped to order, the mere circumstance of the bill of lading being taken in the name of the seller, and remaining unindorsed, will not prevent its passing. Upon this principle it was that in Browne v. Hare ^ the ven- dee was treated as having the property in a quantity of rape oil vested in him, and was held liable to pay for it after it had been wholly lost Mr. HolJcer, Q. C, and Jfr. Gulhj, for the defendants in error, were ailed on. At the conclusion of the argument on behalf of the plaintiff in error their lordships delivered judgment as follows: — Lord Chelmsford. My lords, your lordships, I believe, consider it unnecessary to hear any argument on the part of the defendants. The question for you to determine is whether the defendants, the owners of the vessel Olinda, were bound to deliver to the plaintiff 200 bales of cot- ton which were shipped by Paton, Nash, & Co. from Pernambuco, and invoiced "on account and at the risk" of the plaintiff, and whether they are liable to an action for the non-delivery. The ques- tion 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 fi'om those facts. [His lordship stated them, and he referred particularly to the letter in which it was said : " 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 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 Olinda, on which the present question arises. Now, when the cotton was shipped on board the Capella and the La Plata, bills of lading were sent (and this is a most important circum- stance) 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 1 3 H. & N. 484 ; 4 H. & N. 822. SECT. VI.] SHEPHERD V. HARRISON. 1013 they say : " We beg to hand you herewith bills of lading for 339 bales cotton per Capella and 208 bales cotton per La Plata, received this morning from our Pernambuco friends. We also enclose bills on your good selves for £1616 8s. Scl, and £883 Is. Id., to which please do the needful and return to us in course." Did Mr. Shepherd the plaiutift" 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? Why, what does he say in his letter? He says: "Your favor of the 16th instant is to hand, bringing two bills for acceptance, which, as desired, we now return ac- cepted, but with the reservation as to tlie mediums and seconds not beinir bought according to our instructions." And then he makes an apology for not having sent the bills of exchange immediately, for he says: "Your letter did not arrive on Saturday till after offices were closed, say 1 P. M." It appears to me that this is very important indeed, as showing the nature of the 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, ISTash, & 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 of proceeding appears to have been this : They were shipped on board the defendants' vessel, the Olinda; and a letter of the 12th of November was written, on which stress has been laid -^-ith 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 La Plata, transmitting the bills of lading upon those occasions to the agents of Paton, Xash, & Co., and not to the plaintiff, very strongly lead me to the conclusion 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 the 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., Avrite on the 5th of December to the plaintiff: "Our PcTuambuco letters to 12th uU. are just to hand and we beg to enclose bill of lading for 200 bales cotton shipped by 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 VOL. I. 65 1014 SHEPHERD V. HARRISON. [CHAP. II. 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. In 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 quality 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 way of our accepting the bill of exchange now enclosed. We shall i^lace the 200 bales ex Olinda in another broker's hands, and as soon as we learn, we shall inform you their ojiinion of them." Well, he did so. He sent back their bill of exchange unaccepted, and then 2:)laced the bill of lading in his own broker's hands, Messrs. Eason, Barry, & Co. It has been said that upon that bill of lading, if the plaintiff's agent had acted promjitly, 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 without accepting the bills of exchange, it is possible that an action of trover might have been brought against him had he got 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 defend- ants are liable to an action of trover for refusing to deliver the cot- ton to him, and for delivering it to George Paton & Co. Now that being, as I have already said, a question of fact, and of inference to be derived fi-om the circumstances stated in the special case, we have had the opinion of two courts, — I should say the unani- mous opinion, notwithstanding some slight doubt intimated by Baron Cleasby, — of nine judges on the subject, that the plaintiff under the circumstances was not entitled to the possession of the cotton. SECT. VI.] SHEPHERD V. HARRISON. 1015 But it is said on the part of the phiintifF, that the inference of foot is onl}- 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 shijjped 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 in transitu. Some strong cases have been cited on that sub- ject, and particularly two before Lord Ellenborough (Walley v. Mont- gomery ^ and Coxe u. Harden '^). In the case of Coxe v. Harden, the consignee had obtained possession of the goods, which Ellenborough said removed the difficulty which stood in the way of the consignees, namely, the circumstance of the captain having signed the bills of lad- ing 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. Nicolson.^ . . .* 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 wi-itten, on the sale of personal property,^ the authorities on the sub- ject of reservation of the J us disponendi are all collected, and the whole matter is summed iip clearly and distinctly in the following passage: " The following seem to be the principles established by the foregoing authorities : 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 delivered on board of a vessel to be carried, and a bill of lading is taken, 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 \)Q carried. This principle runs through all the cases, an