T 1901 *l THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY A TREATISE ON THE LAW OF SALE OF PERSONAL PROPERTY BY FLOYD E. MECHEM Author of "Mechem on Agency," "Mechem on Public Officers," " Mechem 1 s Ele- ments of Partnership;" Editor of Mechem's Hutchinson on Carriers, etc.; Tappan Professor of Law in the University of Michigan IN TWO VOLUMES VOLUME I CHICAGO CALLAGHAN AND COMPANY 1901 Copyright, 1901, BY FLOYD R. MECHEM. \9o STATE JOURNAL PEENTINa COMPANY, h Stkhk.otypers, MADISON, WIS. To J. C. M. The long time devoted to the preparation of this book, of right belonged to you; without your encouragement and aid I should not have been able to complete it; and while you have always waived your right and lent your aid in the spirit of most generous helpfulness, I cannot do less than dedicate to you the final product, coupled with sentiments which I need not name, but which your own heart will so readily divine. PREFACE. The present work was projected in 1887 and something was then done upon it. It was, however, temporarily laid aside for other tasks, until January, 1S92. Since that time it has been constantly in hand and has been prosecuted as rapidly as health and the pressure of man)' other duties would permit. Not- withstanding the utmost effort, however, it has been delayed long beyond the time originally fixed for its completion. As it is, the book is very far from being what the writer hoped to make it, or what he still believes he might have made it, had his work been done under more favorable conditions. To retain it longer, however, for further elaboration seems neither practicable nor wise. The general outline and arrangement of Mr. Benjamin have, in the main, been adopted. This course was decided upon for two reasons: first, because Mr. Benjamin's classification has always been regarded as excellent in itself; but secondly and chiefly, because Mr. Benjamin's analysis (which in its turn was largely that of Lord Blackburn) has so decidedly controlled the development of our law in many important particulars, that to attempt a new classification or nomenclature would be confusing if not presumptuous. Mr. Benjamin's text, more- over, has been freely drawn upon for statements of the Eng- lish law. No thought, however, of rivaling Mr. Benjamin's work has been entertained. Indeed, the writer is convinced, after con- siderable attention to the subject, that an American book fol- lowing the method of treatment adopted by Mr. Benjamin is impracticable. To show the development of the law by an exhaustive chronological statement of the cases is possible in England, and would be possible in any single State where b yi PREFACE. one court of last resort would alone need to be considered; but to do the same for the whole United States, with over fifty courts whose more or less conflicting decisions are final within their respective jurisdictions, seems beyond the reach of any reasonable endeavor. Nevertheless an attempt has been made to base this work upon a careful study of the principal American cases. To this end, the cases have been carefully digested, and abstracts made showing concisely the facts and the rule of law announced. Upon this foundation, the endeavor has been to make a full and clear statement of the general principles which control the subject, and to give such a range of illustration and cita- tion as should show their application. The abstracts and state- ments of cases have been largely put in the foot-notes rather than in the text, for the purpose of keeping down the volume of the work. The result is that the foot-notes are unusually heavy, possibly unnecessarily so; but if that should be the judg- ment, the desire to increase the practical usefulness of the book must be pleaded in extenuation. No attempt has been made to deal with every case upon the subject. Upon many points the cases are now so numerous and uniform that even to cite them all seemed needless use of space. Hundreds of cases have been examined and rejected upon this ground. An effort has been made, however, to include all of the more recent and important cases down to the date of send- ing the manuscript to the press. Parallel references to the " Reporters," to the "American Decisions," " American Reports," " American State Reports," and to the "Lawyers' Reports Annotated," have been made, and, in many instances, to the volumes of selected cases upon the law of Sale. Priority of citation has, moreover, been usually given to these cases, upon the theory that they are likely to be the most important and most generally accessible. Illustra- tions of the most important attempts to codify the law of Sale are given in the Appendix. When tin's task was undertaken the writer believed that then- w;is a real mod for an American book upon the law of PREFACE. Vll Sale. In the long time that he has been at work, various con- tributions to the subject have been made by others, so that it is possible that the need, if it ever existed, has long since been supplied. The writer, however, whether wisely or unwisely, has persisted in his undertaking, and if his work shall prove to have a value in some degree commensurate with the labor spent upon it, he will be content. Floyd R. Mechem. University of Michigan, Ann Arbor, May W, 1901. TABLE OF CONTEXTS. References are to sections. VOLUME I. BOOK I. OF THE CONTRACT OF SALE: ITS FORMATION. CHAPTER I. DEFINITIONS. Sale defined. 1 Forms of bargaining 2 Effect of intention 3 Essential elements 4 Further of the definition — Executory or executed sales "> Bargain and sale ... 6 Absolute and conditional sales 7 Voluntary and forced sales, 8 Judicial sales 9 Public and private sales 10 CHAPTER II. TRANSACTIONS TO BE DISTINGUISHED FROM SALES. Purpose of this chapter 11 Sale to be distinguished from gift 13 Sale to be distinguished from barter or exchange 13-15 Uses of this distinction — Pleading — Statutes — Waiving tort — Construction of authority 16-18 Sale to be distinguished from bailment 19. "20 Change of form or substance as the test — Illustrations - Further illustrations 83 Intention of parties as the test 24 x TABLE OF CONTENTS. References are to sections. Same subject - Commingling of goods - Effect of custom . . 25,26 Commingling with right of sale or use in bailee 27 30 Bailment with privilege of purchase to be distinguished from sale. ... 31 Option to buy and pay for chattel or pay for its use 32 Delivery of goods on trial to be purchased if approved 33 Sale with option to return or pay 34 Bailment or sale, how determined — Law or fact 35 Sale to be distinguished from mortgage 36 Sale to be distinguished from pledge • • 37 Sale, not pledge 38 Pledge, not sale ^ Parol evidence to show apparent sale to be pledge or mortgage 40 Sale to be distinguished from mere agency to buy 41, 42 Sale to be distinguished from agency to sell or "consignment " 43-45 Principles of construction 46 Illustrations of construction 47 Agency, not sale 4y Sale, not agency 49 How question determined — Law or fact 50 Consignment of goods to pay debt or cover prior advances 51 Sale to be distinguished from contract for work and labor 52 Sale to be distinguished from compromise respecting liens. 53 Furnishing of food by restaurant or innkeeper as sale 54 Supplying goods by several common owners to one of them — Social clubs — Intoxicating liquors °5 Transfer of title by operation of law. 56 CHAPTER III. OF THE CAPACITY OF PARTIES - WHO MAY BUY AND SELL. Purpose of this chapter 57 I. Of Capacity in General. General rule as to competency 58 Presumption of competency 59 Causes and classification of incompetency 60 1. Na t u ra I Incompetency. "What here included 61 a. Persons of Unsound Mind. Scope of present treatment 62 [nsane persona as parties to contracts generally 63 1 degree of incapacity which avoids 64 Weakness of mind and imposition combined 65 Mere inadequacy of price 66 TABLE OF CONTENTS. XI References are to sections. Partial insanity — Monomania — Sane interval 67 Presumption as to sane intervals 68 Effect of judicial determination of insanity 69 Only prima facie evidence as to period covered 70 Petitioner for proceeding not estopped by it 71 Whether contracts of insane person void or voidable 72 Avoiding contract — Executed and executory 73 Protection of innocent party 74, 75 Insane person must have received benefit 76 Return of consideration necessary 77 Right to recover from bona fide purchaser 78, 79 Who may disaffirm 80 Creditor may not 81 Sane party may not 82 Affirmance of contract 83 Contract of insane person for necessaries, binding 84 Liability limited to value received 85 &. Incompetency of Drunkards. Contracts of drunken persons 86 Voidable, not void 87 Bona fide holders 88 Habitual drunkards 89 Partial intoxication coupled with fraud 90 Drunkards under guardianship 91 c Incompetency of Spendthrifts. Contracts of spendthrifts, etc 92 2. Legal Incompetency. In general 93 a. Incapacity of Infants. In general 94 Infant's contracts voidable, not void 95 What meant by voidable 96 Who may avoid 97 When avoided 98 When ratified 99 How much to be ratified 100 Effect of ratification 101 Knowledge of non-liability 102 Consideration for ratification 103 Ratification, how effected 104, 105 Sale or exchange by infant voidable . . 106 When avoided 107 How avoided 108 X ii TABLE OF CONTENTS. References are to sections. Return of consideration 109 Bona fide purchasers HO Chattel mortgage voidable HI When avoided H2 Returning consideration .... 113 How avoided H4 Purchases voidable, if not necessaries 115 When avoided HO How avoided H™ Return of consideration 118 Ineffectual defenses — Recoupment — Injury to goods 119 Effect of disaffirmance — Revests seller's title 120 ■ Ratification of purchases 121 Liability of infant for necessaries 122 For what amount bound 123, 124 Interest 125 Goods must have been furnished on infant's account 126 Infant not liable if already supplied 127 ■ Seller supplies goods at his peril 128 ■ Infant living with parents, etc., presumed to be supplied 129 What constitute necessaries 130 How determined — Burden of proof 131 Illustrations 132 b. Incapacity of Married Women. What here considered 133 Common-law disability 134 Equitable doctrines as to separate estate 135 Statutes removing disability 136 To what extent 137 What contracts she may make 138 Statutory liability for family necessaries 139 c Capacity of Corporations. In general 140 Corporations as sellers 141 Corporations as buyers 142 d. Capacity of Partnerships. In general 143 Partnerships as sellers 144 Partnerships as buyers 145 II. Sales by Persons Having Only a Defeasible Title. Such a person in possession may pass good title to bona fide purchaser. 146 One holding subject to secret lien 147 Fraudulent vendee 148 TABLE OF CONTENTS. Xlll References are to sections. One who obtained goods by trick 149 Fraudulent grantee of debtor 150 Fraudulent debtor 151 Conditional vendee 152 Purchaser for cash who has not paid 153 IIL Sales by Persons Having Only an Ostensible Title. In general, one cannot convey better title than he has 154, 155 Possession alone insufficient evidence of title 156 Possession coupled with indicia of ownership 157 What requisite 158, 159 Illustrations 160-164 Limitations 165 Appearance of title from possession of bill of lading or warehouse re- ceipt 166 Ostensible title of vendor in possession 167 Ostensible title under Factors Acts 168, 169 Ostensible title by conduct 170 IV. Sales and Purchases by Persons Acting for Others. In general 171 Nature of authority. ... 172 1. Authority to Sell Personal Property. How considered 173 a. Authority to Sell Conferred by Law. Chief illustrations 174 b. Authority Conferred by Act of Party. Express authority to sell 175 Implied authority to sell 17(5 None implied from mere possession 177 None implied from mere relationship — Husband and wife — Parent and child... 178 None implied from authority to do other kinds of acts 179 2. Authority to Buy Personal Property. How considered 180 a. Authority to Buy Conferred by Law. Chief instances 181 Authority of wife to buy necessaries on husband's credit 182 Where parties are living together 183 Where parties are living apart 184 What constitute necessaries 185 Authority of infant child to buy necessaries on parent's credit 186 xiv TABLE OF CONTENTS. References are to sections. b. Authority to Buy Conferred by Act of Party. Express authority to buy 187 Implied authority to buy 188 Not implied from mere relationship of parties 189 V. Sales by Persons Acting in an Official Capacity. In general 190 Authority must be strictly construed 191 Officer must keep within the term and territory of his office 192 Officer cannot deal with himself 193 Purchasers at execution, tax, and similar sales 194 Purchases at executors', administrators' and guardians' sales 195 Trustees' sales 196 CHAPTER IV. OF THE THING SOLD — WHAT MAY BE BOUGHT AND SOLD. What may be sold 197 No present sale until chattel ascertained 198 Tiling sold must be in existence 199 Things potentially in existence 200, 201 Things not yet acquired by vendor 202 Sales for future delivery 203 CHAPTER Y. OF THE PRICE. Necessity of a price 204 Executory contracts 205 Executed contracts 206 Where price not agreed upon, reasonable value will determine 207 Market price — Market controlled by monopolistic combination 208 ( M her methods of fixing price 209 Price must be fixed with certainty 210, 211 Price to be fixed by valuers 212, 213 Payment of the price 214 CHAPTER YI. OF THE CONTRACT OF SALE — IN GENERAL. Purpose of this chapter 215 Of the contract in general 216 L Of Mutual Assf.nt. sity of mutual assent 217 Assent need not be express 218 TABLE OF CONTENTS. XV References are to sections. Assent must be mutual, unconditional and co-existent 219 Mere negotiations not amounting to proposition and acceptance . . 220-223 Mere announcements or price lists not offers 224, 225 Offer must be accepted 226 Offer must be accepted as made 227, 228 Counter-proposition operates as a rejection 229 What constitutes such counter-proposition 230, 231 If counter-proposition accepted, contract results 232 Original proposition not open to acceptance after rejection by counter-proposition 233 Terms of sale must be fully agreed upon 234 Negotiations in contemplation of more formal contract 235-237 Acceptance must be communicated 238 Manner of accepting 239 What constitutes 240 Acceptance by conduct 241-243 Time of acceptance 244, 245 Question of acceptance, how determined 246 Communication by mail, telegraph, etc 247 Method of acceptance in these cases 248-250 Time of acceptance in these cases 251 Right to withdraw offer 252 Voluntary offer may be withdrawn, though time given for its ac- ceptance 253 Voluntary offer may be revoked, though declared "irrevocable ". 254 Unaccepted offer not such a contract as excludes parol evidence. 255 Agreement for consideration not to withdraw offer 256 How offer revoked 257 Mailing letter, etc., not enough 258 Offer under seal 259 Lapse of offer — Notice 260 Waiver of revocation ... 261 Withdrawal of acceptance 262 IL Unilateral Contracts. Unilateral contracts 263, 264 III. Of the Effect of Mistake in Making the Contract. Mistakes of parties in making the contract 265 Mistake as to nature of transaction 266 Mistake as to identity of party 267-269 Mistake regarding the thing sold 270 Existence of thing sold 271 Identity of thing sold 272 Unknown articles contained or concealed in thing sold 273 XVI TABLE OF CONTENTS. References are to sections. Mistake as to quantity 274 Mistake as to kind, quality or character 275, 276 Mistake as to location 277 Mistake as to terms of contract — Price 278 Mistake as to possibility of performance 279 CHAPTER VII. OF THE CONTRACT OF SALE UNDER THE STATUTE OF FRAUDS. Purpose of this chapter 280 Sales prior to the statute 281 I. The Statute. The seventeenth section of the Statute of Frauds 282, 283 English Sale of Goods Act 284 Statutes in United States 285-290 General effect of the statutes 291 IL What are Contracts for the Sale of Goods, Wares and Mer- chandise. Importance of this question 292 1. Executory Contracts. Statute applies to executory contracts 293 2. Contracts of Sale or Manufacture, Statute applies only to contracts of sale and not for manufacture 294 English cases — Immediate sale as the test 295-297 Impossibility of present delivery as the test — Goods not in exist- ence •. 298, 299 Work on one's own materials as the test 300 Whether work or materials is the essence of the contract, as the test 301 The present English test 302, 303 American cases — The rule in New York 304, 305 The rule in Massachusetts 306, 307 The rule in Vermont, Oregon, Washington and Michigan 308-310 The rule in Maine and New I tampshire 311-313 The rule in Wisconsin and California 314.315 The rule in New Jersey 316 The rule in New Mexico 317 The rule in Colorado 318 The rule in Minnesota 319 The rule in Missouri 320 The rule in Georgia 321, 322 TABLE OF CONTENTS. XV11 References are to sections, The rule in Maryland 323 The rule in Iowa 324, 325 The true rule 326 3. Auction Sale. Auction sales within the statute. 327 Contracts of barter or exchange within the statute 328 IIL What are Goods, Wares and Merchandise. English rule includes only corporeal movable property 329 Rule in United States more comprehensive 330 What included — Stocks — Notes — Inventions 331 Fixtures 332-335 Growing trees 336 -339 Growing crops 340-344 Crops to be raised 345 Uncut ice 346 Minerals 347 IV. Of the Price or Value. Operation of the statute 348 Sale of several articles aggregating more than the limit 349, 350 Sale of various articles at auction 351 How when amount uncertain at time of sale 352 V. Of Acceptance and Receipt. What the statute requires 353 Delivery, acceptance and actual receipt required 354 1. Of Delivery by the Seller. Necessity of delivery 355 Delivery alone not enough 356 2. Of Acceptance by the Buyer. Acceptance must be shown 357 Must be voluntary and unconditional 358 No acceptance while awaiting test or opportunity for examination 359 Acceptance may be implied 360, 361 When acceptance must occur v 362 Who may accept — Agent 363 Tenant in common .... 364 Carrier 365 Administrator 366 That buyer ought to accept, not enough 367 Whether acceptance must be final and conclusive. 368-370 Acceptance of unfinished article 371 XV111 TABLE OF CONTENTS. References are to sections. Burden of proof as to acceptance 373 Question for the jury 373 Right of seller to retract before acceptance 374 3. Of Receipt by the Buyer. Necessity of receipt 375 Nat are of receipt required 376 Fact that title would have passed, not enough 377 Constructive delivery and receipt 378, 379 What sufficient 380, 381 Mere words do not constitute delivery and receipt 382, 383 Delivery and receipt where goods still remain in seller's possession 384, 385 Goods remaining in seller's possession as seller 386 Delivery and receipt where goods are in possession of third person 387, 388 Delivery and receipt where goods are already in possession of purchaser 389 Delivery where seller and buyer occupy same premises 390 Receipt by common agent 391, 392 Carrier as agent to receive 393 Acceptance and receipt may precede passing of title 394 Receipt and acceptance may be complete though terms of contract in dispute 395 No title passes until receipt and acceptance 3i»6 Question of receipt for the jury 397 4. Part of the Goods Sold. Acceptance and receipt of part of goods suffices 398 A n y part, though small, enough 399 But it must actually be a part of the goods sold — Sample — Specimen 400 At what time part may be accepted and received 401 After part acceptance, loss of remainder falls on buyer 402 Acceptance and receipt of part must be in pursuance of the contract. 403 5. Earnest or Part Payment. a. Of Earnest. Earnest and part payment synonymous 404 Thing in earnest must be actually given 405 Musi !)<• a thing of some value 406 Deposit with third person by way of forfeiture not enough 407 Effect of earnest in passing the title 408 b. Of Part Payment. What the slat ut.' requires 409 The amount required 410 What may be paid 411 Check lp> Buyer's note 413 TABLE OF CONTENTS. XIX References are to sections. Note of stranger 414 Money already in hands of seller. 415 Satisfaction of previous debt 416 Payment of seller's debt to third person 417 Mere tender of part payment not enough . . 418 When part payment to be made 419, 420 Part payment to agent suffices 421 6. The Note or Memorandum. What the statute requires. 422 a. What is a Note or Memorandum. Is distinct from the agreement itself 423 At what time to be made 424 Form of note or memorandum 425 Several papers 426, 427 Letters 428 Telegrams 429 Books 430 Records of corporate meetings 431 Not necessary that note be addressed to or pass between the parties. . . 432 6. What Note or Memorandum is Sufficient. The requisites in general 433 Parties must be named or described 434 What description sufficient 435 Agent named instead of principal 436 Goods sold must be stated or described 437 Price must be shown 438 Terms of credit and mode of payment must be stated 439 Time and place of delivery must be stated if agreed upon 440 All other material terms must be included 441 Consideration need not be expressed unless required by statute 442 Memorandum must show complete contract 443 Memorandum must import a sale 444 Parol evidence not admissible to supply deficiencies 445 Parol evidence to contradict complete memorandum 446, 447 But defendant may show memorandum, relied upon by plaintiff, to be incomplete 448 c Of the Signing by the Parties. Whether both parties must sign 449 Written offer accepted by parol 450 How to be signed 451 XX TABLE OF CONTENTS. References are to sections. . d. Of Signing by Agent. Who may be agent 452 How appointed 453 Several owners — One as agent for all 454 How sign 455-458 One person as agent for both parties 459 Evidence of authority 460 Signing by auctioneer 461 Auctioneer selling his own goods cannot sign for both 462 Broker as agent for both parties 463-466 " Bought and sold notes " in English practice 467 English rules governing 468 Bought and sold notes in the United States 469 Revocation of broker's authority 470 Signing by one partner 471 e. Of Alteration of the Memorandum. Effect of alteration 472 Memorandum not to be altered by parol 473 Discharge or substitution of agreement may be shown 474 BOOK II. OF THE EFFECT OF THE CONTRACT IN PASSING TITLE. CHAPTER I. PURPOSE OF BOOK II. Subjects yet to be considered 475 Executory and executed contracts 476 Intention of parties as the test 477-479 Specific or unascertained goods 480 How cpaestions classified 481 CHAPTER II. OF THE UNCONDITIONAL SALE OF SPECIFIC CHATTELS. Purpose of this chapter 482 Title passes at once on unconditional sale of specific chattel 483, 484 Title may pass though goods not delivered 485, 486 Or though seller is yet to make delivery 487, 488 ■ Or though seller is to do some other act before delivery 489 TABLE OF CONTENTS. XXI References are to sections. Or though seller is to do something to the goods after delivery. . . 490 Or though goods are in hands of seller's bailee or agent 491 Or though goods remain with seller as bailee for buyer 493 Title may pass though price not yet paid 493-495 Or though something remains to be done to ascertain the price 496-498 The question is one of intention *99 Rules for determining the intention 500, 501 Question of intention, by whom decided CHAPTER III. OF THE CONDITIONAL SALE OF SPECIFIC CHATTELS. Purpose of this chapter 5 °3 What classes of cases to be considered 504-506 L Where Goods are to be Prepared for Delivery. Where specific goods are to be completed or prepared for delivery, no title passes until this is dune : " Unless a contrary intention appears 509-511 But title will pass when required act is done 512 Effect of part performance of condition 513 Effect of earnest or part payment 514 IL Where Goods are to be Measured, Weighed or Tested. Title to goods not delivered presumptively does not pass if goods are yet to be weighed, measured or tested to ascertain price 515-517 Presumption not conclusive 518 Broader rule in some States 519 Nor where goods are vet to be measured, etc.. with a view to identifi- cation " 530.521 Nor where goods are yet to be measured, etc.. in order to ascertain if they comply with contract 532, 523 By whom weighing, etc.. to be done 524 How where whole body of goods is delivered to buyer 525-527 What delivery sufficient 528 How when contemplated method fails 529, 530 Effect of part performance Effect of earnest or part payment . 532 m. Where Buyer is to do Something Other than Pay Price. What here included 533 Title will not pass till act performed 534, 535 Unless a contrary intention appears 536 IV. When Payment of Price a Condition Precedent. What here included 537 c XK {[ TABLE OF CONTENTS. References are to sections. 1. Payment of Price as Implied Condition Precedent. In general — Payment as condition precedent when sale for cash. 538, 539 Payment as implied condition where sale expressly for cash 540 Meaning of " cash sale " . . 541 Title may pass though possession retained — Payment and deliv- ery concurrent Or title may not pass until payment 543, 544 Check or draft not payment 545 Giving of note or security as condition precedent . . 546, 547 Consideration for condition 548 Waiver of condition of payment or security 549 Delivery to carrier as waiver 550 Further of waiver 551-553 Goods may be retaken if condition not performed 554 Even from bona fide purchaser 555 Clearly from attaching creditors, etc 556 Usage does not defeat • 557 2. Payment of Price as Express Condition Precedent, and herein of " Con- ditional Sales" or "Instalment Contracts." Formal contracts of so-called " conditional sales " 558 Confusion respecting name : 559 What is conditional sale 560 What varieties possible 561, 562 What here meant by " conditional sale " 563 Validity and form of " conditional sale " 564 Contract in form absolute shown to be conditional 565 Express promise to pay does not render absolute 566 Construction of such contracts 567 Declaration of parties not conclusive 568 Instruments in form of lease held conditional contracts to sell 569-571 Instruments in form of lease held sales upon condition subse- quent 572, 573 Instruments in form of lease held absolute sales reserving lien or chattel mortgages 574-576 Instruments in form of conditional sale held absolute reserving lien or mortgages 577-579 The rule in Pennsylvania 580,581 Bailment and conditional sale distinguished .\ 582 Conditional sale and chattel mortgage distinguished 583 The true theory ...584 On conditional contracl to sell no title passes until performance 585 Not<- not payment .... 586 Nature of interest acquired by vendee 587 TABLE OF CONTENTS. XX111 References are to sections. Whether assignable or leviable 588 Entitled to legal protection 589 Performance of condition inures to benefit of transferee 590 Nature of interest retained by vendor 591 Interest may be sold, seized, etc 593 May assign interest with contract 59 ^ The right of possession 594-596 Condition good against creditors of vendee 5 97 > 598 Condition good against bona fide purchaser 599, 600 But not where goods bought for resale 601. 603 •Statutes requiring filing or recording of contract 603, 604 Default by purchaser — What constitutes 60o Effect of vendee's default 606-608 Waiver of default by seller 609-612 Remedies of seller upon default 613, 614 What choice offered 615 Election of remedy "16 Rescission 617 Recaption 618 Personal action 619 Does recovery of goods bar action for price ? 620-623 Waiver by vendor of right to retake property 624 Vendee usually has no election 625 Vendee's right to take possession on default — Entry on premises — License 626, 627 Necessity of demand before recovery 628 Return of payments if property retaken by seller 629 Equities of purchaser 630 How when action against third person 631 Return of notes received 632, 633 Destruction of property before payment 634, 635 Additions to or increase of property before payment 636 Additions to stock of goods sold 637 -Changes in form or nature of property 838-641 Accession and confusion of goods 642 Substitution of goods 643 Effect of annexing goods to land 644-647 Conflict of laws 648-610 V. Contracts of Sale Subject to Other Conditions. In general 651 1. Sale of Goods ".to Arrive." Such contracts conditioned on arrival of the goods 652 Contracts limiting time of shipment .' 653 XX iv TABLE OF CONTENTS. References are to sections. Giving notice of name of ship 654 Classification of cases 6o5 2. Sale of Goods " to be Shipped." Such contracts conditional 656 3. Sale on Approval. Sale if goods are approved 657 Title and risk pending approval 658 Within what time option to be exercised 659 Effect of failure to return within time fixed 660 Necessity for notice of disapproval 661 How notice to be given 663 4. Sale if Goods Satisfactory to Buyer. Sale if buyer satisfied 663 Who to be satisfied 664 If buyer not satisfied, no sale 665 Reasons for his dissatisfaction 666 Duty to test goods 667 Duty to act in good faith 668 Within what time decision to be made 669 Duty to give notice or return 679 How buyer's satisfaction indicated 671 5. Sale if Goods Approved by Third Person. No sale unless goods approved 672 Third person must act in good faith 673 6. Sale of Goods to be Appraised. Title does not pass until appraisal 674 7. Sale or Return. Sale with option to return or pay 675, 676 Nature of title acquired by vendee — Risk of loss 677 Option usually vendee's only — Security of seller 678 Stipulations reserving title 679 Form of option 680 Within \\1 mt time option exercised 681 1 of not returning in time prescribed 682 I [ow, when buyer puts it out of his power to return 683 How, when return becomes impossible 684 How jit urn effected 685 8. Sale villi Option in Vendee to Retake. Title in vendee until option exercised 686 Waiver of option 6S7 TABLE OF CONTENTS. XXV References are to sections. 9. Sale unth Right in Vendee to Repurchase. Title in vendee until right exercised 688 Such contracts strictly construed 689 Within what time right exercised 690 Interests in goods before repurchase 691 10. Sale to be Void if Vendor Pays. Such contracts valid 692 11. Sale to be Void if Vendee Does Not Pay. Such contracts valid 693 CHAPTER IV. OF CONTRACTS RESPECTING EXISTING CHATTELS NOT YET IDENTIFIED. Purpose of this chapter 694 I. Contracts for Sale of Portion of Ascertained Mass. Before title can pass the goods must be ascertained 693 Method of identification immaterial 696 Contracts respecting part of a mass of unequal constituents 697 These cases form class by themselves 698 Essential features of cases of this class 699-702 How when whole mass delivered to vendee 703 Contracts respecting part of a mass of like constituents 704 Intention material 70") Usage may affect 706 How question affected by usage 707-709 How when no usage governs 710 Kimberly v. Patchin as a type 711, 712 Cases holding separation necessary 713 Scudder v. Worster as a type 714, 715 The weight of authority 716, 717 II. Contracts for Sale of Goods of Certain Kind but Goods Not Yet Identified. Nature of subject 718 Under what circumstances question arises 719 What to be included here 720 1. Of Appropriation in General. General necessity for appropriation 721 What meant by appropriation 722 Who interested in question 723 Who may make the appropriation 724, 725 What constitutes appropriation in general 726 Appropriation consists of acts, not mere intention 727 X.wi TABLE OF CONTENTS. References are to sect ions. Arts must be in fulfillment of contract 728 I to the a ppropriation «• Buyer's assent made necessary by terms of contract 7 : U> Buyer's assent required by implication — Sale by sample 781 How buyer's assent given when require.! 739 3, Of Appropriation when Setter is to Deliver Goods. How when seller is to select and deliver the goods T33 3. Of Appropriation where Buyer is to Come for Goods. How when buyer is to come and get t ho goods 734 Effect of putting goods into buyer's conveyance • • • 735 4. Of Appropriation where Setter is to Send Goods by Carrier. How when seller is to send goods by carrier 736-731) Intention governs *0 • Payment of freight as evidence 741 Agreement that goods shall not be paid for unless they arrive. . . . 740 Further of the intention 743-745 - must be sent in conformity with order 746 Due care must be used in shipping 747 Remedy over against carrier must be preserved 74s Duty to insure 749 What constitutes delivery to the carrier 750 5. Of Appropriation where Goods Consigned on Account of Previous Ad- van ees. How when goods consigned on account of previous advances. 751. 750 CHAPTEE Y. OF CONTRACTS RESPECTING GOODS TO BE MANUFACTURED OR GROWN. Purpose of this chapter 753 I. Where Goods are to be Manufactured. Title ordinarily does not pass until goods are completed and tendered. 7"4 Title does not pass during progress of work 755 Especially if yet to be separated from larger mass 756 rule whea 3 to be manufactured and shipped 757 Goods must correspond with order 758 Title may pass s such appears to have been intention 759 Even without actual delivery 760 When tit article designe 1 for, but not annexed to. another. 761 Articles to be supplied as repairs or alteration of chattel 700 II. Whkb - vrf. to be Grown. Title passes when chattel grown and appropriated 763-70-3 TABLE OF CONTEXTS. XXV11 References are to sections. CHAPTER VI. OF THE RESERVATION OF THE JUS DB3PONENDL Purpose of this chapter 70<;. 707 Distinctions Sending goods by carrier not an appropriation if seller retains power of disposal 769 Methods adopted 770 Choice of methods 771-773 Bill of lading taken to sellers order 774-778 Purpose and effect 777. 77- 1 Bill of lading to seller's order attached to draft on buyer 779 Buyer obtaining possession without payment 780 Custom does not affect 781 Sending invoice, etc., to buyer does not affect 782 The rules stated 783-786 Resume of English cases. 787 Bill of lading consigning goods to buyer 788, 789 Transfer of bill of lading during transit 790-792 How when goods sent C. O. D 793, 794 How when goods to be delivered F. O. B 796-797 VOLUME II. BOOK III. OF THE AVOIDANCE OF THE CONTRACT. CHAPTER I. PURPOSE AND SCOPE OF BOOK III. Nature of the subjects here considered 798 What subjects included 799 How classified 800 CHAPTER II. OF AVOIDANCE OF THE CONTRACT BY CONSENT OF PARTIES. In general 801, 802 L Termination of Contract by Subsequent Mutual Consent. Contract may be discharged by agreement 803 Executory contracts 804 XXviil TABLE OF CONTENTS. References are to sections. Executed contracts 805 Substitution of a new contract 806 Intention must be clear 807 Introduction of new parties 808 Formalities of rescission — Delivery 809 One party alone cannot rescind — Breach of contract acquiesced in, as a rescission 810, 811 II. Termination of the Contract in Pursuance of the Original Agreement. Parties may stipulate for subsequent termination 812 Right may be reserved to terminate for any cause 813 Or may be limited to particular cause or event 814 Or may be limited as to time and manner 815 Usually no rescission of executed sale for mere breach of warranty — Allowed in some States 810-819 May be rescission for fraudulent warranty 820 Contract may provide for rescission for mere breach of warranty. . . . 821 Rescission for breach of warranty on sale of implements 822 Form 823 Conditions 824 Unless waived, conditions precedent 825 Rescission for non-payment of price 820, 827 CHAPTER III. OF AVOIDANCE OF THE CONTRACT FOR FAILURE OF CONSID- ERATION. Of the nature of the objection in general 828, 829 L As a Defense to the Buyer. In what cases applicable as defense to buyer '830 How in case goods not delivered at all, or in part only, or were not such as buyer bound to accept 831 How when article received of no value — Caveat emptor 832, 833 How on sale of invalid patent 834 How in sales of commercial instruments 835 How on sale of goods to which the seller had no title 830 How in case goods conditionally sold are retaken by seller 837 IL As Ground of Action by the Buyer. Buyer may have action to recover price paid without considera- tion 838, 839 CHAPTER IV. OF AVOIDANCE OF THE CONTRACT FOR MISTAKE. Purpose of this chapter 840 Kinds of mistake involved 841 TABLE OF CONTENTS. XXIX References are to sections. Mistake which would prevent formation will justify avoidance 842 Mistake as to quality of thing sold 843, 844 ■ 1. Mistake of buyer as to quality, seller being ignorant of that mistake 845, 846 2. Mistake of buyer as to quality, seller knowing of that mistake 817 3. Mistake of buyer as to quality promised, seller not knowing of that mistake 848 4. Mistake of one party as to quality promised by the other known to the latter 849, 850 Further as to mistake of quality 851. 852 ■ Same rule in equity 853 Effect of the mistake 851 CHAPTER Y. OF THE AVOIDANCE OF THE CONTRACT FOR INNOCENT MISREP- RESENTATION. What here meant by misrepresentation 855 How misrepresentation to be distinguished from fraud 856, 857 How representation to be distinguished from a term of the contract . 858 Illustrations 859, 860 Importance of distinction 861 Question for the jury 862 Effect of innocent misrepresentation 863 Innocent misrepresentation rendered fraudulent by knowingly retain- ing its fruits 864 CHAPTER YI. OF THE AVOIDANCE OF THE CONTRACT FOR FRAUD. Purpose of this chapter 865 L Of Fraud in General. Definition of fraud 866 Must be false representation 867 Whether concealment of truth equivalent 868 Concealment of latent defects 869 Must be present representation and not mere promise as to future. . . . 870 Must be representation as to facts and not mere expression of ojjinion 871 Must be representation of facts and not of law 872, 873 Representation must be material 874 Representation must have been made with knowledge of its falsity or without belief in its truth 875 Derry v. Peek 876 XXX TABLE OF CONTENTS. References are to sections. Representation must have been made to be acted upon by injured party 877, 878 Party complaining must have been deceived by the representation 879, 880 Right to rely on representation 881-883 Misrepresentation must have caused proximate injury 884, 885 IL Of Fraud upon the Seller. Forms of fraud 886 Fraudulent personation 887, 888 Possession fraudulently obtained 889 Fraudulently disposing of goods conditionally delivered 890, 891 Misrepresentation by buyer as to his solvency or ability to pay 892, 893 ■ Representations to agents — " Commercial agencies " 894, 895 How long may be relied upon — Duty to notify of change 896 Statement made by agency on its own information — Material al- terations of dealer's statement 897 Representation must have been relied upon 898 Other false representations inducing sale 899, 900 Buying goods not intending to pay for them 901, 902 Intention not to pay coupled with insolvency 903 Cause for rescission distinct from false representations 904 Intention, how determined 905 Concealment of insolvency or inability to pay not enough 906 Remedies of the seller 907 Election of remedy — Reasonable time 908 Evidence of election 909 Bringing action for deceit 910 Election to rescind bars personal remedy 911 Must rescind in toto — Rescission as to term of credit only 912 Rescission as to mode of payment only 913 Must restore consideration 914 Note of vendee or a stranger 915 Things of no value 916 When defendant not interested 917 Restoration impossible — Goods damaged or partly sold 918 Restoration in actions of trover 919 Restoration waived 920 Keeping tender of restoration open 921 "Who may rescind 922 Against what parties rescission had — Anyone not bona fide purchaser for value 923 Assignees, mortgagees, creditors, etc 924 Following proceeds as a trust fund 925-927 Necessity of demand before action 928, 929 TABLE OF CONTENTS. XXXI References are to sections. III. Of Fraud upon the Buyer. Methods of defrauding 930 Misrepresentations concerning title 931 Misrepresentation concerning quality 932 Buying " with all faults " 933 Misrepresentations must have deceived buyer 934 Concealment of latent defect 935 Representations as to value 936 Market value 937 Representation as to quantity 938, 939 Remedies of the buyer 940 Must restore article 941 Must act promptly 942 IV. Of Fraud upon Creditors. In general 943 The statutory provisions 944 Declaratory of common-law rules 945 Transactions voidable, not void 946 Sales to defeat creditors usually valid between the parties 947, 948 Basis and extent of creditors' right to interfere 949, 950 What dispositions obnoxious to the statutes 951 Bona fide conveyances for value cannot be impeached 952 Fraud of seller alone not enough 953 Inadequacy of consideration 954 Considerations other than pecuniary 955 Conveyance subject to secret lien or trust 956 Voluntary conveyances 957 Intention of parties : 958 Relations of parties 959 Retention of possession by seller as badge of fraud 960 Regulated by statutes in some States 961 What delivery or change of possession necessary 962 Immediate 963 Actual 964 Continued 965 Exclusive 966 Sufficiency usually question for jury 967 Doubts resolved in favor of creditor or purchaser 968 Who are creditors 969 Nature of demand — Contract or tort — In judgment 970 Absolute or conditional 971 Existing or subsequent creditors — What conveyances existing cred- itors may avoid 972 XXX11 • TABLE OF CONTENTS. Keferenees are to sections. What subsequent creditors may avoid 973 Where creditors of both classes . . 974 Subrogation of subsequent to rights of existing creditors 975 Creditors with notice 976 Bona fide purchasers from fraudulent grantee 977 Fraudulent conveyance not good as security for amount paid 978 V. Of Fraud upon Subsequent Purchasers. In general 979 Delivery as a requisite to the transfer of the title 980, 981 Reasons for rale 982 Retention of possession by seller as a badge of fraud 983 Conclusiveness of presumption . . ., ... 984 Statutory provisions 985 What delivery suffices 986 Illustrations 987, 988 Delivery of documents 989 Seller as bailee of buyer 990, 991 Who are purchasers 992 CHAPTER VII. OF AVOIDANCE OF THE CONTRACT FOR ILLEGALITY. In general 993 General principles of law applicable 994 Courts will not enforce illegal contract 995 Executory and executed 996 Reasons 997 1 .a w will not compel rescission ■ 998 Withdrawal from incomplete contract 999 Rescission where parties not in pari delicto 1000-1002 Agreements partly illegal — Divisible agreements 1003, 1004 Forms of the law creating illegality 1005 I. Illegality at Common Law. What the common law prohibits 1006 Contract for sale of indecent or immoral tiling invalid 1007 Know ledge presumed . 1008 < '.int racl of sale for immoral <>r illegal purpose 1009 Seller innocent 1010 Seller cognizant or participating 1011-1014 Malum prohibitum or malum in se 1015, 1016 ee of participation required 1017-1019 Sales in furtheram I * icial vices 1020-1022 Sales in furtherance of gambling 1023 TABLE OF CONTENTS. XXX111 References are to sections. Sales in aid of the public enemy 1U ^> 1, '~" Sales in violation of liquor laws 10 ~° Conflict of laws 10 f " 1029 ) Sales promotive of wagering speculation 1030-1032 Legitimate speculation 1033-1035 Form of contract immaterial. 10 * 6 Mere agreement to repurchase unobjectionable 1037 Or that vendee has option as to quantity 10 <* 8 Effect upon rights of brokers and other agents 1039 Sales in furtherance of unlawful combinations 104 ° Sales designed to impose upon the public °fl Sales of public office r 7 . 1043 Lex loci II. Invalidity by Statute. What enactments render sale void J044, 1045 Further of construction 10 ? 6 ' JJJ ^ Repeal of statute ■ • • • Illustrations of effect imfl Sunday sales — Statutes forbidding • ■ • ■ ™ 5 _,,.-. 10j3-10o6 Their effect Ratification of Sunday sales * Consideration required Conflict of laws BOOK IV. OF THE PERFORMANCE OF THE CONTRACT. CHAPTER I. OF PERFORMANCE IN GENERAL. 1060 In general... ' * I. When Performance is Due. • ! ... 1061 How this question determined When contract silent, circumstances must determine 1W£ low Distinguishing between condition precedent and mere agreement 1064, lOto By whom determined 106 7, 1063 Rules for determining II. What Will Excuse Performance. 1069 In general XXXI V TABLE OF CONTENTS. References are to sections. 1. Waiver of Performance. Party entitled may waive performance 1070 Elements of a waiver 1071 Mere silence not a waiver 10 < - Mere leniency no waiver 1073 Friendly attempts at adjustment no waiver 1074 Acceptance of part performance as waiver . 1075, 1076 Statement of some objections as a waiver of others 1077 Voluntary and unconditional acceptance of deficient performance a waiver 1078,1079 Where performance due is in instalments 1080 2. That the Other Party is in Default. Default of one party as excuse for non-performance by the other 1081 Buyers failing to come or send for the goods 1082 Part performance only of entire contract 1083 Contemporaneous acts — Default in payment 1084-1086 3. Renunciation of Contract Renunciation of contract by one party will excuse performance by the other 1° 87 Rights of one party when the other renounces 1088, 1089 Retraction of renunciation 1090 Stopping performance of executory contract 1091, 1092 4. That the Buyer has Become Insolvent. When buyer on credit becomes insolvent, seller may decline to per- form 1093-1095 5. That the Other Party is Unable to Perform. Buyer may repudiate where seller unable to convey title 1096 6. That the Other Party has Disabled Himself to Perform. Effect of disabling one's self to perform 1097 7. Impossibility of Performance. In general 1098 Legal impossibility excuses 1099 Physical impossibility excuses 1100-1102 Mere inability of party does not excuse 1103, 1104 Unexpected expense does not excuse 1105 8. Prevention of Performance. Prevention by one party equivalent to performance by the other 1106 ■ After part performance 1107 TABLE OF CONTENTS. XXXV References are to sections. IIL What Constitutes Performance. In general 1. Performance by the Seller. Of performance by the seller in general ll09 2. Performance by the Buyer. Of performance by the buyer in general 1110 CHxVPTER II. OF THE TRANSFER OF THE TITLE BY THE SELLER. Necessity of the transfer "What constitutes the transfer 1113 Evidence of the transfer — Bill of sale 1113 > 1114 Duty of the seller 1115 CHAPTER III. OF THE DELIVERY OF THE GOODS. Of the seller's duty to deliver possession 1116 What is here meant by delivery 1117 1. The Obligation to Deliver. 11 1ft The obligation to deliver Delivery usually to be concurrent with payment 11 19-1121 Conditions precedent to delivery— Notice of readiness to deliver or re- . a 1122, 1123 ceive ' 2. The Place of Delivery. When no place specified, delivery to be where goods were at time of sale ~ Where time is fixed but not the place H-" Where the place is fixed but not the time • 1126 Where place at option of one party 1127 Agreement as to place must be complied with 1128 3. The Time of Delivery. Time of delivery wheu no time agreed upon — Reasonable time 1129 When notice is required 1130 Agreement to deliver during indefinite period 1131 Reasonable time, how determined 1132, 1133 Delivery where time is agreed upon — Construction of terms 1134 Month — Day 1135 Computation of time 1136 1 1 '-!7 Hour of day lld ' Time of the essence of contract 1138 XXXVI TABLE OF CONTENTS. References are to sections. Performance at time a condition precedent 1139 Delivery by instalments — Breach of one of successive performances. 1140 The English rule • 1141-1143 The rule in the United States 1144 Norrington v. Wright — Default in delivery 1145 Pope v. Porter — Default in delivery 1146 McGrath v. Gegner — Default in payment 1147 Weight of authority 1148-1150 Alterations by consent in time or place of delivery 1151, 1152 Resume of cases 1153 4 The Thing to be Delivered. Article delivered must be the article agreed upon 1154-1156 Amount delivered must be the amount agreed upon 1157 Tender of too much — Rejection — Selection 1158 Excess not charged for 1159 Waiver of discrepancy 1160 Tender of too little — Rejection — Acquiescence 1161 Retention of part delivered — Implied promise to pay therefor . . 1162 Severable contract — Recovery for part performance 1163, 1164 Severable contract — Failure as to part 1165 Quantity indefinite — "More or less" — "About" : 1166-1169 Quantity indefinite — Option as to quantity — Election 1170, 1171 5. To Whom Delivery is to be Made. Must be to buyer or some one who represents him for that purpose. . . 1172 Delivery to agent sufficient 1173 Delivery to one of joint purchasers sufficient 1 174 Delivery to carrier, when sufficient 1175 How question arises 1176 How question determined 1177 Is matter of agreement — Construction of agreement 1178-1180 Undertaking of seller to " send," " ship " or " forward " goods, how sat- isfied 1181 Selection of carrier 1182 Delivery to the carrier must be made with due care 1183 Undertaking of seller to deliver the goods, how satisfied 1184 6. What Constitutes Delivery. In general 1185 Delivery complete when goods properly placed at buyer's disposal. . . 1186 What acts necessary in ordinary cases 1187, 1188 Seller in readiness though buyer in default 1189 Marking and setting aside 1190 Where goods are on seller's land — License 1191 Where goods in custody of a third person 1192 TABLE OF CONTENTS. XXXV11 References are to sections. Where goods in possession of bailee — Attornment 1193 Delivery by transfer of bill of lading or warehouse receipt 1194 Delivery to carriers 1195 Delivery by carriers • • • 1196 Delivery where goods are bulky or not capable of manual deliv- ery—Symbolical delivery I 197 Delivery where goods are retained by seller or bailee of buyer. . 1198 Delivery of growing crops H" Delivery of articles situate on land sold 1200 Delivery of goods on vessel at sea 1201 Delivery where goods already in possession of buyer 1202 CHAPTEK IV. OF PERFORMANCE OF CONDITIONS BY THE SELLER. In general **"" Performance by seller of express conditions 1204 Performance by seller of implied conditions, often called implied war- ranties 1205 Stipulations in executory contracts as conditions 1206-1208 Identity cf kind a condition precedent 1209 Correspondence to description a condition precedent 1210 Opportunity for inspection 1211 Conformity to sample a condition precedent 1212 Merchantability a condition precedent 1213 Fitness for intended use a condition precedent 1214 Time, place and quantity as conditions precedent — Time 1215 Quantity 121 6 Place 1217 Difference in legal effect between condition and warranty 1218 Condition precedent becoming warranty after acceptance 1219, 1220 CHAPTER V. OF WARRANTY BY THE SELLER. Purpose of the chapter 1221 L Of Warranty in General. Warranty defined 1222 Is a collateral agreement 1223 Warranty to be distinguished from representation 1224 Illustration of distinction 1225 What necessary to make representation a warranty 1220 Further illustration 1227 Not to be confused with time of warranting 1228 d XXXV111 TABLE OF CONTENTS. References are to sections. How determined 1229 How affected by usage 1230 Warranty to be distinguished from condition 1231 Warranty absolute or conditional 1232 Classification of warranties 1233 II. Express Warranties. Express warranty defined 1234 What constitutes a warranty — Any direct and positive affirmation 1233, 1236 Intention to warrant 1237 How determined 1238 Motive — Good faith no defense 1239 Reference to other warranties or to printed statements — Warranty by conduct 1 240 Mere expression of judgment or opinion not a warranty 1241 What questions presented 1242 Test for determining 1243 Court or jury 1244 Mere commendation or "seller's praise" not a warranty. . . . 1245, 1246 Consideration for the warranty — Time of making it 1247-1249 Construction of warranties in genei'al 1250 Intent governs % 1251 How words understood 1252 Oral and written warranties 1253 Completed writing excludes oral warranty 1254 Otherwise of incomplete writing 1255 How determined 1256 Impeaching writing for fraud 1257 Written contract does not exclude implied warranties 1258 Express warranty as excluding implied warranty 1259 When relating to different subject. 1260. 1201 Express warranty as excluding usage 1262-1264 Time, duration and place of warranty 1265 Warranty as to future event 1266 Warranty against future acts of government. 1267 Representations concerning soundness in animals 1268 Words used 1269 What constitutes unsoundness 1270 Disease need not be permanent or incurable 1271 Warranty against known defects — Usually none 1272 But may be given 1273 How determined 1 274 Express warranty after inspection 1275 Limitations upon warrant}' 1276 To the extent of seller's knowledge 1277 TABLE OF CONTEXTS. XXXIX References are to sections. Warranties by agents 1278, 1279 Agent's implied authority to warrant title 1280 Agent's implied authority to warrant quality 1281-1283 Custom — Judicial notice 1284 Customary warranties on sales of machinery 1285, 1286 Sale by sample 1287 Authority limited to a particular warranty 1288 Limitations upon power to warrant — Unusual warranties 1289-1292 Authority exhausted, when 1293 Authority to warrant soundness of horses 1294 III. Implied Warranties. Implied warranty defined 1295 Implied warranty when express warranty exists 1296 Time and place of implied warranty ... 1297 Deterioration during shipment ... 1298 Implied warranties classified 1299 1. Implied Warranty of Title. Under what circumstances a warranty arises in general 1300 The English rule 1301 The rule in the United States 1302 To what classes of goods the rule applies 1303 Warranty of title protects against incumbrances 1304 Subsequently acquired title inures to benefit of buyer 1305 Warranty implied on exchange of property 1306 No implied warranty of title in official sales, etc 1307 None where seller is known to be mere agent 1308 None where circumstances negative the presumption 1309 2. Implied Warranties of Quality. In general 1310 a. Caveat Emptor. No warranty implied on sale of ascertained chattel open to inspection 1311 Mere inconvenience of examination does not affect rule 1312 No implied warranty of quality as to obvious defects 1313 No implied warranty in such cases even though seller knew that chattel was bought for specific purpose 1314, 1315 Or that the defect be latent 1316 Unless the seller of goods with latent defects be the manufact- urer or grower 1317, 1318 No warranty of soundness from payment of sound price 1319 b. Of Conformity to Sample. On sale by sample, warranty implied that bulk is equal to sample in quality 1320 Xl TABLE OF CONTENTS. References are to sections. What constitutes a sale by sample 1321 Effect of inspection 1322-1324 How question determined 1325 Effect of usage 1326 Parol evidence 1327 Extent of warranty 1328-1230 Co-existence of other warranties 1331 c. Genuineness. Implied warranty of genuineness on sale of bonds, notes, etc 1332 d. Conformity to Description. Sale by description — The English rule 1333 Sale by description in the United States imports warranty of identity of kind 1334, 1335 Description incorporating quality 1336 Limits of rule 1337 • How determined 1338 Description coupled with other tests or limitations. 1339 e. Merchantability. Warranty of merchantability arises on executory sale of merchan- dise 1340 What satisfies 1341 How when there is express warranty of quality 1342 /. Fitness for Intended Usa Implied warranty of fitness where goods for particular use 1343, 1344 To what sellers the rule applies 1345 Extent of the warranty — Latent defects 1346 Reasonable fitness 1347 Article originally designed for different use — Second-hand goods 1348 Warranty not implied where buyer selects the article or a spe- cial and ascertained article is ordered 1349 ■ Nor where qualities are specified by the buyer 1350 Specification by seller 1351 Manufacturer wan-ants kind, materials and workmanship 1352 Also that goods are new and of his own make 1353 Warranty of fitness by breeder or grower. 1354, 1355 g. Fitness for Food. Sale by dealer of provisions for consumption by buyer implies war- ranty of fitness for food 1356 How when seller is not dealer ." 1357 Other circumstances raising warranty 1358 No implied warranty of purity of water furnished by water com- panies ... 1359,1360 TABLE OF CONTEXTS. Xll References are to sections. CHAPTER VI. OF PERFORMANCE BY THE PURCHASER. In general 1361 How subjects classified 1363 CHAPTER VII OF ACCEPTANCE BY THE BUYER. In general 13G3 What meant by acceptance 13 64 In what cases requisite - 13 " 1. Acceptance in Case of Present Sale. Acceptance here contemporaneous with contract 1366 Receipt where delivery postponed 1!,)7 Waiver of irregular delivery • 1 ^G8 2. Acceptance in Case .f Executory Contract. Necessity and nature of acceptance here 1 369 What is meant by acceptance in these cases 1370, 1371^ What buyer is bound to accept 1372 When and where buyer is bound to accept 1373 Waiver of irregular delivery *374 Buyer's right of inspection before acceptance 1373, 1376 Time, place and method of test 13*3 7 Right to use or consume goods in test 1378 Express acceptance ">™ Implied acceptance — Retention beyond reasonable time 1380, 1381 Retention beyond agreed time 13 82 Acceptance after test agreed upon — Failure to give notice 1383, 1384 Waiver of the notice 13 8">. 1386 Acts of ownership indicating acceptance 1387 Effect of acceptance 1388 As waiver of time 1389 As waiver of quantity 1390 - — As waiver of quality — 1. Where there was no warranty 1391 2. Where there was implied warranty or condition 1392, 1393 3. Where there was an express warranty 1394, 1395 Effect of acceptance where contract provides that it shall be conclu- sive 1396 Effect of acceptance when brought about by fraud, mistake or prom- ise to remedy 13 J7 Effect of acceptance or rejection in part 1398-1401 Rejection — Method and effect 140>3 > 1403 Xlii TABLE OF CONTENTS. References are to sections. CHAPTER VIII. OF PAYMENT OF THE PRICE. In general . . . 1404 I. When Payment is Due. Considerations controlling 1405, 1406 When no term of credit, payment and delivery presumptively con- temporaneous 1407 Same rule applies to executory contracts. . . 1408 Where seller is to do something before payment 1409 Where term of credit is agreed upon 1410 Where credit procured by fraud 1411 Delivery of the goods not necessary 1412-1414 By contract payment may be due before title passes 1415 Demand for payment not necessary 1416 IL Place of Payment. When no place of payment specified, debtor must seek creditor 1417 III. The Amount to be Paid. Amount is price agreed upon 1418 Payment of part does not discharge the whole 1419 Exceptions 1420 IV. The Medium of Payment. Unless otherwise agreed, payment to be in lawful money 1421 Money must be genuine 1422 Payment by bill or note — Buyer's note presumptively not payment. . 1423 Contrary rule in few States 1424 Note of third person 1425 Presumptions not conclusive 1426 Action upon note or original consideration 1427 Extension of time 1428 Acceptance of forged or invalid note 1429 Note of insolvent 1430 Acceptance of note induced by fraud 1431 Conflict of laws 1432 Check or draft as payment ... 1433 ■ Certification does not affect 1434 Burden of proof 1435 Dishonored or forged check 1436 Payment in seller's own note or debt 1437 Set-off 1438 Payment in goods 1439-1441 If goods not delivered payment due in cash 1442 TABLE OF CONTENTS. xliii References are to sections. IV. To Whom Payment to be Made. To the seller or his agent 1443 1. Implied Authority to Receive Payment. General considerations 1444 Authority to receive payment not implied from possession of bill 1445 Agent having possession or other indicia of ownership may receive payment 1446 Agent to sell merely or to solicit orders, without possession of goods, not authorized to receive payment 1447 When traveling salesmen may receive payment 1448 When payment to agent part of terms 1449 Notice of want of authority 1450 How, when agency unknown 1451, 1452 When authority to receive payment implied from possession of secu- rities 1453 Whether authority to receive payment implied from relation of par- ties — Husband and wife — Parent and child 1454 2. Construction of the Authority. Can receive nothing but money 1455 No authority to release or compromise the debt 1456 May receive part payment 1457 But may not extend time 1458 Not authorized to receive before due 1459 No authority to take checks 1460 If authorized to take check or note, has no authority to indorse and collect it 1461 Authority to collect does not authorize sale 1462 No authority to deal with funds collected 1463 May give receipt or discharge 1464 , VI. By Whom Payment to be Made. By purchaser or his agent , ... 1465 By stranger 1466, 1467 BOOK V. OF REMEDIES FOR NON-PERFORMANCE. CHAPTER I. PURPOSE OF BOOK V. In general 1468 How remedies classified 1469 Xliv TABLE OF CONTENTS. References are to sections. CHAPTER II. OF THE REMEDIES OF THE SELLER AGAINST THE GOODS. In general 1470-1472 I. The Seller's Lien. What here included 1473 1. Of the Lien in General. Seller has a lien to secm-e payment 1474 What the lien secures 1475 What claims the lien precedes 1476 2. Waiver or Abandonment of the Lien. Waiver of the lien — Expressly or by implication 1477, 1478 Waiver by giving credit 1479, 1480 Waiver by taking bill or note 1481 Lien abandoned by unconditional delivery 1482-1484 Lien not lost by delivery which passes the title but does not change possession 1485, 1486 So lien not lost if possession retained, though seller's attitude lias changed 1487 Lien not lost by special and qualified delivery 1488, 1489 Lien not lost if possession secured by fraud 1490 How when goods already in possession of buyer 1491 How when buyer has changed character of property 1492 How when goods in possession of bailee 1493, 1494 How when goods on public wharf or the premises of a stranger. . 1495 How when goods ai*e delivered to a carrier 1496, 1497 Transfer by bill of lading 1498 Effect of delivery of part of the goods 1499 Effect of part payment 1500 3. Estoppel in Favor of Sub-purchasers. Lien good against sub-purchaser unless seller estopped — Estoppel by conduct 1501-1503 Form of delivery order or warrant as estoppel 1504-1506 Warehouse receipts in the United States 1507 4. Revival of Lien on Lnsolvency of Purchaser. Revival of lien — Insolvency of purchaser before actual delivery 1508, 1509 Insolvency of buyer before expiration of credit 1510, 1511 Insolvency of buyer before delivery order complied with. . . 1512-1514 Same subject — Taking note — Giving receipted bill. etc. . . 1515-1517 Same subject — Instalment delivery — Subsequent appropriation 1518 What constitutes insolvency 1519, 1520 TABLE OF CONTENTS. Xlv References are to sections. 5. Revival of Lien on Expiration of Credit. Lien revives on expiration of credit 1521 6. Effect of Tender of Price, Lien lost by tender of price 1522 7. Effect of Claiming Lien. Claim of lien does not rescind sale 1523 II. The Seller's Right of Stoppage in Transitu. What here included 1524 L The General Nature of the Right. The origin and nature of the right 1525, 1526 Exists only when title has passed 1527 Right favored in the law 1528 2. Who May Stop the Goods. Right may be exercised only by vendor or one in his position 1529 By factor who has bought goods for principal 1530 By person who pays price for vendee 1531 But not by vendor of seller 1532 Nor by unpaid agent of seller 1533 Principal who has consigned goods to factor may stop 1534 Surety for the buyer may not stop the goods 1535 Seller of executory interest may exercise the right 1536 Stoppage by agent for his principal — Ratification 1537 3. Against Whom Stoppage May be Effected. Against buyer or one standing in his attitude 1538 Only against an insolvent buyer 1539 Evidence of insolvency 1540 Absconding, attachment, etc., not enough 1541 Insolvent when 1542-1544 4. Under Wliat Conditions Stoppage May be Effected, Goods can be stopped only while in transit 1545, 1546 Existence of a transit — Goods transported on ship or other vehicle owned or chartered by purchaser 1547 Shipment on vessel owned by buyer 1548 Shipment on vessel chartered by buyer 1549 Same subject — Reserving control 1550 Shipment by carrier designated by the buyer 1551 Shipment through purchasing agent of buyer 1552 How long the transit continues — In general 1553-1555 Buyer may intercept the goods 1 556 Is carrier's consent necessary 1557 Xlvi TABLE OF CONTENTS. References are to sections. Interception by buyer's agent — Agent to receive or forward. . . 1558-1561 Interception by sub-purcbaser — Mere resale does not defeat stoppage 1562 Indorsement of bill of lading 1563-1567 Pledgee of goods — Bill of lading as security 1568 Absolute sale of goods, but purcbase price unpaid — Rigbt to reacb proceeds 1569, 1570 Interception by buyer's creditors — Attachment — Garnishment 1571 Interception by seller as a creditor — Attachment by seller 1572 When transit ends — Arrival at destination 1573-1577 Goods not yet unloaded 1578 Goods in carrier's or other warehouse — Attornment 1579, 1580 Carrier as bailee for bu} T er 1581-1583 Deposit of goods in custom-house 1584-1587 Goods in hands of local truckman 1588-1590 How, when consignee refuses to receive goods 1591, 1592 Who may take possession for vendee — Agent '. 1593 Administrator — Assignee 1594 Not sheriff 1595 Or mortgagee 159& Actual or constructive possession by purchaser 1597-1601 Effect of part delivery 1602 Effect of part payment 1603 Effect of taking note 1604 5. How Stoppage May be Effected. No particular method necessary — Notice to stop 1605-1607 To whom notice to stop should be given — Vendee 1608 Carrier's agent , 1609 Carrier's lien must be satisfied 1610 6. Effect of Stopping the Goods. Restores right of possession 1611 Does not rescind the sale 1612 Remedy of seller to secure payment 1613 III Seller's Right of Stoppage on Executory Sale. Nature of this right 1614-1616 How right exercised — Its effect 1617 IV. Option of Seller as to Remedies. What remedies seller may pursue 1618, 1619 Equitable remedies 1620 V. The Seller's Right of Resale. How here considered. 1621 table of contents. xlvii References are to section?. 1. When Tith has Passed. In general 1622.1623 To what kinds of property right of resale attaches 1024 When right may be exercised Duty to hold goods until price due, 1026. 1627 Buyer's right to redeem the goods Seller as agent of the buyer 1029. 1080 Buyer as agent of seller 1631 • of resale ; 1632 1. Notice of seller's purpose to resell 1633-1636 2. Notice of time and place of resale 1037 Place of reside 163 * The manner of resale. 1640, l 641 Time of resale l'^~ Effect of resale in determining value 1043 Title of the purchaser at the resale 1644 2. Right of Resale on Executory Coni General considerations 1645, 1646 Choice of remedies 1647,1648 Nature of ri^lit of resile 1649 How resale should be made 1650 CHAPTER III. REMEDIES OF THE SELLER AGAINST THE BUYER PERSONALLY. Purpose of this chapter 1651 What questions arise 1652 I. Where the Title has Passed. In general 1653 1. Where the Goods have been Dclivtred. Recovery of price the chief object 1654 Seller cannot rescind for mere non-payment of price 1655 May rescind for fraud 1656 May reserve lien by contract 1657 Seller may recover price as for goods sold and delivered When credit given 1 659 When no credit given 1660 When payment of price is due — On delivery 1661, 1662 At expiration of term of credit 1663 How when bill or note was to be given for the price 1664 Actual delivery and acceptance necessary to sustain count for goods sold and delivered . 1665 Actions for deceit 1666 Xlviii TABLE OF CONTENTS. References are to sections. 2. Where the Goods have not been Delivered. Title passing though goods not delivered 1667 Recovery of price where seller yet to do something to the goods 1668 Recovery of price where seller holds as bailee for buyer 1669 Recovery of price where seller claims his lien 1670, 1671 Recovery of price where seller stops goods in transit 1672 Recovery of residue of price after resale in pursuance of lien 1673 Recovery of price where buyer fails or refuses to take the goods 1674-1677 Other remedies in like cases 1678, 1679 Vendor may resell and recover deficiency 1680 Right to keep property as his own and recover deficiency . . 1681, 1682 II. Where the Title had not Passed. In general • 1683 1. Where the Goods have been Delivered. Recovery of goods and damages for breach of contract. 1684-1688 2. Where the Goods have not been Delivered. Where title has not passed and goods not delivered, action for dam- ages is remedy 1689 Measure of damages usually difference between contract price and market price at time and place of delivery 1690 Time for delivery 1691 How market value shown — Resale 1693 Scope of evidence 1693 Full contract price after tender allowed in some cases 1694 Contracts for sale of stocks 1695 Contracts for manufacture of chattel 1696 Contracts for production of that which lias no market value 1697 This not the general rule 1698 Countermanding performance of executory contract 1699 Countermanding order after part delivery 1700 Countermanding order for goods when partly manufactured 1701 Countermanding order before manufacture begun 1702, 1703 Loss of profits 1704 Form of repudiation 1705 Effect on seller's rights of repudiation by the buyer 1706 Seller not obliged to treat it as a present breach 1707 Contract kept alive for the benefit of both parties 1708 Measure of damages if seller do. s treat it as present breach. 1709-1712 Treating contract as rescinded and recovering quantum valebat 1713 CHAPTER IV. OF THE REMEDIES OF THE BUYER AGAINST THE SELLER. Purpose of this chapter. 1714 How subjects classified. 1715 TABLE OF CONTENTS. xlix References are to sections. L Where the Title has not Passed. In general 1716 1. Where the Goods have not been Delivered. Seller's breach of contract to sell and convey 1717 Specific performance not usually awarded 1718 Where chattel is unique 1719 Where chattel of peculiar importance 1720-1723 Where legal remedy inadequate 1724 Where chattel necessary to enjoyment of estate 1725 Contracts for sale and delivery in instalments 1726 Contracts for sale of corporate stocks and bonds 1727, 1728 Contracts for sale of inventions, patents or patented articles 1729 Contracts for sale of debts, notes, etc 1730 Contracts for sale of growing trees 1731 Specific performance not to be made substitute for damages 1733 Will not be granted where contract ambiguous, uncertain or un- fair 1733 Action at law for damages the usual remedy 1734, 1733 Measure of damages usually difference between contract price and value of goods at time and place of delivery 1736-1740 How. when price paid in advance 1741 How, when no market at place of delivery 1742 How, when goods have no market value 1743 How, when goods have neither market nor actual value 1744 How, when no difference between contract price and market value 1 745 How, when goods to be delivered in instalments 1746 How, when goods to be delivered "on or before" a certain day. . 1747 How, when no time fixed for delivery 1748 How, when delivery postponed at seller's request 174!) How, when seller repudiates before time for performance.. . 1750-1753 How, when seller refuses to give credit as agreed 1754, 1755 Measure of damages where special circumstances were in contempla- tion. 1756 General rule of damages for breach of contract — Hadley v. Baxen- dale 1757-1759 How the rule applies to sales 1760 Loss of profits on resale contracted for 1761 Resale not contemplated 1762 Resale known to vendor 1763-1765 Extent of knowledge required — Particular price 1766, 1767 Cost of procuring substitute 1768 Costs of defending action brought by sub-vendee 1769 Summary of English cases - 1770 Measure of damages where goods intended for particular use. . . 1771-1776 1 TABLE OF CONTENTS. References are to sections. No damages for speculative or remote losses 1777-1779 Pleading special damages 1780 2. Where the Goods have been Delivered. Substantially same remedies as in preceding cases 1781 II. Where the Title has Passed. In general 1782 1. Where the Goods are not Delivered. Specific performance of agreement to deliver 1783 Action for damages for breach of agreement to deliver 1784 Measure of damages 1785 Trover — Measure of damages 1786 How when goods of fluctuating value — Stocks, bonds, etc . . 1787, 1788 2. Where the Goods have been Delivered. What questions arise 1789 a. Where there was Delay in Delivery. Measure of damages for delay 1790-1792 b. Where Title Fails in Whole or in Part. Recovery of consideration 1793 Damages for breach of warranty of title 1794 When right of action accrues 1795 What constitutes eviction 1796 Warranty broken by incumbrances 1797 Evidence of eviction — Judgment — Costs of suit ' 1798 c. Where Goods Defective in Kind, Quality or Condition. In general 1799 Caveat emptor 1800 Express stipulation for return or other remedy 1801 Rejection of goods 1802, 1803 Rescission for fraud 1804 Rescission of breach of warranty 1805 I n pursuance of agreement 1806 Waiver of special remedy — Suit for breach of warranty 1807 Option where law gives right to rescind 1808 Action for breach of warranty 1809 What form of action — Contract or tort? ... 1810 Notice <>f defect — Offer to return 1811 Conditional warranty 1812,1813 Vendee not bound to anticipate or search for defects 1814 Who liable for breach of warranty -Principal —Agent 1815 Purchaser of draft witli bill of lading attached 1816 TABLE OF CONTENTS. H References are to sections. Measure of damages for breach of warranty — In general 1817. 1818 Time 1819 Place 1820 Measure of damages for breach of warranty when goods bought for special purpose 1821 Damages for losses incidental to use or purpose contemplated 1822-1825 Expenses incurred 1826 Gains prevented 1827, 1828 Purely speculative profits 1829-1831 Losses not contemplated 1832 Measure of damages where goods bought to be resold 1833 Damages paid sub-vendee for breach of same warranty 1834 Buyer may recover for breach of warranty though he bas not paid the price 1835 Or though lie has paid the price 1836 Or though he may have resold the goods 1837 Or though he may have made a profit on them 1838 Remedies for deceit or fraud 1839 Elements of fraud 1840 Reliance on representations. 1841 Representations must have been proximate cause of injury 1842 Measure of damages 1843 Buyer may recoup damages in action by seller for the price 1844 Defense of failure of consideration 1845-1847 Recovery as for failure of consideration 1848-1850 TABLE OP CASES CITED. References are to sections: Vol. I, §§ 1-707; Vol. IT, §§ 798-1850. Abut v. Atkinson (21 La. Ann. 414\ 520. Abberger v. Marrin (102 Mass. 70j, 789. Al.liott v. (iilchrist (38 Me. 260), 311. Abbott v. Goodwin (87 Me. 203), L050. Abbott v. Eapgood (150 Muss. 848), 1771. Abbott v.Reeves (49 Pa. St. 494), 1727. Abbott v. Shepard (48 N. H. 14), 247, 251, 428. Aborn v. Merchants' Despatch Trans portation Co. (185 Mass. 288), 269. Abrahams v. Weiller (87 111. 179), 1447. Accumulator Co. v. Dubuque St. By. Co. (27 U. S. App. 3G4), 1822, 1826. Acebal v. Levy (10 Bing. 876), 207, 208, 870, 138, 448. Acker v. Campbell (23 Wend 872), 928, 1437. Acker v. Eimmie (87 Kan. 276), 828. A( Tama n v. Morris (8 C. B. 449), 508. Adams V. Ames (19 Wash. 425), Hit:!. Adams v. Beall (67 M.I. 58), 107. Adftms v. Berg (67 Miss. 175), 599, 603. Adams v. Coulliard (102 Mass. 167), 1013, 1018, 1027. A da ins v. Dale (29 Ind. 273), 1186. Adams v. Foley (4 Iowa, 44), 166. Adams v. Fraser (49 U. S. App. 481), 1 75. Adams v. Frazer (82 Fed. R. 211), 1 117. Adams v. (lay (19 Vt. 358), 1056, 1057. e Adams v. Eamell (2 Doug. 73), 1053, 1054 Adams v. Johnson (15 111. 345), 1237, 1245. Adams v. Lindsell (1 Barn. & Aid. 681), 244, 247, 251, 252. Adams v. Messinger (117 Mass. 185), 1720. Adams v. McMillan (7 Port. 73), 438, 461. A < la ins v. O'Connor (100 Mass. 515), 543, 1437. Adams v. Roscoe Lumber Co. (159 N. Y. 176), 546, 555. Adams v. Schiller (11 Colo. 15), 885. Adams v. Wordley (1 M. & W. 374), 1204. Adams Mining Co. v. Senter(26 Mich. 78), 390, 892, 526. Adams Radiator Works v. Schnader (155 Pa. St. 394), 664 Aderholt v. Embry (78 Ala. 185), 711. A die v. Clark (L. R. 3 Ch. Div. 134) 834. Adler v. Railroad Co. (92 Mo. 242) 200. Adler v. Thorp (102 Wis. 70), 901. Adler v. Wagner (47 Mo. App. 25) 1174. Adrian v. Lane (18 S. C. 188), 175. .Ktna Ins. Co. v. Reed (33 Ohio St. 288), 872, 874. .I'.tna L Ins. Co. v. Sellers (154 Ind. 370), 72. liv TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. JEtna Powder Co. v. Hildebrand (137 Ind. 462), 49. Ager v. Duncan (50 Cal. 325), 947. Agins v. Great Western Colliery Co. (1 Q. B. 413), 1769. Agnew v. Dumas (64 Vt. 147), 365. Aguirre v. Allen (10 Barb. 74), 466. Aguirre v. Parmelee (22 Conn. 475), 1552. Ahearn v. Ayres (38 Mich. 692), 222. Ahem v. Baker (34 Minn. 98), 257. Ahern v. Goodspeed (72 N. Y. 108), 1281, 1282, 1284. Aiken v. Blaisdell (41 Vt. 655), 1013, 1019, 1027, 1044, 1046, 1051. Aiken v. Hyde (99 Mass. 183), 667. Akernian v. Humphrey (1 Carr. & P. 53), 1560. Akin v. Jones (93 Tenn. 353), 49. Albany City Savings Institution t. Burdick (87 N. Y. 40), 881. Albemarle Lumber Co. v. Wilcox (105 N. Y. 34), 205, 213, 485. Albright v. Griffin (78 Ind. 182), 1429. Albright v. Meredith (58 Ohio St. 194), 5S8. 619, 629. Alden v. Hart (101 Mass. 576), 1340. Alden v. Wright (47 Minn. 225). 1843. Alderman v. Eastern R. Co. (115 Mass. 333), 710. 788. Alderson v. Temple (4 Burr. 2235), L592. Alderton v. Buchoz (3 Mich. 322), 382, 383. Aldrioh v. Bailey (132 N. Y. 85), 64. 72. Aldrich v. Blarkston (128 Mass. 143), 1052. Aldrich v. Grimes (11 N. II. 194), 121. Aldrich v. Jackson (5 K. I. 218), 835. Aldrich v. Pyatt (61 Barb. 391), 350. Aldridge v. Johnson '7 EL & B. 885), : 27, 729, 730, 735, 757. Alexander v. Dutton 58 N. ir. 282), 1270. Alexander v. Gardner (1 Bing. 671), 178, 520, 732, 740. Alexander v. Gibson (2 Camp. 555), 1281, 1294. Alexander v. Hutchinson (2 Hawks, 535), 121. Alexander v. Miller (16 Pa. St. 215), 178. Alexander v. Oneida Co. (76 Wis. 56), 363. Alexander v. Swackhamer (105 Ind. 81), 149. Alexander v. Vanderzee (L. R. 7 C. P. 530), 653. Alexander v. Worman (6 H. & N. 100 \ 845. Alewyn v. Pryor (R. & M. 406), 652. Alfred Shrimpton & Sons v. Phil- brick (53 Minn. 366), 1841. Allan v. Lake (18 Q. B. 560), 1333. Allard v. Greasert (61 N. Y. 1), 349, 365. Allen v. Anderson (3 Humph. 581), 1805. Allen v. Bennett (3 Taunt. 169), 428, 430, 434, 449. Allen v. Berryhill (27 Iowa, 534), 72, 74,82,83. Allen v. Delano (55 Me. 113), 636. Allen v. Duffie (43 Mich. 1), 1052, 1057. Allen v. Dykers (3 Hill, 593), 1264. Allen v. Ford (19 Pick. 217), 912, 1411. Allen v. Gardiner (7 R. I. 22), 1052. Allen v. Hammond (11 Pet. 63), 199, 274. Allen v. Hartfield (76 111. 358 \ 1437. Allen v. Jarvis (20 Conn. 38), 1092, 1106. 1697. Allen v. Lardner (78 Hun, 603). 132. Allen v. Maine Central R. Co. (79 Me. 327), 1606. 1607, 1608. Allen v. Maury (66 Ala. 10), 166, 676. Allen v. Minor (2 Call. 70), 124. Allen v. Pearce (84 Ga. 606), 1004, 1050. Allen v. Pink (4 M. & W. 140), 448, L255. TABLE OF CASES CITED. Iv References are to sections: Vol. I, §§ 1-797; Vol. IT, §§ 798-1850. Allen v. Williams (12 Pick. 297), 7 -10. 775, 788. Allen v. Woods (24 Pa. St. 76), 1125. Alley v. Winn (134 Mass. 77), 184. Allgear v. Walsh (24 Mo. App. 134), 491. Allis v. Billing (6 Met. 415), 72, 77. Allis v. McLean (48 Mich. 428), 1831. Allis v. Nininger (25 Minn. 525), 1798. All man v. Davis (2 Ired. 12), 508. Allshouse v. Ramsay (6 Whart, 331), 1417. Allyn v. Willis (65 Tex. 65), 1572. Alpha Check-Rower Co. v. Bradley (105 Iowa, 537). 49, 1259, 1829. Alpha Mills v. Watertown Co. (116 N. C. 797), 1815. Alt v. Grosclose (61 Mo. App. 409), 336. Alton v. Harrison (L. R. 4 Ch. 622). 960. American Brick & Tile Co. v. Drink- house (59 N. J. L. 462), 1423. American Bridge Co. v. Bullen Co. (29 Oreg. 549), 1702. American Electrical Constr. Co. v. Consumers' Gas Co. (3 TJ. S. App. Ill), 1304. American Express Co. v. Fletcher (25 Ind. 492), 887. American Express Co. v. Stack (29 Ind. 27), 887. American Exp. Co. v. Wilbie (79 111. 92), 924. American Extract Co. v. Ryan (104 Ala. 267), 1129. American Freehold Mtg. Co. v. Dykes (111 Ala. 178), 100, 103, 109, 121. American Hoist & Derrick Co. v. Johnson (114 Mich. 172), 1154. American Mortgage Co. v. Wright (101 Ala. 658), 102. American Oak Leather Co. v. Porter (94 Iowa, 117), 426, 445. American Sugar Refining Co. v. Fancher (145 N. Y. 552), 925. American White Bronze Co. v. Gil- lette (88 Mich. 231), 811, 1156. Ames, Ex parte (1 Low. 561), 636. Ames v. Drew (31 N. H. 475), 1462. Ames v. Jones (77 N. Y. 614), 1321. Ames v. Moir (130 111. 582), 1618, 1682. Ames v. Quimby (96 U. S. 324), 210. Ames v. Smith (65 Minn. 304), 228. Ames v. Witbeck (179 111. 458), 1718, 1727. Ames Iron Works v. Rea (56 Ark. 450), 606. Ames Iron Works v. Richardson (55 Ark. 642), 588, 590, 624. Amis v. Kyle (2 Yerg. 31), 1052. Amory v. Brodick (5 B. & Aid. 712), 1097. Amson v. Dreher (35 Wis. 615), 362, 373. Anderson v. Anderson (64 Ala. 403), 970. Anderson v.* Brenneman (44 Mich. 198), 964, 968. Anderson v. Bruner (112 Mass. 14), 1291. Anderson v. Crisp (5 Wash. 178), 702. Anderson v. Frank (45 Mo. App. 482), 1638, 1639, 1643. Anderson v. Gill (79 Md. 312), 1433. Anderson v. Goff (72 Cal. 65), 1134. Anderson v. Harold (10 Ohio, 399), 434, 449. Anderson v. Jett (89 Ky. 375), 208. Anderson v. May (50 Minn. 280), 1103. Anderson v. Olsen (188 111. 502), 1718, 1729. Anderson v. Read (106 N. Y. 333), 1504. Anderson v. Roberts (18 Johns. 515), 150. 946, 977. Anderson v. Smith (33 Md. 465), 132. Anderson v. Soward (40 Ohio St. 325), 102. Anrling v. Perkins (29 Tex. 348), 1794. Andrew v. Dieterich (14 Wend. 31), 524, 535, 555. lvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Andrews v. Chenery (62 N. H. 40*), 730, 734. Andrews v. Clark (72 Md. 396), 1787. Andrews v. Colorado Savings Bank (20 Colo. 313), 564, 573, 578. Andrews v. Costican (30 Mo. App. 29), 336. Andrews v. Durant (11 N. Y. 35), 755, 759. Andrews v. German Nat. Bank (9 Heisk. 211), 1434. Andrews v. Jenkins (39 Wis. 476), 148. Andrews v. Hoover (8 Watts, 239), 1643, 1692. Andrews v. Kneeland (6 Cow. 354), 1287, 1320. Andrews v. Schreiber (93 Fed. R. 367), 1818, 1838. Andrews v. Smith (34 Hun, 20), 711. Angel v. McLellan (16 Mass. 28), 127, 128, 129. Angier v. Taunton Paper Co. (1 Gray, 621), 630. Anglo-American Prov. Co. v. Pren- tiss (157 111. 506), 227, 232, 1013, 1084, 1088. 1408. Anglo-Egyptian Nav. Co. v. Rennie (L. R. 10 C. P. 271), 755, 762. Angus v. Scully (176 Mass. 357), 1102. Anheuser-Busch Brewing Ass'n v. Mason (44 Minn. 318), 1022. Ansley v. Green (82 Ga. 181), 426. Anthony v. Halstead (37 L. T. 433), 1276. Anthony v. Haneys (8 Bing. 186), 626. Anthony v. Unangst (174 Pa. St. 10). 1032. Anvil Min. Co. v. Humble (153 U. S. 540), 1090, 1106. Appersot) v. Moore (30 Ark. 56), 202. Appleby v. Johnson (L. R 9 C. P. 1 58 1, 834 Applegate v. Moffit (60 Ind. 104). L281. Appleman v. Michael (43 Md. 269), 740. Appleton v. Bancroft (10 Mete. 236), 964, 1193. Appleton v. Norwalk Library Ass'n (53 Conn. 4), 625. Arbuckle v. Gates (95 Va. 802), 46, 49, 599, 603. Arbuckle v. Reaume (96 Mich. 243), 1052, 1057, 1059. Arbuckle Bros. v. Kirkpatrick (98 Tenn. 221), 49. Archdale v. Moore (19 111. 565), 1350, 1352. Archer v. Baynes (5 Ex. 625), 427. Argus Co., Matter of (138 N. Y. 557), 1727. Argus Co. v. City of Albany (55 N. Y. 495), 431. Arkansas Cattle Co. v. Mann (130 U. S. 69), 495, 564, 577, 1786. Arkansas Smelting Co. v. Belden Mining Co. (127 IT. S. 379), 267. Arkwright v. Newbold (17 Ch. D. 320), 856, 876. Armfield v. Tate (7 Ired. 258), 1013. Armington v. Houston (38 Vt. 448), 597. Armitage v. Insole (14 Q. B. 728), 1106, 1127, 1130. Armour v. Pecker (123 Mass. 143), 546, 549, 554, 564. Arms v. Ashley (4 Pick. 71), 17. Armstrong v. Bufford (61 Ala. 410), 1272, 1311. Armstrong v. Freimuth (78 Minn. 94), 165. Armstrong v. Johnson Tobacco Co. (41 Mo. App. 254), 1344. Armstrong v. Lawson (73 Ind. 498), 336. Armstrong v. Percy (5 Wend. 535), L794, 1798, L834, Armstrong v. St. Paul Co. (48 Minn. 118), 49. Axmsl rong v. Toler (24 U. S. 258), 1014. Armstrong v. Turner (49 Md. 589), 1669. TABLE OF CASES CITED. lvii References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Arnholt v. Hartwig (73 Mo. 485), 952. Arnold v. Carpenter (16 R, L 560), 1471, 1513, 1622, 1633, 1643. Arnold v. Delano (4 Cush. 33), 725, 1117, 1474, 1479, 1485, 1486, 1492, 1510, 1515, 1519, 1523, 1604, 1612, 1670. Arnold v. Englernan (103 Ind. 512), 138. Arnold v. Richmond Iron Works (1 Gray, 434), 77, 83, 619. Arnot v. Coal Co. (68 N. Y. 558), 208, 1019, 1040. Arnstine v. Treat (71 Mich. 561), 879. Arques v. Wasson (51 Cal. 620;, 200, 202. Artcher v. Zeh (5 Hill, 200), 416. Arthus v. Moss (1 Oreg. 193), 1794. Artman v. Ferguson (73 Mich. 146), 138. Asbill v. Standley ( — Cal. — ), 964. Ascher v. Grand Trunk Ry. Co. (36 Up. Can. Q. B. 609), 1586, 1611. Ash v. Aldrich (60 N. H. 581), 328. Ashby v. West (3 Ind. 170), 25. Ashcroft v. Butterworth (136 Mass. 511), 210, 225, 138. Ashcroft v. Morrin (4 M. & G. 450), 438. Ash mead v. Hean (13 Pa. St, 584), 955. Ashmead v. Reynolds (127 Ind. 441), 72. Ashmore v. Cox (1 Q. B. 436), 1103. Ashworth v. Wells (78 L. T. R. 136), 1819, 1827. Askey v. Williams (74 Tex. 294), 122, 132. Aspell v. Hoshein (98 Mich. 117), 1057. Aspinwall Mfg. Co. v. Johnson (97 Mich. 531), 49. Association v. Koch (14 La. Ann. 168), 208. Atchinson v. Bruff (50 Barb. 381), 129. Atkin v. Barvvick (1 Str. 165), 1591, 1592. Atkins v. Cobb (56 Ga. 86), 1334, 1392. Atkins v. Colby (20 N. H. 155), 1579, 1606. Atkins v. Insurance Co. (5 Mete. 439), 1136. Atkinson v. Bell (8 B. & C. 277), 307, 759. Atkinson v. Denby (7 Hurl. & Norm. 934), 1000. Atkinson v. Horridge (Oliphant, 229), 1270. Atkinson v. Morse (63 Mich. 276), 1709. Atkinson v. Truesdell (127 N. Y. 230), 754. Atherton v. Newhall (123 Mass. 141), 365, 403. Atlantic Dock Co. v. New York (53 N. Y. 64), 1466. Atlee v. Bartholomew (69 Wis. 43), 244 Attwood v. Emery (1 Com. B. 110), 1 129, 1134. Atwater v. Clancy (107 Mass. 369), 1255, 1320, 1327. Atwater v. Hough (29 Conn. 508), 293, 324. Atwater v. Whiteman (41 Fed. R, 427), 1843. Atwell v. Miller (6 Md. 10), 379, 964. Atwood v. Cobb (16 Pick. 227), 1131. Atwood v. Dearborn (1 Allen, 483), 923, 924. Atwood v. Lucas (53 Me. 508), 1643, 1665, 1690. Aubert v. Maze (2 Bos. & P. 371), 1012, 1015. Auerbach v. Wunderlich (76 Minn. 42), 1380. Augur v. Couture (68 Me. 427). 451. Augusta Southern R. Co. v. Smith (106 Ga. 864), 473. Ault v. Dustin (100 Tenn. 366), 1081, 1090, 1091. Aultman & Co. v. Carr (16 Tex. Civ. App. 430), 895, 905. lviii TABLE OF CASES CITED. References are to sections: Yol Aultman v. Case (68 Wis. 612), 1817. Aultman v. Clifford (55 Minn. 159), 1156. Aultman v. Falkuni (51 Minn. 562), 1257. Aultman v. Gunderson (6 S. Dak. 226), 1806, 1812. Aultman v. Hetherington (42 Wis. 622), 1817, 1818. Aultman v. Kennedy (33 Minn. 339), 1255. Aultman v. Lee (43 Iowa, 404), 1455. Aultman v. Mallory (5 Neb. 178), 599. Aultman v. McKenny ( — Tex. Civ. App. — ), 1384, 1396. Aultman v. Olson (43 Minn. 409), 620, 837. Aultman v. Shelton (90 Iowa, 288), 1240. Aultman v. Silha (85 Wis. 359), 564, 578. Aultman v. Theirer (34 Iowa, 272), 660, 1395, 1396. Aultman v. Weber (28 111. App. 91), 1259. Aultman v. Wykle (36 111. App. 293), 669. Aultman Taylor Co. v. Ridenour (96 Iowa, 638), 1078, 1251, 1353, 1384. Au Sable Boom Co. v. Sanborn (36 Mich. 358), 1423. Austen v. Craven (4 Taunt, 644), 702. 711. Austin v. Charlestown Seminary (8 Met. 19G), 97. Austin v. Davis (128 Ind. 472), 428. Austin v. Dye (46 N. Y. 500), 5!)!). Austin v. Nickerson (21 Wis. ",l!i!, L235. Austrian v. Springer (94 Midi. B43), 1736, 1753. Averill v. Hedge (12 Conn. 424), 245, 247,251. Avery v. Bowden (5 El. & Bl. 711), loss. L089, 10H7. Avery v. Chapman (62 fowa, 111, 875. I, §§ 1-797; Vol. n, §§ 79SH850. Avery v. Ryan (74 Wis. 591), 1727. Avery v. Willson (81 N. Y. 341), 242, 831, 1076, 1160, 1161, 1162, 1390, 1400, 1846. Avers v. Burns (87 Ind. 245), 123, 131. Aymar v. Beers (7 Cow. 705), 1132. Ayres v. French (41 Conn. 142), 901. Ayres v. Parks (3 Hawks, 59), 1237. Ayliff v. Archdale (Cro. Eliz. 920), 124. Azemar v. Casella (L. R. 2 C. P. 431), 1333. Baals v. Stewart (109 Ind. 371), 599. Babb v. Clemson (10 S. & R. 419), 580, 960, 966. Babcock v. Bonnell (80 N. Y. 244), 1523, 1612. Babcock v. Case (61 Pa, St. 427), 914. Babcock v. Def'ord (14 Kan. 408), 175. Babcock v. Lawson (L. R. 4 Q. B. Div. 394), 924. Bach v. Levy (101 N. Y. 511), 1212, 1818. Babcock v. Trice (18 III 420), 1340, 1393, 1395, 1844. Bach v. Owen (5 T. R. 409), 404. Bacharach v. Chester Frt. Line (133 Pa. St. 414), 1181. Bachentoss v. Speicher (31 Pa. St. 324), 904. Backman v. Mussey (31 Vt. 547). 1028. Backman v. Wright (27 Vt. 187), 1028. Bacon v. Brown (4 Bibb, 91), 910. Bacon v. Cobb (45 111. 47), 1103, 1124, 1151. Bacon v. Eccles (43 Wis. 227), 367, 463, 464. Badger v. Phinney (15 Mass. 359), 109, 120. Badlam v. Tucker (1 Pick. 389), 380, 1201. Bagby v. State (82 Ga. 786), 1029. Bagby v. Walker (78 Md. 239), 323. Baglehole v. Walters (3 Camp. 151), 809. 933. TABLE OF CASES CITED. lix References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Barley v. Findlay (82 111. 524), 1618, 1629, 1611, 1643, 1682. Bagley v. Rolling Mills Co. (21 Fed. R. 159), 1156, 1237, 1240, 1335, 1393, 1844. Bagueley v. Hawley (L. R, 2 C. P. 625), 1309. Bahia & S. F. Ry. Co., In re (L. R 3 Q. B. 584), 845. Bailey v. Austrian (19 Minn. 545), 263. Bailey v. Colby (34 N. H. 29), 588, 628. Bailey v. Day (26 Me. 88), 1419. Bailey v. De Crespigny (L. R. 4 Q. B. 180), 1099. Bailey v. Forrest (2 C. & K. 131), 1270. Bailey v. Foster (9 Pick. 139), 836. Bailey v. Harris (8 Iowa, 331), 599. Bailey v. Hervey (135 Mass. 172), 583, 619. Bailey v. Kennedy (2 Del. Ch. 12), 955. Bailey v. Long (24 Kan. 90), 711. Bailey v. Merrell (3 Bulst. 94), 884. Bailey v. Miltenberger (31 Pa. St. 41), 1267. Bailey v. Mogg (4 Denio, 60), 1048. Bailey v. Nickols (2 Root, 407), 1319. Bailey v. Ogden (3 Johns. 399), 358, m 434. Bailey v. Railroad Co. (49 N. Y. 70), 736, 752. Bailey v. Smith (43 N. H. 141), 493, 499, 714. Bailey v. Sweeting (9 C. B., N. S., 843), 428. Bainbridge v. Caldwell (4 Dana, 213), 542, 546, 554. Bainbridge v. Pickering (2 W. Black. 1325), 127, 429. Baines v. Jevons (7 C. & P. 288), 360. Baird v. Hall (67 N. C. 230), 1455. Baird v. Matthews (6 Dana, 129), 1242, 1268. Baird v. Randall (58 Mich. 175), 1456. Baker v. Arnot (67 N. Y. 448), 1303. Baker v. Born (67 Ind. App. 422), 15. Baker v. Carter (83 Me. 132), 183. Baker v. Chicago, etc. R. Co. (98 Iowa, 438), 779. Baker v. Crandall (78 Mo. 584), 878. Baker v. Dening (8 A. & E. 94), 451. Baker v. Drake (53 N. Y. 211), 1787. Baker v. Drake (66 N. Y. 518), 1787. Baker v. Gray (17 C. B. 462), 599. Baker v. Hall (15 Iowa, 277), 202. Baker v. Henderson (24 Wis. 509), 1242, 1389. Baker v. Higgins (21 N. Y. 397), 513, 1162. Baker v. Holt (56 Wis. 100), 227, 229. Baker v. Johnson (37 Iowa, 186), 233. Baker v. Kennett (54 Mo. 82), 105, 109, 121. Baker v. Robbins (2 Denio, 136), 915. Baker v. Taylor (54 Minn. 71), 156. Baker v. Todd (6 Tex. 273), 1442. Baker v. Woodruff (2 Barb. 523), 22. Balderston v. Rubber Co. (18 R. 1. 338), 47, 49. Baldey v. Parker (2 B. & C. 37), 307, 349, 386. Baldwin v. Crow (86 Ky. 679), 578. Baldwin v. Doubleday (59 Vt. 7), 527, 529. Baldwin v. Farnsworth (10 Me. 414), 1389. Baldwin v. Hill (4 Kan. App. 168), 649. Baldwin v. McKay (41 Miss. 358), 714. Baldwin v. Van Deusen (37 N. Y. 487), 1259, 1260. Baldwin v. Van Wagner (33 W. Va. 293, 603. Baldwin v. Williams (3 Mete. 365), 331. Baldwin v. Young (47 La. Ann. 1466), 647. Ballantyne v. Appleton (82 Me. 570), 524, 534, 556. Ballard v. Burgett (40 N. Y. 314), 599. Ballard v. Winter (25 Vt. 581), 649. Ballentine v. Robinson (46 Pa. St. 177), 754, 1696. lx TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Ballou v. Billings (136 Mass. 307), 1087, 1089. - Balte v. Bedemiller (— Oreg. — ), 1798. Baltimore & Ohio R. Co. v. Brydon (65 Md. 198), 668, 672, 673. Bamberger v. Schoolfield (160 U. S. 149). 955. Banchor v. Mansel (47 Me. 58), 1013, 1019, 1027, 1048. Bancroft v. Blizzard (13 Ohio, 30), 928. Bancroft v. San Francisco Tool Co. (120 CaL 228), 1349. Bancroft v. Scribner (44 U. S. App. 480), 175. Bangor Electric Co. v. Robinson (52 Fed. R. 520), 162. Bangs v. Hornick (30 Fed. R. 97), 1031, 1032. Banker v. Banker (63 N. Y. 409), 69. Bank of Atchison v. Byers (139 Mo. 627), 875, 1840. Bank of Beloit v. Beale (34 N. Y. 473), 908, 909. Bank of Huntington v. Napier (41 W. Va. 481), 1198. Bank of Little Rock v. Frank (63 Ark. 16), 909. Bank of Montgomery v. Reese (2 Casey, 143), 1743. Bank of Newport v. Hirsch (59 Ark. 225), 16G. Bank of Rochester v. Jones (4 N. Y. 497), 780, 788, 792, 1506. Bank of St. Albans v. Farmers' Bank (10 Vt. 141), 1303. Bank v. Cummings (89 Tenn. 609), 774. Bank v. Curren (36 Iowa, 555), 1027. Bank v. Danforth (14 Gray, 123), 049. Bank v. Gifford (79 Iowa, 300). 1423. Banks v. Everest (35 Kan. 687), 175. Banner, Ex parte (2Ch. Div. 278>,787. Bannerman v. White (10 C. B., N. S., 844), 861, 863, 1225, 1333. Bannon v. Aultman (80 Wis. 307). 1286, 1385. Baptist Church v. Bigelow (16 Wend. 28), 426. Barber v. Meyerstein (L. R. 4 H. L. 317), 166. Barclay v. Smith (107 111. 349), 197. Barclay v. Tracy (5 Watts & Serg. 45), 349. Barden v. Montana Club (10 Mont. 330), . Baring v. Corrie (2 B. & Aid. 137), 1451, 1452. Barker v. Dinsmore (72 Pa. St. 427), 149. 269, 887. Barker v. Freeland (91 Tenn. 112), 499. Barker v. Hibbard (54 N. H. 539), 132. Barker v. Keown (67 111. App. 433), 887. Barker v. Mann (5 Bush, 672), 1742, 1755, 1762, 1763. Barker v. Turnbull (51 111. App. 226), 1391. Barker v. Walbridge (14 Minn. 469), 1437. Barker v. Windle (6 E. & B. 675), 861. Barksdale v. Brown (1 N. & McC. 517), 1264. Barlow v. Lambert (28 Ala. 710), 1264. Barnard v. Backhaus (52 Wis. 593), 1031, 1032, 1036. Barnard v. Campbell (55 N. Y. 456), 154, 156, 158, 165, 908, 923, 924. Barnard v. Crosby (6 Allen, 327), 1540. Barnard v. Eaton (2 Cush. 295), 202. Barnard v. Kellogg (10 Wall. 383), 832, 83:3, 1264, 1311, 1320, 1322, 1323, 1326, 1334, 1392. Barudt v. Frederick (78 Wis. 1), 1841. Barnes v. Barnes (6 Vt. 388), 336. Barnes v. Brown (32 Mich. 146). 948. Barnes v. Brown (130 N. Y. 372). 1744. Barnes v. Burns (81 Wis. 232), 1235. Barnes v. Hardman (15 Tex. 366), 150. TABLE OF CASES CITED. ixi References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Barnes v. Morse (38 I1L App. 274). 30. Barnes v. McCrea (75 Iowa, 267), 29. Barnes v. Smith (159 Mass. 344), 1031. Barnes v. Toye (L. R. 13 Q. B. Div. 410), 127, 128, 132, 133. Barnes Safe & Lock Co. v. Block Bros. Tobacco Co. (38 W. Va. 158), 49. Barnet v. Smith (30 N. H. 256), 1433. Barnett v. Speir (93 Ga. 762), 921. Barney v. Brown (2 Vt. 374), 1193. Barney v. Dewey (13 Johns. 224), 1798. Barney & Smith Mfg. Co. v. Hart (8 Ky. Law R. 223', 578. Barr v. Gibson (3 M. & W. 390), 1155, 1208. Barr v. Logan (5 Harr. 52), 1682. Barr v. Meyers (3 Watts & Serg. 295), 1125. Barr v. Reitz (53 Pa. St. 256), 380, 960, 964, 988. Barrett v. Goddard (3 Mason, 107), 964, 965, 1198. Barrett v. Hall (1 Aik. 269), 1245. Barrett v. Kelley (66 Vt. 515), 649. Barrett v. Pritchard (2 Pick. 512), 554 Barrett v. Strenton (2 Ala. 181), 818. Barrett v. Veneer Works (110 Midi. 6), 1709. Barrie v. Earle (143 Mass. 1), 1164. Barrington v. Skinner (117 N. C. 47), 603. Barron v. Alexander (27 Mo. 530), 869, 935. Barrow, Ex parte (6 Ch. Div. 783), 1583. Barrow v. Barrow (108 Ind. 345 >, 973. Barrow v. Paxton (5 Johns. 258), 960. Barrow v. Window (71 111. 214). 492, 493. Barry v. Cavanaugh (127 Mass. 394), 1690. Bartel v. Brown (104 Wis, 493), 1453. Bartholomew v. Bentley (15 Ohio, 659). 878. Bartholomew v. Bushnell (20 Conn. 271), 1810. Bartholomew v. Finnemore (17 Barb. 428), 109. Bartholomew v. Markwick (15 C. B. 710), 1097. Bartlett v. Blake (37 Me. 124). 960. Bartlett v. Board of Education (59 111. 364), 167. Bartlett v. Drake (100 Mass. 174), 118. Bartlett v. Hoppock (34 N. Y. 118), 1242, 1311, 1314, 1349. Bartlett v. Jewett (98 Ind. 206), 749, 1183. Bartlett v. Smith (4 McCrary, 388), 1031. Bartlett v. Williams (1 Pick. 288), 963. Barton v. Faherty (3 G. Greene, 327), 1302. Barton v. Hunter (59 Mo. App. 610), 1433. Barton v. Kane (17 Wis. 37), 746, 1158, 1392. Barton v. McKelway (22 N. J. L. 165), 1128, 1139, 1188. Bartram v. Farebrother (4 Bing. 579), 1577. 1591. Bar wick v. Buba (2 C. B. 563), 1089. Bascom v. Danville Stove Co. (182 Pa St. 427), 1402. Bass v. Pease (79 111. App. 308), 964. Bass v. Walsh (39 Mo. 192), 380. 527. Bassett v. Brown (105 Mass. 551), 915, 916, 917. Bassett v. Camp (54 Vt. 232), 1193. Bassett v. Collis (2 Camp. 523), 1270. Bassett v. Lockard (60 111. 164), 1307. Bassett v. McKenna (52 Conn. 437), 973. Bassinger v. Spangler (9 Colo. 175), 964. Bastress v. Chickering (18 111. App. 198), 50. Batchelder, In re (2 Low. 245), 1493, 1514. Batchelder v. Carter (2 Vt 168), 960. lxii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol H, §§ 7PR-1850. Batchelder v. Queen Ins. Co. (135 Mass. 449), 812. Batchelder v. Sanborn (66 N. H. 192), 599, 603, 604. Batchelder v. White (80 Va. 103), 953. Batsman v. Robinson (12 Neb. 508), 999. Bates v. Ball (72 111. 108), 86. Bates v. Chesebro (32 Wis. 594, 36 Wis. 636), 419. Bates v. C mkling (10 Wend. 389), 502. Bates v. Coster (1 Hun, 400), 305. Bates v. Elmer Glass Mfg. Co. (— N. J. Eq. — ), 492. Bates v. Smith (83 Mich. 347), 199, 200. Bates v. Stansell (19 Mich. 91), 1787. Bauendahl v. Horr (7 Blatchf. 548), 554, 633. Baughman v. Gould (45 Mich. 481), 863, 875. Baum v. Stevens (2 Ired. 411), 862, 1229, 1240. Bauman v. James (3 Ch. 508), 426. Baumbach Co. v. Gessler (79 Wis. 567). 1344 Baxendale v. London, etc. Ry. Co. (L. R. 10 Ex. 35), 1769. Baxter v. Earl of Portsmouth (2 C. & P. 178), 84. Baxter v. Sherman (73 Minn. 434),268. Bayley v. Taber (5 Mass. 286), 1057. Baylis v. Davis (47 Iowa, 340), 49. Baylis v. Dinely (3 M. & Sel. 447), 124. Bayliss v. Hennessey (54 Iowa, 11), 1384. Bayly v. Schofield (1 M. & Sel. 338), 1540. Bayonne Knife Co. v. Umbenhauer (107 Ala. 496), 1539, 1571. Bazeley v. Forder (L. R. 3 Q. B. 559), 186. Beach's Appeal (58 Conn. 464), 588, 590, 614, 619, 620, 625. Beach v. Boynton (26 Vt. 725), 970. Beadles v. McElrath (85 Ky. 231), 1031. Beadles v. Ownby (16 Lea. 424), 1031. Beall v. McGehee (57 Ala. 438), 872. Beals v. Guernsey (8 Johns. 446), 960. Beals v. Olmstead (24 Vt. 114), 1237, 1344. Beals v. See (10 Pa. St. 56), 74. Beam v. Blanton (3 Ired. Eq. 59), 1482. Bean v. Burbank (16 Me. 458), 263. Bean v. Smith (2 Mass. 252), 978. Beardsley v. Beardsley (138 U. S. 262), 564, 577. Beardsley v. Hotchkiss (26 N. Y. 207), 107. Beardsley v. Smith (61 111. App. 340), 210, 1702. Beams, In re (2 Fed. Cas. 1190), 1586. Beasley v. Beasley (180 111. 163), 83. Beasley v. Bray (98 N. C. 266), 952. Beasley v. Huyett & Smith Mfg. Co. (92 Ga. 273), 935, 1396. Beauchamp v. Archer (58 Cal. 431). 1084. Beaumont v. Brengeri (5 Com. B. 301), 361, 385. Beaumont v. Crane (14 Mass. 400), 988. Beaupre v. Telegraph Co. (21 Minn. 155), 224 Beaver v. Beaver (117 N. Y. 421), 12. Beavers v. Lane (6 Duer, 238), 891. Becherer v. Asher (23 Ont. App. 202), 188. Beck v. Blue (42 Ala. 32), 689, 690. Beck v. Sheldon (48 N. Y. 365), 1395. Becker v. Hallgarten (86 N. Y. 107), 1559, 1563. Becker v. Holm (89 Wis. 86), 373. Becker v. Smith (59 Pa. St. 469), 32, 580. Beck with v. Burrough (14 R, L 366), 945. Beckwith v. Cheever (21 N. H. 41), 229, 214. Beckwith v. Farnum (5 R. I. 230), 1430. TABLE OF CASES CITED. lxiii References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Beokwith v. Talbot (2 Colo. 639), 428. Bedell v. Kowalsky (99 Cal. 236), 1158, 1374. Bedell v. Wilder (65 Vt. 406), 277. Bedford v. Hunt (1 Mason, 303), 834 Bedford v. Penny (58 Mich. 424), 953. Bedinger v. Wharton (27 Gratt. 827), 109. Bedsworth v. Bowman (104 Mo. -44), 139. Beebe v. Hatfield (67 Mo. App. 609), 902. Beebe v. Knapp (28 Mich. 53), 863, 875. Beebe v. Robert (12 Wend. 413), 1320. Beecher v. Mayall (16 Gray, 376), 964. Beeckman v. Montgomery (14 N. J. Eq. 106), 973. Beede v. Lamprey (64 N. H. 510), 1786. Beeler v. Young (1 Bibb, 519), 123, 124, 131, 132. Beeman v. Banta (118 N. Y. 538), 1822. Beeman v. Buck (3 Vt. 53), 1237, 1810. Beeman v. Lawton (37 Me. 543), 39. Beer v. Walker (46 L. J. C. P. 677), 1265, 1298, 1358. Beers v. Crowell (Dud. 28), 331. Beers v. Williams (16 I1L 69), 1344. Beesley v. Hamilton (50 111. 88), 878. Beetle v. Anderson (98 Wis. 5), 875, 878, 892, 932. Beggs v. Bart-els ( — Conn. — ), 650. Begley v. Morgan (15 La. 162), 380. Behn v. Burness (1 B. & S. 877), 861. Behn v. Burness (3 B. & S. 751), 1075, 1145. Beh rends v. Beyschlag (50 Neb. 304), 1408. Behrens v. McKenzie (23 Iowa, 333), 73,74. Beidler v. Crane (135 111. 92), 952, 978. Beirne v. Dord (5 N. Y. 95), 1212, 1320, 1322, 1325, 1326. Beirne v. Dunlap (8 Leigh, 514), 16. Belcher v. Costello (122 Mass. 189), 937. Belcher v. Sellards (19 Ky. L. 157), 1374, 1389. Belding v. Frankland (8 Lea, 67), 901, 903, 924. Belfast, etc. Ry. Co. v. Unity (62 Me. 148), 233. Belfield v. National Supply Co. (189 Pa. St. 189), 268. Belknap v. Bender (75 N. Y. 446), 1070. Bell v. Campbell (123 Mo. 1) 1000. Bell v. Ellis (33 Cal. 620), 906. Bell v. Hoffman (92 N. C. 273), 1083. Bell v. Moss (5 Whart. 189), 1537. Bell v. McCloskey (155 Pa St. 319), 964. Bell v. Offut (10 Bush. 632), 1643. Bell v. Reynolds (78 Ala. 511), 1763, 1774, 1824. Bellas v. Hays (5 S. & R. 427), 834. Bellefontaine v. Vassaux (55 Ohio St. 323), 774, 777, 779. Belleville Pump Works v. Samuel- son (16 Utah. 234), 895, 897, 921. Bellows v. Wells (36 Vt. 599), 964, Belote v. Morrison (8 Minn. 62), 40. Belser v. Tuscumbia Banking Co. (105 Ala. 514), 138. Belshaw v. Bush (11 C. B. 191), 1466. Bement v. Smith (15 Wend. 493), 754,- 1187. Bemis v. Leonard (118 Mass. 502), 1136. Benedict v. Bachelder (24 Mich. 425), 1057. Benedict v. Field (4 DuQr, 154), 052. Benedict v. Field (16 N. Y. 595), 1430. Benedict, etc. Mfg. Co. v. Jones (64 Mo. App. 218), 485, 492. Benedict v. Schaettle (12 Ohio St. 515), 1540, 1542, 1543. Benford v. Schell (55 Pa. St. 393), 380, 964. Benham v. Bishop (19 Conn. 330), 121. Beninger v. Corwin (24 N. J. L. 257), 869. Benjamin v. Benjamin (15 Conn. 347), 178. lxiv TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Benjamin v. Madden (94 Va. 66), 965. Benner v. Puffer (114 Mass. 376), 564, 583, 599. Bennett v. Brumfitt (L. R. 3 C. P. 28), 451. Bennett v. Buchan (76 N. Y. 386), 1272. Bennett v. Collins (52 Conn. 1), 121. Bennett v. Gibbons (55 Conn. 450), 879. Bennett v. Gillette (3 Minn. 423), 189. Bennett v. Hull (10 Johns. 364), 328. Bennett v. McLaughlin (13 111. App. 349), 120. Bennett v. O'Fallon (2 Mo. 69), 184. Bennett v. Scutt (18 Barb. 347), 336. Bensley v. Bignold (5 B. & Aid. 335), 1045. Bent v. Cobb (9 Gray, 397), 461, 462. Bent v. Hoxie (90 Wis. 625), 603. Bent v. Manning (10 Vt. 225), 131. Bentall v. Burn (3 B. & C. 423), 387, 524, 964, 1133, 1493. Benton v. Fay (64 111. 417), 1790, 1792. Benton v. Snyder (22 Minn. 247), 960. Bergan v. Magnus (98 Ga. 514), 543. Bergeman v. Railroad Co. (104 Mo. 77), 774, 779. Berger v. State (50 Ark. 20), 741, 774, 777. Bergh v. Warner (47 Minn. 250), 183. Berkey & Gay Furn. Co. v. Hascall (123 Ind. 502), 1774, 1792. Berkshire Glass Co. v. Walcott (2 Allen, 227), 1411. Berkson v. Heldman (58 Neb. 595), 898. Bernard v. Taylor (23 Oreg. 416), 999, 1030. Berndtson v. Strang (L. R. 4 Eq. 481), 1547, 1548, 1561. Bernhardt v. Walls (20 Mo. App. 206), 331. Bernshouse v. Abbott (16 Vroom, 531), 1447, 1451. Berolles v. Ramsay (Holt, N. P. 77), 132. Berry v. En sell (2 Gratt. 333), 963. Berry v. Griffin (10 Md. 27), 1423, 1425. Berry v. Insurance Co. (132 N. Y. 49), 914 Berry v. Monroe (57 Mich. 187), 39. Berry v. Nail (54 Ala. 446), 1137. Berry v. Shannon (98 Ga. 459), 1817, 1821. Bertelson v. Bower (81 Ind. 512), 492, 714. Berthold v. Seevers Mfg. Co. (89 Iowa, 506), 1350, 1380. Bertoli v. Smith (69 Vt. 425), 1451, 1452. Best v. Bander (29 How. Pr. 489), 1051. Best v. Flint (58 Vt. 543), 1214, 1335, 1340, 1344, 1393, 1395, 1811. Best v. Osborne (Ryan & Moo. 290), 1270. Bestor v. Hickey (71 Conn. 181), 1032. Bethell v. Clark (20 Q. B. Div. 615), 1576. Bethel Steam Mill Co. v. Brown (57 Me. 9), 488, 528, 964, 1197. Bettini v. Gye (1 Q. B. Div. 183), 1065. Betts v. Lee (5 Johns. 348), 639. Beurmann v. Van Buren (44 Mich. 496), 909, 952. Beverly v. Lincoln Gas Co. (6 A. & E. 829). 682, 1370. Bianchi v. Nash (1 M. & W. 545), 682, 1370. Bibb v. Allen (149 U. S. 481), 434, 1031, 1039. Bibb v. Freeman (59 Ala. 612), 970, 971. Bibb v. Snodgrass (97 Ala. 459), 1433. Bickel v. Sheets (24 Ind. 1), 1013, 1023. Bickford v. First Nat. Bank (42 111. 238). 1434. Bickley v. Keenan (60 Ala. 293), 451. Bicknall v. Waterman (5 R. I. 43), 1430. TABLE OF CASKS CITED. lxv References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 708-1850. Bidault v. Wales (20 Mo. 546), 902, 924. Biddinger v. Wiland (67 Md. 339), 953. Biederman v. O'Connor (117 I1L 493), 100. Bierce v. Stocking (11 Gray, 174), 834. Bierman v. City Mill Co. (151 N. Y. 482), 1281, 1346. Bigelow v. Benedict (70 N. Y. 202), 203, 1031, 1032. Bigelow v. Kinney (3 Vt. 353). 95, 100. Bigelow v. Legg (102 N. Y. 652), 1690. Bigelow v. Walker (24 Vt, 149), 175. Bigg v. Whisking (14 C. B. 195), 349. Bigge v. Parkinson (7 H. & N. 955), 1261, 1340, 1342, Bigley v. Risher (63 Pa. St. 152), 205. Biggs v. Barry (2 Curtis, 259), 902, 906, 1559. Biggs v. Perkins (75 N. C. 397), 1272. Bill v. Bament (9 M. & W. 36), 424, 1493. Billin v. Henkel (9 Colo. 394), 365. Billing v. Pilcher (7 B. Mon. 458), 184. Billings v. Mason (80 Me. 496), 1449. Billingslea v. Smith (77 Md. 504), 1031. Billingsley v. White (59 Pa, St. 464), 964, 966. Bindley v. Martin (28 W. Va. 773), 9(50. Bingham v. Vandergrift (93 Ala. 283), 583. Binkley v. Forkner (117 Ind. 176), 647. Binney v. Annan (107 Mass. 94), 1729. Birch v. Linton (78 Va. 584), 95. Birchinell v. Hirsch (5 Colo. App. 500), 906. Bird v. Boulter (4 B. & Ad. 443), 462. Bird v. Brown (4 Exch. 786), 1537, Bird v. Decker (64 Mo. 550), 451. Bird v. Muhlinbrink (1 Rich. 199), 322. 324 Bird v. Munroe (66 Me. 337), 424. Honey (34 Tex. 245), 1013, Minderhout ( — Ala. — ), Bird Co. v. Hurley (87 Me. 579), 138. Birge v. Edgerton (28 Vt, 291), 964. Birks v. French (21 Kan. 238), 1052. Bisbee v. McAllen (39 Minn. 143), 1045, 1046, 1050. Bish v. Beatty (111 Ind. 403), 937. Bishop 1022. Bishop 634. Bishop v. Rutledge (7 J. J. Marsh. 217), 692. Bishop v. Small (63 Me. 12), 937. Bishop v. Stewart (13 Nev. 25), 914. Bishop v. Weber (139 Mass. 41 1), 878. Bissell v. Balcom (39 N. Y. 275), 420. Bissell v. Hopkins (3 Cow. 166), 980. Bissell v. Terry (69 111. 184), 257. Black v. Del bridge, etc. Co. (90 Mich. 56), 1377. Black v. Nease (37 Pa. St. 433), 973. Black v. Wabash Ry. Co. (Ill 111. 351), 266. Black v. Webb (20 Ohio, 304), 41, 634. Black River Lumber Co. v. Warner (93 Mo. 374), 1676, 1694, 1696, 1702. Blackburn v. Reilly (47 N. J. L. 290), 114a Blackett v. Royal Exch. Assur. Co. (2 Cr. & J. 249), 1264. Blackford v. Christian (1 Knapp. 77), 65. Blackman v. Pierce (23 Cal. 508), 1579. Blackiner v. Stone (51 Ark. 489). 1729. Blackmore v. Fairbank (79 Iowa, 288), 1242, 1258, 1260, 1344. Blacknall v. Rowland (118 N. C. 418), 1801. Blackshear v. Burke (74 Ala. 239), 1482. Blackwood v. Packing Co. (76 Cal. 212), 6, 519, 520, 1340. Blair v. Smith (114 Ind. 114), 950. Blair v. Wilson (28 Gratt. 165 , 1435. Blake v. Blackley (109 N. C. 257). 901. Blake v. Graves (18 Iowa, 312), 963. lxvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Blakely v. Blakely (33 N. J. Eq. 502), 83. Blakely v. Patrick (67 N. C. 40), 714 Blakeny v. Goode (30 Ohio St. 350), 1729. Blakeslee v. Rossman (43 Wis. 116), 960. Blanchard v. Child (7 Gray, 155). 599. Blanchard v. Cooke (144 Mass. 207), 583, 757. Blasdale v. Babcock (1 Johns. 517), 1798. 1834. Blass v. Anderson (57 Ark. 483), 1053. Bleakley v. White (4 Paige, 654). 1466. Bleecker v. Smith (13 Wend. 530), 1073. Blenkinsop v. Clayton (7 Taunt. 597), 405. Bligh v. James (6 Allen, 570), 1004. Blinn v. Chester (5 Day, 359), 1420. Bliss v. Bliss (7 Bosw. 339), 1452. Bliss v. Clark (16 Gray, 60), 175, 941. Bliss v. Cutler (19 Barb. 9), 1459. Bliss v. Lawrence (58 N. Y. 442), 200. Bliss v. Negus (8 Mass. 46), 834. Bliss Co. v. U. S. Incan. Gas L. Co. (149 N. Y. 300), 1123, 1124, 1130. Block v. McMurray (56 Miss. 217), 998, 1000, 1054. Block Bros. v. Maas (65 Ala. 211), 702. Blodget v. Safe Co. (76 Mich. 538), 1265. Blood v. Enos (12 Vt. 625), 804. Blood v. Wilkins (43 Iowa, 568), 1755. Bloom v. Moy (43 Minn. 397), 974. Bloom v. Richards (2 Ohio St. 387), 1052. Bloomer v. Dau 122 Mich, 522), 1453. Bloomingdale v. Memphis, etc. R. Co. (6 Lea, 616), 1540, 1606. Blowers v. Sturtevant (4 Denio, 46), 184. Bloxam v. Morley (4 B. & Cr. 951), 1513. Bloxam v. Sanders (4 Barn. & C. 941), 1119, 1129, 1513, 1515. Bloxsome v. Williams (3 B. & C. 232), 1052. Bloyd v. Pollock (27 W. Va. 75), 733, 1189. Bluegrass Cordage Co. v. Luthy (98 Ky. 583), 1765, 1776. Blum v. Marks (21 La. Ann. 268), 1542. Blumenthal v. Stable (98 Iowa. 722), 1774. Blumer v. Pollak (18 Fla. 707), 138. Blunt v. Walker (11 Wis. 334), 1428. Blydenburgh v. Welsh (Bald. 331), 208, 1129. Board of Trustees v. Anderson (63 Ind. 367), 97. Boardman v. Cutter (128 Mass. 388), 331. Boardman v. Keeler (1 Aik. 158), 980. Boardman v. Sill (1 Camp. 410), 1502. Boardman v. Spooner (13 Allen, 353), 365, 387, 441, 451, 964, 1254. Boaz v. Schneider (69 Tex. 128), 519. Bock v. Healey (8 Daly, 156), 1389. Bog Lead Co. v. Montague (10 C. B. 481), 371, 730. Bogert v. Chrystie (24 N. J. L. 57), 1309. Bogy v. Rhodes (4 Greene, 133), 502. Bohtlingk v. Inglis (3 East, 381), 1526, 1548, 1549, 1577. Boles v. Merrill (173 Mass. 491 \ 937, 942. Bolin v. Huffnagle (1 Rawle, 1), 1548. Bollinger v. Wilson (76 Minn. 262), 1028. Bollman v. Burt (61 Md. 415), 1148. Bollman v. Lucas (22 Neb. 796), 953. Bolton v. Railway Co. (L. R. 1 Com. PI. 439), 1527, 1559, 1591. Bolton v. Riddle (35 Mich. 13), 1129, 1189. Bolton Partners v. Lambert (41 Ch. Div. 295), 1537. Bomberger v. Griener (18 Iowa, 477), 1396. TABLE OF CASES CITED. Lxvii References are to sections: Vol. I, §§ 1-797; Vol II, §§ 79S-1850. Bond v. Bond (7 Allen, 1), 83. Bond v. Bunting (78 Pa. St, 210), 9G0. 988. Bond v. Clark (35 Vt. 577), 1237. Bond v. Gibson (1 Camp. 185), 145. Bond v. Green wald (4 Heisk. 453), 512. Bond v. McMahon (94 Mich. 557), 1426. Bonesteel v. Flack (41 Barb. 435 . 597. Bongard v. Block (81 111. 186), 970. Bonham Cotton Comp. Co. v. McKel- lar (86 Tex. 694), 1384. Bonner v. Marsh (10 Sm. & M. 376), 736, 752, 1173. Bonewell v. Jenkins (8 Ch. D. 70), 235. Boody v. McKenney (23 Me. 525), 107, 109, 118, 121. Booker v. Jones (55 Ala, 266), 203. Bool v. Mix (17 Wend. 119), 95, 106, 107. Boone v. Eyre (1 H. Bl. 273), 861. Boorman v. Jenkins (12 Wend. 566), 1320, 1322, 1325, 1326, 1836. Booth v. Hodgson (6 T. R, 405), 1012, 1015. Booth v. Rolling Mill Co. (60 N. Y. 487), 1103, 1138, 1766, 1770, 1791, 1831, 1833. Booth v. Smith (3 Wend. 66), 1420. Boothby v. Plaisted (51 N. H. 436), 671, 730, 731, 739, 1028, 1320. Boothby v. Scales (27 Wis. 626), 816, 818. 1155, 1208, 1240, 1280, 1281, 1285, 1805. Borden v. Croak (131 111. 68), 202. Bordwell v. Collie (45 N. Y. 494), 1796. Borland v. Guffy (1 Grant's Cas. 394), 232. Borland v. Nevada Bank (99 Cal. 89), 204. Born v. First Nat. Bank (123 Ind 178), 1434. Born v. Shaw (29 Pa. St. 288), 649, 960, 964. Borrekins v. Bevan (3 Rawle, 23), 1334, 1393. Borries v. Imperial Bank (L. R, 9 Com. P. 38), 1451. Borries v. Hutchinson (18 C. B., N. S., 445), 1770. Borrowscale v. Bosworth (99 Mass. 378), 373. Borthwick v. Young (12 Out. App. 671), 1322. Bosshardt & Wilson Co. v. Crescent Oil Co. (171 Pa. St. 109), 142, 239, 252, 253. Bostock v. Jardine (3 Hurl. & Colt, 700), 1158. Boston Ice Co. v. Potter (123 Mass. 38), 267, 268. Boston, etc. R. R. Co. v. Bartlett (3 Cush. 224), 244. Boston & Albany R, R. Co. v. Rich- ardson (135 Mass. 473», 1302. Bust wick v. Leach (3 Day, 470), 331, 337. Boswell v. Green (1 Dutch. 390), 206, 499, 527. Bothwell v. Farwell (74 Iowa, 324), 1265. Bottenberg v. Nixon (97 Ind. 100), 25. Bouchell v. Clary (3 Brev. 194), 122, 124. Boulter v. Arnott (1 C. & M. 333), 1485. Boulton v. Jones (2 Hurl. & Nor. 564), 207. Bourn v. Davis (76 Me. 223), 937. Bourne v. Seymour (16 Com. B. 337), 1169. Boutelle v. Melendy (19 N. H. 196), in.") 7. Bowdell v. Parsons (10 East, 359), 1097. Bowditch v. New England Life Ins. Co. (141 Mass. 292), 1045, 1046. Bowen v. Burk (13 Pa. St. 146), 549. Bowen v. Frick (75 Ga. 786), 619. Bowen v. Hoskins (45 Miss. 183), 971. lxviii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-79;; Vol II, §§ 798-1850. Bowen v. Lansing Wagon Works (91 Tex. 385), 603. Bowen v. McCarthy (85 Mich. 26), 228, 234. Bowen v. Sullivan (62 Ind. 287), 273, 274. Bowers v. Bowers (95 Pa. St. 477), 336. Bowersox's Appeal (100 Pa. St. 434), 1540. Bowery Nat. Bank v. Wilson (122 N. Y. 478), 200. Bowes v. Shand (2 App. Cas. 455), 653, 1138, 1139, 1145, 1155. Bowker v. Bradford (140 Mass. 521), 138. Bowker v. Hoyt (18 Pick. 555), 1161, 1162. Bowlby v. Bell (3 C. B. 284), 329. Bowman v. Carithers (40 Ind. 90 >, 879. Bowman v. Clemmer (50 Ind. 10), 1265, 1271. Bowman v. Conn (8 Ind. 58), 345, 352. Bowman v. Taylor (2 Ad. & El. 278), 834. Bowman Distilling Co. v. Nutt (34 Kan. 724), 1027. Bowry v. Bennet (1 Camp. 348), 1012, 1020. Bowser v. Birdsell (49 Mich. 5), 1673. Box v. Insurance Co. (15 Grant's Ch. 337), 714. Boyce v. Smith (9 Gratt. 704), 61. Boyd v. Anderson (1 Overt. 438), 1303. Boyd v. De la Montagnie (73 N. Y. 498), 948. Boyd v. Dun lap (1 Johns. Ch. 478), 957. Boyd v. Eaton (44 Me. 51), 1004. Boyd v. Gunnison (14 W. Va. 1), 1127, 1129. Boyd v. Hanson (41 Fed. R. 174), 1031. Boyd v. Lofton (34 Ga. 494), 627. Boyd v. Shiffer (156 Pa. St. 100), 892, 905, 909. Boyd v. Wilson (83 Pa. St. 319), 1320. Boy dell v. Drummond (11 East, 142), 426. Boyden v. Boyden (9 Met. 519), 121. Boyer v. Berryman (123 Ind. 451), 72, 77. Boyington v. Sweeney (77 Wis. 55), 1380. Boyle v. Maroney (73 Iowa, 70), 953. Boyles v. Overby (11 Gratt. 202), 1817. Boynton v. Page (13 Wend. 425), 1052. Boynton v. Veazie (24 Me. 286 ;, 380, 528, 964. Brabin v. Hyde (32 N. Y. 519), 416. Brackett v. Edgerton (14 Minn. 174), 1736. Brackett v. Hoyt (29 N. H. 264), 1047. Braddock Glass Co. v. Irwin (153 Pa. St. 440), 733, 1184. Bradeen v. Brooks (22 Me. 463), 483. Bradford v. Beyer (17 Ohio St. 388), 947. Bradford v. Bush (10 Ala, 386), 862, 1229, 1281, 1294. Bradford v. Manley (13 Mass. 139), 1320, 1327, 1329. Bradford v. Marbury (12 Ala. 520), 740. Bradley v. Harwi (43 Kan. 314), 1423. Bradley v. Holdsworth (3 M. & W. 422), 329. Bradley v. King (44 111. 339), 1148. Bradley v. Obear (10 N. H. 477), 148. Bradley v. Poole (98 Mass. 169), 936. Bradley v. Pratt (23 Vt. 378), 122, 123, 125. Bradley v. Rea (14 Allen, 20), 207, 1055. Bradley v. Rea (103 Mass. 188), 207. Bradley v. Wheeler (44 N. Y. 495), 519. Bradley Mfg. Co. v. Raynor (70 111. App. 639), 49. Bradshaw v. Thomas (7 Yerg. 497), 564. Bradwaj' v. Groenedyke (153 Ind. 508), 1424. Brady v. Cassidy (145 N. Y. 171), 1078, 1161. TABLE OF CASES CITED. lxix References are to sections: Vol. Brady v. Cole (164 111. 116), 936. Brady v. Harrahy (21 Up. Can. Q. B. 340), 417. Brady v. Todd (9 C. B. 592), 1294. Brady v. Yost (— Idaho, — ), 1724, 1727, 1728. Bragg v. Cole (6 J. B. Moore, 114), 1102. Bragg v. Morrill (49 Vt. 45), 1314, 1346. Brainerd v. Hey drick (32 How. Pr. 97), 451, 1003, 1004 Braley v. Powers (92 Me. 203), 875, 936. Branan v. Atlanta R Co. (108 Ga. 70), 1563. Branch v. Palmer (65 Ga. 210), 1148. Brand v. Focht (1 Abb. App. Dec. 185), 355. Brand v. Lock (48 111. App. 390), 1032. Brandas v. Barnett (3 C. B. 519), 468. Brandas v. Barnett (12 CI. & Fin. 787), 468. Brandon v. Brown (106 111. 519), 109, 1307. Brandt v. Bowlby (2 B. & Ad. 932), 735, 779, 782, 787. Brandt v. Lawrence (1 Q. B. D. 344). 1141, 1145. Branson v. Turner (77 Mo. 489), 816, 1272, 1273, 1805. Brantley v. Thomas (22 Tex. 270), 1320, 1340. Brantley v. Wolf (60 Miss. 420), 110. Branton v. Griffits (L. R. 2 C. P. Div. 212), 1199. Brauer v. Shaw (168 Mass. 198), 247. Braun v. Keally (146 Pa. St. 519), 46, 49, 1027. Brawley v. United States (96 U S. 168), 1145, 1166, 1167, 1169. Brawn v. Keller (43 Pa. St. 104), 960, 964, 966. Brayshaw v. Eaton (5 Bing. N. C. 231), 127, 12a I, §§ 1-797; Vol. H, §§ 798-1850. Brayton v. Harding (56 111. App. 362), 624. Brechwald v. People (21 111. App. 213), 740. Breckenridge v. Ormby (1 J. J. Marsh. 239), 72, 93. Breckinridge v. Crocker (78 Cal. 529), 443. Breen v. Moran (51 Minn. 525), 1214, 1344. Breinig v. Meitzler (23 Pa. St. 156), 184 Breitung v. Lindauer (37 Mich. 217), 1423. Brent v. Green (6 Leigh, 16), 461. Brenton v. Davis (8 Blackf. 317), 1317, L344. Brett v. Carter (2 Low. 458), 202. Bretz v. Diehl (117 Pa. St. 589), 26, 1 15a Brewer v. Broad wood (22 Ch. Div. 105), 1096. Brewer v. Ford (54 Hun, 116), 633. Brewer v. Horst-Lachmund Co. ( Cal. — ), 437. Brewer v. Housatonic R. Co. (104 Mass. 593), 757, 1155. Brewer v. Salisbury (9 Barb. 511), 1190. Brewer v. Salt Ass'n (47 Mich. 526), 499, 516, 760. Brewing Ass'n v. Manufacturing Co. (81 Tex. 99), 604, 645. Brewster v. Bours (8 Cal. 502), 1428. Brewster v. Burnett (125 Mass. 68), 916. Brewster v. Carnes (103 N. Y. 556), 1453. Brewster v. Kitchel (1 Salk. 198), 1099. Brewster v. Van Lien (119 111. 554), 1786, 1787. Brewster v. Wooster (131 N. Y. 473), 629. Brick Pres. Church v. Mayor (5 Cowan, 538), 1099. Bricker v. Hughes (4 Ind. 146), 342,714 lxx TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Brickley v. Walker (68 Wis. 563), 138. Bridges v. Garrett (L. R. 5 C. P. 451), 1455, 1460. Bridgewater Iron Co. v. Enterprise Ins. Co. (134 Mass. 433), 275. Brigg v. Hilton (99 N. Y. 517), 1222, 1392, 1395, 1808. Briggs v. A Light Boat (7 Allen, 287), 759. Briggs v. Hunton (87 Me. 145), 1047, 1346. Briggs v. Lucas (86 Iowa, 202), 1826. Briggs v. Merrill (58 Barb. 389), 947. Briggs v. McCabe (27 Ind. 327), 107, 109. Briggs v. McEwen (77 Iowa, 303), 585. Briggs v. Parkman (2 Mete. 258), 960. Briggs v. Rumely Co. (96 Iowa, 202), 1251, 1385. Briggs v. Sizer (30 N, Y. 647), 1505. Briggs v. United States (143 U. S. 346), 485. Briggs v. Weston (36 Fla. 629), 960. Brigham v. Carlisle (78 Ala. 243), 1777. Brigham v. Hibbard (28 Oreg. 387), 731, 1293. Brigham v. Retelsdorf (73 Iowa, 712), 1320. Brighty v. Norton (3 B. & S. 305), 1416. Bristol Bread Co. v. Maggs (44 Ch. Div. 616), 252. Bristol Savings Bank v. Keavy (128 Mass. 298), 953. British Columbia Sawmill Co. v. Net- tleship (L. R. 3 C. P. 499), 750, 1770. British & Ames Mtg. Co. v. Tibballs (63 Iowa, 468), 1455. Britt v. Aylett (11 Ark. 475), 947. Brittain v. Crowthers (4 C. C. A. 341), 953. Britton v. Turner (6 N. H. 481), 1162. Broadwater v. Quarne (10 Mo. 277), 87. Broadwell v. Howard (77 111. 305), 166, 709, 964. Brock v. Rich (76 Mich. 644), 950. Brockhaus v. Schilling (52 Mo. App. 73), 939. Brockway v. Maloney (102 Mass. 308), 739. Broennenburgh v. Haycock (Holt, N. P. 630), 1270. Brogden v. Marriott (2 Bing. N. C. 473), 211. Brogden v. Metropolitan Ry. Co. (3 App. Cas. 666), 218, 235, 238. Bromberger v. Griener (18 Iowa, 477), 1232. Bronson v. Chapman (63 N. Y. 625), 331. Bronson v. Gleason (7 Barb. 472), 1124. Bronson v. Leach (74 Mich. 713), 1248. Brooker v. Scott (11 M. & W. 67), 132. Brooklyn Oil Refinery v. Brown (38 How. Pr. 444), 1137. Brookover v. Hurst (1 Met. 665), 947. Brooks v. Byam (2 Story, 525), 197. Brooks v. Hamilton (15 Minn. 26), 863. Brooks v. Hubbard (3 Conn. 58), 1440. Brooks v. Jameson (55 Mo. 505), 1446. Brooks v. Paper Co. (94 Tenn. 701), 902, 1410. Brooks v. Powers (15 Mass. 244), 960. Brooks v. White (2 Mete. 283), 1420. Brower v. Goodyer (88 Ind. 572), 905. Brower v. Lewis (19 Barb. 574), 1325. Brower v. Peabody (13 N. Y. 121), 166. Brown v. Adair (104 Ala. 652), 1050. Brown v. Bellows (4 Pick. 179), 212. Brown v. Bigelow (10 Allen. 242), 1270, 1272, 1818. Brown v. Billington (163 Pa. St. 76), 30, 580. Brown v. Blydenburgh (7 N. Y. 141), 1453. Brown v. Brooks (7 Jones, 93), 41. Brown v. Browning (15 R. I. 422), 1058. Brown v. Butchers' Bank (6 Hill, 443), 451. Brown v. Carter (5 Ves. Jr. 862), 955. TABLE OF CASES CITED. lxxi References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Brown v. Castles (11 Cush. 348), 937. Brown v. Church Co. (55 111. App. 615), 48. Brown v. Doyle (69 Minn. 543), 1251. Brown v. Duncan (10 B. & C. 93), 1046. 1051. Brown v. Dunckel (46 Mich. 29), 1423. Brown v. Edgington (2 Man. & Gr. 279), 1317, 1344, 1810, 1823. Brown v. Elkington (8 M. & W. 132), 1270. Brown v. Ellis (19 Ky. L. 2023), 1387. Brown v. Emerson (66 Mo. App. 63), 1818. Brown v. Fitch (43 Conn. 512), 599. Brown v. Foree (7 B. Mon. 357), 953. Brown v. Foster (113 Mass. 136), 665, 666. Brown v. Foster (108 N. Y. 387), 1391. Brown v. Hare (3 H. & N. 484), 740, 775, 787, 796. Brown v. Harmon (29 App. Div. 31), 967. Brown v. Haynes (52 Me. 580), 556, 585, 588, 597, 599, 630. Brown v. Hitchcock (28 Vt, 452), 23. Brown v. Johnson (10 Mees. & Wels. 331), 1135. Brown v. Lally ( — Minn. — ), 1447, 1448. Brown v. Leach. (107 Mass. 364), 880. Brown v. Montgomery (20 N. Y. 287), 869. Brown v. Mudgett (40 Vt. 68), 184. Brown v. Muller (L. R. 7 Ex. 319), 1746. Brown v. McClanahan (9 Baxt. 347), 451. Brown v. Norman (65 Miss. 369), 914, 918. Brown v. 0"Neal (95 Cal. 262), 960. Brown v. Pierce (97 Mass. 46), 908. 981, 1302, 1794. Brown v. Railroad Co. (33 Mo. 309), 17S. Brown v. Roland (92 Tex. 54), 334. Brown v. Sanborn (21 Minn. 402), 324, 352. Brown v. Scott (51 Pa. St. 357), 1435. Brown v. Sharkey (93 Iowa, 157), 1749. Brown v. Webb (20 Ohio, 389), 963. Brown v. Weldon (27 Mo. App. 251), 1272. Brown v. West (69 Vt. 440), 175. Brown v. Whipple (58 N. H. 229), 426, 428. Brown v. Woods (43 Tenn. 182), 1794. Brown Grocery Co. v. Beckett ( — Ky. ), 175. Brown & Haywood Co. v. Wunder (64 Minn. 450), 319. Brownell v. Chapman (84 Iowa, 504), L779, 1790. Brownell Car Co. v. Barnard (116 Mo. 667), 1482. Brownfield v. Johnson (128 Pa. St. 254), 716,1158. Browning v. Hamilton (42 Ala. 484), 714. Browning v. Simons (17 Ind. App. 45), 1633, 1690. Brownlee v. Bolton (44 Mich. 218), 1641. Brim's Appeal (55 Pa. St. 250), 1031, 1032. Bruce v. Pearson (3 Johns. 534), 242, 746, 1161. Bruce v. Ruler (2 Man. & Ry. 3), 869. Bruce v. Tolton (4 App. R. 144), 228. Bruggerman v. Hoerr (7 Minn. 337), 974. Brumbaugh v. Richcreek (127 Ind. 240), 81, 950. Brunswick v. Valleau (50 Iowa, 120), 1013, 1023. Brunswick, etc. Co. v. Hoover (95 Pa. St. 508), 600. Bryan v. Brazil (52 Iowa, 350), 1419. Bryan v. Lewis (Ry. & Moo. 386), 203. Bryan v. Robert (1 Strob. Eq. 335), 1719. lxxii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 7C8-1850. Bryans v. Nix (4 M. & W. 775), 728, 736. Bryant v. Booze (55 Ga. 438), 247. Bryant v. Crosby (36 Me. 562). 40. Bryant v. Crosby (40 Me. 9), 1242, 1247. Bryant v. Isburgh (13 Gray, 607), 804, 816, 1805. Bryant v. Moore (26 Me. 84), 1281. Bryant v. Pember (45 Vt. 487), 832. Bryant v. Pennell (61 Me. 108), 636. Bryant v. Richardson (12 Jur. 300), 132. Bryant v. Smith (87 Mich. 525), 237, 263. Bryant v. Thesing (46 Neb. 244), 1070, 1077. Bryant v. Western Union TeL Co. (17 Fed. R. 825), 1031. Bryson v. Haley (68 N, H. 337), 1027. Buchanan v. Kauffman (65 Tex. 235), 1798. Buchanan v. Smith (83 U. S. 277), 1540. Buck v. Pickwell (27 Vt, 157), 336, 439. Buckley v. Furniss (15 Wend. 137), 1542, 1571, 1577. Buckley v. Furniss (17 Wend. 504), 1602. Bucklin v. Davidson (155 Pa. St. 362), 1106. Buckman v. Levi (3 Camp. 414), 748, 1183. Buckmaster v. Consumers Ice Co. (5 Daly, 313), 211. Buckmaster v. Smith (22 Vt. 203), 636. Buckstaff v. Russell & Co. (49 U. S. App. 253), 682. Buckstaff v. Russell (79 Fed. R. 611), 1254. Bucy v. Pitts Agricultural Works (89 Iowa, 464), 1259, 1260. Budd v. Fairmaner (8 Bing. 48), 1259, 1276. Budd v. Power (8 Mont. 380), 1302. Buddie v. Green (3 H. & N. 906), 1118. Budlong' v. Cottrell (64 Iowa, 234), 569, 599, 603. Buffalo Barb Wire Co. v. Phillips (67 Wis. 129), 1395. Buffett v. Railroad Co. (40 N. Y. 176), 141. Buffington v. Gerrish (15 Mass. 156), 924, 928. Buffkin v. Baird (73 N. C. 283), 1713. Bugg v. Towner (41 Ga. 315). 996. Bugg v. Wertheimer-Schwartz Shoe Co. (64 Ark. 12), 904. Bughman v. Central Bank (159 Pa. St. 94), 906. Buhl Iron Works v. Tenton (67 Mich. 623), 964, 1193. Bulkley v. Andrews (39 Conn. 70), 23. Bulkley v. Morgan (46 Conn. 393), 908, 909, 1411. Bull v. Bray (87 Cal. 286), 952, 972. Bull v. Bull (43 Conn. 455), 1420. Bull v. Robinson (10 Exch. 342), 1265, 1298. Bullard v. Bank of Madison (107 Ga. 772), 549. Bullard v. Wait (16 Gray, 55), 964. Bullitt v. Farrar (42 Minn. 8). 875. Bullock v. Sprowls (93 Tex. 188), 109. Bullock v. Tschergi (13 Fed. R. 345), 365. Bulwinkle v. Cramer (27 S. C. 376), 447, 1319. Bumgardner v. Leavitt (35 W. Va. 194). 1727. Bunce v. McMahon (6 Wyo. 24), 599. Bunker v. Barrow (79 Me. 62), 1424. Bunn v. Postell(107 Ga. 490), 80. Bunney v. Poyntz (4 B. & Ad. 568), 1499. Burbank v. Crooker (7 Gray, 158), 597, 601. Burch v. Augusta R. R Co. (80 Ga. 296), 446. TABLE OF CASES CITED. lxxiii References are to sections: Vol. I. §§ 1-797; Vol. n, §§ 708-1850. Smidle (5 Colo. App. Weinberger (4 Colo. Burch v. Spencer (15 Hun, 504), 1356, 1357. Burcham v. Griffeth (31 Neb. 778), 488, 492. Burchinell v. Hirsh (5 Colo. App. 500\ 896. Burchinell v. 417), 964. Burchinell v. App. 6), 964. Burditt v. Howe (69 Vt. 563), 565. Burge v. Railroad Co. (32 Iowa, 101), 1148. Burgert v. Borchert (59 Mo. 80), 963. Burgess v. Chapin (5 R. I. 225), 1430. Burgett v. Burgett (1 Ohio, 469), 947. Burghart v. Angerstein (6 Car. & P. 690), 127, 128, 130, 132. Burghart v. Hall (4 Mees. & W. 727), 127. Burke v. Dunn (117 Mich. 430). 1474. Burke v. Fry (44 Neb. 223), 175. Burke v. Shannon ( — Ky. — ), 496, 498, 536. Burks v. Hubbard (69 Ala. 379), 1787. Burlington, etc. R. Co. v. Boestler (15 Iowa, 555), 1072. Burn by v. Bollett (16 Mees. & W. 644), 1357. Burnell v. Marvin (44 Vt. 277), 592. Burnell v. Robertson (10 III 282), 981, 982. Burnet v. Bisco (4 Johns. 235), 263. Burn ham v. Ellmore (66 Mo. App. 617), 928. Burnham-v. Holt (14 N. H. 367), 189. Burnham v. Sherwood (56 Conn. 229). 1277. Burnham v. Winsor (5 Law R. 507). 1586. Burnley v. Tufts (66 Miss. 48), 635. Burns v. Fidelity Real Estate Co. (52 Minn. 31), 473. Burr v. De La Vergne (102 N. Y. 415), 1729. Burr v. Redhead, etc. Co. (52 Neb. 617), 1235, 1336. Burr v. Wilson (13 Up. Can. Q. B. 478), 1586. Burrell v. New York Salt Co. (14 Mich. 34), 1709. Bun-ill v. Stevens (73 Me. 395), 901, 902. Burrowes v. Locke (10 Ves. 470). 1223. Burrows v. State (137 Ind. 474), 1433. Burrows v. Whitaker (71 N. Y. 291), 499, 516, 519, 524, 529. Burt v. Dewey (40 N. Y. 283), 1302, 1795. Burt v. Myer (71 Md. 467), 1031. Burtis v. Thompson (42 N. Y. 256), 1089, 1090. Burton v. Baird (44 Ark. 556), 739. Burton v. Curyea (40 111. 320), 491, 1194, 1507. Burton v. Goodspeed (69 111. 237), 49. Burton v. Great Northern Ry. Co. (9 Exch. 507), 263. Burton v. Shot well (13 Bush, 271), 253. Burton v. Stewart (3 Wend. 236), 914, 940. Burton v. Wells (30 Miss. 688). 1423. Buschman v. Codd (52 Md. 202), 184a Bush v. Breinig (113 Pa. St. 310), 86. Bush v. Collins (35 Kan. 535), 952. Bush v. Fry (15 Ont. 122), 169. Bush v. Holmes (53 Me. 417), 362. Bush v. Railroad Co. (3 Mo. App. 62), 887. Bush v. Roberts (111 N. Y. 278), 953. Bushell v. Wheeler (15 Q. B. 442), 360, 373. Bushnell v. Bicknell (17 Me. 344), 678. Busk v. Davis (2 M. & S. 397), 702. Busk v. Spence (4 Camp. 329), 654, 1145. Bussing v. Rice (2 Cush. 48), 924. 929. Busterud v. Farrington (36 Minn.320j, 875. 1843. lxxiv TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Butler v. Butler (77 N. Y. 472), 1091, 1092, 1106. Butler v. Dorman (08 Mo. 298), 1446, 1447, 1448. Butler v. Gannon (53 Md. 333), 600. Butler v. Hicks (11 Sm. & M. 78), 719. Butler v. Hildreth (5 Met. 49), 619, 909. Butler v. Leighton (149 Pa. St. 351), 1484. Butler v. School Dist. (149 Pa. St. 351), 660. Butler v. Smith (35 Miss. 457), 1131. Butler v. Thompson (92 U. S. 412), 434, 463. Butler v. Woolcott (2 Bos. & Pul. N. R 64), 1571. Butt v. Ellett (19 Wall. 544), 202. Butterfield v. Barber (20 R. I. 99), 884. Butterfield v. Burroughs (1 Salk. 211), 1272. Butterfield v. Byron (153 Mass. 517), 1102. Butterfield v. Lathrop (71 Pa. St 225), 23. Butters v. Haughwout (42 111. 18), 924. Butterworth v. McKinly (11 Humph. 206), 510, 755. Butts v. Newton (29 Wis. 632), 178, 1455. Buxton v. Lister (3 Atk. 383), 1722. Byasse v. Reese (4 Mete. 372), 337, 361. Byers v. Chapin (28 Ohio St. 300), 274, 1344. Byles v. Colier (54 Mich. 1), 499, 502, 516. Byrd v. Campbell Printing Press Co. (90 Ga. 542), 1240, 1349, 1384. Byrd v. Hall (2 Keyes, 646), 905. Byrd v. Rautman (85 Md. 414), 900, 908. Byrne v. Stewart (124 Pa. St. 450), 936. Byrne v. Van Tienhoven (5 C. P. Div. 344), 252, 257, 258. Byrnes v. Volz (53 Minn. 110), 970. Byrnside v. Burdett (15 W. Va. 702), 1302, 1306. Bywater v. Richardson (1 Ad. & El. 508), 933, 1265, 1270. Byxbee v. Dewey ( Cal. ). 964. C. & C. Electric Motor Co. v. Frisbie (66 Conn. 67), 669. Cabeen v. Campbell (30 Pa. St. 254), 1528, 1559. Cabot v. Winsor (1 Allen, 546), 446, 1168. Cadbury v. Nolen (5 Pa. St. 320), 964. Cadogan v. Kennett (2 Cowp. 432), 945. Cady v. Walker (62 Mich. 157), 1247. Cady v. Zimmerman (20 Mont. 225), 492. Cahen v. Piatt (69 N. Y. 348), 1398, 1399, 1690, 1693, 1736, 1742. Cahn v. Packet Co. (1 Q. B. 643), 166, 169. Cain v. Bryant (12 Heisk. 45), 1467. Cain v. McGuire (13 B. Mon. 340), 337. Caines v. Smith (15 M. & W. 189), 1097. Calahan v. Babcock (21 Ohio St. 281), 1528, 1571, 1572, 1579. Calais Steamboat Co. v. Van Pelt (2 Black, 372), 163, 755. Calcutta Co. v. De Mattos (32 L. J. Q. B. 322), 733, 742, 743, 1118, 1179, 1186. Caldwell v. Ball (1 T. R. 205), 981, 1201. Caldwell v. Bowen (80 Mich. 382), 923. Caldwell v. Hall (49 Ark. 508), 1425. Caldwell v. Henry (76 Mo. 254), 1841. Caldwell v. Jones (115 Mich. 129), 138. Caldwell v. Tutt (78 Tenn. 258), 1489. Caldwell v. Wallace (4 Stew. & P. 28-2), 1270. California Canneries Co. v. Scatena (117 Cal. 447), 451, 471. Calkins v. Lockwood (17 Conn. 154), 381, 382. Call v. Gray (37 N. H. 428), 964. TABLE OF CASES CITED. lxxv References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1830. Call v. Seymour (40 Ohio St. 670), 599. Callahan v. Young (90 Va. 574), 599, 603. Callanan v. Brown (31 Iowa, 333), 1235, 1242. Callen v. Thompson (3 Yerg. 475), 960. Callmeyer v. Mayor (83 N. Y. 116', 1169. Calloway v. Witherspoon (5Ired. Eq. 128), 90. Camden Iron Works v. Fox (34 Fed. R 200), 1138, 1139. Cameron v. Calberg ( Cal. — ), 964. Cameron v. Clarke (11 Ala. 259), 17, ia Cameron v. Mount (86 Wis. 477), 1223. Cameron v. Wells (30 Vt. 633), 1129, 1131. Camp v. Hamlin (55 Ga. 259), 1642. Camp v. Thompson (25 Minn. 175), 960. Campbell v. Alford (57 Tex. 159), 1194. Campbell v. Atherton (92 Mo. 66), 569. Campbell v. Fleming (1 Ad. & E. 40), 942. Campbell v. Frankeno (65 Ind. 591), 1841. Campbell v. Hassel (1 Stark. 233), 1459. Campbell v. Hickok (140 Pa. St. 290), 620. Campbell v. Kuhn (45 Mich. 513), 80. Campbell v. Lambert (36 La. Ann. 35), 263. Campbell v. Roddy (44 N. J. Eq. 244), 583, 647. Campbell v. Segars (81 Ala. 259), 1050. Campbell v. Young (9 Bush, 240), 1057. Campbell Printing Press Co. v. Dyer (46 Neb. 830), 599, 603. Campbell Printing Press Co. v. Henkle (19 D. C. 95), 614. Campbell Printing Press Co. v. Marsh (20 Colo. 22), 1083, 1134, 1803. Campbell Printing Press Co. v. Rock- away Pub. Co. (56 N. J. L. 676), 619. Campbell Printing Press Co. v. Thorp (36 Fed. R 414), 666. Campbell Printing Press Co. v. Walker (114 N. Y. 7), 585. Campbell Printing Press Co. v. Walker (22 Fla. 412), 564, 599, 603. Campbellville Lbr. Co. v. Bradlee (96 Ky. 494), 1763. Canadian Bank v. McCrea (106 111. 281), 545, 555. Canda v. Wick (100 N. Y. 127), 1092. Cangas v. Rumsey Mfg. Co. (37 Mo. App. 297), 228. Cauham v. Piano Mfg. Co. (3 N. Dak. 229), 1281, 1283, 1285, 128S. Cannan v. Bryce (3 B. & Aid. 179), 1012. Cannon v. Alsbury (1 A. K. Marsh. 76), 97. Canterberry v. Miller (76 I1L 355), 451. Cantine v. Phillips (5 Harr. 428), 132. Capehart v. Furman Farm Improve- ment Co. (103 Ala. 671), 741. Capel v. Thornton (3 Car. & P. 352), 1446. Capen v. Glass Co. (105 111. 185), 1736, 1737, 1742. Capron v. Porter (43 Conn. 383), 960, 984. Caraway v. Wallace (2 Ala, 542), 56, 145. Carbon Block Coal Co. v. Murphy (101 Ind. 115), 1073. Carbon Co. v. McMillin (119 N. Y. 46), 208. Cardwell v. McClelland (35 Tenn. 159). 935. Carey v. Burrus (20 W. Va. 571), 138. Carey Lumber Co. v. Cain (70 Miss. 628), 179, 955. Carhart v. Harshaw (45 Wis. 340). 950. Carl v. McGonigal (58 Mich. 567), 928. lxxvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1859. Carleton v. Jenks (47 U. S. App. 734), 1243, 1811, 1387. Carleton v. Lombard (72 Hun, 254), 1259. Carleton v. Lombard (149 N. Y. 137), 1258, 1346. Carleton v. Woods (28 N. H. 290), 1004. Carlisle v. United States (83 U. S. 147), 1024 Carlisle v. Wallace (12 Ind. 252), 25. Carll v. Emery (148 Mass. 32), 948. Carlton v. Sumnar (4 Pick. 516), 549, 552. Carlton v. Whitcher (5 N. H. 196), 1004 Carman v. Smick (15 N. J. L. 252), 293. Carnahan v. Hughes (108 Ind. 225), 1664 Carney v. Barrett (4 Oreg. 171), 186. Carney v. Carney (7 Baxt. 284), 960. Carney v. Newberry (24 111. 203), 1148. Carolan v. Brabazon (3 Jo. & Lat. 200), 804 Carolee v. Handelis (103 Ga. 299), 1718. Carondelet Iron Works v. Moore (78 111. 65), 1235, 1380. Carpenter v. Carpenter (45 Ind. 142), 109, 119, 120. Carpenter v. First Nat. Bank (119 111. 352), 1763. Carpenter v. Galloway (73 Ind. 418), 352, 473. Carpenter v. Graham (42 Mich. 191), I'.i'.t. 516. 702, 709. Carpenter v. Mayer (5 Watts, 483), 963. Carpenter v. Medford (99 N. C. 495), 336. Carpenter v. McClure (39 Vt. 9), 947. Carpenter v. Rodgers (61 Mich. 381), 87. Carpenter v. Scott (13 R L 477), 569, 588, 590, 599. Carr v. Allatt (3 H & N. 964). 202. Carr v. Breese (81 N. Y. 584), 973. Carr v. Clough (26 N. H. 280), 106, 109. Carr v. Duval (14 Pet. 77), 228, 229, 233, 244 Carr v. London, etc. Ry. Co. (L. R 10 C. P. 307), 845. Carr v. Moore (41 N. H. 131), 1818. Carrier v. Sears (4 Allen, 336), 72. Carroll v. Sweet (128 N. Y. 19), 1433. Carson v. Baillie (19 Pa. St. 375), 1334 Carson v. Browder (2 Lea, 701), 342. Carstairs v. Kelley Co. (— Ky. App. ), 905. Carstens v. Hanselman (61 Mich. 426), 184 Carter v. Bingham (32 Up. Can. Q. B. 615), 227, 228. Carter v. Crick (4 H. & N. 412), 1320. Carter v. Harden (78 Me. 528), 878. Carter v. Kingman (103 Mass. 517), 583, 628, 630. Carter v. Scargill (L. R. 10 Q. B. 564), 1075. Carter v. Smith (23 Wis. 497), 909. Carter v. Toussaint (5 B. & Aid. 855), 385, 386. Carter v. Wallace (32 Hun, 384), 677. Carter v. Willard (19 Pick. 1), 380, 491, 788, 1193. Carter White Lead Co. v. Kimlin (47 Neb. 409), 264 Cartwright v. Bate (1 Allen, 514), 184 Cartwright v. Wilmerding (24 N. Y. 521), 1585, 1587. Carver v. Lane (4 E. D. Smith, 168), 400. Carver v. State (69 Ind. 61), 1052. Carver v. Todd (48 N. J. Eq. 102), 955. Cary v. Bancroft (14 Pick. 315), 1437. Cary v. Gruman (4 Hill, 625), 1805, 1817. Cary v. Hotailing (1 Hill, 311), 892. Case v. Green (5 Watts, 262), 1139. ( iase v. Hall (24 Wend. 102), 931, 1 795. Case v. L"Oeble (84 Fed. R. 582), 580. Case v. Phelps (39 N. Y. 164), 973. TABLE OF CASES CITED. lxxvii References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1S50. Case v. Seass (44 Mich. 195), 1431. Case v. Stevens (137 Mass. 551), 1842. Case Mfg. Co. v. Garven (45 Ohio St. 289), 599, 646. Case Plow Works v. Niles & Scott Co. (90 Wis. 590), 1254, 1259, 1260, 1349, 1817, 1818. Case Plow Works v. Niles & Scott Co. (107 Wis. 9), 1736. Case Plow Works v. Ross (74 Mo. App. 437), 914, 924. Case Threshing M. Co. v. Haven (65 Iowa, 359), 1817. Case Threshing Mach. Co. v. Smith (16 Oreg. 381), 449, 450. Case, J. I., Thresher Co. v. Vennum (4 Dak. 92), 1384. Cash v. De Long ( — Ky. — ), 1835, 1844. Cason v. Cheely (6 Ga. 554), 321, 324. Cass v. Gunnison (68 Mich. 147), 702. Cass v. Perkins (23 111. 382), 963. Cassidy v. Daly (11 W. Dig. 222), 1502. Castanola v. Mo. Pac. Ry. Co. (24 Fed. R. 267), 1564. Castle v. Play ford (L. R, 5 Ex. 165), 1414. Castle v. Playford (L. R. 7 Ex. 98), 529. Castle v. Sworder (6 H. & N. 828), 369. Castro v. lilies (22 Tex. 479), 952. Caswell v. Hunton (87 Me. 277), 937. Caswell v. Jones (65 Vt. 457), 960. Catlin v. Tobias (26 N. Y. 217), 242, 1162. Catling v. King (5 Ch. Div. 660), 434, 435. Catterall v. Hindle (L. R. 1 C. P. 187), 1455. Calkins v. Fry (35 Conn. 170), 86, 87. Caulkins v. Hellman (47 N. Y. 449), 356, 392, 393. Cave v. Hastings (7 Q. B. Div. 125), 426, 428. Cawston v. Sturgis (29 Oreg. 331), 875. Cayton v. Hardy (27 Mo. 536), 144. Cayuga Nat. Bank v. Daniels (47 N. Y. 631), 792. Cay wood v. Timmons (31 Kan. 394), 499, 508, 516. Cefalw v. Fitzsimmons-Derrig Co. (65 Minn. 480), 1377. Central Bank v. Empire Stone Co. (26 Barb. 23), 1048. Central Lith. & Eng. Co. v. Moore (75 Wis. 170), 52, 314, 754. Central Trust Co. v. Arctic Mfg. Co. (77 Md. 202), 600, 1384, 1395. Central Trust Co. v. Marietta, etc. R. Co. (48 Fed. R. 868), 603. Chadsey v. Greene (24 Conn. 562), 1272. Chadwick v. Butler (28 Mich. 349), 1787. Challenge Wind Mill Co. v. Kerr (93 Mich. 328), 254, 1255. Challoner v. Boyington (91 Wis. 27), 1425. Chalmere, Ex parte (L. R. 8 Ch. App. 289), 1093, 1094, 1513, 1518. Chamberlain v. Scott (33 Vt. 80), 1713. Chamberlain v. Smith (44 Pa. St. 431), 32, 580. Chamberlin v. Fuller (59 Vt. 247), 881, 914, 934 Chamber of Commerce v. Sollitt (43 111. 519), 1089. Chambers v. Board of Education (60 Mo. 370), 755, 761. Chambers v. Davidson (L. R. 1 Pr. Coun. 296), 1477. 1481. Chambers v. Lancaster (160 N. Y. 342), 360, 1387. Chambers v. Miller (7 Watts, 63), 1456. Chambers v. Short (79 Mo. 204), 1447, 1448. Chambers v. Union Nat. Bank (78 Pa. St, 205), 1303. Chamblee v. McKenzie \31 Ark. 155), 527. lxxviii TABLE OF CASES CITED. References are to sections: Vol. Champion v. Plummer (4 B. & P. 252). 430, 434. Champion v. Wood (79 Cal. 17), 872. Champion Machine Co. v. Mann (42 Kan. 372), 823, 1384, 1385, 1386. Champlin v. Rogers (1 East. 92), 381. Champlin v. Rowley (13 Wend. 259), 513, 1162. Chancellor v. Wiggins (4 B. Mon. 201), 1302, 1795. Chandelor v. Lopus (2 Cro. Jac. 2), 1334. Chandler, In re (13 Am. L. Reg. 310), 1031, 1034. Chandler v. Fulton (10 Tex. 2), 1537, 1540, 1564, 1566, 1568. Chandler v. Glover (32 Pa. St. 509), 121. Chandler v. Robertson (9 Dana, 291), 1130. Chandler v. Simmons (97 Mass. 508), 92, 109, 118, 508. Chanter v. Hopkins (4 M. & W. 399), 1155, 1207, 1208, 1224, 1259, 1311, 1333, 1347, 1349. Chapin v. Cram (40 Ma 561), 202. Chapin v. Dobson (78 N. Y. 74). 1255. Chapin v. Shafer (49 N. Y. 407). 106, 108, 112, 114, 121. Chaplin v. Rogers (1 East, 192), 361, 386. Chapman v. Cole (12 Gray, 141), 272. Chapman v. Hughes (61 Miss. 339), 132. Chapman v. Ingram (30 Wis. 290), Hi: is. Chapman v. Lathrop (6 Cow. 110), 549, 1121,1407. Chapman v. Morton (11 Mees. & W. 534), 1387, 1392. Chapman v. Murch (19 Johns. 290), 1235. Chapman v. Kansas C. etc. Ry. Co. (148 Mo. 481), 1702. Chapman v. Searle (3 Pick. 38), 1487. I, §§ 1-797; Vol. H, §§ 798-1850. Chapman v. Shepard (39 Conn. 413), 702, 708, 711. Chapman v. Speeler (14 Q. B. 621), 1301, 1309. Chapman v. Weimer (4 Ohio St. 481), 202. Chappell v. Raymond (20 La. Ann. 277), 1458. Chappie v. Cooper (13 Mees. & W. 252), 130, 132. Charles v. Carter (96 Tenn. 607), 781, 1375. Chase v. Burkholder (18 Pa. St. 48), 1004. Chase v. City of Lowell (7 Gray, 33), 431. Chase v. Ingalls (122 Mass. 381), 569, 583, 588, 590. Chase v. Ralston (30 Pa. St. 539), 964. Chase v. Washburn (1 Ohio St. 244), 26. Chase v. Willard (67 N. H. 369), 1805. Chase Elevator Co. v. Boston Tow B. Co. (155 Mass. 211), 1380. Chatham Furnace Co. v. Moffatt (147 Mass. 403), 875. Chemical Electric Co. v, Howard (148 Mass. 352), 834. Cheney v. Palmer (6 Cal. 119), 956, 964. Cheney v. Cook (7 Wis. 413), 244, 253. Cheney v. Duke (10 Gill & J. 11), 1013. Cherry v. Arthur (5 Wash. 787), 624, 646. Cherry v. Smith (3 Humph. 19), 264. Cherry Valley Iron Works v. Flor- ence Co. (64 Fed. R. 569), 1144-1147. Chesapeake Club v. State (63 Md. 446), 55. Cheshire v. Barrett (4 McCord, 241), 101, 121. Chester v. Bank (16 N. Y. 343), 40. Chesl nut v. Harbaugh (78 Pa. St. 473), 1053. TABLE OF CASES CITED. Ixxix References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Chicago v. Tilley (103 U. S. 146), 1097. Chicago, etc. R. Co. v. Dane (43 N. Y. 240), 244, 245, 263. Chicago, Mil. & St. P. Ry. Co. v. Hoyt (149 U. S. 1), 1104. Chicago Packing & P. Co. v. Tilton (87 111. 547), 1345. Chicago Ry. Equipment Co. v. Mer- chants' Bank (136 U. S. 268), 650. Chicago, etc. R Co. v. Painter (15 Neb. 394), 1571. Chicago, etc. Ry. Co. v. Titterington (84 Tex. 218), 870. Chickering v. Bastress (130 111. 206), 21, 35, 46, 49. Chidell v. Galsworthy (6 C. B. 470), 202. Child v. Allen (33 Vt. 476), 619. Childers v. Bowen (68 Ala. 221), 1452. Childers v. Talbott (4 N. M. 336), 288. Childs v. O'Donnell (84 Mich. 533), 681, 1245, 1380 1382. Childs v. Merrill (63 Vt. 463), 884. Chinery v. Viall (5 Hurls. & Norm. 287), 1786. Chippendale v. Thurston (4 Car. & P. 101), 264. Chism v. Woods (Hard. 531), 1302. Choice v. Moseley (1 Bailey L. 136), 144-2. Choteau v. Jones (11 111. 300), 977. Christian v. Greenwood (23 Ark. 358), 955. Christie's Appeal (85 Pa. St. 463), 580. Christy v. Sullivan (50 Cal. 337), 835. Chrisler v. Canaday (90 N. Y. 272), 936. Chubbuck v. Cleveland (37 Minn. 466), 878. Church v. Chapin (35 Vt. 223), 957. Church v. Landers (10 Wend. 79), 178. Church v. Muir (33 N. J. L. 318), 947. Church v. McLeod (58 Vt. 541), 603. Church v. Proctor (66 Fed. R. 240), 996, 1041. Churchill v. Holton (38 Minn. 519), 1160, 1161. Churchill v. Hulbert (110 Mass. 42), 627. Churchill v. Merchants' Bank (19 Pick. 532), 1135. Churchill v. Price (44 Wis. 540), 1378. Chynoweth v. Tenny (10 Wis. 397), 202. Cincinnati v. Cameron (33 Ohio St. 336), 1079. Cincinnati Cooperage Co. v. Gaul (170 Pa. St. 545), 906. Cincinnati Safe Co. v. Kelly (54 Ark. 476), 585, 605. Cincinnati Oyster Co. v. Nat Bank (51 Ohio St. 106), 1434. Citizens' Bank v. Williams (128 N. Y. 177), 955. Citizens' St. Ry. Co. v. Robbins (144 Ind. 671), 1787. City Bank v. Barrow (5 App. Cas. 664), 169. City Ry. Co. v. Basshor (82 Md. 397), 1251, 1350. City Nat. Bank v. Hamilton (34 N. J. Eq. 158), 973. City Bank v. Rome, etc. R Co. (44 N. Y. 136). 1566. City of Elgin v. Schoenberger (59 111. App. 384). 1351. Claflin v. Carpenter (4 Mete. 580), 336, 337. Claflin v. Furniture Co. (58 N. J. L. 379), 564. Claflin v. Mess (30 N. J. Eq. 211), 974. Claflin v. Rosenberg (42 Mo. 439), 960, 963. Claflin v. Taussig (7 Hun, 223), 1428. Claghorn v. Lingo (62 Ala. 230), 1244. Clampet v. Bells (39 Minn. 272), 4:31, 437. Clapp v. Thayer (112 Mass. 296), 1168. Clare v. Maynard (7 Car. & P. 741), 1817. Claringbould v. Curtis (21 L. J. Ch. 541), 1719. Clark v. Baker (5 Mete. 452), 912, 1398. lxxx TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Clark v. Baker (11 Mete. 186), 1158. Clark v. Cox (118 Mo. 652), 951. Clark v. Dales (20 Wend. 61), 1407. Clark v. Des Moines (19 Iowa, 199), 191. Clark v. Draper (19 N. H. 419), 493, 499, 1481, 1515. Clark v. Fey (121 N. Y. 470), 653, 1139. Clark v. Flint (22 Pick. 231), 924, 1724. Clark v. French (23 Me. 221), 960, 974. Clark v. Greeley (62 N. H. 394), 493, 499, 541. Clark v. Griffith (24 N. Y. 595), 711. Clark v. Hayward (51 Vt. 14), 636. Clark v. Hill (117 N. C. 11), 569. Clark v. Houghton (12 Gray, 38), 812. Clark v. Jack (7 Watts, 375), 32, 580, 581. Clark v. Johnson Foundry Co. (42 S. W. R. 844), 1106. Clark v. Lee (78 Mich. 221), 960. Clark v. Lindsay (19 Mont. 1), 653, 1136. Clark v. Marsiglia(lDenio, 317), 1091, 1699. Clark v. Mayor of N. Y. (4 N. Y. 338), 1713. Clark v. Moore (3 Mich. 55). 1162. Clark v. Mumford (62 Tex. 531), 1798. Clark v. Murphy (164 Mass. 490), 1447,. 1448. Clark v. Nichols (107 Mass. 547), 307, 324. Clark v. Rice (46 Mich. 308), 663, 667, 680, 814. Clark v. Richards Lumber Co. (68 Minn. 282), 603. cia.k v. Bicker (14 N. H. 44), 1004. Clark v. Smith (88 111. 298), 1447. 141S. Clark v. Truitt (183 111. 239), 1718. ( lark v. Tucker (2 Sandf. 157), 416. (lark v. Van Court (100 End 113), 102, IDT, 109. Clark v. Wheeling Steel Works (3 U. S. App. 358), 1144. Clark's Cove Guano Co. v. Dowling (85 Ala. 142), 1050. Clarke v. Brown (77 Ga. 606), 999. Clarke v. Crandall (27 Barb. 73), 1097. Clarke v. Foss (7 Biss. 540), 1032. Clarke v. Hutchins (14 East, 475), 748, 1183. Clarke v. Spence (4 Ad. & El. 448), 510, 753, 762. Clarke v. Westrope (18 C. B. 765), 209, 213, 674. Clarkson v. Stevens (106 U. S. 505), 755. Clary v. Frayer (8 Gill & J. 398), 964. Clason v. Bailey (14 Johns. 484), 449, 455, 456, 464. Clay v. Allen (63 Miss. 426), 1031, 1032. Clay v. Yates (1 Hurl. & Norm. 73), 301. Clayton v. Andrews (4 Burrows, 2101), 296, 297, 299, 305. Clayton v. Hester (80 N. C. 275), 599. Cleary v. Folger (84 Cal. 316), 629. Clem v. Newcastle R. Co. (9 Ind. 488), 872, 874. Clemens v. Clemens (28 Wis. 637), 947, 948. Clement Mfg. Co. v. Meserole (107 Mass. 362), 1092, 1690, 1790. Clements v. Smith (9 Gill, 156), 1431. Clementson v. Grand Trunk Ry. Co. (42 Up. Can. 0, B. 263), 1606. Cleveland v. Pearl (63 Vt. 127), 1407. Cleveland v. Shoeman (40 Ohio St. 176), 169. Cleveland v. Sterrett (70 Pa. St. 204), 839, 1136, 1850. Cleveland v. Williams (29 Tex. 204), 483, 496, 519, 714. Cleveland Mack Works v. Lang (67 N. H. 348), 597, 649, 650. Cleveland Rolling Mill v. Rhodes (121 U. S. 255), 1090, 1138, 1144, 1145, 1155, 1158, 1161. TABLE OF CASES CITED. lxxxi References are to sections: Vol. I. §§ 1-797; Vol. II, §§ 798-1850. Clews v. Jamieson (38 C. C. A. 473), 203. Clifford, In re (2 Sawy. 428), 388. 456. Clift v. Moses (112 N. Y. 426), 1422. Clinan v. Cooke (1 Sch. & Lefroy, 22), 426. Clinton Nat. Bank v. Studemann (74 Iowa, 104). 485, 488, 492. Clipsham v. Vertue \5 Q. B. 265), 861. Clodfelter v. Hulett (72 Ind. 148), 1664. Cloke v. Shafroth (137 I1L 393), 29, 711, 716. Clopton v. Elkin (49 Miss. 95), 1004. Clore v. Robinson (100 Ky. 402), 1633. Close v. Crossland (47 Minn. 500), 1302, 1304, 1306, 1794, 1795, 1797, 1805. Cloud v. Greasley (125 111. 313), 433, 441. Cloud v. Moorman (18 Ind. 40), 492, 708. Clough v. London & N. W. Ry. Co. (L. R. 7 Ex. 26), 908. Clough v. Patrick (37 Vt. 421), 834. Clough v. Wkitcomb (105 Mass. 482), 1449. Clow v. Borst (6 Johns. 37), 1466. Clow v. Woods (5 S. & R. 275), 580, 960, 964, 966. Clute v. Lovelace (68 Cal. 254), 197. Clute v. Steele (6 Nev. 335), 963. Clyde Cycle Co. v. Hargreaves (78 L T. 296), 132. Coates v. Early (46 S. C. 220), 274. Coates v. Railton (6 B. & Cress. 422), 1575, 1577. Coates v. Wilson (5 Esp. 152), 132. Coats v. Chaplin (3 Ad. & EL, N. S., 483), 738. Cobb v. Buswell (37 Vt. 337), 649. Cobb v. Hall (33 Vt. 233), 1089, 1090. Cobb v. Haskell (14 Me. 303), 964. Cobb v. Prell (5 McCrary, 80), 1031, 1032, 1034. Cobb v. Reed (2 Stew. 444), 1125. Coburn v. Odell (30 N. H. 540), 1004. Cobum v. Pickering (3 N. H. 415), 960. Cochran v. Stewart (21 Minn. 435), 908. Cochran's Will, Case of (1 T. B. Mon. 264), 68. Cockburn v. Ashland Lbr. Co. (54 Wis. 619), 1736, 1762. Cocke v. Campbell (13 Ala. 286), 1281. Cocke v. Chapman (2 Eng. 197), 380. Cocker v. Franklin Mfg. Co. (3 Sumn. 530), 1129, 1131. Cockrell v. Thompson (85 Mo. 510), 1032. Coddington v. Goddard (16 Gray, 436), 430, 434, 446, 448, 451, 456, 463, 464, 465. Coddington v. Pale-ologo (L. R. 2 Exch. 193), 1145. Codman v. Freeman (3 Cush. 303), 202. Coe v. Tough (116 N. Y. 273), 420. Coe v. Wagar (42 Mich. 49), 17, 1411. Coffey v. Quebec Bank (20 Up. Can. C. P. 110), 714. Coffin v. State (144 Ind. 578), 1760, 1762. Coffman v. Hampton (2 Watts & Serg. 377), 351, 1455. Coffman v. Williams (51 Tenn. 233), 1787, 1820. Coggill v. Railroad Co. (3 Gray, 545), 546, 554, 599. 740, 1437. Coghill v. Boring (15 Cal. 213), 915, 919. Cogley v. Cushman (16 Minn. 397), 95, 106, 116. Cohen v. Candler (79 Ga. 427), 603. Cohen v. Knox (90 Cal. 266), 955. Cohen v. Pemberton (53 Conn. 221), 1160. Cohn v. Ammidown (120 N. Y. 398), 1302, 1307. Cohn v. Broadhead (51 Neb. 834), 898. Cohn v. Heimbauch (86 Wis. 176), 1053, 1054. lxxxii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Cohn v. Mitchell (115 111. 124), 1727. Colcock v. Ferguson (3 Desaus. 482), 124. Colcord v. Dryfus (1 Okla. 228), 809, 964, 1181. Colcord v. McDonald (128 Mass. 470), 630. Cole v. Berry (42 N. J. L. 308), 569, 599, 1482. Cole v. Bryant (73 Miss. 297), 723, 981. Cole v. Cassidy (138 Mass. 437), 875, 878. Cole v. Hines (81 Md. 476), 610. Cole v. Northwestern Bank (L. R. 9 C. P. 470), 169. Cole v. Pennoyer (14 111. 158), 95. Cole v. Ross (9 B. Mon. 393), 1440. Cole v. Smith (26 Colo. 506), 937, 938. Cole v. Swanston (1 Cal. 51), 1121, 1407. Cole v. Terrell (71 Tex. 549), 970. Cole v. Tyler (65 N. Y. 73), 972. Cole v. White (26 Wend. 511), 960. Coleman v. Applegarth (68 Md. 21), 257. Colerick v. Hooper (3 Ind. 316), 437. Coles v. Kennedy (81 Iowa, 360), 936. Coles v. Trecothick (9 Ves. 234), 426. Collender Co. v. Marshall (47 Vt. 232), 569. Colles v. Swensberg (90 Mich. 223), 682. Collette v. Weed (68 Wis. 428), 1248, 1255. Collins v. Canty (6 Cush. 415), 1080. Collins v. Delaporte (115 Mass. 74), 1089, 1091. Collins v. Houston (138 Pa. St. 481), 541. Collins v. Jackson (54 Mich. 186), 936, 1242. Collins v. Newton (7 Baxt. 269), 1448. Collins v. Wilhoit (35 Mo. App. 585\ 603. Collins v. Wilhoit (108 Mo. 451), 599. Collyer v. Moulton (9 R. I. 90), 804. Colorado Springs Live Stock Co. v. Godding (20 Colo. 249), 731, 765, 1186. Colt v. Owens (90 N. Y. 368), 1132, 1787. Colton v. Stanford (82 Cal. 351), 879. Columbia Club v. McMaster (35 S. C. 1), 55. Columbia Rolling Co. v. Beckett Foundry Co. (55 N. J. L. 391), 660, 681. Columbian Iron Works v. Douglas (84 Md. 44), 1154, 1209, 1210, 1814 Columbus Buggy Co. v. Turley (73 Miss. 529), 601. Colvin v. Weedman (50 111. 311), 1130. Colvins v. Williams (3 H. & J. 38), 331. Col well v. Keystone Iron Co. (36 Mich. 51), 526. Comaita v. Kyle (19 Nev. 38), 960. Coman v. Thompson (47 Mich. 22), 342. Combs v. Bateman (10 Barb. 573), 414. Comer v. Cunningham (77 N. Y. 391), 599, 890, 891. Comey v. Pickering (63 N. H. 126), 150, 151. Comfort v. Kiersted (20 Barb. 472), 755, 764. Commercial Nat. Bank v. Gillette (90 Ind. 268), 714. Commercial Bank v. Hurt (99 Ala. 130), 1507. Commercial Bank v. Kortright (22 Wend. 348), 162. Commercial Bank v. Pfeiffer (108 N. Y. 242). 792. Commercial Nat. Bank v. Pirie (82 Fed. R. 799), 905, 924. Commins v. Scott (L. R. 20 Eq. 11), 435. Commonwealth v. Call (21 Pick. 515), 895. Com mon wealth v. Clark (14 Gray, 307), 16. TABLE OF CASES CITED. lxxxiii References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Commonwealth v. Davis (12 Bush, 240).. 13. Commonwealth v. Devlin (141 Mass. 423), 543. Commonwealth v. Ewing (145 Mass. 119), 55. Commonwealth v. Fleming (130 Pa. St. 138), 739, 740, 777, 793, 1029. Commonwealth v. Hantz (2 Pa. St. 334), 122. Commonwealth v. Harley (7 Mete. 462), 895. Commonwealth v. Hess (148 Pa. St. 98), 483. 485, 492, 1029. Commonwealth v. Jeffries (7 Allen, 548), 887. Commonwealth v. Miller (131 Pa. St. 118), 54 Commonwealth v. Packard (5 Gray, 101), 12. Commonwealth v. Pomphret (137 Mass. 564), 55. Commonwealth v. Savings Bank (137 Mass. 431), 38, 688, 689. Commonwealth v. Smith (10 Allen, 448), 141. Commonwealth v. Smith (102 Mass. 144), 55. Commonwealth v. Vieth (155 Mass. 442), 54. Commonwealth v. Warren (160 Mass. 533), 54. Commonwealth v. Wood (142 Mass. 459), 937. Commonwealth v. Worcester (126 Mass. 256), 54. Comstock v. Affoelter (50 Mo. 411), 1182. Comstock v. Sanger (51 Mich. 497), 207, 1392, 1659. Comstock v. Scales (7 Wis. 159), 202. Comtoir d'Escompte v. Dresbach (78 CaL 15), 1433. Conahle v. Lynch (45 Iowa, 84), 49. Conant v. National State Bank (121 Ind. 323), 1254, 1347. Conard v. Atlantic Ins. Co. (1 Pet. 386), 166, 1201. Conawingo Refining Co. v. Cunning- ham (75 Pa. St. 138), 1136. Conemaugh Gas Co. v. Jackson Farm Gas Co. (186 Pa. St. 443), 1721. Congar v. Chamberlain (14 Wis. 258), 1248. Congdon v. Kendall (53 Neb. 282), 741. Conger v. Railroad Co. (17 Wis. 477), 1437. Congreve v. Evetts (10 Excb. 298), 202. Conklin v. Osborn (7 Ind. 553), 103, 121. Conley v. Sims (71 Ga. 161), 1050. Conly v. Friedman (6 Colo. App. 160), 964. Conn v. Coburn (9 N. H. 368), 132. Connecticut Mut. L. Ins. Co. v. Smith (117 Mo. 261), 953, 954. Connecticut Valley, etc. Co. v. Trust- ees (32 App. Div. 83), 673. Conner v. Henderson (15 Mass. 319), 914, 916. Conner v. Robertson (37 La. Ann. 814), 203, 1032. Connersville v. Wadleigh (7 Blackf. 102), 1272. Connihan v. Thompson (111 Mass. 270), 909. Connor v. Black (119 Mo. 126), 1032. Connor v. Stanley (72 Cal. 556), 64. Conrad v. Fisber (37 Mo. App. 353), 1512. Conroe v. Birdsall (1 Johns. Cas. 127), 124. Conrow v. Little (115 N. Y. 387), 909. Consolidated Milling Co. v. Fogo (104 Wis. 92), 901, 905, 906. Constania, The (3 Eng. Adm. 6 Rob. 321), 1543. Consumers' Ice Co. v. Webster (32 N. Y. App. Div. 592), 267. lxxxiv TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Converse v. Blumrich (14 Mich. 109), 863, 875. Converse v. Sickles (146 N. Y. 200), 928. Conway v. Bush (4 Barb. 564), 1437. Conyers v. Ennis (2 Mason, 236), 1594. Cook v. Barnes (36 N. Y. 520), 1429. Cook v. Brandeis (3 Mete. 555), 1643, 1682. Cook v. Corthell (11 R. I. 482), 202. Cook v. Deaton (3 Car. & P. 114), 127, 128. Cook v. Gill (83 Md. 177), 882. Cook v. Gilman (34 N. H. 556), 915. Cook v. Gray (6 Ind. 335), 1136. Cook v. Johnson (12 N. J. Eq. 51), 970, 971, 972. Cook v. Logan (7 Iowa, 141), 714. Cook v. Mann (6 Colo. 21), 964. Cook v. Moseley (13 Wend. 277), 1836. Cook v. Van Home (76 Wis. 520), 485, 496. Cook Mfg. Co. v. Randall (62 Iowa, 245), 1755. Cooke v. Cooke (43 Md. 522), 970. Cooke v. Ludlow (2 Bos. & P. [N. R.] 119), 740. Cooke v. Millard (5 Lans. 246), 324. Cooke v. Millard (65 N. Y. 352), 304, 305, 349, 371. Cooke v. Oxley (3 T. R. 653), 245, 252. Cool v. Peters Lumber Co. (87 Ind. 531), 336. Cooley v. Gillan (54 Conn. 80), 564. Cooley v. Perrine (12 Vroom, 322), 1281, 1294. Cooley v. Willard (34 111. 68), 1453. Coolidge v. Brigham (1 Mete. 547), 915. Coolidge v. Heneky (11 Oreg. 327), 953. Coombs v. Emery (14 Me. 404 ), ! 1 151 ». Coombs v. Railway Co. (3 H. & N. 510), 369. Coon v. Spaulding (47 Mich. 162), 1133. Cooney v. Wade (4 Humph. 444), 1456. Cooper, Ex parte (11 Ch. Div. 68), 1499, 1582, 1583, 1602. Cooper v. Bill (3 H. & C. 722), 515, 1495. Cooper v. Elston (7 T. R. 14), 307, 400. Cooper v. Lansing Wheel Co. (94 Mich. 272), 264. Cooper v. Lovering (108 Mass. 77), 937. Cooper v. Macdonald (7 Ch. Div. 293), 135. Cooper v. McNamara (92 Iowa, 243), 186. Cooper v. Schlesinger (111 U. S. 148), 875. Cooper v. Shepherd (3 Com. B. 266>, 56. Cooper v. Smith (15 East, 103), 427. Cooper v. State (37 Ark. 412), 13. Copas v.- Provision Co. (73 Mich. 541), 1242, 1356, 1357, 1358. Cope v. Rowlands (2 Mees. & Wels. 149), 1046, 1047. Copenrath v. Kienby (83 Ind. 18), 76. Copland v. Bosquet (4 Wash. C. C. 588), 543. Coplay Iron Co. v. Pope (108 N. Y. 232), 1391, 1392, 1395. Coquard v. Wernse (100 Mo. 131), 29. Corbet v. Wolford (48 Md. 426), 286, 288. Corbett v. Brown (8 Bing. 33), 876. Corbett v. Wolford (84 Md. 426), 361. Corbin v. Tracy (34 Conn. 325), 1729. Corbit v. Smith (7 Iowa, 60), 74.^ Corbitt v. Salem Gas Light Co. (6 Oreg. 405), 442. Corcoran v. White (146 Mass. 329), 228. Cordage Co. v. Wohlhuter (71 Minn. 484), 1818. Corder v. Williams (40 Iowa, 583), 970. Cordes v. Miller (39 Mich. 581), 1099. Corey v. Burton (32 Mich. 30), 95, 113. Corey v. Corey (19 Pick. 29), 186. TABLE OF CASES CITED. lxxxv References are to sections: Vol, Corgan v. Frew (39 111. 31), 964. Cork Distilleries Co. v. Railway Co. (L. R.7H.L 269), 736, 787. Cornell University v. Fiske (136 U. S. 152). 143. Cornforth v. Rivett (2 M. & Sel. 510), 1438. Corning v. Abbott (54 N. H. 469), 1018, 1046, 1051. Corning v. Burden (15 How. 270), 834. Corning v. Colt (5 Wend. 253), 746, 1161. Corning v. Strong (1 Ind. 329), 1455. Corninger v. Crocker (62 N. Y. 151), 1137. Cornish v. Abington (4 H. & N. 549), 845. Cornwall v. Mix (— Idaho, — ), 964. Corpe v. Overton (10 Bing. 252), 109. Cort v. Ambergate N. & B. & E. Junction R. Co. (17 Q. B. 127), 1090, 1092. 1097, 1106. Cortland Mfg. Co. v. Piatt (83 Mich. 419), 896, 909. Cortland Wagon Co. v. Sharvey (52 Minn. 216), 603. Cory v. Barnes (63 Vt. 456), 1522. Cory v. Cory (1 Ves. Sr. 19), 87. Cosgrove v. Bennett (32 Minn. 371), 1259, 1314, 1349, 1350, 1352. Costigan v. Hawkins (22 Wis. 74), 836, 912, 1303. Costigan v. Mohawk R. R. Co. (2 Denio, 609), 1106. Cothay v. Tute (3 Camp. 129), 1183. Cothran v. Ellis (125 111. 496), 1031, 1039. Cotten v. McKenzie (57 Miss. 418), 1004. Cotten v. Willoughby (83 N. C. 75), 202. Cottrcll v. Bank (89 Ga, 508), 569. Cottrell v. Carter (173 Mass. 155), 599. Cottrell v. Merchants' Bank (89 Ga. 508), 603. g I, §§ 1-797; Vol. II, §§ 798-1850. Cottril v. Krum (100 Mo. 397), 881, 1841. Coty v. Barnes (20 Vt. 78), 963. Cotzhausen v. Simon (47 Wis. 103), 875. Council Bluffs Iron Works v. Cuppey (41 Iowa, 104), 1187, 1189. Counselman v. Reichart (103 Iowa, 430), 1031. Court v. Snyder (2 Ind. App. 440), 1311, 1316, 1319. Courtney v. Boswell (65 Mo. 196), 1817. Courtright v. Leonard (11 Iowa, 32), 714. Couse v. Tregent (11 Mich. 65), 599. Couston v. Chapman (L. R. 2 Sc. App. 250), 1370, 1377. Coutourier v. Hastie (5 H. L. 673), 199. Covanhovan v. Hart (21 Pa. St. 495), 955. Covell v. Hitchcock (23 Wend. 611), 1559, 1576, 1579. Cover v. Smith (82 Md. 586), 1031, 1032. Covill v. Hill (4 Denio, 323), 154, 156. Cowan v. Dodd (3 Coldw. 278), 834. Cowan v. Manufacturing Co. (92 Tenn. 376), 49. Cowan v. Mil bourn (L. R. 2 Exch. 230), 1010. Cowan v. Singer Mfg. Co. (92 Tenn. 376), 569, 599. Cowasjee v. Thompson (5 Moore, P. C. 165), 1497. Cowdry v. Vanden burgh (101 U. S. 572), 162. Cowles v. Whitman (10 Conn. 121), 1727. Cowley v. Smyth (46 N. J. L. 380), 875, 877, 878. Cowper v. Andrews (Hobart, 40), 213. Cox v. Gerkin (38 111. App. 340), 1843. Cox v. Highley (100 Pa. St. 249), 875. Cox v. Long (69 N. C. 7), 1079, 1395. lxxxvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Cox v. Prentice (3 Maule & Sel. 344), 274. Cox Shoe Co. v. Adams (105 Iowa, 402), 895, 896, 905, 924. Coxe v. Heisley (19 Pa, St. 243), 1264. Coyle v. Baum (3 Okla. 695), 1344, 1822, 1826. Crabtree v. Kile (21 111. 180), 816, 1393, 1805. Crabtree v. Messersmith (19 Iowa, 179), 1089, 1090. Craddook v. Dwight (85 Mich. 587), 1426. Craft v. McConoughy (79 III. 346), 208. Craft v. Parker (96 Mich. 245), 1356, 1357. Cragia v. Coe (29 Conn. 51 \ 599. Craig v. Godfroy (1 Cal. 415), 461. Craig v. Harper (3 Cush. 158), 244. Craig v. Miller (22 U. C. C. P. 348), 1225. Craig v. Van Bebber (100 Mo. 584), 96, 109. Cramer v. Reford (17 N. J. Eq. 367), 973. Crampton v. Marble Co. (60 Vt. 291), 1786. Crane v. Elder (48 Kan. 259), 937. Crane v. Roberts (5 Me. 419), 660. Crane v. Wilson (105 Mich. 554), 1138. Crane Boot & Shoe Co. v. Trentman (34 Fed. R 620), 918. Crane Co. v. Columbus Constr. Co. (46 U. S. App. 52), 1817. Crane Elevator Co. v. Clark (53 U. S. App. 257), 668. Cranson v. Goss (107 Mass. 439), 1054. Crapo v. Kelly (16 Wall. 610). 649. Crapo v. Seybold (36 Mich. 444), 711. Crater v. Binninger (33 N. J. L. 513), L843. Craven v. Ryder (6 Taunt. 433), 774, 1497. ( !raver v. IiornburgC'C Kan. 94), 1344. Cravins v. Gant (4 T. B. Mon. 126), 932. Crawford v. Davis (99 Pa. St. 576), 960, 988. Crawford v. Feder (34 Fla. 397), 138. Crawford v. Forristall (58 N. H. 114), 981, 986. Crawford v. Kirksey (55 Ala. 282), 955, 960. Crawford v. Scovell (94 Pa. St. 48), 74, 77. Crawford v. Spencer (92 Mo. 498), 203. 1031, 1032, 1039. Crawford v. Whittaker (42 W. Va. 430), 1448. Crawshay v. Eades (1 B. & C. 181), 1577, 1602. Crawshay v. Thompson (4 M. & Gr. 357), 876. Cream City Glass Co. v. Friedlander (84 Wis. 53). 1378, 1387.. Creekmore v. Baxter (121 N. C. 31), 72. Creighton v. Comstock (27 Ohio St. 548), 1168. Crenshaw v. Slye (52 Md. 140), 1244. Crestwell Ranch Co. v. Martindale (63 Fed. R. 84), 1149. Creveling v. Wood (95 Pa St. 152), 54. Crist v. Kleber (79 Pa St. 290), 580, 588. Crittenden v. Posey (38 Tenn. 311), 1794. Crittenden v. Schermerhorn (39 Mich. 661), 184. Crites v. Wilkinson (65 Cal. 559), 144. Crocker v. Gullifer (44 Me. 491), 678, 679. Crockett v. Scribner (64 Me. 447), 311. Crofoot v. Bennett (2 N. Y. 258), 496, 497, 499, 516, 519, 524, 527, 703. Croly v. Pollard '(71 Mich. 612), 1309. Crommelin v. N. Y. & H. R. Co. (4 Keyes, 90), 1475. Crompton v. Beach (62 Conn. 25), 619. Crompton v. Pratt (105 Mass. 255), 568, 590. Crommell v. Wilkinson (18 Ind. 365), 1138. TABLE OF CASES CITED. lxxxvii References are to sections: Vol. Croninger v. Paige (48 Wis. 229), 816. Cronk v. Cole (10 Ind. 485), 937. Croockewit v. Fletcher (I H. & N. 893), 861. Crook v. Cowan (64 N. C. 743), 242, 740. Crooks v. Moore (1 Sandf. 297), 1640. Crookshank v. Burrell (18 Johns. 58), 305, 307. Croom v. Shaw.(l Fla. 211), 1281. Crosby v. Baker (6 Allen, 295), 636. Crosby v. Del. and Hud. Canal Co. (119 N. Y. 334), 35, 755. Crosby Hardwood Co. v. Trester (90 Wis. 412), 337, 419. Crosby v. Hill (39 Ohio St. 100), 1447, 1451. Crosland v. Hall (33 N. J. Eq. Ill), 937. Cross v. Eglin (2 B. & Ad. 106), 1168. Cross v. Gardner (1 Show. 68), 931, 1795. Cross v. Huntley (13 Wend. 385), 834. Cross v. O'Donnell (44 N. Y. 661), 362, 365, 393, 742, 1612. Cross v. Peters (1 Greenl. 378), 902, 937. ■Crossen v. Murphy (31 Oreg. 114), 914, 915, 919. Crossley v. Maycock (L. R. 18 Eq. 180), 236. •Crossman v. Johnson (63 Vt. 333), 1227, 1248, 1249. Crossman v. Universal Rubber Co. (127 N. Y. 34), 1411. Crouch v. Carrier (16 Conn. 505), 960. Crouch v. Hall (15 111. 263), 1043. Crow v. Boyd (17 Ala. 51), 17. Crowl v. Goodenberger (112 Mich. 683), 1161. Crown Vinegar Co. v. Wehrs (59 Mo. App. 493), 1694. Croy v. Busenbark (72 Ind. 48), 451. Croyle v. Moses (90 Pa. St. 250), 868, 932, 935. ■Cruess v. Fesoler (39 Cal. 336), 937. I, §§ 1-797; Vol. n. §§ 798-1S50. Cruikshank v. Cogswell (26 111. 366), 963. Cruise v. Christopher (5 Dana, 181), 90. Crumlish v. Central Improvement Co. (38 W. Va. 390), 1467. Crummey v. Raudenbusch (55 Minn. 426), 1474, 1500, 1502, 1518, 1519, 1520. Crymble v. Mulvaney (21 Colo. 203). 964. Cuff v. Penn (1 Maule & Sel. 21). 1151, Culin v. Glass Works (108 Pa. St. 220), 1743. Culin v. Woodbury Glass W T orks (108 Pa. St. 220), 1743. Cullen v. Bimm (37 Ohio St. 236), 1340. Cullom v. Wagstaff (48 Pa. St. 300), 1130. Cuming v. Brown (9 East, 506), 1564. Cummings v. Arnold (3 Mete. 486), 474, 804, 806, 1151. Cummings v. Cass (52 N. J. L. 77), 875. Cummings v. Gilinan (90 Me. 524), 485, 981. Cummings v. Henry (10 Ind. 109), 87. Cummings v. Roebuck (Holt, 172), 468. Cundy v. Lindsay (3 App. Cas. 459), 149, 154, 156. 269. Cunliffe v. Harrison (6 Ex. 903), 746, 1158, 1160. • Cunningham v. Ashbrook (20 Mo. 553), 496, 502, 519, 524, 529. Cunningham v. Brown (44 Wis. 72), 210. Cunningham v. Cureton (96 Ga. 489), 650. Cunningham v. Hall (4 Allen, 268), 1350. Cunningham v. Nat. Bank (71 Ga. 400), 1039. Cunningham v. Trevitt (82 Me. 145i, 603. Cunningham v. Williams (43 Mo. App. 629), 428, 449. lxxxviii TABLE OF CASES CITED. References are to sections: Vol. Cunningham Iron Co. v. Warren Mfg. Co. (80 Fed. R. 878), 1103. Curiven v. Quill (165 Mass. 373), 1350. Curme v. Rauh (100 Ind. 247), 148. Currier v. Knapp (117 Mass. 324), 573, 588, 590, 693. Curry v. St. John Plow Co. (55 111. App. 82), 121. Curtin v. Isaacsen (36 W. Va. 391), 1474, 1485. Curtin v. Somerset (140 Pa. St. 70), 878. Curtis v. Blair (26 Miss. 309), 244 Curtis v. Groat (6 Johns. 168), 639. Curtis v. Pugh (10 Q. B. Ill), 369. Curtis v. Leavitt (15 N. Y. 1), 1048. Curtis Mfg. Co. v. Williams (48 Ark. 325), 1344. Cusack v. Robinson (1 B. & S. 299), 393, 1181, 1496. Cushing v. Breed (14 Allen, 376), 708, 709, 964, 1302. Cushman v. Holyoke (34 Me. 289), 527, 529. Cushman v. Jewell (7 Hun, 525), 628. Cushman v. Thayer Mfg. Co. (76 N. Y. 365), 1724, 1727! Cutler v. Bower (11 Ad. & El. 973), 834. Cutler v. Gilbreth (53 Me. 176), 1809. Cutler v. Pope (13 Me. 377), 337, 341. Cutter v. Powell (2 Smith Lead. Cas. 1212), 1089. Cutting v. Grand Trunk Ry. Co. (13 Allen, 381), 1690. Cutting v. Jackson (56 N. H. 253), 964. Cutting Packing Co. v. Packers' Ex- change (86 Cal. 574), 200. Cutts v. Guild (57 N. Y. 229), 274. Daborich v. Emeric (12 Cal. 161), 1794. Dady v. Condit (163 111. 511), 879. Daggett v. Johnson (49 Vt. 345), 667. Dake Engine Mfg. Co. v. Hurly (09 Mich. 16), 1235. Dakota Stock Co. v. Price (22 Neb. 96), 1124, 1412. I, §§ 1-797; Vol. H, §§ 798-1850. Dale's Case (Cro. Eliz. 44), 931, 1795. Dalrymple v. Scott (19 Ont App. 477), 1089. Dalton v. Bentley (15 111. 420), 839, 1850. Dalton v. Gib (5 Bing. N. Cas. 198), 128, 130. Dalton v. Thurston (15 R I. 418), 906. Daly v. Kimball Co. (67 Iowa, 132), 812. Dalzell v. Fahys Watch Co. (138 N. Y. 285), 1161. Dambmann v. Rittler (70 Md. 380), 264. Dame v. Dame (38 N. H. 429), 333. Dam 111 v. Mason (98 Mich. 237), 578. Damon v. Osborn (1 Pick. 476), 401, 702, 703. Dana v. Binney (7 Vt. 493), 1424. Dana v. Boyd (2 J. J. Marsh. 588), 1392. Dana v. Fiedler (12 N. Y. 40), 1693, 1736. Danbury v. Robinson (1 McCarter, 213), 977. Dando v. Foulds (105 Pa. St. 74), 580, 658. Danforth v. Cushing (77 Me. 182), 884. Danforth v. Walker (37 Vt. 239), 1091, 1702. Daniel v. Hannah (106 Ga. 91), 210, 211. Daniels v. Bailey (43 Wis. 198), 336. Daniels v. Hollenbeck (19 Wend. 408), 1466. Daniels v. Nelson (41 Vt. 161), 167. Daniels v. Newton (114 Mass. 530), 1089, 1090. Danube & Black Sea Co. v. Xenos (13 Com. B. 825), 1089. D'Aquila v. Lambert (Ambler, 399), L526, 1528, 1530. Darby v. Boucher (1 Salk. 279), 132. Darling v. Wilson (60 N. H. 59), 636. Darling v. Younker (37 Ohio St. 487), 1463. TABLE OF CASES CITED. lxxxix References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 708-1850. Darnell v. Rowland (30 Ind. 342), 65. Darst v. Brockway (11 Ohio St. 462), 838, 1849. Dater v. Earl (3 Gray, 482), 1013. Dauphiny v. Red Poll Creamery Co. (123 Cal. 548), 358, 1387. David v. Insurance Co. (83 N. Y. 265), 451. David v. Park (103 Mass. 501), 881. Davidson v. Burke (143 111. 139), 955/ Davidson v. Crosby (49 Neb. 60). 879. Davis v. Bigler (62 Pa. St. 242), 169. Davis v. Bradley (28 Vt. 118), 51, 752, 1194, 1327. Davis v. Bronson (6 Iowa, 410), 1027. Davis v. Bronson (2 N. D. 300), 1091, 1699. Davis v. Budd (60 Iowa, 144), 702. Davis v. Burnett (4 Jones, 71), 1281. Davis v. Caldwell (12 Cush. 512), 128, 130. Davis v. Cook (14 Nev. 265), 148. Davis v. Davis (119 Ind. 511), 1031. Davis v. Dudley (70 Me. 236), 95. Davis v. Emery (11 N. H. 230), 628. Davis v. Fish (1 G. Greene, 408), 1741. Davis v. Giddings (30 Neb. 209), 541. Davis v. Grand Rapids School Furni- ture Co. (41 W. Va. 717), 1089, 1090, 1743. Davis v. Hill (3 N. H. 382), 520, 714. Davis v. Iverson (5 S. Dak. 295), 823, 1251, 1277. Davis v. Koenig (165 Pa. St. 347), 1183. Davis v. Mitchell (34 Cal. 81). 947. Davis v. Moore (13 Me. 424), 401. Davis v. McFarland (37 Cal. 634), 342, 964, 1199. Davis v. Osgood (69 N. H. 427), 650. Davis v. Randall (115 Mass. 547), . Davis v. Reilly (1 Q. B. 1), 1428. Davis v. Robinson (67 Iowa, 355), 1813. Davis v. Rowed (2 Pick. 64), 327, 461. Davis v. Russell (52 Cal. 611), 166, 1507. ' Davis v. Schwartz (155 U. S. 631), 952. Davis v. Shields (26 Wend. 341), 439, 456. Davis v. Sittig (65 Tex. 497), 947. Davis v. Stewart (8 Fed. R. 803), 906. Davis v. Sweeney (75 Iowa, 45), 1340, 1344. Davis v. Turner (3 Gratt. 423), 960. Davis v. Waterman (10 Vt. 526), 1444. Davis v. Zimmerman (40 Mich. 24), 966. Davis' Sons v. Robinson (67 Iowa, 355). 823. Davis Sulphur Ore Co. v. Atlanta Guano Co. (109 Ga. 67), 1629, 1634, 1650. Davison v. Collison (" Times," March 14, 1885), 1561. Davison v. Davis (125 U. S. 90), 555. Davison v. Von Lingen (113 U. S. 40), 1138, 1145. Dawe v. Morris (149 Mass. 188), 870, 874, 885, 937. Dawes v. Peck (8 T. R. 330), 393, 740, 787, 1181, 1496. Dawson v. Collis (10 C. B. 523), 1805. Dawson v. Dawson (12 Iowa, 513), 186. Dawson v. Flash (97 Ala. 530), 955. Dawson v. Pennamen (65 Ga. 698), 820. Day v. Bassett (102 Mass. 445), 573, 588, 590. 093. Day v. Cooley (118 Mass. 524), 973. Day v. Cross (59 Tex. 595), 1167. Day v. Gravel (72 Minn. 159), 499. Day v. Jeffords (102 Ga. 714), 1106. Day v. Mapes-Reeves Construction Co. (174 Mass. 412), 1337, 1391. Day v. McAllister (15 Gray, 433), 1057. Day v. Pool (52 N. Y. 416), 1222, 1272, 1392, 1394, 1395, 1805. Day v. Raguet (14 Minn. 273), 1320, 1321. Day Land & Cattle Co. v. State (68 Tex. 526), 191. xc TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Day-light Burner Co. v. Ocllin (51 N. H. 56), 175. Dayton v. Hooglung (39 Ohio St. 671). 12S7, 1320, 1335, 1393, 1395, 1844. Dayton v. Monroe (47 Mich. 193), 915. Dean v. Connelly (6 Barr, 239), 953. Dean v. Mason (4 Conn. 428), 1254, 1319. Dean v. Morey (33 Iowa, 120), 1272. Dean v. Nichols (95 Iowa, 89), 1385. Dean v. Yates (22 Ohio St. 388), 149, 269, 887, 910. Dearborn v. Raysor (132 Pa. St. 231), 580, 600. Dearborn v. Turner (16 Me. 17), 677, 678. Deason v. Boyd (1 Dana, 45), 121. Deatherage v. Henderson (43 Kan. 684), 1455. Decan v. Shipper (35 Pa, St. 239), 149. Decell v. Lewenthal (57 Mass. 331), 123, 127, 131, 132. Decker v. Fredericks (47 N. J. L. 469), 1281. De Cordova v. Smith (9 Tex. 129), 449. Dederick v. Wolf (68 Miss. 500), 568, 569, 619, 623. Dedman v. Earle (52 Ark. 164), 643. Deel v. Berry (21 Tex. 463), 1442. Deere v. Lewis (51 111. 254), 1741, 1755. Deere v. Needles (65 Iowa, 101), 965. Deering v. Chapman (22 Me. 488), Kill!. Deering v. Thorn (29 Minn. 120), 1286. Defenbaugh v. Weaver (87 111. 132), 1161. Defreeze v. Trumper (1 Johns. 274), isoa Dehority v. Paxson (97 Ind. 253), 382. Deitz v. SutclilFe (80 Ky. 650), 901. Delamater v. Chappell (48 Md. 244), 671, 1887. Deland v. Vanstone (26 Mo. App. 297), 336. Delano v. Blake (11 Wend. 85), 121. Delano v. Case (121 111. 247), 878. De La Vergne, etc. Co. v. New Or- leans, etc. R. Co. (51 La. Ann. 1733), 1374. Delavina v. Hill (65 N. H. 94), 1013, 1022. Delaware, The (14 Wall. 579), 1254. Dellone v. Hull (47 Md. 112), 912. De Mattos v. Gibson (4 De G. & J. 276', 1719, Demens v. Le Moyne (26 Fla. 323), 1375. Demeritt v. Miles (22 N. H. 523), 947. Deming v. Chase (48 Vt. 382), 1281, 1294. Deming v. Darling (148 Mass. 504), 893, 936, 937, 1242. Deming v. Foster (42 N. H. 165), 1259, 1314, 1315, 1349. Dempsey v. Gardner (127 Mass. 381), 964, 1193. Dennis v. Alexander (3 Pa. St. 50), 499, 516, 527. Dennis v. Jones (44 N. J. Eq. 513), 909. Dennis v. Stoughton (55 Vt. 371), 1129. Denny v. Williams (5 Allen, 1), 373. Densmore v. Turner (14 Neb. 392), 960. Denver, etc. Ry. Co. v. Atchison, etc. Ry. Co. (15 Fed. R.), 208. Derby v. Johnson (21 Vt. 17), 1091. Derby v. Weyrioh (8 Neb. 174), 950. Derbyshire's Estate, In re (81 Pa. St. 18)," 755. Dermott v. Jones (2 Wall. 1), 1105. Derosia v. Winona, etc. R. Co. (18 Minn. 133), 1133. Derrick v. Pierce (94 Ga. 466), 603. Derry v. Peek (14 App. Cas. 337), 856, 863, 876, 878, 932. De St. Germain v. Wind (3 Wash. Terr. L89), 569. Desany v. Thorp (70 Vt. 31), 599, 603, 636. Des Forges v. Pugh (93 N. C. 31), 892. TABLE OF OASES CITED. XC1 References are to sections: Vol. I, §§ 1-797; Vol. IT, §§ 798-1850. Desha v. Pope (6 Ala. 690), 51. 752. Desilver, Estate of (5 Rawle, 110), 72, 77. Detroit Chamber of Commerce v. Goodman (110 Mich. 498), 137. Detroit Heating Co. v. Stevens (16 Utah, 177), 1387. Devane v. Fennell (2 Ired. 36), 205, 520, 523. Devaux v. Conolly (8 C. B. 640), 839, 1850. Devine v. Edwards (101 111. 138), 733, 741, 839, 1184. Devine v. Edwards (87 111. 177), 1850. Devlin v. Mayor of N. Y. (63 N. Y. 8), 1762. Devlin v. O'Neill (6 Daly, 305), 601. Devlin v. Smith (89 N. Y. 470), 878. Dewes Brewery Co. v. Merritt (82 Mich. 198), 564, 588, 597, 599. Dewey v. Erie Borough (14 Pa. St. 211), 661, 662, 1384. Dewey v. Thrall (13 Vt. 284). 965. Dewing v. Perdicaries (96 U. S. 193), 1024. De Witt v. Berry (134 U. S. 306), 1240, 1254, 1259, 1339. De Witt v. Van Sickle (29 N. J. Eq. 209), 953. Dewitt v. Walton (9 N. Y. 571), 451. De Wolf v. Gardner (12 Cush. 19), 752, 788. Dexter v. Hall (15 Wall. 9), 72, 77. Dexter v. Norton (47 N. Y. 62), 199, 513, 1100, 1103. Dexter v. Parkins (22 111. 143), 960. Deyo v. Hammond (102 Mich. 122), 211, 1235. Deyoe v. Jamison (33 Mich. 94), 606, 628. Dial v. Crane (10 Tex. 444), 804. Dias v. Chickering (64 Md. 348), 165. Dibblee v. Sheldon (10 Blatch. 178), 908, 909. Dickens v. Williams (2 B. Mon. 374), 1242. Dickenson v. Gapp (8 Bing. 50), 1276. Dickey v. Waldo (97 Mich. 255), 199, 200. Dickinson v. Dickinson (29 Conn. 600), 328. Dickinson v. Dodds (2 Ch. Div. 463), 252, 253, 257. Dickinson v. Follett (1 M. & Rob. 299), 1270. Dickinson v. Gay (7 Allen, 29), 1320, 1326, 1328. Dickinson v. Hall (14 Pick. 217), 834. Dickinson v. King (28 Vt. 378), 1424. Dickson v. Jordan (11 Ired. L. 166), 1311, 1314. Dickson v. Thomas (97 Pa. St. 278), 1031. Dickson v. Zizinia (10 C. B. 602), 1259. Diebold Safe Co. v. Holt (4 Okl. 479), 1183. Diebold Safe & Lock Co. v. Huston (55 Kan. 104), 1254, 1337, 1349. Diehl v. McCormick (143 Pa. St. 584), 492. Diem v. Koblitz (49 Ohio St. 41), 1121, 1472, 1539, 1611, 1626. Dierson v. Petersmeyer ( Iowa, — ), 325, 358, 400. Dietz v. Sutcliffe (80 Ky. 650), 1411. Diggs v. Denny (86 Md. 116), 906. Dignan v. Spurr (3 Wash. 309), 1389. Dike v. Reitlinger (23 Hun, 241), 652, 1223. Dilenbeck v. Rehse (105 Iowa, 749), 1459. Dill v. Bowen (54 Ind. 204), 109. Dill v. Mumford (19 Ind. App. 609), 1633. Dill v. O'Ferrell (45 Ind. 268), 916. Dillman v. Nadlehoffer (119 111. 567), 880. Dillon v. Anderson (43 N. Y. 231), 1702. Dillon v. Bowles (77 Mo. 603), 130. Dil worth v. Bradner (85 Pa. St. 238), 875. xcn TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 793-1850. Dingle v. Hare (7 C. B. 245), 1281. Dingley v. Oler (11 Fed. R. 872), 1090. Dingley v. Oler (117 U. S. 490), 1087, 1090, 1130, 1134. Dinker v. Potts (90 Ga. 103), 892, 924. Dinney v. Johnson (8 N. Dak. 153), 358. Disborough v. Neilson (3 Johns. Cas. 81), 264, 1170. Disbrow v. Secor (58 Conn. 35), 187. Dist. of Columbia v. Clephane (110 U. S. 212), 1349. Ditman v. Cottrell (125 Pa. St. 606), 580. Dittmar v. Norman (118 Mass. 319), 46. Diversy v. Kellogg (44 111. 114), 175, 739, 1372. Divine v. McCormick (50 Barb. 116), 1356, 1357. Dixon, Ex parte (4 Ch. Div. 133), 1451. Dixon v. Baldwin (5 East, 175), 1559, 1577. Dixon v. Blondin (58 Vt. 689), 565, 649. Dixon v. Fletcher (3 M. & W. 145), 746, 1158, 1161. Dixon v. Hill (5. Mich. 404), 924, 952. Dixon v. Yates (5 B. & Ad. 313), 281, 484, 493, 1119, 1129, 1485, 1499, 1502, 1602. Doane v. Dunham (65 111. 512), 1140, 1375, 1393, 1402. Doane v. Lockwood (115 111. 490), 148, 915. Dobell v. Hutchinson (3 Ad. & E. 355), 426, 428. Dodd v. Bowles (3 Wash. Terr. 383), 588, 597. Dodd v. St. John (22 Oreg. 250), 139. Dodge v. Emerson (131 Mass. 467), 1434 Dodge v. Meyer (61 Cal. 405), 1194. Dodsley v. Varley (12 Ad. & El. 632), 1471. Dodson v. Harris (10 Ala. 566), 1058. Dodson v. Wentworth (4 Man. & G. 1080), 1577. Dodsworth v. Hercules Iron Works (31 U. S. App. 292), 1387. Doe v. Knight (5 B. & C. 71), 259. Doe v. Oliver (2 Sm. L. C. 803), 845. Dolan v. Green (110 Mass. 322), 739. Dolan v. Van Demark (35 Kan. 304), 963. Dole v. Olmstead (36 111. 150), 642. Dole v. Stimpson (21 Pick. 384), 386. Domestic Sewing Mach. Co. v. An- derson (23 Minn. 57), 547. Donaldson v. Farwell (93 U. S. 631), 901, 924. Donaldson v. Rouzan (8 Mart., N. S., 163), 8. Donath v. Broomhead (7 Pa. St. 301), 1586. Donnell v. Hearn (17 N. Y. Wkly. Dig. 463), 305. Donohue v. Woodbury (6 Cush. 148), 1420. Donovan v. Daiber ( — Mich. — ), 1031, 1032. Donovan v. Gathe (3 Colo. App. 151), 964. Donovan v. Willson (26 Barb. 138), 305. Doran v. Eaton (40 Minn. 35), 1843. Doremus v. Howard (23 N. J. L. 390), 1671. Dorman v. Soto ( Cal. — ), 964. Dorman v. Weakley ( Tenn. — ), 906. Dorntee Casket Co. v. Gunnison (69 N. H. 297), 650. Dorrance v. Dean (106 N. Y. 203), 169. Doty v. Knox County Bank (16 Ohio St. 133), 1004." Doty v. Wilder (15 111. 407), 461. Doubleday v. Kress (50 N. Y. 410), 1453, 1459. Doucet v. Richardson (67 N. H. 186), 964. Dougherty v. Cooper (77 Mo. 528), 952. Doughty v. Manhattan Brass Co. (101 N. Y. 644), 428. TABLE OF CASES CITED. XC111 References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Douglas v. People's Bank (86 Ky. 176), 788. Douglas v. Shu m way (13 Gray, 498), 336, 1492. Douglass v. Moses (89 Iowa, 40), 1248, 1817, 1818. Douglass v. Spears (2 N. & McC. 207), 425, 449. Douglass Axe Mfg. Co. v. Gardner (10 Cush. 88), 1807, 1808. Dounce v. Dow (57 N. Y. 10), 1222, 1237, 1314, 1395. Dow v. Sanborn (3 Allen, 181), 901. Dow v. Worthen (37 Vt. 108), 415. Dowdell v. Empire Furn. Co. (84 Ala. 316), 620. Dowling v. Betjeraan (2 Johns. & Hem. 544), 1723. Dowling v. Lawrence (58 Wis. 282), 869, 935. Dowling v. McKenney (124 Mass. 478), 16. Downer v. Thompson (6 Hill, 208), 1159. Downer v. Thompson (2 Hill, 137), 746. Downing v. Dearborn (77 Me. 457), 1344. Downs v. Marsh (29 Conn. 409), 746, •1161. Downs v. Ross (23 Wend. 270), 293, 305, 307, 324. Dows v. Greene (24 N. Y. 638), 166. Dows v. Kidder (84 N. Y. 121), 543, 554, 890. Dows v. Milwaukee Bank (91 U. S. 618), 782. Dows v. Nat. Exch. Bank (91 U. S. 618), 774, 779, 792. Dozier v. Matson (94 Mo. 328), 955. Drain v. Doggett (41 Iowa, 682). 1455. Drake v. Seaman (97 N. Y. 230), 426. Drake v. Vorse (52 Iowa, 417), 263. Drake v. Wells (11 Allen, 141), 336, 626, 1191. Draper v. Jones (11 Barb. 263), 478. Draper v. Rice (56 Iowa, 114), 1461. Dressel v. Jordan (104 Mass. 407), 425, 450. Dressel v. Lonsdale (46 111. App. 454), 138. Dresser v. Ainsworth (9 Barb. 619), 1304, 1797. Dresser Mfg. Co. v. Waterston (3 Met. 9), 549. Drew v. Beall (62 111. 167), 1843. Drew v. Edmunds (60 Vt. 401), 1235, 1237, 1272, 1334. Drew v. Pedlar (87 Cal. 443), 629. Drews v. Logging Co. (53 Minn. 199), 1265. Driggs v. Norwood (50 Ark. 42), 957. Drummond v. Van Ingen (12 App. Cas. 284), 1329, 1331, 1340, 1342, 1344, 1346, 1377. Drurey v. Hervey (126 Mass. 519), 626, 627. Drury v. Defontaine (1 Taunt. 131), 1045, 1052. Drury v. Wilson (38 N. Y. S. 538), 964. Drury v. Young (58 Md. 546), 428, 451. Dube v. Beaudry (150 Mass. 448), 118. Dubois v. Spinks (114 Cal. 289), 964. Dubose v. Wheddon (4 McCord, 221), 124. Duchman v. Hagerty (6 Watts, 65), 1004 Dudley v. Abner (52 Ala. 572), 599. Dudley v. Mallery (4 Ga. 52). 1719. Duff v. Budd (3 Brod. & B. 177), 887. Duff v. Williams (85 Pa. St. 490), 875. Duffield v. Scott (3 D. & E. 210), 1798. Dufour v. Camfranc (11 Mart. 610 , 8. Duffus v. Furnace Co. (15 Misc. 169), 603. Dugan v. Anderson (36 Md. 567), 1089, 1090. Dugan v. Gittings (3 Gill, 138), 955. Dugan v. Nichols (125 Mass. 43), 961. Duggan v. Pacific Boom Co. (6 Wash. 593), 1425. XC1V TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Duke v. Shackleford (56 Miss. 553), 629. Duke of Somerset v. Cookson (3 P. Wms. 390), 1719. Dulaney v. Green (4 Harr. 285), 82. Dulaney v. Rogers (64 Mo. 201), 875. Dunnage v. White (1 Wils. Cli. 67), 73. Dunnahoe v. Williams (24 Ark. 264), 178. Dunbar v. Johnson (108 Mass. 519), 1004. Dunbar v. Locke (62 N. H. 442), 1028. Dunbar v. Marden (13 N. H. 311), 834. Dunbar v. Rawles (28 Ind. 225), 599. Duncan v. Cashin (L. R. 10 C. P. 554), 135. Duncan v. Topham (8 Com. Bench, 225), 251, 1134. Duncomb v. Tickridge (Aleyn, 94), 126. Duncuft v. Albrecht (12 Sim. 189), 329. Dunkart v. Rineheart (89 N. C. 354), 702. Dunkirk Colliery Co. v. Lever (9 Ch. D. 20), 1770. Dunks v. Fuller (32 Mich. 242), 909. Dunlap v. Berry (5 111. 327), 714. Dunlap v. Bournonville (26 Pa. St. 72). 966. Dunlap v. Gleason (16 Mich. 158), 599. Dunlap v. Hawkins (59 N. Y. 342), 972. Dunlop v. Higgins (1 H. L. Cas. 387), 244, 245, 247, 251, 252, 25& Dunlop v. Lambert (6 C. & F. 600), 393, 733, 711, 743, 71 1. 787, 1181, 149ft Dunman v. Strother (1 Tex. 89), 1442. Dunmore v. Alexander (9 Shaw cV' Dunlop, 190), 362. Dunn v. Bell (85 Tenn. 581), 1031. Dunn v. State (82 Ga. 27), 1029. Dunn v. Swan | 115 Mich. 409), 200. Dun ton v. Brown (31 Mich. 182), 107. Duplanty v. Stokes (103 Mich. 630), 1374. Duplex Safety Boiler Co. v. Garden (101 N. Y. 387), 668. Durfee v. Jones (11 R. L 588), 273, 274. Durgy Cement Co. v. O'Brien (123 Mass. 12), 1537, 1539, 1571. Durgin v. Dyer (68 Me. 143), 1045, 1050. Durkee v. Moses (67 N. H. 115), 1028. Durkee v. Vermont Cent. R. R. Co. (29 Vt. 127), 247. Durr v. Hervey (44 Ark. 301), 1507. Durr v. Replogle (167 Pa. St. 347), 620. Durrell v. Evans (6 H. & N. 660), 460. Durrell v. Evans (1 H & C. 174), 451, 460, 462. Durst v. Burton (47 N. Y. 167), 1693. Dushane v. Benedict (120 U. S. 630), 1345. Dustan v. Mc Andrew (44 N. Y. 72), 1618, 1643, 1677, 1678, 1682, 1693. Dustin v. Cowdry (23 Vt. 6 16), 907. Dutcher v. Beckwith (45 111. 460), 1445. Dutcher v. Wright (94 U. S. 553), 1540. Dutchess Co. v. Harding (49 N. Y. 321), 1392, 1397. Dutton v. Solomonson (3 B. & P. 582), 736, 740, 787, 1181. Duval v. Mowry (6 R I. 479), 915, 919. D wiggins v. Clark (94 Ind. 49), 1633. D wight v. Eckert (117 Pa. St. 490), 1127, 1130. Dwight v. Elmira, etc. R, Co. (132 N. Y. 199), 1828. Dwinel v. Howard (30 Me. 258), 1084, 1148. Dyokman v. Valiente (43 Barb. 131), 755. Dyer v. Great Northern Ry. Co. (51 Minn. 345), 736. Dyer v. Homer (22 Pick. 253), 836, 947. Dyer v. Taylor (50 Ark. 314), 953. Dykers v. Townsend (24 N. Y. 57), 431. Eadie v. Ashbaugh (44 Iowa, 519), 1288. Eagan Co. v. Johnson (82 Ala 233), | 1395. TABLE 01* CASES CITED. xcv References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Eagle v. Eichelberger (6 Watts, 28), 960, 988. Eagle Bank v. Smith (5 Conn. 71), 1422. Eagle Iron Works v. Des Moines Suburban Ry. Co. (101 Iowa, 289), 1805, 1819, 1837. Earl of Glengal v. Barnard (1 Keen, 769), 460. Earle v. Coburn (180 Mass. 596), 1475. Earle v. Peale (1 Salk. 386), 132. Earle v. Reed (10 Mete. 387), 122, 123, 124. Earley v. Garrett (9 B. & C. 928), 1311. East Tenn. R. Co. v. Hunt (15 Lea, 261), 1475. Eastern Granite Co. v. Heira (89 Iowa, 698), 1106. Eastman v. Avery (23 Me. 248), 39. Eaton v. Avery (83 N. Y. 31), 878, 895. Eaton v. Cook (32 Vt. 58), 1532, 1562, 1563, 1604. Eaton v. Davidson (46 Ohio St. 355), 924. Eaton v. Eaton (37 N. J. L. 108), 72, 74, 77. Eaton v. Kegan (114 Mass. 433), 1050. Eaton v. Munroe (52 Me. 63), 636, 638. Eaves v. Estes (10 Kan. 314), 647. Eberle v. Mehrbach (55 N. Y. 682), 1052. Eberstadt v. Jones (19 Tex. App. 480), 1046. Echols v. New Orleans, etc. R. Co. (52 Miss. 610), 1131. Echols v. Railroad Co. (52 Miss. 610), 1132. Eckenrode v. Chemical Co. (55 Md. 51). 1089, 1092. Eckert v. Schoch (155 Pa. St. 530), 242, 246. Eckstein v. Downing (64 N. H. 248), 1718, 17-27. Eclipse Wind Mill Co. v. Thornton (46 Iowa, 181), 1451. Edan v. Dudfield (1 Q. B. 302), 389, 1490. Eddy v. Capron (4 R. I. 394), 1042. Eddy v. Clement (38 Vt. 486', 1103. Edelhoff v. Horner Mfg. Co. (86 Md. 595), 905. Edelman v. Latshaw (180 Pa. St. 419), 899. Eden v. Parkinson (2 Doug. 733), 1266. Edgar v. Boies (11 Serg. & R. 445), 1440. Edgar v. Breck (172 Mass. 581), 401, 1334, 1827. Edgecombe v. Rodd (5 East, 294), 1466. Edgerly v. Shaw (25 N. H. 512), 96, 121. Edgerton v. Hodge (41 Vt. 676), 418. Edgewood Distilling Co. v. Shannon (60 Ark. 133), 564. Edgington v. Fitzmaurice (29 Ch. Div. 459), 876. Edick v. Crini (10 Barb. 445), 1302. Edison Gen'l Elec. Co. v. Walter (10 Wash. 14), 564. Edmond v. Caldwell (15 Mo. 340), 1424. Edmunds v. Merchants' Desp. Trans. Co. (135 Mass. 283), 149, 267, 269, 887. Edmunds v. Mister (58 Miss. 765), 121. Edrington v. Rogers (15 Tex. 188), 953. Edson v. Hudson (83 Mich. 450), 906, 923, 924. Edward Hines Lumber Co. v. Alley (43 IT. S. App. 169), 1087, 1090. Edwards' Appeal (105 Pa. St. 103), 580. Edwards v. Brewer (2 Mees. & W. 375), 1577, 1604. Edwards v. Dickson (66 Tex. 613), 960. Edwards v. Dillon (147 111. 14), 1344, 1354. Edwards v. Grand Trunk Ry. Co. (54 Me. 105), 311. Edwards v. Grand Trunk Ry. Co. (48 Ma 379\ 293, 311, 324. Edwards v. Harben (2 T. R. 587), 9C). Edwards v. Marcy (2 Allen, 486), 1244. XCV1 TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Edwards v. Meadows (71 Ala. 42), 1193. Edwards v. Railway Co. (54 Me. 105), 382, 386, 1665. Edwards v. Randle (63 Ark. 318), 1042. Edwards v. Sanborn (6 Mich. 348), 1790. Egan v. Barclay Fibre Co. (61 Fed. R. 527), 1134. Eggleston v. Wagner (46 Mich. 610), 228, 234, 437. Eichelbarger v. McCauley (5 H. & J. 213), 307, 323. Eicholtz v. Bannister (17 Com. B. 708), 838, 1301, 1793, 1849. Eidson v. Hedger (38 Mo. App. 52), 603. Eighmie v. Taylor (98 N. Y. 288), 1254, '1255. Eiland v. Radford (7 Ala. 724), 688, 692. Eisenberg v. Nichols (22 Wash. 70), 603. Eland v. Karr (1 East, 375), 1438. Elbinger Actien-Gesellschaft v. Arm- strong (L. R. 9 Q. B. 473), 1766, 1770. Eldridge v. Benson (7 Cush. 483), 48. Electric Lighting Co. v. Rust (117 Ala. 680), 202. Electric Service Co. v. Gill-Alexan- der Co. (125 Mo. 140), 1718. Electro Dynamic Co. v. The Electron (74 Fed. R. 689), 1304. Elerick v. Reid (54 Kan. 579), 937. Elgee Cotton Cases, The (22 Wall. 180), 508, 509, 513, 514, 520, 531, 532. Eliason v. Henshaw (4 Wheat. 225), 228, 229, 233, 239, 244, 249. El kins v. Kenyon (34 Wis. 93), 1235. El kins v. McKean (79 Pa. St. 493), 878. Klkins v. Parkhurst (17 Vt. 105), 1050. Ellen v. Topp (6 Exch. 424), 861, 1106. Ellershaw v. Magniac (6 Ex. 570), 7:;.-), 774, 779. 784, 787. Ellis v. Allen (80 Ala. 515), 144. Ellis v. Andrews (56 N. Y. 83), 893, 936. Ellis v. Bonner (80 Tex. 198), 761. Ellis v. Denver, etc. Ry. Co. (7 Colo. App. 350), 318. Ellis v. Gosney (7 J. J. Marsh. 109), 1794. Ellis v. Hammond (57 Ga. 179), 1053. Ellis v. Hilton (78 Mich. 150), 1826. Ellis v. Holland (98 Ga. 154), 597. Ellis v. Hunt (3 T. R 464), 1577, 1601. Ellis v. Mathews (19 Tex. 390), 64, 65. Ellis v. Mortimer (1 Bos. & P. N. R. 257), 660. Ellis v. Roche (73 111. 280), 746. Ellis v. Thompson (3 Mees. & Wels. 445), 1129. Elliot v. Hall (2 Idaho, 1142), 950. Elliott v. Bradley (23 Vt. 217), 51. Elliott v. Cox (48 Ga. 39), 51, 752. Elliott v. Dean (Cab. & El. 283), 428. Elliott v. Edwards (35 N. J. L. 265), 755. Elliott v. Puget Sound, etc. Co. (22 Wash. 220), 1836. Elliott v. Von Glehn (13 Q. B. 632), 861. Ellithorpe Air Brake Co. v. Sire (41 Fed. R. 662), 1106. Elmer v. Pennel (40 Me. 430), 834. Elmore v. Fitzpatrick (56 Ala. 400), 636. Elmore v. Kearney (23 La. Ann. 479), 749. Elmore v. Kingscote (5 B. & C. 583), 438, 448. Elmore v. Stone (1 Taunt. 457), 385, 386, 964. Elphick v. Barnes (5 C. P. Div. 321), 658, 677. Elston v. Jasper (45 Tex. 409), 69, 72. El wood v. May (24 Neb. 375), 955. Elwood v. McDill (105 Iowa, 437), 1807. Ely v. James (123 Mass. 36), 1424. TABLE OF CASES CITED. XCV11 References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Ely v. Webster (102 Mass. 304), 1018. Embrey v. Jemison (131 U. S. 336), 1039. Emma Silver Mining Co. Lim. v. Emma Silver Min. Co. of N. Y. (7 Fed. R. 401), 910. Emerson v. European, etc. Ry. Co. (G7 Me. 387), 199, 200, 202. Emerson v. McNamara (41 Me. 565), 908. Emerson v. Steel Co. (100 Mich. 127), 1411. Emerine v. O'Brien (36 Ohio St. 491), 1429. Emery's Sons v. Irving Nat. Bank (25 Ohio St. 360), 779, 788, 790. Emmersonv. Heelis(2 Taunt. 38), 460, 461. Emonds v. Termehr (60 Iowa, 92), 954. Empire State Type Foundry Co. v. Grant (114 N. Y. 40), 541, 546, 547, 549. Empire State Phosphate Co. v. Hel- ler (61 Fed. R. 280), 1130. Ender v. Scott (11 111. 35), 1237. Endsley v. Johns (120 111. 460), 875, 877. Enger v. Dawley (62 Vt. 164), 1237, 1240. England v. Adams (157 Mass. 449), 1411. England v. Forbes (7 Houst. 301), 483, 485, 549, 892. Englebert v. Troxell (40 Neb. 195), 109, 132. Englehart v. Clanton (83 Ala. 336), 1245. English v. Spokane Commission Co. (15 U. S. App 218), 1265, 1298, 1340, 1393, 1395. English v. Spokane Comm. Co. (48 Fed. R. 196), 1335, 1393, 1395. English v. Spokane Comm. Co. (57 Fed. R. 451), 1393. Engeman v. Taylor (46 W. Va. 669), 932. Enlow v. Klein (79 Pa. St. 488), 32, 580, 588, 600. Ennis v. Borner (40 C. C. A. 249), 868. Ennis v. Buckeye Pub. Co. (44 Minn. 105), 1709. Ensley Lumber Co. v. Lewis (121 Ala. 94), 599. Epperson v. Nugent (57 Miss. 45), 130, 132. Equitable Foundry Co. v. Hersee (103 N. Y. 25), 908, 909. Equitable Gas L. Co. v. Baltimore Coal Tar & Mfg. Co. (63 Md. 285), 1721. Erdall v. Atwood (79 Wis. 1), 955. Erickson v. Fisher (51 Minn. 300), 1841. Erie City Iron Works v. Barber (106 Pa. St. 125), 875. Ernst v. Crosby (140 N. Y. 364), 1022. Erskine v. Swanson (45 Neb. 767), 1235, 1237, 1238. Erskine v. Plummer (7 Me. 447\ 337. Erwin v. Arthur (61 Mo. 386), 491. Erwin v. Harris (87 Ga. 333), 779. Erwin v. Maxwell (3 Murphey, 241), 1237, 1243, 1268, 1311. Erwin v. Torrey (8 Martin, 90), 1479. Estabrook v. Swett (116 Mass. 303), 915. Estate of Davis (5 Whart, 530), 1423. Estep v. Fenton (66 111. 467), 1393. Esterly v. Campbell (44 Mo. App. 621), 670. Esterly Harvesting Mach. Co. v. Berg (52 Neb. 147), 871. Estey v. Birnbaum (9 S. Dak. 174), 1425. Estey v. Truvel (25 Mo. App. 238), 1571. Etchepane v. Aguirre (91 Cal. 288), 960, 964. Etheridge v. Vernoy (70 N. C. 713), 880. Eureka Co. v. Edwards (71 Ala. 248), 109. XCV111 TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Eureka Fertilizer Co. v. Baltimore Copper Rolling Co. (78 Md. 179), 1255. Eureka Iron Works v. Bresnahan (66 Mich. 489), 953. Evans v. Collins (5 Q. B. 804), 876. Evans v. Dravo (24 Pa. St. 62), 947. Evans v. Edmonds (13 C. B. 777), 876, 1223. Evans v. Gerry (174 111. 595), 871, 893, 936. Evans v. Scott (89 Pa. St. 136), 960, 964, 988. Evansville, etc. R. Co. v. Erwin (84 Ind. 457), 543, 554, 1660. Everett v. Hall (67 Me. 498), 556, 588, 592, 597, 630. Everett v. Parks (62 Barb. 9), 738. Everett v. Taylor (14 Utah, 242), 964, 1132. Everingham v. Meighan (55 Wis. 354), 1031. Eversman v. Clements (6 Colo. App. 224), 964. Everson v. Carpenter (17 Wend. 419), 121. Evert v. Kleimenhagen (6 S. Dak. 221), 1055. Ewing v. French (1 Blackf. 353), 25. Ewins v. Gordon (49 N. H. 444), 263. Exhaust Ventilator Co. v. Chicago, etc. R. Co. (66 Wis. 218), 667, 668. Exhaust Ventilator Co. v. Railroad Co. (6 Wis. 454), 670, 1402. Eyers v. Had den (70 Fed. R. 648), 1242, 1807. Eyre v. Eyre (19 N. J. Eq. 42), 947. Ezell v. Franklin (2 Sneed, 236), 1281, 1294. Ezzard v. Frick (76 Ga. 512), 602. Fahey v. Esterly Mach. Co. (3 N. Dak. 220), 1384, 1386. Faikney v. Reynous (4 Burr. 2069), 1012, 1015. Fail v. McRee (36 Ala. 61), 1712. Fairbank Canning Co. v. Metzger (118 N. Y. 260), 1222, 1235, 1237, 1335, 1356, 1358, 1392, 1393, 1395. Fairbanks v. Eureka Co. (67 Ala. 109 , 599. Fairbanks v. Malloy (16 111. App. 277), 629. Fairbanks v. Phelps (22 Pick. 535), 588, 610. Fairchild v. McMahon (139 N. Y. 290), 893, 937. Fairfax v. N. Y. Cent. R Co. (73 N. Y. 167), 1743. Fairfield v. Madison Mfg. Co. (38 Wis. 346), 658, 660, 1155, 1208. Fairfield Bridge Co. v. Nye (60 Me. 372), 960. Fairmount Glass Works v. Gunden- Martin Woodenware Co. ( — Ky. — ), 224. Fairmount Ry. Co. v. Stuller (154 Pa. St. 375), 122. Faisst v. Waldo (57 Ark. 270), 605. Fait & Slagle Co. v. Truxton (1 Pennew. 24), 905, 924. Falconer v. Smith (18 Pa. St. 130), 1248, 1844 Falk, Ex parte (14 Ch. Div. 446), 1570, 1583. Falk v. Fletcher (18 C. B., N. S.. 403), 787. Fallon v. Murray (16 Mo. 168), 1798. Falls v. Gaither (9 Port. 614), 247. Falvey v. Richmond (87 Ga. 99), 1181. Farebrother v. Simmons (5 B. & Aid. 333), 461, 462. Fareira v. Gabell (89 Pa. St. 89), 1032. Fargo Gaslight Co. v. Fargo Gas Co. (4 N. Dak. 218), 1841, 1843. Farina v. Home (16 M. & W. 119), 387, 524, 1194, 1493. Farley v. Lincoln (51 N. H. 577;, 148, 924. Farley v. Parker (6 Oreg. 105), 72. Farlow v. Ellis (15 Gray, 229), 549, 551, 552. TABLE OF CASKS CITED. XC1X References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Farmeloe v. Bain (1 Com. PI. Div. 445), 1504. Farmer v. Gray (16 Neb. 401), 401. Farmer v. Robinson (2 Camp. 339), 470. Farmers' Nat. Bank v. Atkinson (74 N. Y. 587), 169. Farmers', etc. Bank v. Logan (74 N. Y. 568), 776, 780. Farmers' Phosphate Co. v. Gill (69 Md. 537), 492, 519, 740. Farmers' Stock-Breeding Ass'n v. Scott (53 Kan. 534), 1247, 1254. Farmington v. Jones (36 N. H. 271), 186. Farnswoith v. Duffner (142 U. S. 43), 879. Fa mum v. Pitcher (151 Mass. 470), 1085, 1194 Farquhar v. McAlevy 1 142 Pa St. 233), 569, 580, 581, 600. Farr v. Sims (Rich. Eq. Cas. 122), 945. Farr v. Stevens (26 Vt. 299), 1424 Farr v. Sumner (12 Vt. 32), 109. Farr v. Swigart (13 Utah, 150), 1132. Farrar v. Churchill (135 U. S. 247), 879. Farrar v. Peterson (52 Iowa, 420), 1288. Farrell v. Richmond, etc. R. Co. (102 N. C. 390), 1542, 1571, 1582, Farrington v. Putnam (90 Me. 405), 142. Farrington v. Smith (77 Mich. 550), 1380, 1382. Farrow v. Andrews (69 Ala. 96), 1245. Farrow v. Cochran (72 Me. 309), 1805. Farwell v. Hanchett (120 111. 573), 915, 928. Farwell v. Kloman (45 Neb. 424), 927. Farwell v. Myers (59 Mich. 179), 909. Farwell v. Rogers (4 Cush. 460), 1136. Farwell v. Solomon (170 Mass. 457), 1092. Faulds v. Yates (57 111. 416), 208. Faulkner v. Klamp (16 Neb. 174), 918. Fawcett v. Osborn (32 111. 411), 269, 923, 1302. Fay v. Burdett (81 Ind. 433.. 72, 73, 74, 77. Fay v. Oliver (20 Vt. 118), 914. Fay v. Richmond (43 Vt. 25), 1281. Fay v. Wheeler (44 Vt. 292), 328. Fechheimer v. Baum (37 Fed. R. 167), 878, 893, 895. Feineman v. Sachs (33 Kan. 621), 1013, 1019, 1027. Feise v. Wray (3 East, 93), 1530, 1532, 1604 Feldman v. Shea (— Idaho, ), 188. Felker v. Emerson (16 Vt, 653), 178. Fell v. Muller (78 Ind. 507), 1633. Fell v. Newberry (106 Mich. 542), 1709. Fellows v. Northrup (39 N. Y. 117), 1459. Fells v. Read (3 Ves. 70), 1719. Felsenthal v. Hawks (50 Minn. 178), 1394. Felthouse v. Brindley (11 C. B., N. S., 869), 234, 238. Fenelon v. Hogaboom (31 Wis. 172), 543. Fenkhausen v. Fellows (20 Nev. 312). 1542. Fennell v. Ridler (5 Barn. & Cr. 406), 1056. Fenton v. Braden (2 Cranch, 550), 207. Fenton v. Ham (35 Mo. 409), 947. Fenton v. White (1 South. 100), 124. Ferdon v. Cunningham (20 How. Pr. 154), 1051. Ferguson v. Carrington (9 B. & C. 59), 912, 1411. Ferguson v. Clifford (37 N. H. 86), 542, 543, 554, 649. Ferguson v. Hosier (58 Ind. 438), 1395. Ferguson v. Northern Bank of Ken- tucky (14 Bush, 555), 702, 714. Ferguson v. Wilson ( — Mich. — ), 202. Ferrier v. Storer (63 Iowa, 484), 244 247. TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Ferris v. Spooner (102 N. Y. 10), 1089. Fessenden v. Mussey (11 Cush. 127), 434, 451, 456. Fetrow v. Wiseman (40 Ind. 148), 109. Fetti place v. Gorges (1 Ves. Jr. 46), 135. Fettyplace v. Dutch (13 Pick. 388), 788. Feurt v. Rowell (62 Mo. 524), 649. Fickett v. Swift (41 Me. 65), 311. Fiegel v. Latour (81 J Pa. St. 448), 1831. Field v. Lucas (21 Ga. 447), 70. Field v. Mayor (6 N. Y. 179), 200. Field v. Morse (54 Neb. 789), 875. Field v. Runk (22 N. J. L. 525), 1124. Fields v. Williams (91 Ala. 502), 588. 592. Fi field v. Elmer (25 Mich. 48), 599. Figge v. Hill (61 Iowa, 430), 1235, 1238, 1244. Filkins v. Whyland (24 Barb. 379), 1255. Filley v. Pope (115 U. S. 213), 810, 1138, 1139, 1155, 1208. Filley v. Walker (28 Neb. 506), 1106. Finch v. Barclay (87 Ga. 393), 1050. Finch v. Gregg (126 N. C. 176), 1816. Finch v. Mansfield (99 Mass. 89), 739, 1018, 1449. Finclley v. Cooley (1 Blackf. 262), 947. Findley v. Deal (69 Ga. 359), 578. Fine v. Hornsby (2 Mo. App. 61), 331. Finlay v. Ludden & Bates South. Music House (105 Ga. 264), 625. Finlayson v. Finlayson (17 Oreg. 347), 880. Finley v. Quirk (9 Minn. 194), 1056. Finn v. Clark (10 Allen, 479), 747. Finn v. Rose (12 Iowa, 565). 139. Finney v. Apgar (31 N. J. L, 266), 293, 316, 324. Fiqued v. Allison (12 Mich. 330), 17, 1411. First Baptist Church v. Bigelow (16 Wend. 28), 461. First Commercial Bank v. Newton (117 Mich. 433), 138. First Nat. Bank v. Buchanan (87 Tenn. 32), 1422, 1429. First Nat. Bank v. Colter (61 Ind. 152), 1794. First Nat. Bank v. Cook Carriage Co. (70 Miss. 587), 564. First Nat. Bank v. Crocker (111 Mass. 163), 774. First Nat. Bank v. Crowley (24 Mich. 492), 520, 754. First Nat. Bank v. Dearborn (115 Mass. 219), 752, 788. First Nat. Bank v. Freeman (47 Mich. 408), 144 First Nat. Bank v. Hughes ( — Cal. — ), 1805. First Nat. Bank v. Hummel (14 Colo. 259), 642. First Nat. Bank v. Kelley (57 N. Y. 34), 792. First Nat. Bank of Elgin v. Kilbourne (20 N. S. R. 681), 642. First Nat. Bank v. Larsen (60 Wis. 206), 818. First Nat, Bank v. Lowry (36 Neb. 290), 960. First Nat. Bank v. Mass. Co. (123 Mass. 330), 1309. First Nat. Bank v. Mc Andrews (5 Mont. 325), 51, 752. First Nat. Bank v. Oskaloosa Pkg. Co. (66 Iowa, 41), 1031, 1032. First Nat. Bank v. Pettit (9 Heisk. 447), 792. First Nat. Bank v. Reno (73 Iowa, 145), 18, 485, 502. First Nat. Bank v. Ridenour (46 Kan. 718), 955. First Nat. Bank v. Robinson (105 Iowa, 463>, 1281. First Nat. Bank v. Schmidt (6 Colo. App. 216), 1565. First Nat. Bank v.Schween (127 111. 573), 23, 642. TABLE OF CASES CITED. CI References are to sections: Vol. I, §§ 1-797; Vol. IT, §§ 798-1850. First Nat. Bank v. Shaw (61 N. Y. 283), 169. First' Nat. Bank v. Tootle (59 Neb. 44), 908. First Nat. Bank v. Tufts (53 Kan. 710), 599, 603, 604. Fish v. Benedict (74 N. Y. 613), 50. Fish v. Cleland (33 111. 237), 872. Fish v. Roseberry (22 111. 888), 1340. Fishback v. Van Dusen (33 Minn. 111). 39, 543, 549, 551, 552, 553, 554, 721. Fisher v. Boynton (87 Me. 395), 1129, L134 Fisher v. Brown (104 Mass. 259 Fisher v. Fredenhall (21 Barb. 82), 1481 Fisher v. Kulm {54 Miss. 480\ 126. Fisher v. Lord (63 N. H. 514), 1019, 1027. Fisher v. Mellen (10:! Mas Fisher v. Mowbray (8 East, 330), 134. Fisher v. Pollard (2 Head, 314), L27& Fitch v. Archibald (29 N. J. L. 160), 1340. Fitch v. Burk (38 Vt. 683), 336, 964 litis v. Hall (9 N. H. 441), 109,120. Fitzgerald v. Evans (49 Minn. 541), 1273. Fitzgerald v. Gorham (4 Cal. 289), 960. Fitzpatrick v. Osborne (50 Minn. 201), 1397, 1807, 1835. Fitzsimmons v. Express Co. (40 Ga. 330), 392. Fitzsimmons v. Woodruff (1 Thomp. & C. 3), 305. Fixen v. Blake (47 Minn. 540), 1843. Flack v. Gottschalk Co. (80 Md. 368), 74. Flagg v. Baldwin (38 N. J. Eq. 219), 1031, 1039, 1043. Flagg v. Gilpin (17 R. L 10), 1031. Flanagan v. Demarest (3 Robt. 173), 1101. Flanders v. Maynard (58 Ga. 56), 543. h Flanders v. Putney (58 N. H. 358), 1162, Flannagans, Ex parte (2 Hughes, 264), 49. Flannery v. Rohrmayer (46 Conn. 558), 1079, 1389. Flash v. American Glucose Co. (38 La. Ann. 4), 816, 1805. Fleck v. Warner (25 Kan. 492), 569.,' 629, 63a Fleeman v. McKean (25 Barb. 474), 891. Fleig v. Sleet (43 Ohio 'St. 51), 1433, 1436. Fleischmann v. Stern (90 N. Y. 110), 1 128. Firming v. Beck (48 Pa. St. 309), 1831. Fleming v. Gilbert (3 Johns. 528), 1106. Fleming v. Hanley (21 R. I. 141), 942. Fleming v. Townsend(6 Ga. 103), 960. Fletcher v. Cole (23 Vt. 114), 1148. Fletcher v. Howard (2 Aik. 115), 960. Fletcher v. Ingram (46 Wis. 191). 527. Fletcher v. Livingston (153 Mass. 388), 366. Fletcher v. Nelson (6 N. D. 94), 485, 1247, 1281, 1293. Fletcher v. Young (69 Ga. 591), 1273. Flick v. Wetherbee (20 Wis. 392), 1827. Flinn v. St. John (51 Vt. 334), 1057. Flint v. Corbitt (6 Daly, 429), 305. Flint v. Gibson (106 Mass. 391), 673. Flint v. Lyon (4 Cal. 17), 1345. Florence Mining Co. v. Brown (124 U. S. 385), 1095. Flower v. Peck (1 B. & A. 428), 107a Floyd Acceptances, The (74 U. S. 666), 191. Floyd v. Patterson (72 Tex. 202), 1031. Flynn v. Allen (57 Pa. St. 482), 1303. Flynn v. Dougherty (91 Cal. 669), 315. Flynn v. Messenger (28 Minn. 208), isa Fogg v. Rodgers (84 Ky. 558), 1209. Cll TABLE OF CASES CITED. References are to sections: Vol. I, §§1-797; Vol. II, §§ 798-1850. Fogel v. Brubaker (122 Pa. St, 7), 1211, 1213, 1311, 1334, 1340. Foggart v. Blackweller (4 Ired. 238), 862, 1229, 1237. Foley v. Cowgill (5 Blackf. 18), 937. Foley v. Felrath (98 Ala. 176), 676, 677, 684. Foley v. Holtry (43 Neb. 133), 875. Foil's Appeal (91 Pa. St, 437), 1728. Folsom v. Carli (5 Minn. 333), 950. Folsom v. Cornell (150 Mass. 115), 809, 964. Fontaine v. Bush (40 Minn. 141), 356, 365. Fonville v. Casey (1 Murph. 389), 200. Foos v.Sabin (84 111. 564), 1334, 1690. Foot v. Bently (44 N. Y. 166), 1255, 1320. Foot v. Marsh (51 N. Y. 288), 702. Foote v. Cobb (18 Ala. 585), 970. Forbes v. Railroad Co. (133 Mass. 154), 792. Forcheimer v. Stewart (65 Iowa, 598), 1242, 1265, 1298, 1336, 1340. Ford v. Cobb (20 N. Y. 344), 646. Ford v. Fothergill (1 Esp. 211), 128. Ford v. Fothergill (Peake, N. P., 229), 127. Ford v. Oliphant (32 S. W. R. 437), 941. Ford v. Phillips (1 Pick. 202), 121. Fordice v. Gibson (129 Ind. 7), 754. Foreman v. Ahl (55 Pa. St. 325), 1053, 1054. Fores v. Johnes (4 Esp. 97), 1007. Forest City Ins. Co. v. Morgan (22 111. App. 198), 1259. Forke v. Arms Co. (— Tex. ), 1372. Forrer v. Nash (35 Beav. 167), 1096. Forrest v. Hamilton (98 Ind. 91), 509. Forrest v. Nelson (108 Pa. St. 481), 600. Forsaith Mach. Co. v. Mengel (99 Mich. 280), 669, 1380. Forsyth v. Jervis (1 Stark. 437), 16. Forsyth v. Mann (68 Vt. 110), 308, 1768. Forsyth v. Mathews (14 Pa. St, 100), 960, 966. Fosdick v. Greene (27 Ohio St. 484), 1787. Fosdick v. Schall (99 U. S. 235), 569, 590, 647. Foss v. Cummings (149 111. 353), 1040. Foss v. Hildreth (10 Allen, 76), 87. Foss-Schneider Brewing Co. v. Bul- lock (16 U. S. App. 311), 1090, 1380. Foster v. Adams -(60 Vt. 392), 1664. Foster v. Caldwell (18 Vt. 176), 1237. Foster v. Charles (7 Bing. 107), 856, 876. Foster v. Dawber (6 Exch. 839), 805. Foster v. Frampton (6 B. & C. 107), 1577, 1601. Foster v. Hall (12 Pick. 89), 953. Foster v. Hill (36 N. H. 526), 1428. Foster v. Lumberman's Mining Co. (68 Mich. 188), 205, 211, 234. Foster v. Mabe (4 Ala. 402), 334. Foster v. Mackinnon (L. R. 4 C. P. 711), 266. Foster v. Magill (119 111. 75), 527. Foster v. Mining Co. (68 Mich. 188), 702. Foster v. Pettibone (7 N. Y. 433), 21. Foster v. Ropes (11 Mass. 10), 508, 511, 740. Foster v. Taylor (3 Nev. & Man. 244), 1045. Foster v. Thurston (11 Cush. 322), 1019. Foster v. Warner (49 Mich. 641), 624. Foster v. Wooten (67 Miss. 540), 1053. Fothergill v. Rowland (L. R. 17 Eq. 132), 1722. Fourth Nat. Bank v. St. Louis Cotton Comp. Co. (11 Mo. App. 333), 1507. Fowler v. Bowery Sav. Bank (113 N. Y. 450), 909. Fowler v. Frisbie (3 Conn. 320), 970. Fowler v. McTaggart (1 East, 522), 1548, 1549. Fowler Elevator Co. v. Cottrell (38 Neb. 512), 428. TABLE OF CASES CITED. cm References are to sections: Vol I, §§ 1-707; Vol. II, §§ 708-1850. Fox v. Harding (7 Cusli. 516), 1762. Fox v. Harvester, etc. Works (83 Cal. 333), 1344. Fox v. Hazelton (10 Pick. 275), 212. Fox v. Hills (1 Conn. 294), 970. Fox v. Kitton (19 111. 519), 1089, 1090. Fox v. Pricket t (34 N. J. L. 13), 56. Fox v. Turner (1 111. App. 153), 229, 233. Fox v. Utter (G Wash. 299), 310. Foye v. Patch (132 Mass. 105), 451. Fragano v. Long (4 B. & C. 219), 393, 736, 740, 741, 757, 1181, 1496. Fraley v. Bispham (10 Pa. St. 320), 124% 1320. Frame v. Coal Co. (97 Pa. St. 309), ll.-.l. 1452. Francis v. Barry (69 Mich. 311), 428. Francis v. Cockrell (L. R. 5 Q. B. 501), 1346. Francis-Chenoweth Hardware Co. v. Gray (104 Ala. 236), 490, 49* Frank v. Batten (49 Hun, 91), 603. Frank v. Eltringham (65 Miss. 281), 434, 445. Frank v. Harrington (36 Barb. 415), 342, 343. Frank v. Hoey (128 Mass. 263), 739. Frank v. Lanier (91 N. Y. 112), 838, 1849. Frank v. Miner (50 111. 444), 9G3. Franklin v. Long (7 Gill & J. 407), . 199, 816, 1805. Franklin v. Miller (4 A. & E. 599), 1097. Franklin Sugar Ref. Co. v. Collier (89 Iowa, 69), 906. Fraschiers v, Henriques (6 Abb. Prac, N. S., 251), 1587. Fraser v. Witt (L. R. 7 Eq. Cas. 64), 1527, 1541. Frasure v. Zimmerly (25 111. 202), 820. Frazier v. Harvey (34 Conn. 469), 1311. Frazier v. Simmons (139 Mass. 531), 1670. Frazier v. Smith (00 111. 145), 1831. Frazier v. Thompson (2 Watts & Serg. 235), 1004. Freed v. Brown (55 Ind. 310), 69, 72, 73. Freehling v. Bresnahan (61 Mich. 540), 950. Freeman v. Bridger (4 Jones L. 1), 129, 132. Freeman v. Cooke (2 Exch. 654), 170, 845. Freeman v. Harwood (49 Me. 195), 1787. Freeman v. Hensley ( — Cal. — ), 964. Freeman v. Holmes (62 Ga, 556). 185. Freeman v. Kraemer (63 Minn. 242), 153, 779. Freeman v. Nichols (116 Mass. 309), 549, 1482. Freeman v. Pope (L. R. 5 Ch. App. 538), 974. Freeman v. Robinson (38 N. J. L. 383), 186. Freeman v. Topkis (1 Marv. 174), 905. Freeport Stone Co. v. Carey (42 W. Va. 276), 549. Frees v. Baker (81 Tex. 216), 955. Freeth v. Burr (L. R. 9 C. P. 208), 1141, 1145. 1148. Freiberg v. Steenbock (54 Minn. 509', 964, 1193. French v. Fitch (67 Mich. 492^, 936. French v. French (8 Ohio, 214). 86, 87. French v. Hall (9 N. H. 137), 965. French v. Hay (22 Wall. 231), 577. French v. Osmer (67 Vt. 427), 589, 592, 629. French v. Parish (14 N. H. 496). 1798. French v. Vining (102 Mass. 132), 869, 1349, 1357. Frenzel v. Miller (37 Ind. 1), 863. Fresno Milling Co. v. Fresno Canal, etc. Co. (126 Cal. 640), 1099. Freyman v. Knecht (78 Pa. St. 141), 820, 1817. CIV TABLE OF CASES CITKD. References are to sections: Vol. I, §§ 1-797; Vol. IT, §§ 798-lfcO. Frick v. Hilliard (95 N. G 117), 583. Frieber v. Stover (30 Ark. 727), 138. Friedberg v. Moffett (91 Hun, 17), 1420. Friedlander v. Railroad Co. (130 U. S. 416). 166. Friend Bios. Clothing Co. v. Hulbert (98 Wis. 183), 914, 918. Frink v. Tbomas (20 Oreg. 265), 914. Fripp v. Fripp (Rice's Ch. 84), 804. Frisbee v. Chickering (115 Mich. 185), 896, 901. Fritz v. Stover (22 Wall. 198), 1455. Frohreich v. Gammon (28 Minn. 476), 1357, 1835. Frolich v. Alexander (36 111. App. 428), 1013. Fromer v. Stanley (95 Wis. 56), 879, 905. Frost v. Blanchard (97 Mass. 155), 1254. Frost v. Deering (21 Me. 156), 451. Frost v. Gage (3 Allen, 560), 996. Frost v. Hill (3 Wend. 386), 462. Frost v. Knight (L. R. 7 Ex. Ill), 1088, 1089, 1711, 1753. Frost v. Lowry (15 Ohio, 200), 915, 917, 919. Frost v. Parker (65 Iowa. 178), 139. Frost v. Woodruff (54 111. 155), 508. Frostburg Mining Co. v. New Eng- land Glass Co. (9 Cush. 115), 366. Frue v. Houghton (6 Colo. 318), 1724, 1727. Fruit Co. v. McKinney (65 Mo. App. 220), 401. Fry v. Mobile Savings Bank (75 Ala. 473), 714. Fry-S heckler Co. v. Iowa Brick Co. (104 Iowa, 494), 1387. Frye v. Milligan (10 Ont. 509), 1223. Fuller v. Bean (34 N. H. 290), 213, 478; 499, 552, 674, 714. Fuller v. Byrne (102 Mich. 461), 619. Fuller v. Duren (36 Ala. 73), 13, 15, 17, 1411. Fuller v. Eamea (108 Ala. 161), 619. Fuller v. MoHenry (83 Wia 573), 138. Fuller v. Parrish (3 Mich. 211), 10. Fullington v. Northwestern,- etc. Ass'n (48 Minn. 490), 974. Fulton Bros. v. Upper Canada Furni- ture Co. (9 Ontario Appeal Reports, 211), 228. Funke v. Allen (54 Neb. 407), 1694 Tinman v. Railroad Co. (106 N. Y. 579), 774 Furnas v. Friday (102 Ind. 129), 856. Fumeaux v. Easterly (36 Kan. 539), 1288. 1384, 1386. Gaar v. Bicks (— Tenn. Ch. — ), 1806, 1813. Gaar v. Stark (— Tenn. Ch. — ), L826. Gabannon v. Kreeft (L. R. 10 Ex. 274), 784, 787, 792. Gachet v. Warren (72 Ala. 288), 1314. Gaddis v. Leeson (55 111. 83), 410. ( fadsden v. Lance (1 McMul. Eq. 87), 331. Gaff v. Homeyer (59 Mo. 345), 363. Gage v. Fisher (5 N. D. 297), 1728. Gaines v. McKinley (1 Ala. 446), 1281, 1294. Gainsville Nat. Bank v. Bamberger (77 Tex. 48), 878, 892, 895, 901. Galbraith v. Holmes (15 Ind. App. 34), 416. Galbreath v. Cook (30 Ark. 417), 952. Gale v. Corey (112 Ind. 39), 1417. Gale Mfg. Co. v. Moore (46 Kan. 324), 681. Gale Sulky-Harrow Mfg. Co. v. Stark (45 Kan. 606), 816, 1805. Galena, etc. R. Co. v. Ennor (123 111. 505), 1787. Galigher v. Jones (129 U. S. 193), 1787, 1788. Gallagher v. Waring (9 Wend. 20), 1320. Gallick v. Bordeaux (22 Mont. 470), 964. TABLE OF CASES CITED. CV References are to sections: Vol. I, §§ 1 -797; V< 1 IT. §§ 70S -1850. Galligan v. Fannan (7 Allen. 255), L019, 1027. GaUober v. Martin (33 Kan. 252 Gallop v. Newman [7 Pick. 282 . 1201. Galloway v. Holmes (1 Doug. 330), nit;:;. Galloway v. Week (54 Wia 804), 499, 516, 520, 702. Galpin v. Atwater(29 Conn. 93 Galpin v. Wilson (40 Iowa, 90), ''•:. Galvin v. Bacon (11 Me 28), 82a Galvin v. Mackenzie (21 < >reg. i v i . B61. Gamble v. Tripp (99 CaL 223), 942. Gammage v. Alexander! 1 1 Tex. ill, 75 1. Gammell r.Gunby (52 Ga 504), 1344 Gammon v. Abrams i"> ; ; Wi 8ia ■ n-. In re (14 Pa St. Ill Gannard v. Eelava (20 Ala : Gant v. Shelton (3 R Moa 120),1242. Garbraoht v. Com (98 Pa St 149), 739. Garbntt v, Bank 22 Wia B84 . 908 Garbutl v. Watson (5 .Barn. & Aid. :,i:;., 299, BOO, 8ia Gardiner v. Gray (4 Camp. 144), 1 16, i:;ji. 1327. Gardiner v. Suydam (7 N. Y. 357), 714 Gardinier v. Tubbs (21 Wend. 169), 963 Gardner v. Dutch (9 Masa 4-27), 702, 711. Gardner v. Grout (2 C. B. 340), 400. Gardner v. Howland (2 Pick. 599). 380, 483, 120L Gardner v. Joy (9 Mete. 177), 307, 324. ( tardner v. Kleinke (46 N. J. Eq. 90), 97 l. Gardner v. Lane (12 Allen, 39), 217, 272, 271. 275, 095, 740. Gardner v. Trenary (65 Iowa, 646), L841. Garfield v. Paris (96 U. S. 557), 362, 369, Garr v. Haskett (86 Ind. 373), 131. Garrard v. Frankel (30 Beav. 445), B53. Garrett v. Crooks (15 La. Ann. 483), 41. ( larrets »n v. Selby (37 Iowa, 529), 746. Garrow v. Brown (Winston's Eq. 46, 86 Am. Dec. 450), 65. ( fori ner v. Corwine (57 Ohio St. 246), 1239. ( lartner v. Hand (86 Ga. 558), 231. Gartrell v. Stafford (12 Neb. 545). ■1 19. Gary v. Jacobson (55 Miss. 204), 947. Gassett v. Glazier (165 Mass. 473), 937. Gates v. BUss(48 Vt. 299), 820. Gates v. Nelles (62 Mich. 444), 234 v. Raymond (106 Wis. 657), 9ia GatUngV. Newell (9 Ind. 572), ills. Gatrell r. Clay (81 Ga 327), 60a Gatzmer v. Moyer ( — Pa. St. — ), ioa Gault v. Brown (48 N. H. 183), 349, 362, 401, 420. ( iav in v. Armistead (57 Ark. 574), 905, 908 ( law v. Bennett (153 Pa. St. 247), 1031, 1032, 1036 Gay v. Ballou (4 Wend. 403), 122, 123, 132. Gay v. Dare (103 Cal. 454). 685. ( lay v. Osborne (102 Wis. 641), 918. Gaylor v. Copes (16 Fed. R. 49), 1807. Gaylord Mfg. Co. v. Allen (53 N. Y. 515), 1380, 1390,1391, 1392. Gaylord v. Soragen (32 Vt. 110), 1013, 1027. Geary v. Physic (7 D. & R. 653), 451. Gehl v. Milwaukee Produce Co. (105 Wis. 573), 1650, 1690, 1692. Geib v. Reynolds (35 Minn. 331), 1423. Geiger v. Cook (3 W. & S. 266), 834. Geist v. Stier (134 Pa. St. 216), 625. Gelston v. Sigmund (27 M& 334), 211. Gennert v. Wuestner (53 N. J. Eq. 302), 1057. CV1 TABLE OF CASES CITED. References are to sections: Vol. Genesee County Savings Bank v. Michigan Barge Co. (52 Mich. 164), 878, 895. Gentilli v. Starace (133 N. Y. 140), 12G5, 1382. Gentry v. Templeton (47 Mo. App. 55), 603. George v. George (47 N. H. 27), 1052, George v. Johnson (6 Humph. 36), 868, 869. 935. George v. Norria (23 Ark. 121), 960. George v. Skivington (L. R. 5 Ex. Cas. 1), 878. George v. Tufts (5 Colo. 162), 600. Gerhard v. Bates (2 EL & Bl. 476), 936. Gerli v. Poidebard Silk Mfg. Co. (57 N. J. L. 432), 1148. German Saw and Loan Society v. De Lashmutt (67 Fed. R 399). 72. German Saving Inst. v. DeLaVergne Co. (36 U. S. App. 184), 1078. German Savings Society v. Weber (16 Wash. 95), 647. Gerow v. Castello (11 Colo. 560), 568, 569, 573, 693. Gerrish v. Clark (64 N. H. 492), 569, 603. Gerrish v. Maher (70 111. 470), 1458. Gerst v. Jones (32 Gratt. 518), 1214, 1344. Gerwig v. Sitterly (56 N. Y. 214), 1429. Getchell v. Jewett (4 Greenl. 350), 425. Gether v. Capper (18 C. B. 865), 234. Getty v. Roundtree (2 Pin. 379), 1311, 1344, 1844. Gibbons v. Bente (51 Minn. 499), 1091. Gibbons v. Robinson (63 Mich. 146), 775. Gibbs v. Benjamin (45 Vt. 124), 367, 714. Gibson v. Carruthers (8 M. & W. 321), 1526, 1551. Gibson v. Cranage (39 Mich. 49), 665, 666. L §§ 1-707; Vol. II, §§ 798-1850. Gibson v. Holland (L. R 1 C. P. 1), 432. Gibson v. Pelkie (37 Mich. 380), 199, 274 Gibson v. Soper (6 Gray, 279), 70, 72, 77, 79. Gibson v. Stevens (49 U. S. 384), 166, 491, 709, 788, 111)7. Gibson v. Tobey (46 N. Y. 637), 1423, 1 1-.'.-.. L433. Gibson v. Vail (53 Vt. 47S), 661, 670, 1402. Giddey v. A It man (27 Midi. 206), 628. Gieve, In re (1 Q. B. 794). 20& Giffert v. West (33 Wis. 617), 1235, 1817. Gilbert v. Decker (53 Conn. 401). 9G3. Gilbert v. Ganger (8 Biss. 214). 1032. Gilman v. Hill (36 N. H. 311), 35& Gilbert v. Holmes (64 111. 548', ','"»:. Gilbert v. Lichtenberg (98 Mich. 417), 401, 402. Gilbert v. Moline Plough Co. (119 U. S. 491), 1254. Gilbert v. National Cash Register Co. (176 III 288), 583. Gilbert v. Stockman (76 Wis. 62), 446. Gilbert v. Stockman (81 Wis. 602), 947. Gilchrist v. Hilliard (53 Vt, 592), 1303. Giles v. Bradley (2 Johns. Cas. 253), 264. Giles v. Simonds (15 Gray, 441), 336, 6-26, 1191. Gilkerson-Sloss Com. Co. v. Salinger (56 Ark. 294), 138. Gill v. Benjamin (64 Wis. 362), 527, 529, 1380, 1392. Gill v. Bicknell (2 Cush. 355), 461, 462. Gill v. Bradley (21 Minn. 15), 1417. Gill v. Browne (53 Fed. R. 394), 1134. Gill v. De Armant (90 Mich. 430), 599. Gill v. Frank (12 Oreg. 507), 1194. Gill v. Kaufman (16 Kan. 571), 731, 1320. Gill v. Lumber Co. (151 Pa, St 534), 1163. TABLE OF CASES CITED. CVll References are to sections: Vol. I, §§ 1-797; Vol. D, §§ 798-1850. Gill v. Rea.l (5R L 343). 184 Gillespie v. Bai e - (12 W. Va. 70), 95. Gillespie v. Cheney (1896, 2 Q. a 59), 1258, 1344. Gillette v. Stoddart (30 111. App. 231), 960. Gilliat v. Roberts (19 L. J. Ex. 410), 400. Gilligan v. Lord (51 Conn. 662), 96ft Gilliland v. Phillip*, l &G L52),104a Gillman v. Carbutt(81 L. T. R., N. S., 1 505 Gilmaa v. Andrews (66 Iowa, 116), L787. Gilman v. Andrus(28 Vt. 241), 185 Oilman r. Bill (88 N. H. 811 359, 518, 520, 528, 764 Gilmore v. Newton (9 Allen, tf Gilmore v. Wilbur (12 Pick. 120), 1132. Gilmore v. Williams (162 Mass. 331), Gilmoor v. Supple (11 Moore, P. C. 566), 281, 515, 725. (i in. Ire v. Sean (31 Abb. X. C. 100), 19. Gipps Brewing Co. v. De France (91 towa, 108), 1029. Gerard v. Taggart (5 Berg. & R 19), 1643, 1682, 1693. Girarday v. Richardson (1 Esp 13), 1022. ' Giroux v. Stedman (145 Mass. 139), 1357. Gist v. W. U. Tel. Co. (45 S. < 104a Gittings v. Nelson (86 111. 591), 202 Glaholm v. Hays, 2 M. & G. 251 Glasgow v.Nicholson (25 Ma ! GlaspeU v. N. P. R Co. (43 Fed. R. 900), 1843. Glass v. Whitney (22 Q. B. 290), 714. Glasscock v. Hazell (109 N. C. 145), 658. Glanbensklee v. Low (29 111. App 108), 139. Gleason v. Beers (59 Vt. 581), 23. Glenn v. Smith (2 G. & J. 493), 1423. 1425, 1427. Glisson v. Heggie (105 Ga. 30), 620. Globe Milling Co. v. Elevator Co. (44 Minn. 153), 153, 549, 552, 557. Goad v. Johnson (6 Heisk. 340), 1356, 1357. Godchaux v. Mulford(26 Cal. 316), 966. Goddard v. Binney (115 Mass. 450), 306,324 754, 757,1122,1187. Goddard v. Weil (165 Pa. St. 419), 11117. ( todfrey v. Crisler (121 Ind. 203), 1 121, 1 129. ( lodfrey v. Miller (80 Cal. 420), 953. Godts v. Rose (17 C. B. 229), 387, 740, 1 193 Godts v. Rose (25 L. J. C. P. 61), 775. Gold Mining Co. v. National Bank (96 U. S. 640), 1046. ( tolden v. Ogden (15 Pa. St. 528), 714 Golding, Davis & Co., Ex parte (13 Ch. Div. 628), 1569. Goldrich v. Ryan (3 E. D. Smith, 324 \, 1357. ( toldsborongh v. Turner (67 N. C. 403), 1 155. Goldsmith v. Bryant (26 Wis. 33), 543. Goldstooe v. Merchants' Ice & Cold storage Co. (123 Cal. 625), 164 Golloher v. Martin (33 Kan. 252), 966. Gomer v. McPhee (2 Colo. App. 287), 1163. Gompertz v. Bartlett (2 El. & Bl. 849), 1155.1208. Gompertz v. Denton (1 Cr. & M. 207), 1805 Gooch v. Holmes (41 Me. 423), 331, 1665. Good v. Singleton (39 Minn. 340), i (-;:;. Goodal v. Skelton (2 H. Bl. 316), 404, 1 185 Goodell v. Fairbrother (12 R I. 233), 156, 588, 599. CV111 TABLE OF CASES OITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Goodenow v. Tyler (7 Mass. 36), 1446. Goodkiud v. Gilliam (19 Mont, 385), 624. Goodland v. LeClair(78 Wis. 176), 314, 331. Goodloe v. Rogers (10 La. Ann. 631), 1792. Goodman v. Griffiths (1 H. & N. 574), 138, m Goodman v. Shipley (103 Mich. 439). 138. Goodman v. Winter (64 Ala. 410), 109. Goodnow v. Smith (18 Pick. 1 1 I >, 1 120. Goodrich v. Hubbard (31 Mich. 02), 1709, 1712. Goodrich v. Tracy (43 Vt 314>, 1 122. Goodrich v. Van Nortwick (43 111. 445), 663, 680, 814. Goodsell v. Myers (3 Wend. 179), 121. Goodspeed v. South Bend Plow Co. (45 Mich. 237), 1431. Goodwin's Appeal (117 Pa, St. 514), 1727. Goodwin v. Clark (65 Me. 280), 1004. Goodwin v. Cremer (18 Q. B. 757), 1 466. Goodwin v. Follett (25 Vt. 386), 1419, 1420. Goodwin v. Goodwin (90 Me. 23), 964, 998. Goodwin v. Massachusetts Loan Ass'n (152 Mass. 189), 875, 924, 932, 1433. Goodwin v. Railroad Co. (Ill Mass. 487), 549. Goodwin v. Wertheimer (99 N. Y. 149), 928, 929. Googins v. Gilmore (47 Me. 9), 960. Gookin v. Graham (5 Humph. 480), 1302, 1305. Goom v. Appalo (6 B. & C. 117). 468. Goom v. Jackson (5 Esp. 112), 740. Gordon v. Irvine (105 Ga. 144), 935. Gordon v. Nieman (118 N. Y. 152), 812. Gordon v. Norris (49 N. H. 376), 754. Gordon v. Parmelee (2 Allen, 212), 936, 938. Gordon v. Potter (17 Vt. 348), 186. Gordon v. Riteuour (87 Mo. 54), 130. Gordon v. Watrous (36 Up. Can. Q. B. 321), 1255, 1377. Gore v. Gibson (13 Mees. & W. 623), 87. Gorham v. Holden (79 Me. 317), 569. Gorman v. Brossard (120 Mich. 611), 328, 382, 383, 416. Gormerly v. Gymnastic Ass'n (55 Wis. 350), 872. Goshell v. Archer (2 Ad. & El. 500), 458. Goslen v. Campbell (88 Me. 450), 612, 624. Goss v. Dysant (31 Tex. 186), 1794. Goss Printing Press Co. v. Jordan (171 Pa. St. 474), 565, 600. Goss v. Lord Nugent (5 B. & Ad. 58), 447, 806. Goss v. Quinton (3 M. & G. 825), 761. Gossler v. Eagle Sugar Refinery (103 Mass. 331), 1337. Gossler v. Schepeler (5 Daly, 470), 1531. Gottschalk v. Stein (09 Md. 51), 1721, 1730. Goudy v. Gebhart (1 Ohio St. 202), 947. Gould v. Blodgett (61 N. H. 115), 175. Gould v. Bourgeois (51 N. J. L. 361 \ 1302, 1309. Gould v. Huntley (73 Cal. 399), 965. Gould v. Stein (149 Mass. 570), 1275, 1320, 1331, 1334, 1335, 1339, 1392, 1393. Goulds v. Brophy (42 Minn. 109), 1254, 1349, 1352, Gove v. Wooster (Lalor's SupL 30), 199. Governor, etc. v. Petch (28 Eng. L. & Eq. 470), 226. Gowen v. Klous (101 Mass. 449), 436. TABLE OF CASES CITED. C1X References are to s, 87. Hutchinson v. Commonwealth (82 Pa. St. 472), 26, 702, 1158. Hutchinson v. First Nat. Bank (133 Ind. 271), 973. Hutchinson v. Ford (9 Bush, 318), 199, 200, 202. TABLE OF CASES CITED. CXXV References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Hutchinson v. Hunter (7 Barr, 140), 702, 714. Hutchinson v. Kelly (1 Rob. 123), 974. Hutchinson v. Sandt (4 Rawle, 234), 71. Hutchinson Mfg. Co. v. Pinch (107 Mich. 12), 1255. 1 Luthmacher v. Harris (38 Pa. St. 491), 273, 274. Huthmacher v. Lowman (G6 111. App. 448), 905. Hutton v. Lippert (8 App. Cas. 304), 46, V.K Hutton v. Moore (26 Ark. 382), 213, 674. Huyett & Smith Mfg. Co. v. Gray (124 X. C. 323), 1:535, 1817. Hyatt v. Boyle (5 G. & J. 110), 1311, 1312, 1323, 1337. Hyde v. Davis (Oliphant, 453), 1070. Hyde v. Ellery (18 Md. 496), y24. Hyde v. Woods (94 U. S. 523), 197. Hyde v. Wrench (3 Beav. 334), 229, 230. Hydraulic Eng. Co. v. McHaffie (4 Q. B. Div. 670), 1129, 1134, 1763, 1770. Hyer v. Hyatt (3 Crunch, 07(1 , 122. Hyland v. Bohn Mfg. Co. (92 Wis. 157), 628. Hyland v. Sherman (2 E. D. Smith, 234), 1356, 1357. Hyman v. Cain (3 Jones, 111), 122, 123. Hynds v. Hays (25 Ind. 31), 1004. [asigi v. Brown (17 How. 183), 878." Iasigi v. Rosenstein (65 Hun, 591), 1182 Ide v. Leiser (10 Mont. 5), 449. Ide v. Stanton (15 Vt. 685), 293, 425, 438. Illinois Land Co. v. Bonner (75 111. 315), 97. Illinois Linen Co. v. Hough (91 111. 63), 207. Ilsley v. Stubbs (9 Mass. 65), 1548. Imhoff v. Whitmer (7 Casey, 243), 69. Imperial Bank v. Dock Co. (5 Ch. Div. 195), 1535. Imperial Land Co., In re (L. R. 7 Ch. App. 587), 247. Inchbald v. Western Plantation Co. (17 Com. B., N. S., 733), 213, 1097. Indiana Mfg. Co. v. Hayes (155 Pa, St. 160), 1374. Indianapolis Co. v. Wilcox (59 Ind. 429), 107, 109, 116. Indianapolis, etc. Ry. Co. v. Maguire (62 Ind. 140), 714. Industrial Works v. Mitchell (114 Mich. 29), 1071, 1079, 1389, 1709, 1829. Ingalls v. Herrick (108 Mass. 351), 960, 964, 965. Ingalls v. Miller (121 Ind. 188), 883, 1841. Inge v. Bond (3 Hawks, 101), 1242, 1268. Inglebright v. Hammond (19 Ohio, 337), 21, 22, 708. Ingledew v. Douglas (2 Stark. 36), 124. Inglis v. Usherwood (1 East, 515), 1526, 1548, 1549. Irrgraham v. Union Ry. Co. (19 R. I. 356), 1240, 1248. Ingrahara v. Wheeler (6 Conn. 277), 963. Ingram v. Rankin (47 Wis. 406), 1786, 1787. Ingram v. Wackernagle (83 Iowa, 82), 1636, 1638, 1643. Inslee v. Lane (57 N. H. 454), 1528, 1540, 1571, 1579, 1588, 1595. Insurance Co. v. Armstrong (117 U. S. 591), 905. Insurance Co. v. De Wolf (2 Cow. 105). 543. Insurance Co. v. Wright (1 Wall. 456). 1264. International, etc. R. Co. v. Nichol- son (61 Tex. 550), 1743. International Pavement Co. v. Smith (17 Mo. App. 264), 1259. CX XVI TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II. §§ 70R-1S50. Ireland v. Johnson (18 Abb. Pr. 329), 413. Ireland v. Livingstone (L. R» 2 Q. B. 99), 1158. Irish v. Pauley (116 Cal. xvi), 1129. Iron Cliffs Co. v. Buhl (42 Mich. 86), 703, 1158. Irons v. Kentner (51 Iowa, 88), 20, 24, 25. Iroquois Furnace Co. v. Wilkin Mfg. Co. (181 111. 582), 1351, 1395. Irvine v. Stone (6 Cush. 508), 350. Irwin v. Thompson (27 Kan. 643), 1255, 1308. Irwin v. Williar (110 U. S. 499), 203, 1031, 1032, 1039. Irwin v. Workman (3 Watts, 357), 1455. Isle Royale Mining Co. v. Hertin % (37 Mich. 332), 640. Ives v. Carter (24 Conn. 392). 937. Ivory v. Murphy (36 Mo. 534), 425,449. Jack v. Railroad Co. (53 Iowa, 401), 1235, 1242. Jackson v. Allaway (6 Man. & Gr. 942), 1188. Jackson v. Allen (120 Mass. 64), 834. Jackson v. Anderson (4 Wend. 474), 759. Jackson v. Anderson (4 Taunt. 24), 702. 711, 714. Jackson v. Armstrong (50 Mich. 65), 1843. Jackson v. Brown (102 Ga. 87), 1427. Jackson v. Cleveland (15 Mich. 94), 947. Jackson v. Collins (39 Mich. 557), 881. Jackson v. Crysler (1 Johns. Cas. 125), 1072. Jackson v. Evans (44 Mich. 510), 1787. Jackson v. King (4 Cow. 207), 64, 65. Jackson v. Langston (61 Ga. 392), 1260. Jackson v. Lowe (1 Bing. 9), 428. Jackson v. Mott (76 Iowa, 265), 1235, 1238, 1242, 1244, 1395. Jackson v. Myers (18 Johns. 425), 970. Jackson v. Nichol (5 Bing. N. C. 508), 1577, 1578, 1610. Jackson v. Plyler (38 S. C. 496), 973. Jackson v. Tupper (101 N. Y. 515), 419. Jaeger v. Kelley (52 N. Y. 274), 954 Jaffray v. Moss (41 La. Ann. 548), 892. Jaffray v. Wolf (4 Okl. 303), 912, 1411. Jaggar v. Winslow (30 Minn. 263), 87a Jagger Iron Co. v. Walker (76 N. Y. 521), 1428. James v. Adams (16 W. Va. 245), 1092. James v. Adams (3 W. Va. 568), 1831. James v. Bird (8 Leigh, 510), 1482. James v. Bocage (45 Ark. 284), 1225, 1247. James v. Griffin (2 Mees. & W. 623), 1577. 1591. James v. Isaacs (12 C. B. 791), 1466. James v. Marion Fruit Jar Co. (69 Mo. App. 207), 244, 246, 251. James v. Muir (33 Mich. 223), 207, 208, 438. James v. Patton (6 N. Y. 9), 456. James v. Plank (48 Ohio St. 255), 29. James v. Williams (5 B. & Ad. 1109), 226. Jameson v. Gregory (4 Mete. 363), 676, 682. Jamieson v. Indiana Gas Co. (128 Ind. 555), 1099. Jamieson v. Wallace (167 111. 388), 1031. Jamison v. Harbert (87 Iowa, 186), 1303. Jamison v. Simon (68 Cal. 17). 356. Jandt v. Potthast (102 Iowa, 223), 893. Janney v. Boyd (30 Minn. 319), 1447. Janney v. Sleeper (30 Minn. 473), 734, 739, 1124, 1181. Jansen v. McCahill (22 Cal. 563), 451. Janvrin v. Maxwell (23 Wis. 51), 1198. TABLE OF CASES CITED. CXXV11 References are to sections: Vol. I, §§ 1-707; Vol. n, §§ 798-1850. Jarecki Mfg. Co. v. Kerr (165 Pa. St. 529), 1337. 1349. Jarrett v. Goodnow (39 W. Va. 602), 1302. Jarvis v. Davis (14 B. Mon. 424), 960, 964. Javrin v. Maxwell (23 Wis. 51), 385. Jay v. Wilson (91 Hun, 391), 668. Jefferson v. Querner (30 L. T. 807), 1158. Jefford v. Ringgold (6 Ala. 544), 103. Jeffrey v. Bigelow (13 Wend. 518), 935. 1825. Jeffrey Mfg. Co. v. Central Coal Co. (93 Fed. R. 408), 1371. . I. 'Hiis v. Fitohbarg R, R. Co. (9:; Wis. 350), 1540, 1582, L601, L602. Jelks v. Barrett (52 Ui-s. 315), 126. Jellett v. St. Paul Ry. Co. (30 Minn. 265), 1786 Jendevine v. Slade (2 Esp. 572), 1242 Jenkins v. Eichelberger (4 Watts, 121), 23, 50, 580, 1482. Jenkins v. Green (27 Beav. 437), 264. Jenkins v. Jarrett (70 N. C. 255), 193. Jenkins v. Richardson (6 J. J. Marsh. 442). 207. Jenkinson v. Monroe (61 Mich. 454), 760. Jenks v. Fulmer (160 Pa. St. 527), l.V.ci. Jenks v. Howe Sewing Mach. Co. (34 La. Ann. 124D, 1629. Jenkyn v. Vaughn (3 Drew. 419), 974. Jenkyns v. Brown (14 Q. B. 496), 779, 782, 787. Jenkyns v. Usbprne (7 Mann. & Gr. 678), 1536, 1601. Jenner v. Smith (L. R. 4 C. P. 270), 730, 731. Jenner v. Walker (19 L. T. 398), 132. Jenness v. Iron Co. (53 Me. 20 . 227, 229, 233, 239, 428. Jenness v. Wendell (51 N. H. 63), 351. Jennings v. Carter (2 Wend. 446), 966. Jennings v. Chenango County Ins. Co. (2 Denio, 75), 12T2. Jennings v. Dunham (60 Mo. App. 635), 407. Jennings v. Flanagan (5 Dana, 217), 508, 514, 532. Jennings v. Gage (13 111. 610), 41, 923. Jennings v. Gratz(3 Rawle, 168), 1338. Jennings v. Throgmorton (Ry. & Moo. 251), 1022. Jennings v. Wilson (71 Miss. 42), 599, 603. Jensen v. Bowles (8 S. Dak. 570), 23. Jeraulds v. Brown (64 N. H. 606), 714. Jetton v. Tobey (62 Ark. 84), 154, 156. Jewett v. Lincoln 114 Me. 116). 987. Jewett v. Warren (12 Mass. 300), 380, 382, 981,987, 1107. Joest v. Williams (42 Ind. 565). 87. Johnson v. Bailey il7 Colo. 59), 508. Johnson v. Baird (3 Blackf. 153), 1125. Johnson v. Brooks (93 N. Y. 337), 1724, 1727. Johnson v. Buck (35 N. J. L. 338), 327, 426, Oil. 462 Johnson v. Credit Lyonnais (2 C. P. Div. 224), 169. Johnson v. Cuttle (105 Mass. 447), 365, 369. Johnson v. Dodgson (2 M. & W. 653), 393, 451, 460, 1181, 1496. Johnson v. Dooley (65 Ark. 71), 1440, 1442. Johnson v. Eveleth (93 Mo. 306), 1526, 1551, 1602. Johnson v. Farnum (56 Ga. 144), 1482. Johnson v. Gibson (4 E. D. Smith, 231), 186. Johnson v. Gulick (46 Neb. 817), 875. Johnson v. Hibbard (29 Oreg. 184), 731, 756, 1185. Johnson v. Holloway (82 111. 334), 960. Johnson v. Hudson (11 East, 180), 1046. 1051. Johnson v. Hunt (11 Wend. 139), 759, 761. CXXV111 TABLE OF CASES CITED. Keferences are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Johnson v. Latimer (71 Ga. 470), 1259. Johnson v. Laybourne (56 Minn. 332), 1307. Johnson v. Lines (6 Watts & S. 80), 127, 128, 132. Johnson v. MacDonald (9 M. & W. 600), '652. Johnson v. McLane (7 Blackf. 501), 676, 908. Johnson v. Meyers (34 Mo. 255), 1791, 1798. Johnson v. Morley (Hill & Den. 29), 947. Johnson v. Oehrnig(95 Ala. 189), 1795. Johnson v. Powers (65 Cal. 179), 1254. Johnson v. Railway Co. (3 C. P. D. 499), 736. Johnson v. Raylton (7 Q. B. Div. 438), 1353. Johnson v. Reed (9 Mass. 78), 804. Johnson v. Stephenson (26 Mich. 63), 227, 228. Johnson v. Stoddard (100 Mass. 306), 736. Johnson v. Stone (40 N. H. 197), 189. Johnson v. Stratton (6 Tex. Civ. App. 431), 909. Johnson v. Trinity Church (11 Allen, 123), 431. Johnson v. Triplett (66 Ark. 233), 904. Johnson v. Whitman Agl. Works (20 Mo. App. 100), 816, 1805. Johnson v. Willis (7 Gray, 164), 1053. Johnson Railroad Signal Co. v. Union Signal Co. (51 Fed. R. 85), 175. Johnson-Brinkman Co. v. Central Bank (116 Mo. 558), 543, 545, 555, 1121, 1407, 1433. Johnson-Brinkman Co. v. Railway Co. (126 Mo. 344). 619. Johnston v. Browne (37 Iowa, 200), 24, 29. Johnston v. Cope (3 H. & J. 89), 1319. Johnston v. Harvy (2 Pen. & W. 82), 955. Johnston v. Kershaw (L. R. 2 Exch. 82), 1158. Johnston v. McConnell (65 Ga. 129), 1050. Johnston v. Trask (116 N. Y. 136), 145, 328. Johnston v. Whittemore (27 Mich. 463), 588, 605, 628, C29, 630. Johnston v. Wood (19 Wash. 441), 599, 603. Johnstone v. Marke (19 Q. B. Div. 509), 127. Johnstone v. Milling (16 Q. B. Div. 460), 1088, 1089, 1090. Joliff v. Bendell (Ry. & Moo. 136), 1270. Jolliffe v. Collins (21 Mo. 338), 834. Jonassohn v. Young (4 B. & S. 296), 1075, 1141. Jones v. Alley (17 Minn. 269), 1254. Jones v. Berry (33 N. H. 209), 1047. Jones v. Brewer (79 Ala. 545), 779. Jones v. Bright (5 Bing. 533), 1344. Jones v. Broadhurst (9 C. B. 173), 1466. Jones v. Brown (167 Pa. St. 395), 1411. Jones v. Bullitt (2 Litt. 49). 1420. Jones v. Clark (20 Colo. 353), 600, 693. Jones v. Comer (5 Leigh, 350), 947. Jones v. Dow (142 Mass. 130), 434. Jones v. Earl (37 Cal. 630), 1606, 1611. Jones v. Foster (175 III. 459), 875. Jones v. George (61 Tex. 345), 1156, 1209, 1334, 1392, 1774, 1824. Jones v. Gibbon (8 Exch. 920), 1131. Jones v. Hetherington (45 Iowa, 681), 953. Jones v. Hoar (5 Pick. 285), 1411. Jones v. Horn (51 Ark. 19), 1786. Jones v. Jennings (168 Pa. St. 493), 1690. Jones v. Jones (8 M. & W. 431), 1602. Jones v. Just (L. R. 3 Q. B. 197), 1213, 1214, 1317, 1340, 1344, 1345, 1349, 1817, 1818, 1819. Jones v. Kemp (49 Mich. 9), 30. TABLE OF CASES CITED. CXX1X References are to sections: Vol. I, ?§ 1-797; Vol. n, §§ 79SM850. Jones v. Littledale (6 Ad. & E. 486), 447. Jones v. Marsh (22 Vt. 144), 764. Jones v. McEwan (91 Ky. 373), 1392. Jones v. Mechanics' Bank (29 Md. 287), 358. 363, 14U2. Jones v. Murray (3 T. B. Mon. 83). 1357. Jones v. Padgett (24 Q. B. Div. 6o0), 1214. 1329, 1342. 1344. Jones v. Pearce (25 Ark. 545), 520. Jones v. Perkins (29 Miss, 139), 1417. Jones v. Phenix Bank (4 Seld. 228 . 121. Jones v. Rahilly (16 Minn. 320), 10. Jones v. Reynolds (120 N. Y. 213), 331, 358, 360, 381. Jones v. Schneider (22 Minn. 279), 7 16. Jones v. Snider (99 Ga. 276), 619. Jones v. Surprise (64 X. II. 213). 1028. Jones v. Taylor (30 Vt. 42), 649. Jones v. United States (96 U. S. 24), 1103,1138. Jones v. Wasson (3 Baxt. 211). 1325. Jones v. Williams (7 M. & W. 493), 428. Jones v. Wright (71 111. 61), 671, 6S2. Joplin Water Co. v. Bathe (41 Mo. A pp. 2S5). 1357. Jordan v. Coffield (70 N. C, 110), 130, 131. 132 Jordan v. James (5 Ohio, 88), 1612. Jordan v. Norton (4 M. & W. 155), 227. 228. Jordan v. Parker (56 Me. 557), 924. Jordan v. Patterson (67 Conn. 473), 241, 246, 1760, 1762. 1763. Jordan v. Pickett (78 Ala. 331), 884 Jordan v. Stevens (51 Me. 78), 872, Jordan v. Wells (104 Ala. 383), 588. Jordan v. Wright (45 Ark. 237), 186. Joseph v. Brandy (112 Mich. 579). 696. Joslin v. Cowee (52 N. Y. 90), 909. Joslin v. Giese (59 N. J. L. 130), 1423. Josling v. Kingsford (13 C. B. 446), 1333. Joslyn v. Grand Trunk Ry. Co. (51 Vt. 92), 774. 1194. Journey v. Priestly (70 Miss. 584), 599. Jowers v. Blandy (58 Ga. 379), 583. Joy v. Bitzer (77 Iowa, 73), 1268. Jov v. Sears (9 Pick. 4). 1201. Joyce v. Adams (S N. Y. 291), 498, 520, 521. Joyce v. Swann (17 C. B., N. S., 84), 218, I s 1. 740, 77."), 779, 787. Judd v. Day (50 Iowa. 247). 245. Judd v. Weber (55 Conn. 267), 877. Jndkins v. Walker (17 Me. 38), 109. Judson v. Lyford (84 Cal. 505), 953. Justh v. Holliday (2 Mackey, 346), 1036. Justice v. Lang (42 N. Y. 493), 1450. Juzan v. Toulmin (9 Ala. 662), 64, 65. Kadista v. Young (108 111. 170), 1088, 1089, 1090, 1707. Kalm v. Klabunde (50 Wis. 235), 660. Kahn v. Walton (46 Ohio St. 195), 1031, 1039. Kain v. Larkin (131 N. Y. 300), 972. Kain v. Old (2 B. & C. 627), 1255. Kanaga v. Taylor (7 Ohio St. 134), 649. Kane v. Clough (36 Mich. 436), 200, 202. Kane v. Loder (56 N. J. Eq. 268), 1305. Kane v. Roberts (40 Md. 590), 976. Kansas City R. Co. v. Coal Co. (97 Ala. 705), 1433. Kase v. John (10 Watts, 109), 1805. Kauffman v. Klang 1 16 Misc. 379), 603. Kaufman v. Schilling (58 Mo. 218), 711. Kaufman Bros. & Co. v. Farley Mfg. Co. (78 Iowa, 679), 264. Kearley v. Thomson (24 Q. B. Div. 742), 999, 1002. Kearney v. Dovle (22 Mich. 294), 1713. Kearnev v. Vaughan (50 Mo. 284), 946. Kearney Milling Co. v. Union Pacific Ry Co. (97 Iowa, 719), 901, 906, 911. cxxx TABLE OF CASKS CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Keats v. Lord Cadogan (10 C. B. 591), 869. Keck v. State (12 Ind. App. 119), 588, 597, 1424. Keeder v. Murphy (43 Towa, 413), 957. Keeler v. Field (1 Paige, 312), 1437. Keeler v. Goodwin (111 Mass. 490), 714, 1514, 1516. Keeler v. Jacobs (87 Wis. 545), 660. Keenan v. Stimson (32 Minn. 377). 649. Kehr v. Smith (20 Wall. 36), 975. Keil v. Healey (84 111. 104), 1)5. Kein v. Tupper (52 N. Y. 550), 513, 520, 532, 552, 1162. Keith v. Clark (97 U. S. 454), 1024. Keith v. Hirschberg Optical Co. (48 Ark. 138), 1291. Keith v. Hobbs (69 Mo. 84), 834. Keiwert v. Meyer (62 Ind. 587), 365. Kellam v. Brown (112 N. C. 451), 49. Kelley v. Cosgrove (83 Iowa, 229). 1053. Kelley v. Davis (49 N. H. 187), 186. Kelley v. Ohio Oil Co. (57 Ohio St, 317), 347. Kelley v. Rowane (33 Mo. App. 440), 1106. Keller v. Phillips (39 N. Y. 351), 183. Keller v. Ybarru (3 Cal. 147), 224, 263. Kellogg v. Costello (93 Wis. 232), 603. Kellogg v. Denslow (14 Conn. 411), 1395. Kellogg v. Lovely (46 Mich. 131), 636. Kellogg v. Smith (26 N. Y. 18), 1453. Kellogg v. Turpie (2 111. App. 55), 1411. Kellogg v. Turpie (93 111. 265), 912, 1411. Kellogg v. Witherhead (6 Thomp. & C. 525), 305, 382. Kellogg Bridge Co. v. Hamilton (110 U. S. 108), 1317, 1318, 1344, 1346, 1349. Kellogg Newspaper Co. v. Peterson (162 111. 158), 964, 1197. Keily v. Mesier (46 N. Y. Supp. 61), 964. Kelly v. Solari (9 M. & W. 54), 854. Kelly v. Upton (5 Duer, 336), 41. Kelsea v. Haines (41 N. II. 246), 499, 5H'., 518. Kelsea v. Ramsey & Gore Mfg. Co. (55 N. J. L. 320), 756. 11*1, 1182, 1187. Kelsey v. Harrison (29 Kan. 143), 906. Kelsey v. Kendall (48 Vt, 24), 604, 643. Kemp v. Balls (10 Exch. 607), 1466. Kemp v. Falk (7 App. Cas. 573), 1566, L570, 1602. Kemp v. Freeman (42 111. App. 500), 816, 1805, 1807. Kemper Dry Goods Co. v. Kidder Savings Bank (72 Mo. App. 226), 887. Kempner v. Colin (47 Ark. 515 1-, 358. Kempner v. Churchill (8 Wall. 362), 954. Kendall v. Marshall (11 Q. B. D. 356), 1561. 1575. Kendall v. May (10 Allen, 62), 84. Kendall v. Sampson (12 Vt. 515), 963. Kendrick v. Lomax (2 Cr. & J. 405), 1428. Kennebrew v. Southern Automatic, etc. Co. (106 Ala. 377), 1314. Kennedy v. Conroy ( Cal. — ), 964. Kennedy v. Lee (3 Meriv. 441), 228. Kennedy v. Panama, etc. Mail Co. (L. R. 2 Q. B. 580), 275. Kennedy v. Whittie (27 Nova Scotia, 460), 492. Kennedy v. Whitwell (4 Pick. 466), 1786. Kenner v. Harding (85 111. 264), 868, 935, 1272. Kenney v. Altvater (77 Pa. St. 34), 145.- Kenney v. Heirs (26 Neb. 213), 428. Kenney v. Ingalls(126 Mass. 488), 546. Kenniston v. Ham (29 N. H. 501), 213, 674. Kent v. Bornstein (12 Allen, 342), 916, 1463. Kent v. Bowker (38 Vt. 148), 1441. TABLE OF CASES CITED. CXXX1 References are to sections: Vol. Kent v. Buck (42 Vt. 18), 592. Kent y. Friedman (101 N. Y. 61G), 139& Kent v. Miltenberger (13 Mo. App. 503), 1032. Kent v. Ricards (3 Md. Ch. 392), 1455. Kent Iron Co. v. Norbeck (150 Pa. St. 559), 760. Kenton v. Ratcliff ( — Ky. — ), 963. Kentucky Club v. Louisville (92 Ky. 809), 55. Kentucky Refining Co. v. Globe Re- fining Co. ( — Ky. — ), 779. Kenwortby v. Schofield (2 B. & C. 945), 426. Kerkhof v. Atlas Paper Co. (68 Wis. <;; h, ni). Kern v. Thurber (57 Ga. 172), 923. Kerr v. Bell (44 Mo. 120), 109. Kerr v. Hayes (35 N. Y. 331), 1502. Kerr v. Henderson (62 N. J. L. 734), 50a Kerr v. Smith (5 B. Mon. 552). 1092. Kerwin v. Doran (29 Mo. App. 397), 1013. Kr>sler v. Smith (42 Minn. 491), 738, 1181. Kester v. Miller (119 N. C. 475), 1844. Ketchum v. Brennan (53 Miss. 596), 599, 629. Ketchum v. Catlin (21 Yt. 191), 277. Ketchum v. Wells (19 Wis. 26), 1079, 1340, 1345. Ketchum v. Zeilsdorff (26 Wis. 514), 1106. Key v. Cotesworth (7 Exch. 595), 775. Keyser v. District No. 8 (35 X. H. 477), 333. Keystone Watch Case Co. v. Fourth Street National Bank (194 Pa. St. 535), 48. Kibble v. Gough (38 L. T. 204\ 369. Kiddell v. Burnard (9 M. & W. 668), 1270. Kidder v. Blake (45 N. H. 530), 1004. I, §§ 1-797; Vol. H, §§ 798-1850. Kidney v. Consomaher (12 Ves. 156), 974 Kilgore v. Bruce (166 Mass. 136), 937, 1843. Kilgore v. Rich (83 Me. 305), 132. Killmore v. Howlett (48 N. Y. 569), 305. Kimball v. Bruce (58 N. H. 327), 109. Kimball v. Cunningham (4 Mass. 502), 910, 914 Kimball v. Farnum (61 N. H. 348), 628. Kimball v. Jackman (42 N. H. 242), 599. Kimball v. Post (44 Wis. 471), 603. Kimball v. Rowland (6 Gray, 224), 1080. Kimball Co. v. Mellon (80 Wis. 133), 564 583, 592, 603. Kimberley v. Patchin (19 N. Y. 360), 51U, 702, 708, 711, 714, 759, 1158. 1505. King v. Bates (57 N. H. 446), 599. King v. Batterson (13 R. I. 117), 267. King v. Brown (24 111. App. 579), 902. Kin- v. Faist (181 Mass. 449), 806, 1087. King v. Finch (60 Ind. 420), 1417. King v. Green (6 Allen, 139), 1053. King v. Jarman (35 Ark. 190), 387, 527. 538 King v. Rochester (67 N. H. 310). 1154. King v. Towsley (64 Iowa, 75), 1384. King v. Wilcox (11 Paige, 594), 974. King v. Wood (7 Mo. 389), 429. King Philip Mills v. Slater (12 R. I. 82), 1145, 1148. Kinghorne v. Telegraph Co. (18 U. C. Q. B. 60), 224. Kingman v. Denison (84 Mich. 608), 1542, 1564, 1596. Kingman v. Hotaling (25 Wend. 423), 1411. Kingman v. Perkins (105 Mass. Ill), 95, 97. Kingman v. Watson (97 Wis. 596), 1387, 1396. cxxxn TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Kingman & Co. v. Hanna Wagon Co. (176 111. 547), 1180, 1702. Kingman & Co. v. Western Mfg. Co. (34 C. C. A. 489), 1701. Kingsbury v. Smith (13 N. H. 109), 148. Kingsbury v. Taylor (29 Me. 508;, 1311. Kingsford v. Merry (11 Ex. 577), 148, 923, 924. Kingsford v. Merry (1 H. & N. 503), 269. Kingsley v. Holbrook (45 N. H. 313), 336. Kingsley v. Johnson (49 Conn. 462), 1244. Kingsley v. White ( 57 Vt. 565), 964, 1197. Kinley v. Fitzpatrick (4 How. 59), 862, 1229. Kinloch v. Craig (3 T. R. 119). 1534. Kinney v. Cay (39 Minn. 210), 603. Kinney v. Kiernan (49 N. Y. 164), 909. Kinney v. McDermot (55 Iowa, 674), 1053. Kinsman v. Kershaw (119 Mass. 140), 1450. Kipp v. Bingham (6 Johns. 157), 1798. Kipp v. Meyer (5 Hun, 111), 1390. Kirby v. Johnson (22 Mo. 354), 382, 386. Kirby v. Milling Co. (105 Ala. 529), 1050. Kirby v. Tompkins (48 Ala. 273), 633. Kircher v. Conrad (9 Mont. 191), 832, 1242, 1244. Kirk v. Hiatt (2 Ind. 322), 1455. Kirkland v. Carr (35 Miss. 584), 1131. Kirk patrick v. Adams (20 Fed.' R. 825), 1031. Kirkpatrick v. Alexander (60 Ind. 95), 1136. Kirkpatrick v. Bonsall (72 Pa. St. 155), 1034. Kirkpatrick v. Puryear (93 Tenn. 409), 1433. Kirkwood v. Hoxie (95 Mich. 62), 619. Kirtland v. Snow (20 Conn. 23), 982. Kissam v. Edmundson (1 Ired. Eq. 180), 975. Kitchen v. Lee (11 Paige, 107), 109, 121. Kitchen v. Spear (30 Vt. 545), 1571, 1578. Kitchen v. Stokes (9 W. N. Cas. 48), 1082. Kitzinger v. Sanborn (70 111. 146), 1103. Kleckley v. Leyden (63 Ga. 215), 1050. Klee v. Reitzenberger (23 W. Va. 749), 964. Kleeb v. Bard (7 Wash. 41), 1337. Kleeman v. Collins (9 Bush, 460), 432. Kleeman v. Peltzer (17 Neb. 381), 948. Klein v. Livingstone Club (177 Pa. St. 224), 55. Klein v. Seibold (89 111. 540), 154. Kline v. Baker (99 Mass. 253), 757. Kline v. Baker (106 Mass. 57), 901. Kline v. Kline (57 Pa. St. 120), 872. Kline v. LAmoureux (2 Paige, 419), 127, 128. Kling v. Fries (33 Mich. 275), 1028. Knapp v. Wolverton (47 Mich. 292), 342. Knapp Electrical Works v. New York Insulated Wire Co. (157 111. 456), 741. Kneass v. Schuylkill Bank (4 Wash. C. C. 12), 834. Kneeland v. Renner (2 Kan. App. 451), 485, 492, 502. Knight v. Burnham (90 Me. 294), 1050. Knight v. Crockford (1 Esp. 190), 451, 456. Knight v. Mann (118 Mass. 143), 359, 362, 367, 369. Knights v. Wiffin (L R. 5 Q. B. 660), 170, 1503, 1505. Knittel v. Cushing (57 Tex. 354), 570, 583. TABLE OF CASES CITED. CXXX111 References are to sections: Vol Knoblauch v. Kronschnabel(18Minn. 300), 1375. Knowlton v. Rede'nbaugh (40 Iowa, 114), 599. Knower v. Cadden Clothing Co. (57 Conn. 209), 95a Knowles Loom Works v. Vacher (57 N. J. L. 490), 599, 603. Knowlton v. Doherty (87 Mo. 518), 1027. Knowlton v. Keenan (146 Mass. 86), 870. Knowlton v. Newell (10 Allen, 34), 1131. Knowlton v. Spring Co. (57 X. V. 518), 999. Knox v. Clifford (38 Wis. 651). 1054 Knox v. Eden Musee Co. (148 N. V. Hi). 163. Knox v. King (36 Ala. 367), 184. Knuokolls v. Lea (10 Hump. 577 ,909. Kocb v. Lyon (82 Mich. 513), 928. Kohlv. Lindley(39 111. L95), 196, 198, 586, 1237, 1811, 1852. Kohl v. Lynn (34 Mich. 360), 924. Kohlei n. Hayes (41 Cal. 455 585, 599. Kohn v. Milcher (43 Fed. R. 641), 1027. Kohn v. Washer (64 Tex. 181), 179. 1117. Kokomo Strawboard Co. v. Tnnian (134 N. Y. 92). 1117. 1148, 1664, Koones v. District of Columbia (4 Mackey, 339), 1433. Kornegay v. Kornegay (109 N. C. 188), 599, 603,604. Kornegay v. White(10 Ala. 255), 1270. Kornemann v. Monaghan (24 Mich. 36), 1445. 1117. MIS. Kost v. Reilly (62 Conn. 57), 651. Kountz v. Dickson I 10 -Miss. 341), 1057. Kountz v. Kirkpatriok (72 Pa. St. 378), 208. .1 I, §§ 1-797; Vol. n, §§ 798-1850. Kountz v. Price (40 Miss. 341), 1055, 1057. Kountze v. Kennedy (147 N. Y. 124), 875. Kramer v. Messner (101 Iowa, 88), 823, 1055. Kraus v. Thompson (30 Minn. 64), 908. Krebs v. O'Grady (2:1 Ala. 726), 178. Kreiss v. Seligman (8 Barb. 439), 1013. Kribs v. Jones | 1 1 Md 396), 1103, 1129, 1736, 1748. Kriete v. Myer (61 Md. 558). 440. Krnavek v. State (38 Tex. Crim. R. 44), 55. Krohn v. Bantz(68 End. 277), 406, 413. Krohn v. Williamson (62 Fed. R. 869), 1727. Kroni v. Levy (3 N. Y. Supp. 704), lllil. Krouse v. Woodward (110 Cal. 338), IT is. 1727. Krouskop v. Sbontz (51 Wis. 204), 138. Kruhla- v. Ellison (47 N. Y. 36), 736, 1181. Krumbhaar v. Birch (83 Pa. St. 426), 1303, 1795. Krumm v. Beach (96 N. Y. 398). 1843. Kuehn v. Wilson (13 Wis. 104), 1223. Kugler v. Wiseman (20 Ohio, 361), 1106. Kuhnsv. Gates (92 Ind. 66), 1057. Kunkle v. Mitchell (56 Pa. St. 100), 1081,1130. Kuppenheimer v. Wertheimer (107 Mich. 77). 731. Kurtz v. Frank (76 Ind. 594), 1090. Kuykendall v. McDonald (15 Mo. 416), 951, 954. Kyle v. Kavanaugh (103 Mass. 356), 228 272. Kyle' v. Ward (81 Ala. 120), 903, 904. Lackey v. Stouder (2 Ind. 376), 1302. Lackington v. Mherton (7 M. & G. 360), no:*. Ladd v. Dillingham (34 Me. 316), 1004. CXXX1V TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; A T ol. II, §§ 708-1850. Ladd v. Moore (3 Sandf. 589), 915, 919. Ladd v. Wiggin (35 N. H. 421), 956. Lady Arundell v. Phipps (10 Ves. 139), 1719. Laidlaw v. Organ (2 Wheat, 178), 868. Laidler v. Burlinson (2 M. & W. 602), 755. Laird v. Pirn (7 M. & W. 474), 1106. Lake v. Morris (30 Conn. 201), 964. Lake Shore R. Co. v. Hutchins (32 Ohio St. 571), 6:39. Lake Shore, etc. Ry. Co. v. Nat, Live Stock Bank (178 111. 506), 1538. Lake Shore, etc. R. Co. v. Richards (152 111. 59), 1089, 1090. Lakeside Press Co. v. Campbell (39 Fla, 523), 1447, 1448. Lamar Water Co. v. City of Lamar (140 Mo. 145), 1387. Lamb v. Crafts (12 Mete. 353), 307, 324, 1254, 1337. Lamb v. Durant (12 Mass. 54), 981, 1201. Lamb v. Lamb (130 Ind. 273), 873. Lamb v. Hirschberg (1 N. Y. App. Div. 519), 1450. Lambert v. McCloud (63 Cal. 162), 613. Lamman v. McGregor (94 Ind. 301), 1660. Lamme v. Gregg ( 1 Mete. 444), 1235, 1242. La Mont v. La Fevre (96 Mich. 175), 1407. L' Amoureaux v. Crosby (2 Paige, 422), 69, 70. Lamprey v. Sargent (58 N. H. 241), 702, 703. Lamson v. Patch (5 Allen, 586). 964. Lancaster v. Knickerbocker Ice Co. (153 Pa. St. 427), 1450. Lancaster County Bank v. Moore (78 Pa. St. 407), 74, 75. Landa v. Latten (19 Tex. Civ. App. 246), 1816. Landigan v. Mayer (32 Oreg. 245), 593, 646. Landman v. Bloomer (117 Ala. 312), 1240, 1254. Lane v. Bishop (65 Vt. 575), 138. Lane v. Chad wick (146 Mass. 68), 740. Lane v. Dudley (2 Murph. 119), 1294. Lane v. Jackson (5 Mass. 157), 1292. Lane v. Neale (2 Stark. 105), 41. Lanfear v. Sumner (17 Mass. 110), 981, 984, 989, 990. Lang v. Lynch (38 Fed. R. 489), 1028. Lang's Appeal (81 Pa. St. 18), 755. Lang's Heirs v. Waring (25 Ala. 025), 1307. Langdon v. Clayson (75 Mich. 204), 100. Langdon v. De Groot (1 Paine, 203), 834 Langdon v. Potter (13 Mass. 319), 1455. Langfort v. Tiler (1 Salk. 113), 404. Langridge v. Levy (2 M. & W. 519), 878. Langstaff v. Stix (64 Miss. 171), 1582. Langton v. Higgins (4 H. & N. 402), 727, 735. Langton v. Hughes (1 M. & S. 593), 1012, 1015. Langworthy v. Little (12 Cush. 109), 649. Lanier v. Auld (1 Murph. 138), 1311. Lankton v. Stewart (27 Minn. 346), 1419. Lansden v. McCarthy (45 Mo. 106), 267. Lansing v. Turner (2 Johns. 13), 483. Lansing Iron & Engine Works v. Walker (91 Mich. 409), 599, 645. Lansing Iron Works v. Wilbur (11 Mich. 413), 599. Laporte Imp. Co. v. Brock (99 Iowa, 485), 1395. Laraway v. Perkins (10 N. Y. 371), 1709. Larkin v. Mitchell Lumber Co. (42 Mich. 196), 746, 1160. Larmon v. Jordan (56 111. 204), 244, TABLE OF CASES CITED. CXXXV References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Larned v. Andrews (106 Mass. 435), 1046, 1051. Larson v. Aultman (86 Wis. 281), 1395, 1811. Larson v. Breene (12 Colo. 480), 1434. La Rue v. Gilkyson (4 Pa. St. 375), 8 1 Lassing v. James (107 Cal. 348), 519, 1618, 1674, 1677, 1810. Latham v. Bausmann (39 Minn. 57), 1384. Latham v. Davis (44 Fed.R. 862), 629. Latham v. Shipley (86 Iowa. 543), 1235, 1240, 1242. Latham v. Sumner (89 I1L 233), 622, 629. Lathrop v. Clayton (-15 Minn. 124), 904. Lathrop v. Page (129 Mass. 19), 1419. La ii bach v. Laubach (73 Pa. St. 387), 685. Laughton v. 1 [arden (68 Me. 208), 973. Law v. Hodgson (2 Camp. 117). 1045. Law v. Hodson (11 East, 300), 1050. Law v. Long (41 Ind. 586), 79. Law v. Stokes (3 Vroom, 249). 1447, 144*. 1450. Lawes v. Purser (6 El. & BI. 930), 834. Lawrence v. Gayetty (78 Cal. 126), 870. Lawrence v. Gifford (17 Pick. 366), 1072. Lawrence v. Porter (22 U. S. A pp. 483), 1740, 1754. 1755. Lawrence Canning Co. v. Lee Mer- cantile Co. (5 Kan. App. 77), 1690. Lawry v. Ellis (85 Me. 500), 714. Lawson v. De Bolt (78 Ind. 564), 9. Lawson v. Lovejoy (8 Greenl. 405), 121. Lawton v. Blitch (83 Ga. 663), 1031. Lawton v. Gordon (34 Cal. 36), 947. Lawton v. K-ittridge (30 N. H. 500), 936. Liytlioarp v. Bryant (2 Bing. N. C. 735), 449. Lazarus v. Bank (72 Tex. 354), 564. League v. Waring (85 Pa. St, 244), 1426, 1435. Leask v. Scott (2 Q. B. Div. 376), 1563, 1565. Leath v. Uttley (66 Tex. 82), 599. Leather Cloth Co. v. Hieronimus (L. R. 10 Q. B. 140), 428, 806. Leatherbury v. Connor (54 N. J. L. 172), 555. Leavitt v. Dover (67 N. H. 94), 1103. Leavitt v. Fairbanks (92 Me. 521), 170. Leavitt v. Fletcher (60 N. H. 182), 880, 1272. Leavitt v. Morrow (6 Ohio St. 71), 1467. Ledwich v. McKim (53 N. Y. 307), 838, 1793, 1849. Ledyard v. Hibbard (48 Mich. 421), 25, 28. Lee v. Bangs (43 Minn. 23), 1374, 1382, 1392. Lee v. Cherry (85 Tenn. 707), 428, 432, 435. Lee v. Figg (37 Cal. 328), 958. Lee v. First Nat. Bank (45 Kan. 8), 113. Lee v. Gaskell (1 Q. B. Div. 700), 329, 333. Lee v. Griffin (1 Best & Smith, 272), 302, 305, 307, 309, 313,314. Lee v. Kimball (45 Me. 172). 924, 1565 Lee v. Lee (4 McCord, 183), 67. Lee v. Mahony (9 Iowa, 344), 426. Lee v. Munroe (11 U. S. 366), 191. Lee v. Openheimer (32 Me. 253), 1419. Lee v. Sickles Saddlery Co. (38 Mo. App. 201), 1344. Lee v. Simmons (65 Wis. 523). 901, 914. Lee Bros. Furn. Co. v. Cram (63 Conn. 433), 603. Lee Silver Mining Co. v. Omaha, etc. Smelting Co. (16 Colo. 118), 264. Leeds v. Wright (3 Bos. & Pul. 320), 1577. Leeming v. Snaith (16 Q. B. 275), 1168. Lees v. Whitcomb (5 Bing. 31), 226. CX XX VI TABLE OF CASES CITED. References afe to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Leffingwell v. Whhe (1 Johns. Cas. 99), 1135. Legg, In re (96 Fed. R. 326), 650. Legg v. Willard (17 Pick. 140), 964 Leggatt v. Brewing Co. (60 111. 158), 1265, 1298. Leggett v. Young (29 New Bruns. 675), 1331, 1358. Leggett & Meyer Co. v. Collier (89 Iowa, 144), 365, 736, 738,739, 1387. Le Grand v. National Bank (81 Ala. 123), 903, 904, 923. Lehenbenter & C. Co. v. McCord (65 Mo. App. 507), 440. Lehigh Co. v. Field (8 W. & S. 232), 32. Lehigh Zinc & Iron Co. v. Bamford (150 U. S. 665), 871, 875. Lehmberg v. Biberstein (51 Tex. 457), 976. Lehman v. Shackleford (50 Ala. 437), 872. Lehman v. Strassberger (2 Woods, 554), 1032, 1039. Lehman v. Warren (53 Ala. 535), 543. Leigh v. Mobile & Ohio R. Co. (58 Ala. 178), 156, 601. Leigh v. Patterson (8 Taunt. 540), 1088. Leitch v. Gillette-Herzog Mfg. Co. (64 Minn. 434), 1324. Lemayne v. Stanley (3 Lev. 1), 451. Lemen v. Robinson (59 111. 115), 960. Lemmon v. Beeman (45 Ohio St. 505), 118. Lemonius v. Mayer (71 Miss. 514), 1043. Lempriere v. Pasley (2 T. R. 485), 380. Lentz v. Flint & P. M. Ry. Co. (53 Mich. 444), 1594. Lenz v. Harrison (148 111. 598), 49. Leon v. Goldsmith (69 111. App. 22), 920. Leonard v. Beaudry (68 Mich. 312), 1709. Leonard v. Davis (1 Black, 476), 485, 493, 502, 518, 1197, 1481. Leonard v. Fowler (44 N. Y. 289), 1320, 1328. Leonard v. Leonard (14 Pick. 283), 69, 72. Leonard v. Medford (85 Md. 666), 337. Leonard v. Portier (15 S. W. R. 414), 1633, 1634. Leonard v. Stott (108 Mass. 46), 132. Leonard v. Winslow (2 Grant's Cas. 139), 41. Leopold v. Van Kirk (27 Wis. 152), 1265, 1298, 1317. 1346. Le Page v. McCrea (1 Wend. 164), 1420. Lerned v. Wanuemacher (9 Allen, 412), 426. Lesassier v. The Southwestern (2 Woods, 35), 1565. Lester v. Buel (49 Ohio St. 240), 1031. Lester v. East (49 Ind. 588), 508, 714. Lester v. Heidt (86 Ga. 226), 439. Lester v. Palmer (4 Allen, 145), 884. Levan v. Witten (135 Pa. St. 61), 585, 624. Leven v. Smith (1 Denio, 571), 542, 543, 551, 1437. Levi v. Booth (58 Md. 300), 154, 158, 160. Levi v. Bray (12 Ind. App. 9), 905. Levin v. Russell (42 N. Y. 251), 963. Levy v. Cohen (4 Ga. 1), 247. Levy v. Green (8 El. & Bl. 575), 1158. Levy v. Green (1 E. & E. 969), 746, 1158. Levy v. Scott (115 Cal. 39), 964. Lewarkv. Carter (117 Ind. 206), 856. Lewenbergv. Hayes (91 Me. 104), 549. Lewis v. Baircl (3 McLean, 56), 67. Lewis v. Brass (3 Q. B. D. 667), 235. Lewis v. Browning (130 Mass. 173), 247, 250. Lewis v. Evans (108 Iowa, 296), 325. Lewis v. Galena, etc. R. R. Co. (40 111. 281), 752. Lewis v. Greider (51 N. Y. 231), 1638, 1643. TABLE OF OASES CITED. cxxxvu References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Lewis v. Hofer (16 N. Y. Supp. 531), 1134 Lewis v. Hubbard (1 Lea, 436), 1812. Lewis v. Jewell (151 Mass 345\ 938. Lewis v. Latham (74 N. C. 283), 1013, 1024. Lewis v. Mason (36 Up. Can. Q. B. 590). 1586, 1587, 1004. Lewis v. Metoalf (53 Kan. 217). 1450. Lewis v. McCabe (49 Conn. 141), 597, 599. Lewis v. Roundtree (78 N. C. 323), 1235, 1334 1345, 1393, 1395, 1817, 1833. Lewis v. Steiner (84 Tex. 364), 1483. Lewis v. Thatcher (15 Mass. Utl), 1264. Lewis v. Wood (153 Mass. 321), 434 Li obey v. Downey (5 Allen, 299;, 1046, 1050. Libuy v. Haley (91 Me. 331), 1805. Libby v. Ingalls (124 Mass. 503). 771. Lick barrow v. Mason (5 T. R. 683), 1501. Lickbarrow v. Mason (1 H. Bl. 357). 1526. Lickbarrow v. Mason (1 Smith's L. C. 388), 269. Lickbarrow v. Mason (2 T. R. 63), 1563. Lickbarrow v. Mason (4 Bro. P. C. 57), 1526 Liddard v. Kain (9 Moore. 356), 1273. Liddell v. Sahline (55 Ark. 627), 187. Lieberrnan v. Puckett (94 Tenn. 273), 629. Liebes v. Steffy (— Ariz. — ), 960. Light burn v. Cooper (1 Dana, 273), 1805. Lighthouse v. Third Nat. Bank (162 N. Y. 336), 1733. Lile v. Hopkins (12 Smed. & M. 299), 1302. Lilienthal v. Ballou (125 Cal. 183), 951. Lilienthal v. Suffolk Brewing Co. (154 Mass. 185), 211, 812, 939. Lillie v. Dunbar (62 Wis. 198), 336, 603. Lillywhite v. Devereux (15 M. & W. 285), 373, 389. Lima Mach. Works v. Parsons (10 Utah, 105), 564. Lindauer v. Hay (61 Iowa, 663). S95, 896, 901. Lincoln v. Buckmaster (32 Vt. 652\ 74, 77. Lincoln v. Erie Preserving Co. (132 Mass. 129), 225, 429, 434 Lincoln v. Gallagher (79 Me. 189), 1125, 1189. Lincoln v. Quynn (68 Md. 299), 600. Lincoln Shoe Mfg. Co. v. Sheldon (44 Neb. 279), 1690, 1694, 1695. Lindley v. Lacy (17 C. B. 578), 1255. Lindon v. Sharp (6 M. & G. 895), 960. Lindsay v. Cundy (3 App. Cas. 459), 887. Lindsey v. Rutherford (17 B. Mon. 245), 1051. Lindsey v. Stone (123 Mass. 332), 1018. Lin forth, In re (Fed. Cas. No. 8,369), 49. Liu forth, In re (4 Sawy. 370), 49. Lingham v. Eggleston (27 Mich. 324), 489, 499, 502, 516. Lining v. Geddes (1 McCord, Eq. 304), 1718. Linington v. Strong (107 111. 295), 881. Linn v. Gunn (56 Mich. 447), 1241. Linn v. Wright (18 Tex. 317), 960. Linn-Boyd Tobacco Co. v. Terrill (13 Bush, 463), 461. Linsley v. Tibbals (40 Conn. 522), 428. Linton v. Butz (7 Pa. St. 89), 960, 964, 988, 1490. Linton v. Porter (31 111. 107), 1795. Lippincott v. Rich (19 Utah, 140), 599, 608, 633. Litchfield v. Hutchinson (117 Mass. 195), 875. Lift v. Cowley (7 Taunt. 169), 1606, 1611. CXXXV1U TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-707: Tol. II, §§ 798-1850. Little v. American, etc. Mach. Co. (67 Ind. 67), 1439. Little v. Dougherty (11 Colo. 103), 429. Little v. Little (13 Gray, 264), 69. Little v. Mercer (9 Mo. 216), 1106. Little v. Page (41 Mo. 412), 599. Little v. Poole (9 B. & Cr. 192), 1030. Little v. Van Syckle (115 Mich. 480), 1260, 1353. Littlefield v. Perry (21 Wall. 221), 1729. Littlejohn v. Shaw (159 N. Y. 188), 1077. Little Pittsburgh Mining Co. v. Min- ing Co. (11 Colo: 223), 642. Little Rock & Fort Smith Ry. Co. v. Page (35 Ark. 304). 963. Little Rock & Ft. S. R. Co. v. Wig- gins (65 Ark. 383), 1459. Littleton v. Loan, etc. Ass'n (97 Ga. 172), 187. Liverraore v. 'White (74 Ma 453), 269. Livesay v. Beard (22 W. Va. 585), 978. Livingston v. Wagner (23 Nev. 53), 207. 1659. Lloyd v. Brewster (4 Paige, 537), 908. Lloyd v. Fulton (91 U. S. 479), 959. Lloyd v. Loaring (6 Ves. 773), 1719. Lloyd v. Williams (6 Colo. App. 157), 964. Lobdell v. Hopkins (5 Cow. 516), 734, 1124.1125. Lobdell v. Stowell (51 N. Y. 70), 711. Lobenstein v. United States (91 U. S. 324). 1169. Lobstein v. Lehn (120 111. 549), 952, 978. Locke v. Smith (41 N. H. 346), 109, 123. Locke v. Williamson (40 Wis. 377'. 1380, 1392, 1395. Lockhart v. Bonsall (77 Pa. St, 53), 1127, 1130, 1158. Lockhart v. Wyatt (10 Ala 231), 145S. Loder v. Kekule (3 Com. B., N. S., 128), 1817. Loeb v. Peters (63 Ala. 243), 1539, 1563, 1564, 1565, 1579. Logan v. Gardner (136 Pa. St. 588). 95. Logan v. Le Mesurier (6 Moore, P. C. 116), 479, 515. Logwood v. Hussey (60 Ala. 417), 692. Lomi v. Tucker (4 Car. & P. 15), 1242. London Joint Stock Bank v. Sim- mons (App. Cas. 201), 156, 162. London, etc. Bank, In re (34 Law J. Ch. 418), 143a London & Northwestern Ry. Co. v. Bartlett (7 H. & N. 400), 787. 1550. Lonergan v. Stewart (55 111. 49), 21, 23. Long v. Conklin (75 111. 32), 1745, 1746. Long v. Hickingbottom (28 Miss. 772), 1302. Long v. Hicks (2 Humph. 305), 1272. Long v. Long (9 Md. 348), 74. Long v. Millar (4 C. P. Div. 450), 426. Long v. Spruill (58 N. C. 96), 702. Long v. Warren (68 N. Y. 426), 879, 880. Long v. White (42 Ohio St. 59), 334. Long v. Williams (74 Ind. 115), 108. Long v. Woodman (58 Me. 49), 874, 937. Longworth v. Mitchell (26 Ohio St. 334), 244. Loomis v. Bragg (50 Conn. 228), 569, 614, 620. 635. Loomis v. Wainwright (21 Vt. 520), 14 Loper v. Robinson (54 Tex. 510), 875. Lord v. Buchanan (69 Vt. 320), 589, 592. Lord v. Edwards (148 Mass. 476), 492, 739, 1265. Lord v. Grow (39 Pa. St. 88), 1242, 1311. Loring v. Boston (7 Mete. 409), 245. Lorymer v. Smith (1 B. & Cr. 1), 1208. Loucheim v. Sey forth (49 111. App. 561), 964. Loud v. Campbell (26 Mich. 239), 1831. TABLE OF CASES CITED. References are to sections: Vol. I, §5 1-797: Vol. n, §§ 79&-1850. CXXX1X Loughridge v. Bowland (52 Miss. 546), 971. Louisiana, etc. Co. v. Bass. etc. Works (30 U. S. App. 433 , 1384 Louisville Asphalt Varnish Co. v. Lorick(29S.CL533),426,428. Louisville R. Co. v. Alexander (27 S. W. R 981), 1- 9 Louisville Ry. Co. v. Herr (135 Ind. 591), 72. Louisville, etc. R R Co. v. Holler- bach (105 Ind. 137). 1775. Louisville, etc. Ry. Co. v. Iron Co. ! 111. 294), 1130. Lovatt v. Hamilton (5 M. & W. 639), Love v. Harvev .114 Mass. BO . 1031. Love v. Miller .1" l N. C. Love v. Boss (89 Iowa, Lovejoy v. Michels (S3 Mich. 15;, 207, . - 1659. Lovejoy v. Murray (3 WalL 1), 156. Lovelace v. Stewart (23 Mo. Lovell v. St. Louis Mut. L. Ins. Co. (Ill U. S. 264. 1090, 1 Lowv. Austin 20 N. Y. 1-1 Lowv. Freeman 12 111. 467 . 41. Low v. Pew (108 Mass. 347 s 199, 200, 201. Lowber v. Bangs (2 Wall. 728), 1145. Lowber v. Connit (36 Wis. 176), 449. Lowdon v. Fisk 27 S. W. E. E 9 Lowe v. Harwood (139 Mass. 133), 1089. Lowe v. Turpie (147 Ind. 652>. 1755. Lowe v. Young (59 Iowa. 364). 1031. Lowell v. Boston & L R Co. (23 Pick, I 1001. Lowell v. Lewis 1 Mason. 185), S34 Loweustein v. Bresler (109 Ala. 326). 1433. Lowman v. Excelsior Stove Pattern 104 Ala. 367i.l302, 1304. Lowman v. Sheets (124 Ind. 4 Lowry v. Bourdieu (2 Doug. 4! - Lowry v. Dillman (59 Wis. 197), 1031, Lowry v. Fisher (2 Bush. Lowry v. Mehaffy | 10 Watt - - Lowry v. Pinson (2 Bailey, L. 324 . 970. Lowther v. Lord Lowther (13 Yes. 95), 1719. Lovd v. Wight (20 Ga. 574 . 7 - Lucas v. Campbell (88 I1L 447 .., 569, 600, 693. Lucas v. Dixon (22 Q. B. Div. 3e 424. Lucas v. Darrien (7 Taunt. 278), 1493. Lucas v. Nichols (5 Gray, 309 , 1127, 1187. Lucas v. Wilkinson (1 H. & N. 420), 1466. Lucesco Oil Co. v. Brewer (66 Pa. - 1163. Lucketts v. Townsend (3 Tex. 119), Luckie v. Johnson (89 Ga. 321), 1450. Lucy v. Monflet (5 H. & N. 229), 1402. Ludden v. Hazen (31 Barb. 650 , 597, 601. Ludlow v. Bowne (1 Johns 1), Ludwig v. Fuller (17 Me, 162), 380, 964, 981 Lu^er Furniture Co. v. Street (6 OkL Lukens v. Aiken (174 Pa. St. 152 , 1-39. Lukens t. Freiund (27 Kan. 664), 1349. Lumley v. Corbett (18 Cal. 494), 1446. Lund "v. McCutchen (S3 Iowa. 210. Lundy Furn. Co. v. White (128 Cal. 569. Lunn v. Shermer (93 N. C. 164), 1843. Lupin v. Marie (6 Wend. 77), 906, 1482. Luptonv. White 15 Yes. Jr. 432), 25. Lush v. Wilkinson (5 Yes. 3-7., 974. cxl TAULE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Luthy v. Waterbury (140 111. 664), 126.-). Lyman v. Robinson (14 Allen, 252), 236. Lynch v. Curfman (65 Minn. 170), 1241, 1242, 1805. Lynch v. Daggett (62 Ark. 592), 488, 492. Lynch v. Dodge (130 Mass. 458), 91, 92. Lynch v. Johnson (109 Mich. 640), 96, 105. Lynch v. Murphy (171 Mass. 307), 871, 893, 936. Lynch v. Raleigh (3 Ind. 273), 973. Lynch v. Stott (67 N. H. 589), 1028. Lynch v. Thompson (61 Miss. 354). 145. Lynde v. Budd (2 Paige Ch. 191), 100, 121. Lyne v. Wann (72 Ala. 43), 970. Lynn v. Baltimore & Ohio R. Co. (60 Md. 404), 673. Lynn v. Chaters (2 Ky. 521), 1719. Lyon v. Bertram (20 How. 149), 1145, 1805. Lyon v. Culbertson (83 III. 33), 1031. Lyon v. Lenon (108 Ind. 567), 25, 29. Lyon v. Railway Passenger Assur. Co. (46 Iowa, 631), 963. Lyon v. Robbins (46 111. 276), 946. Lyons v. Hamilton (69 Iowa, 47), 953. Lyons v. Leahy (15 Oreg. 8), 952, 953, 956, 958, 978. Lyons v. Stills (97 Tenn. 514), 660, 1806. Maberly v. Sheppard (10 Bing. 99), 307, 370, 371. Macdonald v. Longbottom (1 El. & El. 987), 437. Mack v. Story (57 Conn; 407), 556, 601. Mack v. Tobacco Co. (48 Neb. 397), 49. Mackason's Appeal (42 Pa. St. 330), 956. Mackay v. Dick (6 App. Cas. 251), 1106. Mackellar v. Pillsbury (48 Minn. 396), 960. Mackenzie v. Seeberger (76 Fed. R. 108), 937. Mackey v. Swartz(60Iowa,710), 1380. Mackey v. Dillinger (73 Pa. St. 85), 169. Mackie v. Cairns (5 Cow. 547), 947. Maclay v. Harvey. (90 111. 525), 244, 247, 251. Maclean v. Dunn (4 Bing. 722), 453. Macomber v. Macomber ( — R. I. — ), 1423. Macomber v. Parker (13 Pick. 175), 206, 478, 524. Macon, etc. Ry. Co. v. Meador (65 Ga. 705), 1588. Mactier v. Frith (6 Wend. 103), 238, 240, 244, 245, 251. Maddox v. Miller (1 M. & S. 738). 132. Magee v. Atkinson (2 M. & W. 442), 1264. Magee v. Billingsley (3 Ala. 679), 731, 1208, 1320. Magee v. Catching (33 Miss. 672), 692. Magnes v. Sioux City Nursery Co. (14 Colo. App. 219), 1633. Magniac v. Thompson (32 U. S. 348), 955. Magruder v. Gage (33 Md. 344), 733, 736, 739, 740, 1181. Mahler v. Schloss (7 Daly, 291), 691. Mahone v. Reeves (11 Ala. 345), 916. Mahood v. Tealza (26 La. Ann. 108), 1013, 1022. Mahurin v. Harding (28 N. H. 128), 932. Maine Mut. Ins. Co. v. Hodgkins (66 Me. 109), 266. Malcomson v. Wappoo Mills (88 Fed. R. 680), 1099. Mallory v. Willis (4 N. Y. 76), 21. Malone v. Minn. Stone Co. (36 Minn. 325), 508. Malsby v. Young (104 Ga. 205), 1259. Mandel v. Butlers (21 Minn. 391), 1807. TABLE OF CASES CITED. cxli References are to sections: Vol. I. §§ 1-797; Vol. n, §§ 798-1850. Mandelbaum v. Gregovitch (17 Nev. 87), 1046, 1051. Manhattan Brass Co. v. Reger (168 Pa. St. 644), 898. Manhatten Trust Co. v. Sioux City Cable Co. (76 Fed. R. 658), 603. Mauheimer v. Harrington (20 Mo. App. 297), 906. Manier v. Appling (112 Ala. 663), 240. Manly v. Scoot (1 Sid. 109), 184. Maiui v. Everston (32 Md. 336), 1265, 129a Mann v. Glauber (96 Ga. 795), 1181. Mann v. Stowell (3 Pin. 220), 913. Mann v. Thompson (86 Ga. 347), 60a Manning v. Albee (11 AlleD,520),915, 917, 936, 937. Manning v. Hollenbeck (27 Wis. 202), 1490. Manny v. Glendinning (15 Wis. 50), 663,080, 814. Manstield v. Converse (8 Allen, 182), 23. Mansfield v. Gordon (144 Mass. 168), 1)7. Mansfield v. Trigg (113 Mass. 350), 912, i:;;is. Mansfield v. Watson (2 Iowa, 111), 90. Manson v. Felton (13 Pick. 206), 91, 92. Mansur, etc. Co. v. Beeman, etc. Co. (— Tex. Civ. App. — r-), 603. Manton v. Moore (7 T. R. 67), 380, 381, 964. 987. Manton v. Ray (18 R. I. 672), 1718, 1727. Manwaring v. O'Brien (75 Minn. 542), 953. Ma pes v. Burns (72 Mo. App. 411), 909. Marble v. Moore (102 Mass. 443), 492, 725. Margetson v. Wright (8 Bing. 454), L270, 1272. Marina, The (19 Fed. R. 760). 603, 649. Marine Bank v. Wright (48 N. Y. 1), 777. Markham v. Jandon (41 N. Y. 235), 1787. Markle v. Hatfield (2 Johns. 455), 1422. Marks v. Van Eeghen (57 U. S. App. 149), 1090. Marks v. Van Elghen (85 Fed. R. 853), 1707. Marland v. Stan wood (101 Mass. 470), 1161. Marlatt v. Clary (20 Ark. 251), 1794, 1798. Marlow v. Pitfield (1 P. Wins. 558), 132. Marmon v. Harwood (124 111. 104), 950, 957, 958, 959. Mannont v. State (48 Ind. 21), 55. Marquardt v. Flaughter (60 Iowa, 158), L39. Marquette Mfg. Co. v. Jeffery (49 Mich. 2*3). 588, 51)7. 51(0. Marsden v. Cornell (62 X. Y. 215), 992. Marseilles Mfg. Co. v. Morgan (12 Neb. 66), 1489. Marsh v. Hyde (3 Gray, 331), 362. 395. Marsh v. Milligan (3 Jurist, N. S., 979), 178a Marsh v. Rouse (44 N. Y. 643), 358, 376, 386, 388. . Marshall v. Drawhorn (27 Ga. 275), 1272. Marshall v. Duke (51 Ind. 62), 836, 1302. Marshall v. Green (L. R. 1 C. P. Div. 35), 337, 361. Marshall v. Lynn (6 M. & W. 109), 447. Marshall v. Macon County Savings Bank (108 N. C. 639), 1697. Marshall v. Perry (67 Me. 78), 816, 1263, 1805. Marston v. Knight (29 Me. 341), 816, 1805. Martin v. Adams (104 Mas.. 362), 677. Martin v. Black (21 Ala. 721), 244. 245. I Martin v. Byron (Dud. 203), 121. cxlii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol II, §§ 798-1850. Martin v. Cole (104 U. S. 30), 1254. Martin v. Duncan (47 111. App. 84), 964. Martin v. Haubner (2G Canada Sup. R. 142), 428. Martin v. Hill (12 Barb. 631). 649. Martin v. Hurl but (9 Minn. 142), 508. Martin v. Jordan (60 Me. 531), 881, 937. Martin v. Mathiot (14 S. & R. 214), 580. Martin v. Quinn (37 Cal. 55), 1467. Martin v. State (59 Ala. 34). 55. Martin v. United States (2 T. B. Mon. 89), 1455. Martindale v. Booth (3 B. & Ad. 498), 960. Martindale v. Smith (1 Q. B. 389), 484, 1522. Martindale v. Smith (1 Ad. & El. 389), 1682. Martineau v. Kitching (L. R. 7 Q. B. 436), 524, 529. Martinsburg v. Potomac R. Co. (114 U. S. 549), 673. Martz v. Putnam (117 Ind. 392', 402, 1158. Marvin v. Wallis (6 Ell. & B. 726), 385, 964, 1489. Marvin Safe Co. v. Morton (48 N. J. L. 410), 599, 649. Mary and Susan, The (1 Wheat. 25), 1181. Maskelinski v. Wazsineski (48 N. Y. S. R. 407), 1305. Mason v. Bond (9 Leigh, 181), 960. Mason v. Chappell (15 Gratt. 572), 1235, 1245, 1314, 1349. Mason v. Decker (72 N. Y. 595), 425, 449, 450, 1618, 1682. Mason v. Smith (130 N. Y. 474), 1380. Mason v. Vestal (88 Cal. 396), 946. Mason v. Waite (17 Mass. 560), 17. Mason v. Wheeler (2 N. Y. Misc. 523), 941. Mason v. Wilson (43 Ark. 172), 1588, 1592, 1595. Massachusetts Loan Co. v. Welch (47 Minn. 183), 1385. Massey v. Sladen (L. R. 4 Ex. 13), 1416. Massey v. State (74 Ind. 368), 16. Masson v. Bovet (1 Denio, 69), 918, 1411, 1431. Mast v. Pearce (58 Iowa, 579), 1254. Masters v. Teller (7 Okla. 668), 964, 1187. Masterton v. Mayor of Brooklyn (7 Hill, 61), 1704, 1709, 1710, 1765. Materne v. Horwitz (50 N. Y. Super. Ct. 41), 996. Materne v. Horwitz (101 N. Y. 469), 1019, 1027, 1041. Matheny v. Mason (73 Mo. 677), 836, 1302, 1796. Mather v. Am. Express Co. (138 Mass. 55), 1760. Mathes v. Dob~chuetz (72 111. 438), 130. Mathews v. Baxter (L R. 8 Ex. 132), 87. Mathews v. Bliss (22 Pick. 48), 872. Mathews v. Cowan (59 111. 341), 543, 545, 555. Mathews v. Hamilton (23 111. 470), 1455. Mathews v. McElroy (79 Mo. 202), 605. Mathews v. Smith (8 Houst. 22), 599, 611. Mathison v. Prescott (86 111. 493), 953. Matlock v. Reppy ( — Ark. — ), 1843. Mattesou v. Holt (45 Vt. 336), 820, 1805. Matthews v. American Central Ins. Co. (154 N. Y. 449), 1103. Matthews v. Lucia (55 Vt 308), 569, 619. Matthews v. Parker (Oliphant, 228), 1270. Matthews v. Reinhardt (43 111. App. 169), 955. Matthewman, Case of (L. R. 3 Eq. Cas. 781), 135. TABLE OF CASES CITED. cxliii References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Mattbiessen. etc. Co. v. McMahon (38 N. J. L. 530), 74, 355, 416. Mattice v. Allen (3 Abb. App. Dec. 248), 416. Mattoon v. Rice (102 Mass. 236), 1350. Mattox v. Creig (2 Bibb, 584), 1440. Maulding v. Steele (105 111. 644), 1633. Max v. Harris (125 N. C. 345), 1840. Maxfield v. Carpenter (84 Hun, 450), 1451. Max field v. Schwartz (45 Minn. 150), 934, 1841. Maxted v. Fowler (94 Mich. 106), 936. Maxwell v. Brown (39 Me. 98), 365. Maxwell v. Brown Shoe Co. (114 Ala. 304), 903, 901. Maxwell v. Lee (34 Minn. 511), 1337, L393. Maxwell v. Tufts (8 N. M. 396), 599, 603. May v. State Nat. Bank (59 Ark. 614), 974. May v. Ward (134 Mass. 127), 437, 443. Mayer v. Child (47 Cal. 142), 331. Mayer v. McCreery (119 N. Y. 434), 228. Mayer v. Taylor ^69 Ala. 403), 202. May hew v. Thayer (8 Gray, 172), 185. Maynard v. Maynard (49 Vt. 297), 869, 935. Maynard v. Render (95 Ga. 652), 1391. Mayor of Baltimore v. Eschbach (18 Md. 282), 191. Mayor of Baltimore v. Reynolds (20 Md. 1), 191. Mc Adams v. Cates (24 Mo. 223), 869, 935. McAfee v. Busby (69 Iowa, 328), 966. McAleer v. Horsey (35 Md. 439), 892, 937, 1843. McAlister v. Safley (65 Iowa, 719), 1154. McAllister v. Smith (17 111. 328), 1043. McAlpin v. Cassidy (17 Tex. 449), 1281. McAlpin v. Lee (12 Conn. 129), 1844. McArthur Co. v. Old Second Nat. Bank ( — Mich. — ), 779. McBride v. Silverthorne (11 Up. Can. Q. B. 545), 210. McCaa v. Elam Drug Co. (114 Ala. 74), 1345, 1822. McCaffrey v. Woodin (65 N. Y. 459), 202. McCall v. Powell (64 Ala. 254), 582. McCandless v. Young (96 Pa. St. 289), 875. McCarren v. McNulty (7 Gray, 139), 660. 664, 666. McCarthy v. Henderson (138 Mass. 310), 119, 585. McCarty v. Blevins (5 Yerg. 195), 200. McCarty v. Gordon (16 Kan. 35), 731. McCarver v. Nealey (1 G. Greene, 360), 1455. McCausland v. Ralston (12 Nev. 195), 947. McClain v. Davis (77 Ind. 419), 76. McClellau v. Scott (24 Wis. 81), 1841. McClelland v. Scroggin (35 Neb. 536), 30. McClintock's Appeal (71 Pa. St. 365) 336. McClintock v. Einick (87 Ky. 160), 1235, 1237, 1269. McClung v. Kelley (21 Iowa, 508), 508, 1340. McClure v. Briggs (58 Vt. 82), 666. McClure v. Evartson (14 Lea, 495), 1461. McClure v. Forney (107 Pa. St. 414), 960), 988. McClure v. Jefferson (85 Wis. 208), 1380, 1392, 1395. McClure v. Jeffrey (8 Ind. 79), 834. McClure v. Williams (65 111. 390), 1255. McConib v. Donald (82 Va. 903), 564, 583, 585, 599. 603. McComb v. Wright (4 Johns. Ch. 659), 461. McCombs v. McKennan (2 Watts & S. 216j, 1151, 1643. cxliv TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. McComber v. Parker (13 Pick. 182), 519. McConihe v. Railroad Co. (20 N. Y. 495), 755. McConnel v. Murphy (L. R. 3" P. C. 203), 1167, 1168, 1169. McConnell v. Brillhart (17 111. 354), 425. McConnell v. Hughes (29 Wis. 537), 210, 498, 527. McConnell v. Kitchens (20 S. C. 430), 1046, 1050. McCorcl v. Laidley (87 Ga. 221), 1643. McCorkell v. Carhoff (90 Iowa, 545), 932, 1251. McCormick v. Basal (46 Iowa, 235), 1090, 1092. McCormick v. Hadden (37 111. 370), 491, 1193. McCormick v. Keith (8 Neb. 143), 1455. McCormick v. Kelly (28 Minn. 135), 1272, 1285. McCormick v. Littler (85 111. 62), 84. McCormick v. Muth (49 Iowa, 536), 139. McCormick v. Larson (45 N. Y. 265;, 1390, 1392. McCormick v. Stevenson (13 Neb. 70), 604. McCormick v. Wood, etc. Co. (72 Ind. 518), 1455. McCormick Harv. Mach. Co. v. Bal- fany (78 Minn. 370), 1674, 1688. McCormick Macb. Co. v. Brovver (94 Iowa, 144), 1806, 1812. McCormick Harvester Co. v. Brower (88 Iowa, 607), 823, 1134, 1243, 1384. McCormick Harv. Mach. Co. v. Cal- len (48 Neb. 849), 603. McCormick Harv. Mach. Co. v. Ches- rown (33 Minn. 32), 670, 1392, 1402. McCormick Mach. Co. v. Cochran (64 Mich. 636), 668, 1402. McCormick Mach. Co. v. Courtnght (54 Neb. 18), 1803. McCormick Harvester Co. v. Hart- man (35 Neb. 629), 1384. McCormick Harv. Mach. Co. v. Koch (8 Okl. 374), 623. McCormick Harv. Mach. Co. v. Knoll (57 Neb. 790). 1805, 1806. McCormick Mach. Co. v. Markert (107 Iowa, 340), 1089, 1676, 1696. McCormick Harv. Co. v. Martin (32 Neb. 723), 1380, 1387. McCormick Harv. Mach. Co. v. Rich- ardson (89 Iowa, 525), 228, 242. McCormick Harvester Co. v. Russell (86 Iowa, 556), 1242, 1384, 1403. McCormick Co. v. Williams (99 Iowa, 601), 651. McCoy v. Artcher (3 Barb. 323), 1302. McCracken v. West (17 Ohio, 16), 878. McCraw v. Gilmer (83 N. C. 162), 1481. McCray Refrigerator Co. v. Woods (99 Mich. 269), 1254, 1311, 1314, 1349. McCrea v. Purmort (16 Wend. 460), 449. McCullis v. How (3 N. H. 348), 124. McCulloch v. Eagle Ins. Co. (1 Pick. 278), 244, 247. McCulloch v. Hutchinson (7 Watts, 434), 956. McCulloch v. McKee (16 Pa. St. 289), 1455. McCullough v. Baker (47 Mo. 401), 1713. McCullough v. Porter (4 W. & S. 177), 32. McCurdy v. Rogers (21 Wis. 197), 245. McDaniels v. Lapham (21 Vt. 222), 1420. McDonald v. Bervick (51 Mich. 79), 226, 234. McDonald v. Hewett (15 Johns. 349), 41, 508. McDonald v. Hodge (5 Hayw. 85), 1440. McDonald v. Timber Co. (4 Pick. 47), 1820. TABLE OF OASES CITED. cxlv References are to sections: Vol. McDonald Mfg. Co. v. Thomas (53 Iowa, 560), 1235, 1244, 1245, 1246. McDonough v. Elam '1 La. 491), 8. McDonough v. Hey man (38 Mich. 334), 1445. McDonough v. Prescott (62 N. H. 600), 960. McDonough v. Sutton (35 Mich. 1), 543. McDougall v. Elliott (20 Up. Can. Q. B. 299), 714. McElroy v. Seery (61 M& 389), 434. McElwee v. Metropolitan Lumber Co. (37 U. S. App. 266), 1-7. McElwee v. Lumber Co. (69 Fed. R. 302), L479, 1 181, 1 199, L501, 1513, 1515. 1517, 1521, L602, L604 McEwan v. Smith (2 H. of L. Cas. 309), 524, 1505, 151 1. L526. McEwen v. Morey (60 111. 32), 207, ; L659. McFadden v. Mitchell (54 Cal. 628 . 95 1. McFadden v. Ross (126 Ind. 341), 955. Mr Far land v. Farmer (42 N. H. 386), 628. McFarland v. Newman (9 Watts, 55), 1237, 1242, 1268 McFetridge v. Piper (40 Iowa, 627). 1582. McGar v. Williams (26 Ala. 469), 874. Mc< raughey v. Richardson (148 Mass. 608), 1248. McGavoek v. Puryear (6 Cold. 34), L025. McGee v. Campbell (7 Watts. 545 , 947. McGiffin v. Baird (62 N. Y. 329), 1796. McGinnis v. Savage (29 W. Va. 362), 564. McGlade v. McCormick (57 N. J. L. 430), 1810. Mel loldrick v. Willits (52 N. Y. 612), 149, 165, 269, 887, 912, 1411. McGourkey v. Railway Co. (146 U. S. 536), 650. I, §§ 1-797; Vol. H, §§ 798-1850. McGovern v. Hern (153 Mass. 308), 434, 435, 436. McGowin v. Remington (12 Pa. St. 56), 1727. McGrath v. Donnelly (131 Pa. St, 549), 183. McGrath v. Gegner (77 Md. 331), 1147, 1148, 1736. McGrath v. Vanaman (53 N. J. Eq. 459), 175. McGraw v. Fletcher (35 Mich. 104), 1251, 1259, 1348. . McGraw v. Solomon (83 Mich. 442), H2:;. 1121. Mcl Iregor v. Ross (90 Mich. 103). 1087. McGrew v. Forsythe (31 Iowa, 181), 1235, 1238, 1244" McGrew v. Produce Exchange (85 Tenn. 572 , 203, 1031, 1032. McGrew v. Thayer (24 Ind. App. 578), 25. McGuire v. Callahan (19 Ind. 128), 87. McGuire v. West (— Ky. App. — ), 967. McHany v. Schenk (88 111. 357), 1456. McHose v. Fulmer (73 Pa, St. 365), 1743. Mcllvaine v. Harris (20 Mo. 457), 342. Mcintosh v. Hill (47 Ark. 303), 585, 599. Mclntyre v. Kline (30 Miss. 361), 754. Mclntyre v. Preston (5 Gilm. 48), 451. Mclver v. Williams (83 Wis. 570), 564. McKaney v. Cooper (81 Ga. 679), 121. McKanna v. Merry (61 111. 177), 131, 132. McKay v. McKenua (173 Pa. St. 581), 1195. McKee v. Bainter (52 Neb. 604), 736, 1181. McKee v. Eaton (26 Kan. 226), 834. McKee v. Garcelon (60 Me. 165), 966, 981, 1194. McKee v. Jones (67 Miss. 405), 1058. McKellar v. Pillsbury (48 Minn. 396), 711. cxlvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 79&-1850. McKenzie v. Culbreth (60 N. C. 531), 1419, 1420. McKenzie v. Donnell (151 Mo. 461), 74. McKercher v. Curtis (35 Mich. 478), 1736. McKibbin v. Brown (1 McCarter, 13), 228. McKibbin v. Brown (2 McCarter, 498), 228. McKibbin v. Martin (04 Pa. St. 352), 904, 900, 907. McKinder v. Littlejohn (4 Ired. L. 198), 1417. McKindly v. Dunham (55 Wis. 515), 1447, 1448, 1450. McKinnell v. Robinson (3 M. & W. 435), 1012. McKinney v. Bradlee (117 Mass. 321), 676, 677, 678. McKinnon v. McEwan (48 Mich. 106), 1831. McKinnon v. Mcintosh (98 N. C. 89), 1235, 1237. McKinnon Mfg. Co. v. Alpena Fish Co. (102 Mich. 221), 1346. McKnight v. Dunlop (5 N. Y. 537), 362, 401, 420, 1730, 1740. McLachlin v. Brett (105 N. Y. 391), 1452. McLane v. Johnson (43 Vt. 48), 974. McLaughlin v. Marston (78 Wis. 670), 733, 741, 1180, 1184. McLaughlin v. Salley (46 Mich. 219), 17. McLay v. Perry (44 L. T., N. S., 152), 1167. McLaughlin v. Piatti (27 Cal. 452), 714. McLees v. Hale (10 Wend, 420), 1131. McLennan v. Ohmen (75 Cal. 558), 1235. McLeod v. Jones (105 Mass. 403), 020, 1191. McLeod v. O'Neill ( — Ky. — ), 977. McLoud v. Wakefield (70 Vt, 558), 200. McLure v. Sherman (70 Fed. R. 190), 412. McMahon v. Sloan (12 Pa. St. 229), 154. M. Marian v. English (74 Pa. St. 296), 963, 988. McMaster v. Emerson ( — Iowa, ), 202. McMillan v. Fox (90 Wis. 173), 1100. McMillen v. Lee (78 111. 443), 180. McMinn v. Richmonds (6 Yerg. 9). 121. McMullen v. Williams (5 Ont. App. 518), 1255. McMurtry v. Brown (6 Neb. 368), 451. McNail v. Ziegler (68 111. 224), 1481. McNaughton v. Haldeman (160 Pa. St. 144), 1032. McNeal v. Braun (53 N. J. L. 617), 733, 1184. McNeal v. Emerson (15 Gray, 384), 336, 626, 1191. McNeil v. Tenth Nat. Bank (46 N. Y. 325), 154, 156, 157, 162. McPhail v. Gerry (55 Vt. 174), 603. McPherson v. Acme Lumber Co. (70 Miss. 649), 619. McPherson v. Gale (40 111. 308), 708. McQuaid v. Ross (77 Wis. 470), 446, 1254. McQuaid v. Ross (85 Wis. 492), 1314, 1355. McRea v. Merrifield (48 Ark. 100), 585, 588, 599, 019. McSparran v. Neely (91 Pa. St. 17), 88. McVeigh v. Ritenour (40 Ohio St. 107), 970. McVicker v. May (3 Pa. St. 224), 904, 966. Mead v. Bunn (32 N. Y. 280), 1841. Mead v. Case (33 Barb. 202), 305. Mead v. Degolyer(16 Wend. 632), 513, 1162. Mead v. Gardiner (13 R. I. 257), 960. Mead v. Noyes (44 Conn. 487), 984. Mead v. Parker (115 Mass. 413), 437. TABLE OF CASES CITED. cxlvii References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 79S-1850. Header v. Cornell (58 N. J. L. 375), 839, 1372, 1850. Meads v. Martin (84 Mich. 30G), 138. Means v. Bank of Randall (146 U. S. 620), 792. Means v. Williamson (37 Me. 556), 1198, 1665. Means v. Nichols (41 111. 207), 1393. Mears v. Waples (3 Houst. 581), 906. Meason v. Phillips (Addis. 346), 1440. Mechanical Boiler Cleaner Co. v. Kell- ner(62N. J. L. 544), 393, 316, 359, 400. Mechanics' Bank v. Farmers* Bank (60 N. Y. 40), 169. Medbury v. Watson (6 Mete. 246), 874, I8ia ' Medicke v. Sauer (61 Minn. 15), 646. Medina v. Stougliton (1 Salk. 210), 931. Meding v. Stoughton (1 Ld. Raym. 593 , 1795. Mee v. McNider (109 N. Y. 500), 492, 739, 741. Meeker v. Johnson (3 Wash. 247), 549. Meeker v. Wilson (1 Gall. 419), 987, 1201. Megary v. Funtis (5 Sandf. Sup. Ct. 376), 1453. Meickley v. Parsons (66 Iowa, 63), 1272, 1334, 1392. Meiklereid v. West (1 Q. B. Div. 128), 1549. Meincke v. Falk (55 Wis. 427), 314, 324, Meehan v. Sharp (151 Mass. 565), 331, 380. Melchert v. American Union Tel. Co. (11 Fed. R. 193), 1031, 1034, 1036. Melchoir v. McCarty (31 Wis. 252), 1058. Melledge v. Boston Iron Co. (5 Cush. 158), 1424. Mellish v. Motteux (Peake, 115), 869. Melvin v. Lamar Ins. Co. (80 111. 446), 1456. Memphis, etc. R. Co. v. Freed (38 Ark. 614), 1532. Menken v. Baker (40 App. Div. 608), 964. Menkins v. Lightner (18 111. 282), 87. Mentz v. Newwitter (122 N. Y. 491), 434. Merchant v. Chapman (4 Allen, 362), 757, 1182. Merchants' Bank v. Fraze (9 Ind. App. 161), 1311, 1354 Merchants' Bank v. Hibbard (48 Mich. 118), 166, 709, 1507. Merchants' Bank v. Lovejoy (84 Wis. 601), 202. Merchants' Bank v. Thomas (69 Tex. 237), 593, 619, 632. Merchants' Bank v. Union R. & T. Co. (69 N. Y. 373), 1556. Merchants' Banking Co. v. Phoenix Bessemer Steel Co. (5 Ch. Div. 205), 1506, 1507, 1547, 1548. Merchants' Exchange Bank v. Mc- Graw (59 Fed. R. 972), 777, 779. Merchants Nat. Bank v. Bangs (102 Mass. 291), 502, 721, 725, 730, 736, 740, 788. Meredith v. Meigh (2 E. & B. 364), 393, 1181, 1496. Men-, v. Ansell (3 Wil. 275), 1327. Merriman v. Chapman (32 Conn. 146), 1320. Merriam v. Cunningham (11 Cush. 40), 132. Merriam v. Field (24 Wis. 640), 1254, 1255, 1260, 1340. Merriam v. Pine City Lumber Co. (23 Minn. 314), 875. Merriam v. Stearns (10 Cush. 257), 1057. Merriam v. Wilkins (6 N. H. 432), 121. Merrick v. Bradley (19 Md. 50), 1265, 1271. Merrick v. Wiltsie (37 Minn. 41), 1817. Merrill v. Florida Land Co. (60 Fed. R 17), 936. cxlviii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol II, §§ 708-1850. Merrill v. Hunnewell (13 Pick. 213), 714. Merrill v. Hurlburt (63 Cal. 494), 964. Merrill v. Mclntire (13 Gray, 157), 1016. Merrill v. Nightingale (39 Wis. 247), 1344. 1817. Merrill v. Parker (24 Me. 89), 1190, 166a. Merrill v. Stanwood (52 Me. 65), 1437. Merrill Chem. Co. v. Nickells (66 Mo. App. 678), 901, 914. Merrill Furniture Co. v. Hill (87 Me. 17), 348, 549, 551, 1407. Merriman v. Knox (99 Ala. 93), 1050. Merriman v. McCormick Mach. Co. (96 Wis. 600', 1745. Merritt v. Clason (12 Johns. 102), 451, 456. Merritt v. Johnson (7 Johns. 473), 755, 759, 761. Merritt v. Millard (4 Keyes, 208), 999. Merritt v. Railroad Co. (16 Wend. 586), 1713. Merritt v. Robinson (35 Ark. 483), 931. Merry v. Green (7 Mees. & W. 623), 273. Mers v. Franklin (68 Mo. 127), 263. Mersey Steel & Iron Co. v. Naylor (9 App. Cas. 434), 1085, 1141, 1142, 1145, 1147, 1148. Mershon v. Moors (76 Wis. 502), 649. Meservey v. Gray (55 Me. 540), 1027. Messenger v. Pratt (3 Lans. 234), 1345. Messer v. Woodman (22 N. H. 172), 351, 386, 389. Messmore v. N. Y. Shot Co. (40 N. Y. 422), 1763, 1764. Methudy v. Ross (10 Mo. App. 101), 235. Metropolitan Nat. Bank t. Benedict Co. (36 U. S. App. 604), 49. Metropolitan Trust Co. v. Columbus S. R. Co. (93 Fed. R. 702), 603. Meyer v. Everth (4 Camp. 22), 446, 447, 1327. Meyer v. Green (21 Ind. App. 138), 1817. Meyer v. Krauter (56 N. J. L. 696), 1251. Meyer v. Richards (163 U. S. 385), 1311, 1332. Meyer v. Stone (46 Ark. 210), 1448. Meyer v. Thomson (16 Oreg. 194), 367, 369. Meyers v. Turner (17 111. 179), 834. Meyerstein v. Barber (L. R. 2 C. P. 37), 1194. Miamisburg Twine Co. v. Wolhuter (71 Minn. 484), 1331. Michael v. Bacon (49 Mo. 174), 1014, 1023. Michael v. Curtis (60 Conn. 363), 334. Michelstetter v. Weiner (82 Wis. 298), 391. Mich. Cent. R. Co. v. Phillips (60 111. 190), 543, 600, 792, 1194. Michigan Stove Co. v. Harris (81 Fed. R. 928), 264. Michigan Stove Co. v. Harris (54 U. S. App. 137), 1375. Middlebury College v. Chandler (16 Vt. 683). 130, 132. Middlesex Co. v. Osgood (4 Gray, 447), 734, 757, 1124, 1187, 1412, 1674. Middleton v. Stone (111 Pa. St. 589), 32. Mighell v. Dougherty (86 Iowa, 480), 324. Milburn v. Belloni (34 Barb. 607), 1281. Milburn v. Belloni (39 N. Y. 53), 1823. Milburn Mfg. Co. v. Peak (89 Tex. 209), 49. Milburn Wagon Co. v. Nisewarner (90 Va. 714), 1240. Mildred v. Hermano (8 App. Cas. 874), 1 450. Miles, Ex parte (15 Q. B. Div. 39), 1561. Miles v. Edsall (7 Mont. 185), 588, 597. Miles v. Gorton (2 Cromp. & M. 504), 1487, 1513. Miles v. Lingerman (24 Ind. 385), 79. TABLE OF CASES CITED. cxlix References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Miller v. State (39 Ind. 267), 1191. Miles v. Richards (Walk. 477), 950. Miles v. Richwine (2 Rawle, 199), 1456. Miles v. Roberts (34 N. H. 245), 1125. Mill Co. v. Finley (34 S. W. R. 311), 924. Mill Dam Foundery v. Hovey (21 Pick. 417), 1075. Millard v. Republic Bank (3 MacAr- thur, 54), 1461. Millard v. Webster (54 Conn. 415), 1510, 1592. Miller v. Amnion (145 U. S. 421), 996, 1045, 1046. Miller v. Barber (66 N. Y. 558). 936. Miller v. Browarsky (130 Pa. St. 372), 960. Miller v. Buchanan (10 Ind. App. 474), 937. Miller v. Burch (11 S. W. R 307), 1690. Miller v. Edmonston (8 Blackf. 891), 1455. Miller v. Finley (26 Mich. 249), 88. Miller v. Godfrey (2 Colo. App 177\ 1410. Miller v. Hyde (161 Mass. 472), 58. Miller v. Lea (25 Md. 396), 1452. .Miller v. Marckle (21 I1L 152), 947. Miller v. Moore (83 Ga. 684), 1275, 1334, 1392. Miller v. McDonald (13 Wis. 673), 1265, 1271. Miller v. Pancoast (29 N. J. L. 250), 960. Miller v. Post (1 Allen, 434), 1045, 1046, 1050. Miller v. Prescott (163 Mass. 12), 1080. Miller v. Scherder (2 N. Y. 262), L357. Miller v. Seaman (176 Pa. St. 291), 508, 516. 741. Miller v. Smith (26 Minn. 248), 98, 106, 112, 113. Miller v. Smith (1 Mason, 437), 809 964. Miller v. Somerset Co. ( — Ky. — ), 1128. k Miller v. Steen (30 Cal. 402), 569, 590. Miller v. Stevens (100 Mass. 518), 1327. Miller v. Van Tassel (24 CaL 459), 1302, 1309. Miller Brewing Co. v. De France (20 Iowa, 395), 1028. Mi Hi ken v. Skillings (89 Mo. 180), 1805. Milliken v. Thorndike (103 Mass. 382), 875. Milliken v. Warren (57 Me. 46), 1515. Millirons v. Dillon (100 Ga. 656), 1732. Mills \. Ball (2 Bus. & Pul. 457), 1556, 1577. Mills v. Camp (14 Conn. 219). 960. Mills v. Graham (4 Bos. & Pul. 140), 120. Mills v. Howeth (19 Tex. 257), 953. Mills v. Hunt (20 Wend. 434), 350, 351. Mills v. Thompson (72 Mo. 367), 963. Milne v. Marwood (15 C. B. 778), 1223. Milner v. Patton (49 Ala. 423), 1013, 1024. Milnes v. Gery (14 Ves. 400), 213, 074. Milwaukee Boiler Co. v. Duncan (87 Wis. 120), 1254, 1311, 1314, 1349, 1350, 1814 Miner v. Bradley (22 Pick. 457), 912. Miner v. Medbury (6 Wis. 295), 875, 892. Mineral Point R Co. v. Barron (83 111. 365), 1043. Miners' Ditch Co. v. Zellerbach (37 Cal. 543), 141. Ming v. Woolfolk (116 U. S. 599), 879, 884. Minock v. Shortridge (21 Mich. 304), 96, 101, 121. Minneapolis Harvester Works v. Hally (27 Minn. 495), 620. 837. Minneapolis Threshing Co. v. Hutch- ins (65 Minn. 89), 1374, 1389. cl TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Minneapolis, etc. Ry. Co. v. Columbus Rolling Mills (119 U. S. 149), 227, 229. Minnesota Linseed Oil Co. v. Collier White Lead Co. (4 Dill. 431), 251. Minnesota Lumber Co. v. White- breast Coal Co. (160 111. 85), 264, 1038. Minnesota Thresher Co. v. Hanson (3 N. Dak. 81), 1380, 1384, 1395. Minnesota Thresher Co. v. Lincoln (4 N. Dak. 410), 1396. Minor v. Michie (Walk. 24), 1125. Mirabita V. hnperial Ottoman Bank (3 Exch Div. 164), 778, 780, 783, 787, 792. Misner v. Granger (9 111. 69), 1340. Mississippi R. R. Co. v. Green (9 Heisk. 588), 1099. Missouri Tar. Ry. Co. v. Heiden- heimer (82 Tex. 195), 782, 1564, 1568. Mitchell v. Cockburn (2 H. Bl. 379), 1012, 1015. Mitchell v. Gile (12 X. H. 390), 15, 16. Mitchell v. La Page (Holt's N. P. 253), 268. Mitchell v. Le Clair (165 Mass. 308). 495, 725, 1187, 1671. 1675, 1694, Mitchell v. Read (84 N. Y. 556), 1776. Mitchell v. Smith (1 Bin. 110), 1045. Mitchell v. Treanor (11 Ga. 324), 184. Mitchell v. West (55 N. Y. 107), 960. Mitchell v. Winslow (2 Story, 644), 202. Mittelholzer v. Tullarton (6 Ad. & El. 989), 1267. Mixer v. Coburn (11 Mete. 559), 1311. Mixer v. Cook (31 Me. 340), 478, 543, 549. Mixer v. Howarth (21 Pick. 205), 305, 307, 324 Mizell v. Burnett (4 Jones, 249), 428. Moakes v. Nicolson (19 C. B„ N. S., 290), 735, 740, 775, 779. Mobile Bank v. Fry (69 Ala. 348), 714. Mobile Fruit Co. v. McGuire (— Minn. ). 739. Mobile Sav. Bank v. McDonnell (89 Ala. 434), 954. Mo.ly v. Gregson (L. R. 4 Ex. 49). 1216, 1329, 1331, 1310. 1342, bit'',. 1377. Moens v. Heyworth (10 M. & W. 157), 876. Moffatt v. Green (9 Ind. 198), 714. Moffet v. Moffet (90 Iowa, 442), 178. Moffett-West Drug Co. v. Byrd (—Ind. Terr. — ), 1771. Moffitt-West Drug Co. v. Byrd (— U. S. A pp. — ). 1762. Mogan v. Turner (4 Tex. App. 192), 1664. Mohney v. Evans (51 Pa. St. 80), 132. Mohr v. Boston & Alb. R. Co. (106 Mass. 67), 1577. Mohr v. Dillon (80 Ga. 572), 426. Mohr v. Miesen (47 Minn. 228), 1031. Mohr v. Tulip (40 Wis. 66), 69, 72. . Mohrman v. State (105 Ga. 709). 55. Moline, etc. Co. v. Pereau (52 Neb. 577), 1382. Moline Plow Co. v. Carson (72 Fed. R. 387), 937. Moline Plow Co. v. Rodgers (53 Kan. 743), 49, 686, 687. Moline Plow Co. v. Witham (52 Kan. 185), 599, 603. Moline Scale Co. v. Beed (52 Iowa, 307), 754, 1091, 1092, 1696. Moliter v. Robinson (40 Mich. 200), 960. Moller v. Tuska (87 N. Y. 166), 909. Mollett v. Wackerbarth (5 Com. B. 181), 472. Molm v. Barton (27 Minn. 530), 960. Monaghan v. Insurance Co. (53 Mich. 238), 97. Monaghan v. Reid (40 Mich. 665), 1028. Moncreif v. Wilkinson (93 Ala. 373), 935. Money v. Fisher (92 Hun, 347), 1235, 1269. TABLE OF CASES CITED. cli References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Monroe v. Smith (79 Pa. St. 459), 975. Monte Allegre, The (9 Wheat. 616), 1307. Montgomery v. Forbes (14* Mas-. 2 19), l 129. Montgomery Furniture Co. v. I lard- away (104 Ala. 100), 188, 185, 492. Montgomery Iron Works v. Smith (98 Ala. 844), 819, 824 Montreal River L. Co. v. Mihills (80 \\ is. 540), 875, 892 Moody v. Aiken (50 Tex. 65), 334. Moody v. Blake (117 Mass. 23), 149, 154, 269,887. Moody v. Brown (34 Me. 107% 754, 755, 1665. Moody v. Wright (18 Meto. 'J'.'. 202 Moog v. Benedicks 1 19 Ala. 512), 960. Moog v. Hamian (93 Ala. 503), 1045, 1046. Mooney v. Burohard (84 End 1794. Mooney v. Davis (75 Midi. 188), 868, 878, 895, 896. Mooney v. Miller (102 Masa 217), 880, 936. Moore v. Byrom (10 S. C. 452), 202. Moore v. Campbell (10 Ex. 323), 447, 806. Moure v. Copp (119 Cal. 429), 266. Moore v. Crofton (3 Jo. & La T. 438), 804. Moore v. Fitz (59 X. EL 572), 1 128. Moore v. Goodwin | 13 Hun, 543), 666. Moore v. Hays (12 Ind. App 476), 391. Moore v. Kendall (2 Pin. 99), 1053. Moore v. Louisiana Nat. Bank (44 La. Ann. 99). ;?'.'. Moore v. Love (57 Miss. 765), 400. Moore v. Mountcastle (61 Mo. 124), 128, 432. Moore v. Murdock (26 Cal. 514), 1052. Moore v. McKinlay (5 Cal. 471), 1311. Moore v. Perrott (2 Wash. 1). 754. Moore v. Pierson (6 Iowa, 279 1, 247. Moore v. Pollock (50 Neb. 900), 1455. Moore v. Potter (155 N. Y. 481), 1629, 1630, 1692. Moore v. Railway Co. (7 Lans. 39), 642. Moore v. Recek (163 111. 17), 880. Moore v. Shultz (13 Pa. St. 98), 9. Moore v. Sibbald (24 Up. Can. Q. B. , 689, 690. Moore v. Thompson (6 Mo. 353), 947. Moore v. Williamson (44 N. J. Eq. 496), 953. Moore (E. A.) Furn. Co. v. Sloane (166 111. 457), 1380, 1817. Moorehead v. Davis (92 Ind. 303), 1794. Moors v. Kidder (106 N. Y. 32), 776, 780. More v. Lott (13 Nev. 376), 1539, 1571, 1595. Morehouse v. Comstock (42 Wis. 626), 1247, 1340. 1380, 1392. 1395. Moreland v. Myall (14 Bush, 474), 342. Morey v. Enke (5 Minn. 392), 1125. Morford v. Peck (46 Conn. 380), 909. Morgan v. Bain (L. R. 10 C. P. 15), 1094 1095. v. Dod (3 Colo. 551), 39. Morgan v. Gath(3 H. & C. 748). 1161. Morgan v. Kin-- (28 W. Ya. 1). 702. Morgan v. Miller (62 Cal. 492). 966. Morgan v. McKee (77 Pa. St. 228), 831, 912, 1145, 1150, 1163, 1165, 1401, 1846. Morgan v. Perkins (1 Jones' L. 171), 524. Morgan v. Skiddy (62 N. Y. 319), 878. Morgan-Gardner Electric Co. v. Brown (193 Pa. St. 351), 581. Moriarity v. Stofferan (89 111. 528), 915. Morin v. Martz (13 Minn. 191), 449. Morningstar v. Cunningham (110 Ind. 328), 25. Morissey v. Broomal (37 Neb. 766), 1032. Moritz v. Hoffman (35 I1L 553), 973. clii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Morley v. Attenborough (3 Exch. 500), 1301, 1302, 1311. Morrill v. Blackinan (42 Conn. 324), 901. Morrill v. Kilner (113 111. 318), 973. Morrill v. Wallace (9 N. H. Ill), 862, 1229. Morris v. Bowen (52 N. H. 416), 1281. Morris v. Bradley Fertilizer Co. (64 Fed. R 55), 1344. Morris v. Cohn (55 Ark. 401), 1679, 1698, 1706. Morris v. Hyde (8 Vt. 352), 960. Morris v. Levison (1 C. P. Div. 155), 1168. Morris v. Rexford (18 N. Y. 552), 542, 554. Morris v. Shryock (50 Miss. 590), 526, 1571, 1592, 1595. Morris v. Thompson (85 111. 16), 1302. Morris v. Wibaux (159 111. 627), 1165, 1167, 1633, 1643. Morris v. Winn (98 Ga. 482), 482. Morris Run Coal Co. v. Barclay Coal Co. (68 Pa. St. 173), 208, 1040. . Morrison v. Adoue (76 Tex. 255), 892, 895, 901. Morrison v. Dingley (63 Me. 553), 711, 714. Morrison v. Oium (3 N. Dak. 76), 964. Morrison v. Woodley (84 111. 192), 702, 714. Morrissey v. Broomal (37 Neb. 766), 1031. Morrow v. Campbell (30 Wis. 90), 527. Morrow v. Reed (30 Wis. 81), 527, 528. Morrow v. Turney (35 Ala. 131), 692. Morrow Shoe Mfg. Co. v. New Eng- land Shoe Co. (60 Fed. R. 341), 892, 906, 923. Morse v. Bellow (7 N. H. 549). 1132. Morse v. Brackett (98 Mass. 205), 912, 916, 1398. Morse v. Ely (154 Mass. 458), 118. Morse v. Hutchins (102 Mass. 439), 1843. Morse v. Moore (83 Me. 473), 346, 1156, 1334, 1335, 1393, 1395, 1811. Morse v. Sherman (106 Mass. 430), 542, 564, 725, 1670, 1671, 1674, 1675. Morse v. Union Stock Yards (21 Oreg. 289), 1334, 1344, 1345, 1393. Morton v. Dean (13 Mete. 385), 439, 456, 461. Morton v. Frick (87 Ga. 230), 603, 604. Morton v. Ragan (5 Bush, 334), 964. Morton v. Steward (5 I1L App. 533), 96. 122, Morton v. Tibbett (15 Q. B. 428), 361, 368, 369. 404. Mosby v. Goff (21 R. I. 494), 610. Moseby v. Gainer (10 Tex. 393), 953. Moseley v. Shattuck (43 Iowa, 540), 599. Moseley v. Vanhooser (6 Lea, 286), 1055. Moses v. Mead (1 Denio, 378), 1311, 1319, 1320, 1356, 1357. Moses v. Rogers (62 Vt. 84), 628. Moses v. Stevens (2 Pick. 332), 109. Moses v. Trice (21 Gratt. 556), 1423. Moss v. Averell (10 N. Y. 449), 142. Moss v. Exchange Bank (102 Ga. 808), 1039. Moss v. Sweet (16 Q. B. 493), 681, 682. Mott v. Palmer (1 N. Y. 564), 646. Mottram v. Heyer (5 Denio, 629). 1585, 1586, 1608. Mouthrop v. Hyett (105 Ala. 493), 1830. Moulton v. Camroux (2 Exch. 502), 74. Moulton v. Kershaw (59 Wis. 316), 224. Moulton v. Warren Mfg. Co. (— Minn. — ), 1718. Mount v. Derrick (5 Hill, 455), 928. Mount v. Scholes (120 111. 394), 1422. Mt. Hope Iron Co. v. Buffi ngton (103 Mass. 62), 490. Mt. Leonard Milling Co. v. Insurance Co. (25 Mo. App. 259), 32. TABLE OF CASES CITED. cliii References are to sections: Vol. Mountain City Mill Co. v. Butler (109 Ga. 469), 634. Mountjoy v. Metzger (9 Phila. 10), 1090. Mowbray v. Cady (40 Iowa, 604), 658, 679. Mowry v. Kirk (19 Ohio St. 370), 1119, 1129. Moyce v. Newington (L. R. 4 Q. B. Div. 32), 923, 924. Moyer v. Lederer (50 111. A pp. 94), 894, 895. Mucklow v. Mangles (1 Taunt. 318), 759, 761. Mudge v. Oliver (1 Allen, 74), 267. Mul I tall v. Quinn (1 Gray, 105), 200. Mullain v. Thomas (43 Conn. 252), 1255. Mullen v. Wilson (44 Pa. St. 413), 973. Muller v. Eno (14 N. Y. 597), 1395, 1805, 1818. Mulock v. Wilson (19 Colo. 296), 973. Mulvaney v. Rosenberger (18 Pa. St. 203), 1272. Mumford v. Canty (50 111. 370), 649, 1043. Mumford v. McPherson (1 Johns. 413), 1255. Mumford v. Whitney (15 Wend. 380). 336. Munro v. Gairdner (3 Brev. 31), 878. Munson v. Washband (31 Conn. 303), 132. Munt v. Stokes (4 Term R. 561), 999. Munzer v. Stern (105 Mich. 523), 918. Murch v. Wright (46 111. 487), 572, 600, 693. Murchie v. Cornell (155 Mass. 60), 346, 1340. Murdy v. Skyles (101 Iowa, 549\ 139. Murphy v. Barefield (27 Ala. 634), 688. Murphy v. Boese (L. R. 10 Exch. 126;, 460. Murphy v. Gay (37 Mo. 535), 1235. Murphy v. Kastner (50 N. J. Eq. 214), 1456. I, §§ 1-797; Vol. H, §§ 798-1850. Murphy v. Mulgrew (102 Cal. 547), 960, 964, 966. Murphy v. McGraw (74 Mich. 318), 1826. Murphy v. Railroad Co. (55 Iowa, 473), 639. Murphy v. State (1 Ind. 366), 714. Murray v. Brooks (41 Iowa, 45), 1281, 1285, 1288. Murray v. Carlin (67 111. 286), 90. Murray v. Doud (167 111. 368), 1690. Murray v. Harway (56 N. Y. 337), 804. Murray v. Riggs (15 Johns. 571), 963. Murray v. Smith (4 Daly, 277), 1287. Murry v. Ocheltree (59 Iowa, 435), 1032. Muser v. Lissner (67 How. Pr. 509), 1411. Muskegon Booming Co. v. Underbill (43 Mich. 629), 1482, 1600. Muskegon Curtain Roll Co. v. Key- stone Mfg. Co. (135 Pa. St. 132), 1702. Musselman v. Cravens (47 Ind. 1), 72, 73. Mustard v. Wohlford (15 Gratt. 329), 109. Muston v. Gladwin (6 Q. B. 953), 1073. Mutual L. Ins. Co. v. Watson (30 Fed. R. 653), 1031. Myer v. Western Car Co. (102 U. S. 1), 603. Myer v. Wheeler (65 Iowa, 390), 1148, 1150, 1320. Myers v. Field (146 111. 50), 139. Myers v. Harvey (2 Pen. & W. 478), 580. Myers v. Meinrath (101 Mass. 366), 998, 1053. Myers v. Trescott (59 Hun, 395), 227. Myers v. Turner (17 111. 179), 834. Mygatt v. Tarbell (78 Wis. 351), 53. Naglebaugh v. Mining Co. (21 Ind. A pp. 551), 1045. cliv TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Nairn v. Ewalt (51 Kan. 355), 893. Nance v. Nance (84 Ala. 375), 950. Nash v. Brewster (39 Minn. 530), 711. Nash v. Drew (5 Gush. 422), 175. Nash v. Lull (102 Mass. 60), 834. Nash v. Meggett (89 Wis. 486), 1423. Nash v. Mitchell (71 N. Y. 199), 137. Nash v. Towne (72 U. S. 689), 447, 831, 838, 1846, 1850. Nashua Iron Co. v. Brush (50 U. S. App. 461), 1344, 1346, 1817, 1834. Nathan v. Giles (5 Taunt. 558), 788. National Bank v. Goodyear (90 Ga. 711), 49. National Bank v. Hall (101 U. S. 43), 228, 229. National Bank v. Matthews (98 U. S. 621), 1046. National Bank v. Merchants' Bank (91 U. S. 92), 779. National Bank v. Morris (17 App. Cas. 287), 953. National Bank v. Peck (8 Kan. 660), 834. National Bank v. Whitney (103 U. S. 99), 1046, 1426, 1433, 1435. National Bank of Chicago v. Bailey (115 Mass. 228), 740, 788. National Bank of Chambersburg v. Buckeye I. & B. Works (46 111. App. 526), 964. National Bank of Commerce v. C, B. & Q. R. Co. (44 Minn. 224), 154, 545, 554, 555, 1433. National Bank of Cairo v. Crocker (111 Mass. 163), 740, 788. National Bank of Dakota v. Taylor (5 S. Dak. 99), 934, 942. National Cash Reg. Co. v. Broek- smit (103 Iowa, 271), 598. National Cash Reg. Co. v. Ison (94 Ga. 463), 175. National Cash Reg. Co. v. Maloney (95 Iowa, 573), 603. National Cash Reg. Co. v. Schwab ( — Iowa, — ), 603. National Car L. L. Builder v. Cy- clone Steam Snow Plow Co. (49 Minn. 125), 32. National Cordage Co. v. Sims (44 Neb. 148), 49. National Exch. Bank v. Watson (13 R. I. 91), 955. National Furnace Co. v. Keystone Mfg. Co. (110 111. 427), 264. National Horse Importing Co. v. Novak (95 Iowa, 586), 1822. National Refining Co. v. Miller (1 S. D. 548), 254. National Water Pur. Co. v. New Or- leans Water Works Co. (48 La. Ann. 773), 1154. Nattin v. Riley (54 Ark. 30), 606, 628, 643. Nauman v. Ullman (102 Wis. 92), 1836. Naumberg v. Young (44 N. J. L. 331), 1254 Nawkins v. Berry (5 Gilm. 36), 1242. Navassa Guano Co. v. Commercial Guano Co. (93 Ga. 92), 1167. Naylor v. Dennie (8 Pick. 199), 1571, 1577, 1578. Neal v. Boggan (97 Ala. 611), 549, 1407, 1482. Neal v. Flint (.88 Me. 72), 1255. Neal v. Gillaspy (56 Ind. 451), 1307. Neal v. Hardware Co. (122 N. C. 104), 1774. Neal v. Shewalter (5 Ind. App. 147), 1690. Neal v. Williams (18 Me. 391), 150, 151. Neasham v. McNair (103 Iowa, 695), 139. Neave v. Arntz (56 Wis. 174), 1235, 1237. Necker v. Harvey (49 Mich. 517), 878. Needham v. Dial (4 Tex. Civ. App. 14), 1357. Neidefer v. Chastain (71 Ind. 363), 936. TABLE OF CASES CITED. civ References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Neil v. Cheves (1 Bailey, 537), 543. Neiler v. Kelley (69 Pa. St. 403), 1787. Neinieyer Lumber Co. v. Burlington R. Co. (54 Neb. 321), 733, 736, 741, 797, 1180. Neldon v. Smith (36 N. J. L..148), 508, 652, 1134. Nellis v. Bradley (1 Sandf. 560), 919. Nellis v. Clark (20 Wend. 24), 947. Nelson v. Biggers (6 Ga. 205), 1270. Nelson v. Brown (44 Iowa, 455), 24, 25, 28. Nelson v. Brown (53 Iowa, 555), 25. Nelson v. Cowing (6 Hill, 336), 1281. Nelson v. Kilbride (113 Mich. 637), 17, 1411. Nelson v. Kinney (93 Tenn. 428), 955. Nelson v. Martin (105 Pa. St. 229), 820. Nelson v. Overman (19 Ky. L. 161), 1378. Nelson v. Railroad Co. (2 111. App. 180), 51, 752. Nesbit v. Burry (25 Pa, St. 208), 514. 530, 532. Ness v. Singer Mfg. Co. (68 Minn. 237), 178. Netterville v. Barber (52 Miss. 168), 138. Nettleton v. Sikes (8 Mete. 34), 334, 336, 337, 626, 1161. New England Trust Co. v. Abbott (162 Mass. 148), 212, 1718, 1727. New England Dressed Meat & Wool Co. v. Standard Worsted Co. (165 Mass. 328), 437, 451, 458, 714, 756, 758. New Hampshire Ins. Co. v. Noyes (32 N. H. 345), 132. New Haven Wire Co. Cases (57 Conn. 352). 597, 601, 780. New Home Sewing t Machine Co. v. Bothane (70 Mich. 443), 628. New Jersey Knowles Loom Works v. Vacher (57 N. J. L. 490), 650. New Market Co. v. Emboy ( — Ky. — ), 1774. New York Sec. & Tr. Co. v. Capital Ry. Co. (77 Fed. R. 529), 646. New York Tarter Co. v. French (154 Pa. St. 273), 749, 1183. New York News Pub. Co. v. National Steamship Co. (148 N. Y. 39), 1442. New Zealand Land Co. v. Ruston (5 Q. B. Div. 474), 1452. Newark v. Essex Club (53 N. J. L. 99), 55. Newberry v. Wall (35 N. Y. Super. Ct. 106), 464. Newberry v. Wall (65 N. Y. 484), 464. Newberry v. Wall (84 N. Y 576), 463, 464. Newby v. Rogers (40 Ind. 9), 425, 1136. Newcomb v. Brockett (16 Mass. 161), 1097. Newcomb v. Cabell (10 Bush, 460), 1194. Newcomb v. Railroad Co. (115 Mass. 230), 788. Newcomb v. De Roos (2 El. & El. 271), 262. Newell v. Fisher (11 S. & M. 431), 87. Newell v. Radford (L. R. 3 C. P. 52), 430, 434. Newell v. Randall (32 Minn. 171), 868, 893. Newell v. Smith (53 Conn. 72), 211, 276. Newhall v. Central Pac. R. Co. (51 Cal. 345), 166, 1567. Newhall v. Kingsbury (131 Mass. 445), 573, 588, 596, 613, 693. Newhall v. Langdon (39 Ohio St. 87), 701, 702, 706, 1413. Newhall v. Vargas (13 Me. 93), 1526, 1528, 1530, 1537, 1548, 1579, 1603, 1604, 1606, 1612. Newhall v. Vargas (15 Me. 314), 1603, 1604, 1612, 1672. Newlove v. Callaghan (86 Mich. 301), 877. Newman v. Claflin (107 Ga. 89), 863, 895. clvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Newman v. Kirk (45 N. J. Eq. 677), 954. Newsorne v. Thornton (6 East, 17), 1534, 1564. Newton v. Winchester (16 Gray, 208), 1148. Nevada Bank v. Portland Nat. Bank (59 Fed. R. 338), 895. Nichol v. Godts (10 Exch. 191), 1331, 1333, 1339. Nichol v. Steger (2 Tenn. Ch. 328), 127. Nichol v. Steger (6 Lea, 393), 118, 128. Nicholls v. Le Feuvre (2 Bing. N. C. 83), 1571. Nichols v. Ashton (155 Mass. 205), 32, 583, 588, 597. Nichols v. Johnson (10 Conn. 192), 434, 437. Nichols v. Knowles (31 Minn. 489), 1384, 1386. Nichols v. Martin (35 Hun, 168), 1452. Nichols v. Michael (23 N. Y. 264), 892, 906, 909, 915. Nichols v. Morse (100 Mass. 523), 757, 1662. Nichols v. McCarthy (53 Conn. 299), 948. Nichols v. Nichols (61 Vt. 426), 953. Nichols v. Patten (18 Me. 231), 947, 964. Nichols v. Pinner (18 N. Y. 295), 906. Nichols v. Ruggles (76 Me. 25), 603. Nichols v. Scranton Steel Co. (137 N. Y. 487). 1090. Nichols v. Wyman (71 Iowa, 160), 1254. Nichols & Shepard Co. v. Snyder (78 Minn. 502), 96, 105. Nicholson v. Bower (1 El. & El. 172), 365, 1592. Nicholson v. Bradfield Union (L. R. 1Q. B. 620). 1158, 1161. Nicholson v. Pease (61 Vt. 534), 1455. Nicholson v. Spencer (11 Ga. 607), 130. Nicholson v. Taylor (31 Pa. St. 128), 546. Nicholson v. Wilborn (13 Ga. 467), 127, 129, 131. Nickerson v. Darrow (5 Allen, 419), 169. Nickol v. Thomas (53 Ind. 42), 69, 72, 73. Nickoll v. Ashton (2 Q. B. 298), 653, 1100. Nield v. Burton (49 Mich. 53), 909. Niemeyer v. Wright (75 Va. 239), 1046, 1051. Nightingale v. Chafee (11 R. I. 609), 1423. Nightingale v. Eiseman (121 N. Y. 288), 1400, 1461. Nightingale v. Withington (15 Mass. 272), 186. Nispel v. Laparle (74 111. 306), 138. Niver v. Best (10 Barb. 369), 947. Nives v. Nives (15 Ch. Div. 649), 1726. Nixon v. Beard (111 Ind. 137), 1424. Nixon v. Brown (57 N. H. 34), 164. Noakes v. Morey (30 Ind. 103), 407. Noble v. Googins (99 Mass. 231), 938. Noble v. Hand (163 Mass. 289), 1829. Noble v. Ward (L. R. 1 Ex. 117), 447. Noble v. Ward (L. R. 2 Ex. 135), 806. Noble v. Worthy (45 S. W. R. 137), 892, 893. Noel v. Karper (53 Pa. St. 97), 87. Noel v. Murray (13 N. Y. 167), 1125. Noel v. Wheatly (30 Miss. 187), 1794. Nofsinger v. Ring (71 Mo. 149), 673. Nogales Club v. State (69 Miss. 218), 55. Nolan v. Jackson (16 111. 272), 1456. Non-Magnetic Watch Co., In re (89 Hun, 196), 755, 792. Nordyke & Marmon Co. v. Kehlor (155 Mo. 643), 278. Norfolk Southern R. Co. v. Barnes (104 N. C. 25), 740, 793. Norman v. Phillips (14 M. & W. 277), 365, 393, 1181, 1496. Norniington v. Cook (2 N. Y. Sup. 423), 1161. TABLE OF CASES CITED. clvii References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Norrington v. Wright (115 U. S. 188), 810, 1083, 1138, 1139, 1144, 1145, 1147. 1148, 1155, 1156, 1158, 1161, 1208, 1215, 1216. Norris v. Blair (39 Ind. 90), 327, 439. Norris v. Harris (15 Cal. 226), 831, 912, 1083, 1398, 1846. Norris v. Norris (9 Dana, 317), 947. North v. Forrest (15 Conn. 400), 331. North v. Mendel (73 Ga. 400), 429, 434, 437. North v. Phillips (89 Pa. St. 250), 1031, 1787. North v. The Great Northern Ry. Co. (2 Giff. 64), 1720. North v. Williams (120 Pa. St. 109), 626, 627. Nortli Penn. R. R. Co. v. Commercial Bank (123 U. S. 727), 774. North Pac. Lum. Co. v. Kerron (5 Wash. 214), 508, 723, 781. Northern Trust Co. v. Markell (61 Minn. 271), 1718. Northern Central Ry. Co. v. Wal- worth (193 Pa. St. 207), 1727. Northington, Ex parte (37 Ala. 496), 84. Northwestern Cordage Co. v. Rice (5 N. Dak. 432), 1071, 1079, 1334, 1335, 1393, 1836. Northwestern Ins. Co. v. Blankenship (94 Ind. 535), 74, 76, 79, 80. Northwestern Iron Co. v. Meade (21 Wis. 480), 227. Northwood v. Rennie (28 C. P. 202), 122:5. Northy v. Field (2 Esp. 613), 1577, 1586. Norton v. Davison (1 Q. B. 401), 416. Norton v. Doolittle (32 Conn. 405), 962. Norton v Drey fuss (106 N. Y. 90), 1391, 1392. Norton v. Gale (95 111. 533), 212. Norton v. Hummel (22 111. App. 194), 651, 1202. Norton v. Melick (97 Iowa, 564\ 49. Norton v. Norton (5 Cush. 524), 957. Norton v. Pilger (30 Neb. 860), 603, 604. Norton v. Sewall (106 Mass. 143), 878. Norton v. Woodruff (2 N. Y. 153), 21, 22, 513. Norwegian Plow Co. v. Clark (102 Iowa, 31), 46, 49. Norwegian Plow Co. v. Hanthorn (71 Wis. 529), 416, 960, 965. Noton v. Brooks (7 Hurl. & N. 499), 834. Nounnan v. Land Co. (81 Cal. 1), 870. Nowlen v. Colt (6 Hill, 461), 642. Noyes v. Blodgett (58 N. H. 502), 1843. Nut brown v. Thornton (10 Ves. 163), 1719, 1725. Nutter v. Wheeler (Fed. Cas. No. 10,384), 49. Nye v. Lowry (82 Ind. 316), 451. Nye v. Merriam (35 Vt. 438), 879. Nye & Scheider Co. v. Snyder (56 Neb. 754), 1822. Nysewander v. Lowman (124 Ind. 584), 1843. Oakford v. Drake (2 Fost. & Fin. 493), 1530. Oakley v. Morton (11 N. Y. 25), 1103. Oakman v. Rogers (120 Mass. 214), 234. O'Bannon v. Relf (7 Dana, 320), 1392. Obendorf v. Union Bank (31 Md. 126), 1419. Ober v. Carson (62 Mo. 209), 519, 527. O'Brien v. Jones (91 N. Y. 193), 1795, 1796. O'Brien v. Norris (16 Md. 122), 1540, 1542, 1571. O'Brien v. Stambach (101 Iowa, 40), 975. O'Bryan v. Fitzpatrick (48 Ark. 487), 999, 1027. O'Bryan v. Glenn (91 Tenn. 106), 909. Ocean Steamship Co. v. Ehrlich (88 Ga. 502), 1566, 1597. clviii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Ockington v. Richey (41 N. H. 275), 499, 714. O'Connell v. Hotel Co. (90 Cal. 515), 1709. OX'onner v. Arnold (53 Ind. 203). 1455. O'Connor v. Clark (170 Pa. St. 318), 163. Odell v. Boston & M. R. Co. (109 Mass. 50), 527, 733, 736, 757, 1189. O'Dell v. Lyda (46 Ohio St. 244), 26. Odom v. Riddick (104 N. C. 512), 72, 74, 78. O'Donnell v. Leeman (43 Me. 158), 461. O'Donnell v. Sweeney (5 Ala. 467), 1054. O'Donnell Brewing Co. v. Farrar (163 111. 471), 937. O'Donohue v. Leggett (134 N. Y. 40), 1372. Oester v. Sitlington (115 Mo. 247), 549. O'Farrell v. McClure (— Kan. App. ), 492, 502. Offutt v. Flagg (10 N. H. 46), 649. Ogden v. Beatty (137 Pa. St. 197), 1817. Ogg v. Shuter (1 C. P. Div. 47), 785, 787, 797. Ogle v. Atkinson (5 Taunt. 759), 773, 1547, 1548. Ogle v. Earl Vane (L. R. 2 Q. B. 275), 807, 1151, 1153, 1691, 1749. Ohio Thresher Co. v. Hensel (9 Ind. App. 328), 1248, 1385. Oinson v. Heritage (45 Ind. 73), 184. O'Keefe v. Kellogg (15 111. 347), 527. Okell v. Smith (1 Stark. N. P. 107), 1155, 1208. Olcott v. Bolton (50 Neb. 779), 880, 1839. Old Colony R. R. Co. v. Evans (6 Gray, 38). 142, 425, 449. Old Dominion St. Co. v. Burckhardt (31 Gratt. 664), 908, 923. Oldham v. Kerchener (79 N. C. 106), 1833. Oliphant v. Markham (79 Tex. 543), 1031. Oliver v. Fielden (4 Exch. 135), 861. Oliver v. Houdlet (13 Mass. 237), 97. Oliver v. Hunting (44 Ch. Div. 205), 426. Oliver v. Moore (12 Heisk. 482), 51, 75a. Oliver v. Woodroffe (4 M. & W. 650), 124. Ollivant v. Bayley (5 Q. B. 288), 1347, 1349. Olmsteadv. Hotailing (1 Hill, 317), 892. Olson v. Mayer (56 Wis. 551), 1380, 1392. Olson v. Orton (28 Minn. 36), 881. Olson v. Sharpless (53 Minn. 91), 426, 1736. Olvey v. Jackson (106 Ind. 286), 1424. Olyphant v. Baker (5 Denio, 379), 493, 502, 518, 759. Omaha Coal Co. v. Fay (37 Neb. 68), 1344. Omoa Coal & Iron Co. v. Huntley (2 C. P. Div. 464), 1549. O'Neal v. Day (53 Mo. App. 139), 1588, 1592. Oneida Mfg. Society v. Lawrence (4 Cow. 440), 1320, 1322. O'Neil v. Crain (67 Mo. 250), 438. O'Neil v. Garrett (6 Iowa. 480), 1579. O'Neil v. New York & S. P. Min. Co. (3 Nev. 141), 324 O'Neil v. Vermont (144 U. S. 323), 740, 794. O'Neil v. Walker (45 La, Ann. 609), 39. O'Neill v. Webb (78 Mo. App. 1), 1728. Oppenheim v. Russell (3 Bos. & Pul. 42), 1610. Orcutt v. Nelson (1 Gray, 536), 757, 1027. Oriental Inland Steam Co., The, v. Briggs (4 D. F. & J. 191), .228. TABLE OF CASES CITED. C11X References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Orman v. Hagar (3 N. Mex. 568), 317. Ormrod v. Huth (14 M. & W. 651), 1311. Ormsby v. Budd (72 Iowa, 80), 1240, 1245. Ormsby v. Dearborn (116 Mass. 386), 909. O'Rourke v. Hadcock (114 N. Y. 541), 606, 610. O'Rourke v. O'Rourke (43 Mich. 58), 1059. O'Rourke v. Schultz (23 Mont. 285), 873. Orr v. Farmers' Alliance Co. (97 Ga. 241), 1762. Ortloff v. Klitzke (43 Minn. 154), 362. Osborn v. Gantz (60 N. Y. 540), 546, 1222, 1223. Osborn v. Nicholson (80 U. S. 654), 1266, 1267. Osborn v. South Shore Lumber Co. (91 Wis. 526), 635. Osborne v. Baker (103 Mich. 247), 1385, 1386, 1396. Osborne v. Carpenter (37 Minn. 331), 1397. Osborne v. Francis (38 W. Va. 312), 665, 668. Osborne v. McQueen (67 Wis. 392), 1385, 1387, 1807. Osborne v. Van Atten (3 Wash. Terr. 53), 1181. Osborne Co. v. Piano Mfg. Co. (51 Neb. 502), 599, 603. Osborne & Co. v. Bell (62 Mich. 214), 1664. Osburn v. Farr (42 Mich. 134), 95. Osgood v. Bauder (75 Iowa, 550), 1043, 1148. Osgood v. Lewis (2 H. & G. 495), 1235, 1236, 1238, 1244, 1295, 1334, 1810. Oster v. Mickley (35 Minn. 245), 1286. Osterhout v. Shoemaker (3 Hill, 512), 69. Oswald v. McGehee (28 Miss. 340), 1841. Oswego Starch Co. v. Lendrum (57 Iowa, 573), 892, 901, 924, 928. Otis v. Adams (56 N. J. L. 38), 1148. Otis v. Cullom (92 U. S. 447), 1332. Otis v. Spencer (102 111. 622), 955. Ott v. Sweatman (166 Pa. St. 217), 580, 600. Ottawa Bottle Co. v. Gunther (31 Fed. R. 209), 1314, 1344. Ottman v. Monk (3 Sandf. 431), 121. Otto v. Haloff (89 Tex. 384), 1423, 1427. Out water v. Dodge (7 Cow. 85), 359, 520, 523, 542. Overton v. Brown (63 Mo. App. 49), 909. Overton v. Phelan (2 Head, 445), 1344. Owen v. Long (97 Wis. 78), 153, 603. Owen v. White (5 Port. 435), 186. Owens v. Lewis (46 lnd. 488), 336. Owens v. Sturges (67 111. 366), 816, 820, 1393, 1805. Owens v. Weed man (82 111. 409), 1485. Oxendale v. Wetherell (9 B. & C. 386), 242, 513, 1161. Oxford Iron Co. v. Spradley (51 Ala. 171), 1013. Pacific Guano Co. v. Dawkins (57 Ala. 115), 1030. Pacific Guano Co. v. Mullen (66 Ala. 582), 918, 1050. Pacific Iron Works v. Long Island R. Co. (62 N. Y. 272), 756, 1162. Pacific Iron Works v. Newhall (34 Conn. 67), 1344. Pacific Lounge Co. v. Rudebeck (15 Wash. St, 336), 498, 499. Pacific R. R. Co. v. Seely (45 Mo. 212), 142. Packard v. Dunsmore (11 Cush. 282). 380. Packard v. Getman (6 Cow. 757), 750. Paddock v. Davenport (107 N. C. 710 ', 252. Paddock v. Fletcher (42 Vt. 389), 878. clx TABLE OF CASES CITED. References are to sections: Vol. I, § Paddock v. Strobridge (29 Vt. 470), 869, 935. Paddou v. Taylor (44 N. Y. 371), 890. Padfield v. Green (85 111. 529), 1455, 1464. Paetz v. Stoppleman (75 Wis. 510), 937. Page v. Bent (2 Mete. 371), 875. Page v. Carpenter (10 N. H. 77), 525. Page v. Edwards (64 Vt. 124), 564, 624. Page v. Heineberg (40 Vt, 81), 142. Page v. Parker (43 N. H. 363), 936, 1843. Page v. Wells (37 Mich. 45), 1843. Paige v. Barrett (151 Mass. 67), 1089. Paine v. Devinel (53 Mo. 52), 1424. Paine v. Fulton (34 Wis. 83), 419. Paine v. Hall Safe Co. (64 Miss. 175), 599. 603. Paine v. Sherwood (21 Minn. 225), 1105, 1742, 1743. Paine v. Young (56 Md. 314), 510. Palmateer v. Robinson (60 N. J. L. 433), 647. Palmer's Appeal (96 Pa. St, 106), 912. Palmer v. Banfield (86 Wis. 441), 665, 669, 1384. Palmer v. Clark (106 Mass. 373), 212. Palmer v. Hand (13 Johns. 434), 542, . 543,1407. Palmer v. Hatch (46 Mo. 585), 1281, 1290. Palmer v. Howard (72 Cal. 293), 564, 576, 578, 599. Palmer v. Kelleher (111 Mass. 320), 1050. Palmer v. Roath (86 Mich. 602), 1240, 1255. Palmer v. Stephens (1 Denio, 471), 451. Palmer v. Vanderberg (2 Wend. 193), 1131. Pam v. Vilmar (54 How. Pr. 235), 50. Pancake v. Campbell (44 W. Va. 82), 1089, 1706. Pancoast v. Gowen (93 Pa. St. 66), 197. § 1-797; Vol. H, §§ 798-1850. Pangborn v. Ruemenapp (74 Mich. 572), 915. Pangborn v. Westlake (36 Iowa, 546), 1045. Paola Gas Co. v. Paola Glass Co. (56 Kan. 614), 1779. Park v. Richardson (81 Wis. 399), 1395, 1807. Park v. Richardson (91 Wis. 189), 1817. Park v. Whitney (148 Mass. 278), 251. Parke, etc. Co. v. Lumber Co. (101 Cal. 37), 569. Parker, Ex parte (11 Neb. 309), 356. Parker v. Baxter (86 N. Y. 586), 1482. Parker v. Byrnes (1 Low. 539), 902, 1586. Parker v. Conner (93 N. Y. 118), 953. Parker v. Davis (8 Jones, 460), 69. Parker v. Pettit (43 N. J. L. 512), 1097. Parker v. Macomber (17 R. I. 674), 1106. Parker v. Marco (76 Fed. R. 510), 77. Parker v. Mitchell (5 N. H. 165), 386. Parker v. Moulton (114 Mass. 99), 938. Parker v. Mclver (1 Desaus. 274), 1578. Parker v. Palmer (4 B. & Aid. 387), 1320, 1392. Parker v. Russell (133 Mass. 74), 1089, 1090, 1092. Parker v. Schenck (28 Barb. 38), 305. Parker v. Selden (69 Conn. 544), 1134. Parker v. Wallis (5 El. & Bl. 21), 360, 373. Parkersburg v. Brown (106 U. S. 487), 999. Parkhurst v. Van Cortland (14 Johns. 15), 426. Parkinson v. Lee (2 East, 314), 1311, 1316, 1329. Parkinson v. State (14 Md. 184), 12. Parks v. Hall (2 Pick. 211), 1515. Parks v. Lancaster (Tex. Civ. App., 38 S. W. R. 262), 914. 1ABLE OF CASES CITED. clxi References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Parks v. Morris Ax Co. (54 N. Y. 586), 1222, 1272, 1335, 1393, 1395. Parks v. O'Connor (70 Tex. 377), 1251, 1391. Parks v. Tool Co. (54 N. Y. 586), 1395. Parlin. etc. Co. v. Harrell (8 Tex. Civ. App. 368), 593, 603, 619, 632. Parmlee v. Catherwood (36 Mo. 479), 599. Parnther v. Gaitskell (13 East, 432), 14. V.i. Parry v. Libbey (166 Mass. 112), 1197. Parry Mfg. Co. v. Tobin (106 Wis. 286), 1805, 1844. Parsons v. Dickinson (11 Pick. 352), 483. Parsons v. Keys (43 Tex. 557), 123. Parsons v. Loucks (48 N. Y. 17), 305. Parton v. Crofts (1G C. B., N. S., lis 468. Parvelski v. Hargreaves (47 X J. L. 334), 293, 316. Pasch Case (17 Edw. IV. 2), 238. Pash v. "Weston (52 Iowa. 675), 599, 603. Pashl>y v. Mandigo (42 Mich. 172), 971.. Pasley v. Freeman (3 T. R, 51), 876, 1223, 1242. Passaic Mfg. Co. v. Hoffman (3 Daly, 495), 305. Passinger v. Thorburn (34 N. Y. G34), 1817, 1823, 1827. Patee v. Pelton (48 Vt. 182), 1306. Patent Title Co. v. Stratton (89 Fed. R. 174), 942. Patrick v. Bowman (149 U. S. 411), 247. Patrick v. Colorado Smelting Co. (20 Colo. 268), 52. Pattee v. Greely (13 Mete. 284\ 1057. Patten's Appeal (45 Pa. St. 151), 1628. Patten v. Casey (57 Mo. 118). 957. Patten v. Hood (40 Me. 457), 1423. Patterson v. Judd (27 Mo. 563), 1168. Patterson v. Lippincott (47 N. J. L. 457), 97. Patterson v. Taylor (15 Fla. 340), 8. Pattison's Appeal (61 Pa. St. 294), 336. Pattison v. Culton (33 Ind. 240), 1562, 1563, 1614, 1615. Patton v. Arney (95 Iowa, 664), 223. Paul v. Baugh (85 Va. 955). 952. Paul v. Grimm (165 Pa. St. 139), 1455. Paul v. Hard wick (Oliphant, 81), 1270. Paul v. Kenosha (22 Wis. 256), 838, 1849. Paul v. Reed (52 N. H. 136), 499, 541, 543, 551, 554. Paul v. Smith (41 Mo. App. 275), 132. Paulson v. Hall (39 Kan. 365), 1302. Payne v. Rodden (4 Bibb, 304), 1302, 1795. Payne v. Stanton (59 Mo. 158). 973. Payne v. Thompson (44 Ohio St. 192), 138. Pawson v. Watson (Cowp. 785), 1223. Peak v. Frost (1G2 Mass. 298), 1843. Peabody v. Carrol (9 Mart. 295), 964. Peabody v. Maguire (79 Me. 572), 54G, 549, 551, 552, 554, 624. Peabody v. Speyers (5G N. Y. 230), 331, 432. Peace River Phosphate Co. v. Grafflin (58 Fed. R. 550), 1139. Pearce v. Blackwell (12 Ired. 49), 933. Pearce v. Brooks (L. R. 1 Exch. 213), 1012, 1015, 1021. Pearce v. Foot (113 111. 228), 1039. Pearce v. Foote (95 I1L 99), 1034. Pearl v. McDowell (3 J. J. Marsh. 658), 69, 77, 84 Pearne v. Lisle (Ambl. 77), 1719. Pearse v. Pettis (47 Barb. 276), 915, 917. Pearson, Ex parte (L. R. 3 Ch. App. 442), 1181. Pearson v. Cox (71 Tex. 246), 72, 77. Pearson v. Dawson (El., Bl. & El. 448), 1503. clxii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Pearson v. Quist (79 Iowa, 54), 950. Pearson v. Mason (120 Mass. 53), 1695. Pearson v. State (66 Miss. 510), 1009. Pearson v. Thomason (15 Ala. 700), 1420. Pease v. Cole (53 Conn. 53), 143. Pease v. Gloahec (L. R. 1 Pr. Coun. 219), 148. Pease v. Norton (6 Me. 229), 1136. Pease v. Sabin (38 Vt. 432), 1344, 1346, 1352. Peck v. Brewer (48 111. 54), 1393. Peck v. Freese (101 Mich. 321), 254. Peck v. Jenison (99 Mich. 326), 936. Peck v. Vandemark (99 N. Y. 29), 426. Peden v. Moore (1 Stew. & Port. 71), 940. 1844. Peek v. Deny (L. R. 37 Ch. Div. 541), 876. Peek v. Gurney (L. R. 13 Eq. Cas. 79), 878. Peek v. Gurney (L. R. 6 H. L. 403), 868, 869, 876. Peek v. Heim (127 Pa. St, 500), 580. Peel v. Shepherd (58 Ga. 365), 1451. Peeples v. Stalla (57 Ala. 53), 692. Pelletreau v. United States Electric Light Co. (34 N. Y. Supp. 125). 305. Peltier v. Collins (3 Wend. 459), 441, 469. Pembroke Iron Co. v. Parsons (5 Gra\-, 589), 1169. Pence v. Langdon (99 U. S. 578), 908. Pendergast v. Reed (29 Md. 398), 937. Peninsular Stove Co. v. Ellis (20 Ind. App. 491), 923, 924. Penland v. Cathey (110 Ga. 431), 603. Penley v. Bessey (87 Me. 530), 488, 485, 492. Penn v. Bornman (102 111. 523), 1046. Penn v. Smith (93 Ala. 476), 1643. Penn v. Smith (98 Ala. 560), 1634, 1640. Penn v. Smith (104 Ala. 445), 1760, 1763. Pennell v. McAfferty (84 111. 364), 1380. Penniman v. Hartshorn (13 Mass. 87), 41, 264, 456. Pen nock v. Coe (23 How. 117 . 202. Pennock v. McCormick (120 Mass. 275), 40. Pennock v. Steygles (54 Yt. 226), 1237, 1395. Pennsylvania Co. v. Franklin Fire Ins. Co. (181 Pa. St. 40), 1727. Pennsylvania Co. v. Holderman (69 Ind.'lS), 1181. Pennsylvania R. Co. v. American Oil Works (126 Pa. St. 485), 1610. Pennsylvania R. Co. v. Titusville, etc. Co. (71 Pa. St. 350), 1775. Pennsylvania Ry. Co. v. Stern (119 Pa. St. 24), 774, 782. People v. Adelphi Club (149 N. Y. 5), 55. People v. Andrews (115 N. Y. 427), 55. People v. Cannon (139 N. Y. 32), 676. People v. Commissioners (58 N. Y. 242), 755. People v. Healy (128 111. 9), 893, 1666. People v. Refining Co. (54 Hun, 354), • 208. People v. Shriver (31 Albany L. Jour. 163), 740, 794. People v. Soule (74 Mich. 250), 55. People v. Tweed (63 N. Y. 194), 1502. People v. Walker (17 N. Y. 502), 1136. People's Furn. & Carp. Co. v. Crosby (57 Neb. 282), 610. People's Mut. Ace. Ass'n v. Smith (126 Pa. St. 317), 963. Peoria Bank v. Railroad Co. (58 N. H. 203), 774. Peoria Grape Sngar Co. v. Babcock (67 Fed. R. 892), 434, 437, 438. Peoria Grape Sugar Co. v. Turney (175 111. 631), 1337. Peoria Mfg. Co. v. Lyons (153 111. 437), 49. Peoria & Pekin Un. Ry. Co. v. Buck- ley (114 111. 337), 545, 555. TABLE OF CASES CITED. clxiii References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Perdue v. Harwell (80 Ga. 150), 1272, 1273. Perkins v. Best (91 Wis. 1G8), 603, 601. Perkins v. Brown (115 Mich. 41), 839, 1846. Perkins v. Douglas (20 Me. 317), 678. Perkina v. Grobben (116 Mich. 172), 620. Perkins v. Hadsell (50 111. 216), 449. Perkins v. Mettler (126 Cal. 100), 566, 597. Perkins v. McCullough (31 Oreg. 69), 159. Perkins v. Whelan (116 Mass. 543), 1795. Perley v. Balch (23 Pick. 283), 914, 916, 941, 1302. Perlman v. Sartorious (162 Pa. St. 320), 1124, 1181. Perrin v. Wilson (10 Mo. 451), 129. Perrine v. Barnard (142 Ind. 442), 1485. Perrine v. Cooley (39 N. J. L. 449), 1255. Perrine v. Serrell (30 N. J. L. 454), 1223, 1807. Perry v. Iron Co. (16 R. I. 318), 1158. Perry v. Johnston (59 Ala, 648), 932. Perry v. Mt. Hope Iron Co. (15 R. I. 380), 248, 249. Perry v. Pettingill (33 N. H. 433), 636. Perry v. Smith (22 Vt. 301), 1440, 1441, 1442. Perry v. Young (105 N. C. 463), 599, 603, 643. Perryman v. Wolffe (93 Ala, 290), 1031. Persse, In re (3 Molloy, 94), 84. Peters v. Fleming (6 M & W. 42), 130. 132. Peters v. Grim (149 Pa. St. 163), 99, 1032. 1034. Peters Box Co. v. Lesh (119 Ind. 98). 149, 887. Petersen v. Door, Sash & Lumber Co. (51 Mich. 86), 839, 1850. Peterson v. Hornblower (33 Cal. 276), 8. Peterson v. Tufts (34 Neb. 8), 598, 603. Peterson v. Walter A. Wood Co. (97 Iowa, 148), 1385. Petrie v. Hannay (3 T. R. 418), 1012, 1015. Pettengill v. Merrill (47 Me. 109), 1665. Pettyplace v. Groton Mfg. Co. (103 Mich. 155), 599, 624. Phelps v. Curts (80 111. 109), 952, 978. Phelps v. Holderness (56 Ark. 300), 1031. Phelps v. Hubbard (51 Vt. 489), 1121, 1128, 1187, 1412, 1643. Phelps v. Stillings (60 N. H. 505), 438. Phelps v. Whitaker (37 Mich. 72), 255, 1240, 1055. Phelps v. Worcester (11 N. H. 51), 132. Phelps-Bigelow Windmill Co. v. Piercy (41 Kan. 763), 1254, 1384. Phenix v. Gardner (13 Minn. 432 ', 40. Phenix Ins. Co. v. Schultz (42 U. S. App. 483), 228. Phifer v. Erwin (100 N. C. 59), 210, 498, 960. Philadelphia Whiting Co. v. Detroit White Lead Works (58 Mich. 29), 1378. Philadelphia Iron Co. v. Hoffman ( — p a . St. — ), 1236. Philadelphia, etc. R. Co. v. Howard (54 U. S. 307), 1704, 1709. Philadelphia, etc. R. Co. v. Wireman (88 Pa, St. 264), 736. Philbrick v. O'Connor (15 Oreg. 15), 954, 970, 978. Philbrook v. Eaton (134 Mass. 398), 40, 1786. Philips v. Green (3 A. K. Marsh. 7), 95. Phillips v. Adair (59 Ga. 370), 953. Phillips v. Bistolli (2 B. & Cr. 511), 278, 358, 376. clxiv TABLE OF CASES CITED. Keferenees are to sections: Vol. I, §§ 1-797; Vol. H, §§ 79S-1850. Phillips v. Green (5 T. B. Mou. 344), 109. Phillips v. Hunuewell (4 Greenl. 376), 41. Phillips v. Jones (12 Neb. 213), 875. Phillips v. Lloyd (18 R. I. 99), 132. Phillips v. Moor (71 Me. 78), 231, 260, 492, 493, 498, 536, 542. Phillips v. Ocmulgee Mills (55 Ga. 633), 361, 711. Phillips v. Reitz (16 Kan. 396), 960. Phillips v. Sanchez (35 Fla. 187), 183, 185. Philpot v. Sandwich Mfg. Co. (18 Neb. 54), 121. Phillpotts v. Evans (5 M. & W. 475), 1088, 1090. Phinney v. Baldwin (16 111. 108), 1043. Phipps v. Buckman (30 Pa. St. 401), 879. Phipps v. McFarlane (3 Minn. 61), 319. Phoenix Iron Works Co. v. McEvony (47 Neb. 228), 918, 924 Phoenix Lock Works v. Hardware Co. (9 Houst. 232), 1124, 1181. Phoenix Milling Co. v. Anderson (78 111. App. 253), 908), 925. Piazzek v. White (23 Kan. 621), 711. Pickard v. McCorrnick (11 Mich. 68), 13, 936. Pickard v. Sears (6 Adol. & El. 469), 170. Pickering v. Bardwell (21 Wis. 562), 1642. Pickering v. Busk (15 East, 38), 158, 161, 1446. Pickering v. Cease (79 111. 328), 1034. Pickering v. Dowson (4 Taunt. 779), 869. Pickert v. Marston (68 Wis. 465), 1281, 1282. Pickett v. Bullock (52 N. H. 354), 1477. Pickett v. Cloud (1 Bailey, 362), 543. Piedmont Club v. Commonwealth (87 Va. 541), . Pierce v. Bourton (17 N. Y. Wkly. Dig. 444), 305. Pierce v. £hipman (8 Vt. 334), 1193. Pierce v. Cooley (56 Mich. 552), 669. Pierce v. Drake (15 Johns. 475), 913. Pierce v. Emery (32 N. H. 484), 141, 199. Pierce v. George (108 Mass. 78), 646. Pierce v. Schenck (3 Hill, 28), 21, 23. Pierce v. Scott (37 Ark. 308), 692. Pierce v. Tenn. Coal, I. & R. Co. (173 U. S. 1), 1090. Pierce v. Van Dyke (6 Hill, 613), 928. Pierrepont v. Barnard (2 Seld. 279), 336. Pierson v. Crooks (115 N. Y. 539), 1375, 1377, 1380, 1391, 1392, 1395, 1398. Pierson v. Spaulding (67 Mich. 640), 702. Pierstoff v. Jorges (86 Wis. 128), 970. Pike v. Baker (53 111. 163), 1181. Pike v. Balch (38 Me. 302), 327, 461. Pike v. Bright (29 Ala. 336), 17. Pike v. Fay (101 Mass. 134), 1320. Pike v. Fitzgibbon (17 Ch. Div. 454), 135. Pike v. King (16 Iowa, 49), 1054. Pike v. Miles (23 Wis. 164), 972. Pike v. Vaughn (39 Wis. 499), 520, 523, 527. Pike v. Wieting (49 Barb. 314), 902. Pilgreen v. State (71 Ala. 368), 740, 793, 1029. Pillen v. Erickson ( Mich. — ), 1057. Pineville Lumber Co. v. Thompson (46 Minn. 502), 166. Pinkham v. Appleton (82 Me. 574), 524, 534, 543, 549. Pinkham v. Mattox (53 N H. 600), 360, 362, 373, 394, 397. Pinney v. Andrus (41 Vt. 631), 1270, 1273. TABLE OF CASES CITED. clxv References are to sections: Vol. I, §§ 1-797; Vol, II, §§ 798-1850. Pinney v. Gleason (5 Wend. 393), 1440. 1448. Pinney v. Railroad Co. (19 Minn. 251), 1132. Pipkin v. Williams (57 Ark. 242), 950. Pitcher v. Lowe (95 Ga. 423), 428. Pitkin v. Harris (69 Mich. 133), 1455. Pitkin v. Noyes (48 N. H. 294), 312, 345. Pitsinowski v. Beardsley (37 Iowa, 9), 1286, 1386. Pitt v. Acosta (18 Fla. 270), 1428. Pitt v. Smith (3 Camp. 33), 87. Pitts v. Beckett (13 M. & W. 743), 448. Pitts Mfg. Co. v. Spitznogle (54 Iowa, 36), 1384. Pittsburgh Coal Co. v. Foster (59 Pa. St. 365), 1831. Pittsburg, etc. R. Co. v. Heck (50 Ind. 303), 1633, 1690. Pittsburgh Locomotive Works v. Keokuk Bank (19 Fed. Cas. 785), 550. Pixley v. Boynton (79 111. 351), 1032, 1031. Plaisted v. Palmer (63 Me. 576), 1056, 1057. Planche v. Colburn (8 Bing. 14), 1097. Piano Mfg. Co. v. Ellis (68 Mich. 101), 663, 680, 814. Piatt v. Brand (26 Mich. 173), 1089, 1090, 1092. Piatt v. Broderick (70 Mich. 577), 668. Piatt v. Fire Extinguisher Mfg. Co. (59 Fed. R 897), 1080. Pleasants v. Pendleton (6 Rand. 473), 702, 711, 714. Plevins v. Downing (1 C. P. Div. 220), 1152, 1153. Plumb v. Campbell (129 111. 101). 1633. Pluramer v. Shirley (16 Ind. 380), 583. Poconoket, The (67 Fed. R. 262), 755. Poindexter v. McCannon (1 Dev. Eq. 373), 692. 1 Poland v. Brownell (131 Mass. 138), 936, 937, 1242. Poland v. Miller (95 Ind. 387), 1344 Polhemus v. Heiman (45 Cal. 573), 1161, 1168, 1235, 1335, 1393, 1844. Polhill v. Walter (3 B. & A. 114), 856, 876. Pollard v. Clayton (1 K. & J. 472), 1722, 1726. Pollard v. Farwell (48 Mo. App. 42), 964. Pollen v. Le Roy (30 N. Y. 549), 1624, 16'29, 1637, 1641, 1643. Pollock v. Fisher (6 N. B. 515), 714. Pollock v. Jones (96 Ala. 492), 955. Pollock v. Meyer (96 Ala. 172), 955. Pollock v. Smith (49 Neb. 864), 908. Pontifex v. Williamson (1 C. B. 75), 1106. Poole v. Houston & T. C. Ry. Co. (58 Tex. 134), 1557, 1609. Poor v. Oakman (104 Mass. 309), 336. Poor v. Wood burn (25 Vt. 234), 919, 924. Poorman v. Whitman (49 Kan. 697), 601. Poorman v. Woodward (21 How. 266), 1455. Pope v. Allis (115 U. S. 363), 810, 831, 839, 1155, 1208, 1846, 1850. Pope v. Hanke (155 111. 617), 1043. Pope v. Linn (50 Me. 83), 1057. Pope v. Porter (102 N. Y. 366), 1144, 1146. Pope v. Terre Haute Car Co. (107 N. Y. 61), 1129. Pope v. Wilson (7 Ala. 690), 974. Pope Iron & Metal Co. v. Best (14 Mo. App. 502), 667. Poplett v. Stockdale (2 Car. & P. 198), 1007. Pordage v. Cole (1 Saund. 319/i), 404. Porell v. Cavanaugh (69 N. H. 364), 148. Port Carbon Co. v. Groves (68 Pa. St. 149), 1314, 1344, 1347, 1349. clxvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Porter v. Bright (82 Pa. St. 441), 1309, 13:32. Porter v. Bucher (98 Cal. 454), 967. Porter v. Curry (50 111. 319), 145. Porter v. Gamba (43 Cal. 105), 138. Porter v. Leyhe (07 Mo. App. 540), 921. Porter v. Parks (49 N. Y. 564), 159. Porter v. Pool (62 Ga. 238), 1248, 1817. Porter v. Powell (79 Iowa, 151), 186. Porter v. Talcott (1 Cow. 359), 16. Portland Bank v. Stacey (4 Mass. 661), 987, 988, 1201. Portland Bank v. Stubbs (6 Mass. 422), 987, 1201. Posey v. Scales (55 Ind. 282), 1127, 1130. Poska v. Stearns (56 Neb. 541), 897, 898. Post v. Stiger (29 N. J. Eq. 554), 971. Potsdamer v. Kruse (57 Minn. 193), 1398. Potter v. Cowand (Meigs, 22), 483. Potter v. Duffield (L. R. 18 Eq. 4), 439. Potter v. Everett (40 Mo. App. 152), 336. Potter v. Green (6 Allen. 442), 1419. Potter v. Lee (94 Mich. 140), 1382. Potter v. McDowell (31 Mo. 62), 957. Potter v. Necedah Lbr. Co. (105 Wis. 25), 1842, 1843. Potter v. Potter (65 111. App. 74). 937. Potter v. Sanders (6 Hare, 1), 247. Potter v. Springfield Milling Co. (75 Miss. 532), 175. Potter v. Titcomb (22 Me. 300), 914. Potts v. N. Y. etc. R. Co. (131 Mass. 455), 1610. Potts v. Whitehead (23 N. J. Eq. 514), 228, 244, 247. Powder Co. v. Burkhardt (97 U. S. 110), 20, 21. Powder Live Stock Co. v. Lamb (38 Neb. 339), 356. Powell v. Bradlee (9 Gill & J. 220), 1437. Powell v. Chitteck (89 Iowa, 513), 1235. Powell v. Divett (15 East, 29), 472. Powell v. Henry ^27 Ala. 612), 175, 1455. Powell v. Horton (2 Bing. N. C. 668), 1251, 1321. Powell v. Inman (8 Jones L. 436), 947. Powell v. Jessop (18 C. B. 336), 329. Powell v. Kelly (82 Ga. 1). 955. Powell v. McAsham (28 Mo. 70), 333. Powell v. Preston (1 Hun, 513), 597. Powell v. Stickney (88 Ind. 310), 960. Powell v. Wallace (44 Kan. 656), 601. Power v. Barnham (4 Ad. & El. 473), 1240, 1242. Powers v. Benedict (88 N. Y. 605), 909. Powers v. Dennison (30 Vt. 752). 646. Powers v. Harris (68 Ala. 409), 170. Prairie Farmer Co. v. Taylor (69 111. 440), 682, 1393. Pratt v. Boody (55 N. J. Eq. 175), 1032. Pratt v. Bryant (20 Vt. 333), 642. Pratt v. Burhans (84 Mich. 487), 601. Pratt v. Chase (40 Me. 269), 397. Pratt v. Collins (20 Hun, 126), 451. Pratt v. Maynard (116 Mass. 388), 1188. Pratt v. Miller (109 Mo. 78), 320. Pratt v. Parkman (24 Pick. 42), 1201. Pratt v. Paules ( Pa. St. ), 1236. Pratt v. Peck (70 Wis. 620), 1380. Pratt v. Philbrook (41 Me. 132), 879, 908. Pray v. Burbank (10 N. H. 377), 1045. Pray v. Mitchell (60 Me. 430), 331. Pregnall v. Miller (21 S. C. 385), 965. Prentice Co. v. Page (164 Mass. 276), 169. Prentiss Tool Co. v. Schirmer (136 N. Y. 305), 624. Prescott v. Locke (51 N. H. 94), 313, 324, 499. Preston v. Whitney (23 Mich. 260), 629. Preston v. Witherspoon (109 Ind. 857), 25, 165. TABLE OF CASES CITED. clxvii References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Prewitt v. Trimble (92 Ky. 176>, 864 Prewitt v. Wilson (103 U. S. 22), 955. Pribble v. Kent (10 Ind. 325), 25. Price v. Boston, etc. R. Co. (101 Mass- 542). 1181. Price v. Furman (27 Vt. 2G8), 107, 109, 118, 119. Price v. Justrobe (Harper, 111), 1440. Price v. Malott (85 Ind. 266), 045. Price v. Railroad Co. (50 N. Y. 213), 887. Price v. Saunders (60 Ind. 310), 130, 132. Price v. Wisconsin M. & F. Ins. Co. (43 Wis. 267), 169. Pricbett v. Cook (62 Pa. St. 193), 23. ' Priest v. White (89 Mo. 609), 879. Prime v. Cobb (63 Me. 200), 628. Prince v. Boston & L. R. Co. (101 Mass. 542), 736. Prince v. Case (10 Conn. 375), 335, 646. Pritchard v. Smith (77 Ga. 463), 1423. Pritchett v. Jones (4 Rawle, 260), 508. Proctor v. Jones (2 C. & P. 532), 386, 1 I-.-.. Proctor v. McCoid (60 Iowa, 153), 879. Proctor v. Sears (4 Allen, 95), 105, 121. Proctor v. Spratley (78 Va. 254), 875, 1320, 1321. Proctor v. Tilton (65 N. H. 3), 628. Prosser v. Jones (41 Iowa, 674), 1792. Provencher v. Brooks (64 N. H. 479), 200. Providence Coal Co. v. Coxe (19 R. I. 380), 1148. Public Parks Amusement Co. v. Era- bree-McLean Carriage Co. (64 Ark. 29), 649. Puckett v. Reed (31 Ark. 131), 1197. Puffer v. Lucas (112 N. C. 377), 569. Puset Sound Mach. Co. v. Rigby (13 Wash. 264), 310. Pugh v. Chesseldine (11 Ohio, 109), 461. Pugh v. Moore (44 La. Ann. 209), 1332. Pullman Palace Car Co. v. Metro- politan Street Ry. Co. (157 U. S. 94), 1384. Pulse v. Miller (81 Ind. 190), 437. Pulsford v. Richards (17 Beav. 87), 1223. Purcell v. Mather (35 Ala. 570), 199, 200. Purdy v. Huntington (42 N. Y. 334), 1453. Purner v. Piercy (40 Md. 212), 337, 338, 344. Pusey v. Pusey (1 Vera. 273), 1719. Pust v. Dowie (5 B. & S. 20), 1075. Putnam v. Dutch (8 Mass. 287), 988, 1201. Putnam v. French (53 Vt. 402), 1449, 1450. Putnam v. Glidden (159 Mass. 47), 1475, 1671, 1675, 1682. Putnam v. Lamphier (36 Cal. 151), 599. Putnam v. Tillotson (13 Mete. 517), 757. 1182. Putney v. Day (6 N. H. 430), 336. Pym v. Campbell (6 E. & B. 370), 448. Pyne v. Wood (145 Mass. 558), 119, 132. Quarles v. State (55 Ark. 10), 1052. Quick v. Wheeler (78 N. Y. 300), 226, 253. Quigley v. Mexico Southern Bank (80 Mo. 289), 1462. Quimby v. Lowell (89 Me. 547), 612, 824. * Quincy v. Tilton (5 GreenL 277), 804, 809, 964. Quinn v. Davis (78 Pa. St. 15), 154. Quinn v. Parke, etc. Co. (5 Wash. 276), 569, 610. Quintard v. Bacon (99 Mass. 185), 365. Raby v. Frank (12 Tex; Civ. App.), 12, 905. Raeside v. Hamm (87 Iowa, 720), 935. Raffles v. Wichelhaus (2 H. & C. 906', 272. 845, 848. Ragland v. Wood (71 Ala. 145), 1124, 1125. clxviii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Rahn v. Deig (121 Ind. 283), 1736, 1762. Rahter v. Bank (92 Pa. St. 393), 1051. Rail v. Little Falls Lumber Co. (47 Minn. 422), 485, 488, 493, 502, 508, 542, 1177. Railroad Co. v. Barrett (36 Ohio St. 448), 750. Railroad Co. v. Burr (51 Ga. 553), 714. Railroad Co. v. Closser (126 Ind. 348), 208. Railroad Co. v. Freeman (61 Mo. 80), 336. Rainwater v. Durham (2 N. & McC. 524), 132. Ralph v. Fon Dersmith (3 Pa. Super. Ct, 618), 897. Ralston v. Boady (20 Ga, 449), 1013. Ramming v. Caldwell (43 I1L App. 175), 1348. Ramsey v. Tully (12 111. App. 463), 1071, 1079, 1389. Ramsgate Hotel Co. v. Montefiore (L. R. 1 Exch. 109), 260. Rand v. Mather (11 Cush. 1), 1003. Randall v. Kehlor (60 Me. 37), 1281. Randall v. Newson (2 Q. B. Div. 102), 1344, 1346, 1823. Randall v. Raper (1 EL, Bl. & El. 84), 1834. Randall v. Sweet (1 Den. 460), 112, 132. Randall v. Thornton (43 Me. 226), 1235. Randle v. Stone (77 Ga. 501), 634. Randolph Iron Co. v. Elliott (34 N. J. L. 1S4), 267. Ranney v. Higby (4 Wis. 154), 739. Raphael v. Burt (Cab. & El. 325), 1301, 1303. Raphael v. Reinstein (154 Mass. 178), 909. Rappleye v. International Bank (93 111. 396), 946. Rasin v. Conley (58 Md. 59), 1314. Rauber v. Sundback (1 S. Dak. 268), 58. Rawles v. Deshler (3 Keyes, 572), 891. Rawley, The M. K. (2 Low. Dec. 447). 750. Rawlings v. Bean (80 Mo. 614), 878. Rawlings v. Hunt (90 N. C. 270), 202. Rawson v. Johnson (1 East, 203', 1188. Rawson Mfg. Co. v. Richards (69 Wis. 643), 603. Ray v. Light (34 Ark. 421), 273. Ray v. Thompson (12 Cush. 281), 683. Raymond v. Leavitt (46 Mich. 447), 208. Rayner v. Linthorne (2 C. & P. 124), 461. Rea v. Durkee (25 111. 414), 184. Read v. Cumberland (93 Tenn. 482), 175. Read v. Hutchinson (3 Camp. 351), 912, 1411. Read v. Livingston (3 Johns. Ch. 481), 975. Read v. Mosby (87 Tenn. 759), 200. Read v. Staton (3 Hayw. 159), 1796. Read v. Sturdevant (40 Vt. 521), 1442. Read v. Taft (3 R. I. 175), 1013. Reade v. Livingston (3 Johns. Ch. 481), 972, 974 Reade v. Livingston (3 Johns. Ch. 501), 973. Readhead v. Railway Co. (L. R. 4 Q. B. 379), 1346. Reager v. Kendall ( — Ky. App. ) : 901, 905, 906. Reber v. Schitler (141 Pa. St. 640), 658. Rechten v. McGary (117 Ind. 132), ,1181. Rector Provision Co. v. Sauer (69 Miss. 235), 445. Redding v. Godwin (44 Minn. 355), 1843. Redding v. Wright (49 Minn. 322), 1841. Redenbaugh v. Kelton (130 Mo. 558), 599, 603. Redewill v. Gillen (4 N. Mex. 72), 599. TABLE OF CASES CITED. clxix References are to sections: Vol. I, §§ 1-797; Yol. n, §§ 798-1850. Redfield v. Buck (35 Conn. 328), 973, 974. Redgrave v. Hurd (20 Ch. Div. 1). 863. Redington v. Roberts (25 Vt, 686), 906. Redman v. Durant, State ex reL (53 Ma App. 493). 964 Redmond v. Smock (28 Md. 365), 1633. Redpath v. Brown (71 Mich. 258), 923. Re ius v. Holcomb ( — Miss. — ), 441. 445. Red Wing Mfg. Co. v. Moe (62 Wis. 240), 1255. Reed, In re (3 Ch. Div. 123), 269. Reed v. Baggott (5 111. App. 257), 175. Reed v. Boshears (4 Sneed, 118), . Reed v. Bremer (90 Tex. 144), 1022. Reed v. Hastings (61 111. 266), 1235, 1237, 1242, 1254, 1255. Reed v. Newcomb (64 Vt. 49), 138. Reed v. Randall (29 N. Y. 358), 1340, 1380, 1390, 1391, 1302. 1395. Reed v. Reed (70 Me. 504), 960. Reed v. Starkey (69 Vt. 200 , 588, 597. Reed v. Upton (10 Pick. 522), 554. Reed v. Van Ostrand (1 Wend. 424). Reeder v. Machen (57 Md. 56), 714. Reeder v. Moore (95 Mich. 594), 92*. Reeder Bros. Shoe Co. v. Prylinski (102 Mich. 468). 9 J, 922. Rees v. Mitchell (41 111. 36S), 960. Reese v. Bates (94 Va. 321), 1235, 1242. 1281, 1282, 1284. Reese v. Miles (99 Tenn. 398), 1817, 1820, 1833, 1834 Reese River Mining Co. v. Smith (L. R. 4 H. L. 64), 857, 876. Reeves v. Corning (51 Fed. R. 774), 871, 872, 934. Reeves v. Corrigan (3 N. Dak. 415), 1254 Reeves v. Sebern (16 Iowa, 234), 38. Reggio v. Braggiotti (7 Cush. 166), 1798, 1817, 1834, 1843. Regier v. Craver (54 Neb. 507), 603. Reherd v. Clem (86 Va. 374), 29. Reichwald v. Commercial Hotel Co. (106 III. 439), 141. Reid v. Diamond Plate Glass Co. (54 U. S. App. 619), 438 Reid v. Cowduroy (79 Iowa, 169), 892, 901, 906. Reid v. Field (83 Va. 26), 1374. Reid v. Hoskins (4 E. & B. 979), 1097. Reid v. Hoskins (5 EL & BL 729), 1088 Reid v. Hoskins (6 EL & BL 953), 1089. Reid v. Kempe (74 Minn. 474), 896. Reid v. Lloyd (67 Mo. App. 513), 901. Reiger v. Worth (127 N. C. 230), 1823. Reinhart v. Gregg (8 Wash. 191), 390. Remick v. Sandford (120 Mass. 309 , 358, 359, 369, 372, 395, 403. Remick v. Sandford (118 Mass. 102), 446, 464, 405. Renninger v. Spate (128 Pa, St 524', 952, 960, 964, 988. Renoe v. Western Milling Co. (53 Kan. 255), 603. Renselaer, etc. R. R. Co. v. Davis (43 X. Y. 137>, 112. Rentch v. Long (27 Md. 188), 323. Restad v. Engemoend (65 Minn. 148), 499, 508. Reticker v. Katzenstein (26 111. App. 33), 906. Reuter v. Sala (4 C. P. D. 239), 1141, 1145, 1161, 1168 Revercomb v. Duker (74 Mo. App. 570), 96L Rew v. Payne. (1 C. P. D. 47), 787. Rex v. Whitnash (7 B. & C. 596), 1052. Reynell v. Sprye (1 De Gex, M. & G. 660), 1001. Reynolds v. Boston & Me. R. Co. (43 X. H. 5S0), 1537. 1542, 1556, 1606. Reynolds v. Continental Ins. Co. (36 Mich. 131), 1445. clxx TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-707; Vol. II, §§ 708-1850. Keynolcls v. Crawfordsville Nat. Bank (112 U. S. 405), 1046. Reynolds v. Ferree (86 111. 570), 1455. Reynolds v. Franklin (44 Minn. 30), 1843. Reynolds v. McCurry (100 111. 356), 109. Reynolds v. Palmer (21 Fed. R. 433), 1298, 1320. Reynolds v. Sweetzer (15 Gray, 78), 184. Reynolds v. Waller (1 Wash. 164), 87. Rhine v. Blake (59 Tex. 240), 1455. Rhines v. Phelps (3 Gilm. 455), 960. Rhoades v. Castner (12 Allen, 132), 429. Rhoades v. Fuller (139 Mo. 179), 74. Rhode v. Thwaites (6 B. & C. 388), 729. Rhode Island Loco. Works v. Lumber Co. (91 Ga. 639), 599, 603. Rhodes v. Belchee (36 Oreg. 141), 1453. Rhodes v. Cotton (90 Me. 453), 1134. Rhodes v. Forwood (L. R. 1 App. Cas. 256), 263. Rice v. Boyer (108 Ind. 472), 95, 98, 107, 116. Rice v. Butler (160 N. Y. 578), 119, 132. Rice v. Churchill (2 Denio, 145), 734, 1124. Rice v. Codman (1 Allen, 377), 1262, 1337. Rice v. Cutler (17 Wis. 351), 1507. Rice v. Forsyth (41 Md. 389), 1311, 1348. Rice v. Glass Co. (88 111. App. 407), 1633. Rice v. Groffmann (56 Mo. 434), — . Rice v. Manley (66 N. Y. 82), 1643. Rice v. Nixon (97 Ind. 97), 25. Rice v. Western Fuse Co. (64 111. App. 603), 207. Richards v. Borroughs (62 Mich. 117), 361. Richards v. Fuller (37 Mich. 161), 255. Richards v. Green (23 N. J. Eq. 536), 449. Richards v. Porter (6 B. & C. 437), 427. Richards v. Railroad Co. (44 N. H. 136), 141. Richards v. Schreiber (98 Iowa, 422), 619. Richards v. Shaw (67 111. 222), 831, 1162, 1846. Richardson v. Brown (1 Bing. 344), 1251. 1276. Richardson v. Buhl (77 Mich. 632), 208. Richardson v. Coffman (87 Iowa, 121), 1235, 1242. Richardson v. Cooper (25 Me. 450), 1151. Richardson v. Dunn (2 Q. B. 222), 242, 746. Richardson v. Goss(3 Bos. & Pul. 119), 1577. Richardson v. Grandy (49 Vt. 22), 1237, 1811. Richardson v. Great Western Mfg. Co. (3 Kan. App. 445), 594. Richardson v. Hooper (13 Pick. 446), 804. Richardson v. Johnson (1 La. Ann. 389), 1272. Richardson v. Marshall County (100 Tenn. 346), 1303, 1332. Richardson v. Mason (53 Barb. 601), 1266. Richardson v. Nathan (167 Pa. St. 513), 792. Richardson v. Nob;e (77 Me. 390), 937. Richardson v. Olmstead (74 111. 213), 21. Richardson v. Plate (93 Ind. 423), 79. Richardson v. Rardin (88 111. 124), 960. Richardson v. Strong (13 Ired. L. 106), 84. Richardson Drug Co. v. Teasdall (52 Neb. 698), 613, 636, 637, 642. TABLE OF CASES CITED. clxxi References are to sections: Vol. I, §§ 1-797; "Vol. H, §§ 798-1850. Richardson Dry Goods Co. v. Good- kind (22 Mont. 462), 896, 898. Richart v. People (19 111. 85), 55. Richey v. Daemicke (86 Mich. 647), 1240. Richmond v. Crudup (Meigs, 581), 960. Richmond v. Foss (77 Me. 590), 1050. Richmond v. Mississippi Mills (52 Ark. 30), 892, 894. Richmond v. Moore (107 111. 429), 1052. Richter v. Frank (41 Fed. R. 859), 1037. Rickard v. Moore (38 L. T. 841), 369. Ricker v. Cross (5 N. H. 571), 483, 981, 987, 1201. Ricker v. Ham (14 Mass. 137), 953. Ricketts v. Sisson (9 Dana, 35:>), 1350, L852. Rickey v. Ten Broeck (63 Mo. 563), 401, 163a Riddle v. Brown (20 Ala. 412), 336. Riddle v. Varnum (20 Pick. 280), 499, 502, 518, 519, 52 1. Riddle v. Webb (110 Ala. 599), 1268, 1305. Rider v. Kelley (32 Vt 268), 754, 763. Ridgeway v. Herbert (150 Mo. 606), 109. Ridgeway v. Kennedy (52 Mo. 24), 599. Ridgeway v. Underwood (4 Wash. C. C. 129), 973. Ridgeway v. Wharton (6 H. L. Cas. 238), 235, 426. Ridgley v. Mooney (16 Ind. App. 362), 1633, 1690. Riendeau v. Bullock (147 N. Y. 269), 1074. Rigg v. Reading, etc. St. Ry. Co. (191 Pa. St. 298), 1718, 1728. 1733. Riggs v. Thorpe (67 Minn. 217), 875. Riggan v. Greene (80 N. C. 236), 72. 77. Riggins v. Railroad Co. (73 Mo. 598), 264. Rigney v. Monette (47 La. Ann. 648), 1778. Riley v. Farnsworth (116 Mass. 223), 428, 443. Riley v. Hale (158 Mass. 240), 1089. Riley v. Mallory (33 Conn. 201), 109, 116, 119. Riley v. Vaughan (116 Mo. 169), 953. Rinchler v. Jeliffe (9 Daly, 469), 1357. Rindskopf v. De Ruyter (39 Mich. 1), 365, 731. Rinehart v. Olwine (5 W. & S. 162), 1664 Riordan v. Doty (50 S. C. 537), 1039. Ripley v. .Etna Ins. Co. (30 N. Y. 136), 1070. Ripley v. Case (78 Mich. 126), 839, 932, '940, 1850. Rising v. Patterson (5 Whart. 316), 1420. Risinger v. Cheney (7 111. 84), 1106. Ritchie v. Atkinson (10 East, 295), 1163. Ritter v. Singmaster (73 Pa. St. 400), 1422. Rivers v. Gregg (5 Rich. Eq. 274), 127, 129, 130, 132. Riverside Iron Works v. Hall (64 Mich. 165), 1423, 1425, 1431. Rob bins v. Chipman (1 Utah, 335), 702. Robbins v. Chipman (2 Utah, 347), 702. Robbins v. Clark (129 Mass. 145), 673. Robbins v. Eaton (10 N. H. 562), 109, 121. Robbins v. Oldham (1 Duvall, 28), 964. Robbins v. Phillips (68 Mo. 100), 599, 624. Roberts v. Applegate (153 111. 210), 1242, 1243. Roberts v. Beatty (2 Pen. & Watts, 67), 41. Roberts v. Brett (11 H. L. Cas. 337), 1134. Roberts v. Burr ( — Cal. — ), 964. Roberts v. Fisher (43 N. Y. 159), 1430. clxxii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 708-1850. Roberts v. French (153 Mass. 60), 882, 938. Roberts v. Hawn (20 Colo. 77), 964. Roberts v. Hunt (61 Vt. 612), 599, 603. Roberts v. Jenkins (21 N. H. 116), 1270. Roberts v. Radcliff (35 Kan. 502), 904. Roberts v. Ward (4 McLean, 565', 834, Roberts v. Wiggin (1 N. H. 73), 109. Robertson v. Clarkson (9 B. ? Ion. 507), 1272. Robertson v. Hays (83 Ala. 290), 1045. Robertson v. Hunt (77 Tex. 321), 492. Robertson v. Strickland (28 Up. Can. Q. B. 221), 520. Robertson v. Vaughn (5 Sandf. 1), 305, 307. Robeson v. French (12 Mete. 24), 1056. Robinson v. Anderson (106 Ind. 152), 1455. Robinson v. Batchelder (4 N. H. 40), 1151. Robinson v. Berkey (100 Iowa, 136), 1384, 1813. Robinson v. Berry (93 Me. 320), 120. Robinson v. Bland (2 Burr. 1077), 1004. Robinson v. Brooks (40 Fed. R. 525), 1083, 1134. Robinson v. Chapline (9 Iowa, 91), 599. Robinson v. Chemical Bank (86 N. Y. 404), 1461. Robinson, Constable, v. Cooper (1 Hill, 286), 1307. Robinson v. Fairbanks (81 Ala. 132), 676. Robinson v. Green (3 Mete. 159), 1004. Robinson v. Harvey (82 111. 58), 1235, 1237. Robinson v. Holt (39 N. H. 557), 642. Robinson v. Hyer (35 Fla. 544), 1763. Robinson v. Levi (81 Ala. 134), 148, 878, 895, 903, 904. Robinson v. Mollett (L. R. 7 H. L. 802), 467. Robinson v. Morgan (65 Vt. 37), 1474, 1476, 1500, 1502, 1521. Robinson v. McNeill (51 HI. 225), 1254. Robinson v. Noble (8 Pet. 181), 1167. Robinson v. Page (3 Russ. 114), 804. Robinson v. Pogue (86 Ala. 257), 788, £09, 1182. Robinson v. Stewart (10 N. Y. 189), 957, 975. Robinson v. Stuart (68 Me. 61), 1194. Robinson v. Weeks (56 Me. 102), 122. Robinson Mach. Works v. Chandler (56 Ind. 575), 1347. Robinson Mercantile Co. v. Thomson (74 Miss. 847), 187. Robison v. Tyson (46 Pa. St. 286), 1130. Robson v. Bohn (27 Minn. 333), 1148. Robson v. Drummond (2 B. & Ad. 303), 1097. Robson v. Miller (12 S. C. 586), 1240, 1251, 1344. Robson v. Watts (11 Tex. 764), 1455. Roby v. West (4 N. H. 285), 1048. Rocco v. Frapoli (50 Neb. 665), 996. Rocheblave v. Potter (1 Mo. 561), 960. Rochester Distilling Co. v. Rosey (142 N. Y. 570), 202. Rochester Oil Co. v. Hughey (56 Pa. St. 322), 728, 735, 750. Rockafeller v. Merritt (40 U. S. App. 666), 1843. Rockafellow v. Baker (41 Pa. St. 319), 880. Rockford, etc. R. Co. v. Lent (63 111. 288), 1161. Rock Island Plow Co. v. Meredith (107 Iowa, 498), 1387. Rockwell v. Humphrey (57 Wis. 410), 578. Rodee v. Wade (47 Barb. 53), 41, 711. Rodger v. Comptoir L'Escompte (L. R. 2 Pr. Coun. 393), 1565. Rodgers v. Bach man (109 Cal. 552), 564, 588, 597, 599, 614, 620, 625. Rodgers v. Bass (46 Tex. 505), 1455. Rodgers v. Jones (129 Mass.- 420), 377, 386, 392. Rodgers v. Niles (11 Ohio St. 48), 1317, 1340, 1344, 1346. TABLE OF CASES CITED. clxxiii References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Rodgers v. Perrault (41 Kan. 385), 1254, 1255. Rodick v. Coburn (68 Ma 170), 1455. Rodliff v. Dallinger (141 Mass. 1), 149, 269, 887. Rodman v. Guilford (112 Mass. 405), 757, 1162. Rodman v. Thalheimer (75 Pa. St. 232), 904, 906. Rodwell v. Phillips (9 M. & W. 501), 343. Roe v. Bacheldor (41 Wis. 300), 1260. Roebling Son's Co. v. Lock Stitch Fence Co. (130 111. 660), 1088, 1089, 1090, 1633, 1643, 1707. Roehm v. Horst (178 U. S. 1), 1089, 1700, 175S. Rogers v. Abbott (128 Mass. 102), 971. Rogers v. Blackwell (49 Mich. 192), 72, 79. Rogers v. Burr (105 Ga. 432), 331. Rogers v. Cox (96 Ind. 157), 334. 645. Rogers v. Evans (3 Ind. 574), 952. Rogers v. Hanson (35 Iowa, 283), 816, 1805. Rogers v. Highland (69 Iowa, 504), 636. Rogers v. Humphrey (39 Me. 382), 1050. Rogers v. Niles (11 Ohio St. 48), 1314. Rogers v. Rogers (139 Mass. 440), 806. Rogers v. Thomas (20 Conn. 53), 1540, 1542, 1612. Rogers v. Van Hoesen (12 Johns. 221), 1127, 1130. Rogers v. Walker (6 Pa. St. 371), 68, 77. Rogers v. Whitehouse (71 Me. 222), 556, 597, 601. Rogers v. Woodruff (23 Ohio St. 632), 652. Rogers Locomotive Works v. Lewis (4 Dill. 158), 603. Roget v. Merritt (2 Caines, 117), 1430. Rohde v. Thwaites (6 B. & C. 388), 759. Rohn v. Dennis (109 Pa. St. 504), 564. Roland v. Gundy (5 Ohio, 202), 269. Romaine v. Van Allen (26 N. Y. 307), 1787. Roman v. Bressler (49 Neb. 368;, 361, 1391. Romeo v. Martucci (72 Conn. 504), 601. Romero v. Newman (50 La. Ann. 80), 1103. Rommel v. Wingate (103 Mass. 327), 746, 1134, 1158. Rondeau v. Wyatt (2 H. BL 63), 297, 298, 299. Rood v. Welch (28 Conn. 157), 960. Roof v. Pulley Co. (36 Fla. 284), 599. Roof v. Stafford (7 Cow. 179), 107, 109. Roome v. Jenning (2 N. Y. Misc. R. 257), 910. Root v. French (13 Wend. 570), 923. Roper v. Johnson (8 Com. PI. 167), 1711, 1746, 1753. Ropes v. Allen (11 Allen, 591), 991. Ropes v. Lane (9 Allen, 502), 714, 725, 964. Roquemore v. Alloway (33 Tex. 461), 1024. Rose v. Beatie (2 Nott & McC. 538), 1322. Rose v. Brown (11 W. Va. 122). 973. Rose v. Colter (76 Ind. 590), 960. Rose v. Mitchell (6 Colo. 102), 1013. Rose v. Story (1 Pa. St. 190), 32, 580. Roseman v. Canovan (43 Cal. 110), 881, 1272. Rosenbaum v. Weeden (18 Gratt. 785), 1633, 1637, 1640, 1642, 1682. Rosenblatt v. Townsley (73 Mo. 536), 1055. Rosenfield v. Swenson (45 Minn. 190), 1382, 1392. Rosenthal v. Kahn (19 Oreg. 571), 520, 673. Rosenthal v. Risley (11 Iowa, 541), 714. Rosevear China Clay Co., Ex parte (11 Ch. Div. 560), 741, 1550, 1561. Ross v. Allen (45 Kan. 231), 434. clxxiv TABLE OF CASES CITED. References are to sections: Vol. Ross v. Draper (55 Vt. 404), 964. Ross v. Miner (67 Mich. 410), 902, 904, 905. Ross v. McDuffie (91 Ga. 120), 569. Ross v. Welch (11 Gray, 235), 1199. Ross-Mehan Foundry Co. v. Ice Co. (72 Miss. 608), 592. Rossiter v. Miller (3 App. Cas. 1124), 235, 434, 435. Rossman v. McFarland (9 Ohio St. 369), 1044. Roswald v. Hobbie (85 Ala. 73), 955. Roth v. Palmer (27 Barb. 652), 912, 1411. Roth & Co. v. Taysen & Co (73 L. T. R 628), 1707. Rothwell v. Alves (60 111. App. 156), 492. Roundtree v. Baker (52 111. 241), 1043. Rourke v. Bullens (8 Gray, 549), 508. Routledge v. Grant (4 Bing. 653), 228, 252, 253. Rovegno v. Defferari (40 Cal. 459), 27S. Rowe v. Blanchard (18 Wis. 441), 834. Rowe v. Osborne (1 Stark. 140), 468. Rowe v. Pickford (8 Taunt. 83), 1577. Rowe v. Sharpe (51 Pa. St. 26), 32, 580, 600. Rowland v. Shelton (25 Ala. 217), 1794, 1798. Rowley v. Bigelow (12 Pick. 307), 148, 902, 905, 923, 1523, 1548, 1551, 1612. Royal v. Aultman-Taylor Co. (116 Ind. 424), 1073. Rozier v. Williams (92 111. 187). 960. Rubber Co. v. Adams (23 Pick. 256), 880. Rubin v. Sturtevant (51 U. S. App. 286), 1395, 1398, 1802. Ruck v. Hatfield (5 B. & Aid. 632), 774, 1497. Rucker v. Donovan (13 Kan. 251), 1531, 1571. 1579, 1606, 1608, 1612. Ruck man v. Bergholz (37 N. J. L. 437), 1046, 1051. I, §§ 1 79T; Vol. n, §§ 798-1850. Rudy v. Austin (56 Ark. 73), 973, 974. Ruff v. Jarrett (94 111. 475), 1255. Ruff v. Rinaldo (55 N. Y. 664), 1079, 1389. Rugg v. Minett (11 East, 210), 515, 1413. Rugg v. Moore (110 Pa. St. 236), 1148, 1163. Ruggles v. First Nat. Bank (43 Mich. 192), 342. Rumpf v. Barto (10 Wash. 382), 30, 160. Rumsey v. Berry (65 Me. 570), 1031, 1032. Rundlett v. Weeber (3 Gray, 263), 1004. Ruohs v. Third Nat. Bank (94 Tenn. 57), 1303, 1332. Rupley v. Daggett (74 111. 351), 278. Rushing v. Clancy (92 Ga. 769), 138. Rusk v. Fenton (14 Bush, 490), 77. Russell, Ex parte (19 Ch. D. 588), 974. Russell v. Bandeira (13 C. B. 149), 1106.. Russell v. Carrington (42 N. Y. 118), 711. Russell v. Long (52 Iowa, 250). 139. Russell v. Meyers (32 Mich. 522), 336. Russell v. Minor (22 Wend. 659), 546, 1437. Russell v. Murdock (79 Iowa, 101), 1057, 1384. Russell v. Nicoll (3 Wend. 112), 513, 652. Russell v. O'Brien (127 Mass. 349), 1193, 1194. Russell v. Richards (10 Me. 429) 335, 336. Russell v. Savings Bank (39 Mich. G71), 137. Russell v. Southard (12 How. 139), 40. Russell & Co. v. Lilienthal (36 Oreg. 105), 1398. Rutan v. Hinchman (30 N. J. L. 255), 328. Rutan v. Ludlam (29 N. J. L. 398), 1817, 1818. TABLE OF CASES CITED. clxxv References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-18. c 0. Ruthrauff v. Hageubuch (58 Pa. St. 103), 485, 503. Ryan v. Brant (42 111. 78), 915. Ryan v. Hall (13 Mete. 520), 446. Ryan v. McLane (91 Md. 175), 1727. Ryan v. Ryan (97 111. 38), 947. Ryan v. Smith (165 Mass. 303), 133. Ryan v. Ulmer (108 Pa. St. 332), 1245, 1298, 1334. 1336. Ryan v. Wayson (108 Mich. 519), 595, 605, 613. 630. Ryder v. Cooley (58 Conn. 367), 565. Ryder v. Hathaway (21 Pick. 298), 642. Ryder v. Neitge (21 Minn. 70), 1356, 1357. Ryder v. Wombwell (L. R 4 Ex. 32), 130, 132. Ryerson v. Chapman (66 Me. 557), 1798. Rylands v. Kreitman (19 C. B. 351), 1158. Ryle v. Loom Works (87 Fed. R. 976), 600. Rynearson v. Turner (52 Mich. 7), 971. Sabre v. Smith (62 N. H. 663), 434, 438, 449. Safford, Ex parte (2 Low.). 563. Safford v. Grout (120 Mass. 20), 882. Safford v. McDonough (120 Mass. 290), 386, 542, 725, 1474, 1670. Sage v. Sleutz (23 Ohio St. 1), 569, 588. Sale v. Lambert (L. R. 18 Eq. 1), 435. Salisbury v. Stainer (19 Wend. 159), 1322. Salle v. Light (4 Ala. 700), 1798. Salmon v. Boykin (66 Md. 541), 1138, 1139, 1161. Salmon Falls Mfg. Co. v. Goddard (14 How. 447), 426, 434, 436, 439, 451, 455, 456. Salt Co. v. Guthrie (35 Ohio St. 666), 208. Salte v. Field (5 T. R 211), 1591. 1592. Salter v. Burt (20 Wend. 205), 1135. Salter v. Woollams (2 Man. & Gr. 650), 1192, 1193. Saltus v. Everett (20 Wend. 267), 154, 156, 269, 890, 923. Salvo v. Duncan (49 Wis. 151), 1831. Sample v. Bridgforth (72 Miss. 293), 276. Sampson v. Townsend (25 La. Ann. 78), 1022. Sampson v. Williamson (6 Tex. 102), 8. Samuel v. Cheney (135 Mass. 278), 887. Samuels v. Guin (49 Mo. App. 8), 1273. San Antonio Brewing Ass'n v. Arctic Mfg. Co. (81 Tex. 99), 603. Sanborn v. Benedict (78 111. 309), 202, 1130, 1189, 1691. Sanborn v. Chamberlin (101 Mass. 409), 461. Sanborn v. Chittenden (27 Vt. 171), 565. Sanborn v. Flagler (9 Allen, 474), 434, 438, 451. Sanborn v. Kittredge (20 Vt. 632), 964. Sanborn v. Shepherd (59 Minn. 144), 1407. Sandage v. Studabaker Bros. Mfg. Co. (142 Ind. 148), 833. Sandeman v. Scurr (L. R. 2 Q. B. 86), 1549. Sanders v. Chandler (26 Minn. 273), 974 Sanders v. Jameson (2 C. & K. 557), 1377. Sanders v. Johnson (29 Ga. 526), 1052. Sanders v. Keber (28 Ohio St. 630), 269, 573, 599, 887. Sanders v. Muegge (91 Ind. 214), 953. Sanders v. Norton (4 T. B. Mon. 464), 1417. Sanders v. Wilson (19 D. C. 555), 569. Sandford v. Handy (23 Wend. 260), 'jaT, 1281. clxxvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II. §§ 798-1850. Savage Mfg. Co. v. Armstrong (19 Sand ford v. Wiggins Ferry Co. (27 Ind. 522), 755. Sands v. Codwise (4 Johns. 596), 945, 978. Sands v. Potter (165 111. 397), 64 Sands v. Taylor (5 Johns. 395), 1320, 1329, 1629, 1630, 1643, 1680. Sandwich Mfg. Co. v. Feary (34 Neb. 411), 823, 1384. Sanford v. Dodd (2 Day, 437), 916. Sanger v. Dun (47 Wis. 615), 266. Sanger v. Hibbard ( — Ind. Ter. — ), 109. Sanger v. Waterbury (116 N. Y. 371), 498, 519. Sannoner v. King (49 Ark. 299), 950. Santa Clara Mill & Lbr Co. v. Hayes (76 Cal. 387), 1003. Sarbecker v. State (65 Wis. 171), 739, 740, 777, 1181. Sargent v. Butts (21 Vt. 99), 1057. Sargent v. French (54 Vt 384), 138. Sargent v. Currier (49 N. H. 310), 1797. Sargent v. Gile (8 N. H. 325), 588. Sargent v. Metcalf (5 Gray, 306), 549, 555, 599, 601. Sari v. Bourdillon (1 C. B., N. S., 188), 430. Satterlee v. Cronkhite (114 Mich. 634), 630. Sattler v. Hallock (160 N. Y. 291), 23. Saunders v. Bartlett (12 Heisk. 316), 51, 752. Saunders v. Hackney (10 Lea, 194), 451. Saunders v. Hatterman (2 Ired. L. 32), 880. Saunders v. Ott (1 McCord, 572), 132. Saunders v. Topp (4 Exch. 390), 1379. Saunderson v. Jackson (2 B. & P. 238), 428, 451, 456. Savage v. Everman (7 Pa. St. 315), 1420. Savage v. Murphy (34 N. Y. 508), 975. Savage v. Stevens (126 Mass. 207), 875. Me. 147), 1128. Savannah Cotton Press v. Maclntyre (92 Ga. 166), 603. Saveland v. Green (40 Wis. 431), 247. Savery v. Spence (13 Ala. 561), 1719. Saville v. Tailored (1 Ves. Sr. 101), 1719. Savings Bank v. Albee (63 N. H. 152), 878. Sawdon v. Andrews (30 L. T., N. S., 23), 1770. Sawyer v. Brossart (67 Iowa, 678), 228. Sawyer v. Dean (114 N. Y. 469), 1638, 1643. Sawyer v. Gerrisli (70 Me. 254), 200. Sawyer v. Joslin (20 Vt. 172), 1576, 1577, 1599. Sawyer v. Luf kin (56 Me. 308), 84. Sawyer v. Railway Co. (22 Wis. 402), 549, 1148. Sawyer v. Smith (109 Mass. 220), 1046. Sawyer v. Taggart (14 Bush, 727), 1032. Sawyer v. Ware (36 Ala. 675), 324, 328. Saxe v. Penokee Lbr. Co. (159 N. Y. 371), 1736, 1738. Sayles v. Cox (95 Tenn. 579), 49. Sayles v. Wellman (10 R. I. 465), 1057. Scales v. Wiley (68 Vt. 39), 308. Scanlan v. Cobb (85 111. 296), 74. Scanlan v. Geddes (112 Mass. 15), 437. Scarbrough v. Alcorn (74 Tex. 358), 485. Scarlett v. Snodgrass (92 Ind. 262), 138. Schaible v. Ardner (98 Mich. 70), 970. Schankel v. Moffatt (53 I1L App. 382), 1013. Schaps v. Lehnen (54 Minn. 208). 77. Scharpf v. Meyer (133 Mo. 428), 549, 550, 736, 779, 791, 792. Schell v. Stephens (50 Mo. 375), 1302. Schenck v. Saunders (13 Gray, 32), 23. TABLE OF OASES CITED. clxxvii References are to sections: Vol Schenectady Stove Co. v. Holbrook (101 N. Y. 45), 224. Schindler v. Houston (1 Denio, 48), 478. Schindler v. Westover (99 Ind. 393), 25. Schlee v. Guckenheimer (179 111. 593), 1043. Schlesinger v. St rat ton (9 R. L 578), 078. 681, 682. Schloss v. Feltus (96 Mich. 619), 923, 924. 925, 1370, 1375. Schmentz v. Dwyer (53 Pa. St. 335), 736. Schmidt v. Nunan (63 Cal. 371). 750. Schmidt v. Thomas (75 Wis. 529), 358, 361. Schneider v. Heath (3 Camp. 506), 933. Schneider v. Norris (2 M. & S. 286), 451. Schneider v. Oregon Co. (20 Oreg. 172), 1412, 1662, 1674. Schneider v. Sansom (62 Tex. 201), 144. Schneider v. Turner (130 111. 28), 1034, 1043. Schnitzer v. Oriental Print Works (114 Mass. 123), 1328. Schoenberger v. City of Elgin (164 111. 80), 1351. Schofield v. Schiffer (156 Pa. St. 65), 905, 918. Scholefield v. Robb (2 Mood. & R. 210), 1270. Scholfield Gear & Pully Co. v. Schol- field (71 Conn. 1), 875, 1840. School Directors v. Trafethren (10 Bradw. 127), 253, 257. Schoonmaker v. Keely (42 Hun, 299), 915, 917, 919. Schopp v. Taft (106 Iowa, 612), 1391. Schotsmans v. Railway Co. (2 Ch. App. 332), 735, 779, 787), 1526, 1545, 1548, 1550, 1620. Schrader v. Hoover (80 Iowa, 243), 139. I, §§ 1-797; Vol. H, §§ 798-1850. Schramm v. Boston Sugar Ref. Co. (146 Mass. 211), 1254, 1690. Schram v. Strousel (28 S. W. R. 262), 895. Schramm v. Taylor (51 Kan. 547), 955. Schubert v. Clark (49 Minn. 331), 878. Schuchardt v. Aliens (1 Wall. 359), 1281, 1287, 1320. 1810. Schuff v. Ranson (79 Ind. 458), 72, 73. Schumacher v. Allis (70 111. App. 556), 647. Schuruaker v. Mather (133 N. Y. 590), 1841. Schurmeier v. English (46 Minn. 306), 1835. Schuyler v. Russ (2 Caines, 202), 1272. Schwartz v. McCloskey (156 Pa. St. 258), 914. Schwenk v. Wyckoff (46 N. J. Eq. 560), 200. Scott v. Brown (2 Q. B. 724), 995. Scott v. Dry Goods Co. (48 Mo. App. 521), 1590. Scott v. England (2 DowL & L. 520), 1674. Scott v. Gilmore (3 Taunt. 226), 1004. Scott v. Hix (2 Sneed, 192), 1302. Scott v. Hough (151 Pa. St. 630), 620. Scott v. Irving (1 B. & Ad. 605), 1455. Scott v. King (12 Ind. 203), 714. Scott v. Kittanning Coal Co. (89 Pa. St. 231), 1145, 1148. Scott v. Littledale (S E. & B. 815), 848. Scott v. McGrath (7 Barb. 53), 1281. Scott v. Pettit (3 Bos. & Pul. 469), 1577. Scott v. Railway Co. (12 M. & W. 38), 283, 349. Scott v. Raymond (31 Minn. 437), 1394. Scott v. Renick (1 B. Mon. 63), 1314, 1355. Scott v. Scott (2 A. K. Marsh. 217), 1302, 1795. Scott v. Warner (2 Lans. 49). 274. Scott v. Wells (6 Watts & S. 368), 519, 524. clxxviii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Scott Lumber Co. v. Hafner-Lotliam Mfg. Co. (91 Wis. 667), 1811, 1690. Scotten v. Sutter (87 Mich. 526), 499, 516. Scranton v. Clark (39 N. Y. 220), 1302, 1305. Scranton v. Steward (52 Ind. 68 >, 108. Screws v. Roach (22 AK 675), 508. Scriven v. Moote (36 Mich. 64), 342. Scroggin v. Wood (87 Iowa, 497), 684, 875. Scudder v. Bradbury (106 Mass. 422), 541, 549, 564. Scudder v. Worster (11 Cush. 573), 695, 714. Scully v. Dodge (40 Kan. 395), 1455. Scull v. Shakespear (75 Pa. St. 297), 755. Seale v. Baker (70 Tex. 283), 878. Seals v. Robinson (75 Ala. 363), 973. Seanor v. McLaughlin (165 Pa. St. 150), 619, 620. Searcy v. Hunter (81 Tex. 644), 132. Searle v. Galbraith (73 111. 269), 67. Seattle Board of Trade v. Hayden (4 Wash. 263), 138. Seattle Ry. Co. v. Brewing Co. (5 Wash. 462), 1410. Seaver v. Phelps (11 Pick. 304), 74, 77, 79. Seavy v. Potter (121 Mass. 297), 909. Seavy v. Dearborn (19 N. H. 351), 953. Sebastian May Co. v. Codd (77 Md. 293), 1426. Seckel v. Stott (66 111. 106), 498, 527. Secomb v. Nutt (14 B. Mon. 261). 1540, 1556, 1602. Second Nat. Bank v. Cummings (89 Tenn. 609), 779. Second Nat. Bank v. Walbridge (19 Ohio St. 419), 1507. Second Nat. Bank v. Wentzell (151 Pa. St. 142), 1429. Secret Service Co. v. Gill-Alexander Mfg. Co. (125 Mo. 140), 1729. Security Bank v. Luttgen (29 Minn. 363), 774, 779. Sedgwick v. Cottingham (54 Iowa, 512), 524, 527, 529, 1081, 1128, 1189. Seed v. lord (66 Me. 580), 552. Seeger v. Duthie (8 C. B., N. S., 45), 861. Seekonk v. Rehoboth (8 Cush. 371), 1136. Seeley v. Price (14 Mich. 541), 65. Seeley v. Welles (120 Pa. St. 69), 8 Seeligson v. Lewis (65 Tex. 215), 203 1031, 1039. Seeligson v. Philbrick (30 Fed. R 600), 774. Segrist v. Crabtree (131 IT. S. 287) 564. 586, 632, 1423. Seidenbender v. Charles (4 Serg. & R 151), 1046. Seigwarth v. Leppel (76 Pa. St. ""V 1818. Seiple v. Irwin (30 Pa. St. 513), 1446 1447, 1448. Seim v. State (55 Md. 566), 55. Seitz v. Brewers' Refrigerating Co. (141 U. S. 510), 1254, 1256, 1349. Seixas v. Woods (2 Caines, 48), 1334. Selby v. Selby (3 Meriv. 2), 451. Selch v. Jones (28 Ind. 255), 336. Sellers v. Stevenson (163 Pa. St. 262), 1311. Selser v. Roberts (105 Pa. St. 242), 1320, 1321, 1334. Selway v. Fogg (5 M. & W. 83), 912, 1411. Semenza v. Brinsley (18 Com. B., N. S., 467), 1451. Sentance v. Poole (3 Car. & P. 1), 73. Sequin v. Peterson (45 Vt. 255), 189. Settle v. Garner (Oliphant, 86), 1270. Setz v. Refrigerating Co. (141 U. S. 510), 1314. Sewall v. Fitch (8 Cow. 215), 305, 307. Sewall v. Henry (9 Ala. 24), 689. Seward v. Jackson (8 Cow. 406), 972. Seweh v. Eaton (6 Wis. 490), 527. TABLE OF CASES CITED. clxx:x References are to sections: Vol. I, §§ 1-707; "Vol. n, §§ 703-1850. Sexton v. Graham (53 Iowa, 181), 25, 26, 612. Sexton v. Wheaton (8 Wheat. 229), 973, 975. Seymour v. Brown (19 John. 44), 22. Seymour v. Davis (2 Sandf. 239), 305. Seymour v. Farquhar (93 Ala. 292), 564, 585, 599. Seymour v. Montgomery (1 Keyes, 463), 755. Seymour v. Newton (105 Mass. 272), 1530, 1571. Seymour v. O'Keefe (44 Conn. 128), 962, 963. Shadbolt, etc. Iron Co. v. Topliff (85 Wis. 513), 261. Shaddon v. Knott (2 Swan, 358), 960. Shambaugh v. Current ( Iowa, ), 1336. Shand v. Bowes (1 Q. B. Div. 470), 653. Shand v. Bowes (2 App. Cas. 480), 1333. Shand v. Hanley (71 N. Y. 319), 973. Shardlow v. Cotterell (18 Ch. D. 280), 426. Sharman v. Brandt (L. R. 6 Q. B. 720), 452, 462, 467. Sharp v. Carroll (66 Wis. 62), 413. Sharpe v. Bettis ( — Ky. ), 1817, 1826. Sharpe v. San Pauls R. Co. (L. R. 8 Ch. App. 597), 673. Sharpless v. Gummey (166 Pa. St. 199), 896. Sharpless Bros. v. Derr (62 Mo. App. 359), 967. Shattuck v. Green (104 Mass. 42), 1302. Shauer v. Alterton (151 U. S. 607), 953. Shaul v. Harrington (54 Ark. 305), 964, 965, 984, 990. Shaw v. Badger (12 Serg. & R. 275), 1162. Shaw v. Carbrey (13 Allen, 462), 331. Shaw v. Carpenter (54 Vt. 155), 1004. Shaw v. Clark (6 Vt. 507), 1419. Shaw v. Hoffman (21 Mich. 157), 1709. Shaw v. Lady Ensley Coal Co. (147 III. 526), 1625. Shaw v. Mudd (8 Pick. 9), 41. Shaw v. Presbyterian Church (39 Pa. St. 226), 1428. Shaw v. Railroad Co. (101 U. S. 557), 166. Shaw v. Smith (48 Conn. 306), 755. Shaw v. Smith (45 Kan. 334), 210, 1334, 1345, 1354, 1823. Shaw v. Spooner (9 N. H. 197), 1004. Shaw v. Wilshire (65 Me. 485), 39, 960. Shaw Lumber Co. v. Manville ( — Idaho, — ), 361. Shawhan v. Van Nest (25 Ohio St. 490), 754, 1676, 1696. Shealey v. Edwards (73 Ala. 175), 206, 207, 1659. Shean v. Shay (42 Ind. 375), 970. Shearer v. Park Nursery Co. (103 Cal. 415), 1817, 1819. Sheffield v. Mitchell (31 App. Div. 266), 925. Sheffield Canal Co. v. Railway Co. (3 Rail. & Can. Cas. 121), 233. Sheffield Furnace Co. v. Hull Coal Co. (101 Ala. 446), 264, 741. Sheldon v. Capron (3 R. I. 171), 272. Sheldon v. Mann (85 Mich. 265), 955. Sheldon Co. v. Mayers (81 Wis. 627), 603. Sheley v. Whitman (67 Mich. 397), 433. Shelley v. Boothe (73 Mo. 74), 952, 955. Shelton v. Church (38 Conn. 416), 954. Shelton v. Ellis (70 Ga. 297), 278. Shelton v. Franklin (68 111. 333), 499, 516, 518. Shelton v. Gillett (79 Mich. 173), 1136. Shepard v. Pressey (32 N H. 50), 373, 51S. Shepard & Morse Lumber Co. v. Bur- roughs (62 N. J. L. 469), 1564, 1565. clxxx TABLE . OF CASES CITED. References are to sections: Vol. Shepherd v. Busch (154 Pa. St. 149), 1435, 1925, 1926. Shepherd v. Gilroy (46 Iowa, 193), 1254, 1259. Shepherd v. Harrison (L. R. 4 Q. B. 196), 780, 782, 785, 787. Shepherd v. Jenkins (73 Mo. 510), 834 Shepherd v. Kain (5 B. & Aid. 240), 1236, 1333, 1339. Shepherd v. Pybus (3 Man. & Gr. 868), 1317. Shepherd v. Trigg (7 Mo. 151), 960. Sheppard v. Newhall (54 Fed. R. 306), 1566. Sheppard v. Newhall (7 U. S. App. 544), 1586, 1587, 1612. Sherburne v. Shaw (1 N. H. 157), 434. Sherman v. Barnard (19 Barb. 291), 199. Sherman v. Rugee (55 Wis. 346), 1571, 1578. Sherman v. Transportation Co. (31 Vt. 162), 1305. Sherman Center Town Co. v. Leon- ard (46 Kan. 354), 1777, 1779. Sherwin v. National Cash Register Co. (5 Colo. App. 162), 258. Sherwood v. Walker (66 Mich. 568), 274, 275, 276, 424. Sheuer v. Goetter (102 Ala. 313), 923. Shickle v. Chouteau (10 Mo. App. 241), 1168. Shields v. Pettee (2 Sandf. 262), 652. Shields v. Pettee (4 N. Y. 122), 41. Shincller v. Houston (1 N. Y. 261), 358, 370, 376, 378, 382, 383. Shinn v. Bodine (60 Pa. St. 182), 1145. Shipman v. Seymour (40 Mich. 274), 923, 924. Shippen v. Bowen (122 U. S. 575), 1235, 1810. Shippey v. Eastwood (9 Ala. 198), 1045. Shipps v. Atkinson (8 Ind. App. 505), 1633. I, §§ 1-797; Vol. H, §§ 798-1850. Shipway v. Broadwood (1 Q. B. 369), 1397. Shipton v. Casson (5 B. & C. 386), 11C2. Shirk v. Shultz (113 Ind. 571), 118, 120. Shirley v. Shirley (7 Blackf. 452), 449. Shisler v. Baxter (109 Pa. St. 443), 1314, 1355. Shone v. Lucas (3 Dowling & Ry. 218), 1540. Shordan v. Kyler (87 Ind. 38), 1235. Short v. Ston- (8 Q. B. 358), 1097. Shnmpton v. Warmaok (72 Miss. 208), 1159. Shrock v. Crowl (83 Ind. 243), 97. Shropshire v. Barns (46 Ala. 188), 97. Shuenfeldt v. Junkermann (20 Fed. R. 357), 739. Shufeldt v. Pease (16 Wis. 659), 924. Shumway v. Rutter (7 Pick. 56), 981, 987. Shumway v. Rutter (8 Pick. 443), 483, 963. Shupe v. Collender (56 Conn. 489), 1395. 1807. Shurman v. Gassett (4 Gilm. 521), 1043. Shurtleff v. Willard (19 Pick. 202), 964. Shurts v. Howell (30 N. J. Eq. 418), 971. Sibley v. Hulbert (15 Gray, 509), 932. Sibley v. Tie (88 111. 287), 1189. Sidensparker v. Sidensparker (52 Me. 481), 955. Siegel v. Brooke (25 111. App. 207), 1304. Siegel, Cooper & Co. v. Eaton Co. (165 111. 550), 1100. Sievewright v. Archibald (17 Q. B. 103), 234, 468. Siffken v. Wray (6 East, 371), 1535, • 1591. Sigerson v. Harker (15 Mo. 101), 491. Sigerson v. Kahman (39 Mo. 206), 1485. TABLE OF CASES CITED. clxxxi References are to sections: Vol. I, §§ 1-797; Vol. II, $§ 798-1850. Silberman v. Clark (96 N. Y. 522), 741. Silberman v.' Monroe (104 Mich. 352), 924. Sillers v. Lester (48 Miss. 513), 202. Silsbury v. McCoon (3 N. Y. 379), 639. Silsby v. Boston & Albany R. Co. (176 Mass. 158), 547, 552, 557. Silsby Mfg. Co. v. Town of Chico (24 Fed. R. 893), 668. Silver Bow Mining Co. v. Lowry (6 Mont. 288), 564, 578. Silvernail v. Cole (12 Barb. 685), 199. Simmonds v. Humble (13 C. B. 258), 373. Simmons v. Green (35 Ohio St. 104), 1121, 1129. Simmons v. Law (3 Keyes, 219), 1264. Simmons v. Swift (5 B. & C. 862), 281, 515, 1119, 1129, 1485, 1670. Simmons Hardware Co. v. Mullen (33 Minn. 195), 356, 365. Simms v. McKee (25 Iowa, 341), 649. Simms v. Norris (5 Ala. 42), 126. Simon v. Johnson (105 Ala. 344), 1447, 1448. Simon v. Motivos (3 Burr. 1921), 461. Simons v. Busby (119 Ind. 13), 970. Simpson v. Alexander (35 Kan. 225), 1786. Simpson v. Commonwealth (89 Ky. 412), 451, 455. Simpson v. Crippin (L. R. 8 Q. B. 14), 1141, 1145, 1148. Simpson v. Eggington (10 Exch. 845), 1466. Simpson v. McKay (12 Ired. 141), 1270. Simpson v. Nicholls (3 M. & W. 240), 1057, 1058. Simpson v. Pegram(108 N. C. 407), 50. Simpson v. Petapsco Guano Co. (99 Ga. 168), 188. Simpson v. Potts (Oliphant's Law of Horses, 224), 1270. Simpson v. Shackleford (49 Ark. 63), 585, 599. Sims v. Eiland (57 Miss. 83), 875. m Sims v. Everhardt (102 U. S. 300), 108. Sims v. James (62 Ga. 260), 599. Sims v. Marryatt (17 Q. B. 281), 1301. Sinclair v. Hathaway (57 Mich. 60), 1344, 1356, 1357. Sinclair v. Healy (40 Pa. St. 417), 923. Sinclair v. Wheeler (69 N. H. 538). 603. Singer v. Schilling (74 Wis. 369), 924. Singer Mfg. Co. v. Bullard (62 N. H. 129), 585. Singer Mfg. Co. v. Cole (4 Lea, 439), 49, 569. Singer Mfg. Co. v. Graham (8 Oreg. 17), 569, 599. Singer Mfg. Co. v. Gray (121 N. C. 163), 569. Singer Mfg. Co. v. Nash (70 Vt. 434), 603, 604 Singer Mfg. Co. v. Smith (40 S. C. 529), 571, 578. Singer Mfg. Co. v. Treadway (4 111. App. 57), 629. Singer Sew. M. Co. v. Hoi comb (40 Iowa, 33), 599. Singerly v. Thayer (108 Pa. St. 291), 664, 665, 667. Sisson v. Hibbard (75 N. Y 542), 645. Sisson v. Hill (18 R. I. 212), 919. Skeels v. Phillips (54 III. 309), 996. Skiff v. Johnson (57 N. H. 475), 1019, 1027. Skinner v. Gunn (9 Port. 305), 1281, 1294 Skinner v. Maxwell (66 N. C. 45), 120. Skinner v. Michigan Hoop Co. (119 Mich. 467). 902, 915. Skinner v. Tirrell (159 Mass. 474), 185. Skipper v. Stokes (42 Ala. 570), 200, 202. Slack v. Collins (145 Ind. 569), 1482. Slater v. Smith (117 Mass. 96), 437. Slaughter v. Green (1 Rand. 3), 21, 22. Slaughter's Adm'r v. Gerson (13 Wall. 379), 879, 880. clxxxii TABLE OF CASES CITED. References are to sections: Vol. Slaymaker v. Irwin (4 Whart. 369), 220. Slayton v. Barry (175 Mass. 513), 119. Slayton v. McDonald (73 Me. 50), 16. Sledge v. Obenchain (58 Miss. 670), 976. Sleeper v. Chapman (121 Mass. 404), 150, 151. Sleeper v. Davis (64 N. H. 59), 148, 90D, 921. Sleeper v. Pollard (28 Vt. 709), 964. Sleeper v. Wood (60 Fed. R. 888), 1242. Sloan v. Baird (162 N. Y. 327), 1736 Sloan v. Hudson (119 Ala. 27), 159. Sloane v. Sniffer (156 Pa. St. 59), 915, 918. Slocum v. Seymour (36 N. J. L. 138), 336. Sloggy v. Crescent Creamery Co. (72 Minn. 316), 1832. Slowey v. McMurray (27 Mo. 113), 689. Slubey v. Heyward (2 H. Bl. 504). 1499. Smack v. Cathedral (31 N. Y. App. Div. 559), 1408. Small v. Quincy (4 Me. 497), 446, 1170. Small v. Stevens (65 N. H. 209), 1380. Smalley v. Hamblin (170 Mass. 380), 307. Smalley v. Hendrickson (29 N. J. L. 371), 502, 661, 1402. Smart v. Batchelder (57 N. H. 140), 521. Smedley v. Felt (41 Iowa, 588), 139. Smeed v. Foord (1 El. & El. 602), 1773, 1792. Smethurst v. Woolston (5 "W. & S. 106), 685. Smidt v. Tiden (L. R. 9 Q. B. 446), 199. Smiley v. Barker (83 Fed. R. 684), 1134, 1850. Smiley v. Barker (55 U. S. App. 125), 10*9. Smilie v. Hobbs (64 N. H. 75), 1288. Smith's Appeal (69 Pa. St. 474), 449. I, §§ 1-797; Vol. H, §§ 798-1850. Smith v. Acker (23 Wend. 653), 960. Smith v. Andrews (8 Ired. 3), 933. Smith v. Arnold (5 Mason, 414), 438, 461, 462. Smith v. Arnold (106 Mass. 269), 1050. Smith v. Barber (153 Ind. 322), 619, 1377. Smith v. Barker (102 Ala. 679), 1539, 1541. Smith v. Bean (15 N. H. 577), 1053, 1034. Smith v. Beattie (31 N. Y. 542), 40. Smith v. Beatty (2 Ired. Eq. 456), 64. Smith v. Benson (1 Hill, 176), 336. Smith v. Berry (18 Me. 122), 1747. Smith v. Bettger (68 Ind. 254), 1425. Smith v. Bickmore (4 Taunt. 474), 999. Smith v. Bolles (132 U. S. 125), 1843. Smith v. Bouvier (70 Pa. St. 325), 1032. Smith v. Boyer (29 Neb. 76), 954, 955. Smith v. Brennan (62 Mich. 349), 356, 366. Smith v. Brittenham (98 111. 188), 918. Smith v. Brown (3 Hawks, 580), 1420, Smith v. Bryan (5 Md. 141), 337. Smith v. Chadwick (20 Ch. Div. 27), 876. Smith v. Case (2 Oreg. 190), 1057. Smith v. Champney (50 Iowa, 174), 904. Smith v. Chance (2 B. & Aid. 753), 1187, 1192, 1412. Smith v. Coolidge (68 Yt. 516), 1441, 1442. Smith v. Colby (136 Mass. 562), 428. Smith v. Collins (94 Ala. 394), 953. Smith v. Corege (53 Ark. 295 >, 1332. Smith v. Countryman (30 N. Y. 655), 899. Smith v. Clark (21 Wend. 83), 22. Smith v. Clews (105 N. Y. 283), 160. Smith v. Clews (114 N. Y. 190), 154. Smith v. Cuff (6 M. & SeL 160), 1000. TABLE OF CASES CITED. clxxxiii References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Smith v. Dennie (6 Pick. 262), 549, 551, 552, 1482. Smith v. De Vaughn (82 Ga. 574), 583. Smith v. Droubay (20 Utah, 443). 175. Smith v. Dunlop (12 111. 184), 1741. Smith v. Edwards (156 Mass. 221), 731, 756. Smith v. Estey Organ Co. (100 Ga. 628), 942. Smith v. Evans (5 Humph. 70), 109. Smith v. Evans (36 S. C. 69), 386. Smith v. Field (5 T. E. 402), 1591. Smith v. First Nat. Bank (45 Neb. 444), 908. Smith v. Friend (15Cal. 124), 711. Smith v. Gillett (50 III 290), 734, 1124, 1412. Smith v. Gilmore (7 D. C. App. 119;, 019. Smith v. Gowdy (8 Allen, 566), 221. Smith v. Goss (1 Camp. 282), 1571, 1577. Smith v. Greer (3 Humph. 118), 974. Smith v. Griffeth (3 Hill, 337), 208. Smith v. Gufford (36 Fla. 481), 592, 643. Smith v. Hale (158 Mass. 178), 626, 677, 816,819, 1191, 1275, 1805. Smith v. Hall (19 111. App. 17), 1459. Smith v. Hightower (76 Ga. 629), 1344 Smith v. Hudson (6 B. & S. 431), 355, 369, 374, 393, 1496. Smith v. Hudson (34 L. J. Q. B. 145). 1181. Smith v. Hughes (L. R. 6 Q. B. 597), 846, 847, 848, 849, 869. Smith v. James (53 Ark. 135), 175, 1455. Smith v. Johnson (71 Mo. 382), 1462. Smith v. Jordan (13 Minn. 264), 1097. Smith v. Justice (13 Wis. 600), 1235, 1237. Smith v. Kidd (68 N. Y. 130), 1453, 1459. Smith v. Lamberts (7 Gratt. 138), 1455. Smith v. Leighton (38 Kan. 544), 321. Smith v. Lewis (40 Ind. 98), 913, 1161. Smith v. Lime Co. (57 Ohio St. 518), 1738. Smith v. Love (64 N. C. 439), 1311. Smith v. Lozo (42 Mich. 6), 588, 605. Smith v. Lynes (5 N. Y. 41), 549, 552, 890, 891. Smith v. Mariner (5 Wis. 551), 877. Smith v. Mawhood (14 M. & W. 452), 1051. Smith v. Mayer (3 Colo. 207), 1395. Smith v. Mayo (9 Mass. 62), 121. Smith v. Morse (20 La. Ann. 220), 264. Smith v. McCall(lMcCord, 220), 1319. Smith v. McLean (24 Iowa, 322), 649. Smith v. McNair (19 Kan. 330), 1332. Smith v. Neale (2 C. B. 67), 834, 1301. Smith v. Nevitt (Walk. 370), 1413. Smith v. Newland (9 Hun, 553), 628. Smith v. N. Y. Cent. R. Co. (4 Keyes, 180), 305. Smith v. O'Bryan (11 L. T. 346), 1270. Smith v. Perry (29 N. J. L. 74), 175. Smith v. Pettee (70 N. Y. 13), 654, 1077, 1629, 1642, 1643. Smith v. Pierce (110 Mass. 35), 626. Smith v. Rail Mill Co. (50 Ark. 31), 1391. Smith v. Reid (134 N. Y. 568), 972. Smith v. Richards (13 Pet. 26), 881. Smith v. Selz (114 Ind. 229), 952. Smith v. Shell (82 Mo. 215), 440. Smith v. Sloan (37 Wis. 285), 143. Smith v. Smith (2 Hill, 351), 1417. Smith v. Smith (25 Wend. 405), 1417. Smith v. Smith (30 Vt. 139), 914. Smith v. Smith (2 Johns. 235), 1440. Smith v. Smith (21 Pa. St. 367), 904. Smith v. Smith (91 Mich. 7), 28. Smith v. Sparkman (55 Miss. 649), 508. Smith v. Stern (17 Pa. St. 360), 963. Smith v. Stoller (26 Wis. 671), 367, 369, 373. Smith v. Surman (5 Barn. & Aid. 613), 300. clxxxiv TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Smith v. Surman (9 B. & C- 561), 305, 313, 337, 427. Smith v. Swarthout (15 Wis. 550), 1265. Smith v. Tilton (10 Me. 350), 565. Smith v. Tracy (36 N. Y. 79), 1281. Smith v. Wellborn (75 Ga. 799), 953. Smith v. Wheeler (7 Oreg. 49), 1187, 1696. Smith v. Williams (1 Murph. 426), 1255. Smith, K. & F. Co. v. Smith (166 Pa. St. 563), 892, 899. Smither v. Calvert (44 Ind. 242), 872. Smock v. Dade (5 Rand. 639), 1455. Smock v. Smock (37 Mo. App. 56), 344. Smoot's Case (15 Wall. 36), 1090. Smout v. Ilbery (10 Mees. & W. 1), 1223. Sneathen v. Grubbs (88 Pa. St. 147), 733, 1184. Snee v. Prescott (1 Atk. 245), 1526. Snelgrove v. Bruce (16 Up. Can. C. P. 561), 1316. Snelling v. Arbunkle (104 Ga. 362), 46, 49. Snider v. Thrall (56 Wis. 674), 379. Snodgrass v. Broadwell (2 Litt. 353), 207. Snoddy v. American Nat. Bank (88 Tenn. 573), 1031, 1039. Snody v. Shier (88 Mich. 304), 682, 1385, 1386. Snow v. Shomacker Mfg. Co. (69 Ala. Ill), 1240, 1241, 1265, 1344. Snow v. Warner (10 Mete. 132), 363, 365. Snowden v. Warder (3 Rawle, 101), 1230. Snowden v. Waterman (105 Ga. 384), 1346, 1825. Snyder v. Hegand ( — Ky. — ), 942. Snyder v. Partridge (138 111. 173), 957. Snyder v. Tibbals (32 Iowa, 447), 714. Snyder v. Vaux (2 Rawle, 427), 639. Soames v. Spencer (1 Dowl. & R. 32), 453. Soles v. Hickman (20 Pa. St. 180), 438, 439. Solomon v. Bushnell (11 Oreg. 277), 1507. Solomon v. Dreschler (4 Minn. 278), 1051. Solomon v. Hathaway (126 Mass. 482), 546, 549, 628. Solomon v. King (63 N. J. L. 39), 365. Solomon v. Webster (4 Col. 353), 229. Solomons v. Chesley (58 N. H. 238), 1516. Soltau v. Gerdau (119 N. Y. 380), 149, 154, 169. Somerby v. Buntin (19 Am. R. 459), 330, 331, 1729. Somers v. Richards (46 Vt. 170), 937. Somes v. Shipping Co. (El., Bl. & El. 353), 1475. Sondheim v. Gilbert (117 Ind. 71), 203, 1031, 1039. Sonneboom v. Moore (105 Ga. 497), 1456. Soper v. Creighton (93 Me. 564), 1134. Soper v. Fry (37 Mich. 236), 95, 97. Souhegan Nat. Bank v. Wallace (61 N. H. 24), 999. Sousely v. Burns (10 Bush, 87), 734, 1124, 1130. South Australian Ins. Co. v. Randell (L. R. 3 P. C. 101), 20. South Bend Pulley Co. v. Caldwell ( — Ky. — ), 1275, 1381, 1814. South Baltimore Co. v. Muhlbach (69 Md. 395), 333. Southbridge Savings Bank v. Exeter Mach. Works (127 Mass. 542), 646. Southern v. Howe (2 Roll. 5), 1272. Southern Cotton Oil Co. v. Heflin (99 Fed. R. 339), 1701. Southern Development Co. v. Silva (125 U. S. 247), 879. Southern Life Ins. Co. v. Cole (4 Fla. 359), 331. TABLE OF CASES CITED. clxxxv References are to sections: Vol. I, §§ 1-797; Vol. IT, §§ 708-1850. Southern Music House v. Dusenbury (27 S. C. 464), 571, 603. Southern Music House v. Hornsby (45 S. C. Ill), 571. Southwestern Freight C#t. v. Stand- ard (44 Mo. 71), 499, 516, 542, 1121, 1407, 1474, 1485, 1516. Southwick v. Smith (29 Me. 228), 678. Southworth v. Bennett (58 N. Y. 659), 1502. Southworth v. Smith (7 Cush. 391), 1417. Sowers v. Parker (59 Kan. 12), 937. Spalding v. Archibald (52 Mich. 365), 336. Spalding v. Ruding (6 Beavan, 376), 1568. Sparks v. Marshall (2 Bing. N. C. 761), 732. Sparks v. Messick (65 N. C.440). 1307. Sparling v. Marks (86 111. 125), 816, 820, 1805. Spaulding v. Adams (63 Iowa, 437), 953. Spaulding v. Austin (2 Vt. 555), 1193. Spaulding v. Hanscom (67 N. H. 401), 932. Spear v. Bach (82 Wis. 192), 331, 386, 391, 392. Spear v. Crawfish (14 Wend. 23), 142. Speier v. Opfer (73 Mich. 35), 138. Speirs v. Halstead (74 N. C. 620), 1790. Spence v. Insurance Co. (L. R 3 C. P. 427), 642. Spencer v. Cone (1 Met. 283), 307,324. Spencer v. Hale (30 Vt. 314), 365, 733. Spencer v. St. Clair (57 N. H. 9), 915. Speyer v. Baker (59 Ohio St. 11), 603, 629. Spickler v. Marsh (36 Md. 222), 682. Spira v. Hornthall (77 Ala. 137), 924. Spirett v. Willows (3 De G., J. & S. 292), 974. Spooner v. Cummings (151 Mass. 313), 602. Sprague v. Blake (20 Wend. 61), 401. Sprague v. Kemp (74 Minn. 465), 901. Sprague v. Rooney (82 Mo. 493), 1022. Sprague v. Warren (26 Neb. 326), 1031, 1032. Spring Co. v. Knowlton (103 U. S. 49), 999. Springer v. Drosch (32 Ind. 486), 947. Springer v. Hubbard (82 Me. 299), 1436. Springer v. Kreeger (3 Colo. App. 487), 964. Springfield v. Green (7 Baxt. 301), 1435. Springfield, etc. Ass'n v. Roll (137 111. 205), 947. Springfield Engine Co. v. Kennedy (7 Ind. App. 502), 1384 Springfield Milling Co. v. Barnard (49 U. S. App. 438), 1844 Springwell v. Allen (2 East, 448), 1311, 1795. Sprott v. United States (87 U. S. 459), 1024. Spurgeon v. McElwain (6 Ohio, 442), 1023. Spurr v. Benedict (99 Mass. 463), 275. St. Anthony Lumber Co. v. Bardwell- Robinson Co. (60 Minn. 199), 1817, 1844. Stack v. Cavanaugh (67. N. H. 149), 109, 119. Stacy v. Foss (19 Me. 335). 999. Stacy v. Kemp (97 Mass. 166), 1255. Stadfield v. Huntsman (92 Pa. St. 53), 580, 600. Stafford v. Roof (9 Cow. 626), 98, 106, 107, 112. Stafford v. Walter (67 111. 83). 736, 748, 1181. Standard Furn. Co. v. Van Alstine (22 Wash. 670), 1004, 1013, 1022. Standard Oil Co. v. Meyer Bros. Drug Co. (74 Mo. App. 446), 923. Standard Underground Cable Co. v. Denver Consol. Electric Co. (76 Fed. R. 422), 1247. clxxxvi TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Staner v. Rogers (3 Wash. 603), 1384. Stanford v. McGill (6 N. Dak. 536), 1089, 1090. Stange v. Wilson (17 Mich. 342), 1129, 1133, 1255. Stanley v. Gaylord (1 Cush. 536), 154. Stannard v. Burns (63 Vt. 244), 84. Stanton v. Allen (5 Denio, 434). 208. Stanton v. Eager (16 Pick. 467), 736, 740. 775, 1566, 1606, 1612. Stanton v. French (83 CaL 194), 1454. Staples v. O'Neal (64 Minn. 27), 264. Stapleton, Ex parte (10 Ch. Div. 586), 1094. Staples v. Wellington (53 Me. 453), 67. Star Glass Co. v. Longley (64 Ga. 576), 738. Starace v. Rossi (69 Vt. 303), 1028. Stark v. Thompson (3 T. B. Mon. 296), 1466. Starkweather v. Benjamin (32 Mich. 305), 863, 875. Starr v. Torrey (22 N. J. L. 190), 1402. Starr v. Stevenson (91 Iowa, 684), 892, 901, 923. Startup v. Macdonald (6 Man. & Gr. 593), 1137, 1188. State v. Bank (45 Mo. 528), 191. State v. Basserman (54 Conn. 88), 1029. State v. Boston Club (45 La. Ann. 585), 55. State v. Brady (100 Iowa, 191), 905. State v. Carl- (43 Ark. 353), 739, 740, 793, 1029. State v. Colby (92 Iowa, 463), 1028. State v. Durant (53 Mo. App. 493), 1199. State v. Easton Club (73 Md. 97), 55. State v. Fox (79 Md. 514), 935. State v. Fuller (5 Ired. L. 26), 483. State v. Gregory (47 Conn. 276), 1052. State v. Hays (52 Mo. 578), 191. State v. Hoshaw (98 Mo. 358), 446. State v. Horacek (41 Kan. 87), 55. State v. Howard (88 N. C. 650), 108 114, 132. State v. Hughes (22 W. Va. 743), 740. State v. Intoxicating Liquors (61 Me. 520), 809, 964. State v. Intoxicating Liquors (73 Me. 278), 740, 793. State v. Lockyear (95 N. C. 633), 55. State v. Mason (112 Mo. 374), 953, 954. State v. Mercer (32 Iowa, 405!, 55. State v. Neis (108 N. C. 787), 55. State v. O'Neil (58 Vt. 140), 739, 740, 777, 794, 1029. State v. Peters (91 Me. 31), 736, 739, 740, 777. 793, 1181. State v. Plaisted (43 N. H. 413), 96, 106, 108, 114. State v. Pottmeyer (33 Ind. 402), 346. State v. Railroad Co. (34 La. Ann. 947), 1303. State v. Rieger (59 Minn. 151), 28. State v. St. Louis Club (125 Mo. 308), 55. State v. Wingfield (115 Mo. 428), 736, 739, 740, 777, 794. State Bank v. McCoy (69 Pa. St. 204), 88. Staunton v. Wood (16 Q. B. 638), 1134. Staver Mfg. Co. v. Coe (49 111. App. 426), 901. Stead v. Dawber (10 A. & E. 57), 447. Stearns v. Gage (79 N. Y. 102), 953. Stearns v. Hall (9 Cush. 31), 474. Stearns v. Washburn (7 Gray, 187), 1199. Steaubli v. Bank (11 Wash. 426), 702. Stebbins v. Leowolf (3 Cush. 137), 1135. Stebbins v. Peck (8 Gray, 553), 1057. Steel v. Fife (48 Iowa, 99). 432. Steel Works v. Dewey (37 Ohio St. -242), 708, 1187. Steele v. Aspy (128 Ind. 367), 564. Steele v. Curie (4 Dana. 381), 1013. Steele-Smith Grocery Co. v. Potthast ( — Iowa, — ), 188. Steel wagon v. Jeffries (44 Pa. St. 407), 964, 966. TABLE OF CASES CITED. clxxxvii References are to sections: Vol. I, §§ 1-797; YoL n, §§ 798-1850. Steen v. Harris (81 Ga. 681). 603. Stees v. Leonard (20 Minn. 494), 1103. Steigleman v. Jeffries (1 Serg. & R 477), 1844. Steinbach v. Hill (25 Mich. 78), 863, 875. Steiner v. Ray (84 Ala. 93), 1050. Steinhart v. Mills (94 Cal. 362), 1423. Steinhart v. National Bank (94 CaL 362), 1433. Steinmeyer v. Siebert (190 Pa. St. 471), 1718, 1727. Stenwood v. Trefethen (84 Me. 295), 1450. Stephens v. Adair (82 Tex. 214), 947. Stephens v. Gifford (137 Pa. St. 219), 960, 964, 981, 982, 1118, 1186. Stephens v. Tucker (55 Ga. 543), 202. Stephenson v. Cady (117 Mass. 6), 1148. Stephenson v. Hart (4 Bing. 476), 887. Stephenson v. Little (10 Mich. 433), 642. Sterling v. Baldwin (42 Vt. 306), 336, 964. Sterling v. Warden (51 N. H. 217), 334. Sterry v. Arden (1 Johns. Ch. 261), 955. Stetson v. Briggs (114 CaL 511), 1455. Stevens v. Adams (45 Me. 611), 1125. Stevens v. Austin (1 Mete. 557), 915, 917. Stevens v. Boston & Wor. R. Co. (8 Gray, 262), 740, 775. Stevens v. Brennan (79 N. Y. 234), 924. Stevens v. Cunningham (3 Allen, 491), 169, 685. Stevens v. Eno (10 Barb. 95), 714. Stevens v. Fuller (8 N. H. 463), 935. Stevens v. Hertzler (109 Ala, 423), 682, 1382. Stevens v. Irwin (15 Cal. 503), 964, 963, 966. Stevens v. Ludlum (46 Minn. 160), 878, 895. Stevens v. Works (81 Ind. 445), 973. Stevenson v. Burgin (49 Pa. St. 36), 1158. Stevenson v. Marble (84 Fed. R. 23), 931. Stevenson v. McLean (5 Q. B. Div. 346), 230, 252, 257, 258. Stevenson v. Smith (28 Cal. 103), 1780. Stevenson v. State (65 Ind. 409), 16. Stewart v. Conner (9 Ala. 813), 17. Stewart v. Dougherty (3 Dana, 479), 908. Stewart v. Emerson (52 N. H. 301), 901, 1411. Stewart v. Munford (91 111. 58), 170. Stewart v. Nelson (79 Mo. 522), 963, 964 Stewart Paper Co. v. Rau (92 Ga. 511), 1433. Stewart v. Stearns (63 N. H. 99), 1841. Stewart v. Stone (127 N. Y. 500), 1100. Stewart v. Thayer (168 Mass. 519), 1004, 1053. Stewart v. Woodward (50 Vt. 78), 1455. Stewart v. Wyoming Ranch Co. (128 U. S. 383), 868, 935. Stickney v. Jordan (47 Minn. 262), 1843. Stiles v. McClellan (6 Colo. 89), 263. Stiles v. We.-t (1 Sid. 109), 84. Stiles v. White (11 Mete. 356), 1843. Stillman v. Fleniken (58 Iowa, 450), 646. Stillman v. Harvey (47 Conn. 27), 145. Stilwell v. Mutual Life Ins. Co. (72 N. Y. 385), 175. Stimson v. Helps (9 Colo. 33), 1223. Stimson v. Wrigley (86 N. Y. 332), 951. Stinson v. Clark (6 Allen, 340), 965. Stix v. Keith (85 Ala. 465), 953. St. John v. Palmer (5 Hill, 591), 1796. St. Joze Indians, The (1 Wheat. 208), 788. St. Louis Fair Ass'n v. Carmody (151 Mo. 566), 1023. St. Louis Refrig. Co. v. Vinton, etc. Co. (79 Iowa, 239), 1255. clxxxviii TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. St. Louis, etc. Ry. Co. v. Biggs (50 Ark. 169), 592. St. Louis Ry. Co. v. Higgins (44 Ark. 293), 108, 109. St. Paul Mill Co. v. Great Western Despatch Co. (27 Fed. R. 434), 779. Stock v. Boston (149 Mass. 416), 1773. Stock v. Ingles (12 Q. B. Div. 564), 796. Stockdale v. Dun lop (6 M. & W. 224), 652. Stockdale v. Onwhyn (7 D. & R. 625), 1007. Stocken v. Collin (7 Mees. & W. 515), 247. Stockham v. Stockham (32 Md. 196), 251. Stock well v. Baird (15 Del. 420), 360, 385. Stoddard v. Ham (129 Mass. 383), 268, 269, 887. Stokes v. Baars (18 Fla. 656), 1148. Stokes v. Jones (18 Ala. 734), 150. Stokes v. McKay (147 N. Y. 223), 1089, 1090, 1193, 1708. Stone v. Browning (51 N. Y. 211), 358, 359, 367. Stone v. Browning (60 N. Y. 598), 358. Stone v. Browning (68 N. Y. 598), 426, 438. Stone v. Dennison (13 Pick. 1), 122, 123, 124. Stone v. Denny (4 Mete. 151), 875, 1237. Stone v. Harmon (31 Minn. 512), 245. Stone v. Myers (9 Minn. 303), 970, 974. Stone v. Peacock (35 Mo. 385), 964. Stone v. Perry (60 Me. 48), 543, 552, 628. Stone v. Robie (66 Vt. 245), 874. Stone v. Spencer (77 Mo. 356), 952. Stone v. Swift (4 Pick. 389), 1194. Stone v. Waite (88 Ala. 599), 601, 634, 1100. Stong v. Lane (66 Minn. 94), 272. Stoolfire v. Royse (71 111. 223), 1121. Stoops v. Smith (100 Mass. 63), 1327. Storm v. Smith (43 Miss. 497), 1302, 1307. Storrs v. Emerson (72 Iowa, 390),1272, 1273. Story v. Salomon (71 N. Y. 420), 1034. Storz v. Finkelstein (46 Neb. 577), 996. Stose v. Heissler (120 111. 433), 212. Stott v. Franey (20 Oreg. 410), 200. Stoveld v. Hughes (14 East, 308), 381, 1503. Stowe v. Taft (58 N. H. 445), 960. Stowell v. Eldred (39 Wis. 614), 455. Stowell v. Robinson (3 Bing. N. C. 928), 447. Strahorn v. Union Stock Yard Co. (43 111. 424), 752. Strain v. Mfg. Co. (80 Tex. 622), 1389. Stranahan Co. v. Coit (55 Ohio St. 398), 1822. Strand v. Griffith (38 C. C. A. 444), 934, 1841. Strang v. Holmes (7 Cow. 224), 1420. Strang v. Hirst (61 Me. 1), 1424. Stratton v. Burr ( Cal. — ), 964. Straub v. Screven (19 S. C. 445), 571. Straus v. Minzesheimer (78 I1L 492), 499, 516, 518. Straus v. Ross (25 Ind. 300), 508. Straus v. Rothan (102 Mo.. 201), 1482. Straus v. Wessel (30 Ohio St. 211), 740, 775, 779. Strauss v. Hensey (7 D. C. App. 289), 1332. Strauss Saddlery Co. v. Kingman (42 Mo. App. 208), 677. Strawn v. Cogswell (28 111. 457), 1393, 1831. Streeper v. Eckart (2 Whart. 302), 167, 960. Street v. Blay (2 B. & Ad. 456), 1805. Street v. Chapman (29 Ind. 142), 1818. Strickland v. Graybill (97 Va. 602), 937. Strickland v. Turner (7 Ex. 208), 199. Strickland v. Willis (43 S. W. R. 602), 896, 902. TABLE OF CASES CITED. clxxxix References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Strodder v. Southern Granite Co. (99 Ga. 595), 74. Strong v. Insurance Co. (62 Mo. 295), 1834 Strong v. Dodds (47 Vt. 348), 365, 369. Strong v. Foote (42 Conn. 203), 130, 132. Strong v. King (35 I1L 1), 1433. Strong v. Lawrence (58 Iowa, 55), 957. Strong v. Strong (9 Cush. 560), 212. Strother v. Butler (17 Ala. 733), 17. Stroud v. Austin (1 C. & A. 119), 1770. Stroud v. Pierce (6 Allen, 413), 1237. Strubbee v. Railway Co. (78 Ky. 481), 639. Strutt v. Smith (1 C. M. & R. 312), 912, 1411. Stuart v. Burcham (50 Neb* 823), 1448, 1455. Stuart v. Pennis (91 Va. 688), 1718, 1731. Stuart v. Wilkins (1 Doug. 21), 932, 1810. Stubbs v. Lund (7 Mass. 453), 1548, 1577. Stubly v. Beachboard (68 Mich. 401), 915. Stucky v. Clyburn (Cheves' L. 186), 1273. Studer v. Bleisten (115 N. Y. 316), 880, 1272, 1391, 1392, 1395. Stumph v. Bruner (89 Ind. 556), 973. Sturges v. Keith (57 111. 451), 1786. Sturgis v. Corp (13 Ves. 190), 135. Sturgis v. Warren (11 Vt. 433), 645. Sturm v. Boker (150 U. S. 312), 20, 46, 49. Sturtevant v. Ballard (9 Johns. 337), 960. Sturtevant v. Orser (24 N. Y. 538), 1548. Sturtevant v. Starin (19 Wis. 285), 184. Stutz v. Coal Co. (131 Pa. St. 267), 660, 6G9, 1384. Suan v. Caffe (122 N. Y. 308), 138. Suit v. Woodhall (113 Mass. 391), 733, 741, 1184. Sullivan v. Flynn (22 D. C. 396), 72. Sullivan v. Hergan (17 R. 1. 109), 1003. Sullivan v. Sullivan (70 Mich. 583), 261. Summer v. Gray (4 Ark. 467), 1795. Summers v. Hibbard (153 111. 102), 1103. Summers v. Mills (21 Tex. 77), 217. Summers v. Wilson (2 Cold. 469), 107. Summerson v. Hicks (134 Pa. St. 566), 32. Sumner v. Hamlet (12 Pick. 76), 524. Sumner v. Jones (24 Vt. 317), 1057. Sumner v. McFarlan (15 Kan. 600), 599. Sumner v. Saunders (51 Mo. 89), 1445, 1446. Sumner v. Woods (53 Ala. 94), 583, 599. Sumner v. Woods (67 Ala. 139), 569, 599. Stunners v. Vaughn (35 Ind. 323), 1247. Sumner's Appeal (16 Pa. St. 169), 955. Sun Pub. Co. v. Minnesota Type Foundry Co. (22 Oreg. 49), 1138, 1375. Sunny South Lumber Co. v. Nei- meyer Lumber Co. (63 Ark. 268), 588, 606. Surles v. Pipkin (69 N. C. 513), 85. Susquehanna Fertilizer Co. v. White (66 Md. 444), 1431. Sussdorf v. Smidt (55 N. Y. 319). 207. Sutherland v. Allhusen (14 L. T. 666), 1130. Sutherland v. Brace (34 U. S. App. 638), 485. Sutherland v. Bruce (73 Fed. R. 624), 492. Sutherland v. Pratt (11 M & W. 296), 1480. Sutton v. Crosly (54 Barb. 80), 1255. Sutro v. Pettit (74 CaL 332), 191. cxc TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-707; Vol. IT, §§ 798-1850. Suydam v. Clark (2 Sandf. 133), 199, 228, 469. Swallow v. Emery (111 Mass. 355), 634, 635. Swan v. Scott (11 Serg. & R. 155), 947. Swarm v. Swarm (21 Fed. R. 299), 1052. 1058. Swanzey v. Parker (50 Pa. St. 441), 1303. Swartwout v. Evans (37 111. 442), 189. Swasey v. Vanderheyden (10 Johns. 33), 124. Swayne v. Waldo (73 Iowa, 749), 1810. Sweeney v. Coe (12 Colo. 485), 964. Sweeney v. Owsley (14 B. Mon. 332), 492, 493. Sweeney v. United States (109 U. S. 618), 673. Sweet v. Harding (19 Vt. 587), 1137. Sweet v. Pym (1 East, 4), 1529. Sweet v. Shumway (102 Mass. 365), 1213, 1337, 1340. Swett v. Colgate (20 Johns. 196), 1235, 1311, 1334. Swift v. Bennett (10 Cush. 436), 128, 132. Swift v. Rounds (19 R. L 527), 901. Swift v. Swift (36 Ala. 147). 688. Swift v. Thompson (9 Conn. 63), 960. Switzer v. Pinconning Mfg. Co. (59 Mich. 488), 1235. Sydnor v. Gee (4 Leigh, 535), 963. Sydnor v. Roberts (13 Tex. 598), 977. Sykes v. Dixon (9 Ad. & El. 693), 226. Sykes v. Giles (5 M. & W. 645), 1455. Symms v. Benner (31 Neb. 593), 918. Symns v. Schotten (35 Kan. 310), 1579. Syracuse Knitting Co. v. Blanchard (69 N. H. 447), 893, 901, 902. Table Mount, etc. Co. v. Stranahan (20 Cal. 198), 347. Tabor v. Peters (74 Ala. 90), 1245, 1273. Tacoma v. Tacoma L. & W. Co. (16 Wash. 288), 877. Tacoma Coal Co. v. Bradley (2 Wash. 600), 1335, 1344, 1393, 1395, 1811, 1814, 1844. Taft v. Pike (14 Vt. 405), 109. Taft v. Travis (136 Mass. 95), 207. Taggart v. Stanbery (2 McLean, 543), 1281. Tahoe Ice Co. v. Union Ice Co. (109 Cal. 242), 1690, 1704, 1709. Talbot Paving Co. v. Gorman (103 Mich. 403), 1344, 1350, 1391, 1392. Talboys v. Boston (46 Minn. 144), 175, 1449, 1451. Talcott v. Henderson (31 Ohio St. 162), 906. Tallman v. Franklin (14 N. Y. 584), 426. Tally v. Tally (2 Dev. & B. Eq. 385), 84. Talmadge v. Lane (41 N. Y. Supp. 413), 345.' Talmadge v. Oliver (14 S. C. 522), 571. Talmage v. Bierhause (103 Ind. 270), 1281, 1282, 1284. Tamm v. Lavalle (92 111. 263), 191. Tamplin v. James (L. R. 15 Ch. Div. 221), 278. Tamvaco v. Lucas (1 El. & El. 581), 1158. Tancred v. Steel Co. (15 App. Cas. 125), 1169. Tanner v. Scovell (14 M. & W. 28), 1499, 1602. Tanner Engine Co. v. Hall (89 Ala. 628), 599, 619. Tansley v. Turner (2 Scott, 238), 515, 518. Tansley v. Turner (2 Bing. N. C. 151), 1495. Tappenden v. Randall (2 Bos. & P. 467), 999. Tarbox v. Gotzian (20 Minn. 139), 263. Tarling v. Baxter (6 Barn. & Cress. 360), 483, 484, 725. Tarrabochia v. Corlett (12 Moo. P. Cv C. 199), 861. TABLE OF CASES CITED. CXC1 References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Tasker v. Bartlett (5 Cush. 359), 1417. Tasker v. Crane Co. (55 Fed. E. 449), 1377. Tatro v. Brower (118 Mich. 615), 1822. Tatum v. Kelley (25 Ark. 209), 1013, 1024. Tatum v. Mohr (21 Ark. 349), 1270. Tayloe v. Merchants' F. Ins. Co. (9 How. 390), 257, 258. Taylor, In re (192 Pa. St. 304), 203, 1032, 1034. Taylor v. Ash ton (11 M. & W. 401), 876, 1223. Taylor v. Bailey (169 III 181), 175, 1033. Taylor v. Boardman (25 Vt. 581), 649. Taylor v. Bowers (1 Q. B. Div.291),999. Taylor v. Bradley (39 N. Y. 129 , 17; 0. Taylor v. Bullen 1 5 Ex. 779), 1333. Taylor v. Caldwell (3 Best & Smith, 826), 1100. Taylor v. Coenen (L. R. 1 Ch. Div. 636), 973, 974. Taylor v. Cole (111 Mass. 363), 733, 1177, 1395. Taylor v. Conner (41 Miss. 722), 1425. Taylor v. Finley (48 Vt. 78), 606, 610. Taylor v. Gardiner (8 Manitoba. 310), 1314. Taylor v. Hilary (1 C. M. & R. 741), 806. Taylor v. Insurance Co. (9 How. 390), 247. Taylor v. Jones (L. R 1 Com. P. Div. 8? .242. Taylor v. Meads (4 De Gex, J. & S. 597), 135. Taylor v. Mississippi Mills (47 Ark. 247), 896, 905. Taylor v. Mueller (30 Minn. 343), 356, 361, 365, 369. Taylor v. Neville (3 Atk. 384), 1726. Taylor v. Patrick (1 Bibb, 168), 87. Taylor v. Rennie (35 Barb. 272), 251. Taylor v. Robinson (14 Cal. 396). 1455. Taylor v. Smith (2 Q. B. 65), 427. Taylor v. Thurber (68 111. App. 114), 485. Taylor v. Victoria Co-operative Store Co. (26 Nova Sco. 223), 1181. Teachout v. Van Hoesen (76 Iowa, 113), 937. Tedder v. Odom (2 Heisk. 68), 1025. Tegler v. Shipman (33 Iowa, 194), 739. Telegraph Co. v. Railroad Co. (86 111. 246), 428. Telford v. Adams (6 Watts, 429), 947. Tempest v. Fitzgerald (3 B. & Aid. 680), 385, 386, 1489. Tempest v. Kilner (3 Com. B. 249), 329, 1748. Temple v. Smith (13 Neb. 513 », 953. Tenney v. Foote (95 111. 99), 1034, 1036. Tenney v. Mulvaney (9 Oreg. 405), 1265. Tennent-Stribling Shoe Co. v. Rudy (53 Mo. App. 196), 967. Tennessee Club v. Dwyer (11 La. Ann. 452), 55. Tennessee River Compress Co. v. Leeds (97 Tenn. 574), 1346, 1347. Terhune v. Coker (107 Ga. 352), 936. Terney v. Doten (70 Cal. 399), 359, 386. Terre Haute Brewing Co. v. Hartman (19 Ind. App. 596), 1027. Terry v. Birmingham Nat. Bank (93 Ala. 599). 1786. Terry v. Bissell (26 Conn. 23), 838, 1849. Terry v. Cole (80 Va. 701), 9. Terry v. Wheeler (25 N. Y. 520), 488, 489, 508, 528, 1177. Terwilliger v. Great West. Tel. Co. (59 111. 249). 878. Tewkesbury v. Bennett (31 Iowa, 83), 1235, 1245, 1246. Texada v. Beaman (6 La, Ann. 84), 14G2. Textor v. Hutchings (62 Md. 150), 1092. CXC11 TABLE OF CASES CITED. References are to sections: Vol. Thacher v. Dinsmore (5 Mass. 299), 1424. Thacher v. Moors (134 Mass. 156), 169, 887. Thacker v. Hardy (L. R. 4 Q. B. Div. 685), 1031. Thames, etc. Co. v. Beville (100 Ind. 309), 428. Thayer v. Burchard (99 Mass. 508), 263. Thayer v. Davis (75 Wis. 205), 488, 492, 493. Thayer v. Insurance Co. (10 Pick. 326). 247. Thayer v. Kelley (28 Vt. 19), 200. Thayer v. Luce (22 Ohio St. 62), 426. Thayer v. Manley (73 N. Y. 305), 56. Thayer v. Rock (13 Wend. 53), 335. Thayer v. Turner (8 Mete. 550), 914. Thaxter v. Foster (153 Mass. 151), 924. Thedford v. McClintock (47 Ala. 647), 1024. Theilen v. Rath (80 Wis. 263), 397. Theiss v. Theiss (166 Pa. St. 9), 1739. Theo. Harnm Brewing Co. v. Young (76 Minn. 246), 1029. Theus v. Dugger (93 Tenn. 41), 138. Thew v. Miller (73 Iowa, 742), 1786. Third Nat. Bank v. Armstrong (25 Minn. 530), 620. Thirlby v. Rainbow (93 Mich. 164), 599, 630. Thol v. Henderson (8 Q. B. Div. 457), 1762, 1770. Thomas v. Blackman (1 ColL 312), 228. Thomas v. City of Richmond (79 U. S. 349), 1024. Thomas v. Kerr (3 Bush, 619), 461. Thomas v. Knowles (128 Mass. 22), 271. Thomas v. Parsons (87 Me. 203), 588, 597, 603. Thomas v. Simpson (80 N. C. 4), 1344. Thomas v. State (37 Miss. 353), 714. Thomas v. Winchester (6 N. Y. 397), I, §§ 1-797; Vol. H, §§ 798-1850. Thomas Mfg. Co. v. Drew (69 Minn. 69), 603. Thomas, etc. Mfg. Co. v. Wabash, etc. Ry. Co. (62 Wis. 642), 1790. Thomason v. Lewis (103 Ala. 426), 619. Thome v. Colton (27 Iowa, 425), 642. Thompson v. Adams (93 Pa. St. 55), 197. Thompson v. Alger (12 Mete. 428), 420, 1695. Thompson v. Bait. & O. R. Co. (28 Md. 396), 1485, 1514 Thompson v. Bank (82 N. Y. 1), 1461. Thompson v. Bertrand (23 Ark. 730), 1272. Thompson v. Botts (8 Mo. 710), 1273. Thompson v. Dougherty (12 Serg. & R 448), 975. Thompson v. Douglass (35 W. Va. 337), 243, 1374. Thompson v. Elliott (73 111. 221), 1459. Thompson v. Gardiner (1 C. P. D. 777), 468. Thompson v. Harvey (86 Ala. 519), 816, 1272, 1273, 1274, 1805. Thompson v. Howard (31 Mich. 309), 909. Thompson v. Johnson (55 Minn. 515), 955. Thompson v. Knickerbocker Ins. Co. (104 U. S. 252), 1073. Thompson v. Lay (4 Pick. 48), 121. Thompson v. Libby (34 Minn. 374), 446, 447, 1254, 1256, 1314, 1327, 1391, 1392. Thompson v. McCullough (31 Mo. 224), 838, 1849. Thompson v. Paret (94 Pa. St. 275), 600. Thompson v. Peck (115 Ind. 512), 906, 914, 915, 1424. Thompson v. Phoenix Ins. Co. (75 Me. 55), 872. Thompson v. Richardson Drug Co. (33 Neb. 714), 955. TABLE OF CASES CITED. CXC111 References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Thompson v. Thompson (4 Cush. 127), 1540. Thompson v. Thompson (19 Me. 244), 970. Thompson v. Vinton (121 Mass. 139), 646. Thompson v. Waters (25 Mich. 223), 142. Thompson v. Wedge (50 Wis. 642), 1481, 1482. Thompson v. Wilhite (81 111. 356), 964, 1199. Thompson v. Williams (58 N. H. 240), 998, 1053, 1054. Thompson v. Yeck (21 111. 73), 960. Thompson Mfg. Co. v.Smith (67 X. H. 409), 967. Thorns v. Dingley (70 Me. 100), 1817, 1823, 1826. Thomson-Houston Electric Co. v. Brush-Swan Co. (31 Fed. R. 536), 682. Thomson-Houston Co. v. Palmer (52 Minn. 174), 1432. Thoreson v. Minneapolis Harvester Works (29 Minn. 341), 1835. Thorndike v. Bath (114 Mass. 116), 964, 965, 991. Thorndike v. Locke (98 Mass. 340), 685, 1695. Thorne v. First Nat. Bank (37 Ohio St. 254), 960. Thorne v. McVeagh (75 111. 81), 1244. Thorne v. Prentiss (83 111. 99), 881. Thornton v. Charles (9 M. & W. 802), 468. Thornton v. Davenport (1 Scam. 296), 960. Thornton v. Kempster (5 Taunt. 786), 272, 449, 468. Thornton v. Lawther (169 111. 228), 1459. Thornton v. Meux(M. & M. 43), 468. Thornton v. Thompson (4 Gratt. 121), 1817. Thornton v. Wynn (25 U. S. 183), 1805. Thorpe v. Hanscon (64 Minn. 201), 72. Thorpe v. Fowler (57 Iowa, 541), 554. Thrall v. Newell (19 Vt. 202), 835, 1303. Thrall v. Wright (38 Vt. 494), 131, 132. Thrash v. Starbuck (145 Ind. 673), 77. Throughgood's Case (2 Co. R. 9), 266. Thurber v. Ryan (12 Kan. 453), 1169. Thuret v. Jenkins (7 Mart. 318), 649. Thurnell v. Balbirnie (2 Mees. & W. 786), 213, 674. Thurston v. Blanchard (22 Pick. 18), 914, 915, 919, 928. Thurston v. Spratt (52 Me. 202), 1302, 1798. Tibbetts v. Garrish (25 N. H. 41), 103, 121. Tibbetts v. Home (65 N. H. 242), 646. Tice v. Gallup (2 Hun, 446), 1281, 1294. Ticknor v. McClelland (84 111. 471), 960, 964, 1198. Tifft v. Horton (53 N. Y. 377), 647. Tigress, The (32 L. Jour. Adm. 97), 1611. Tilden v. Minor (45 Vt. 196), 1194. Tilden v. Rosenthal (41 111. 386), 1168. Tilley v. Cook County (103 U. S. 155), 228. Tilton Safe Co. v. Tisdale (48 Vt. 83), 1349. Tillinghast v. Holbrook (7 R. I. 230), 97. Tillman v. Heller (78 Tex. 597), 952. Tillock v. Webb (56 Me. 100), 1057. Timmis v. Wade (5 Ind. App. 139), 935. Timrod v. Schoolbred (1 Bay, 324), 1319. Tinn v. Hoffman (29 Law Times R., N. S., 273), 233. Tipton v. Feitner (20 N. Y. 425), 350. Tipton v. Triplett (1 Mete. 570), 1795. Tisdale v. Buckmore (33 Me. 461), 914. Tisdale v. Harris (20 Pick. 9), 331. Titley v. Enterprise Stone Co. (127 111. 457), 1254, 1391. Titus v. Glens Falls Ins. Co. (81 N. Y. 419), 1072. CXC1V TA.BLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850 Titlow v. Titlow (59 Pa. St. 216), 70. Tobey v. Price (75 111. 645), 1079. Tobias v. Lissberger (105 N. Y. 404), 653, 1134, 1139. Todd v. Diamond State Iron Co. (8 Houst. 372), 1718, 1727, 1733. Todd v. Gamble (148 N. Y. 382), 1703. Tognini v. Kyle (17 Nev. 209), 964. Tolerton & Stetson Co. v. Ar.glo- California Bank ( Iowa, — ), 1816. Tomblin v. Callen (69 Iowa, 229), 1031. Tomkinson v. Balkis Consolidated Co. (2 Q. B. 614), 876. Tomkinson v. Staight (17 C. B. 697), 395. Tomlinson v. Morris (12 Out. R. 311), 1223. Tomlinson v. Roberts (25 Conn. 477), 599. Tompkins v. Compton (93 Ga. 520), 996, 1040. Tompkins v. Haas (2 Pa. St. 74), 351. Tompkins v. Sheehan (58 N. Y. 617), 399, 454. Toms v. Wilson (4 B. & S. 442), 1416. Toney v. McGehee (38 Ark. 427), 973, 974. Tony v. Zell (149 Pa. St. 458), 1242. Tootle v. First Nat. Bank (34 Neb. 863), 918. Topliff v. McKendree (88 Mich. 148), 234. Torkelson v. Jorgenson (28 Minn. 383), 859, 1225. Torrey v. Corliss (33 Me. 333), 736. Totten v. Burhans (91 Mich. 499), 875. Tourret v. Cripps (48 L. J. Ch. 507), 451. Towell v. Gatewood (2 Scam. 22), 1242, 1247. Towell v. Pence (47 Ind. 304), 109. Towers v. Osborne (1 Strange, 506), 295, 296, 297, 299, 305. Towle v. Dresser (73 Me. 252), 106. Towne v. Davis (66 N. H. 396), 493, 499, 502, 541, 546, 547. Townend v. Drakeford (1 Car. & K. 20), 468. Townley v. Crump (4 A. & E. 58), 1485, 1487, 1513, 1515. Townsend's Case (L. R. 13 Eq. 148), 247. Townsend v. Cowles(31 Ala. 428), 873. Townsend v. Felthousen (156 N. Y. 618), 937. Townsend v. Fisher (2 Hilton, 47), 263. Townsend v. Hargraves (118 Mass. 325), 387, 395, 402, 403, 493, 542, 1193. Tracy v. Talmage (14 N. Y. 162), 1013, 1015, 1019. Traders' Nat, Bank of Ft. Worth v. Day (37 Tex. 101), 964. Trainer v. Morrison (78 Me. 160), 1449, 1450. Trainer v. Trumbull (141 Mass. 527), 127, 128, 129. Trapp v. New Bird sail Co. (99 Wis. 458), 1812. Travers v. Leopold (124 111. 431), 40. Tread well v. Reynolds (39 Conn. 31), 360. Treadwell v. Salisbury Mfg. Co. (7 Gray, 393), 141. Treadwell v. State (99 Ga. 779), 896. Treadwell v. Whittier (80 Cal. 575), 1780. Treasurer v. Commercial Coal M. Co. (23 Cal. 370), 1727. Treat v. Hiles (68 Wis. 344), 347. Tredway v. Riley (32 Neb. 495), 1043. Tregelles v. Sewell (7 H. & N. 574), 740, 741, 775, 1180. Tregent v. Maybee (54 Mich. 226), 909. Treusch v. Ottenburg (4 C. C. A. 629), 953. Trevor v. Wood (36 N. Y. 307), 240, ' 247, 429. Trice v. Cockran (8 Gratt. 442), 940, 1810. Trigg v. Clay (88 Va. 330), 1742, 1766. TABLE OF CASES CITED. cxcv References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 708-1850. Trimble v. Stillwell (4 E. D. Smith, 512), 207. Trimuiier v. Thomson (10 S. C. 164), 1260. Tripp v. Armitage (4 M. & W. 687), 761. Tripp v. Bishop (56 Pa. St. 424), 449. Tripp v. Forsaith Maoh. Co. (69 N. H. 233), 1650, 1690. Tripp v. Hasceig (20 Mich. 254). 342. Tripp Boot & Shoe Co. v. Martin (45 Kan. 765), 1451. Triplett v. Mansur & Tebbetts Imple- ment Co. ( — Ark. — ), 586, 599. Troewert v. Decker (51 Wis. 46), 1054. Trotman v. Wood (16 C. B. 479), 834. Trotter v. Heckscher (40 N. J. Eq. 612), 1148. Trounstine v. Sellers (35 Kan. 447', 244, 247. Trueman v. Hurst (1 T. R. 40), 1214. Trueman v. Loder (11 Ad. & EL 589), 455, 468, 1264. Trull v. Hammond (71 Minn. 172), 1453, 1455. Trumbull v. O'Hara (71 Conn. 172), ■1805. Truxton v. Tait (1 Pennew. 483), 924. Tucker v. Cady (25 111. App. 578), 207. Tucker v. Humphrey (4 Bing. 516), 1530, 1577. Tucker v. Lawrence (56 Vt. 467), 253. Tucker v. Moreland (1 Am. Lead. Cas. 260), 109. Tucker v. Mowrey (12 Mich. 378), 1053, 1054, 1057. Tucker v. West (29 Ark. 386), 1054, 1057. Tucker v. White (125 Mass. 344), 875. Tucker v. Woods (12 Johns. 190), 226. Tuckerman v. Hinkley (9 Allen, 452), 1057. Tufts v. Bennett (163 Mass. 398). 1690. Tufts v. Brace (103 Wis. 341), 620. Tufts v. D'Arcarnbal (85 Mich. 185), 595, 622, 629. Tufts v. Grewer (83 Me. 412), 1665. Tufts v. Griffin (107 N. C. 47), 635. Tufts v. Lawrence (77 Tex. 526), 754, 1701. . Tufts v. McClure (40 Iowa, 317), 1129, 1134. Tufts v. Plymouth Mining Co. (14 Allen, 407), 431. Tufts v. Stone (70 Miss. 54), 597. Tufts v. Sylvester (79 Me. 213), 1592, 1594. Tufts v. Weinfield (88 Wis. 647). 1702. Tufts v. Wynne (45 Mo. App. 42), 635. Tull v. David (45 Mo. 444), 461, 462. Tunell v. Larson (39 Minn. 269), 964. Tunke v. Allen (54 Neb. 407), 1690. Tupper v. Cadwell (12 Mete. 559), 130, 131, 132. Turley v: Bates (2 H. & C. 200), 484, 524, 529. Turner v. Gaither (83 N. C. 357), 102, 105, 121, 130, 132. Turner v. Iowa Nat. Bank (2 Wash. 192), 955. Turner v. Liverpool Dock Trustees (6 Ex. 543), 735, 775, 779, 785, 787, 796. 1548, 1550. Turner v. Lorrilard Co. (100 Ga. 645), 426, 438, 448. Turner v. Machine Co. (97 Mich. 166), 660, 1382,1384. Turner v. Mason (65 Mich. 662), 310. Turner v. Moore (58 Vt. 455), 543. Tustin Fruit Ass'n v. Earl Fruit Co. (121 Cal. xviii), 1642. Tuteur v. Chase (66 Miss. 476), 952, 953. Tuthill v. Skidmore (124 N. Y. 148), 1476, 1502, 1513, 1623. Tuttle v. Bean (13 Mete. 275), 1080. Tuttle v. Brown (4 Gray, 457), 1244, 1269. Tuttle v. Holland (43 Vt. 542), 1027. Tuxworth v. Moore (9 Pick. 347), 491, 788, 964, 1193. Tweed v. Mills (1 Com. PI. 39), 197. Twyne's Case (3 Coke, 80), 960, 970. CXCV1 TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Tye v. Fynmore (3 Camp. 462), 1321. Tyers v. Rosedale Iron Co. (L. R. 10 Exch. 195), 1151, 1153. Tyler v. Augusta (88 Me. 504), 1812. Tyler v. Carlisle (79 Me. 210), 999. Tyler v. Freeman (3 Cush. 261), 546. Tyler v. Strong (21 Barb. 198), 518, 524. Tyre v. Causey (4 Harr. 425), 1242, 1268. Tyson v. Post (108 N. Y. 217), 645. Ubben v. Binnian (182 111. 508), 1037. Ueeker v. Koehn (21 Neb. 559), 100. Ufforcl v. Winchester (69 Vt, 542), 601. Uhler v. Sempla (20 N. J. Eq. 288), 1242. Ullman v. Kent (60 111. 271), 1633. Umfrid v. Brookes (14 Wash. 675), 1129. Underwood v. Caldwell (102 Ga. 16), 937, 1391. Underwood v. Wolf (131 111. 425), 1392, 1393, 1395, 1844. Unexcelled Fire Works Co. v. Polites (130 Pa. St. 536), 1091, 1092, 1674, 1690, 1701, 1702. Union Hide & Leather Co. v. Reissig (48 111. 75), 1344, 1352. Union Canal Co. v. Young (1 Whart. 410), 924. Union National Bank v. Carr (15 Fed. R. 438), 1034. Union National Bank v. Miller (106 N. C. 347), 244, 251. Union National Bank v. Pray (44 Minn. 168), 974. Union Pac. R. Co. v. Johnson (45 Neb. 57), 792. Union Pac. Ry. Co. v. Smersh (22 Neb. 751), 950. Union School Furn. Co. v. Mason (3 S. Dak. 147), 1455. Union Stock Yard Co. v. Mallory (157 III. 554), 491, 908. Union Stock Yards v. Western Land Co. (59 Fed. R. 49), 20. United Society v. Brooks (145 Mass. 410), 336. United States v. Behan (110 U. S. 338), 1713. United States v. Cline (26 Fed. R. 515), 740. United States v. Peck (102 U. S. 64), 1106. United States v. Shriver (23 Fed. R. 134), 740, 794, 1029. United States v. Smoot (21 L. Ed. 107), 1090. United States v. Speed (75 U. S. 77), 1702. United States v. Wilkins (6 Wheat. 135), 213. United States Fire Alarm Co. v. Big Rapids (78 Mich. 67), 668. United States School Furniture Co. v. Board of Education ( Ky. — ), 175. Upham v. Dodd (24 Ark. 545), 714. Upham v. Richey (163 111. 530), 39. Upson v. Holmes (51 Conn. 500), 498, 527, 529. Upton v. Sturbridge Cotton Mills (111 Mass. 446), 549, 553, 740. Upton v. Suffolk Mills (11 Cush. 586), 1281, 1290. Upton v. Tribilcock (91 U. S. 45), 872. Upton Mfg. Co. v. Huiske (69 Iowa, 557), 816, 818, 819, 1384, 1805. Usher v. Hazeltine (5 Greenl. 471), 950. Utica Ins. Co. v. Kip (8 Cow. 20), 999. Utley v. Donaldson (94 U. S. 29), 217, 234, 1303. Vail v. Reynolds (118 N. Y. 297), 1843. Vail v. Strong (10 Vt. 457), 16, 1810. Vail v. Winterstein (94 Mich. 230), 138. Valerius v. Hockspiere (87 Iowa, 332), 1255. Valle v. Cerre (36 Mo. 575), 51, 752. Valley Distilling Co. v. Atkins (50 Ark. 289), 900. TABLE OF CASES CITED. CXCV11 References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Valley Iron Works v. Grand Rapids F. Mill (85 Wis. 274), 1387. Valpy v. Gibson (4 C. B. 837), 206, 438, 1559. Valpy v. Oakeley (16 Q. B. 941), 1513, 1515, 1690, 1737. Vance v. Schroyer (79 Ind. 380), 914. Vannerson v. Cheatham (41 S. C. 327), 138. Van Allen v. Francis (123 Cal. 474), 564, 566, 632. Van Bracklin v. Fonda (12 Johns. 468), 1357. Van Brocklen v. Smeallie (140 N. Y. 70), 1618, 1623, 1624, 1633, 1637, 1643. 1682. Van Brunt v. Pike (4 Gill, 270), 381, 964. Van Casteel v. Booker (2 Ex. 691), 735, 774, 775, 779, 787, 796, 1547, 1550. Vandegrift v. Covvles, etc. Co. (161 N. Y. 435), 1106. Vandenbergh v. Spooner (L. R. 1 Ex. 316), 430, 434. Vanderbilt v. Central R. R. Co. (43 N. J. Eq. 669), 363. Vanderbilt v. Eagle Iron Works (25 Wend. 665), 1161. Vanderhost v. MacTaggart (1 Brev. 269), 1320. Vanderkarr v. Thomson (19 Mich. 82), 342. Van Deusen v. Sweet (51 N. Y. 378), 69, 72, 77. Van Duzor v. Allen (90 111. 499), 546, 600. Van Epps v. Harrison (5 Hill, 63), 937, 940. Van Eps v. Schenectady (12 Johns. 436), 351. Van Hoesen v. Cameron (54 Mich. 609), 1264. Van Hoozer v. Cory (34 Barb. 12), 200. Van Hoven v. Irish (10 Fed. R. 13), 1057. I n Van Horn v. Rucker (33 Mo. 391), 1643, 1677. Van Keuren v. Corkins (4 Hun, 129), 1453. Vanmeter v. Estill (78 Ky. 456), 960. Van meter v. Spurrier (94 Ky. 22), 1050. Van Patton v. Beals (46 Iowa, 62), 73. Van Raalte v. Harrington (101 Mo. 602), 953. Van Range Co. v. Allen ( Miss. — ), 599. Van Schoick v. Niagara Ins. Co. (68 N. Y. 434), 1272. Van Toll v. South Eastern Ry. Co. (12 C. B. 75), 845. Van Valkenburgh v. Gregg (45 Neb. 654), 1124, 1128, 1195, 1217, 1374. Van Winkle v. Crowell (146 U. S. 42), 1387. Van Winkle v. Wilkins (81 Ga. 93), 1251. 1817. Van Wren v. Flynn (34 La. Ann. 1158), 627. Van Wyck v. Allen (69 N. Y. 61), 1237, 1334, 1354, 1827. Van Wyck v. Brasker (81 N. Y. 260), 87, 89. Van Wyck v. Seward (18 Wend. 375), 971. Varley v. Whipp (1 Q. B. 513), 1209, 1333. Varner v. Nobleborough (2 Greenlf. 121). 1424. Varney v. Young (11 Vt. 258), 186. Varnum v. Highgate (65 Vt. 416), 276. Vasse v. Smith (6 Cranch, 231), 120. Vassar v. Camp (11 N. Y. 441), 250. Vassau v. Campbell (79 M.nn. 167), 1154. Vasser v. Buxton (86 N. C. 335), 583, 599. Vaughn v. Hopson (10 Bush. 337). 600 Vaughn v. McFayden (110 Mich. 234), 606. Vawter v. Griffin (40 Ind. 593), 33L CXCV111 TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Veal v. Fortson (57 Tex. 482), 97. Veasey v. Somerby (5 Allen, 280), 1201. Velsain v. Lewis (15 Oreg. 549), 156. Vennard v. McConnell (11 Allen, 562), 1540. Vent v. Osgood (19 Pick. 572), 109, 123. Vermont Farm Mach. Co. v. Batch- elder (68 Vt. 430), 1251. Vermont Marble Co. v. Brow (109 Cal. 236), 588, 597. Vernon v. Keys (12 East, 632), 900. Vescelius v. Martin (11 Colo. 391), 179. Vickers v. Vickers (L. R. 4 Eq. 529), 213, 674. Vickery v. McCormick (117 Lad. 598), 1737, 1775. Victor Sewing Mach. Co. v. Heller (44 Wis. 265), 169. Vierling v. Iroquois Furnace Co. (170 111. 189), 1254. Vincent v. Cornell (13 Pick. 294), 573, 693. Vincent v. Germond (11 Johns. 283 , 402. Vincent v. Leland (100 Mass. 432), 1248, 1395, 1811. Vining v. Gilbraith (39 Me. 496), 380, 981. Vinz v. Beatty (61 Wis. 645), 1058. Virtue v. Beacham (17 N. Y. Supp. 450), 227. Vogel v. State (107 Ind. 374), 1136. Vogelsang v. Fisher (128 Mo. 386), 1565. Voltz v. Voltz (75 Ala. 555), 101. Voorhees v. Earle (2 Hill, 288), 912, 1805, 1817. Voorhees v. Wait (15 N. J. L. 343), 109. Voorhis v. Olmstead (66 N. Y. 113), 1516. Vorse v. Loomis (86 Iowa, 522), 603. Vose v. Deane (7 Mass. 280), 191. Vote v. Karrick (13 Colo. App. 388), 964. Vulicevich v. Skinner (77 Cal. 239), 344. Vusler v. Cox (53 N. J. L. 516). 183. Wabash Elevator Co. v. Bank (23 Ohio St. 311), 543, 554, 1407, 1437. Wabash W. Ry. Co. v. Friedman (146 111. 583), 1780. Wachsmuth v. Martini (154 111. 515), 897. Wackerbarth v. Masson (3 Camp. 270), 1130. Waddington v. Oliver (5 Bos. & Pul. 61), 1161. Wade v. Colvert (2 Mill, 27), 86. Wade v. Hamilton (30 Ga. 450), 51, 736, 752. Wade v. Moffett (21 111. 110). 483. Wadham & Co. v. Balfour (32 Oreg. 313), 378, 380, 499, 731, 1194. Wadleigh v. Buckingham (80 Wis. 230), 583. Wadsworth v. Dunnam (117 Ala. 661), 1004, 1053, 1054. Wadswords v. Sharpsteen (8 N. Y. 388), 69. Wagar v. Detroit, etc. R. Co. (79 Mich. 648), 499, 702. Wager v. Hall (83 U. S. 584), 1540. Wagner v. Breed (29 Neb. 720), 741. Wagner v. Hallack (3 Colo. 176), 740, 794 Wagner v. Hildebrand (187 Pa. St. 136), 1039. Wagner v. Nagel (33 Minn. 348), 183, 185. Wailing v. Toll (9 Johns, 141), 129, 132. Wait v. Baker (2 Ex. 1), 393, 721, 740, 742, 757, 774, 775, 782. 784, 787, 792, 796, 1181, 1496. Wait v. Borne (123 N. Y. 592), 1281, 1293. Wait v. Maxwell (5 Pick. 217), 72. TABLE OF CASES CITED. CXC1X References are to sections: Vol. I, §§ 1-797; Vol. H, §§ 798-1850. Waite v. McKelvey (71 Minn. 167), 365. Wake v. Griffin (9 Neb. 47), 960. Wake v. Harrop (6 H. & N. 768), 448. Wakefield Rattan Co. v. Tappan (70 Hun, 405), 893, 895. Wakeman v. Dalley (51 N. Y. 27), 875. Wakeman v. Wheeler & Wilson Mfg. Co. (101 N. Y. 205), 1763, 1765, 1776. Walburn-Swenson Co. v. Darrell (49 La. Ann. 1044), 647. Walden v. Murdock (23 Cal. 540), 380, 1132. Waldo v. Belcher (11 Ired. 609), 714. Waldron v. Chase (37 Me. 414), 702, 708, 711, 714, 1413. Waldron v. Haupt (2 P. F. Smith, 408), 580. Walker v. Blake (37 Me. 373), 676. Walker v. Borland (21 Mo. 289), 1787. Walker v. Boulton (3 U. C. Q. B. 252), 361. Walker v. Butterick (106 Mass. 237), 49. Walker v. Collier (37 111. 362), 723, 981, 982. Walker v. Davis (65 N. H. 170), 1155. Walker v. Davis (1 Gray, 506), 120. Walker v. Denison (86 111. 142), 257. Walker v. Ferrin (4 Vt. 523), 109. Walker v. Herring (21 Gratt. 678), 461. Walker v. Hoisington (43 Vt. 608). 1270. Walker v. Hyman (1 Ont. App. 345), 599. Walker v. Lovell (28 N. H. 138), 1004. Walker v. McConnico (10 Yerg. 228), 947. Walker v. Nusey (16 M. & W. 302), 404, 416, 420. Walker v. Pue (57 Md. 155), 1349. Walker v. Staples (5 Allen, 34), 39. Walker v. Supple (54 Ga. 178), 331. Walker v. Tucker (70 111. 527), 1103. Wall v. De Mitkiewicz (9 D. C. App. 109), 628. Wall v. Hill (1 B. Mon. 290), 77. Wall v. Schneider (59 Wis. 352), 203, 1031, 1032, 1034, 1035. Wallace v. Hallowell (56 Minn. 501), 1843. Wallace v. Jorman (2 Stark. 162), 932. Wallace v. Lark (12 S. C. 576), 1013, 1025. Wallace v. Mayor (29 Cal. 181), 191. Wallace v. Penfield (106 U. S. 260), 973. Wallace v. Rowley (91 Ind. 586), 138. Waller v. Todd (3 Dana, 503), 960. Walley v. Montgomery (3 East, 585), 772. 775. Wallis v. Bardwell (126 Mass. 366), 132, Wallis Tobacco Co. v. Jackson (99 Ala. 460), 188. Walradt v. Brown (1 Gilm. 397), 970. Walsh v. Blakely (6 Mont. 194), 1542. Walsh v. Byrnes (39 Minn. 527), 974. Walsh v. Morse (80 Mo. 568), 875. Walsh v. Myers (92 Wis. 397), 264, 1092. Walsh v. Taylor (39 Md. 592), 626, 627. Walsh v. Young (110 Mass. 396), 109, 118. Walter v. Everard (2 Q. B. 369), 132. Walter v. Jones (148 Pa. St. 589), 138. Walter v. Reed (34 Neb. 544), 1121, 1407. Walton v. Black (5 Houst. 149), 1127, 1130. Walton v. Lowrey (74 Miss. 484), 336. Walton v. Tusten (49 Miss. 569). 947. Wanamaker v. Yerkes (70 Pa. St. 443), 1485, 1499, 1515. Wangler v. Franklin (70 Mo. 659), 599. Wanser v. Messier (29 N. J. L. 256), 1795. Waples v. Overaker (77 Tex. 7), 1633. Warbasse v. Card (74 Iowa, 306), 1254. cc TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Ward v. Bourne (56 Mo. 161), 1424. Ward v. Evans (2 Ld. Raym. 928), 455. Ward v. Howe (38 N. H. 35), 1432. Ward v. Shaw (7 Wend. 404), 524, 535. Ward v. Smith (7 Wall. 447), 1455. Ward v. Taylor (56 111. 494), 748, 774, 1183. Ward v. Vosburgh (31 Fed. R. 12), 1031, 1032. Ward v. Ward (75 Minn. 269), 1052. Ward's Estate, In re (57 Minn. 377), 683. Wardell v. Fosdick (13 Johns. 325), 932. Wardell v. Williams (62 Mich. 50), 228, 234, 439, 443. Warden v. Marshall (99 Mass. 305), 1202, 1490. Warder, Bushnell, etc. Co. v. Home ( — Iowa, — ), 1382. Warder v. Fisher (48 Wis. 338), 1395. Warder v. Hoover (51 Iowa, 491), 549. Warder v. Robertson (75 Iowa, 585), 1286, 1386. Warder v. Rublee (42 Minn. 23), 156. Warder v. Whitish (77 Wis. 430), 868, 881, 934. Ware v. Jones (61 Ala. 288), 1013. Ware v. McCormack (96 Ky. 139), 1332. Ware v. Wheatnall (2 McCord, 413), 1794. Ware River R. Co. v. Vibbard (114 Mass. 447), 1474. Waring v. Ayres (40 N. Y. 357), 437. Waring v. Mason (18 Wend. 425), 1212, 1320, 1325, 1327, 1352. Warner v. Arctic Ice Co. (74 Me. 475), 1213, 1340. Warner v. Benjamin (89 Wis. 290), 1843. Warner v. Carlton (22 III. 415), 966. Warner v. Johnson (65 Iowa, 126), 603. Warner v. Littlefield (89 Mich. 329), 955. Warner v. Norton (20 How. 448), 960. Warner v. Roth (2 Wyo. 63), 599. Warner v. Vallily (13 R. I. 483), 919, 928. Warnken v. Langdon Co. (8 N. Dak. 243), 612. Warnock v. Campbell (25 N. J. Eq. 485), 87. Warren v. Chapman (105 Mass. 187), 1004. Warren v. Crane (50 Mich. 300), 1071. Warren v. Hodge (121 Mass. 106),1419. Warren v. Liddell (110 Ala. 232), 564, 646, 647. Warren v. Milliken (57 Me. 97), 708. Warren v. Philadelphia Coal Co. (83 Pa. St. 437), 1235. Warren v. Skinner (20 Conn. 559), 1419, 1420. Warren v. Stoddart (105 U. S. 224), 1755, 1770. Warren v. Thread Co. (134 Mass. 247), 197. Warren v. Wheeler (8 Mete. 97), 446, 499, 520. 702, 1082, 1131. Warren Chemical Co. v. Holbrook (118 N. Y. 586), 305. Warren & Durfee Mfg. Co. v. Wat- son (92 Iowa, 759), 1813. Warren Glass Works v. Coal Co. (65 Md. 547), 1311, 1314, 1319. Warten v. Strane (82 Ala. 311), 714. Wartman v. Breed (117 Mass. 18), 373, 658, 661. Warwick v. Slade (3 Camp. 127), 468. Washburn v. Cuddihy (8 Gray, 430), 1270. Washburn v. Fletcher (42 Wis. 152), 247. Washburn v. Franklin (35 Barb. 599), 1048. Washburn Iron Co. v. Russell (130 Mass. 543), 1128, 1189. Washington v. Johnson (7 Humph. 468), 659, 660. TABLE OF CASES CITED. CC1 References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Washington , Ice Co. v. Webster (62 Me. 341), 228, 234, 355, 1742. Washington Slate Co. v. Burdick (60 Minn. 270), 1423. Wass v. Insurance Co. (61 Me. 537), 1450. Wassenboehr v. Boulier (84 Me. 165), 1029. Wassenboehr v. Morgan (168 Mass. 291), 1027. Waterbury v. Andrews (67 Mich. 281), 878. Waterhouse v. Citizens' Bank (25 La. Ann. 77), 1455. Waterhouse v. Skinner (2 Bos. & P. 447), 1188. Waterman v. Clark (76 111. 428), 1079. Waterman v. Meigs (4 Cush. 497), 307, 437, 438. Waters v. Cox (2 111. App. 129), 649. Waters v. Riggin (19 Md. 536), 150. Waters v. Towers (8 Ex. 40), 1831. Waters Heater Co. v. Mansfield (48 Vt. 378), 682, 1384 Watertown S. C. Co. v. Davis (5 Del. 192), 569, 627. Watkins v. Hodges (6 H. & J. 38), 1151. Watkins v. Paine (57 Ga, 50), 738, 1380, 1392. Watkins v. Petefish (49 111. App. 80), 964. Watkins v. Wyatt (9 Baxt. 250). 202. Watt v. Wisconsin Cranberry Co. (63 Iowa, 730), 429, 445. Wattau v. Fenwick (1 Q. B. Div. 346), 188. Watte v. Wickersham (27 Neb. 457), 1031. Watson v. Alberts (120 Mich. 508), 646. Watson v. Billing (38 Ark. 278), 108. Watson v. Cheshire (18 Iowa, 202), 1332. Watson v. Cross (2 Duvall, 147), 132. Watson v. Denton (7 C. & P. 85), 1270. Watson v. Kirby (H2 Ala. 436), 1831. Watson v. Lisbon Bridge (14 Me. 201), 1826. Watson v. Needham (161 Mass. 404), 1773. Watson v. Rodgers (53 Cal. 401), 963. Watson v. Roode (30 Neb. 264), 1273. Watson v. Rowe (16 Vt. 525), 1277. Watson v. Silsby (166 Mass. 57), 901, 905, 906. Watson v. Spratley (10 Ex. 222). 329. Watson v. Stever (25 Mich. 386), 17, 1411. Watson Coal, etc. Co. v. Casteel (68 Ind. 476), 856. Watts v. Friend (10 B. & C. 446), 345, 352. Watts v. Hendry (13 Fla. 523), 702, 709, 711. Watts v. Howard (70 Minn. 122), 175. Waugh v. Beck (114 Pa. St. 422), 1031. Waugh v. Morris (L. R, 8 Q. B. 202), 1007, 1008. Way v. Martin (140 Pa. St. 499), 1235, 1248. 1249. Way v. Ryther (165 Mass. 226), 937. Way v. Wakefield (7 Vt. 228), 16. Weatherbee v. Cockrell (44 Kan. 380), 947. Weatlierby v. Higgins (6 Ind. 73), 342. Weathersly v. Weathersley (40 Miss. 462), 692. Weaver v. Burr (31 W. Va. 736), 227, 229, 244. Weaver v. Nixon (69 Ga. 699), 1433. Weaver v. Nugent (72 Tex. 272), 955. Weaver v. Shriver (79 Md. 530), 936. Webb v. Baltimore & East Shore Ry. Co. (77 Md. 92), 331. Webbv. Brooke (3 Taunt. 6), 1012, 1015. Webb v. Fairmaner (3 Mees. & Wels. 331), 1135. Webb v. Odell (49 N. Y. 583), 276. Webber v. Donnelly (33 Mich. 469), 1013, 1027. Webber v. Howe (36 Mich. 150), 365. ecu TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Webber v. Minor (6 Busb, 463), 1694. "Weber v. Baessler (3 Colo. App. 459), 1559, 1590. Weber v. Rothcbild (15 Oreg. 385), 954. Webster v. Anderson (42 Mich. 554), 390, 964. Webster v. Bailey (31 Mich. 36), 863, 875, 8S1. Webster v. Bailey (40 Mich. 641), 923, 924. Webster v. Bainbridge (13 Hun, 180), 1428. Webster v. Brown (67 Mich. 328), 438. Webster v. Cecil (30 Beav. 62), 278, 854. Webster v. Granger (78 111. 230), 491, 1194, 1320. Webster v. Hodgkins (25 N. H. 128), 1255. Webster v. Munger (8 Gray, 584), 1013, 1019, 1027. Webster v. Peck (31 Conn. 495), 960. Webster v. Whit worth (49 Ala. 201), 1455. Webster v. Wyser (1 Stew. 184), 1467. Webster v. Zielly (52 Barb. 482), 345. Webster-Gruber Marble Co. v. Dry- den (90 Iowa, 37), 1154. Weddigen v. Boston Elastic Co. (100 Mass. 422). 1436. Weed v. Beebe (12 Vt. 495), 109. Weed v. Dyer (53 Ark. 155), 1344. Weed v. Jewett (2 Met. 608), 200. Weedon v. Clark (94 Ala. 505), 492. Weeks v. Pike (60 N. H. 447), 599. Weeks v. Prescott (53 Vt. 57), 960. Wegenaar v. Dechow (33 N. Y. App. Div. 12), 935. Wegg v. Drake (16 U. C. Q. B. 252), 359. Weiden v. Woodruff (38 Mich. 130), 253, 255, 1255. Weil v. Golden (141 Mass. 364), 733. Weil v. State (46 Ohio St. 450), 603, 629. Weiland v. Krejnick (63 Minn. 314), 30. Weiland v. Sunwall (63 Minn. 320), 20, 30. Weill v. American Metal Co. (182 111. 128), 1081, 1130, 1705. Weimer v. Clement (37 Pa. St. 147), 1235, 1311. Weinstein v. Freyer (93 Ala. 257), 599, 649. Weir v. Bell (3 Ex. Div. 238), 876. Weir v. Day (57 Iowa, 84), 970. Weirv. Hudnut (115 Ind. 525), 411. Welby v. Armstrong (21 Ind. 489), 947. Welch v. Burdick (101 Iowa, 70), 937, 942. Welch v. Clifton Mfg. Co. (55 S. C. 568), 187. Welch v. Moffatt (1 N. Y. Sup. 575), 1161. Welch v. National Cash Reg. Co. ( — Ky. ), 603. Welch v. Olmstead (90 Mich. 492), 936. Welch v. Spies (103 Iowa, 389), 496, 498. Weld v. Came (98 Mass. 152), 760, 1189, 1198. Weld v. Cutler (2 Gray, 195), 702, 703, 714. Weld v. Nichols (17 Pick. 538), 1798. Welde v. Scotten (59. Md. 72), 970. Weller's Appeal (103 Pa. St. 594), 266. Wellington v. Oil Co. (104 Mass. 64), 878. Wells v. Alexandre (130 N. Y. 642), 264. Wells v. Cook (16 Ohio St. 67), 878. Wells v. Day (124 Mass. 32), 351. Wells v. Railway Co. (30 Wis. 605), 429. Wells v. Spears (1 McCord,421), 1260. Wellston Coal Co. v. Franklin Paper Co. (58 Ohio St. 182), 1713. Welsh v. Bell (32 Pa. St. 12), 643. Welsh v. Carter (1 Wend. 185), 1311. Welsh v. Gossler (89 N. Y. 540), 1139. TABLE OF CASES CITED. CC111 References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Welter v. Hill (65 Minn. 273), 202. Wemple v. North Dak. Elev. Co. (67 Minn. 87), 228. Wendall v. Osborne (63 Iowa, 100), 1384. Wentworth v. Outhwaite (10 Mees. & W. 535), 1577. Wentworth v. Woods Mach. Co. (163 Mass. 28), 599. Werder, In re (15 Fed. R. 789), 197. Wertheimer-Sohwartz Shoe Co. v. Faris (46 S. W. E. 336), 892, 901. West v. Anderson (9 Conn. 107), 933. West v. Bechtel ( — Mich. — ), 1147, 1148. West v. Cunningham (9 Port. 104), 1626, 1643. West v. Emery (17 Vt. 583), 1810. West v. Graff (23 Ind. App. 410), 905. West v. Humphrey (21 Nev. 80), 1181. West v. Piatt (127 Mass. 367), 553. West v. Russell (48 Mich. 74), 64. West Jersey R. Co. v. Trenton Car Works (32 N. J. L. 517), 755. West Philadelphia Nat. Bank v. Field (143 Pa. St. 473), 1422. West Va. Trans. Co. v. Ohio River Pipe-Line Co. (22 W. Va. 600), 208. Wescott v. Delano (20 Wis. 514), 341. Westcott v. Thompson (18 N. Y. 363), 676. Western Bank of Scotland v. Addie (L. R. 1 H. L. Sc. 145), 876. Western Security Co. v. Douglas (14 Wash. 215), 1453. Western Twine Co. v. Wright (11 S. Dak. 521), 1817, 1837. Western Union Tel. Co. v. American Union Tel. Co. (65 Ga. 160), 208. Western Union Tel. Co. v. Semmes (73 Md. 9), 1097. Westfall v. Jones (23 Barb. 9), 947. Westheimer v. Weisman (60 Kan. 753), 1028. Westmoreland v. Powell (59 Ga. 256), 970. Weston v. Brown (158 N. Y. 360). 601. Weston v. Card (96 Mich. 373), 1384. Weston v. McDowell (20 Mich. 353), 330, 331. Westurn v. Page (94 Wis. 251), 1281, 1294. Westzinthus, Matter of (5 B. & Ad. 817), 1568. Wetherbee v. Green (22 Mich. 311), 639, 640. Wetherill v. Neilson (20 Pa. St. 448), 1230. Wetmore v. McDougall (32 Mich. 276), 909. Wetmore v. Neuberger (44 Mich. 362), 336. ' Weyand v. Railway Co. (75 Iowa, 573), 782. Weybrick v. Harris (31 Kan. 92), 816, 1805, 1817. Weymouth v. Sanborn (43 N. H. 171), 1423. Whaley v. Hinchman (22 Mo. App. 483), 429. Wharton v. Mackenzie (5 Q. B. 606), 132. Wheadon v. Olds (20 Wend. 174), 274, 831, 839, 1846, 1850. Wheat v. Cross (31 Md. 99), 247, 258, 276. Wheaton v. Baker (14 Barb. 594). 919. Wheaton v. East (5 Yerg. 41). 95. Wheaton Roller Mill Co. v. Noye Mfg. Co. (66 Minn. 156), 1254. Wheeden v. Fisk (50 N. H. 125), 804. Wheeler v. Kanst (46 Wis. 398), 960. Wheeler v. New Brunswick, etc. R. R. Co. (115 U. S. 29), 264. Wheeler v. Nichols (32 Me. 233), 964. Wheeler v. Reed (36 111. 81), 1245, 1246. Wheeler v. Russel (17 Mass. 258), 1045, 1050. Wheeler v. Selden (63 Vt. 429), 960, 964, 966. Wheeler v. Sumner (4 Mason, 183), 9S7, 1201. CC1V TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Wheeler v. Wheeler (2 Mete. 474), 200. Wheeler v. Wheeler (11 Vt. 60), 1419. Wheeler v. Wheelock (33 Vt. 144), 1810. Wheeler v. Wheelock (34 Vt. 553), 868. Wheeler & Wilson Co. v. Irish-Amer- ican Bank (105 Ga. 57), 153, 549. Wheeler & Wilson Mfg. Co. v. Jacobs (2 N. Y. Misc. R. 236), 630. Wheeler & Wilson Mfg. Co. v. Keeler (65 Hun, 508), 906. Wheeler & Wilson Mfg. Co. v. Morgan (29 Kan. 519), 178. Wheeler & Wilson Mfg. Co. v. Teetz- laff (53 Wis. 211), 628. Wheeler & Wilson Mfg. Co. v. Thomp- son (33 Kan. 491), 1817. Wheelhouse v. Parr (141 Mass. 593), 737, 746, 1182. Wheeling, etc. R. Co. v. Koontz (61 Ohio St. 551), 1562, 1563, 1565, 1578, 1583. Wheelock v. Berkely (138 111. 153), 1818. Wheelton v. Hardisty (8 E. & B. 232), 861. Wlielan v. Couch (26 Grant Ch. 74), 569. Whelan v. Reilly (61 Mo. 565), 457. Whipple v. Gilpatrick (19 Me. 427), 599. Whipple v. Thayer (16 Pick. 25), 788. Whitaker v. Brown ( — Tex. Civ. App. — ), 905. Whitaker v. Eastwick (75 Pa. St. 229), 1302. Whitaker v. Hueske (29 Tex. 355), 1320. Whitaker v. McCormick (6 Mo. App. 114), 1345, 1354, 1834 Whitaker v. Sumner (20 Pick. 399), 39. Whitbeck v. Van Ness (11 Johns. 409), 1423, 1425. Whitcomb v. Denio (52 Vt. 382), 915. Whitcomb v. Joslyn (51 Vt. 79), 109. Whitcomb v. Whitney (24 Mich. 486), 489, 754. Whitcomb v. Wood worth (54 Vt. 544), 569, 603. White, Ex parte (L. R. 6 Ch. App. 397), 45, 49. White v. Barber (123 U. S. 392), 1039. White v. Beeton (7 H. & N. 42), 1075. White v. Branch (51 Ind. 210), 109. White v. Buss (3 Cush. 448), 1019. White v. Cox (3 Hayw. 79), 86, 90. White v. Crew (16 Ga. 416), 947. White v. ElwelL (48 Me. 360), 334. White v. Foster (102 Mass. 375), 336. White v. Franklin Bank (22 Pick. 181), 999, 1001. White v. Garden (10 C. B. 919), 148. White v. Harvey (85 Me. 212), 1186. White v. Hendrie (38 Mich. 390), 1595. White v. Langdon (30 Vt. 599), 601. White v. Miller (71 N. Y. 118), 1334, 1827. White v. Miller (7 Hun, 427), 1354. White v. Mitchell (38 Mich. 390), 924, 1588, 1589. White v. McCracken (60 Ark. 613), 485, 492, 964, 1198. White v. Oakes (89 Me. 367), 629, 1247, 1316, 1346. White v. Pease (15 Utah, 170), 967, 1132. White v. Proctor (4 Taunt. 209), 461. White v. Solomon (164 Mass. 516), 1415, 1671, 1675, 1687, 1694, 1695, 1698. White v. Stelloh (74 Wis. 435), 1235, 1266, 1314, 1316, 1355. White v. Toncray (9 Leigh, 347), 1171. White v. Welsh (38 Pa. St. 396), 1501, 1515. White v. Wilks (5 Taunt. 176), 702, 711. White Water Valley Canal Co. v. Valette (21 How. 424), 141. Whitefield v. McLeod (2 Bay, 380), 1319. TABLE OF CASES CITED. CCV References are to sections: Vol. Whiteford v. Hitchcock (74 Mich. 208), 228, 234. Whitehead v. Anderson (9 M. & W. 518), 1537, 1556, 1557, 1577, 1578, 1591, 1598, 1601, 1608, 1609. Whitehouse v. Frost (12 East, 614), 708, 711, 759. Whitesides v. Hunt (97 Ind. 191), 203, 1031, 1032, 1035, 1036, 1039. Whitfield v. United States (92 U. S. 165), 1024. Whiting v. Farrand (1 Conn. 60), 739, 1181. Whiting v. Hill (23 Mich. 399), 879. Whiting v. Insurance Co. (15 Md. 297), 1466. Whiting v. Price (170 Mass. 240), 1841. Whiting v. Sullivan (7 Mass. 107), 1475. Whiting Mfg. Co. v. Gephart (6 Wash. 615), 964. Whitla t. Moore (164 Pa. St. 451), 1158. Whitlock v. Heard (3 Rich. 88), 912. Whitman Agricultural Ass'n v. Na- tional Ass'n (45 Mo. App. 90), 1407. Whitman Agricultural Co. v. Horn- brook (55 N. E. R. 502), 49. Whitmarsh v. Hall (3 Denio, 375), 109. Whitmarsh v. Walker (1 Mete. 313), 339, 1407. Whitmore v. Gibbs (24 N. H. 484), 331. Whitmore v. Iron Co. (2 Allen, 52), 1254, 1259, 1340. Whitmore v. South Boston Iron Co. (2 Allen, 52), 1314. Whitney v. Allaire (1 N. Y. 305), 910, 1843. Whitney v. Boardman (118 Mass. 242), 933, 1339, 1640, 1643, 1690. Whitney v. Dutch (14 Mass. 457), 121. Whitney v. Eaton (15 Gray, 225), 546, 549, 556. Whitney v. Heywood (6 Cush. 82), 1302. I, §§ 1-797; Vol. H, §§ 798-1850. Whitney v. McConnell (29 Mich. 12), 588, 605. Whitney v. Price (172 Mass. 240), 1843. Whitney v. State Bank (7 Wis. 620), 1455. Whitney v. Sutton (10 Wend. 411), 1242, 1268. Whitney v. Taylor (54 Barb. 536), 1270. Whittaker, Ex parte (L. R. 10 Ch. App. 446), 906. Whitten v, Fitzwater (129 N. Y. 626), 902. Whittier v. Dana (10 Allen, 326), 806. Whittington v. Ross (8 111. App. 234), 1456. Whitwell v. Vincent (4 Pick. 449), 554, 555. 1437. Whitworth v. Thomas (83 Ala. 308), 932, 935. Wickes v. Hill (115 Mich. 323), 569, 646. Wickham v. Martin (13 Gratt. 427), 924. Widoe v. Webb (20 Ohio St. 431), 1004. Wiedeman v. Keller (171 I1L 93), 1356. Wieler v. Schilizzi (17 C. B. 619), 1333. Wiener v. Whipple (53 Wis. 298), 430, 446, 447, 448, 455, 1327. Wigand v. Sichel (3 Keyes, 120), 912, 1411. Wiggin v. Day (9 Gray, 97), 924. Wiggins v. Snow (89 Mich. 476), 595, 605, 613, 636, 642. Wigglesworth v. Steers (1 H. & M. 70), 86. Wigton v. Bowley. (130 Mass. 252), 502, 740, 757, 787. Wilbur v. Nichols (61 Vt. 432), 950. Wilbur Lbr. Co. v. Overbeck Co. (96 Wis. 383 ), 1844 Wilcox v. Cherry (123 N. C. 79), 569. CCV1 TABLE OF CASES CITED. References are to sections: Vol. Wilcox v. Cline (70 Mich. 517), 248. Wilcox v. Hall (53 Ga. 635), 1340, 1344. Wilcox v. Iowa Wesleyan University (32 Iowa, 367), 863. Wilcox v. Jackson (7 Colo. 521), 144, 964. Wilcox v. Owen (64 Ga. 601), 1260, 1340. Wilcox v. Roath (12 Conn. 550), 121. Wilcox v. San Jose Fruit Packing Co. (113 Ala. 519), 915. Wilcox v. Williamson Co. (92 Iowa, 215), 603. Wilcox v. Young (66 Mich. 687), 212. Wilcox Silver Plate Co. v. Green (72 N. Y. 17), 363, 391, 393, 736, 1181. Wilder v. Beede (119 Cal. 646), 942. Wilder v. De Cou (18 Minn. 471), 875. Wilder v. Weakley (34 Ind. 184), 74. Wiles v. Woodward (5 Exch. 557), 834. Wiley v. Athol (170 Mass. 426), 1075. Wiley v. Howard (15 Ind. 169), 1794. Wiley v. Lashlee (8 Humph. 716), 960. Wiley v. Mahood (10 W. Va. 206), 1455. Wiley v. Smith (2 Can. Sup. Ct. R. 1), 1587. Wiley v. Smith (1 Ont. App. 179), 1587. Wiley v. Wilson (77 Ind. 596), 79. Wilkes v. Ferris (5 Johns. 335), 380. Wilkin Mfg. Co. v. Loud Lumber Co. (94 Mich. 158), 228. Wilkins v. Stevens (8 Vt. 214), 1441. Wilkinson, Ex parte (Ambler, 399), 1526. Wilkinson, Adm'r, v. Wilkinson (61 Vt. 409), 364. Wilkinson v. Blount Mfg. Co. (169 Mass. 374), 1073, 1080. Wilkinson v. Evans (L. R. 1 C. P. 407), 428. I, §§ 1-797; Vol. II, §§798-1850. Wilkinson v. Ferre (24 Pa. St. 190), 838, 1793, 1849. Wilkinson v. Heavenrich (58 Mich. 574), 1449. Wilkinson v. Holiday (33 Mich. 386), 499, 516. Wilkinson v. Holloway (7 Leigh, 277), 1455. Wilkinson v. Ketler (69 Ala. 435), 202. Wilkinson v. Stewart (85 Pa. St. 255), 1158. Wilkinson v. Taylor Mfg. Co. (67 Miss. 281), 426, 428. Wilkinson v. Williamson (76 Ala. 163), 206. Wilks v. Davis (3 Meriv. 507), 674. Willamette Steam Mills Co. v. Union Lbr. Co. (94 Cal. 156), 1374. Willan v. Carter (Oliphant, 74), 1270. Willard v. Ostrander (46 Kan. 591), 1254 Willard v. Tatum(97 Cal. xviii),1374. Willcox v. Jackson (51 Iowa, 208), 68. Williams v. Allen (10 Humph. 337), 634. Williams v. Briggs (11 R. L 476), 202. Williams v. Brown (34 Me. 594), 95. Williams v. Burgess (10 Ad. & E. 499), 328. Williams v. Byrnes (1 Moore, P. C, N. S., 154), 434. Williams v. Carr (80 N. C. 294), 1032, 1043. Williams v. Clink (90 Mich. 297), 947, Williams v. Crosby Lumber Co. (118 N. C. 928), 1618, 1702. Williams v. Dakin (22 Wend. 201), 1073. Williams v. Dillon (100 Ga. 656), 1718. Williams v. Feiniman (14 Kan. 288), 702. Williams v. Gray (39 Mo. 201), 491, 527. Williams v. Hart (116 Mass. 513), 1131. TABLE OF CASES CITED. CCV11 References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Williams v. Hodges (113 N. C. 36), 1582. Williams v. Ingram (21 Tex. 300), 1272. Williams v. Jackman (16 Gray, 514), 755. Williams v. Johnston (92 N. C. 532), Ho.-). Williams v. Lake (2 E. & E. 349), 434. Williams v. Lane (8? Wis. 152), 1057, iosa Williams v. Montgomery (148 N. Y. 519), 1718, 1724, 1727. Williams v. Moor (11 M. & W. 256), 124. Williams v. Moore (5 N. H. 235), 1499. Williams v. McFadden (23 Fla. 143), 874, 1843. Williams v. Paul (6 Bingham, 653), 1057. Williams v. Robb (104 Mich. 242), 1391, 1392. Williams v. Robinson (73 Me. 186), 446, 447, 448, 449. Williams v. Reynolds (6 Best & S. 495), 1702, 1770. Williams v. Slaughter (3 Wis. 347), 1356, Williams v. Spafford (8 Pick. 250), 1520. Williams v. Tappan (23 N. H. 385), 1047. Williams v. Thrall (101 Wis. 337), 181 1, 1826. Williams v. Tiedeman (6 Mo. App. 269), 1034. Williams v. Tobacco Co. (44 S. W. R. isr,). 49. Williams v. Walker (2 Sandf. Ch. 325), 1453. Williams v. Wentworth (5 Beav. 325), 84. Williams v. Woods (16 Md. 220), 457, 463, 1748. Williams Mfg. Co. v. Standard Brass Co. (173 Mass. 356), 1384. Williamson v. Allison (2 East, 446), 932, 1311, 1810. Williamson v. Berry (8 How. 495), 5, 9, 20, 205, 234. Williamson v. Brandenburg (6 Ind. App. 97), 1057. Williamson v. Canaday (3 Ired. 349), 1281. Williamson v. Russell (39 Conn. 406), 923. Williamson v. Sammons(34 Ala. 691), 1302. Williamson v. Wachenheim (58 Iowa, 277), 953. Williar v. Irwin (11 Biss. 57), 1032. Willis v. Morris (63 Tex. 458). 947. Willis v. Mclntyre (70 Tex. 34). 955. Willis v. Twambly (13 Mass. 204), 1017. Willis v. Willis' Adm'r (6 Dana, 48), 483, 492. Willman Co. v. Fussy (15 Mont. 511), 774, 779. Willock v. Crescent Oil Co. (184 Pa. St. 245), 1746. Wills v. Ross (77 Ind. 1), 428. Wiiman v. Mizer (60 Ark. 281), 1840, 1841. Wilmarth v. Mountford (4 Wash. 79), 1437. Wilmot v. Hurd (11 Wend. 584), 1235, 1248. Wilmot r. Lyon (49 Ohio St. 296), 906. Wilmouth v. Patton (2 Bibb, 280), 754, 1124 Wilmshurst v. Bowker (7 Man. & Gr. 882), 775. 787, 1541, 1543. Wilson v. Bauman (80 111. 494^, 1147. Wilson v. Branch (77 Va. 65), 95. Wilson v. Carson (12 Md. 54), 649. Wilson v. Cattle Co. (36 U. S. App. 634), 1839. Wilson v. Crochet (43 Mo. 216). 154. Wilson v. Deen (74 N. Y. 531), 1254. Wilson v. Express Co. (27 Mo. App. 360), 887. CCV1U TABLE OF CASES CITED. References are to sections: Vol. I, §§ 1-797; Vol. II, §§ 798-1850. Wilson v. Ford (L. R. 3 Ex. 63), 185. Wilson v. Foree (6 Johns. 110), 913, 1411. Wilson v. Fruit Co. (11 Ind. App. 89), 747. Wilson v. Fuller (58 Minn. 149), 336. Wilson v. Hanson (20 N. H. 375), 1428. Wilson v. Hill (17 Nev. 401), 964. Wilson v. Leslie (20 Ohio, 161), 963. Wilson v. Lewiston Mill Co. (150 N. Y. 314), 428, 445, 452. Wilson v. Milligan (75 Mo. 41), 1057. Wilson v. Stratton (47 Me. 120), 660, 1449. Wilson v. Voight (6 Colo. 614), 649. Wilson v. Wilson (181 Pa. St. 80), 175. Wilson v. Y. & Md. Line R, Co. (11 G. & J. 58), 673. Winchell v. Carey (115 Mass. 560), 1058. Winchell v. Scott (114 N. Y. 640), 1147. Winchester v. Charter (12 Allen, 606), 973. Winchester v. Howard (97 Mass. 303), 267, 268. Winchester v. Newton (2 Allen, 492), 1145, 1148. Winchester Mfg. Co. v. Carman (109 Ind. 31), 601. Wind v. Her (93 Iowa, 316), 676, 678, 1028. Windmuller v. Pope (107 N. Y. 674), 1089, 1090, 1092, 1708. Windram v. French (151 Mass. 547), 882. Windsor v. Cruise (79 Ga. 635), 683. Wineland v. Coonce (5 Mo. 296), 923. Wineman v. Walters (53 Mich. 470), 1663. Winfield v. Dodge (45 Mich. 355), 1053, 1057. Wing v. Clark (24 Me. 366), 736, 483, 492. Wing v. Milliken (91 Me. 387), 1786. Wing v. Thompson (78 Wis. 256), 612, 624, 638. Wing v. Wadhams Oil Co. (99 Wis. 248), 211. Wingate v. Buhler (62 Mo. App. 418), 892. Winkelmeyer Brewing Ass'n v. Nipp (6 Kan. App. 730). 1027, 1029. Winkley v. Hill (9 N. H. 31), 956. Winn v. Morris (94 Ga. 452), 1850. Winner v. Williams (62 Mich. 363), 396. Winship v. Bank of United States (5 Peters, 529), 143. Winside State Bank v. Lound (52 Neb. 469), 1741. Winslow v. Harriman Iron Co. (42 S. W. R. 698), 1634. Winslow v. Leonard (24 Pa. St. 14), 987. Winslow v. Norton (29 Me. 419), 166. Winslow v. Railroad Co. (42 Vt. 700), 887. Winsor v. Lombard (18 Pick. 60), 1335, 1337, 1357. Winsted Bank v. Webb (39 N. Y. 325), 1429. Winterbottom v. Wright (10 M. & W. 109), 878. Wintz v. Morrison (17 Tex. 372), 869, 935. Wirebach v. First Nat. Bank (97 Pa. St. 543), 76, 79. Wirth v. Roche (92 Me. 383), 1004. Wisconsin Red Pressed Brick Co. v. Hood (60 Minn. 401), 1337, 1350. Wise v. Collins (121 Cal. 147), 567. Wisecarver v. Adamson (118 Pa. St. 53), 1128. Wiseman v. Vanderput (2 Vern. 203), 1526. Witherow v. Witherow (16 Ohio, 238), 1162. Wittkowsky v. Wasson (71 N. C. 451), 205, 209. TABLE OF CASES CITED. CC1X References are to sections: Vol. I, §§ 1-797; Vol. n, §§ 798-1850. Wolcott v. Heath (78 111. 433), 1034. Wolcott v. Mount (36 N. J. L. 262), 1209, 1334, 1354, 1827. Wolcott v. Mount (38 N. J. L. 496), 1827. Wolf v. Dietzsch (75 111. 205), 746. Wolf v. Kalm (62 Miss. 814), 964. Wolf v. Lachman (20 S. W. R. 867), 892, 924. Wolf v. Marsh (54 Cal. 228), 1097. Wolf v. McGugin (37 W. Va. 552), 955. Wolf v. National Bank (178 111. 85), 203, 1037. Wolf v. Willetts (35 111. 88), 264. Wolford v. Young (105 Iowa, 512), 1453. Wollensak v. Briggs (119 111. 453), 755. Wollner v. Lehman (85 Ala. 274), 903, 904. Wood v. Ashe (3 Strob. 64), 1260. Wood v. Bell (5 El. & Bl. 772), 755. Wood v. Bell (6 E. & B. 355), 355, 761, 762. Wood v. Boynton (64 Wis. 265), 276. Wood v. Cavin (38 Tenn. 506), 1795. Wood v. Chambers (20 Tex. 247), 952. Wood v. Evans (98 Ga. 454), 603. Wood v. Garland (58 N. H. 154), 915. Wood v. Jackson (8 Wend. 9), 955. Wood v. Losey (50 Mich. 475), 131, 132. Wood v. Manley (11 Ad. & El. 34), 1191. Wood v. Michaud (63 Minn. 478), 765, 1321, 1674. Wood v. Roeder (50 Neb. 476), 872. Wood v. Ross (— Tex. Civ. App. — ), 1314, 1355. Wood v. Sheldon (42 N. J. L. 421), 835, 838, 1303, 1849. Wood v. Smith (5 M. & Ry. 124), 1241, 1242, 1277. Wood v. Tastell (6 Ad. & EL, N. S., 234), 491, 1187, 1412. Wood v. Yeatman (15 B. Mon. 270), 1571. Wood Harvester Co. v. Ramberg (60 Minn. 219), 1321. Wood Mach. Co. v. Calvert (89 Wis. 640), 1380, 1385. Wood Mower & Reaper Co. v. Thayer (50 Hun, 516), 1344. Wood Mowing & Reap. Mach. Co. v. * Crow (70 Iowa, 340), 1288. Wood Mowing & Reap. Mach. Co. v. Gaertner (55 Mich. 453), 1255. Wood Reaping, etc. Mach. Co. v. Smith (50 Mich. 565), 667, 669. Woodall v. Kelly (85 Ala, 368), 955. Woodbury v. Larned (5 Minn. 339), 1455. Woodbury v. Long (8 Pick. 543), 1189. Woodbury v. Robbins (10 Cush. 520), 1270, 1271. Woodford v. Hamilton (139 Ind. 481), 1026. Woodford v. McClenahan (4 Gilm. 85), 1281. Woodford v. Patterson (32 Barb. 630), 328. Wnodle v. Whitney (23 Wis. 55), 1155, 1208, 1344. Woodley v. Coventry (2 H. & C. 164), 1493, 1503. Woodruff v. Nashville, etc. R. Co. (2 Head, 87), 752. Woodruff v. Noyes (15 Conn. 335), 746, 1572. Woodruff v. Railroad Co. (2 Head, 87), 51. Woodruff v. Scaife (83 Ala. 152), 143. Wood's Appeal (92 Pa. St. 379), 162. Woods v. Armstrong (54 Ala. 150), 1045, 1046, 1048, 1050. Woods v. Ayers (39 Mich. 345), 17, 1411. Woods v. Cramer (34 S. C. 508), 1643. Woods v. Magee (7 Ohio, 128), 542, 701, 714. Woods v. Miller (55 Iowa, 168), 1129, 1134. Woods v. Nichols (21 R. L 537), 156. Woods v. Russell (5 B. & Aid. 942), 510, 755, 759, 761, 762. ccx TABLE OF CASES CITED. References are to sections: Vol. Woodward v. Barnes (43 Vt. 330 \ 183. Woodward v. Boone (126 Ind. 122), 29. Woodward v. Brooks (128 111. 212), 1043. Woodward v. Emmons (61 N. J. L. 281), 1387. Woodward v. Seamans(125 Ind. 350), 22 25. Woodward v. Thacher (21 Vt. 580), 1813. Woolenslagle v. Runals (76 Mich. 545), 1843. Wooley v. Wagon Co. (59 N. J. L. 278), 603, 649., Wolfe v. Home (2 Q. B. Div. 355). 1138. Woolman v. Wirtsbaugh (22 Neb. 490), 1843. Woolner v. Hill (93 N. Y. 576), 1097. Woolridge v. Gage (68 111. 157), 970. Woonsocket Rubber Co. v. Lowen- berg (17 Wash. 29), 908, 909, 924. Worcester v. Eaton (11 Mass. 368), 1053. Worden v. Harvester Co. (11 Neb. 116\ 1384. Work v. Bennett (70 Pa. St. 484), 1787. Work v. Jacobs (35 Neb. 772), 892, 924. Worland v. Kimberlin (6 B. Mon. 608), 952. Wornock v. Loar (11 S. W. R. 438), 132. Worrall v. Munn (5 N. Y. 229), 425. Worth v. McConnell (42 Mich. 473), 1245. Worthington v. Bullitt(6Md. 172), 957. Worthy v. Johnson (8 Ga. 236), 1307. Wray v. Chandler (64 Ind. 146), 72, 73. Wright v. Bank of Metropolis (110 N. Y. 237), 1132, 1787. Wright v. Barnard (89 Iowa, 166), 599. 603, 679. Wright v. Bell (5 Price, 325), 1730. Wright v. Brown (67 N. Y. 1), 906. Wright v. Cabot (89 N. Y. 570), 1447, 1452. I, §§ 1-797; Vol. n, §§ 798-1850. Wright v. Casteel. State ex rel. (51 Mo. App. 143), 964. Wright v. Daily (26 Tex. 730), 1455. Wright v. Dannah (2 Camp. 203), 462. Wright v. Fisher (65 Mich. 279), 86. Wright v. Hart (18 Wend. 449), 1311, 1357. Wright v. Hughes (119 Ind. 324), 1013. Wright v. Lowes (4 Esp. 82), 1597. Wright v. McCormick (67 Mo. 426), 964. Wright v. 0"Brien (5 Daly, 54), 755, 759. Wright v. Ryder (26 Cal. 342), 208. Wright v. Shelby R. Co. (16 B. Mon. 4), 874. Wright v. Tetlow (99 Mass. 397), 755. Wright v. Vaughn (45 Vt. 369), 565. Wright v. Weeks (25 N. Y. 153), 426. Wright v. Wright (51 N. J. Eq. 475), 892. Wrigley v. Cornelius (162 111. 92), 1633, 1635, 1643. Wulschner v. Ward (115 Ind. 219), 328. Wyckoff v. Vicary (75 Hun, 409), 149. Wyler v. Rothschild (53 Neb. 566), 361, 1387. Wyman v. Brown (50 Me. 139), 973. Wyman v. Rae (11 G. & J. 416), 1423, 1427. Wynn v. Longley (31 111. App. 616), 1843. Xenos v. Wickham (L. R. 2 H. L. 296), 259. Vale v. Seely (15 Vt. 221), 1191. Yanger v. Skinner (1 McCarter, 389), 69. Yates v. Lyon (61 N. Y. 344). 97. Yates v. Pym (6 Taunt. 446), 1236, 1264. Yeakle v. Jacob (33 Pa. St. 376), 336. Yellow Poplar Lumber Co. v. Chap- man (20 C. C. A. 687), 1690. Yerkes v. Norris (90 Mich. 234), 1426. Yoder v. Haworth (57 Neb. 150), 49. TABLE OF CASES CITED. CCX1 References are to sections: Vol. I, §§ 1-797: Vol. H, §§ 79&-1 )50. York County Bank v. Carter (38 Pa. St. 446), 955. Young v. Austin (6 Pick. 280), 714. Young v. Blaisdell (60 Me. 272), 355, 358. Young v. Burton (1 McMul. Eq. 255), 1719. Young v. Cureton (87 Ala. 727), 1763. Young v. Dalton (83 Tex. 497), 1664. Young v. Kansas Mfg. Co. (23 Fla. 394), 546, 549. Young v. Lathrop (67 N. C. 63), 977. Young v. Mertens (27 Md. 114), 1643, 1682. Young v. Miles (20 Wis. 615), 702, 711. Young v. Miles (23 Wis. 643), 708. Young v. McClure (2 Watts & S. 147), 960. Young v. Stevens (48 N. H. 133), 74, 84, 109. Young Mfg. Co. v. Wakefield (121 Mass. 91), 831, 1401, 1846. Youngblood v. Birmingham Trust Co. (95 Ala. 521), 1045. Yount v. Yount (144 Ind. 133), 65. Youse v. Norcoms (12 Mo. 549). 95. Yundt v. Roberts (5 Serg. & R. 139), 1004. Zabriskie v. Central, etc. R. Co. (131 N. Y. 72), 1335, 1393, 1395. Zaleski v. Clark (44 Conn. 218), 665, 666. Zann v. Haller (71 Ind. 136), 451. Zellner v. Mobley (84 Ga. 746), 1194. Ziegler v. Handrick (106 Pa. St. 87), 985. Zimmerman t. Morrow (28 Minn. 367), 859. 1225, 1247. Zimmerman v. Sale (3 Rich. 76), 451. Zimmerman Mfg. Co. v. Dolph (104 Mich. 281), 1254. Zoeller v. Riley (100 N. Y 103), 151. Zook v. Odle (3 Colo. App. 87), 1423. Zuehtmann v. Roberts (109 Mass. 53), 599. Zuck v. McClure (98 Pa. St. 541), 1089, 1090, 1092, 1129, 1707. Zucker v. Karpeles (88 Mich. 413), 901, 906. SALE OF PERSONAL PROPERTY. SALE OF PERSONAL PROPERTY. BOOK I. OF THE CONTRACT OF SALE: ITS FORMATION. CHAPTER I. DEFINITIONS. 1. Sale defined. 2. Forms of bargaining. 3. Effect of intention. 4. Essential elements. 5. Further of the definition — Executory or executed sales. § 6. Bargain and sale. 7. Absolute and conditional sales. 8. Voluntary and forced sales. 9. Judicial sales. 10. Public and private sales. § 1. Sale defined, — A sale of personal property is the trans- fer, in pursuance of a valid agreement, from one party, called the seller, to another, called the buyer, of the general or absolute title to a specific chattel, for a price, or a consideration esti- mated, in money. 1 x Mr. Benjamin, Sales, § 1, says: " It may be defined to be a transfer of the absolute or general property in a thing for a price in money.'''' Blackstone defines it as "a trans- mutation of property from one man to another in consideration of some price." 2 BL Com. 446. Kent de- fines it as " a contract for the trans- fer of property from one person to another for a valuable consideration." 2 Kent's Com. 468. Long's definition is "a transfer- ring of property from one person to another, in consideration of a sum of money to be paid by the vendee to the vendor." Long on Sales, 1. Story (W. W.) says: "A sale is a transfer of the absolute title to prop- erty for a certain agreed price." Story on Sales, § 1. Tiedeman defines it as " a contract or agreement for the transfer of the absolute property in personalty from one person to another for a price in money." Tiedeman on Sales, § 1. English Sale of Goods Act, 1893: "1. — (1) A contract of sale of § 1.] LAW OF SALE. [BOOK I. The essential elements here involved are that there must be (1) a transfer, of (2) the general or absolute title, to (3) a spe- cific chattel, for (4) a price in money or a consideration esti- mated in money. Sale is pre-eminently the transfer of the title. This transfer may ensue at once as the immediate effect of the present agree- ment of the parties ; or it may be the postponed result to ensue in future from the present agreement of the parties aided or completed by some subsequent act or event, such as the lapse of time or the performance of precedent conditions. In either case the sale takes place only when the title passes. Sale means, moreover, the transfer of the absolute or gen- eral title. There may be other transfers, of limited interests, such as the right of possession or some special property in or lien upon the goods ; but these, as will be seen, 1 do not consti- tute a sale. There can clearly be no present sale until the specific chattel has been ascertained and identified. There may be bargain- ings concerning the future sale of a chattel not yet in exist- ence, or not yet ascertained ; but these bargainings, as will also be seen, 2 cannot ripen into sale until in some way the particular chattel has been ascertained. There may be transfers of title for some other consideration than a price in money ; but no transfer, as will further be seen, 3 is entitled to be denominated a sale unless it be for a price in money, or at least a consideration estimated in money. is a contract whereby the seller property in the goods is to take place transfers or agrees to transfer the at a future time or subject to some property in goods to the buyer for a condition thereafter to be fulfilled, money consideration, called the price, the contract is called an agreement There may be a contract of sale be- to sell. (4) An agreement to sell be- tween one part-owner and another, comes a sale when the time elapses (2) A contract of sale may be abso- or the conditions are fulfilled sub- lute or conditional. (3) Where under ject to which the property in the a contract of sale the property in the goods is to be transf erred." goods is transferred from the seller l See post, ch. II. to the buyer, the contract is called 2 See ptost, Book II, ch. IV. a sale ; but where the transfer of the 3 See post, ch. V« CH. I.] DEFINITIONS. [§§ 2, 3. §2. Forms of bargaining. — The bargainings of par- ties respecting a transfer of title may take a variety of forms. Thus, (1) there may be an agreement whose legal effect is the immediate transfer of the absolute or general title. This is a sale, called sometimes, for the purpose of further distinction, a present sale, an executed sale, or a bargain and sale. Or (2) there may be an agreement whose legal effect is that the title shall not pass until a future time, either because, in the case of an ascertained chattel, something remains to happen or be performed which the parties have treated as precedent, or be- cause the particular chattel whose title is to be so transferred has not yet been ascertained. This is an agreement to sell, called often, for purposes of further distinction, an executory sale. It does not become a sale until the precedent event has happened or the condition has been performed. It then be- comes a sale by force of the present agreement aided or com- pleted by the happening of that event or the performance of that condition. Or (3) there may be still another form of agree- ment, namely, the parties may now agree that at some future time stated they will come together and enter into another specified agreement either for a then present sale or for a then future sale. In this case it is not the intention of the parties that the title shall now or then pass as the legal result of the agreement now made, but only that they will then enter into another specified contract which shall operate to pass the title either then or at some other time agreed upon. In other words, adopting the distinction adverted to above, there may be either (1) a present sale, or (2) a present agreement for a future sale, or (3) a present agreement for a certain future agreement to sell. In all of the forms of bargaining here referred to, however, it is clear that one result is aimed at, namely, the transfer of the title, or a sale. § 3. Effect of intention. — "Whether in any given case the bargainings of the parties shall amount to a present sale, or only to an agreement to sell, depends often and largely 5 § 4.] LAW OF SALE. [BOOK I. upon the intention of the parties. There are, however, cer- tain conditions or circumstances which conclusively determine their intention, while others raise a prima facie presumption concerning it. Thus, where the contract has reference to a chattel not then designated, it cannot, in the very nature of the case, fall within the category of present sales, and no title will pass until the chattel has been ascertained. 1 But where the contract has reference to a chattel then existing, designated and ready for delivery, a presumption arises that a present sale was contemplated and the title will therefore be presumed to pass at once. 2 This presumption, however, is not conclusive, and it may be shown that the parties intended that the title should not pass until some future time or the performance of some future act, and their intention will be given effect. § 4. Essential elements. — The essence of the bargain- ings concerning sale is, therefore, the agreement or assent of the parties to the present or future transfer of the title to a chattel either now designated or afterwards to be ascer- tained. Unlike the case of real estate, no deed, conveyance or other formality is, in general, necessary to give effect to the intention of the parties ; when the conditions are ripe for the transfer, the law itself executes their intention by deeming the transfer as made in conformity to their assent. This assent, moreover, need not be express, but may be inferred from the acts and conduct of the parties. Another element, often appearing in conjunction with this element of assent, is that of the surrender of the possession of the chattel by the seller and the assumption of that possession by the buyer — constituting what is commonly spoken of as the delivery of the chattel. This element, though very common, and apparently often regarded as essential, is by no means in- dispensable; for there may clearly be a completed sale of the property, though the seller retains the possession ; and there may also be a complete change of possession without any cor- responding change of title. 1 See post, Book II, ch. IL ■ 2 See post, Book II, ch. IV. CH. I.] DEFINITIONS. [§ 5. A third element, also, often appearing with the others, is that of payment. But payment is by no means a necessary concom- itant of the transfer of the title ; for the property may be paid for before the title passes, or contemporaneously with its trans- fer, or at any time thereafter. § 5. Further of the definition — Executory or executed sales. — The word sale, remarked the supreme court of the United States in a leading case, 1 " is a word of precise legal import, both at law and in equity." Unfortunately, however, this precision of meaning is a condition rather to be desired than as yet actually attained, for it seems impossible for courts and text- writers to agree either as to the meaning of the word or as to the essential elements of the idea it represents. Ac- cording to some, the sale is the transfer of the title ; according to others, it is the agreement to transfer. 2 In the case of the agreement for a present transfer, where the law executes the agreement by deeming the title as transferred accordingly, it can be matter of small moment whether the word be applied to the agreement or to the transfer, because the making of the former operates at once to effectuate the latter; but where time, or the performance of conditions, is to intervene between the agreement and the transfer, it is necessary to have appropriate words to indicate these two ideas. It is, indeed, true here that the effectual thing upon which the law operates to produce the transfer is still the agreement of the parties ; but before the law so operates, the agreement of the parties requires to be aided, supplemented or completed by the lapse of time or the performance of conditions precedent, and during this interval the attitude or relation of the parties needs often to be definitely determined. That the difference in legal^ffect between a mere agreement to transfer title hereafter an Arbuckle v. Kirkpatrick, supra. ered to him import only a consign- * Eldridge v. Benson (18ol), 7 Cush. ment. The words 'consign' and (Mass.) 4S3. The contract read as 'consigned 'employed in the letters follows: "Said Robert Sears . . . were used in their commercial sense, agrees to furnish such good and re- which meant that the property was sponsible persons as the said George committed or intrusted to Sturm for W.Benson . . . may designate 45 § 48.] LAW OF SALE. [BOOK I. ating under this contract, Eldridge, as creditor of Benson, had attached, as the property of the latter, the books in the hands of the agents. Sears thereupon intervened, claiming that the books attached were his property and therefore not subject to such attachment, thereby making it necessary to determine whether the contract between himself and Sears amounted to a sale or only to the creation of an agency to sell. It was held that the latter was the true construction. Bigelow, J., said: " The contract is inartificially and obscurely drawn, and it is somewhat difficult to ascertain the precise purport of all its stipulations; but upon a careful consideration of its several provisions we are of the opinion that it created between the parties the relation of principal, and agent, and not that of vendor and vendee. The leading feature of the agreement, which of itself would be quite sufficient to determine its mean- ino;, is the right reserved to the defendant to return such por- tion of the books, delivered to him under the contract, as might not be disposed of by the agents. Such a stipulation is wholly inconsistent with an absolute sale of the property to the de- fendant, and clearly indicates the intent of the parties to have been that the right of property should remain in the claimant (Sears). The elementary definition of a sale is the transmuta- tion of property from one man to another; but no such change takes place when it is agreed between the parties that the prop- or elect to act as agents for the sale full payment of the above-named of Sears' Pictorial School Library, price of $13.50 per set . . . as with said works at $13.50 per set of may be delivered to all such persons twelve volumes, to said Benson, sup- as he (Benson) may appoint and to plying their orders and receiving whom he may direct said books to their remittances, and placing all be sent. It is further agreed between money so received, above the amount said parties that settlements shall of $13.50 as above specified, to the be made quarterly for all bills con- credit of said Benson, and at the tracted by said Benson on his ac- close of the labors of the said agents counts." See also the numerous to receive all the books returned by cases cited in the following note; them uninjured and credit the same also Brown v. Church Co., 55 111. App. to said Benson at the cost price above 615; Keystone Watch Case Co. v. specified; and the said George W. Fourth Street Nat. Bank (1900), 194 Benson . . . hereby guarantied Pa. St. 535, 45 Atl. R. 328. to said Robert Sears the security and 46 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§ 49. erty may be returned to the person from whom it was received. To test and illustrate the correctness of this principle, as appli- cable to the case at bar, let us suppose all the agents to have been unsuccessful in disposing of the books, and, at the close of their efforts to sell the work, to have had on their hands all which they originally received from the claimant. By the terms of the contract the defendant would have the right to return to the claimant all of the books which had been received. By con- struing this contract, therefore, as a contract of sale by which the property became vested in the defendant, we should be led to the necessary but absurd conclusion that a vendee to whom the absolute right of property had passed could still retain the right of returning it to his vendor." Another reason leading to the same conclusion was found in the fact that the agents appointed by Benson might order books direct of Sears and remit the proceeds to him, and the provisions for charging and crediting were held to be intended to show the extent of Ben- son's liability under the guaranty for the agents. 1 § 49. Sale and not agency. — On the other hand, in a case typical of the more modern and more complicated form of contract, a contrary result was reached. Here Arbuckle Bros., the manufacturers of a certain brand of coffee, had made with Kirkpatrick & Co., who were retail dealers, a contract to sup- ply the latter with the coffee for sale upon the terms set forth in the margin. 2 Kirkpatrick & Co. having made an assign- ment for the benefit of their creditors, Arbuckle Bros, sought 1 Many other cases to the same ef- special selling factor for our roasted feet will be found stated in the fol- coffee, restricting and defining your lowing note. duties and obligations by the follow- 2 Arbuckle Bros. v. Kirkpatrick ing provisions, to wit: (1897), 98 Tenn. 221, 39 S. W. R. 3, 36 " I. That all goods consigned on L. R. A. 285, 60 Am. St. R. 854. your requisitions on us shall, until The contract here was in the fol- sold in regular course of business, lowing form: and to bona fide retail customers, re- "Form C— Special Selling Factor main our property, with the title in Appointment. us, and shall merely be held by you " Arbuckle Brothers. as our factor, and shall at all times " Subject to prompt acceptance we be subject to our order for disposal take pleasure in appointing you a or removal on payment of all claims 47 §^.] LAW OF SALE. [BOOK I. to recover the coffee unsold and the proceeds of that sold, upon the ground that Kirkpatrick & Co. were merely agents, and that the title to the coffee unsold, and to the proceeds of that against them for advances of money made to us, and all charges for dray- age, storage and insurance. " II. That you shall never purchase such goods for your own account. " III. That such goods shall be sold and billed by you in your own name, but only as our factor, according to the laws relating to factors, and only at such prices and on such terms as we may give you from time to time. " IV. That you shall guaranty the sale of each consignment, and the payment therefor, within sixty days from its date, and shall assume all risk as to the credit of the parties to whom you sell, and make all collec- tions for goods sold, at your own ex- pense. "V. That you shall remit us the full amount of each consignment, less the commissions as herein pro- vided, by the end of such sixty days, at a price designated to you at the time of the consignment, whether the whole of said consignment shall have been sold by you or not, and whether or not you shall have col- lected the proceeds thereof. "VI. That you shall insure us against any decline in the price of the unsold goods held by you as our factor. "VII. That you shall be entitled to any advance in the price of such unsold goods; and " VIII. That you shall be entitled to the following allowances and com- missions, to wit: "(1) For carting and storing, one- eighth cent per pound. " (2) For insuring against fire, wind and water, one-eighth cent per pound. "(3) For insuring payment, one- eighth cent per pound. " (4) For insuring against decline in price, one-eighth cent per pound. " (5) For selling the goods, one cent per pound. " IX. That, in addition to the above, we shall, on all advances made to us prior to ten days from date of con- signment, allow a discount of one per cent., and on advances made alter ten days, but prior to sixty days, we shall allow interest at the rate of six per cent, per annum for the time between date of said ad- vance and said sixty clays. " X. That if you neglect to remit to us the full amount of any consign- ment, less the commissions as herein provided, by the end of sixty days from its date, we shall make draft upon you, and allow you a selling commission of only one-half of one cent per pound ; and if said draft be returned unpaid, we shall only allow you a selling commission of one- fourth of one cent per pound ; and if you do not remit us within four months from date of each consign- ment, no commissions or discounts of any nature whatever will be al- lowed. "XL That you will maintain our established selling price, terms, con- ditions, and limitations of consign- ment in such states and territories as may be designated by us; but, in the event of any violation thereof, you are to pay us the sum of fifty dollars ($50) for every such viola- tion. "XII. Thatthisfactorappointment may be revoked by us at any time at 48 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§49. sold, was still in Arbuckle Eros. After reviewing many cases the court said : " Without attempting to run a parallel between the present case and those which have been cited and com- our option. Copyright, 1891, by Ar- buckle Bros." This appointment was accepted by Kirkpatrick & Co. on January 28, 1895, in the following language: " Dear Sir: We beg to herewith ac- cept your appointment as 'Special Selling Factor ' of your roasted cof- fees, subject to all the provisions, limitations, and obligations expressed in your notice of appointment, Form C, dated at New York, January 28th, 1895." Under this contract, from February 5, 1893. to April 3, 1895, twenty-five different lots of five cases each of this coffee were received by Kirkpatrick & Co., the value of which was $3,041.70. The coffee was sold usually in one-case lots, and almost daily, and Kirkpatrick & Co., before making their assignment, April 6, 1895, had collected upon such sales $830.55, and used the proceeds in their business. Four cases were on hand when the assignment was made, and these were delivered up to the plaintiffs upon their demand, by the assignee, as before stated. For the remainder there were accounts on the books of Kirkpatrick & Co. against their cus- tomers, and these accounts were transferred, and went into the hands of the assignee. The accounts for coffee sold by Kirkpatrick to their customers were not kept separate from other items sold them, but the amounts and names of customers can be traced from the books by cull- ing out the items relating to coffee. Kirkpatrick & Co. had never paid or advanced anything on consignments now in question, and complainants have received nothing thereon. The court, in its opinion, said: "Complainants claim that Kirk- patrick & Co. were their 'special selling factors,' so constituted by the written agreement above set out, and that coffee was consigned to and sold by Kirkpatrick & Co. as such. It is therefore maintained by them: (1) That the money collected by Kirk- patrick & Co. upon sales of coffee consigned to them was complainants' money; and, as Kirkpatrick & Co. mingled same with their own, and finally used it in their business, the claim, therefore, is a preferred one, and must be first paid out of assets in hands of assignees; and (2) com- plainants are entitled to follow into assignees' hands all unpaid accounts created for sales of Arbuckle coffee on or subsequent to February 5, 1895. Such indebtedness belongs to complainants because created upon sales of their goods by their factor. These contentions were denied by the chancellor and the court of chan- cery appeals, the latter holding that the contract between the parties amounted, in legal effect, to a sale of the coffee to Kirkpatrick & Co. Com- plainants have appealed, and assign the above-stated actions of courts below as error. " Defendants contend, on the other hand: (1) That the contract itself is a sale, and not an agency or factor contract. The mere name given it does not determine its status or ef- fect. (2) That even if, under the contract, the title to the goods de- 49 I W I LAW 01 II | BOOK I. mented upon, we merely state tome of the more prominent i. .linn i in. -ii we think characterize this contract as one of gale, and nol of agency, Et will be noted thai undernoeir [j , ,, ,i i,, i i, i p a { , [| i /. < ',,. would it. did othei fcapli artli lei in 11 i.,, ..nun, \ii,,,-ii. Bros until they stock, to whom 11 pleased, when It ■•.,. old i>y Kirkpatrick S Co., pleased, and Is whatever territory ■■ i ,. I, iold, i "i patrii i- & Co be< i It pleas* d and, so fai ai we can see, i. 1. 1.. i .,i \t buckle Bros, i a whatever time it pleased, ttren \,.,\ ., ,i,,, i.,, ii,,. . offi . d< " d no a< count of sale i t<> com- m rrectdetei mlnal Ion ol I hi plainanl and w as not called upon i . d( i" ".i upon i he propei to do sc tn 11 di bo its retail construi I the written ag terchant customers this coffee was i between thi partii , and then old and billed and shipped with ,,,,,, , ,,i dealing between them othei — d and when Its accounts , i , < lomplainants claim that wer< i olli oti d from its cui tomers, , ,. t abov< et out i oni I H ut( d i mbri ■• I be ■ • offees, the pro i. ii i pal 1 1( i ■■ i '" 1 1" b factors e< i di w< re depo lited w Ith tl i n und( i a del credere c< n, and era! fundi of the Bi tn, and paid oul thai this ii " all thin a< ti d a en II i hei I 1 1 I Ing Its i ol ,,, i, ti,, , ,,,ni ..i i i, .in. . i j ap Habilil les Foi •< w bile the Firm paid ,„ ,i ,, ,,,,1 thai This firm operated foi this i offee bj Its i bei Its upon Its under a previou < acl withthi i bank In the city of Nashville, just as , omplalnanl foi i eralyi ai I bl H paid any othei demand upon it. i ui rai i ■■ i ■ i ii, ni. ii in i rpon obji i I Ion being made to re H i as to thi one In I bl i a le i eh Ing I b( e i becks In paj ment, Hu- ll was illghtlj differenl ne <>r Arm openedan aooounl witha more of iti terms, but tl urseof of New Stork bankers, and forwarded di aling ol I bi pari Ii bel ween I bera i hei I upon them to c plainanl i i , o far e we i an 1 1 from I he In el tli meal and these ohei Its ap i did nol change In anj pai peartohavel a received without 1 1, ui. aterlaltothe Issue In dis question or objecl until the as puti The complainan! bad a wan l| nmenl ol the firm The complain Itou i] lll< • 11 b a man In anl nevei Inquired w bethel their chargi of It, in which thej kept a eoffei i were in ured, oi whether this U pplj ,,i ii,, i, coffee When the Brm paid for storage, or anything ol defendanl Brm wanted an) coffee, the kind.' Other facts found by thai it i ,.. i i i in agent ol iplainants courl have already b i adverted to, oi the quantity wanted, and it was and still others will be mentioned i applied, w Ith .i bill oi stati ment, horeaftei ic fai as nei e ai j on i pi. .i Ibed foi m, ol i he price and i "i 1 1"- tran fei oi i on i umenl . formini In al .mi line w it ii t he proi I Ion i of 1 he oonl rai t made w it h i heii merchants dealing In theii coffei i When de ■ Kirs pal i loh & Co are called In i Ik. oonl rod ipei lal selling fai toi ■■.' and i he Insl i umenl ;i ' spei lal selling factoi appoinl ment. 1 Still the propei , ,,n 1 1 H, i Ion of 1 1"' contracl Is nol dependent on anj nun.' given to I he livered, the firm sold the ooffeei ■• Instrument bj the parties, and not 50 I II II •. , [( . • • i i \>,i i -ill ■ |. | LLEB. < inn .1 hi. i . v\ , i , an j ■ I • evt r bo be returned to A.rbuokle a I q All iiiii-i be paid for in sixtj daj •. whether sold or not There ii no stipulation to buj at the expiration oi lixtj • on miu one prm I ■•■". bul upon < he the • made ba\ • entire bodj ol th ntract, -in- 1 the delivered up to complainant •. and u i » hole. Singi i to them tl li now no ■ ■• Manul Co, v. Cole, p maining que il Ion ia 10 Am. B w h. i hei 1 he aniounl ■ due In Irk- 1 ■ B I ■• - I ii. i j foi i i Davis, 10 I old can be I ullj claimed bj • m \\ . think II rerj evidenl thai complainant m onlj be whether we p trtl tl i tract ai upon the tl rj thai Kirkpatrlck tale, oi >impl] ■ ' ting an a I ■ were the of Ai buckle agem y to Bell, is not mat u Bros, to tell i hi ind on I he as the monej already collected from theory thai the pp i a(tei I.-. I i.\ Kui. pal 1 1. 'I. ; ,ii. i befoi e colli a i '■> i ■ . om erned the amounl coffei bed Bd I he red by then property ol complainanl ■ In '1<> no! been kepi il ■ i mi. i . and ii .i — no! appeal material i ei n hel her tln> t hal anj ol t he pp [| he held ■ mus of thi oi Into thi hel hei to in ■ i in this case oi oupj i he i urns have been el ided in i ii" general business ol mil Ion ' n oui t ol chai k ii i. |H 1 1. i. a r... i.iii foi what appee opinion that, while pin |. ppear, and I hej t titifled, and can tract that I on I he to I kdy part of Kii there I in, Kirkpatrick & I lly I he fifth they are foi liioh could onlj used by them fi Is Bold and be construi n.. i paid for, i". I iIh- urn i be i he i de, and m I .. h,i i,, i they received I of the tale as their own oi i proi Ide i hal I 1 1 Icfc A Co they were kepi n :ii i he • md Idenl [fled, no trust can w hel hei lold oi not, and ....... i upon the fun oi w hethei i he pro< eeda have lu thi collected or not t and I made \ i.i a i ■'.,■ i. uarantj • omplalnanl 14) and caseB cited; Uctn anj dei line In i and enl Itled to i .i.ii . , | \\ i my ad i ind in the tenth cl 13 Am II i. D ' ■ i i \ I laii id to . w draw drafts il remil I R Q '■. i i: L 715, 49 Lm II I In propel time li ■ '.'in Thi a court of ol 51 §49.] LAW OF SALE. [book I. but the contract clearly contemplates a payment without fur- ther bargain, when that time arrives, and implies a present sale, on a credit of sixty days. Kirkpatrick & Co. could sell substance, that complainants cannot receive tlie price of the goods, and afterwards claim the goods them- selves; and when the price is paid the property could not be longer claimed. It is insisted that these provisions in the contract cannot be considered, because, as a matter of fact, Kirkpatrick & Co. were not made liable for any coffees at the expiration of sixty days, nor were they called upon to make good any decline in price, and hence the con- ditions allowing these sections to be looked to have not arisen. It is true, none ef the funds involved in this case arise directly from the operation of these sections, but they are parts of the same entire contract, and pre- scribe the rights and liabilities of the parties under the contingencies named, and must be looked to, in or- der to determine the real intent, force and effect of the instrument. They are not detachable, nor to be considered alone, nor is the remainder of the contract to be considered with- out them. " We have been cited by the very able counsel of complainants to a large number of cases construing .contracts more or less like the con- tract now under consideration, and it is claimed the principles laid down in them are conclusive in considera- tion of this contract. Among the cases cited for complainants are: Metropolitan Nat. Bank v. Benedict Co., 36 U. S. App. 604, 20 C. C. A. 377, 74 Fed. R. 182; Burton v. Goodspeed, 69 111. 237; Norton v. Melick, 97 Iowa, 564, 66 N. W. R. 780; Walker v. But- terick, 105 Mass. 237; National Cord- age Co. v. Sims (Neb.), 62 N. W. R. 514; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99; Lenz v. Harrison (111.), 36 N. E. R. 567; Balderston v. Rubber Co., 18 R. I. 338, 27 Atl. R. 507, 49 Am. St. R. 772; Barnes Safe & Lock Co. v. Bloch Bros. Tobacco Co., 38 W. Va. 158, 18 S. E. R, 482, 22 L. R. A. 850, 45 Am. St. R 846: National Bank v. Goodyear, 90 Ga. 711, 16 S. E. R. 962; Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. R. 102; Moline Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac R. Ill, 42 Am. St. R. 317. We examine these cases with reference to the case now on trial. "Metropolitan Nat. Bank v. Bene- dict Co., 36 U. S. App. 604, 20 C. C. A. 377, 74 Fed. R 182. Stern Auc- tion & Commission Company agreed witli Benedict & Co., manufacturers of clothing, as follows: 'We agree to realize for consignment of ready- made clothing of Benedict & Co., as per memorandum received of its pres- ident, net prices as per same, without any charges of commissions, freight, or any other charges. We agree to keep amount of consignment at all times until agreement expires fully insured, and that no part of consign- ment shall remain unsold or unpaid by February 1, 1895; and we shall also be entitled on any cash payment before February 1, 1895, to one and one-half (14) per cent, a month for unexpired time.' In a contest be- tween Benedict Company and par- ties claiming consigned clothing under bill of sale given in payment of debt due from commission com- pany, it was held: 'The contract be- tween the Benedict Company and 52 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§ 49. when and on what time they chose; but no matter how sales were made, the amount to be paid was fixed in advance, whether sold or not, whether collected or not. Xo account of the Stern Auction & Commission Company was not a sale, but a con- tract of factorage. The stipulations of the contract are not appropriate to a contract of sale. If it was a sale, and the commission company ac- quired an absolute title, what con- cern was it of the Benedict Company when they were sold? When one merchant sells goods to another, the seller never requires the buyer to enter into a covenant that he will sell the goods within a specified time. Such a requirement is inconsistent with the dominion over the property which absolute ownership confers. The money to be paid by the com- mission company was not upon a sale of the goods to that company, but upon a sale of the goods by that com- pany. . . . The commission com- pany covenanted that no part of the consignment should • remain unsold or unpaid by February 1, 1895.' A failure to sell the goods and account for the same at the prices fixed within the time agreed upon would be a breach of this covenant on the part of the commission company, for which the Benedict Company might recover damages: but such breach of the contract would not have the legal effect to convert the bailment into a sale. . . . The goods not sold would still remain the property of the Benedict Company. There is no provision in the contract for a change of title from the consignor to the consignee in any event. Tested by the written agreement, the con- tract was clearly one of bailment." In this case, while the goods were in store, the company failed, and sold to the bank all its stock, expressly excepting the goods on hand on con- signment. The president of the bank was notified that the Benedict goods would not be included in the sale, and a special clause in the bill of sale was inserted for the -purpose of ex- cluding them. The bank, however, claimed the goods, and Benedict & Co. sued for them. The court said the parties had a right to put their own construction on the contract, and when it was done in good faith the court would sustain the construc- tion. It is well to note that the com- .mission company were not to pay for the goods as on a purchase, but only to account for the proceeds of sale at prices fixed by the contract. There was no stipulation to pay for the goods at a fixed time, whether they were sold or not. In the case at bar the goods were to be paid for in sixty days, whether sold or not. It is not here claimed to be a matter for dam- ages if sale is not made, but that it is an absolute engagement to pay, sale or no sale. In addition, the com- mission company expressly excepted the goods in controversy out of the transfer, while in the case at bar the accounts in controversy are expressly conveyed to the assignee. " Burton v. Goodspeed, 69 I1L 237. Burton and Holbrook entered into a contract substantially as follows: Burton agreed to furnish Holbrook, afloat at his dock, anthracite coal. Holbrook agreed to receive, hoist from vessel, put it on dock, pay lake freight, and charge amount paid for all this against coal, and to receive for docking, screening, selling, and §^-J LAW OF SALE. [BOOK I. sales was to be rendered. Arbuckle & Co. had nothing to do with Kirkpatrick & Co.'s customers. They were not in privity with complainants, and no credit was given to them. «If cash delivering, including his commis- sions, $1.50 per ton fox - coal delivered outside the yard, and $1 for that de- livered on the yard, and an addi- tional commission of fifty per cent, of net profits on sales. Holbrook also agreed to guaranty payment of sales, to advance Burton on coal as shipped $3 per ton, and pay over balance of proceeds of sales as coal was sold; not to sell below market price; to keep correct accounts, and to render statement each month. The court said: 'The relation existing between appellant, Burton, and Holbrook, by virtue of their contract, is neither that of vendor and vendee nor of partners. . . . There is nothing said about selling the coal, or any in- terest in it, to Holbrook, nor have we been able to find any language from which we can reasonably presume that the intention of the parties was to invest him with the ownership of the property. The fact that he was to receive a portion of the net profits on sales does not prove that he was a partner, as they were given merely as part of his compensation. We think, under the evidence, Holbrook was, as to the coals shipped him for sale by appellant, Burton, a factor or commission merchant.' It is evident that this is an ordinary consignment contract. The agent was to render a correct account each month to his principal, showing amount of goods Bold and prices, and did not have to pay for any goods until sold, and was only to guaranty such sales as he made; and the facts do not make it a contract similar to the one now under consideration. "Norton v. Melick, 97 Iowa. 564 (1896), 66 N. W. R. 780. N. & Co. agreed to furnish M. certain brands of flour at specified prices, to be sold by M. for them as their agent at prices given. M. agreed to receive flour as agent of N. & Co., to pay freight and charges, to keep same in good order, to sell it at not less than given prices, to render account each thirty clays, and make remittances then of the money for all merchan- dise sold. M. further agreed to buy any of the flour unsold at the end of ninety days at prices given, and pay therefor; and it was also agreed that title, ownership, and right of posses- sion of the flour should remain in N. & Co. until same should be paid for in full. The court said: 'We think there ought to be no question that the contract was a mere agency for the sale of the flour. It is ex- pressly stated in the first paragraph that the flour was to be sold by the defendant for the plaintiffs as their agent. The real inquiry is, What was the intention of the parties to the contract? That intention must pre- vail; and when it is plainly and un- equivocally expressed in writing that it is an agency and not a sale, and the title does not pass, there is no room for construction,' etc. This con- tract plainly provided that the agent should render an account each month, and make remittances for all merchandise sold. The title to the flour was to remain in the prin- cipal until sold, and the agent stipu- lated to buy such as might be unsold at the expiration of ninety days. The flour was destroyed by fire before the 54 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. L§49. was taken, it was not to be kept separate. If notes were taken, Arbuckle & Co. bad no concern in tbera. Kirkpatrick & Co. were to bave all advance in prices' and bear all declines. If ninety days, and the principal sued the agent for its value. The court held he was not liable; that the con- tract was one of agency. There was no stipulation to guaranty the prin- cipal against decline in prices, nor to pay in a fixed time for each lot of goods, whether sold or not; but sim- ply to buy at the end of ninety days. •Walker v. Butterick, 105 Mass. 237. There was a contract between parties as follows: ' Alexander & Co. are to take goods from Walker & Co.. and to return to them every thirty days the amount of sales at prices charged by Walker & Co., avIio will furnish Alexander & Co. all goods in their line. Alexander & Co. are worth in real estate and money $5,000.' After receiving goods, Alexander & Co. made monthly re- mittances, stating, in substance, that, according to contract, they remitted sales for preceding thirty days. The goods were attached by creditors of Alexander & Co. Held, the terms of contract import a consignment, and not a sale. This is a simple agency contract, and has none of the peculiar features of the contract now under consideration. "National Cordage Co. v. Sims (1895), 44 Neb. 148, 62 N. W. R. 514. "Where a contract provides for con- signment of goods to be sold on com- mission for prices fixed by consignor, and returns at stated periods, con- signee guarantying payment thereof, the relation which the law implies is that of an agency for sale upon a del credere commission, and not that of vendor and vendee. In this case the contract provided that the twine, as well as the proceeds of its sale, should remain the property of the principal, the proceeds to be remit- ted on the first day of each month. There was no obligation on the agent to buy any of the twine, or to sell it in any fixed time, and it is a case of simple agency. "Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. ed. 1093. The goods were consigned to the agent to be sold by him to the best advantage, the profits realized to be divided equally between the principal and agent, and all losses to be borne by the principal. All goods unsold were to be returned to the principal. The agent was to insure the goods for the benefit of the principal, and to pay the freight. Held, that the contract was a bailment upon the terms stated. The contract contained none of the features of the Arbuckle con- tract. " Lenz v. Harrison (1893), 148 111. 598, 36 N. E. R. 567. The contract provided that the first party ap- pointed second party his agent to sell wagons in Henry, 111. The sec- ond party accepted the appointment, and agreed to pay all freight charges, taxes, make good any loss or damage by fire, house them, to sell only to persons of undoubted solvency, in- dorse all notes taken on sales, guar- antying prompt payment when due, make sales requiring final payment within twelve months from date of invoice, to transmit to first party each day all cash received from sales that day, and on the last day of each month render full account of all sales, and transmit same, with all 55 §49.] LAW OF SALE. [BOOK I. the goods were destroyed by fire, wind or water, it was the loss of Kirkpatrick,& Co., and the insurance was optional, and only designed to place them in position to account for the notes taken, to first party. Also, if required by first party, will take all wagons unsold at end of year, and give note for thern ; but this stipula- tion not to be a positive sale to sec- ond party unless this requirement is made by first party. Held to be a simple consignment. "Balderston v. Rubber Co. (1893), 18 R. L 338, 27 Atl. R. 507, 49 Am. St. R. 772. The R. Co. agreed to consign and deliver free goods to B. & D. for sale and returns, to pay B. & D. five per cent, on net amount of sales as a commission and guaranty, and also interest on any sum which they (R Co.) might owe them. B. & D. agreed to receive goods on consign- ment, to use best efforts to sell to best advantage, to account to R. Co. for same at price obtained, to charge as commissions and guaranty five per cent., and to advise as to goods needed. B. & D. also agreed to ad- vance to R. Co. at least §50,000 per month upon basis of eighty per cent, market value of goods at rate of interest specified. The prices for which B. & D. were to sell were to be fixed by R. Co. The court held: ' This was an agreement to sell goods for R. Co. under a del credere com- mission, the relation between parties being that of principal and factor. A factor who has made advances must first enforce his lien therefor against goods before looking to con- signor. And, finally, a factor under a del credere commission is liable abso- lutely as a principal, and becomes a debtor to his consignor if the debt is not paid by purchaser when due; but the principal, notwithstanding liabil- ity of factor to him, may collect of his purchaser.' In this case it is to be noted that the rubber company was to pay all freights to Balderstons warehouse. Balderston was to use his best exertion to sell to the best advantage, and to account at the price received, less five per cent. There was no stipulation for a guar- anty against decline in price, nor loss by fire, or other causes, nor is there any guaranty to sell, or to pay until he did sell. The contract lacks many of the features of the present one. " Barnes Safe & Lock Co. v. Bloch Bros. Tobacco Co., 38 W. Va. 158, 22 L. R. A. 850, 45 Am. St. R. 846, 18 S. E. R 482. The contract stipulated that the safe and lock company ap- pointed the Globe Contract Company its agent to sell safes in certain terri- tory on fixed commissions, and agreed to furnish the agent safes on con- signment. The agent was to pay for safes when it sold them, and to dili- gently work the territory. The agent failed, and its creditors levied on some of the safes in its charge, un- sold. The court held that the safes were not the property of the agent. The contract contained none of the peculiar features of the Arbuckle contract. "National Bank v. Goodyear, 90 Ga. 711, 16 S. E. R. 962. The contract contained stipulations that the agent should receive goods on consignment, to be sold by him as the agent of the consignor. The agent was to make monthly reports of sales of goods on hand; the title to all unsold goods and all proceeds of sales to remain in the consignor; all articles to be set- 56 CH. II.] TRANSACTIONS DISTINGUISHED FK05I SALES. C§ -io. goods. "Whether the goods were carted, or stored or insured, was optional with Kirkpatrick & Co., but, in any event, they were to be credited therefor. Thev were allowed a sum for tied for as soon as sold. The agent also agreed to insure, store, pay freight and all charges without ex- pense to consignor, and have for his pay whatever the goods sold for above the invoice prica The con- signor could terminate "the agency at his option, and retake all goods on hand. This was held a bailment, and not a sale. "Milburn Manufacturing Co. v. Peak (1896), 89 Tex. 209, 34 S. W. R. 102. The contract provided that the Milburn Company appointed Hood & Co. its agent to sell vehicles. Hood & Co. were to make all reasonable efforts to sell same, and settle for all vehicles sold, take all notes for goods sold on credit in the name of the Milburn Company, and remit to it all notes and cash received for the vehicles; the notes taken for the vehicles to be indorsed and guar- antied by Hood & Co., and paid if the makers did not pay at maturity; the ownership of all vehicles and their proceeds of sales to remain in Milburn Company, and under no cir- cumstances to be used by the agent. The contract is plainly very different from the Arbuckle contract. " Moline Plow Co. v. Rodgers, 53 Kan. 743, 42 Am. St. R. 317, 37 Pac. R 111. The contract provides that Underwood was appointed agent of Moline Plow Company, who agreed to consign him certain goods. The agent was to settle for all goods re- ceived by him with farmers' notes taken for such goods as he should sell. The goods remaining unsold at the end of the season the agent should either settle for with farmers' 5^ notes, or store for the principal, at the principal's option. A few months later the agent absconded. The prin- cipal, after investigation, attached the goods on hand as the goods of the agent. Held, that he thereby elected to treat the goods as the agent's, and was bound by his election. " Defendants cite cases supporting their contentions, and these we have examined and comment upon. "^Etna Powder Co. v. Hildebrand, 137 Ind. 402, 45 Am. St, R. 194, 37 N. E. R 136. The P. Co. agreed to consign powder, paying freight, to H. & F., to sell as agents at prices not below those fixed by P Co., and to allow H. & F. for selling and guar- antying sales a given per cent. H. & F. agreed to act as agents, to guar- anty sales, to adhere to prices, to make no charge except commissions stated, to make report of all sales at end of each sixty days, and to pay for same with their sixty-day note. Court and counsel for all parties agreed that this contract created H. & F. agents until a sale took place. Then, the court held, H. & F. became or- dinary debtors of the consignors for the amount due them for goods at catalogue price. This case cites the following as authorities sustaining a similar holding: Nutter v. Wheeler, Fed. Cas. No. 10,384; Ex parte White (1871), L. R. 6 Ch. App. 397; In re Linforth, Fed. Cas. No. 8,369. "Ex parte White (1871), L. R 6 Ch. App. 397. There was no written agreement between parties. The court found the course of dealing was substantially this: N. was to dis- pose of goods sent him by T. & Co., §49.] LAW OF SALE. [book commissions, whether they sold or not, and discount was to be allowed for quick payment, as is usual in case of sales. The course of dealing shows that the proceeds of sale were not to and was not to pay for them unless he disposed of them. He was to re- turn at end of every month an ac- count of sales actually made, and then, after lapse of another month, was to pay in cash for amount of goods which he so disposed of accord- ing to values fixed by price list sent him. It does not appear that he ever was expected to return any particu- lar contract, or names of customers. He pursued his own course in deal- ing with goods, and frequently be- fore sale manipulated them to a very considerable extent by pressing, dye- ing, and otherwise altering their character, changing them as much as wheat would be changed by being turned into flour; and he sold them on what terms he pleased as to price and credit. T. & Co. undertook to impose a trust on certain funds al- leged to have been collected by N. upon sales of their goods. The court held: ' The course of dealing between parties wa,s inconsistent with the idea that N. was dealing in a fiduci- ary character in respect to these goods, or that the relation of vendor and purchaser existed between T. & Co. and parties to whom N. sold. The pi'oceeds of sale were the moneys of N. Mellish, L. J., said: 'It appears to me tnat the real question is: When N. sold the goods, did he sell them as the agent of T. & Co., so as to make T. & Co. the vendors, and the persons to whom he sold purchas- ers from T. & Co., or did he sell on his own account, so as to create the relation of purchaser and vendor be- tween himself and the persons to whom he sold ? Now, it is said that he was a del credere agent; and no doubt it requires a very minute ex- amination of the course of business to distinguish between a del credere agent and a person who is an agent up to a certain point, — that is to say, until he has sold the goods, — but who, when he has sold the goods, has purchased them on his own credit, and sold them again on his own ac- count. . 4 . Now, if it had been his (N.'s) duty to sell to his custom- ers at that price (the price fixed by T. & Co.), and to receive payment for them at that time, then the course of dealing would be consistent with his being merely a del credere agent. But if the consignee is at liberty to sell at any price he likes, but is to be bound if he sells the goods to pay the consignor for them at a fixed price and time, in my opinion, what- ever the parties may think, their re- lation is not that of principal and agent.' The alleged agent in such a case (as this) is making on his own account a contract of purchase with his alleged principal, and is again reselling. " Nutter v. Wheeler (Dist. Ct. Mass., 1874), 2 Low. 346, Fed. Cas. No. 10,384. W. & Co., manufacturers of tools, were in the habit of sending their goods to G., at his shop in B., who sold them at such prices, to such persons, on such terms as he pleased. Whenever G. sold tools, he was to pay W. in thirty days prices shown by list, less agreed discount. W. had the right at any time to sell goods remaining in G.'s shop unsold, and G. was permitted to sell goods at factory of W., who then delivered 5b CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§ 49. be kept separate, but Kirkpatrick & Co. remitted their check on general account, and it was accepted without question or comment. This was a virtual agreement that Kirkpatrick & them, and charged G. the trade price, less agreed discount. Instead of paying in thirty days, G. sometimes gave his note for balance due, one of which W. held at time of G.'s bank- ruptcy. G. ordered three drills to be sent by W. to a customer. They were sent, and bill made out to G. as purchaser for trade price, less dis- count, and sent him in a letter, in which W. & Co. said they had taken off fifteen per cent., and hoped to get cash in thirty days. G. went into bankruptcy. The purchasers had not paid for drills, and W. & Co. collected price therefor. G.'s as- signee brought this suit against them for money had and received. Lowell, J., said, among other things: 'It has been settled for a long time that upon the bankruptcy of a factor his principal may recover from the as- signees any of the goods remaining unsold, or any proceeds of the sale of such goods which the assignees themselves have received, or which remain specially distinguishable from the mass of the bankrupt's property; . . . and it makes no difference that the factor acted under a del credere commission or sold the goods in his own name. As to those goods sent to Boston, he (G.) may be described as a bailee, having power to sell as principal. But after the goods were sold, the agreement appears to have been that G.'s credit alone was looked to.' Re- lying upon the authority of Ex parte White, 6 Ch. App. 397, the court finally said: 'If the relation of the parties was such as I have consid- ered it, then, even as to the goods which had been once consigned to G., he should be considered as the purchaser, subject only to the under- standing that he was neither the owner of them nor liable to pay for them until he had succeeded in find- ing a purchaser; but when he did sell he immediately became the prin- cipal, and the defendants ceased to have the rights of a consignor, and could not follow the goods or their proceeds as undisclosed principals." "Ex parte Flannagans (Dist. Ct. Va., 1875), 2 Hughes, 264, 12 N. B. R. 230, Fed. Cas. No. 4,855. F. & Son, manufacturers, and R. & H., com- mission merchants, in 1873 agreed as follows: 'We, F. & Son, propose to give you entire agency for Stone- wall fertilizer at Norfolk, and for . . ., on condition you push sale, and have proper man to look after it, and to allow you a commission of ten per cent, for sales and guaranty, we to draw on you at sight or short time for $30 a ton. The price to be sold at is §65 in Baltimore. For bal- ance, after paying §30, you to give your acceptances, say, payable first December, 1873; accounts to be ren- dered and settlement after selling season is over; no charge to be made for storage during the season. Any guano left over and not sold is to be at the risk and on our account. We agree to f ui'nish the guano delivered in Baltimore, one hundred tons to be delivered in . . ., and balance as ordered. . . . Will ship in lots to any point you may direct.' R. & H. accepted the above. The court held that under authority of Ex parte White (1871), L. R. 6 Ch. App. 59 §49.] LAW OF SALE. [book Co. might use the proceeds as they chose, and account for them out of their general funds. These features are all evi- dences of a sale, and cover every risk, obligation and duty that rests upon a purchaser, and cover every right in handling the 397, and section 215, Story, Ag., con- signments under above contract were sales, and not shipments under a del credere guaranty. The judge held R. & H. were primarily liable to F. & Son for a fixed price on their acceptances, and that they might sell to planters at a different price, and then stated that ' the now well- settled law of del credere guaranty is that the factor is not the primary debtor; that his engagement is merely to pay the debt if it is not punctually paid by the person to whom he sells, — citing Story, Ag., § 215, — and held that therefore R. & H. were not factors, but purchasers. "In re Linforth (Cir. Ct. CaL, 1877), 4 Sawy. 370, Fed. Cas. No. 8,369. June 1, 1876, F. agreed to furnish L. such manufactured goods as he should order, to allow L. certain specified discounts from price lists, and to give L. exclusive sale of such goods. L. agi*eed to pay freight charges, etc., on goods shipped, to insure at his own cost for benefit of F, to render account of sales every three months, and to settle for all goods sold or shipped from his (L.'s) warehouse by giving his note, payable in sixty days from date fixed for rendering ac- count of sales as provided. L. fur- ther agreed to settle for such goods as might be on hand June 1, 1877, by giving notes, payable in six months, if so required by F. F. agreed to al- low additional discount for all cash paid in advance of times specified. The court held that transactions under this contract were sales on a credit; citing Nutter v. Wheeler and Ex parte White, supra. "Gindre v. Kean (1894), 31 Abb. N. C. 100, 7 Misc. R. 582, 28 N. Y. Supp. 7. The suit arose out of an effort by principals to recover of the assignee in insolvency of their del credere agent the amounts due for goods furnished him and which he had sold. The principle is tersely stated by Bischoff, J., at page 7, as follows: 'The principles which should control the decision of the case at bar, and which are to be deduced from the adjudged cases, are that whenever the agreement of the al- leged principal and factor, whatever they may style themselves or their relation, and whether the agreement be expi'ess or only inferable from the course of business, clearly manifests an intention that the alleged factor shall become definitely and prima- rily liable upon a sale for the pur- chase price of the goods consigned, it is, in legal effect, a sale by the al- leged principal to the alleged factor, out of which arises the ordinary re- lation of debtor and creditor. The liability of the alleged factor, under such an agreement, is repugnant to that of a mere agent, whose duty to remit is commensurate only with the amount of the money which he has actually received upon a sale for his principal's account.' The court cites the case of Linforth. Nutter v. Wheeler, and Ex parte White with approval." In Arbuckle Bros. v. Gates (1898), 95 Va. 802, 30 S. E. R. 496, the same 60 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§49. goods that an owner could have, except, simply, the price was to be sustained. This was evidently provided in order to keep the price uniform in all markets and stifle competition. Kirk- patrick & Co. could sell in any territory, in any amount, to contract came before the court, in Virginia, for construction, and the same conclusion was reached. The court, referring to certain further cases, said: "In Williams v. Tobacco Co. (Tex. Civ. App.) 44 S. W. R. 185, an agree- ment, which was very similar in its essential features and provisions to that under consideration, was con- strued by the court of civil appeals of Texas. The agreement purported that the Drummond Tobacco Com- pany appointed A. H. Schluter & Co. as agents to sell its tobacco at such prices as the company should from time to time prescribe, and that the title to the tobacco should re- main in the tobacco company until sold by the said agents. The latter were to receive a commission for selling, and, in consideration thereof, warranted that every shipment made to them should be paid in full. The company, in shipping the tobacco, invoiced it to A. H. Schluter & Co. as agents, and used a billhead that designated the shipment as a ' con- signment.' It was shown that, after the shipment of each bill of tobacco, the company would draw an accept- ance of the same date as the invoice of the tobacco for the amount of the bill, less the commission, payable sixty days after date, which Schluter & Co. would accept, and the com- pany at the maturity thereof would present for payment, and Schluter & Co. would pay, whether they had sold the tobacco or not. The court de- cided that the transaction was a sale, and did not create an agency. " In Mack v. Tobacco Co., 48 Neb. 397, 58 Am. St. R 691, 67 N. W. R. 174, a contract, similar in its terms to the one construed in the above- cited case from the Texas court, was held by the supreme court of Ne- braska to be a sale, and not an agency. . . . " Similar contracts were construed in the following cases to constitute a sale, and not an agency: In re Lin- forth, 4 Sawy. 370, Fed. Cas. No. 8,369; Chickering v. Bastress, 130 111. 206, 17 Am. St. R. 309, 22 N. E. R 542: ^Etna Powder Co. v. Hildebrand, 137 Ind. 462, 37 N. E. R 136; Aspinvvall Man- ufacturing Co. v. Johnson, 97 Mich. 531, 56 N. W. R. 932; Braunn v. Keally, 146 Pa. St. 519, 23 AtL R. 389, 2S Am. St. R. 811; Kellam v. Brown, 112 N. C. 451, 17 S. E. R. 416. . . . "In Conable v. Lynch, 45 Iowa, 84, Berry agreed to sell machines for Conable to such persons only as were \ perfectly responsible, take notes for the deferred payments, indorse them and guaranty their payment. He was to send to Conable the notes of pur- chasers as he sold the machines, and to remit promptly the proceeds of all cash sales, less the amount of his commissions. All the machines, until paid for, were to remain the property of Conable, and at the ex- piration of the contract Berry was to pay for all machines not sold. The court held that the effect of the con- tract was to make Berry the agent of Conable until the termination of the contract, but after that time it was a conditional sale. " It thus appears that, until the ex- 61 § so.] LAW OF SALE. [BOOK I. any purchaser, on any terms, for cash or credit, take notes or make accounts, and dispose of the goods as absolutely and free of limitation as any owner could, except they could not vary the price." § 50. •- How question determined — Law or fact. — Where the contract is in writing or the facts are not disputed, the question whether the writing produced or the facts admitted operate to create a sale or an agency to sell is one of law to be decided by the court; but when the facts are controverted it becomes a question for the jury, under proper instructions from piration of the contract, the relation of creditor and debtor did not arise. Until then Berry sold the machines for and on account of Conable, and the relation between them was that of principal and agent, bat when the contract expired by limitation, and Berry came under the obligation to pay for all unsold machines, the court held that the contract made the transaction a conditional sale. " In Bayliss v. Davis, 47 Iowa, 340, Bayliss, under the agreement there construed, appointed one Stinson his agent to sell harvesters, and agreed to allow him a commission of $40 on each harvester. Stinson agreed to advance one-third of the price, and give his notes for the residue, and to sell on the same terms. All notes taken for machines sold by him were to be made payable to Bayliss, the proceeds of sale were to be remitted by him to Bayliss as fast as received, after deducting his advances, and his own notes were to be taken up by ex- changing for them the notes of farm- ers to whom he had sold machines. It was said by the court that, while the advance of money and giving notes would ordinarily, without explana- tion, indicate a sale, yet when consid- ered iu connection with the fact that G: Berry was to be repaid his advances from the cash payments made by farmers to whom he sold machines, and that his own notes were to be taken up and paid by their notes, it was not inconsistent with the agency which was set out in other parts of the contract." The same conclusion was also reached on the same conti - act in Snelling v. Arbuckle (1898), 104 Ga. 362, 30 S. E. R. 863. See also Howell v. Boudar (1898), 95 Va. 815, 30 S. E. R. 1007. The question is also very fully discussed in Norwegian Plow Co. v. Clark (1897), 102 Iowa, 31. 70 N. W. R. 808. For still other cases holding particular contracts to be contracts of sale rather than of agency, see Alpha Check-Rower Co. v. Bradley (1898), 105 Iowa, 537, 75 N. W. R. 369; Armstrong v. St. Paul, etc. Co. (1891). 48 Minn. 113, 49 N. W. R. 233; Granite Roofing Co. v. Casler (1890), 82 Mich. 466, 46 N. W. R. 728; Bradley Mfg. Co. v. Raynor (1896), 70 111. App. 639; Peoria Mfg. Co. v. Lyons (1894), 153 111. 427, 38 N. E. R. 661 ; Yoder v. Ha worth (1898), 57 Neb. 150, 77 N. W. R. 377; Hutton v. Lippert (1883), 8 App. Cas. 309: Whitman Agricultural Co. v. Hornbrook (1899), 24 Ind. App. 255, 55 N. E. R. 502. CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§ 50 - the court, to determine, in view of all the circumstances, what the contract was, and what, in accordance with the instructions, was its legal effect. 1 1 Thus in Rauber v. Sundback (1890), 1 S. D. 268, 46 N. W. R 927, the court said: "Upon the whole it seems to us very plain that the real intent and understanding of the par- ties to this agreement must be gath- ered from a variety of sources: some affording direct and definite evi- dence; others indirect, indefinite and possibly inconsistent and confusing. It must be determined to some ex- tent, at least, from statements and expressions, the meaning of which seems doubtful and obscure. These expressions must be analyzed and compared, not only with each other, but with other statements as to the agreement, if there are any, which are more definite and certain. By this means only could the final fact as to what agreement these parties made — its scope and meaning — be intelligently determined. This being our conclusion as to the condition of the evidence, it follows that in our judgment the question should have been submitted to the jury, with a plain instruction from the court as to what agreement would constitute the transaction a bailment, and what a sale. Of the cases cited in respond- ent's brief, Fish v. Benedict, 74 X. Y. 613; Bastress v. Chickering, 18 111. App. 198 [affirmed 130 111. 206, 17 Am. St, R, 309]; and Jenkins v. Eichel- berger, 4 Watts, 121, 28 Am. Dec. 691, — are inapplicable to this case, so far as the distinct question now pre- sented is concerned, because in each of those cases the agreement upon which the rights of the parties de- pended was in writing, and there was and could be no doubt or question as to its terms, and it was plainly the duty of the court to construe it, and declare whether it constituted the transaction a sale or a bailment. But here the very matter in doubt and dispute is, What did the parties agree to ? and to find and determine what that agreement really was, its terms and extent, was a question of fact for the jury, on all the evidence: its force and legal effect a matter of law for the com-t. The other cases cited by respondent were where grain had been deposited with a warehouse- man, and the question there, as here, was: Was it a sale or a bailment? But in those cases the undisputed testimony showed, and it was not questioned, but conceded, that the agreement never contemplated that the specific article which was the subject of the agreement should be retained by the bailee, or purchaser, or that such specific grain should be returned in case of demand, but that other grain of the same kind and quality might be returned in its place. Thus the very fact which, in the opinion of the court, tested and de- termined the character of the trans- action, was not in doubt or dispute. In these cases, as in those just previ- ously noticed, the terms of the agree- ment were definite, clear and unam- biguous, and that is the marked and significant distinction between those cases and the one at bar. We think the case, with proper instructions from the court as to what constituted a sale, and what a bailment, should have been submitted to the jury." 63 §51.] LAW OF SALE. [book For this purpose a full disclosure of the circumstances is ad- missible, 1 and in ambiguous cases parol evidence may be re- sorted to in order to show the intention. 2 § 51. Consignment of goods in payment of debt or to cover prior advances. — Goods may, of course, be delivered in pay- ment of a debt due from the consignor to the consignee, or to cover prior advances made by the latter to the former. Where i Simpson v. Pegram (1891). 108 N. C. 407, 13 S. E. R. 7. (The state- ments upon the consignee's printed letter-heads, for example.) . 2 Head v. Miller (1891), 45 Minn. 446, 48 N. W. R. 192. In this case, after some oral negotiations, a mem- orandum or order was signed by one party in the following form: "Order No. , February 11th, 1889. " Send to J. A. Bixby & Co. "Place, Minneapolis, Minn. " How ship, . "Terms, 4 mos. from July 1st list. " 13 No. 24 steel furnaces §100. " 12 No. 034 " " $125. " 2 No. 55 furnaces with dia. "2 No. 35 " " " — at 60 and 10 per cent, from list de- livered in Minneapolis. It is agreed that Head's Iron Foundry will carry over to next season any furnaces not sold on January 1st, 1890. [Signed] " J. A. Bixby & Co." The controversy was between the foundry company and a receiver of the property of Bixby & Co., the former seeking to recover furnaces in the possession of the latter, not sold by Bixby & Co. Said the court: "This memorandum, treated as an order, is not directed to any one, and is incomplete in itself; that is to say, it must be construed in connection with the proposition or offer of the plaintiffs. It does not follow that the terms of the agreement actually expressed in the memorandum may be contradicted or disputed by parol; but the memorandum is consistent with a consignment of the goods, as claimed by the plaintiffs, or a sale, as insisted on by the defendant. The prices or terms specified in the mem- orandum may apply to either. Pam v. Vilmar, 54 How. Pr. 235. We think the evidence sufficient to support the finding of the trial court that the goods were taken on consignment, and the status of that portion thereof remaining unsold on January 1, 1890, is defined in the memorandum ; that is to say, as against Bixby and the receiver, the property in question, when this suit was brought, was, -by the mutual understanding of the parties, 'carried' by Head's Iron Foundry, which is shown to be the plaintiffs. It was held by Bixby & Co. as bailees, at the risk of the plaintiffs. For this Bixby & Co. had taken pains to stipulate, and it is entirely in harmony with the plaint- iff's alleged claim and the finding of the court that the goods were shipped to them to bo sold by them for the plaintiffs, and what they could not sell by January 1st the plaintiffs were to hold, and Bixby & Co. were not responsible for, except as bailees." 61 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§ 52. the goods have been actually received by the consignee, no question will ordinarily arise, and the transaction will be deemed a sale, or, in the case of a factor, the subjecting of the goods to the operation of his lien. 1 But where the goods have been sent forward, and while in transit are intercepted by the creditors of one party or are overtaken by accident, the ques- tion of the effect of the transaction presents difficulties. Upon this question the authorities are in conflict, 2 certain of the cases holding that the goods do not become subject to the claim of the consignee until they actually come into his possession ; 3 others assert the doctrine that where advances have been pre- viously made in reliance upon a promise to subsequently con- sign goods, a delivery to the carrier, consigned to the party, is sufficient, 4 while others hold that, in addition to such a deliv- ery, it is necessary that the advances should have been made in reliance upon this particular consignment. 5 In a recent case, in which the authorities are reviewed, the court say: " The rule seems to be that, in order to change the title to the property shipped and vest it in the consignee, there must be a bill of lading, receipt, or letter of information forwarded to the consignee, or that the advancements were made upon the faith of the particular consignment." 6 § 52. Sale to be distinguished from contract for work and labor.— Sale, still further, is to be distinguished from a con- tract for the performance of work and labor. This distinction becomes important most frequently in cases affected by the statute of frauds, and will be separately considered in that con- i See Mechem on Agency, § 1035. » Davis v. Bradley, 28 Vt. 118, 65 2 See Mechem on Agency, § 1035. Am. Dec. 226: Holbrook v. Wight, 24 3 Saunders v. Bartlett, 12 Heisk. Wend. (N. Y.) 169, 35 Am. Dec. 607; (Tenn.) 316; Oliver v. Moore, 12 id. Valle v. Cerre, 36 Mo. 575, 88 Am. 482; Woodruff v. Eailroad Co., 2 Dec. 161; Desha v. Pope, 6 Ala. 690, Head (Tenn.), 87. See Halliday v. 41 Am. Dec. 76; Hodges v. Kimball, Hamilton, 11 Wall. (U. S.) 564. 49 Iowa, 577, 31 Am. R. 159; Elliott 4 Elliott v. Cox, 48 Ga. 39; Harde- v. Bradley, 23 Vt. 217. man v. De Vaughn. 49 Ga. 596; Wade 6 First Nat. Bank v. Mc Andrews, 5 v. Hamilton, 30 Ga. 450; Nelson v. Mont. 325, 51 Am. R 51. Railroad Co., 2 111. App. 180. 5 65 § 52.] LAW OF SALE. [BOOK I. nection ; but it may and does arise in cases to which that stat- ute does not apply. The rules of construction must be sub- stantially the same in both classes of cases, though, perhaps, rather more technical tests have been applied in those cases which are affected by the statute. Where the statute of frauds is not concerned, the question may become important as a matter of pleading, as a matter of damages, or as a matter of liability for loss where the loss must follow the title. The question here, as in the many other cases already considered, is not a matter of names, but of essence and intent, involving an investigation into the real situation and purpose of the parties, as well as an inquiry as to the form of the contract they have made. Thus in a recent case in Wisconsin, 1 it appeared that the plaintiff had agreed to manufacture a large quantity of engrav- ings and lithographs for theatrical purposes, for the defendant for his special use, to be taken and paid for during the theat- rical season of 1885-86, and all of the work to be completed ready for delivery by December 15, 1885. A large part of the goods- was taken and paid for during the season, and the bal- ance was ready for delivery at the time agreed upon, but not being called for or paid for was destroyed by fire on May 26, 18S6, while piled up and set apart for the defendant on the plaintiff's premises. The plaintiff had had these goods insured and had received a portion of the insurance money. He sued to recover the price of the goods remaining unpaid for. Said the court, per Orton, J. : " The learned counsel on both sides, and the court below, treated this transaction as a sale of personal property. It was not a sale. When the contracts were entered into there was nothing in solido to be the subject of a sale. The mere paper, as the basis of this valuable work of mechanical art, was not only of insignificant value, but was not the subject of sale. The defendant did not wish to buy blank paper, and the plaintiff had none to sell. The plaintiff 1 Central Lithographing & Eng. R 186. See also Patrick v. Colorado Co. v. Moore (1889), 75 Wis. 170, 43 N. Smelting Co. (1894), 20 Colo. 268, 38 W. R. 1124, 6 L. R A. 788, 17 Am. St. Pac. R. 236. 66 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§ 53. was to manufacture these engravings and lithographs for the especial, peculiar and exclusive use of the defendant in his business as a theatrical manager. They were advertisements adapted to the names and characters of his theatrical perform- ances. It was the plaintiff's work of skill that gave the prop- erty produced by it any value. It was work and labor per- formed according to the order and direction of the defendant, and according to the terms of the contracts. "When the re- quired works were produced and ready to be taken away by the defendant and paid for, it was then not a sale. The plaintiff did not own them, and did not wish to own them, for they were of no use or value whatever to him, and were only of use and value to the defendant. When the job was completed ac- cording to the contracts, then the defendant was under legal obligation to take them away, and pay the amount agreed upon. 1 " Further illustration of this question will not be attempted here, as it will be dealt with so frequently under various aspects hereafter; enough has been given to indicate the point of differentiation in this place material. § 53. Sale to be distinguished from compromise respect- ing conflicting liens. — Again, a sale is to be distinguished from a compromise respecting conflicting claims or liens, and the release thereof by one party to, or for the benefit of, the other. Thus, in one case it appeared that separate judgment creditors had caused executions to be levied upon the same property, each claiming priority, and that they had afterwards mutually agreed to release their liens, permit one to make a new levy, and sell for the benefit of both. After such sale, the creditor making it refused to recognize that the other had any right to share in the proceeds, and the latter brought an action to recover. The defense, among other things, was that the re- lease was a sale, and therefore void under the statute of frauds because it was not evidenced by writing, but the court held that it was not a sale, but " a compromise of conflicting claims." l i Mygatt v. Tarbell (1890), 78 Wis. 351, 47 N. W. R. 618. 67 §54.] LAW OF SALE. [book § 54. Furnishing of food by restaurant or innkeeper as sale. — Whether the supplying of articles, by restaurant and innkeepers, to their guests and patrons, to be consumed on the premises, as food, constitutes a " sale " of those articles within the meaning of statutes forbidding, for example, the sale of oleomargarine or intoxicating liquors, is a question which has been much discussed in recent cases, and perhaps deserves at- tention in this chapter. While some difference of opinion has existed, the authorities 1 are, in the main, agreed that, where the 1 In Commonwealth v. Miller (1890), 131 Pa. St. 118, 18 Atl. R. 938, the de- fendant was owner and proprietor of a restaurant in Pittsburgh, and furnished meals to transient and regular patrons who paid for the same daily and upon the completion of each meal. On a certain day two men called at the restaurant, asked for a meal, and were at once fur- nished with it. Among the articles of food was a small dish of what ap- peared to be butter, but which was in fact oleomargarine. At the com- pletion of the meal the same was paid for, and the oleomargarine taken away by the two men. Suit was brought against the proprietor of the restaurant for the recovery of the statutory penalty imposed upon " every person . . . who shall manufacture, sell, or offer, or expose for sale, or have in his . . . pos- session with intent to sell " oleomar- garine. The court held the trans- action to be a sale, though from that opinion the chief justice dissented. In their opinion, delivered by Clark, J., the court said: "That the food furnished to McRay and Spence, or so much of it as they saw fit to ap- propriate, was sold to them, cannot be reasonably questioned; when it was set before them, it was theirs to all intents and purposes, to eat all, or a part, as they chose, subject only to the restaurateur's right to receive the price, which it is admitted was promptly paid. They might not eat all of the article set before them, but they had an undoubted right to do so; and even assuming that the meal is the portion of food taken, in the sense stated, the transaction must be regarded as a sale wholly within the meaning and purport of the stat- ute. It is certain that the oleomar- garine composed a part of the meal the price of which was paid, and was embraced in the transaction as an integral part thereof. If an un- licensed keeper of a restaui - ant may set before his guests a bottle of wine, or other intoxicating liquor, charg- ing a regular price for the same, with other articles of food furnished, with liberty to take much or little of the liquor as the guest may choose, or, failing to drink it with his meal, per- mit him to take it away with him, then the liquor laws of the common- wealth are of no avail, and the license to sell liquor is wholly unnecessary. When the liquor is thus furnished and paid for, it is in legal effect a sale, for the very act has been done which it is the policy of the law to prevent, and which it characterizes as a crime, viz., furnishing intoxicat- ing liquors at a price which is paid. 68 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§54. proprietor sets before his guest, at the latter's request, a num- ber of articles as constituting a "meal," for which the guest is to pay, these articles are then the guest's " to all intents and purposes, to eat all or part, as he chooses, subject only to the So, in this case, the oleomargarine was furnished to the person named as food, and the price was paid. As the learned judge of the court below well said, it was not given away, and the fact that it was not sold sep- arately, hut with other articles, for a gross sum, would not make it less a sale. It therefore comes within the letter of the law, and it is also within its spirit. If the use of such articles is injurious, it would seem to be especially within the spirit of the act to prohibit public caterers from selling them to their guests as part of an ordinary meal. Penal statutes are to be strictly construed, but both the letter and the spirit of the act of 1885 cover this case, and we think the judgment was properly entered." Paxson, C. J., dissenting from the foregoing, said: "When the legisla- ture used the word « sale,' it is fair to assume that it was employed in the sense in which it is popularly understood. If it was the intention not only to prohibit sales of oleo- margarine, but also its use as an article of food, or in the preparation of food, by proprietors of eating- houses, restaurants, and hotels, it was easy to have said so in express terms. As the act stands, there is nothing to warn this defendant that he violated it by placing oleomar- garine on the table as an article of food. " I am unable to see how the legal or popular meaning of the word 'sale ' will support this judgment. A sale is the transfer of the title to property at an agreed price. Story on Sales, § 1 ; Creveling v. Wood, 95 Pa. St. 152. I find nothing in the facts, as set forth in the case stated, to justify the conclusion that there was a sale of the oleomargarine. The two indi- viduals referred to entered the de- fendant's place of business, and ordered a meal. It was furnished, but oleomargarine formed no part of it. It is true, there was some of that article on the table. They might have partaken of it, but they did not. When they left they carried the oleo- margarine away with them. This, in my opinion, they had no right to do. A guest at a hotel may satisfy his appetite when he goes to the table. He may partake of anything that is placed before him; but, after filling his stomach, he may not also fill his pockets, and carry away the food he cannot eat. This I understand to be the rule as applicable to hotels and eating-houses in this country, and if there is anything in this case to take it out of its operation it does not ap- pear in the case stated. The illustra- tion of the bottle of wine, referred to in the opinion of the court, does not appear to me a happy one. Surely, if a proprietor of a hotel places a bot- tle of wine before his guest, who does not partake thereof, it cannot be said that it is a sale of the wine, nor has the guest the right to carry it away. He might as well carry off the table furniture." In Commonwealth v. Worcester (1879), 126 Mass. 256, the defendant sold meals in his dwelling-house. 69 § 5 I-] LAW OF SALE. [BOOK I. restaurateur's right to receive the price;" and that if, among the articles so furnished, is the forbidden article, there is a " sale " of that so far as the restaurateur is concerned, even though it was not specially ordered, or was not separately priced, or was not eaten by the guest. A fortiori, within this view would there be a sale ; if the article in question is expressly or- dered and separately paid for. 1 Whether, under like general circumstances, there would be a purchase by the guest, was not the subject of investigation in the cases cited, for in all of them the guest or patron was act- ively or passively assenting to the act. It would be clear, how- ever, if the question became material, that the patron could not become a purchaser without his express or implied assent. With these meals, and as a part thereof, were served wine, lager beer and other liquors. No bar was in the room, but upon the tables were placed bottles containing the liq- uors. When the guests got through they paid the defendant for the meal. The court said: "The purchase of a meal includes all the articles that go to make up the meal. It is wholly immaterial that no specific price is attached to those articles separately. If the meal included in- toxicating liquors, the purchase of the meal would be a purchase of the liquors." The defendant was there- fore properly found guilty of keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors. i In Commonwealth v. Vieth (1892), 155 Mass. 442, 29 N. E. R. 577, the com- plaint charged the defendant with selling milk below the required stand' ard of quality. He was the keeper of a hotel, who purchased his milk from a regular dealer, and furnished it to his guests in the same condition in which he received it. The milk com- plained of was delivered to one Bald- win, upon his ordering a glass of milk from the waiter in the cafe, to be drunk upon the premises. It was held that the evidence tended to show a sale in the defendant's cafe of a glass of milk, apparently a trans- action in itself, and clearly within the statute imposing a fine for the sale of milk not of the required stand- ard of quality. In Commonwealth v. Warren (1894), 160 Mass. 583, 36 N. E. R 308, an em- ployee of a milk inspector called at the defendant's public house and or- dered a breakfast in the dining-room. He asked for a glass of milk with his breakfast, part of which he carried away and analyzed. Thirty-five cents was paid for the breakfast, and noth- ing for the milk as distinct from the breakfast. The court held that this was as much a sale of the milk as though a specific price had been put upon it, or it had been bought and paid for by itself. 70 OH. II.] TRANSACTIONS DISTINGUISHED FKOM SALES. [§ 55. § 55. Supplying goods by several common owners to one of them — Social clubs — Intoxicating liquors. — The ques- tion whether the supplying of intoxicating liquors by social clubs to their members constitutes a sale within the meaning of the statutes prohibiting sales without a license, the keeping open of bars on Sunday, and the like, has also frequently arisen and given much difficulty in its determination. The question depends so largely upon the character of the club, the language of the statute, and circumstances of each case, that it cannot be exhaustively considered here. But in general it has been 'held by the English and several American courts that when the club is organized in good faith with a limited membership for other purposes than the mere supplying of liquors, and the liquors are supplied to members in accordance with the rules of the club and simply as a part of the general refreshments furnished by the club, there is no sale within the meaning of the statutes. It has been contended in these cases that as the liquors belonged to the club, and the member in obtaining them, though at a fixed price, was but exercising his rights as a member of the club in pursuance of the original contract of membership, there was no new contract of sale between the club of which he was thus a member as seller and himself as purchaser. 1 Many other American cases, however, have re- 1 In Commonwealth v. Smith (1869), liquor was purchased with the club's 102 Mass. 144, the defendant was funds and dispensed to its members, agent of a club, bought liquors with each paying a stipulated price for the club's money, and furnished said the liquor consumed, which money liquor to the club members. The was used solely to keep up the stock plan was for the members to ad- and cover the expenses of serving, vance money to the club and receive and was not taken with a view to in return checks of the denomina- profit, such a transaction did not vio- tion of five cents, which were pre- late the liquor law providing that no sented at the club bar and liquor person should sell, dispose of, barter given in exchange. Held, that these or (if a dealer) give away fermented facts would not, as a matter of law, liquors on Sunday, show a sale. Graff v. Evans (1882), 8 Q. B. Div. In Seim v. State (18S0), 55 Md. 566, 373, is a well known case. A bona 39 Am. R. 419, the court held that fide club, with limitations as to where a bona fide social club was membership, entrance fees, trustees formed, in connection with which for the control of its property, and 71 §55.] LAW OF SALE. [BOOK I. pudiated this distinction, and held that, as it was optional with the member whether he would obtain the liquors or not, and other characteristics common to so cial clubs, dispensed liquors to its members without a license, and the court held that this was not a "sale by retail " of such liquors within the meaning of the licensing act. In Tennessee Club v. Dwyer (1S83), 11 Lea (Tenn.), 452, 47 Am. R 298, it was held that a club which main- tained a library, gave musical enter- tainments, afforded meals to its members, and kept a small stock of liquors which were for the use of members and paid for as used, no profit being made, was not liable to pay a privilege tax as a retail liquor dealer. In Commonwealth v. Pomphret (1884), 137 Mass. 564, 50 Am. R. 340, it was held that the steward of a club was not liable for keeping intoxicat- ing liquors with intent to sell the same, where the club was limited in its membership, hired the steward, who was a member, to deliver liquors to the other members upon presenta- tion of checks representing a certain sum, and the money received was used by the steward in buying liq- uors in the name of and for the ben- efit of the club. In Commonwealth v. Ewig (1887). 145 Mass. 119, 13 N. E. R. 365, it was held that, under a state of facts showing a dispensing of liquors to members of a bona fide social club, there was no " sale " of intoxi- cating liquors. So in Barden v. Mon- tana Club (1891), 10 Mont. 330, 25 Pac. R 1042, 24 Am. St. R. 27, 11 L. R A. 593. the court held that, under a state of facts showing a bona fide literary and social club, which furnished its members with liquors with no intent to evade the liquor laws and without profit to itself, there was no "deal- ing in " or " selling " at retail. Pied- mont Club v. Commonwealth (1891), 87 Va. 541, 12 S. E. R 963, under a similar state of facts, announced the same opinion. In Columbia Club v. McMaster (1891), 35 S. C. 1, 14 S. E. R 290, the court held that " the distribution of liquors by a bona fide club among its members is not a 'sale' within the inhibition of a liquor law, even though the person receiving the liq- uor gives money for it." lri State v. St. Louis Club (1894), 125 Mo. 308, 28 S. W. R. 604, 26 L. R A. 573, the authorities were elab- orately considered, and the court held that, where a bona fide social club, not incorporated for profit, sells liquor to a member, that does not constitute a sale within the inhibi- tion of the liquor law. In People v. Adelphi Club (1896), 149 N. Y. 5, 43 N. E. R 410, 52 Am. St. R. 700, 31 L. R A. 510, a bona fide club, with a limited membership, which maintained a library and reading rooms, and supplied its mem- bers with liquors with no purpose of making a profit therefrom, was held not to be within the contemplation of the statute requiring licenses for the selling of intoxicating liquors. The court said: " We think the trans- action did not amount to a sale within the meaning of the statute. It was but a distribution among the members of the club of the property that belonged to them. The fact that a payment was made does not change the character of the act." See People v. Andrews, 115 N. Y. 427 (infra ). And in Klein v. Livingstone Club, 72 CH. II.] TRANSACTIONS DISTINGUISHED FKOM SALES. [{ 00. as he obtained them from the owner, the club, and paid there- for a price agreed upon, all of the elements of sale were present. 1 But, on the other hand, all of the cases are practically agreed that where the " club " is but a mere subterfuge — a device for (1896), 177 Pa. St. 224, 35 Atl. R 606, 55 Am. St R 717, under a similar state of facts, the court announced the same opinion. iln Marmont v. State (1874), 4S Ind. 21. there was a club formed for social and relief purposes, which met each Sunday. On Saturday of each week tbe treasurer, by order of the club, bought a keg of beer, which was carried to the place of meeting, and on Sunday the beer was drunk by the members, each one, upon re- ceiving a glass of it, paying five cents to the treasurer, which money was put in the club's treasury. Held to be a violation of the law prohib- iting sales of intoxicating liquors on Sunday. In Martin v. State (1877). 59 Ala. 34. the agent of an incorporated club sold liquors to the members, no li- cense having been taken out. It was held that the ownership of the liq- uors changed so as to constitute a sale, passing from the corporation aggregate to the individual mem- bers, for a valuable consideration. In Chesapeake Club v. State (1885), 63 Md. 446, the court was construing not the general Sunday liquor law, which was passed upon in Seim v. State (supra), but the local-option act, and it held that under this act, providing "that no person or per- sons, company, corporation or asso- ciation shall deposit or have in his, her, their or its possession , . . any intoxicating liquors . . . with intent to sell or give away the same in violation of law, or with intent that the same shall be sold or given away by another person," shall be liable, the furnishing of liquors on Sunday by an incorporated club to its members was an act in violation of law. In State v. Lockyear (18S6), 95 X. C. 633, 59 Am. R 287, the court held that the dispensing of liquors for the convenience of members by an ordi- nary social club was " in the strict legal sense" a sale. In State v. Horacek (1889), 41 Kan. 87, 21 Pac. R 204, 3 L. R A 687, it was held that when an incorporated associa- tion purchased beer and brought it into Kansas, and furnished it to its members in exchange for chips pur- chased from the association, there was a violation of the law against selling intoxicating liquors. And in People v. Soule (1889), 74 Mich. 250, 41 N. W. R 908, 2 L. R. A 494, the court held that a club properly or- ganized for social purposes could not distribute liquors among its mem- bers, receiving pay therefor as dis- tributed, which went into the club treasury to replenish stock and pay expenses, without being liable to pay a retail tax for selling such liquors. So in Newark v. Essex Club (1890), 53 X. J. L. 99, 20 AtL R. 769, the fur- nishing liquors to club members, where the club made no profit and there was no purpose to evade the law. was held to constitute a sale of liquor by the club. State v. Easton Club (1890), 73 Md. 97, 20 Atl. R. 783, 10 L. R A. 64, was a case similar to Chesapeake Club v. State, and the ?3 55.] LAW OF SALE. [BOOK I. avoiding the operation of the statute — it furnishes no protec- tion, and that its supplying of liquors to its so-called members constitutes a sale within the prohibition of the acts. 1 court came to the same decision, con- struing the same local-option act. In Kentucky Club v. Louisville (1891), 92 Ky. 309, 17 S. W. R. 743, the court held that a city ordinance laying a tax on every club house where intoxicating liquors were sold by retail applied to a club which, under the ordinary arrangements, dispensed liquors to its members only. In Nogales Club v. State (1891), 69 Miss. 218, 10 S. R. 574, it was held that where a social club had a back room partly disconnected from the other rooms, in which it disposed of liquors, at prices regulated by the club, to members and visitors, em- ploying a steward for the purpose at a fixed salary, it was within a stat- ute prohibiting sales of intoxicating liquors to minors. t In State v. Neis (1891), 108 N. C. 787, 13 S. E. R. 225, 12 L. R. A. 412, a number of persons, members of a club, were owners in common of a jug of liquor, which they put in the hands of a steward, and each time one of them took a drink from the jug he gave the steward ten cents, the money to be used in re- plenishing the jug. Held, that this constituted a sale. So in State v. Boston Club (1893), 45 La. Ann. 585, 12 S. R. 895, the court held that when a social club distributed liquor to its members the transaction was a sale, saying that, " whether incorporated or not, in both cases the property passes to the individual member and the money paid becomes the prop- erty of the club." In Krnavek v. State (1897), 38 Tex. Crim. R. 44. 41 S. W. R. 612, the case concerned a bona fide club, and the court said: "The question here is whether the sale of intoxicants by the managing steward or barkeeper of the club to one of the members of said club is a sale. We are of opin- ion that it is." In Mohrman v. State (1898). 105 Ga. 709, 32 S. E. R. 143, 43 L. R. A. 398, the indictment was against the manager of a social club for " keep- ing open a tippling-house on the Sab- bath day." The determination of the question whether there had been a sale of liquor was not necessary under the indictment, but the court dis- cussed the point and approved those authorities which hold that for a club to distribute liquors among its members is a sale. i In State v. Mercer (1871), 32 Iowa, 405, a so-called " social club *' was formed whose sole object appeared to be to supply its members with liquors in contravention of the law. The members were given tickets in exchange for money paid, and these tickets were taken in payment for liquors. It was held that the sale of the tickets was in fact the sale of the liquors, and the defendant was guilty of a violation of the law. In Rickart v. People (1875), 79 111. 85, an association was formed for the avowed purpose of promoting tem- perance and friendship. One of the members, who was made treasurer, ran a dram-shop, and the other mem- bers, upon payment of a dollar each, received tickets representing the amount paid, which were presented at the dram-shop and honored in pay- (•4 CH. II.] TRANSACTIONS DISTINGUISHED FROM SALES. [§56. § 56. Transfer of title by operation of law.— Finally, to be distinguished from the transfers to be considered in the present treatise are those which result from operation of law. For example, " a recovery for the conversion or for the taking of a specific chattel, and satisfaction of the judgment, changes the property in a chattel by operation of law, on the principle that solutio pretii emptionis loco habetur; where the transfer, by such means, is considered as a complete and absolute change of title." l Such cases, clearly, do not depend upon the mutual negotia- tion and agreement of the parties, and are foreign to the pres- ent subject. ment for liquors or cigars. The treas- urer received all the money and ren- dered no account. Held, that such dispensing of liquors without a license was a violation of the law against the sale of intoxicating liquors. People v. Andrews (1889), 115 N. Y. 427, 22 N. E. R. 358, 6 L. R. A. 128, has been a much misunderstood case. It was long thought that it held the distributing of liquors by bona fide social clubs to their members to be sales within the meaning of the liquor laws, and several cases were decided by the general terms in har- mony with that view. But in People v. Adelphi Club, supra, the court of appeals declared that such was not the meaning of this case. The facts showed a fraudulent attempt to evade the laws under the guise of a club, any one being admitted to mem- bership on payment of a nominal fee, which was returned to him upon withdrawal. It was this feature which controlled the decision, and its application is confined to such cases of fraud. i Thayer v. Manley (1878), 73 N. Y. 305, 309. See also Cooper v. Shepherd (1846), 3 Com. B. 266, 54 Eng. Com. L. 265; Lovejoy v. Murray (1865), 3 Wall. (U.S.) 1; Fox v. Prickett (1869), 34 N. J. L. 13; Miller v. Hyde (1894), 161 Mass. 472, 37 N. E. R. 760, 42 Am. St. R. 424, and note at p. 433, where the mooted question, whether it is the judgment or its satisfaction which transfers the title, is discussed. 75 CHAPTER III. OF THE CAPACITY OF PARTIES — WHO MAY BUY AND SELL. § 57. Purpose of this chapter. I. Of Capacity in General. 58. General rule as to competency. 59. Presumption of competency. 60. Causes and classification of in- competency. 1. Natural Incompetency. 61. What here included. a. Persons of Unsound Mind. 62. Scope of present treatment. 63. Insane persons as parties to contracts generally. 64. Degree of incapacity which avoids. 65. Weakness of mind and impo- sition combined. 66. Mere inadequacy of price. 07. Partial insanity — Monoma- nia — Sane interval. 68. Presumption as to sane intervals. 69. Effect of judicial determina- tion of insanity. 70. Only prima facie evi- dence as to period covered. 71. Petitioner for proceeding not estopped by it. 72. Whether contracts of insane person void or voidable. 73. Avoiding contract — Executed and executory. 74. 75. Protection of inno- cent party. 76. Insane person must have received benefit. § 77. Return of consideration necessary. 78, 79. Right, to recover from bona fide purchaser. 80. Who may disaffirm. 81. Creditor may not. 82. Sane party may not. 83. Affirmance of contract. 84. Contract of insane person for necessaries, binding. 85. Liability limited to value received. b. Incompetency of Drunkards. 86. Contracts of drunken persons. 87. Voidable, not void. 88. Bona fide holders. 89. Habitual drunkards. 90. Partial intoxication coupled with fraud. 91. Drunkards under guardian- ship. c. Incompetency of Spendthrifts. 92. Contracts of spendthrifts, etc. 2. Legal Incompetency. 93. In general. a. Incapacity of Infants. 94. In general. 95. Infant's contracts voidable, not void. 96. What meant by voidable. 97. Who may avoid. 98. When avoided. 99. When ratified. 100. How much to be ratified. CH. III.] CAPACITY OF PARTIES. § 101. 102. 103. 112. 113. 114 115. 116. 117. 118. 119. 120. 121. 125. 126. 127. 128. 129. — Effect of ratification. — Knowledge of non-liabil- ity. — Consideration for ratifi- cation. 104, 105. Ratification, how ef- fected. 106. Sale or exchange by infant voidable. 107. When avoided. 108. How avoided. 109. Return of consideration. 110. Bona fide purchasers. 111. Chattel mortgage voidable. When avoided. Returning consideration. How avoided. Purchases voidable, if not nec- essaries. When avoided. How avoided. Return of consideration. Ineffectual defenses — Re- coupment — Injury to goods. Effect of disaffirmance — Revests seller's title. Ratification of purchases. 122. Liability of infant for neces- saries. 123, 124. For what amount bound. — Interest. — Goods must have been furnished on infant's ac- count. — Infant not liable if al- ready supplied. — Seller supplies goods at his peril. — Infant living with par- ents, etc., presumed to be supplied. 130. What constitute necessaries. 131. How determined — Bur- den of proof. 132. Illustrations. 6. Incapacity of Married Women. g 133. What here considered. 134. Common-law disability. 135. Equitable doctrines as to sep- arate estate. 136. Statutes removing disability. 137. To what extent. 138. What contracts she may make. 139. Statutory liability for family necessaries. ft Capacity of Corporations. 140. In general. 141. Corporations as sellers. 142. Corporations as buyers. d. Capacity of Partnerships. 143. In general. 144. Partnerships as sellers. 145. Partnerships as buyers. II Sales by Persons Haylvg Only a Defeasible Title 146. Such a person in possession may pass good title to bona fide purchaser. 147. One holding subject to secret lien. 148. Fraudulent vendee. 149. One who obtained goods by trick. 150. Fraudulent grantee of debtor. 151. Fraudulent debtor. 152. Conditional vendea 153. Purchaser for cash who has not paid. IIL Sales by Persons Having Only an Ostensible Title. 154. 155. In general, one cannot convey better title than he has. 156. Possession alone insufficient evidence of title. 77 57.] LAW OF SALE. [BOOK I. § 157. Possession coupled with in- dicia of ownership. 158, 159. What requisite. 160-164. Illustrations. 165. Limitations. 166. Appearance of title from pos- session of bill of lading or warehouse receipt. 167. Ostensible title of vendor in possession. 168. 169. Ostensible title under Factors Acts. 170. Ostensible title by conduct. IV. Sales and Purchases by Per- sons Acting for Others. 171. In general. 172. Nature of authority. 2. Authority to Sell Personal Prop- erty. 173. How considered. a. Authority to Sell Conferred by Law. 174. Chief illustrations. b. Authority Conferred by Act of Party. 175. Express authority to sell. 176. Implied authority to sell. 177. None implied from mere possession. 178. None implied from mere re- lationship — Husband and wife — Parent and child. 179. None implied from authority to do other kinds of acts. 3. Authority to Buy Personal Prop- erty. 180. How considered. a. Authority to Buy Conferred by Law. § 181. Chief instances. 182. Authority of wife to buy nec- essaries on husband's credit. 183. Where parties are living together. 184. Where parties are living apart. 185. What constitute neces- saries. 186. Authority of infant child to buy necessaries on parent's credit. b. Authority to Buy Conferred by Act of Party. 187. Express authority to buy. 188. Implied authority to buy. 189. Not implied from mere relationship of parties. V. Sales by Persons Acting est an Official Capacity. 190. In general. 191. Authority must be strictly construed. 192. Officer must keep within the term and territory of his office. 193. Officer cannot deal with him self. 194. Purchasers at execution, tax, and similar sales. 195. Purchases at executors', ad- ministrators' and guardians' sales. 196. Trustees' sales. §57. Purpose of this chapter.— Having now considered the questions arising out of the definition and differentiation of the contract of sale, attention will next be given to the ques- tion of who may sell or buy. This primarily leads to the dis- 7b CH. III.] CAPACITY OF PARTIES. [§§ 58-60. cussion of the capacity of parties, in general, to enter into the contract of sale ; but, for convenience sake, a wider range will be given to the present chapter so as to include certain allied matters which fall, perhaps, as logicall} 7 under this head as under any other, and there will be considered here the ques- tions — I. Of sales and purchases by parties acting in their own right; and herein of capacity in general. - II. Of sales by persons having only a defeasible title. III. Of sales by persons having only an ostensible title. IV. Of sales and purchases by persons acting only in a repre- sentative capacity, or sales and purchases by agents. V. Of sales by persons acting in an official capacity. I. Or Capacity of Parties in General. § 58. General rule as to competency. — Sale being a trans- fer of title in pursuance of a contract, it follows that, as a rule, the same capacity is requisite for the making of a contract of sale as for the making of any other contract; or, stated af- firmatively, that any person who is capable of making con- tracts generally is competent to enter into the contract of sale. § 59. Presumption of competency. — The law does not pre- sume that the parties to a contract were incompetent. On the contrary, the presumption is that they were competent, and the burden of proving incompetency rests upon him who al- leges it. At the same time — § 60. Causes and classification of incompetency. — There are many persons who are, either generally or in special cases, incompetent to contract, and this incompetency requires con- sideration. Incompetency may arise either from infirmity of the mind or it may be created by law. The former kind is often termed natural incompetency, while the latter is desig- nated legal incompetency. Of the first kind are the defects 79 §§ 61-64] LAW OF SALE. [BOOK I. of idiots, insane persons and drunken persons; and of the lat- ter kind is the incompetency of aliens, infants and married women. 1. Natural Incompetency. § 61. What here included. — As suggested in the preceding section, there will be included under this head the question of the incompetency of the insane person, the drunkard, and the spendthrift; and these subjects will be considered in the order named. a. Incompetency by Reason of Mental Unsoundness or Weak- ness. §62. Scope of present treatment. — It is not the purpose here to enter minutely into the consideration of the question of the capacity of insane persons to make contracts generally, as that subject belongs more appropriately to works upon the law of contracts ; but a brief reference to some of the leading prin- ciples and to certain of the more important cases may be of service. In what will be said, no attempt will be made to dis- tinguish between the various forms of mental disease which are sometimes classified as idiocy, delirium, lunacy, mania, and the like. § 63. Insane persons as parties to contracts generally. — Mental incapacity may arise from a great variety of causes and present almost numberless degrees of completeness. It may be the result of inheritance, illness, accident or intemperance, and may be general in its nature, though limited in its degree, or it may be complete as to some subjects or on some occasions, while not existing at other times or in reference to other mat- ters. Hence — § 64. Degree of incapacity which avoids contracts. — It is not every degree of mental weakness which incapacitates one for entering into contracts, but it must be of such a degree that the person is unable to intelligently comprehend the act to 80 CH. III.] CAPACITY OF PARTIES. [§ 65. which the contract relates, or to intelligently will to do such act. 1 In the absence of fraud or imposition, therefore, mere weak- ness of intellect, 2 old age, 3 " vacillation, shiftlessness, improvi- dence, occasional despondency or religious hobby," 4 physical weakness, or want of judgment and discretion, 5 is not enough, but the disability must be so great that the person is " wholly, absolutely and completely unable to understand or comprehend the nature of the transaction." 8 §65. Weakness of mind and imposition combining. — But though the weakness of mind or partial defect be not sufficient to incapacitate, yet if there be evidence of co-existing fraud, undue advantage or imposition operating upon such weakened or defective intellect, the two combining may be enough to in- validate the dealing. 7 The rules upon this subject have been well stated in one case 8 as follows: "Mere weakness of intellect, if the party is compos mentis, does not deprive him of the capacity to con- tract; but imbecility of understanding constitutes a material ingredient in examining whether a bond or other contract has been obtained by fraud or imposition or undue influence; for although a contract made by a man of fair understanding may i Hovey v. Chase, 52 Me. 304, 83 Am. mania. Connor v. Stanley, 72 CaL Dec. 514; Jackson v. King, 4 Cow. 556, 1 Am. St. R. 84. (N. Y.j 218, 15 Am. Dec. 354; Sands v. 5 Hovey v.. Chase, 52 Me. 304, 83 Potter, 165 111. 397, 46 N. E. R. 282. Am. Dec. 514. 2 Jackson v. King, 4 Cow. (N. Y.) 6 Aldrich v. Bailey, 132 N. Y. 85, 207, 15 Am. Dec. 354; Smith v. Be- 30 N. E. R. 264. atty, 2 Ired. (N. C.) Eq. 456, 40 Am. 7 Garrow v. Brown, Winston's Eq. Dec. 435; Juzan v. Toulmm, 9 Ala. (N. C.) 46, 86 Am. Dec. 450; Juzan v. 662, 44 Am. Dec. 448; Ellis v. Math- Toulmin, 9 Ala. 662,44 Am. Dec. 448; ews, 19 Tex. 390, 70 Am. Dec. 353; Jackson v. King, 4 Cow. (N. Y.) 207, Harrison v. Otley, 101 Iowa, 652, 70 15 Am. Dec. 354: Ellis v. Mathews, N. W. R. 724; Aldrich v. Bailey, 132 19 Tex. 390, 70 Am. Dec. 353; Seeley N. Y. 85, 30 N. E. R. 264. v. Price, 14 Mich. 541; Darnell v. 3 Smith v. Beatty, supra; Aldrich Rowland, 30 Ind. 342; Henry v. Rite- v. Bailey, supra. nour, 31 Ind. 136; Yount v. Yount, * West v. Russell, 48 Mich. 74. Be- 144 Ind. 133, 43 N. E. R. 136. lief in spiritualism does not of itself 8 Juzan v. Toulmin, supra. show insanity unless it aiaounts to a 6 81 §§ 66, 67.] LAW OF SALE. [BOOK I. not be set aside, merely because it was a rash, improvident or bard bargain, yet if made with a person of imbecile mind, the inference naturally arises that it was obtained by circumven- tion or undue influence. 1 In Blackford v. Christian? Lord Wynford said a bargain into which a weak mind is drawn, under the influence of deceit and falsehood, ought not to be held valid. And a degree of weakness of intellect far below that which would justify a jury, under a commission of lunacy, in finding him incapable of controlling his person and property, coupled with other circumstances to show that the weakness, such as it was, had been taken advantage of, will be sufficient to set aside any important deed." § 66. Mere inadequacy of price or other inequality in the bargain is not, it is said in the same case, "to be understood as constituting per se a ground to avoid a bargain in equity. Courts of equity, as well as courts of law, act upon the ground that every person who is not, from his peculiar condition or circumstances, under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses; and whether his bargains are wise and discreet or otherwise, profitable or unprofitable, are considerations not for courts of justice but for the party himself to deliberate upon. Where, however, the inadequacy is such as to demonstrate some gross imposition or undue influence, or, to use an expressive phrase, shock the conscience, and amount in itself to conclusive and decisive evidence of fraud, equity ought to interfere. And gross inadequacy of price, when connected with suspicious cir- cumstances or peculiar relations between the parties, affords a vehement presumption of fraud. § 67. Partial insanity — Monomania — Sane intervals. — It is not enough that the person may be partially insane, or insane only as to certain subjects, or that he may occasionally be insane, unless it appears also that the contract was in refer- ence to those subjects to which his insanity applied, or was 1 Citing 1 Story's Eq. Jur. 238-242. 2 1 Knapp, 77. 82 CH. III.] CAPACITY OF PARTIES. [§§ OS, 69. made during his insane intervals. If made as to subjects in reference to which his incapacity did not exist, 1 or, in the other case, if made during his sane intervals, 2 the, contract will be valid. § 68. Presumption as to sane intervals. — Where gen- eral or habitual insanity is shown to have existed during a given period, the presumption will be that it was continuous during that period, and the person who alleges that a sane in- terval existed at the time the particular contract was made must assume the burden of proving it. 3 §69. Effect of judicial determination of insanity.— "All contracts of a lunatic, habitual drunkard or person of unsound mind," it is said in a late case, 4 " made after an inquisition and confirmation thereof, are absolutely void, until, by permission of the court, he is allowed to assume control of his property. 5 In such cases the lunacy record, as long as it remains in force, is conclusive evidence of incapacity. Contracts, however, made by this class of persons before office found, but within the pe- riod overreached by the finding of the jury, are not utterly void, although they are presumed to be so until capacity to contract is shown by satisfactory evidence. 6 Under such cir- cumstances the proceedings in lunacy are presumptive, but not -conclusive, evidence of a want of capacity. The presumption, iGalpin v. Wilson, 40 Iowa, 90; Paige (N. Y.), 422, 22 Am. Dec. 655; Searle v. Galbraith, 73 111. 269. Wadsworth v. Sharpsteen, 8 N. Y. 2 Lee v. Lee, 4 McCord (S. C), 183, 388, 59 Am. Dec. 499; 2 N. Y. R. S., 17 Am. Dec. 722; In re Gangwere, 14 p. 1094, sec. 10. To the same effect: Pa. St. 417, 53 Am. Dec. 554; Staples Pearl v. McDowell, 3 J. J. Marsh. v. Wellington, 58 Me. 453; Lewis v. (Ky.) 658, 20 Am. Dec. 199; Leonard Baird, 3 McLean (U. S. C. C), 56; v. Leonard, 14 Pick. (Mass.) 283; Boyce v. Smith, 9 Gratt, (Va.) 704, 60 Kichol v. Thomas, 53 Ind. 42; Freed Am. Dec. 313. v. Brown, 55 Ind. 310; Griswold v. a Rogers v. Walker, 6 Pa. St. 371, Butler, 3 Conn. 227; Elston v. Jasper, 47 Am. Dec. 470; Case of Cochran's 45 Tex. 409; Mohr v. Tulip, 40 Wis. Will, 1 T. B. Mon. (Ky.) 264, 15 Am. 66; Imhoff v. Whitmer, 7 Casey (Pa.), Dec. 116, and note citing many cases. 243. * Hughes v. Jones, 116 N. Y. 67, 15 « Citing 2 R. S., supra; Van Deusen Am. St. R. 386, 22 N. E. R. 446. v. Sweet, 51 N. Y. 378; Banker v. 6 Citing L'Amoureaux v. Crosby, 2 Banker, 63 N. Y. 409. 83 §§ 70-72.] - LAW OF SALE. [BOOK I. whether conclusive or only prima facie, extends to all the world, and includes all persons, whether they have notice of the inquisition or not.' 1 ' The rule here laid down is approved by the majority of the courts, though the decisions differ in some respects owing to peculiarities of the local statutes and the composition and functions of the tribunal. 2 § 70. Inquisition only prima facie evidence as to pe- riod overreached by it, — As stated, however, the inquisition, while conclusive as to contracts subsequently made, is only prima fade evidence of incapacity during the period before the commencement of the proceeding and overreached by it, and it may be rebutted by evidence of actual capacity at the particular time at which the act in controversy was done. 3 So, on the other hand, a rinding of insanity at a prior period is not conclusive, and may be rebutted. 4 § 71. Petitioner for proceeding not estopped by it. — The petitioner for the inquisition proceeding is not so far a party to the proceeding as to be estopped thereby, except as all the world is estopped, and he may, therefore, by evidence rebut the presumption arising out of the very proceeding which he himself has instituted. 5 § 72. Whether contract of insane person void or void- able. — It is laid down by many of the older authorities that the contract of the insane person, whether before or after oilice found, is void; but the decided tendency of the mod- 1 Citing Hart v. Deamer, 6 Wend. L'Amoureaux v. Crosby, 2 Paige (N. V.i 197; Osterhout v. Shoemaker, (N. Y.), 422, 22 Am. Dec. 655; Field :; II ill (N. Y.), 513; 1 Greenl. Ev. v. Lucas, 21 Ga. 447, 68 Am. Dec. 4. 398. 5 Rainwater v. Durham, 2 N. & McC. 524. 10 Am. Dec. 637: Grace v. Hale. 2 Humph. (Tenn.) 27. 36 Am. Dec. 296; House v, Alexander, 105 Ind. 109, 4 X. K R 891, 55 Am. R. 189; Beeler v. Young. 1 Bibb (Ky.), 519. 6 See House t. Alexander, and other cases in preceding note. " Merriam v. Cunningham, 11 Cush. (Mass.) 40. 8 Hart v. Prater, 1 Jur. 623. 9 Burghart v. Angerstein, 6 Car. & P. 690, 698. io Jenner v. Walker, 19 L. T. X. S. 398. ii See Hill v. Arbon, 34 L. T. (X. S.) 125. i 2 McKanna v. Merry, 61 111. 177. 13 Howard v. Simpkins, 70 Ga. 322. uPyne v. Wood (1888), 145 Mass. 558, 14 N. E. R 775. In this case the infant lived at home but worked in a shop a mile away, and used the bicycle to ride upon in going home to dinner, which he could not do in the time allotted without it. (The court cite Merriam v. Cunningham, 11 Cush. (Mass.) 40; Leonard v. Stott, 108 Mass. 46.) To same effect see Clyde Cycle Co. v. Hargreaves (1898), 78 L. T. (N. S.) 296. See also Rice v. Butler (1899), 160 X. Y. 578, 55 X. E. R. 275, 47 L. R. A. 303. 1 5 Bryant v. Richardson, 12 Jur. .X. S.)"300. 16 Saunders v. Ott, 1 McCord (S. C), 570; Price v. Sanders, 60 Ind. 310; House v. Alexander, 105 Ind. 109, 55 Am. R 189, 4 X. E. R 891. i' House v. Alexander, 105 Ind. 109, 4 X. E. R 891, 55 Am. R 189; Grace i^Decell v. Lewenthal, 57 Miss. 331, 34 Am. R 449; State v. Howard, X. C. 650. 130 ■CH. III.] CAPACITY OF PARTIES. 132. be used in cultivating his land, 1 the keep of work-horses, 2 even though in either case he thereby earns his living, are not con- sidered as necessaries. Money borrowed to be used, and used by the infant in pro- curing necessaries, is not a necessary. 3 but money directly ap- plied by the lender to procure necessaries for the infant may be recovered: 4 and so. it is held, may money advanced by a third person, at the infant's request, to pay a bill previously in- curred by the infant for necessaries. 5 On the same ground, a person who signs, as surety, an infant's note for necessaries and is compelled to pay it. may recover from the infant as for money paid for his benefit. 6 Necessaries furnished to the infant's wife and family are nec- essaries to the infant; 7 and an infant's widow has been held liable on her contract to pay the funeral expenses of her hus- band who left no estate. 8 Attorney and counsel fees are usually regarded as necessa- ries when required to preserve or protect the infant's personal rights. 9 When rights of property only are involved, it has been v. Hale. 2 Humph. (Term.) 27. 36 Am. Price v. Sanders, supra; Marlow v. Dec. 290: Decell v. Lewenthal. 57 Pitfield. 1 P. Wnis. 558. Miss. 331. 34 Am. R 449: Rainwater 4 Swift v. Bennett. 10 Cush. (Mass.) v. Durham. 2 X. & MeG 524. 10 Am. 436: Randall v. Sweet, 1 Demo (N. T. i. Dec. 637: Rvan v. Smith (1896), 165 Mass. 303. 43 N. R R 109: Paul v. ^Kilgore v. Rich. S3 Me. 305, 22 Smith, 41 Mo. App. 275: Wood v. Atl. R 176, 23 Am St. R 7n">. 12 L. Losev. 50 Michu 475. 15 N. W. R. 557. R. A. - " i House v. Alexander. 105 Ind. 109, 6 Conn v Coburn, 7 N. H •:• - - 4 X. E. R. --91. 55 Am. R. 189; Wood Am Dec 746. v. Losey. 50 Mich, 475, 15 N. W. R : Cantine v. Phillips. 5 Harr. (DeL) 557: Rainwater v. Durham, supra; 42S: Chapman v. Hughes, 61 Miss. Grace v. Hale, supra. But see Moh- 339. ney v. Evans. 51 Pa. St. SO. contra. * Chappie v. Cooper. 13 Mees. d: W. - Merriam v. Cunningham, 11 Cush. 252. (Mass.) 40. 9 See Munson v. "VTashband. 31 s Randall v. Sweet. 1 Denio (N. Y-), Conn. 303. S3 Am. Dec. 151: Barker 460: Price v. Sanders. 60 Ind. 310: v. Hibbard, 54 N. H. 539. 20 Am. R Darbv v. Boucher. 1 Salk. 279: Earle 160: Epperson v. Nugent. 57 Miss. 4-5. v. Peale. 1 Salk. 38 34 Am R 434: Englebert v. TroxelL It may be recovered in equity. 40 Neb. 195, 26 L. R A 177, 42 Am. * 131 §§ 133, 134.] LAW OF SALE. [BOOK I. held that such fees were not necessaries ; 1 but the tendency is. to regard them as necessaries in these cases also, if tlie services were beneficial in recovering or protecting the infant's estate.' 2 b. Of the Incapacity of Married Women. § 133. What here considered. — It is not within the prov- ince of such a work as this to enter, with any fullness, into a consideration of the legal status of the married woman, for that would require a volume. A brief reference to the chief outlines of the subject is all which space will permit. For fuller discussion recourse must be had to the various treatises which make this question the subject of exhaustive treatment. § 134. Common-law disability. — At the common law the unmarried woman, whether maid or widow, was under no con- tractual disability by reason of her sex; but the married woman, by reason of her coverture, was, in general, under a complete disability to contract, or to acquire, hold or dispose of property in her own right. In contemplation of law, her existence be- came merged in that of her husband, her bargaining power was lost in his, while her personal property of a tangible nat- ure became his, and her choses in action also, if he reduced them to his possession. She could not, therefore, buy or sell personalty, or enter into binding contracts concerning it. Exception was made for her benefit in certain cases of pur- chase. " The first is, when the husband is civiliter mortuus, dead in law, as when he is under sentence of penal servitude, or transportation or banishment. The disability of the wife in such cases is said to be suspended, for her own benefit, that she may be able to procure a subsistence. She may therefore bind herself as purchaser when her husband, a convict sen- tenced to transportation, has not yet been sent away, and also when he remains away after his sentence has expired. But St. R. 663, 58 N. W. R. 852; Askey v. z Epperson v. Nugent, supra; Williams, 74 Tex. 294, 5 L. R. A. 176, Searcy v. Hunter, 81 Tex. 644, 17 S. 11 S. W. R. 1101. W. R. 372, 26 Am. St. R. 837. See i Phelps v. Worcester, 11 N. H. 51. also Thrall v. Wright, 38 Vt. 494 • 132 CH. III.] CAPACITY OF PARTIES. [§ 135. not if he abscond and go abroad in order to avoi& a charge of felony." 1 A second exception was at one time thought to exist where the husband was an alien and resided abroad while she lived in England and purchased there; but this exception has there been discredited. 2 The third exception was confined to the city of London, where, by custom, a married woman might be a sole trader and bind herself as such. 3 § 135. Equitable doctrine concerning separate estate. — In order to relieve these disabilities of the married woman, the court of chancer v in England early 4 laid the foundations of a system, since much elaborated, by means of which property could be settled to the separate use of the married woman, with reference to which she could deal to a large extent as though she were unmarried. Under this system she could not only sell 5 or buy, 6 but could also enter into contractual obligations which would bind, not herself personally, but her separate estate. 7 When not restrained by the terms of the settlement, the rule re- specting her powers was said in one case 8 to be this : " If a mar- ried woman, having separate property, enters into a pecuniary engagement, whether by ordering goods or otherwise, which, if she were a. feme sole, would constitute her a debtor, and in en- tering into such engagement she purports to contract, not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obli- 1 Benjamin on Sale (6th Am. ed.), 6 Duncan v. Cashin (1875;, L. R. 10 § 32. C. P. 554 -'See Benjamin on Sale, £§ 33, 34. 7 That is, such separate estate as 3 See Benjamin on Sale, g 35. she has at the time of the contract 4 See Fettiplace v. Gorges (1789), 1 and which remains at the time of Yes. Jr. 46, 1 Rev. R 79: Sturgis v. the judgment. Pike v. Fitzgibbon Corp (1806), 13 Ves. 190, 9 Rev. R. 169. (1881), 17 Ch. Div. 454 5 Fettiplace v. Gorges, supra; Tay- 8 Matthewman's Case (1866), L. R. lor v. Meads (1865), 4 De Gex, J. & S. 3 Eq. Cas. 781. 597; Cooper v. Macdonald (1877), 7 Ch. Div. 293. 133 §§ 136, 137.] LAW OF SALE. [BOOK I. gation for which the person with whom she contracts has the right to make her separate estate liable; and the question whether the obligation was contracted in the manner men- tioned must depend upon the facts and circumstances of each particular case." § 136. American statutes removing disabilities.— The doc- trines of the English courts of equity were adopted to some extent in the American states, but, beginning a little prior to 1850. there has been enacted in substantially all of the States a series of remarkable statutes, in some cases supplementing or extending the equitable jurisdiction, but usually establishing a new legal status, by which the rights of the married woman in her separate estate have been confirmed and her power to deal with it as a feme sole quite generally established. Space does not permit, nor does the occasion require, any detailed ex- amination of these statutes or the decisions under them. While there is a general similarity, there is yet so much of dissimilar- ity that the statute of each state must be examined in the light of its own history and judicial interpretation. It must suffice to say that, in most states, the real and personal estate which the married woman possessed at her marriage and that which she has since acquired, remains her separate estate, free from the control of her husband or liability for his debts, and that> in respect of this separate estate, she may contract as though she were unmarried. 1 § 137, Capacity limited even under most statutes. — Her power to make contracts is, usually, not unlimited even under these statutes, but is confined to those which relate to her separate estate. Only to the extent and in the cases that the statute has removed her disability, can she contract; other- wise her common-law incapacity still continues. 2 1 These statutes were summarized 2 Nash v. Mitchell (1877), 71 N. Y. (in 1886) in Stimsons American Stat- 199, 27 Am. R. 38; Russell v. Savings ute Law, art. 645 et seq. They will Bank (1878), 39 Mich. 671, 33 Am. R. also be found in the various works 444; Detroit Chamber of Commerce on the law of husband and wife, and v. Goodman (1896), 110 Mich. 498, 68 the rights of married women. N. W. R 295. 134 CH. III.] CAPACITY OF PARTIES. [§ 138. 138. What contracts she may make. — She may under these statutes generally become a sole trader and bivy l and sell 2 as such. She may enter into partnership with third persons, 3 and in some States with her husband, 4 and charge her separate estate as such partner. And she may even, though living with her husband, bind her separate estate in purchases which would ordinarily be deemed binding on her husband only, if it appears that the credit was extended to her and not to him. 8 i Nispel v. Laparle (1874), 74 111. 306; Krouskop v. Shontz (1881), 51 Wis. 204, 37 Am. R. 817; Brickley v. Walker (1887), 68 Wis. 563; Wallace v. Row- ley (1883), 91 Ind. 586; Blumer v. Pol- lak (1882), 18 Fla. 707 [see also Craw- ford v. Feder (1894), 34 Fla. 397, 16 S. R. 287]; Sargeant v. French (1882), 54 Vt. 384; Reed v. Newcomb (1891), 64 Vt. 49; Haight v. McVeagh (1873), 69 111. 624; Hickey v. Thomp- son (1889), 52 Ark. 234; Walter v. Jones (1892), 148 Pa. St. 589, 24 Atl. R. 119. But under the statute a married woman, in Michigan, is not liable upon a note given by herself and husband for the purchase price of property purchased jointly with her husband. It is not a contract con- cerning her separate estate, and she -would also become a surety for her husband as to half of the note, which, for the same reason, is beyond her power. Caldwell v. Jones (1897), 115 Mich. 129, 73 N. W. R. 129. See also Speier v. Opfer (1888), 73 Mich. 35, 40 N. W. R 909, 16 Am. St. R. 556. 2 Porter v. Gamba (1872), 43 Cal. 105; Trieber v. Stover (1875). 30 Ark. 727; Netterville v. Barber (1876), 52 Miss. 168. 3 Vail v. Winterstein (1892), 94 Mich. 230, 53 N. W. R. 932, 18 L. R. A. 515. Contra, in South Carolina. Vannerson v. Cheatham (1894), 41 S. C. 327, 19 S. E. R. 614. 4 That she cannot be a partner with her husband, see Artman v. Fergu- son (1888), 73 Mich. 146, 16 Am. St. R. 572, 2 L. R. A. 343; Gilkerson- Sloss Com. Co. v. Salinger (1892), 56 Ark. 294, 16 L. R. A. 526, 35 Am. St. R. 105; Seattle Board of Trade v. Hayden (1892), 4 Wash. 263, 16 L. R. A. 530, 31 Am. St. R. 919; Fuller v. McHenry (1892), 83 Wis. 573, 18 L. R. A. 512; Bowker v. Bradford (1885). 140 Mass. 521; Payne v. Thompson (1886), 44 Ohio St. 192; Scarlett v. Snodgrass (1883), 92 Ind. 262; Carey v. Burruss (1882), 20 W. Va. 571, 43 Am. R. 790. That she may be a partner with her husband, see Suau v. Caffe (1890), 122 N. Y. 308, 25 N. E. R. 488, 9 L. R A. 593; Louisville R. Co. v. Alexander (Ky., 1894), 27 S. W. R. 981: Belser v. Tuscumbia Banking Co. (1895), 105 Ala. 514, 17 S. R. 40; Dressel v. Lonsdale (1892), 46 111. App. 454; Lane v. Bishop (1893), 65 Vt. 575, 27 AtL R. 499. In Tennessee, see Theus v. Dugger (1893), 93 Tenn. 41, 23 S. W. R 135. In Maine, see Bird Co. v. Hurley (1895), 87 Me. 579, 33 AtL R. 164. 5 Thus, a married woman is liable for the price of a suit of clothes pur- chased by her for her minor son, where the charge was made to her 135 § 139.] LAW OF SALE. [BOOK I. | 139. Statutory liability for family necessaries.— Formerly in Alabama, 1 and still in Iowa, 2 Illinois, 3 Missouri 4 by her direction and she agreed to pay it: Hirschfield v. Waldron (1890), 83 Mich. 116, 47 N. W. R. 239; Meads v. Martin (1890). 84 Mich. 306, 47 N. W. R. r>83: First Commercial Bank v. Newton (1898), 117 Mich. 433, 75 N. W. R. 934; or for medical services to a minor daughter, under like circum- stances: Goodman v. Shipley (1895), 105 Mich. 439, 63 N. W. R. 412; or for wearing apparel for herself: Arnold v. Engleman (1885), 103 Ind. 512; or for board for herself and child: Rush- ing v. Clancy (1893), 92 Ga. 769, 19 S. E. R. 711. 1 "For all contracts for articles of comfort and support of the house- hold, suitable to the degree and con- dition in life of the family, and for which the husband would be re- sponsible at common law, the sepa- rate estate of the wife is liable; to be enforced by action at law, against the husband alone, or against hus- band and wife jointly." Code, 1876, § 2711. Now repealed. * In Iowa, Code 1897, § 3165, it is provided that " The expenses of the family and the education of the chil- dren are chargeable upon the prop- erty of both husband and wife, or either of them, and in relation thereto they may be sued jointly or sepa- rately." " Expenses of the family " are not limited to necessary expenses; it is enough that the expense is incurred on account of the family. Smedley v. Felt, 41 Iowa, 588; Schrader v. Hoover, 80 Iowa, 243. Hence, a piano (Smedley v. Felt, supra); an organ (Frost v. Parker, 65 Iowa, 178); a cook stove (Finn v. Rose, 12 Iowa, 565); medical services for the hus- band or other member of the family (Murdy v. Skyles. 101 Iowa, 549, 70 N. W. R. 714); a watch and other jew- elry, even though the watch was presented by the husband to his wife (Marquardt v. Flaughter, 60 Iowa. 148); even a diamond stud worn by the husband (Neasham v. McNair, 103 Iowa, 695, 64 Am. St. R. 202), are all family expenses for which the wife may be held liable under the statute; but a reaping machine (McCormick v. Muth, 49 Iowa, 536), or a plow (Russell v. Long. 52 Iowa, 250), is not such an expense. Many other illustrations are found in the Iowa reports. 3 In Illinois, the Iowa statute has been adopted verbatim. Starr & Curtis, Ann. Stat. 1896, p. 2133, § 15. In adopting this statute from Iowa, the interpretation put upon it by the Iowa court is adopted also. Myers v. Field, 146 111. 50; Glaubensklee v. Low, 29 111. App. 408. Under this interpretation it is not essential that the expenses shall have been "necessary;" the statute applies to family expenses without limitation as to amount, and with- out regard to the wealth, habits or social position of the parties. Hud- son v. King. 23 111. App. 118. The wife's consent is not necessary, and the fact that the goods were for the husband's personal use is immaterial. Hudson v. King, supra. 4 In Missouri, Rev. Stats. 1899, § 4310, the real and personal prop- erty of the wife which she had at the time of her marriage, or which has come to her since by gift, bequest or inheritance, or by purchase with her separate money, or due as wages 136 CH. III.] CAPACITY OF PARTIES. [§§ 140, Inl- and Oregon, 1 by force of certain unusual and peculiar statutes, her separate estate is made liable for family expenses even though she took no part in contracting them. c. Of the Capacity of Corporations. §140. In general.— It is, of course, entirely beyond the range of such a work as this to go, with any fullness, into the question of the capacity of corporations to buy and sell. That subject belongs to the special treatises upon the law of corpo- rations. But in attempting to present to the reader's mind a general view of the capacity of parties to enter into the con- tract of sale, a statement of the most fundamental principles which control the private corporation in this regard seems pertinent. Thus — § 141. Corporations as sellers. — Unless restrained by stat- ute or by the inherent nature or purpose of its existence, a pri- vate corporation has the same power to dispose of its property by sale that a private individual would have in like circum- stances. 2 As is said in one case : 3 " The very idea of private for her personal service, or by reason of a violation of her personal rights, remains her separate property, and is not in general liable for the debts of the husband, but such personal property " shall be subject to execu- tion . . . for any debtor liability of her husband created for necessa- ries for the wife or family." The wife must be a party to the proceeding. Bedsworth v. Bowman, 104 Mo. 44 i In Oregon, Hill's Code, § 2874, it is provided that "The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in Nation thereto they may be sued jointly or separately." The cost of a buggy bought by the husband for family use and used by the family is a family expense within the meaning of this statute. Dodd v. St. John (1892), 22 Oreg. 250, 29 Pac. R. 618, 15 L. R. A. 717. 2 White Water Valley Canal Co. v. Vallette (1858), 21 How. (TJ. S.) 424 Pierce v. Emery (1856), 32 N. H. 486 Hood v. Railroad Co. (1852), 22 Conn. 1 Richards v. Railroad Co. (1S62), 44 N. H. 136; Commonwealth v. Smith (1865), 10 Allen (Mass.), 448; Buffett v. Railroad Co. (1869), 40 N. Y. 176; Reichwald v. Commercial Hotel Co. (1883), 106 111. 439; Burton's Appeal (1868), 57 Pa. St. 213. 3 Miners' Ditch Co. v. Zellerbach (1869), 37 Cal. 543, 99 Am. Dec. 300. 137 § 142.] LAW OF SALE. [BOOK I. property, in which the public has no rights, involves the idea of a right to sell and convey when the exigencies of the corpo- ration require it." The jus disjxmendi, therefore, necessarily attaches as an incident to the ownership. The general rule with its limitations is well stated by Bigelow, J., as follows: " At common law the right of corporations, acting by a ma- jority of their stockholders, to sell their property is absolute, and is not limited as to objects, circumstances or quantity. To this general rule there are many exceptions, arising from the nature of particular corporations, the purposes for which they were created, and the duties and liabilities imposed on them by their charters. Corporations established for objects quasi- public, such as railway, canal and turnpike corporations, to which the right of eminent domain and other large privileges are granted in order to enable them to accommodate the pub- lic, may fall within the exception ; as also charitable and re- liirious bodies, in the administration of whose affairs the com- munity, or some portion of it, has an interest, to see that their corporate duties are properly discharged. Such corporations may, perhaps, be restrained from alienating their property, and compelled to appropriate it to specific uses, by mandamus or other proper process. But it is not so with corporations of a private character, established solely for trading and manufactur- ing purposes. Neither the public nor the legislature have any direct interest in their business or its management." l § 142. Corporations as purchasers. — So, also, it is well set- tled that a private corporation, in the absence of contrary pro- visions in its charter, has implied power to purchase and hold such property, whether real or personal, as may reasonably be required to enable it to carry on the business and accomplish the purposes for which it was created. 2 i Treadwell v. Salisbury Mfg. Co. 2 Page v. Heineberg (1868), 40 Vt. (1856), 7 Gray (Mass.), 393, 66 Am. Dec. 81, 94 Am. Dec. 378; Old Colony R. 490. See also Richards v. Railroad R. Co. v. Evans (1856), 6 Gray (Mass.). Co. (1862), 44 N. H. 136; Pierce v. 38, 66 Am. Dec. 394; Spear v. Craw- Emery (1856), 32 id. 486. ford (1835), 14 Wend. (N. Y.) 23, 28 138 CH. III.] CAPACITY OF PARTIES. [§ 143. This power, however, is one which is incidental to its main powers, and the corporation has, therefore, no authority to pur- chase and hold such property as does not fall within the limits above specified. 1 A corporation, therefore, organized for the sole purpose of manufacturing cannot, it is held, 2 enforce an executory con- tract to sell and deliver to it goods which are not to be used in the process of manufacturing, but are to be sold again by the corporation for profit. The question of the power of a private corporation to buy and hold stock, either its own or that issued by some other corporation, leads so far into questions of general corporation law that it is left for the special treatises upon that subject. 3 Express limitations may of course be placed, by charter or other fundamental instruments, upon the power of the corpo- ration to acquire and hold property, either real or personal; 4 but the question of the effect of such limitations is also be}*ond the present purpose and must be left to the special treatises upon corporation law. d. Of the Capacity of Partnerships. § 143. In general. — For reasons similar to those suggested in the preceding subdivision in relation to corporations, a word must be said respecting the power of partnerships to buy and sell. Partnerships may be organized for any lawful purpose to which the buying and selling of personal property may be more or less germane. In many cases that may be the chief or characteristic purpose of the partnership, distinguishing it Am. Dec. 513; Moss v. Averell (1853), cent Oil Co. (1895), 171 Pa. St. 109, 32 10 N. Y. 449; Thompson v. Waters Atl. R. 1120. (1872), 25 Mich. 222, 12 Am. R. 243. 3 See, for example, Cook on Corpo- i Pacific R. R. Co. v. Seely (1870), rations, vol. I, §§ 309 et seq. 45 Mo. 212, 100 Am. Dec. 369; Rens- 4 Compare, for example, Cornell selaer, etc. R. R. Co. v. Davis (1870), University v. Fiske (1889). 136 U. S. 43 N. Y. 137. 152. and Farrington v. Putnam (1897), 2 Bosshardt & Wilson Co. v. Cres- 90 Me. 405, 37 Atl. R. 652, 38 L. R. A. 339. 139 § 14-LJ LAW OF SALE. [BOOK I. in many important points from those whose chief purpose is not thus commercial. Thus it is said in a recent case : " The test of the character of the partnership is buying and selling. If it buys and sells, it is commercial or trading. If it does not buy or sell, it is one of employment or occupation." By this is meant, of course, buying and selling as a business and not as a mere in- cident to some other business or occupation. The distinction is an important one; for, as can readily be seen and as will be more fully observed hereafter, much greater powers may prop- erly be regarded as incident to a commercial or trading busi- ness than to one for the exercise of a profession or occupation merely. Of this distinction and its legal consequences third persons are bound to take notice. 1 § 144. The partnership as seller. — The powers of the part- nership may be exercised by all of the partners collectively, or by any one partner alone, it being the general rule that each partner is agent for the firm in all matters falling within the scope of the partnership business as it is actually conducted. All of the partners collectively, however, might do acts which a single partner would have no implied power to do, for all might thus extend or exceed the scope of the business, and there would be no one left to complain. But, speaking of the implied power of a partner as falling within the scope of the partnership business, it may be said that each partner has im- plied authority to sell, assign or dispose of, in the regular course of business, so much of the partnership property as is designed for sale, even though it be the whole property of the firm, and may pass the entire title to it. He may also sell or transfer, in the course of the business, choses in action and other intan- gible property of the firm, such as its accounts and bills re- ceivable, patent-rights, and the like. And upon the sale he may give such warranties of title or quality, or may make such 1 See Mechem's Elem. of Partner- Pease v. Cole (1885), 53 Conn. 53, 55 ship, § 162; Lee v. First Nat. Bank Am. R. 53; Smith v. Sloan (1875), 37 (1890), 45 Kan. 8, 25 Pac. R 196, 11 L. Wis. 285, 19 Am. R. 757; Woodruff v. R, A. 238; Winshipv. Bank of United Scaife (1887), 83 Ala. 152. States (1831), 5 Peters (U. S.), 529; 140 CH. III.] CAPACITY OF PARTIES. [§§ 145, 146. incidental contracts in relation thereto, as are usually made in like cases. 1 The implied power of one partner to sell the entire property of the firm is, by the weight of authority, limited to that kept for sale and does not include the power to sell that kept for the purposes of carrying on the business. 2 § 145. The partnership as buyer. — The same general prin- ciples apply where the partnership is buying. All of the part- ners mio-ht so act as to foreclose themselves from asserting that the purchase was not within the scope of the partnership busi- ness; but the power of one partner, ordinarily, must be meas- ured by that scope. The distinction between trading and non-trading firms is here material, but not conclusive as to the implied power to buy. In the case of the trading firm, whose business it is, in whole or in part, to buy goods for use or sale, the power of each partner to buy such goods must clearly be implied. It must also be implied in the case of a non-trading firm if the purchase is within the scope of the business as actually conducted. 3 The purchase may be on credit, and may be of either real or personal property within the limits stated. If the power exists, the firm is none the less bound because the partner bu} r ing subsequently misapplies the goods. II. Or Sales by Persons Having Only a Defeasible Title. § 146. Person in possession under a defeasible title may transfer good title to bona fide purchaser. — It frequently happens that a person may be in possession of goods, as owner, iSee Mechem's Elera. of Partner- Ind. 417, 24 N. E. R 351, 7 L. R A. ship, § 186; Ellis v. Allen (1886), 80 784; Wilcox v. Jackson (1884), 7 Colo. Ala. 515, 2 S. R. 676; Crites v. Wil- 521, 4 Pac. R. 966; Cayton v. Hardy kinson (1884), 65 Cal. 559, 4 Pac. R (1858), 27 Mo. 536. 567; First Nat. Bank v. Freeman 3 See Mechem's Elem. of Partner- (1882), 47 Mich. 408; Schneider v. ship, § 176; Bond v. Gibson (1808), 1 Sansom (1884), 62 Tex. 201. Camp. 185, Ames' Cas. on Partn. 537, 2 See Lowman v. Sheets (1890), 124 and note; Lynch t. Thompson (1883), 141 §§ 147, 148.] LAW OF SALE. [BOOK I. having a title thereto not absolute but subject to defeasance upon the happening of some condition subsequent, or upon the act of some other person having a paramount right. The per- son so situated has a title to the goods, which may be defeated or not, but which until it is defeated confers upon him many of the rights of an owner. Among these rights is that of trans- ferring at least such interest as he has, and, in many cases, where his vendee has acted in good faith, and paid value for the goods in ignorance of the defeasible character of the title, such vendee will acquire the title freed from its defeasible nature. The more important of these cases will be here considered. § 147. One holding subject to a secret lien. — A famil- iar illustration of this rule is found in the case of one who has a title to goods subject to some secret lien, which while good between the parties cannot prevail against a purchaser who buys the goods in good faith without notice of the lien. The common' instance of the chattel mortgage not filed or recorded as the law directs and not otherwise brought to the notice of the purchaser affords a typical illustration. As said in such a case: l " It is too well settled to admit of argument or doubt, that if the general owner of personal property, having posses- sion thereof, sell and deliver it to a person who has no notice, actual or constructive, that the property is incumbered, but who purchases it in good faith for value, such purchaser will hold the property discharged of any prior incumbrance." § 148. Fraudulent vendee. — Another, and one of the most common illustrations of this rule, is that of the vendee who has purchased goods by means of such fraudulent prac- tices that his vendor may rescind the sale. What these cases are is more fully considered in later sections, 2 but, as will there 61 Miss. 354; Stillman v. Harvey 14 Nev. 265;' Kenney v. Altvater (1879), 47 Conn. 27; Johnston v. Trask (1874), 77 Pa. St. 34. (1889), 116 N. Y. 136, 22 N. E. R. 377, J Andrews v. Jenkins (1876), 39 Wis. 15 Am. St. R. 394, 5 L. R. A. 630; 476. Porter v. Curry (1869), 50 111. 319, 99 2 See post, §886 et seq. Am. Dec. 520; Davis v. Cook (1879), 142 CB". III.] CAPACITY OF PARTIES. [§ 148. be seen, it is settled that the sale is not void but merely void- able. The defrauded vendor may disaffirm the sale, or he may ratify and confirm it; but, until he has disaffirmed it, his vendee has such a title that he may transfer a complete and indefeas- ible title to one who purchases the goods from him for value in good faith and without notice of the fraud. 1 This rule and the reasons for it were well stated by Chief Justice Shaw, as follows: "It is a well-established rule that goods obtained by fraud in the sale, as by false representations, may be reclaimed by the vendor. This does not proceed on the ground that the property in the goods does not pass by the sale, but that the dishonest purchaser shall not hold it against the deceived vendor. But it is at the option of the vendor to rescind the contract and reclaim the goods or not. If he elects to rescind and avoid the sale, he must do it within a reason- able time after coming to the knowledge of the fraud. If he does anything to affirm the sale, after a full knowledge of the facts — especially if he suffer a considerable time to elapse, or if others are induced by his affirmance to act, — he will not be en- titled to disaffirm the sale and reclaim the goods. By the con- tract, the vendee takes the property in the goods ; but he takes by title defeasible, because, as against the vendor, he cannot honestly, and of course not legally, hold them. But this right of reclaiming can be enforced only whilst the goods are in the hands, first, of the fraudulent purchaser; or secondly, of some agent, trustee or other person holding for the use and benefit of the purchaser; or thirdly, of some one who has taken them of the purchaser with knowledge of the fraud by which they they were obtained, or with notice sufficient to put him on rea- 1 Hoffman v. Noble (1843). 6 Mete. 477; Farley v. Lincoln, 51 N. H. 577; (Mass.) 68; Kingsbury v. Smith (1842), Sleeper v. Davis, 64 N. H. 59, 6 AtL 13 N. H. 109; White v. Garden (1851), R. 201: Rowley v. Bigelow, 12 Pick. 10 C. B. 919, 20 L. J. C. P. 166, 70 Eng. (Mass.) 307]; Holland v. Swain (1879), Com. L. 918; Kingsford v. Merry, 25 94 111. 154; Doane v. Lockwood (1886), L. J. Ex. 166; Pease v. Gloahec, L. R. 115 111. 490; Curme v. Rauh (1884), 100 1 Pr. Coun. 219; Porell v. Cavanaugh Ind. 247; Robinson v. Levi (1886), 81 (1898), 69 N. H 364, 41 AtL R. 860 Ala. 134. [citing Bradley v. Obear, 10 N. H. 143 § U9.] LAW OF SALE. [book sonable inquiry, including under this head a mere volunteer who has obtained the goods without paying any valuable con- sideration. It follows that a purchaser for a valuable consid- eration without notice takes a title from the vendee which is not defeasible, and will therefore hold the goods." l Who may be deemed to be such a lonaficle purchaser and what considerations will be deemed sufficient are more fully considered in the later sections already referred to. 2 § 149. Person who obtained goods by trick without a sale.— But this rule, protecting the lonaficle purchaser, does not apply where the person from whom he bought had himself ob- tained the goods by means of some trick or device and not through the form of a sale to him. Thus where A falsely represents himself to be B, 3 or the agent 4 or partner 5 of B, or even the agent of a person not named but represented to be in i In Hoffman v. Noble(1843), 6 Mete. (Mass.) 68. 3 Thus where one A. Blenkarn by- means of various devices caused him- self to appear to be W. Blenkiron & Co., and thereby obtained goods which the owners supposed they were selling to the latter firm, it was held that Blenkarn obtained no title whatever, as there was never any contract with him, and even his bona fide vendee could obtain none. Cundy v. Lindsay (1878), 3 App. Cas. 459. To like effect: Higgons v. Bur- ton (1857), 26 L. J. Exch. 342. 4 Thus where S. an impostor, went to D., and, claiming to be the agent of B., contracted with D. for the sale of goods to B., and then went to B., and, claiming to be the agent of D., contracted to sell the same goods to B.; and, having obtained possession of tlifi goods, delivered them to B. and received the price, it was held that D.'s title was not divested, and that B. was liable to D. Barker v. Dinsmore (1872), 72 Pa. St. 427, 13 Am. R. 697. Compare with McGoldrick v. Willits (1873), 52 N. Y. 612, the facts of which are stated in note to §165, post. Tosame effect: Edmunds v. Merchants' Transp. Co. (1883), 135 Mass. 283; Dean v. Yates (1872), 22 Ohio St. 388; Hamet v. Letcher (1881), 37 Ohio St. 356, 41 Am. R 519; Alex- ander v. Swackhamer (1885), 105 Ind. 81, 55 Am. R 180; Hentz v. Miller (1883), 94 N. Y. 64; Peters Box Co. v. Lesh (1888), 119 Ind. 98. See also Decan v. Shipper (1860), 35 Pa St. 239, 78 Am. Dec. 334; Soltau v. Gerdau (1890), 119 N. Y. 380, 16 Am. St. R 843, 23 N. E. R. 864. So also, where one represented to be the agent of a cor- poration which, in fact, did not exist. Wyckoff v. Vicary (1894), 75 Hun (N. Y), 409. 5 Such was the case in Hardman v. Booth (1863), 32 L. J. Exch. 105, and Moody v. Blake (1874), 117 Mass. 23, 19 Am. R. 394. 144 CH. III.] CAPACITY OF PARTIES. [§§ 150-152. good credit, 1 and by means thereof obtains goods which the owner did not intend to sell to A but to B, or the other al- leged principal of A, A obtains no title at all, and a bona fide purchaser from A can acquire none. § 150, Fraudulent grantee of debtor. — Another case falling within the same general principle is that of the bona fide purchaser from the fraudulent grantee of a debtor. It is, indeed, true, as will be seen hereafter, 2 that if a debtor sells, assigns or otherwise disposes of his goods for the purpose of defrauding his creditors, his assignee, who is a party to the fraud, obtains only a defeasible title, which may be impeached by the debtor's creditors ; but if before the creditors have acted the debtor's grantee again sells the goods to one who is igno- rant of the fraud, and in good faith pays value for them, the latter will obtain a title which cannot be assailed by the cred- itors of the debtor. 3 § 151. Fraudulent debtor, — And again, allied to the last case, it will be seen hereafter, 4 that though sales made by a debtor, for the purpose of defrauding his creditors, may in general be set aside, this is not true where his vendee was igno- rant of his fraudulent intent and bought the goods in good faith and for value. 5 § 152. Conditional vendee. — Unlike the cases here being considered, and to be distinguished from them, is the case of the purchaser who has contracted upon the condition that, though the possession may be delivered to him, no title shall iSuch was the case in Rodliff v. 63 N. H. 126; Stokes v. Jones (1851), Dallinger (1886), 141 Mass. 1, 4 N. E. 18 Ala. 734; Waters v. Riggin (1862), 19 R. 805, 55 Am. R. 439. Md. 536; Barnes v. Hardeman (1855), 2 See post, §§ 946 et seq. 15 Tex. 366. 3 Anderson v. Roberts (1820), 18 4 See post, § 946. Johns. (N. Y.) 515, 9 Am. Dec. 235; '° See post, §952; Zoeller v. Riley Neal v. Williams (1841), 18 Me. 391; (1885), 100 N. Y. 103, 2 N. E. R. 388; Green v. Tanner (1844), 8 Mete. (Mass.) Neal v. Williams (1841), 18 Me. 391; 411; Sleeper v. Chapman (1876), 121 Sleeper v. Chapman (1876), 121 Mass. Mass. 404: Gordon v. Ritenour (1885), 404; Comey v. Pickering (1884), 63 87 Mo. 51; Comey v. Pickering (1884), N. H. 126. 10 145 §§ 153, 154.] LAW OF SALE. [BOOK I. pass to him until the price is paid. Here, until the payment of the price, the vendee has by the express terms of the agree- ment no present title at all, not even a defeasible one; and, as will be seen, it is settled, by the great weight of authority, that until he acquires title by payment he can transfer none even to a bona fide purchaser for value. 1 § 153. Purchaser for cash who has obtained the goods without paying the price. — In like situation is the purchaser for cash who has obtained possession of the goods without pay- ing the price. As will be seen hereafter, 2 payment and trans- fer are, in such cases, designed to be concurrent acts; and if the vendee, by trick or otherwise, without paying gets posses- sion of the goods, the seller, who has done nothing to waive his right, may recover them from the vendee. While the vendee is so holding them his interest is only a conditional one, and he can convey no greater, even to a bona fide pur- chaser. 3 The same rule applies also where, instead of payment in cash, a note or other security for the price is to be given. If the giving of the note or other security be not waived, but the vendee obtains possession of the goods, he acquires no present title and can convey none, even to a bona fide purchaser. 4 III. Of Sales by Persons Having Only an Ostensible Title. § 154. In general, one can convey no better title to a chat- tel than he has. — It is a fundamental doctrine of the common law, from which all discussion of the question must proceed, that, in general, no one can transfer a better title to a chattel i See post, § 599. neapolis Elevator Co. (1890), 44 Minn. iSeejwst. §542. 153, 46 N. W. R. 306; Owen v. Long s National Bank of Commerce v. (1897), 97 Wis. 78, 72 N. W. R. 364. C, B. & Q. R. Co. (1890), 44 Minn. 4 Wheeler & Wilson Co. v. Irish- 224, 46 N. W. R. 342, 560; Freeman v. American Bank (1898), 105 Ga. 57, 31 Kraemer (1895). 63 Minn. 242, 65 N. S. E. R. 48. W. R. 455; Globe Milling Co. v. Min- 146 CH. III.] CAPACITY OF PARTIES. [§ 155. than he himself possesses. Nemo dat quod non hahet is usually the inflexible maxim. That some or all of the parties acted in good faith or parted with value is usually entirely immaterial; however innocent the motives or however valuable the consid- eration, if the party who assumed to convey had no right or title to transfer, no title can pass to the other. 1 In the case of negotiable instruments, for obvious reasons, different principles apply, and it is possible in many cases for one to invest his transferee with a better title than he himself possessed ; but these principles have no application to the trans- fer of the ordinary chattel. In the latter case the strict rules of the common law have, in general, unabated sway. § 155. True owner not to be divested without Lis consent. — This general principle of the common law has no- where been better stated than by Senator Verplanck in the leading- case of Saltus v. Everett:- "The universal and funda- mental principle of our law of personal property is, that no man can be divested of his property without his own consent; and, consequently, that even the honest purchaser under a de- fective title cannot hold against the true proprietor. That ' no one can transfer to another a better title than he himself has ' is a maxim, says Chancellor Kent, ' alike of the common and the civil law, and a sale ex vi termini imports nothing more than that the bona fide purchaser succeed to the rights of the vendor.' The only exception to this rule in the ancient Eng- lish jurisprudence was that of sales in markets overt, a custom i Saltus v. Everett (1838), 20 Wend. 843; Moody v. Blake (1874), 117 Mass. st, §§ 493-498; Greene v. 390. Lewis, 85 Ala. 221, 4 S. R. 740, 7 Am. 3 Acebal v. Levy, 10 Bing. 376; St. R. 42; Shealy v. Edwards, 73 Ala. Hoadly v. McLaine, 10 Bing. 482; 175, 49 Am. R. 43, 75 Ala, 411; Wilk- Shealy v. Edwards, 73 Ala. 175, 49 inson v. Williamson, 76 Ala. 163. Am. R. 43; Greene v. Lewis, 85 Ala. 2 Shealy v. Edwards, 73 Ala. 175, 49 221, 7 Am. St. R. 42, 4 S. R. 740; Lore- Am. R 43, citing Benj. Sales, § 87; joy v. Michels, 88 Mich. 15, 49 N. W. 192 CH. V.] OF THE PKICE. [§ 208. For like reasons, where the parties have fixed the price, but their agreement in that respect is invalid because the price was fixed on Sunday, the law, if the sale is otherwise complete and valid, will imply a promise to pay what the goods are reason- ably worth. 1 So, also, " under an allegation of an agreed price, if there is a failure to prove the agreement as to price, evidence of value is competent for the purpose of a recovery of what the article was fairly worth, but not to sustain a recovery beyond the amount alleged." 2 Where, however, the price is fixed by the contract, that price must govern, and the mere fact that there is conflict in the evidence as to what the price was, will not justify the jury in declining to ascertain that price and award- ing the reasonable value in its place. 3 § 208. Market price — Market controlled by monopolistic " combination." — This reasonable worth or price is usually R. 901, 13 L. R. A. 7T0; James v. Muir, 33 Mich. 223; Comstock v. Sanger, 51 Mich. 497, 16 N. W. R. 872: Livingston v. Wagner, 23 Nev. 53, 42 Pac. R. 290; Snodgrass v. Broadwell, 2 Litt. (Ky.) 353; Jenkins v. Ricttard- son, 6 J. J. Marsh. (Ky.) 442; Tucker v. Cady, 25 I1L App. 578. The mar- ket price at the time of the sale is to govern, unaffected by subsequent changes. Hill v. Hill, 1 N. J. L. 261. And where goods are ordered to be shipped the market value at the time and place of shipment controls. Fen- ton v. Braden, 2 Cranch, C. C. 550, 8 Fed. Cas., p. 1140. Where parties have had a contract for a specific quantity of goods at a certain price, and more are ordered, there is no implied understanding that these shall be at the same price, especially where it is known that the market price has advanced. Rice v. Western Fuse Co., 64 111. App. 603. Where A says to B: "When you are ready to sell your corn, deliver it at my warehouse and I will make it satisfactory as to the price," and B delivers it, the law will imply a promise to pay the market price. McEwen v. Morey, 60 I1L 32. The owner of a chattel requested A to sell it but named no price. A con- tracted to sell it to B at a certain prica Before B accepted it, he met the owner, who notified B to pay no one but himself, to which B assented but no price was named. Held, an assent to the sale, and, as no price was named, the reasonable value could be recovered. Taft v. Travis, 136 Mass. 95. i Bradley v. Rea, 14 Allen (Mass.), 20; s. C, 103 Mass. 188, 4 Am. R 524. 2 Livingston v. Wagner. 23 Nev. 53, 42 Pac. R. 290, quoting Abbott's Trial Evidence, 306, and citing Sussdorf v. Schmidt, 55 N. Y. 319; Trimble v. Stillwell, 4 E. D. Smith, 512. 3 Illinois Linen Co. v. Hough, 91 111. 63. 13 193 208.] LAW OF SALE. [book the market or current price, but it is not necessarily so. 1 As is said in a leading case: 2 "The current price of the day may be highly unreasonable from accidental circumstances, as on ac- count of the commodity having been purposely kept back by the vendor himself, or with reference to the price at other ports in the immediate vicinity, or from various other causes." Where, therefore, the present market price is one fixed arbi- trarily by a combination of all the manufacturers or dealers in a given article, that price cannot control where one has pur- chased such goods not knowing of this price and not agreeing to pay it. 3 iKountz v. Kirkpatrick. 72 Pa. St. 378. 13 Am. R. 687; Smith v. Griffith, 3 Hill (N. Y.), 337, 38 Am. Dec. 639; Blydenburgh v. Welsh, Bald. (U.S. D.) 331. 2 Acebal v. Levy, supra. 3Lovejoy v. Michels, 88 Mich. 15, 13 L. R. A. 770, 49 N. W. R. 901. Champlin, C. J., said: "I do not think a price so fixed by a combina- tion of manufacturers or dealers is competent evidence to show a reason- able price of goods sold by the mem- bers of such combination. Such combinations to control prices are intended to stifle competition, which is a stimulus of commercial transac- tions, and to substitute therefor the stimulus of unconscionable 'gain, whereby the participants in such combinations become enriched at the expense of the consumer, beyond what he ought legitimately to pay, under a healthy spirit of competition in the business community. The ef- fect of such combinations to control prices is the same as that other class of contracts which has always been denounced as vicious, namely, con- tracts in restraint of trade. Public policy places its reprobation upon one equally with the other. These com- binations to control prices are be- coming very numerous, and affect not only the staples of human sus- tenance, but nearly all the neces- saries of life and the necessaries of business. Such combinations to con- trol prices are against public policy, and void, on the ground that they have a mischievous tendency, so as to be injurious to the best interests of the State. The best interests of the State require that all legitimate business should be open to competi- tion; that the current price of com- modities should be controlled by the law of demand and supply; that the laws of commerce should flow in their accustomed channels, and should not be diverted by combinations to con- trol prices fixed by the arbitrary de- cision of interested parties. Of course, what is said above does not apply to monopolies authorized by law; as, for instance, to patented articles. The odious features of illegal monop- olies are plainly apparent. These can absolutely control the prices which the public shall pay, and it is this monopolistic feature of such com- binations to control prices which stamps them as odious, because they exercise the franchises of the mo- nopoly without the legal right. These views are supported in the following 194 ■CH. V.] OF THE PRICE. [§ 209. § 209. Other methods of fixing price. — There may also be many other methods adopted for fixing the price. The mate- rial point is not a particular method, but whether the method chosen will result in fixing the price with requisite certainty, cases: Anderson v. Jett, 89 Ky. '675, reasonably worth. As pointed out 6 L. R. A. 390. 12 S. W. R. 670; Rail- road Co. v. Closser, 126 Ind. 348, 9 L. R. A. 754, 26 N. E. R. 159; People v. Refining Co., 54 Hun (N. Y.), 354, 5 L. R. A. 386; Richardson v. Buhl, 77 Mich. 632, 6 L. R. A. 457, 43 N. W. R, 1102; Carbon Co. v. McMillin, 119 N. Y. 46, 7 L. R. A. 46, 23 N. E. R. 530; Stanton v. Allen, 5 Denio, 434, 49 Am. Dec. 282; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 8 Am. R. 159; Arnot v. Coal Co., 68 N. Y. 558, 23 Am. R. 190; Salt Co. v. Guthrie, 35 Ohio St. 666; Association v. Koch, 14 La. Ann. 168; Denver, etc. R. Co. v. Atchison, etc. R. Co., 15 Fed. R. 650; Hilton v. Eckersley, 6 El. & Bl. 47; West Va. Trans. Co. v. Ohio River Pipe-Line Co., 22 W. Va. 600, 617; W. U. Teh Co. v. American Union Tel. Co., 65 Ga. 160, 38 Am. R. 781; Craft v McConoughy. 79 111. 346, 22 Am. R. 171; Raymond v. Leavitt, 46 Mich. 447, 41 Am. R. 170, 9 N. W. H. 525: Faulds v. Yates, 57 111. 416, 11 Am. R. 24; Wright v. Ryder, 36 Cal. 342, 95 Am. Dec. 186. " I have no doubt that in executory contracts of sale, where the goods have not been accepted, such price so fixed cannot be recovered; and I am also of opinion that such price so fixed is no criterion of the market value or current price in an action brought for goods sold and delivered, where no price has been agreed upon. In this case the goods have been ordered and accepted without any reference to the price to be paid, and the law presumes that defendant in- tended to pay what the knives were in James v. Muir, 33 Mich. 223, the market value and reasonable worth of a commodity are not always the same. Ordinarily the market value is evidence of what goods are reason- ably worth. Kountz v. Kirkpatrick, 72 Pa. St. 376, 386, 13 Am. R. 687; Benj. Sales, p. 103, § 86. If there be no market value of manufactured goods, the evidence to establish the reasonable worth must necessarily be the cost of production, which would include the cost of labor and material, and a reasonable profit on the cost of production." And McGrath, J., said : " A price so fixed is not entitled to rank as the market price. It is not a market price, within the contemplation of the law. The market price of an article manufactured by a number of different persons is a price fixed by buyer and seller in an open mar- ket, in the usvial and ordinary course of lawful trade and competition. It cannot be divested of these incidents, and retain its character. Associations of this character give the buyer no voice, and close the market against competition. In Acebal v. Levy, 10 Bing. 376, cited in Benjamin on Sales, § 86, the court declared that, when there was no express contract as to price, the price is to be a reasonable price, — 'such a price as the jury upon the trial of the cause shall, under all the circumstances, decide to be rea- sonable. This price may or may not agree with the current price of the commodity at the port of shipment at the precise time when such ship- 195 § 209.] LAW OF SALE. [BOOK I. As is said in one case, "the price to be paid must be certain, or some guide must be agreed on by which it can be found with certainty. There may be a sale for a reasonable price, in which case, if the parties afterwards differ, the price must be made certain by the verdict of a jury. Or there may be a sale at a price to be afterwards fixed by valuers. In such case if the valuers refuse to fix the price, the sale is considered incom- plete, or else as rescinded by the refusal. If, indeed, the thing sold has been delivered to the vendee, and consumed, so that merit 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 himself, or with refei'ence to the price at other ports in the imme- diate vicinity, or from various other causes.' In James v. Muir, 33 Mich. 223-227, Mr. Justice Campbell, speak- ing for the court, says: "According to Acebal v. Levy, there is at least no implication of a promise to pay at what may happen to be the market rate, which may not be always, as there held, a reasonable rate." In Kountz v. Kirk patrick, 72 Pa. St. 376, 13 Am. R. 687, the court say: "Ordi- narily, when an article of sale is in the market, and has a market value, there is no difference between its market value andlhe market price, and the law adopts the latter as the proper evidence of the value. This is not, however, because ' value ' and ' price ' are really convertible terms, but only because they are ordinarily so in a fair market. The market price of an article is only a means of arriving at compensation; it is not itself the value of the article, but is the evidence of value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption. Without adding more, I think it is conclusively shown that what is called the ' market price ' or the quotations of the articles for a given day is not always the only evi- dence of actual value, but that the true value may be drawn from other sources, when it is shown that the price for the particular day has been unnaturally inflated." "It has frequently been held that the value of a commodity is not to be determined by the necessities of a particular buyer or the demands of a particular seller. If the 'current price ' is not conclusive upon the pur- chaser, because the vendor may have by some act of his own made that price unreasonable, or if it may be shown that the market price had been unnaturally inflated, how can it be said that a price fixed by a com- bination of the manufacturers of a given article, with sole reference to their interests, is to govern, to the exclusion of all other considerations? In such case there is no market price, and evidence of a fair market pi'ice or a fair market value is clearly ad- missible. In the absence of an agree- ment, a price fixed by a combination of dealers does not bind the pur- chaser, nor will the law so far coun- tenance such combinations as to regard prices fixed by them as even evidence of value." 196 CH. V.] OF THE PRICE. [§ 210. the parties cannot be put in statu quo, the vendee is liable for a reasonable price. 1 But there cannot be an executed sale so as to pass the property, where the price is to be fixed by agree- ment between the parties afterwards, and the parties do not afterwards agree. One element of a sale is wanting, just as a different element would be if the thing were not ascertained. If, in such case, the thing was actually delivered and consumed, the vendee would be liable, not upon the special imperfect con- tract, but on an implied contract to pay a reasonable price." 2 § 210. Method must fix price with certainty. — It is not, therefore, necessary that the price should be fixed by the con- tract itself, or at the very time the contract is made, provided that the parties have settled upon some method hy which the price may be determined with certainty. "If the parties set- tle between themselves some method by which it may be as- certained at a future period, the maxim id certum est quod cer- tain reddi potest applies, and the price when sb settled shall relate to the original contract." 3 Thus where the contract for the sale of a village lot provided that the price should be that at which the first lots in the vicinity should be sold, and lots adjoining the one in question were sold before the action was brought, it was held that the contract was thus rendered cer- tain. 4 So where the contract provided that the price of wheat sold should be ten cents per bushel less than the Milwaukee market price on a day which the vendor should thereafter name, it was held sufficient though the wheat was destroyed before the day was fixed. 5 And a contract for the sale of wheat which provided for payment at the market price on the day when the vendor should demand payment was held suffi- 1 Citing Benjamin on Sales, 69; value of gold. Ames v. Quimby, 96 Clarke v. Westrope, 18 C. B. 765. U. S. 324 2 Wittkowsky v. Wasson, 71 N. C. 4 Cunningham v. Brown, siqjra. 451. 5 McConnell v. Hughes, supra. So s McBride v. Silverthorne, 11 Up. in Shaw v. Smith, 45 Kan. 334. 25 Pac. Can. Q. B. 545 (citing Ross on Vendors, R. 886, 11 L. R. A. 681, Mechem's Cas. 51); McConnell v.Hughes, 29 Wis. 537; on Damages, 260, the price of flax- Cunningham v. Brown, 44 Wis. 72. seed was to be " thirty-five cents less The price may be made to corre- than St. Louis market price on day .spond with the fluctuations in the of delivery." 197 § 211.] LAW OF SALE. [BOOK I. cient. 1 So a contract for the sale of goods at the price for which the manufacturers should sell similar articles at a given time in the following year, affords a specific means by which the price may be ascertained. 2 And so of a contract to sell at the same rate which the seller gives to the buyer's neighbors. 3 § 211. Dependent on subsequent acts or events.— The amount may also be made to depend upon subsequent events or conditions, being fixed at one price if a certain event hap- pens, and at a different price if that event does not happen. 4 But an executory contract to sell ore at a price to be deter- mined by that which the vendee might subsequently receive upon a resale of it has been held insufficient to pass the title. 5 So an agreement to pay " as much as any one else would pay " has been held too uncertain to sustain an action for specific performance. 6 And an agreement for the sale of ice at a price which would" yield the seller a net profit not to exceed one dollar per ton has been held void for uncertainty. 7 iMcBride v. Silverthorne, supra; Phifer v. Erwin, 100 N. C. 59, 6 S. E. R. 672. To same effect: Daniel v. Han- nah (1898), 106 Ga. 91, 31 S. E. R 734. A contract to pay the seller of logs "the most that he could get offered in money for them delivered at Jack- son, when measured," is sufficient. Hagins v. Combs (1897), 102 Ky. 165, 43 S. W. R 222. And so is a contract to sell at the " lowest jobbing prices." Beardsley v. Smith, 61 111. App.. 340. 2 Lund v. McCutchen, 83 Iowa, 755, 49 X. W. R 998. 3 Ashcroft v.Butterworth,136 Mass. 511. 4 As in Newell v. Smith, 53 Conn. 72, where the price of a cow was fixed at $100 if she proved then to be with calf, but only §40 otherwise. See also Brogden v. Marriott, 2 Bing. N. C. 473, 29 Eng. Com. 397. A provision in a contract for the sale of goods to be delivered at dif- ferent times, that " if, during the de- liveries on this contract, the price should be below the price herein named, we agree to rebate such dif- ference on deliveries so affected," the words " the price " mean the market price. Wing v. Wadhams Oil Co. (1898), 99 Wis. 248, 74 N. W. R 819. 5 Foster v. Lumbermen's Mining Co., 68 Mich. 188. 6 Gelston v. Sigmund, 27 Md. 334. But see Hagins v. Combs, supra. 7 Buck master v. Consumers' Ice Co. (1874), 5 Daly (N. Y.), 313. In Daniel v. Hannah (1898), 106 Ga. 91, 31 S. E. R 734, a sale of cotton was made, stipulating that the price should be "the highest market price in Thomaston for the cotton on No- vember 10, 1896." Held, that "the fact that the pi-ice of the cotton was to be ascertained subsequently, by the condition of the market at a par- ticular place does not affect the va- lidity or completeness of the sale." In Deyo v. Hammond (1894), 102. 198 Cfl, v.] OF THE PKICE. [§ 212. g 212. Price to be fixed by valuers. — It is also compe- tent for the parties to provide that the price shall be such as may thereafter be fixed by valuers, 1 and in case it is so fixed they are as much bound by it as if they had fixed it themselves. 2 The values may properly, and perhaps under the statute of frauds, in some cases, should, be named in the agreement ; but if the valuers are appointed and act, this ordinarily is sufficient. 3 Mich. 122, 60 N. W. R. 455. plaintiff price so fixed, even though the party sold a mare to the defendant under an agreement that if, in a test to be made within ninety days, the mare could trot as fast as one owned by the defendant, an additional price was to be paid. The test was not made, owing to the sickness of one mare and the lameness of the other, both having been in the defendant's pos- session during the ninety days. Held, that the defendant was nevertheless liable to pay the extra price, it being shown from other sources that plaint- iff's mare was several seconds faster than defendant's mare. In Lilienthal v. Suffolk Brewing Co. (1891), 154 Mass. 185,28 N. K R. 151, a sale of hops was made for a certain price, with the condition that if the purchaser subsequently found it was not the market price the sale should be void. Held, that there was a pres- ent sale upon condition subsequent. 1 That such an appraisement is not an arbitration, and that the parties are not entitled to notice of hearing, and that the appraisal, unless fraudu- lent, is conclusive, see Norton v. Gale, 95 111. 533, 35 Am. R. 173, citing many cases. See also Stose v. Heissler, 120 111. 433, 11 N. E R. 161, 60 Am. R. 563. In New England Trust Co. v. Abbott, 162 Mass. 148, 38 N. E R. 432, the court say: " It is settled that one may agree to sell his property at a price to be determined by another, and that he will be bound by the establishing it was interested, pro- vided the interest was known, and no objection was made by the parties, and no fraud or bad faith is shown Brown v. Bellows. 4 Pick. 179, 189 Palmer v. Clark, 106 Mass. 373, 389 Haley v. Bellamy, 137 Mass. 357 359; Fox v. Hazel ton, 10 Pick. 275 Strong v. Strong, 9 Cush. 560, 569 Benjamin on Sales, § 88, note 3." 2 Wilcox v. Young, 66 Mich. 687. 3 In Brown v. Bellows, 4 Pick. (Mass.) 179, it is said: "The first ob- jection is that the writing declared upon is void by the statute of frauds, inasmuch as it purports to be a con- tract concerning the sale of real es- tate, and is to be partly made out by parol evidence, for that the referees are not named in the instrument, but it depends wholly upon parol evi- dence to prove who were chosen to be the referees. What weight might originally have attached to this sug- gestion it is not necessary to decide, because the contract has been per- formed in this respect. The parties were satisfied with the appraisers, and attended upon them during their appraisal. It is too late for either now to object that it cannot be legally known who were chosen for that pur- pose. The parties could not have con- ducted themselves as they did, in this respect, unless on account of the agreement, and so far in perform- ance of the same." 199 §§ 213, 214.] 213. LAW OF SALE. [BOOK I. -. But in order that the contract shall take effect it is essential that the price shall be fixed as provided in the agreement; for if the parties fail to appoint valuers, or the latter fail or refuse to act, the contract, if executory, must fail, and unless the contrary intention appears the title will not pass, 1 even though the failure in the valuation should be caused by one of the parties. 2 Where, however, the goods have been delivered, and the vendee has prevented the valuation by con- suming or disposing of the goods before the valuation has taken place, he will be liable for their reasonable worth. 3 § 214. Payment of the price. — The question of the payment of the price; when it is due; where, how and to whom it is to be paid; in what medium, and the like; and the question of payment in specific articles, are matters reserved for treatment in a later chapter upon the generaL subject of " Payment." 4 1 In Fuller v. Bean, 30 N. H. 290. the question was whether certain goods had been sold, so that the title passed, in an interview between Fuller and one Felton at Concord. When the parties separated at Concord the price had not been fixed, but they agreed that it should be fixed by one Neal, who did fix it the next day. Said the court: "The bargain was that noluerit vel non potuerit pretium definire tunc pro nihil o esse venditio- nem. Inst. 3, 23; Poth. de Vente, pt. 1, art. 2, sec. 2. That appraisal re- mained to be made. It was an act to be done before the property could pass to Fuller, unless it could be fairly inferred from the evidence relative to the agreement that it was the understanding of the parties that Neal should appraise the goods, and the property should nevertheless pass that Fuller should pay for them at at once." the rate of seventy-five per cent, of the appraisal, one half by his own note and the other half by J. G. Ful- ler's note and cash. Now a price is essential to a contract of sale. Nulla emptiosine pretio essepotest; though if the price can be made certain it is sufficient. Just. Inst. 3, 23: 4 Kent's Com. 463, 477: Poth. de Vente, p. 1, sec. 1, p. 3. When the parties then separated and Fulton returned to Boston the sale was incomplete. It was at that time contingent whether Neal would make an appraisal, with- out which there would be no sale. Sin autem ille qui nominatus est vel 2 Thurnell v. Balbirnie,2 Mees.& W. 786; Vickers v. Vickers, L. R. 4 Eq. 529; Milnes v. Gery, 14 Ves. 400. 3 Clarke v. Westrope, 18 Com. B. 765, 86 Eng. Com. L. 764; Humaston v. Telegraph Co., 20 Wall. (U. S.) 20 [citing Inchbald v. Western Planta- tion Co., 17 Com. B. (N. S.) 733; Hall v. Conder, 2 id. 53: United States v. W T ilkins, 6 Wheat. (U. S.) 135; Ken- niston v. Ham, 9 Fost. (N. H.) 506; Holliday v. Marshall, 7 Johns. (N. Y.) 211; Cowper v. Andrews, Hobart, 40, 43]; Albemarle Lumber Co. v. Wil- cox, 105 N. C. 34. 4 See post, § 1404 et seq. 200 CHAPTER YI. OF THE CONTRACT OF SALE — IN GENERAL. § 215. Purpose of this chapter. 216. Of the contract in general. I. Of Mutual Assent. 217. Necessity of mutual assent. 218. Assent need not be express. 219. Assent must be mutual, un- conditional and co-existent. 220-223. Mere negotiations not amounting to proposition and acceptance. 224, 225. Mere announcements or price lists not offers. 226. Off« r must be accepted. 227, 228. Offer must be accepted as made. 229. Counter-proposition operates as a rejection. 230, 231. What constitutes such counter-proposition. 232. If counter-proposition ac- cepted, contract results. 233. Original proposition not open to acceptance after re- jection by counter-proposi- tion. 234. Terms of sale must be fully agreed upon. 235-237. Negotiations in contem- plation of more formal con- tract. 238. Acceptance must be commu- nicated. 239. Manner of accepting. 240. What constitutes. 241-243. Acceptance by con- duct. 244, 245. Time of acceptance. § 246. Question of acceptance, how determined. 247. Communication by mail, tele- graph, etc. 248-250. Method of acceptance in these cases. 251. Time of acceptance in these cases. 252. Right to withdraw offer. 253. Voluntary offer may be withdrawn, though time given for its acceptance. 254. Voluntary offer may be revoked, though declared " irrevocable." 255. Unaccepted offer not such a contract as excludes parol evidence. 256. Agreement for consider- ation not to withdraw offer. 257. How offer revoked. 258. Mailing letter, etc., not enough. 259. Offer under seal. 260. Lapse of offer — Notice. 261. Waiver of revocation. 262. Withdrawal of acceptance. IL Unilateral Contracts. 263. 264. Unilateral contracts. III. Of the Effect of Mistake in Making the Contract. 265. Mistakes of parties in making the contract. 266. Mistake as to nature of trans- action. 267-269. Mistake as to identity of party. 201 §§ 215, 216.] LAW OF SALE. [BOOK I. § 270. Mistake regarding the thing sold. 271. Existence of thing sold. 272. Identity of thing sold. 273. Unknown articles con- tained or concealed in thing sold. 274. Mistake as to quantity. 275, 27G. Mistake as to kind, quality or character. 277. Mistake as to location. 278. Mistake as to terms of con- tract — Price. 279. Mistake as to possibility of performance. § 215. Purpose of this chapter. — Sale being a transfer of the title to goods in pursuance of a valid agreement to that effect, it is obvious that a question which demands early atten- tion is, What bargainings between parties will suffice to indi- cate their assent to a transfer of the title ? Ordinarily this must be a question depending upon the gen- eral principles of contract, and it might be safe and proper, perhaps, to leave the consideration of this aspect of contracts to the writers upon that general subject. A review, however, of the leading principles applicable to this particular phase of that greater subject may not be thought to be inappropriate, and will be attempted here. So much of the subject as is unaffected by the statute of frauds will be dealt with in this chapter, and the application of that statute will be the subject-matter of the following chapter. § 216. Of the contract in general. — Except as it is affected by the statute of frauds, there is nothing in the rules governing the formation of the contract of sale which, requires that that contract shall be made in any particular manner or in any particular form. Competent parties are required — and the ques- tion of their competency has already been considered ; and there is required the assent of the parties that the title to a specific chattel shall pass from one party and vest in the other. This matter of assent or agreement, therefore, seems to be the one which logically falls next in order for consideration ; and the formal rule may be stated, as an introduction to the general subject, thus — J ' 203 CH. VI.J CONTRACT OF SALE — IN GENEKAL. [§§ 217-219. I. Of Mutual Assent. § 217. The necessity of mutual assent. — To the making of the perfect contract of sale, as to the making of every other contract, it is indispensable that there should be the mutual assent of the parties to the subject-matter of the contract. And in this, as in other cases, it is essential that the minds of the parties shall meet, — that they shall both assent to the same thing and in the same sense. Hence until there is a clearly-defined offer on the one side to sell, and a definite acceptance of that offer on the other, there can be no sale, and the title will not pass even though the property be delivered. 1 But, to quote the language of Mr. Benjamin: 2 — §218. The assent need not be express. — "The assent of the parties to a sale need not be express. It may be implied from their language 3 or from their conduct; 4 may be signified by a nod or a gesture, 5 or may be inferred from silence in cer- tain cases; as if a customer takes up wares off a tradesman's counter and carries them away, and nothing is said on either side, the law presumes an agreement of sale for the reasonable worth of the goods." 6 § 219. Assent must be mutual, unconditional and co-exist- ent. — "But," continues Mr. Benjamin, "the assent must, in order to constitute a valid contract, be mutual and intended to 1 Utley v. Donaldson, 94 U. S. 29, 47 ; a draft of a proposed agreement, Gardner v. Lane, 12 Allen (Mass.), 89; which was intended to form the Summers v. Mills, 21 Tex. 77. basis of a formal contract, to be after- 2 Benjamin on Sale, £ 38. wards executed by them both." 3 Citing Joyce v. Swann, 17 C. B. 5 The fall of the hammer at an auc- (N. S.) 84, " a curious case of what tion sale, the nod of the bidder, and one of the judges termed a ' grum- the like, are familiar instances of bling ' assent." this. 4 Citing Brogden v. Metropolitan 6 Citing Black. Com., Bk. II, ch. 30, Ry. Co., 2 App. Cas. 666, " where the p. 443; Hoadley v. McLaine, 10 Bing. parties had acted upon the terms of 482, per Tindal, C. J. 203 § 220.] LAW OF SALE. [BOOK I. bind loth sides. It must also co-exist at the same moment of time. A mere proposal by one man obviously constitutes no bargain of itself. It must be accepted by another, and this acceptance must be unconditional. If a condition be affixed by the party to whom the offer is made, or any modification or change in the offer be requested, this constitutes in law a re- jection of the offer, and a new proposal, equally ineffectual to complete the contract until assented to by the first proposer. Thus, if the offer by the intended vendor be answered by a proposal to give a less sum, this amounts to a rejection of the offer, which is at an end, and the party to whom it was made cannot afterwards bind the intended vendor by a simple ac- ceptance of the first offer." § 220. Mere negotiations not amounting to proposition and acceptance. — Mere negotiations which do not ripen into an offer, on one side, and an acceptance of that offer as made, on the other side, do not amount to a contract of sale. This is very clearly put, in a leading case, 1 by Sergeant, J., as fol- lows: "It is incumbent on a party suing to recover damages for breach of contract to make out a clear case of some mat- ter or thing mutually assented to and agreed upon by the par- ties to the alleged contract. When the agreement is in writ- ing, signed and executed by the parties, their assent to all that is contained in it is no longer a matter of dispute; the ques- tions which arise in such a case are of a different character. But when it is epistolary, consisting of a series of letters con- taining inquiries, propositions and answers, it is necessary that some point should be attained at which the distinct proposi- tion of the one party is unqualifiedly acceded to by the other, so that nothing further is wanting on either side to manifest that aggregatio mentium which constitutes an agreement, and that junction of wills in the same identical matter, offered on one side and concurred in by the other, bringing everything to a conclusion, which in contemplation of law amounts to a con- tract. If a proposition be made by one man to another to 1 Slaymaker v. Irwin, 4 Whart. (Pa.) 369. 20 i OH. VI.] CONTRACT OF SALE IN GENERAL. [§ 2lU. purchase an article from him at a certain price and on certain terms, which is accepted as offered, there is then an agreement or contract. But if, instead of accepting it, the party declines so doing, and then new terms of purchase are offered, the as- sent is vet to be given by the other to the terms thus varied. It is not a contract — it is the suggestion or proposal of a new subject of contract, on which the first party has again a right to pause, to consider, to accept, to reject, to suggest new terms; and all is in the meantime merely negotiation. 1 ' § 221. . In a case 1 often cited it appeared that A wrote to B as follows: "Say how many white, colored and woolen rags you have on hand, and your prices for them.''' B replied : "I have about a ton each, white and colored rags, and my prices are three and one-half cents for colored and seven cents for white." A replied: - I will take the rags at the price you name." B made no written reply, but there was evidence tending to show a subsequent oral agreement by him to de- liver the rags, which he afterwards refused to do. Said ftfet- calf, .J.: "The evidence introduced l.y the plaintiffs at the trial failed to prove that the defendants made the contract with them for the breach of which their action was brought. That evidence consisted of three letters. The first was from the plaintiffs to the defendants, merely inquiring what were the quantity and price of rags which they had on hand. The sec- ond was the defendants' reply to the first, merely stating the quantity of rags which they had, and the price thereof. Thus far there was no offer of one party to buy, nor of the other party to sell. The third letter was from the plaintiffs, saying to the defendants that they would take the rags at the price which the defendants had named. This was the first offer in the case, and this offer the defendants never accepted in writ- ing. And an oral acceptance, if they had made it, would not have bound them; the case being within the statute of frauds, no part of the rags having been accepted and received by the plaintiffs, and nothing having been given by them in earnest 1 Smith v. Gowdy, 8 Allen (Mass.), 5G6. 203 §§ 222-224.] law of sale. [book i. to bind the bargain, or in part payment. It is clear, therefore, that no contract was completed, there having been no assent to a sale by the union of both parties' minds." § 222. . So, in a recent case, 1 it appeared that the plaint- iff, Ahearn, asked one member of defendants' firm how much they were paying for stave-bolts, and was told that defendants would take all he could make and deliver at $2 per cord. Plaintiff made a lot of bolts, which he proposed to furnish to defendants, but they denied any bargain. Ahearn sued them for not accepting the bolts. Said the court: "There was no contract made out. Ahearn did not inform defendants that he would accept or act on their order, or deliver any bolts, or, if any, how many. The transaction went no further than what occurs when any one asks another what he will either give or take for commodities. Such inquiries may lead to bargains, but do not make them." § 223. . So, again, 2 plaintiff inquired of defendant the price of certain steers belonging to the latter. Defendant wrote in reply : " I could not give you a close price on the steers, on account of not seeing them for a while, but they ought to be worth $4.25. ... Go see them." Plaintiff went to see them, and wrote that he would take them at the price named, but defendant sold them elsewhere. In an action by plaintiff for breach of an alleged contract of sale, it was held that defendant's letter did not constitute an offer, and that there was therefore no contract between the parties. § 224. Mere announcement to traders or price-list is not an otter to sell such goods as may be ordered. — So a mere advertisement or announcement of goods for sale, or a price- list or circular calling the attention of prospective purchasers to goods or prices, or a mere offer to sell goods generally, does not constitute an offer to sell such goods as may be ordered at i Ahearn v. Ayres, 38 Mich. 692. 2 Patton v. Arney (1895), 95 Iowa, 6G4, 64 N. W. R. 635. 206 CH. VI.] CONTRACT OF SALE IN GENERAL. [§ 224. the prices named. 1 Thus, in a leading case, 2 it appeared that the defendants wrote to the plaintiff saying: "We are author- ized to offer Michigan fine salt in full car-load lots of eighty to ninety-five bbls., delivered in your city at eighty-five cents i Moulton v. Kershaw, 59 Wis. 816, 18 N. W. R. 172, 48 Am. R. 516; Beaupre v. Telegraph Co., 21 Minn. 155; Kinghorne v. Telegraph Co., 18 U. C. Q. B. 60; Schenectady Stove Co. v. Holbrook, 101 N. Y. 45, 4 N. E. R. 4. 2 Moulton v. Kershaw, supra, dis- tinguishing Keller v. Ybarru, 3 Cal. 147. In Beaupre v. Telegraph Co., 21 Minn. 155, supra, it appeared that the plaintiffs, merchants in St. Paul, wrote to R., a wholesale dealer in pork at Dubuque, " Have you any more Northwestern mess pork, or prime mess? Also extra mess; tele- graph price on receipt of this." R. telegraphed in reply: "Letter re- ceived. No light mess here. Extra mess twenty-eight seventy-five ($28.75)." On July 15, the plaintiffs, having received R. ! s dispatch, deli v. ered to the defendant at St. Paul, at about 6 o'clock P. M., the following message addressed to R., with a re- quest to forward it without delay: " Dispatch received. Will take two hundred extra mess, price named." Held, that the letter and telegrams did not constitute a contract. Tiie court said: "The plaintiffs, in their complaint, treat Ryan's dispatch as an offer to sell such quantity of pork as they might order, at the price therein named, and their own mes- sage as an acceptance of such offer, and an agreement on their part to take two hundred barrels at that price. If such were the character of these dispatches, then the plaintiffs' message, if seasonably delivered, would have effected a valid execu- tory contract of sale, by which Ryan would be bound to furnish the pork contracted for, at the contract price. . . . But neither Ryan's dispatch nor the plaintiffs' message will bear the construction put upon it in the complaint. The plaintiffs had writ- ten to Ryan, inquiring if he had any more pork of certain kinds, and re- questing him to "telegraph price on receipt of this." Ryan accordingly telegraphed as follows: "Letter re- ceived. No light mess here. Extra mess twenty-eight seventy-five ($28.75> M Upon receipt of this dis- patch, the plaintiffs sent this mes- sage, which the defendant neglected to deliver in due season: "Dispatch received. Will take two hundred extra mess, price named." Ryan's dispatch did not purport to be an offer to sell any quantity of pork whatever, nor was the plaintiffs' mes- sage an acceptance of any offer. The seasonable delivery of plaintiffs' mes- sage to Ryan would not have ef- fected any contract binding him to deliver to the plaintiffs two hundred barrels, at the price named. Ryan's dispatch was rather (as seems to be admitted by the plaintiffs in their printed argument) a quotation of the market price of pork, or perhaps a statement of the price at which he held his own pork; and the plaint- iffs' message was an offer to take two hundred barrels at the price named— a mere order for goods, which Ryan might accept or reject at his pleas- 207 § 225.] LAW OF SALE. [BOOK I. per bbl." The plaintiff telegraphed: "Your letter of yester- day received and noted. You may ship me 2,000 bbls. of Michigan fine salt as offered in your letter." The court held that the letter did not constitute an offer of sale. Said the court : " We place our opinion upon the language of the letter of the appellants, and hold that it cannot be fairly construed into an offer to sell to the respondent any quantity of salt he might order, nor any reasonable amount he might see fit to order. The language is not such as a business man would use in making an offer to sell to an individual a definite amount of property. The word ' sell ' is not used. They say, ' We aro authorized to offer Michigan fine salt,' etc., and volunteer an opinion that at the terms stated it is a bargain. They do not say we offer to sell to you. They use the general language proper to be addressed generally to those who were interested in the salt trade. It is clearly in the nature of an advertise- ment or business circular to attract the attention of those in- terested in that business to the fact that good bargains in salt could be had by applying to them, and not as an offer by which they were to be bound, if accepted, for any amount the per- sons to whom it was addressed might see fit to order. We think the complaint fails to show any contract between the parties." § 225. . So in a recent case in Massachusetts 1 it is said: " A contract is an agreement which creates an obligation. If a person writes to a merchant, ' At what price will you fill my ure, and until his acceptance no con- ten car-loads as per your quotation." tract would exist between the par- This was held to constitute a corn- ties." plete contract from which the seller But this rule as to quotations was could not withdraw by telegraphing, held not to apply where one party "Impossible to book your order, wrote to the other, " Please advise Output all sold." Fairmount Glass us the lowest price you can make us Works v. Grun den-Martin Wooden- on our order for ten car-loads of ware Co. (1899), Ky. — , 51 S. W. Mason green jars," and the other re- R. 196. plied, "We quote you Mason fruit lAshcroft v. Butterworth, 136 jars" at certain prices "for immedi- Mass. 511. See also Lincoln v. Erie ate acceptance;" to which the first Preserving Co., 132 Mass. 129. replied by telegraph, "Enter order 203 CH. VI.] CONTRACT OF SALE — IN GENERAL. [§§ 220, 227. orders for goods?' and receives in writing the answer, 'I will sell you at die same rate I sell your neighbors,' is the merchant bound to fill any order or any reasonable order he may receive before the offer is revoked? The offer is not certain, or capable of beino- made certain, in regard to the quantity or particular qualiuCsize and kind of goods which the merchant agrees to sell It is not intended to bind him absolutely to sell his whole stock or any specific part of it which the customer may order. It does not contain the means of identifying the proper y he offers to sell. It expresses a general willingness to sell this customer, out of his stock, at the same price at which he sells another, and leaves the merchant the right to accept or reject any particular order." S o» 6 Offer must he accepted — Mere unaccepted offer not enough!- So clearly a mere offer on the one side, not accepted on the other, is not sufficient. Thus, B., C. & Co., the defend- ants in an action/ wrote: "We agree to sell It one million feet of Norway (pine); . . • said Norway to be suitable for making square timber, and will make a contract with him givino- him the right to go on said lands and cut and remove said Umber on payment for the same. The price of said Nor- way to be," etc. Said the court: " This instrument was not a contract. It was simply an offer to make one, with a state- ment of the terms. There was no mutuality It was the act alone of the defendants, and it was not supported by any duty or obligation of the plaintiff, or of any other person, or by any form of consideration whatever, and there was no averment of acceptance by the plaintiff. There is no appearance of a cause of action." 2 s 227 Offer must be accepted as made.— And not only must the offer be accepted, but it must be accepted as made. Thus, in a case frequently cited, 3 it appeared that the defendant . McDonald v. Bewick, 51 Mich. 79, EL 693; James v. W1^5R& 1fi v w R oin Ad. 1109; Tucker v. Woods, 12 Johns. 2CitIg Governor, etc. v. Fetch, 28 (N. Y.) 190 7 Am. Dec. 305; Quick v. Eng. L. & Eq. 470; Lees v. Whitcomb, Wheeler, 78 N. Y. 300. 5 Bin- 34; Sykes v. Dixon, 9 Ad. & 3 Hutchison v. Bowker, 5 M. & W. ° u 209 227.] LAW OF SALE. [book had written an offer to sell good barley. The plaintiff replied, accepting the offer, but adding, "expecting you will give lis fine barley and good weight." To this defendant replied. " You say you expect we shall give you ' line barley.' Upon reference to our offer, you will find no such expression. As such, we must decline shipping the same." Good barley and fine barley were shown to be distinct grades, and the latter was the heavier. It was therefore held that there had been no acceptance of the offer and hence no contract. So where defendant offered to buy a horse if warranted " sound and quiet in harness," and the plaintiff sent the horse with a warranty that it was "sound and quiet in double har- ness," it was held that there was no contract. 1 Many other cases will be found in the notes. 535. See the very similar case of Myers v. Trescott, 59 Hun (N. Y.), 395, to the same effect. i Jordan v. Norton, 4 M. & W. 155. S. wrote to J. offering to sell two hundred boxes of cheese, at a given price, and to deliver them at a place designated, '"one hundred now and one hundred about the middle of October next."' J. wrote, accepting the offer as to amount, price and place of delivery, but specifying other times of delivery. Held, that the two letters did not constitute a contract. Johnson v. Stephenson, 26 Mich. 63. A offered to sell to B two thou- sand to five thousand tons of iron rails at terms specified. B wrote back directing the entry of an order for one thousand two hundred tons " as per your favor." A declined to fill this order. Held, that B's order was only a qualified acceptance, and hence equivalent to a rejection. Min- neapolis, etc. Ry. Co. v. Columbus Rolling Mills, 119 U. S. 149. An acceptance of an offer to sell land, but fixing a different place for the delivery of the deed and the pay- ment of the money than the resi- dence of the parties or the place named in the offer, is not such an un- conditional acceptance as will bind the seller. Northwestern Iron Co. v. Meade, 21 Wis. 480, 94 Am. Dec. 557; Baker v. Holt, 56 Wis. 100, 14 N. W. R. 8. In the latter case, A in Con- necticut wrote to B in Wisconsin offering to sell land on certain terms, nothing being said about place of payment or delivery of deed. B wrote saying that he would take the land on the terms stated, the deed to be forwarded to a certain other place in Wisconsin for delivery and payment. B also telegraphed A that he had written that he would take the land at A's figures. Before either the letter or the telegram reached A, but after they had both been sent, A wrote withdrawing his offer. The acceptance by the tele- gram was held to be limited by con- ditions fixed in the letter of accept- ance, and as the letter of acceptance 210 €11 VI.] CONTRACT OF SALE IN GENEEAL. [§ 2 -' S - « 228. . The rule of these cases was well illustrated and stated by Graves, J., 1 as follows: "If in answer to a proposal to grant Black Acre, a person replies that he is ready to close the matter and will take White Acre, there is no acceptance. was not an unconditional accept- ance of the offer, it was held there was no sale. The same rule was also enforced in Weaver v. Burr, 31 W. Va. 736, 3 L R. A. 94, 8 S. E. R. 743. A wrote B asking, " What will you sell me 450 kegs of nails for, deliv- ered at Bangor, in the course of a month, cash down?" B replied, "We will sell 450 casks common assorted nails, delivered on the dock at Ban- gor, at §3.02 per keg of 100 lhs. each, cash." A replied. "Nails have ad- vanced so much I am almost afraid to buy; but you will send me as soon as possible 303 kegs (naming the kinds), and I will send you a check on Exchange Bank, Boston." Held, no contract. Jenness v. Iron Co. (1864). 53 Mr. 20. A offered to sell goods to B with a credit of six months after December 15. B offered to pay them on a credit of six months after December 31. A said he could not do that: B said he could do better. Held, do sale, though A afterwards sent the goods which were not accepted, (lowing v. Knowles, lis Mass. 232. A ordered article x sent to him by B. saying also, "if you please send me "-article y "at the same time." Held, that B might send both arti- cles x and y or x alone, but not y alone. Virtue v. Beacham, 17 N. Y. SuppL 450. A made offer for " 15 to 20 bales good, new hops at 20 cents, cash." B accepted for " 15 bales new hops, Cor delivery when picked." Held, no con- tract. ( 'alter v. Bingham. 32 Up. Can. Q. B. 61"). In Griffin v. Gratwick Lumber Co. (1893), 97 Mich. 557, 56 N. W. R. 1034, it appeared thatthe plaintiff offered to sell to the defendant a quantity of logs. Defendant's agent promised to go the next day and examine it, but did not do so. Soon after part of the logs were destroyed by fire. Later another agent of the defendant wrote to plaintiff saying defendant would take the logs at the price named, and would send a man to scale them, but calling attention to the fact that fires had been raging in the vicinity and might have damaged the logs. In an action for the price of the logs as at the date of the offer, it was held that there was no contract. The promise to go and examine the logs was not an .acceptance of the offer to sell, and the later letter of accept- ance was clearly qualified by the con- dition that if the logs had been partly destroyed (which was the fact) the defendant did not accept the offer as to them. Immaterial variation.— But the variation which shall amount to a rejection must be really a variation. Thus, where there was an offer for the sale of a large quantity of lard to be delivered in daily instalments averaging ten thousand pounds each, and the offer declared the "terms of sale cash," the court, though not de- ciding the point, questioned whether an acceptance declaring, "I shall pay »Eggleston v. Wagner, 4(3 Mich. 610, 620, 10 N. W. R. 37. 211 § 228.] LAW OF SALE. [book Neither is there an acceptance where executory proceedings on each side are involved in the proposal, and the party profess- ing to accept introduces a variance, and formulates his adoption of the offer with conditions and qualifications which essentially alter some of the constituents or materially vary the effect. In such cases no contract is brought into existence. 1 bills daily." was really materially dif- ferent. The Court, moreover, held that the two instruments — the offer and the acceptance — must be read together as constituting the agree- ment,and that when so read, the latter expression explained the former and left no inconsistency. Anglo-Amer- ican Prov. Co. v. Prentiss (1895), 157 111. 506, 42 N. E. R. 157. 1 Citing Kyle v. Kavanagh, 103 Mass. 356, 4 Am. R. 560; Suydam v. Clark, 2 Sandf. (N. Y.) 133; National Bank v. Hall, 101 U. S. 43; Jordan v. Norton, 4 M. & W. 155; Hussey v. Horne-Payne, 8 Ch. Div. 670, 25 Eng. R. 561; Tilley v. Cook County, 103 U. S. 155. In Potts v. Whitehead, 23 N. J. Eq. 514, it is said: "An acceptance, to be good, must of course be such as to conclude an agreement or contract between the parties. And to do this, it must in every respect meet and correspond with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand ; " citing Huddleston v. Briscoe, 11 Ves. (Eng.) 583; Carr v. Duval, 14 Pet. (U. S.) 77; McKibbin v. Brown, 1 McCarter (N. J.), 13; s. c, 2 id. 498; Honeyman v. Marryatt, 6 H. L. C. 112: Routledge v. Grant, 4 Bing. 653; Kennedy v. Lee, 3 Meriv. 441; Hutchison v. Bowker, 5 M. & W. 535; Eliason v. Henshaw, 4 Wheat. (U. S.) 225. In the case of Fulton Bros. v. Upper Canada Furniture Co., 9 Ontario Ap- peal Reports, 1883-1884, p. 211, it ap- peared that, the plaintiffs having agreed to supply the defendant with one hundred thousand feet of lum- ber subject to inspection, the defend- ants in a subsequent letter assumed that this was to be "American in- spection," and the plaintiffs an- swered: " We do not know anything about American inspection, but will submit to any reasonable inspec- tion." No formal waiver of the in- spection claimed by the defendants was made by them, neither was there any agreement by the plaintiff to submit to such inspection. It was held that there had not been shown "a clear accession on both sides to one and the same set of terms," and that a concluded agreement had not been made out between the parties. Spragge, O. C. J., said: "The rule as to making out a contract from correspondence has been stayed by many of the judges in England, and by the text- writers on the Law of Contracts, including Mr. Benjamin's able treatise on the Sale of Personal Property. Osier, J., in his judgment in the court below, adopts the lan- guage of Mr. Pollock (on Contracts, 3d ed. 37): 'In order to convert a- proposal into a promise the accept- ance must be absolute and unquali- fied. For unless and until there is such an acceptance on the one part, of terms proposed on the other part, there is no expression of one and the 212 en. VI.] CONTRACT OF SALE — IN GENERAL. [§ 228. "In order to convert a proposal into a promise, the constitu- ents of the acceptance tendered must comply with and conform to the conditions and exigencies of the proposal The accept- ance must be of that which is proposed and nothing else, and must be absolute and unconditional. Whatever the proposal requires to fulfill and effectuate acceptance must be- accom- plished, and the acceptance must include and carry, with it whatever undertaking, right or interest the proposal calls for and there must be an entire agreement between the proposal and acceptance in regard to the subject-matter and extent of the interest to be contracted." same common intention of the par- ticular case upon the language em- tieTbnt at the most expressions of ployed; and a deepen upo« he more or less different intentions of corresponde nee my taof httfe of each partv separately: in other assistance where the effect of an words, proposals and counter-pro- other set comes jn question/^ See posals.' There must be, to use the language of Sir J. Knight Bruce, in Thomas v. Blackman, 1 Coll. 312, 'a clear accession on both sides to one and the same set of terms.' In The Oriental Inland Steam Co. v. Briggs, 4 D., F. & J. 191. Lord Campbell spoke emphatically of its being ex- tremely desirable -to adhere strictly to the rule of the court that whoever brings forward a contract, as consti- tuted of a proposal on one side and an acceptance on the other, should show that the acceptance is prompt, immediately given, unqualified, sim- ple and unconditional.' "We find the same language in other cases. The language employed by the parties to correspondence also Mayer v. McCreery, 119 N. Y. 434, 23 N. E. R. 1045; Corcoran v. White, 117 111. 118, 7 N. E. II. 525, 57 Am. R. 858; Sawyer v. Brossart, 67 Iowa, 678, 25 N. W. R. 876, 56 Am. R. 371; Carter v. Bingham, -32 U. Can. "(Q. B.)615: Cangas v. Rumsey Mfg. Co., 37 Mo. App. 297; Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. R. 462; Wilkin Mfg. Co. v. Loud Lumber Co. (1892), 94 Mich. 158, 53 N. W. R. 1045 citing Johnson v. Ste- phenson. 26 Mich. 63; Warded v. Williams. 62 Mich. 50. 28 N. W. R. 796; Whiteford v. Hitchcock, 74 Mich. 208, 41 N. W. R. 898; Bowen v. Mc- Carthy. 85 Mich. 26, 48 N. W. R 155); Ames" v. Smith, 65 Minn. 304, 67 N. W R. 999; Wemple v. North Dak. sr. 69 N. bv the parties w cuurapu^'^ ... — , - varies as much, perhaps, as the Ian- Elev. Ca (1896,, 01 Mmn ... , ., • :n„. W T? A7S- Harris V. AniOS I guage used by testators in their wills ; so that, as was observed by the late learned chief justice of this court, in Bruce v. Tolton, 4 App. R. 144: 'Whether there had been an agree- ment, the result of mutual assent, must obviously depend in each par- W. R. 478; Harris v. Amoskeag Lum- ber Co. (1895), 97 Ga. 465, 25 S. E. R. 519- Phenix Ins. Co. v. Schultz (1897), 42 U. S. App. 483, 80 Fed. R. 337, 25 C. C. A. 453: McCormick Harv. Much. Co. v. Richardson (1893), 89 Iowa. 525, 56 N. W. R. 682. 213 §§ 220, 230.] LAW OF SALE. [book I. § 229. Counter-proposition operates as rejection of oiler. If, instead of accepting the offer as made, the person addressed responds with a counter-proposition, or an offer to accept if the original offer be modified or altered, he will thereby be deemed to have rejected the first offer. 1 After such a rejec- tion, it is not competent for the party addressed to accept the original offer unless it is again renewed. 2 This rule is very carefully stated by Mr. Justice Gray of the United States Supreme Court 3 as follows: "As no contract is complete without the mutual assent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor re- jected, the negotiation remains open, and imposes no obligation upon either party ; the one may decline to accept or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer had ever been made. A pro- posal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer re- news it, or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance of it." 4 j< 230. What constitutes such counter-proposition. — But in order to operate as a rejection the alleged counter-prop- osition must actually amount to such. A mere inquiry of the proposer whether he will alter his proposal is not, therefore, 1 Minneapolis, etc. By. Co. v. Colum- party to whom the offer is made, bus Rolling Mill, 119 U. S. 149: Hyde this, in law. constitutes a rejection v. Wrench, 3 Beav. 334; Solomon v. of the offer." AVebster. 4 Col. 353: Baker v. Holt, 56 2See post, % 233. Wis. 100. 14 X. W. R. 8: Jenness v. 3 In Minneapolis, etc. Ey. Co. v. Co- Iron Co.. 53 Me. 0:'.: Beckwith v. lumbus Eolling Mill, 119 U. S. 149. Cheever, 21 X. H. 41: Weaver v. Burr, 4 Citing Eliason v. Henshaw, 4 31 W. Va. 736, 8 S. E. R 743, 3 L. R Wheat. (U. S.) 225: Carr v. Duval, A. 94. In the last case it is said: "If 14 Pet. (U. S.) 77: Xational Bank v. to the acceptance a condition be Hall. 101 U. S. 43: Hyde v. Wrench, 3 affixed, or any modification or change Beav. (Eng.) 334; Fox v. Turner, 1 in the offer be requested by the 111. App. 153. 214 CH. VI.] CONTRACT OF SALE — IX GENERAL. 231. such a counter-proposition as will justify the proposer in treat- ing his proposal as rejected, and a subsequent acceptance of the original offer before it has been withdrawn will bind the proposer. Thus, in a leading English case, 1 defendant wrote, offering to sell iron for 40*. per ton, net cash. The offer to remain "open till Monday," the meaning of which expression was ad- mitted to be that the offer was open during all of Monday. ( >n Monday morning plaintiffs telegraphed to defendant: " Pleas wire whether you would accept forty for delivery over two months, or if Dot, longest limit you would give."' 1 defendant did not answer this message, but in an hour or two sold the iron to a third person at 40*. and then advised plaintiffs of the sale by telegram. Before the last message arrived plaintiffs had tele- graphed to defendant an acceptance of his offer, and this was held to be a sufficient acceptance. Said the court : " The form of the telegram is one of inquiry. It is not ' I offer forty for delivery over two months,' which would have likened the case to Eydi v. Wrench? where one party offered his estate for £1, and the other answered by offering £960. Lord Lang- dale, in that case, held that after the £950 had been refusal, the party offering it could not, by then agreeing to the original proposal, claim the estate, for the negotiation was at an end by the refusal of his counter-proposal. Here there is no counter- proposal. The words are, 'Please wire whether you would accept forty for delivery over two months, or if not, the lon_ limit vou will give.' There is nothing specific- by way of offer or rejection, but a mere inquiry, which should have been an- swered and not treated as a rejection of the off<:-r." B -231, . So where there has been an absolute and uncon- ditional acceptance, the mere expression of a hope by the party accepting that the other will do more than he has agreed will not defeat the acceptance: 5 nor. where a party has by one letter distinctly accepted an offer to sell goods, will the mere i Stevenson v. McLean, 5 Q. B. Div. * 3 Bear. 334. 34k 3 Phillips v. Moor, 71 M- 215 §§ 232, 233.] law or sale. [cook i. fact that by a subsequent letter he orders more affect the ac- ceptance. 1 § 232. If counter-proposal is accepted a contract ex- ists.— So though a counter-proposal, or an offer of conditional acceptance, is to be regarded as a rejection of the original pro- posal, it is, of course, competent for the party making the first proposal to accept the counter-proposition and thus effect a contract. In this respect the counter-proposition stands upon the same footing as an original proposition, and if accepted a contract will ensue. 2 This acceptance, moreover, need not ordinarily be in writing; it may be made orally or be inferred from the conduct of the other party. 3 § 233. Original proposal not open to acceptance after its rejection by counter-proposition.— A further effect of the rejection of the original proposal by the making of a counter- proposition is, as has been already seen, 4 that the original pro- posal, being rejected, is not afterwards open to acceptance unless its proposer in form or substance renews it. Speaking of this effect of the rejection it was said in one case: 5 "The original offer thereby loses its vitality, being, so to speak, passed by in the course of the negotiation, so as to be no longer pend- ing between the parties, and it becomes an open proposition again only when renewed by the party who first made it. Hence, a party who has submitted a counter-proposition can- not, without the assent of the other party, withdraw or aban- 1 Gartner v. Hand, 86 Ga. 558, 12 4 See two preceding sections. S. E. R. 878. 5 Fox v. Turner (1878), 1 111. App. 2 In Borland v. GufTey, 1 Grant's 153, citing 1 Pars, on Contr. 477; Cas. (Pa.) 394, A made a proposi- Baker v. Johnson, 37 Iowa, 186; Elia- tion to B; B declined to accept it, son v. Henshaw, 4 Wheat. 225; Carr but made a different one to A by v. Duval, 14 Peters, 77; Jenness v. messenger. A was satisfied with this Mt. Hope Iron Co., 53 Me. 20; Bel- last proposition of B's, but did not fast, etc. Ry. Co. v. Unity, 62 Me. 148; notify B of his assent. Held, that B Sheffield Canal Co. v. Radway Co., 3 was not bound. Rail. & Can. Cas. 121; Tinn v. Hoff- 3 Anglo-American Pro v. Co. v. Pren- man, 29 Law Times R. (N. S.) 273. tiss (1893), 157 I1L 506, 42 N. E. R. 157. 216 cir. vi.] CONTRACT OF SALE IN GENERAL. [§ 234. don the same .and then accept the original offer which he has once virtually rejected." §234. Terms of sale must be fully agreed upon. — There can obviously be no sale until the terras upon which it is to be made have been fully determined and mutually agreed upon. Mere negotiation is not enough: the negotiation must have ripened into a completed agreement. 1 And the agreement, to • See Utley v. Donaldson, 94 U. S. 29; Oakman v. Rogers, 120 Mass. 214; Gowing v. Knowles, 118 Mass. 232. In Whiteford v. Hitchcock, 74 Midi. 208, 41 N. W. R. 898, the par- ties had been negotiating for the sale of a boat. Whiteford wrote Hitchcock that he would sell the boat for a given price, but that the price must be paid or secured before shipment Hitchcock wrote back submitting a different offer, pay- ment to be secured on delivery of boat in Muskegon, and asked a re- ply by telegraph. Whiteford tele- graphed that he would ship the boat and would also come himself. Said the court: "It will be noticed that in his telegram the plaintiff does not accept their offer in so many words. He wires them that he will send boat that week, and he will be in Muskegon first of the next week. Suppose that he had shipped the boat to Muskegon, and had required, after he got there, the money for his boat, or security, before he delivered it, or that the security offered by them had not been satisfactory to him, could the defendants, upon this correspondence, have maintained an action against him for breach of contract if he had refused to deliver it because they would not pay or secure the pay for it before deliv- ery, or because the security offered by them did not suit him? "We think not. The minds of the parties had not met upon the terms of payment, and the contract was not completed in this respect." In Gates v. Nelles, 62 Mich. 444. 29 N. W. R. 73, complainant and de- fendant were copartners, and prior to June 22, lss."), had been negotiat- ing for the purchase by one or the other of his copartner's interest in the firm assets and business, with the understanding that a valuation should be placed upon the property. over and above the firm debts and liabilities, to serve as a basis for an offer on either side to buy or sell. During these negotiations, which were verbal, and on June 22, 1885, complainant made a written offer to defendant to buy or sell on the basis of $16,500, the purchaser to as- sume all company liabilities, and give sufficient security for their pay- ment and of the purchase price. De- fendant on the next day accepted complainant's offer in writing, on the terms mentioned therein, and afterwards claimed that the letters constituted a complete sale, and re- fused to have anything more to do with the joint business. Held, that the letters did not constitute a com- pleted sale; that complainant's offer looked towards further agreements as to security for the purchase price and indemnity for the payment of the firm debts, and was only one of 217 234.] LAW OF SALE. [book be finally settled, must comprise all the terms which the par- ties intend to introduce into it. " An agreement to enter into an agreement upon terms to be afterwards settled between the parties is a contradiction in terms. It is absurd to say that a the steps leading to a sale, and con- templated a meeting of the parties, if accepted, and a completion of the transaction. In Topliff v. McKendree, 88 Mich. 148, 50 N. W. R. 109, the defendant, a stock-broker in D., wrote plaintiffs, stock-brokers in B., offering to sell them one hundred shares of mining stock at $41, adding: " Can ship it to you, I guess, with draft attached.'' Plaintiffs answered by asking whether defendant would sell part of such shares, and for how long the offer held good. Two days later, plaintiffs telegraphed that they would take the stock, asking defend- ant to forward it, with draft at- tached, an d also wrote him to the same effect. Held, (1 j that this correspond- ence did not make a completed con- tract, as plaintiffs did not bind them- selves to accept the stock and pay for it in D., nor did defendant, by the phrase in his first letter, '• Can ship it to you, I guess, with draft at- tached," absolutely bind himself to send the stock to B. ; and hence the manner and place of delivery were left Open to future negotiations be- tween the parties. (2) Defendant's reply to plaintiffs' offer to take the one hundred shares, stating that he was unable as yet to furnish the stock, but that he had no doubt about his ability to get it, giving his reasons therefor, does not constitute a binding agreement by defendant to procure the stock. McDonald v. Bewick, 51 Mich. 79, 16 N. W. R. 240; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. R. 37; Bowen v. McCarthy, 85 Mich. 26, 48 N. W. R. 155, were cited. In Felthouse v. Bindley, 11 C. B. (N. S.) 869,a nephew wrote to his uncle that he could not take less than thirty guineas for a horse, for which the uncle had offered '301. The uncle wrote back saying: "Your price, I admit, was thirty guineas; 1 offered 307., never offered more, and you said the horse was mine; however, as there may be a mistake about him, I will split the difference, 30/. 15s., I paying all expenses from Tarn worth. You can send him at your conven- ience between now and the 25th of March. If I hear no more about h im, I consider the horse is mine at 301. 15s." This letter was dated the 2d of January; on the 21st of February the nephew sold all his stock at auc- tion, the defendant being the auc- tioneer, but gave special orders not to soil the horse in question, saying it was his uncle's. The defendant by mistake sold the horse, and the ac- tion was trover by the uncle. Held, that there had been no complete con- tract between the uncle and the nephew, because the latter had never communicated to the former any assent of the sale at 30/. 15s. ; that the uncle had no right to put upon his nephew the burden of being bound by the offer unless rejected, and that there was nothing up to the date of the auction sale to prevent the nephew from dealing with the horse as his own. The plaintiff, therefore, was nonsuited on the ground that he 218 CIL VI.] CONTRACT OF SALE — IN GENERAL. [§ 234. man enters into an agreement until the terms of that agree- merit are settled. 1 ' Where, therefore, the negotiations have not vet been crys- tallized into a complete offer and acceptance, or where a di» had no property in the horse at the date of the alleged conversion. In Appleby v. Johnson, L. R. 9 C. P. 158, the plaintiff wrote to the defend- ant proposing to enter his services as ments, such agreed valuations to be placed on the plat of said farm. The time for accepting this "/ro- of sale was limited to twenty days, prior to the expiration of whicl antproposmgjo^r^v^. „ ^'^ the offer salesman upon ceitain terms nciu 1 defendant to prepare ing, among others, a commission upon all sales to be effected by In in. for which purpose a list of merchants with whom he should deal was to be prepared The defendant replied as follows: "Yours of yesterday em- bodies the substance of our conver- sation and terms. If we can define some of the terms a little clearer, n might prevent mistakes: but I think „.,. are quite agreed on all We shall therefore, expect you on Monday;" and the postscript added: "I have made a list of customers which we can consider together." Held, not to be an absolute and unconditional ac- ceptance of the defendant's proposal. In Wardell v. Williams, 62 Mich. 50, 28 N. W. R. 796, defendant agreed in writing to sell to plaintiff his farm for $39,000, payable as follows: $12,000 in cash, and the balance on or before four years from the date of a mort- gage to be given as security for such del erred payment, plaintiff to have the privilege of paying $1,000 or more at any time during the four years on account of the unpaid prin- cipal. The agreement further stated that the farm had been subdivided into lots; that the parties were to agree to the valuation of each lot, and defendant agreed, on the mak- ing of such optional payments, to re- lease lots of equal value to such pay and requested defendant to prepare his deed. Defendant answered that the agent of an insurance company which held a mortgage on the land was then absent and would not re- turn until the following Tuesday, which would prevent his obtaining a discharge of the mortgage until that date: and it being suggested by plaintiff that the twenty days' op- tion would expire before the date named, defendant said that would make no difference— that he would carry out the contract even after sixty 'lays. Plaintiff made no tender of the cash payment, or of any deed or mortgage, executed or to be exe- euted, and before the Tuesday ar- rived, and after the expiration of the twenty days, defendant sold the land to another party. 11,1,1, in a suit brought to recover damages for the breach of the alleged contract for sale, that the offer did not constitute a completed contract, but upon its face looked to future action and negotiations between the parties to determine and agree upon the valuation to be placed upon the lots, and that this part of the offer was an essential part of the terms and conditions of sale and payment. In order to pass title to personal property under a contract of sale, 219 § 235.] LAW OF SALE. [BOOK I. pute is yet going on between the parties as to terms, or where the essential elements, such as number, price, term of credit, and the like, have not yet been settled, there can be no sale. As is said in one case, 1 "the agreement must be entire — as to the thing sold, its price, the time of delivery, and the terms of payment." § 235. Negotiations in contemplation of more formal con- tract. — Where it is evident from the words or conduct of the parties that they do not intend to be bound by their informal preliminary negotiations, but only by an express and formal contract to be afterwards entered into, they will not be bound until such formal contract has been made, unless its necessity be waived. Thus in one case 2 it appeared that the plaintiffs had advertised for tenders for goods, but saying expressly: "All contractors will have to sign a written contract after accept- ance of tender." Defendant submitted a tender and received notice of its acceptance, but later in the same day wrote to the plaintiff that he declined to supply the goods. In an action to recover damages for his refusal, it was held that there was no contract between the parties. Parke, B., said : " It was clearly the intention of the parties that there should be no binding ensrao-ement until a written contract had been executed. The tender, though accepted, was not a contract." " But on the other hand," as is said by Lord Cairns in a recent case, 3 " there is no principle of law better established than this: that even although parties may intend to have their agreement the purchase price must be fixed, and, 1 Washington Ice Co. v. Webster, if credit is to be given, the time and 62 Me. 341, 16 Am. R. 462, citing Sieve- terms of payment must be agreed wright v. Archibald, 17 Q. B. 103; upon. Hence an agreement for the Gether v. Capper, 18 C. B. 865; Hamil- sale of a quantity of ore for a price ton v. Terry, 11 C. B. 954. per ton dependent upon that to be 2 Guardians of the Poor v. Petch, 10 subsequently received by the vendee Exch. 610. on its sale by him lacks an essential 3 Brogden v. Metropolitan Ry. Co., ingredient of a contract of sale, and L. R. 2 App. Cas. 666. cannot be enforced. Foster v. Lum- To the same effect see Lewis v. bermen's Mining Co., 68 Mich. 188, Brass, 3 Q. B. D. 667; Rossiter v. Mil- 36 N. W. R. 171, citing Williamson v. ler, 3 App. Cas. 1124; Bonnewell v. Berry, 8 How. (U. S.) 544. Jenkins, 8 Ch. D. 70. 220 Oil. VI.] CONTRACT OF SALE — IX C.EXEKAL. [§ 236- expressed in the most solemn and complete form that convey- ancers and solictors are able to prepare, still there may b, a sensus between the parties tar short of the complete mode of expressing it, and that mimoi may be discovered from letters or from other documents of an imperfect and incomplete description; I mean imperfect and incomplete as regards lorm. At the same time, as Lord Cairns further remarks, • 1 hue are no cases npon which difference of opinion may be more readilj entertain,,!, or which are always more embarrassing to dispose of than eases where the court has to decide whether or not, havine regard to letters and documents which have not as- sumed the complete and formal shape of executed and solemn agl ments, a contract has really been constituted between the parties. 1 ' , 236 In a late case, 1 the principle which governs in these cases is said to be this: -If there is a simple acceptance of an offer to purchase, accompanied by a statement that the iCrossley v. Mavcock, L. R 13 Eq. to be reduced to writing; that tins 180 % — the vendorsof Land, was not done, and that there was no in a letter acknowledging the receipt meeting of minds. _ . n offer of purchase, wrote as fol- b Ridgway v. Yn barton 6 II L. ; ■ which offer we accept, and Cases, 238, the Lord Chancellor said. Z\,Z vou two copies of condi- "I again protest against its being UonsofsaW' and therewith inclosed supposed, because persons wish to , ,1 a . reement with conditions have a formal agreement drawn up :fa^ialch ; inu,c,i,/,, that the that therefore they cannot be bound acceptance was only conditional, and by a previous agreement if t is clear C-'was no final agreement of that such an agreement has ben whtah specific performance could be made; but the circumstance that the ^ot TaTa^inst the purchaser, parties do intend a subsequent agree- Methu.lv v. Ross, 10 Mo. App. ment to be made is strong evidence 10 1 it 1 ^he mere fact that a to show that they did not intend the Sen contract was to be subse- previous negotiations , ^amount .to quently prepared does not show that an agreement And in the same a W agreement between the par- case, Lord Wensleydale sad: An ties was°not made, but it tends to agreement to be finally sett ed must I", and. m this case, we think comprise all the terms which the i • , that there was no contract to parties intend to introduce into the - h he parties had agreed in all agreement. An agreement to enter en that there was to be a into an agreement upon terms to be nTore expli it agreement which was afterwards settled between the par- §§ 237, 238.] LAW OF SALE. [book I. acceptor desires that the arrangement should be put into some more formal terms, the mere reference to such a proposal will not prevent the court from enforcing the final agreement so arrived at. But if the agreement is made subject to certain conditions then specified or to be specified by the party making- it or by his solicitor, then until these conditions are accepted there is no final agreement such as the court will enforce." § 237. . Where the parties have intended to have their agreement reduced to writing, and a writing has been prepared which both agree contains the terms of their agreement, but both neglect to sign it, such writing, while it cannot take effect as a written contract, is the best evidence of what the actual agreement of the parties was. 1 § 238. Acceptance must be com nnuiicatetl.— There must, moreover, not only be acceptance of or assent to the offer, but that acceptance or assent must be communicated to the other party. A mere determination to accept, or a mental conclu- sion not evidenced by any outward act, is not enough. As stated by Mr. Benjamin, "the assent must either be communicated to the other party, or some act must have been done which the other party has expressly or impliedly offered to treat as a communication, as, e. g., in contracts by correspondence, the posting of the letter of acceptance; or the assent may be in- ferred from subsequent conduct; but an assent which is neither ties is a contradiction in terms. It intended only as a preliminary nego- is absurd to say that a man enters tiation. The question in such cases into an agreement till the terms of always is. Did they mean to contract that agreement are settled. Until by their correspondence, or were they those terms are settled, lie is per- only settling the terms of an agree- fectly at liberty to retire from the ment into which they proposed to bargain. enter a f ter all itg par ti cu i ars were In Lyman v. Robinson, 14 Allen adjusted, which was then to be form- (Mass.), 252, 2.54, it is said: "A valid ally drawn up, and by which alone contract may doubtless be made by they designed to be bound ? " correspondence, but care should al- 1 Bryant v. Smith, 87 Mich. 525, 49 ways be taken not to construe as an N. W. R. 889. agreement letters which the parties 222 CH. VI.] CONTKACT OF SALE — IN GENERAL [§ 239. communicated to the other party nor followed up by action, a mere -mental assent.' as it is termed, is insufficient." 1 | 239. Manner of acceptance.— The offer, further, must not only he accepted, but it must be accepted in accordance with the terms expressly or impliedly prescribed for its acceptance. 1 Benjamin on Sale. In Felthouse v. Bindley. 11 Com. B. (N. S.' 868. 103 Eng. Com. Law, 868, it appeared that A and B verbally come to the general proposition which Mr. Justice Brett seems to have laid down, that a simple ac- ceptance in your own niind. without treated for the purchase of ahorse any intimation to the other party, by the former of the latter. A few days afterwards B wrote to A sav- in- that he had been informed that there was a misunderstanding as to the price. A having imagined that he had bought the horse for £30, B that he had sold it for thirty guineas. A thereupon wrote to B proposing to split the difference, adding: "If I hear no more about him. I consider the horse is mine at 30/. 15&." To this no reply was sent. No money - rid, and the horse remained in session. Six weeks afterwards the defendant, an auctioneer who was employed by B to sell his farm- ing stock, and who had been directed by B to reserve the horse in qm - as it had already been sold, by mis- take put it up with the rest and sold it. After the sale B wrote to A a letter which substantially amounted to an acknowledgment that the - had been sold to him. Held, that A could not maintain an action against the auctioneer for the con- version of the horse, he having no property in it at the time the defend- ant sold it. B's subsequent letter not having ias between A and a stranger any relation back to A's proposal. In Brogden v. Metropolitan Ry. Co.. L. R. i App. Cas.. at p. 698, Lord Blackburn savs: "But when you an 1 expresse 1 by a mere private act. such as putting a letter into a drawer, completes a contract. I must say I differ from that. It appears from the Year Books that as long a the time of Edward I' Edw. IV.. T. Pasch case, 2) Chief Jus- tice Brian decided this very | The plea of the defendant in that case justified the seizing of some growing crops becau-e he said the plaintiff had offered him to go and look at them, and if he liked them, and would - for them, he might take them: that was the justification, That case is rel to in a book which I publis a good many years - Black- burn on Contract of Sale. p. 190 et ind is there translated. Brian - i very elaborate judgment, ex- plaining the law of the unpaid vend- or's lien, as early as that time, ex- actly as the law now stdnds, and he - [uently says: 'This plea is clearly bad. as you have not shown the payment or the tender of the money:' but he goes farther, and - - I am quoting from memory, but I think I am quoting correctly): 'moreover, your plea is utterly naught, for it does not show that when you had made up your mind to take them you signified it to the 223 § 239.] LAW OF SALE. [book. I. It is entirely competent for the party who makes the offer to stipulate that it shall not be binding upon him unless its ac- ceptance be communicated to him in a certain manner, 1 at a prescribed place, 2 or within a designated time; 3 and the per- son who seeks, by acceptance of such an offer, to bring a bind- ing contract into existence, must show either that he has com- plied with the terms so fixed or that the other party has waived the necessity for such compliance. Where, however, no express terms have been prescribed, the manner of acceptance is a matter to be deduced from the ap- parent intention of the parties as evidenced by their acts, sur- plaintiff, and your having it in your own mind is nothing, for it is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is; but I grant you this, that if in his offer to you he had said, Go and look at them, and if you are pleased with them signify it to such and such a man, and if you had signified it to such and such a man, your plea would have been good, because that was a matter of fact.' I take it, my lords, that that, which was said three hundred years ago and more, is the law to this day, and it is quite what Lord Justice Mellish, in Ex parte Harris. Law R. 7 Ch. App. 593, accu- rately says, that where it is expressly or impliedly stated in the offer that you may accept the offer by posting a letter, the moment you post the letter the offer is accepted. You are bound from the moment you post the letter; not, as it is put here, from the moment you make up your mind on the subject." To the same effect: Mactier v. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; Jenness v. Iron Co., 53 Me. 20. 1 Thus in Bosshardt & Wilson Co. v. Crescent Oil Co., 171 Pa. St. 109, 32 Atl. R. 1120, the parties had stipu- lated for an acceptance in writing, and the court said that no other method would suffice. 2 Thus in Eliason v. Henshaw (1819), 4 Wheat. (17 U. S.) 225, an offer of purchase was made, stipulating for an acceptance " by return of wagon " to the place at which the offerer then was, namely, at Harper's Ferry. In- stead of so replying, the other party sent his acceptance by mail to a differ- ent place, namely, toGeorgetown. This letter was afterwards received, but the proposed buyer then declined to consummate the purchase. The court said that "an acceptance communi- cated at a place different from that pointed out by the plaintiffs in error [the proposers], and forming a part of their proposal, imposed no obliga- tion binding upon them, unless they had acquiesced in it, which they de- clined doing. It is no argument that an answer was received at George- town; the plaintiffs in error had a right to dictate the terms upon which they would purchase the flour, and unless they were complied with they were not bound by them." 3 See post, § 24k 224 CH. VI.] CONTKACT OF SALE — IN GENERAL. [§§ 240,241. roun dings or location, and by the consideration of what is convenient or usual in like cases. § 240, What constitutes. — ""What shall constitute an acceptance," said Mr. Justice Marcy in the leading case of Mactier v. Frith, 1 " will depend in a great measure upon cir- cumstances. The mere determination of the mind, unacted on, can never be an acceptance. Where the offer is by letter, the usual mode of acceptance is by the sending of a letter announc- ing a consent to accept; where it is made by messenger, a de- termination to accept returned through him, or sent by another, would seem to be all the law requires, if the contract may be consummated without writing. There are other modes which are equally conclusive upon the parties; keeping silence under certain circumstances is an assent to a proposition; anything that shall amount to a manifestation of a formal determination to accept, communicated, or put in the proper way to be com- municated, to the party making the offer, would doubtless complete the contract." §241. Notice of acceptance by conduct. — It is evi- dent from the foregoing principles that, unless the parties have stipulated otherwise, the acceptance of the offer need not be in any particular form and need not be evidenced by express words. The fact of the acceptance, and the communication of that fact to the proposer in any manner reasonably warranted by the situation, are the material things. Thus in one case, 2 it appeared that the plaintiff had sent to the defendant a number of orders for goods to be supplied as specified. The latter 1 6 Wend. (N. Y.) 103, 21 Am. Dec. have prompt attention." Held, not 262. Followed in Trevor v. Wood, an acceptance. Said the court: 36 N. Y. 307, 93 Am. Dec. 511. "Promise to give the proposal atten- Promise to give prompt atten- tion was not a promise of accept- tion, not an acceptance. — InManier ance. It was not an assent to it. v. Appling. 112 Ala. 663, 20 S. K. 978, It was no more than a courteous the proposer made an offer (an order) promise to give it consideration." to buy goods. The party addressed 2 Jordan v. Patterson (1896), 67 replied acknowledging the receipt of Conn. 473, 35 Atl. R. 521. the offer and said, " The same shall 15 225 8 242.] LAW OF SALE. [BOOK I. replied, saying, "We are in receipt of the following contracts, for which we thank you," and appended to this a detailed de- scription of the orders. Part of the goods only having been supplied, the defendants insisted that their letter was not an acceptance; and, if it was an acceptance at all, it was an acceptance of some one of the orders only and not of all. But it was held that the letter constituted a sufficient acceptance of the orders and of all of them. § 242. . So, that the party addressed acted upon the offer to the knowledge of the person offering may be a sufficient notice of acceptance. Thus, an offer to buy goods or an order for goods may be accepted by the shipment and delivery of the goods without a formal letter of acceptance, 1 providing such acceptance be in due season. 2 But this form of acceptance, like all others, unless this condition be waived, must correspond with the offer made. Hence an order for a given quantity of goods cannot be deemed to have been accepted, so as to bind the person ordering, merely by the shipment of a less quantity; 3 though, as against the shipper, the sending of part may be evi- dence of an acceptance of the whole order; 4 nor would the person ordering the goods be required to accept a less quantity, 1 Taylor v. Jones, L. R. 1 Com. P. firmed this order by letter. Defend- Div 87; Crook v. Cowan, 64 N. C. ant replied on the same day: "I send 743; McCormick Harvesting Mach. you sample of wheat. I will send Co. v. Richardson (1893), 89 Iowa, 525, one car soon, and if satisfactory will 56 N. W. R. 6S2. ship more. ' I ship this at price 2 As to which, see §§ 244, 245. named." Plaintiff replied thatsample 3 Bruce v. Pearson (1808), 3 Johns, was satisfactory, and urged haste in <_N. Y.) 534. sending the five cars. After several 4 Thus in Eckert v. Schoch (1893), days and more urging, defendant 155 Pa. St. 530, 26 Atl. R. 654, it wrote: "1 ship one car to Stemton appeared that defendant wrote to on this day, contents 444 bus. Will plaintiff as follows: "If you can pay ship one more on Monday." No more 83£ c. on track here for prime Pa. was shipped, and defendant denied wheat, will send you sample." On the existence of any agreement for the following day plaintiff replied five cars. The court, however, held by telegram: "Ship quick five cars that defendant by this correspond- prime red wheat to Stemton as trial ence and conduct had accepted the lot." On same day plaintiff con- offer for five cars. 226 OH. VI.] CONTRACT OF SALE IN GENERAL. [§§ 2i3, 244. but if he does accept the less quantity and appropriates the goods to his own use, he will be deemed to have waived the requirement of a full delivery as a condition precedent, and he will be liable to pkypro tanto for the part actually received. 1 § 243. So, though one has not ordered goods shipped to him, yet if, with knowledge of the facts, he retains them and uses them, or exercises over them acts of ownership, he will be deemed to have assented to their sale to him and will be liable as a purchaser. 2 § 244. Time of acceptance. — Where the period, within which an offer may be accepted is limited by the terms of the offer, the offer, if not withdrawn, is to be regarded as an open and continuing one during that period only, and it must be accepted, if at all, within the time so fixed. If not so accepted the offer expires by its own limitations, and no subsequent acceptance will suffice unless the proposer consents. 1 Where, on the other i Oxendale v. WetherelL, 9 B. & C. 386; Richardson v. Dunn. 2Q. B. 222; Hart v. Mills, 15 M. & W. 85; Avery v. Wills,,!!. 81 X. Y. 341, 37 Am. R. 503, distinguishing Catlin v. Tobias, 26 X. Y. 217, 84 Am. Dec. 183. 2 Thompson v. Douglass, 35 W. Va. 337, 13 S. E. K. 1015. 3 "An acceptance after the time limited in the offer will not bind the person making the offer, unless he assents to the acceptance so made after it is made. - ' Atlee v. Bartholo- mew, 69 Wis. 43, 33 N. W. R. 110, 5 Am. St. R. 103, citing McCulloch v. Eagle Ins. Co., 1 Pick. (Mass.) 378; Larmon v. Jordan, 56 111. 204; Bos- ton, etc. R. R. Co. v. Bartlett, 3 Cush. (Miiss.) 224: Adams v. Lindsell, 1 Rain. & Aid. (Eng.) 681; Eliason v. Henshaw, 4 Wheat. (U. S.) 225. " In our law the effect of naming a defi- nite time in the proposal is simply neg- ative and for the proposer's benefit: that is, it operates as a warning that an acceptance will not be received after the lapse of the time named. In fact, the proposal so limited comes to an end itself at the end of that time and there is nothing for the other party to accept." Union Na- tional Bank v. Miller. 10fi X. C. 347, 11 S. E. R 321, 19 Am. St. R. 538, cit- ing Pollock on Contracts, 9; Larmon v. Jordan, supra; Boston, etc. R. R. Co. v. Bartlett, supra; Mactier v. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; Cheney v. Cook, 7 Wis. 413; Maclay v. Harvey, 90 111. 525. 32 Am. R. 35; Dunlop v. Higgins, 1 H. L. Cas. 387. See also Curtis v. Blair. 26 Miss. 309, 59 Am. Dec. 257; Longworth v. Mitchell, 26 Ohio St. 334: Potts v. Whitehead, 20 N. J. Eq. 55: Weaver v. Burr. 31 W. Ya. 736, 8 S. E. R. 743; Can- v. Duval. 14 Pet. (39 U. S.) 77. In James v. Marion Fruit Jar Co. (1896), 69 Mo. App. 207, the offerer 227 §§ 245, 246.] law of sale. [book i. hand, the period for its acceptance is not fixed, the offer must be accepted within a reasonable time. 1 § 245. . What is a reasonable time depends here, as in other cases, upon the particular circumstances of each .individ- ual case. 2 If the parties are present and personally negotiat- ing, that reasonable time will, unless further time is granted, be limited to the period of such negotiation, and if, without, stipulating for further time, the parties separate before a bar- gain is concluded, offers then made will be deemed to be with- drawn and cannot subsequently be accepted. 3 Where the par- ties are not thus personally present and orally negotiating, but are conducting their negotiations otherwise, as by letter or tel- egram, the offer, unless previously withdrawn, will be deemed to continue until the letter or telegram containing it is received, and the party addressed has had a fair opportunity to answer it. 4 The subject of communication by letter or telegram will be more fully considered in a later section. 5 §246. Question of acceptance, how determined. — The question whether or not the offer has been accepted is one which may address itself to the court or jury under varying circumstances. Where the negotiations were in writing, 6 or had telegraphed an offer saying that 447, 11 Pac. R. 441; Ferrier v. Storer, prices were higher and advancing, 63 Iowa, 484, 19 N. W. R. 288. and saying: " Wire instantly or this z Martin v. Black, supra; Dunlop is withdrawn." This message reached v. Higgins, supra; Mactier v. Frith, the town of its destination at 7:05 supra; Loring v. Boston, 7 Mete. P. M. on Saturday evening, but was (Mass.) 409; Chicago, etc. Ry. Co. v. not delivered until about 10 o'clock. Dane, 43 N. Y. 240; Stone v. Har- At 10:15, on the following Monday, nion, 31 Minn. 512, 19 N. W. R 88; the offer was accepted by telegram. McCurdy v. Rogers, 21 Wis. 197; Judd The offerer responded: "We specified v. Day, 50 Iowa, 247. instant answer. Price now $2 per 3 Averill v. Hedge, 12 Conn. 424; gross higher." Held, that the ac- Cooke v. Oxley, 3 T. R. 653. ceptance on Monday was not in time. 4 Averill v. Hedge, 12 Conn. 424. 1 Craig v. Harper, 3 Cush. (Mass.) & See post, § 247 et seq. 158; Beck with v. Cheever, 21 N. H. 6 Jordan v. Patterson, 67 Conn. 473, 41; Martin v. Black, 21 Ala. 721; Chi- 35 Atl. R. 521; Eckert v. Schoch, 155 cago, etc. R. Co. v. Dane, 43 N. Y. Pa. St. 530, 26 Atl. R. 654; James v. 240; Trounstine v. Sellers, 35 Kan. Marion Fruit Jar Co., 69 Mo. App. 207. 228 CH. VI.] CONTRACT OF SALE IN GENERAL. [§ 247. the facts are not disputed, the question of acceptance is one of law to be determined by the court; but where the matter is to be decided by reference to disputed facts, the question must be regarded as for the jury. § 247. Communication by mail, telegraph, etc.— A person who makes an offer by mail, telegraph or other public agency, thereby adopts it as his agent for the transmission of his offer, and he therefore assumes the risk of his agent's failure to de- liver the message promptly, or at all, and also, within the limits applicable to other agents, the risk of his agent's failure to de- liver it correctly. 1 Such an adoption of a public agency by the proposer is also, where no other direction is given, deemed equivalent to an invitation to the party addressed to communi- cate his reply by the same agency ; and it is well settled, there- fore, that if the person addressed accepts the offer, and, in due time, finally and irrevocably delivers his acceptance to the same agency to be transmitted to the proposer,* the contract thereby becomes complete, and the failure of the adopted agency, without the fault of the acceptor, to transmit the ac- ceptance to the proposer, either promptly, accurately, or at all, does not change the result. 3 If, however, this failure is attrib- 1 Saveland v. Green, 40 Wis. 431 ; ceptance is not of itself sufficient to Scott & Jarnagin on Telegraphs, complete a contract. In such a case § 345. the act must involve an irrevocable 2 Thus in Trounstine v. Sellers, 35 element, and the letter must be Kan. 447, 11 Pac. R. 441, it is said; placed in the mail, or the telegram " The mere determination to accept deposited in the office for transmis- an offer does not constitute an ac- sion, and thus placed beyond the ceptance which is binding on the power or control of the sender, before parties. 'The assent must either be the assent becomes effectual to con- communicated to the other party, or summate a contract; and not then, some act must have been done which unless the offer is still standing." the other party has expressly or im- srjunlop v. Higgins, 1 H. L. Cases, pliedly offered to treat as a commu- 381 ; Household F. Ins. Co. v. Grant, nication.' (Benjamin on Sales, 54.) 4 Ex. Div. 216, 6 Eng. Rul. Cas. 115, Where parties are distant, and the 19 Rev. R. 415; Adams v. Lindsell, 1 contract is to be made by oorre- B. & Aid. 681, 6 Eng. Rul. Cas. 80; spondence. the writing of a letter or In re Imperial Land Co., L. R. 7 Ch. telegram containing a notice of ac- App. 587; Townsends Case, L. R. 13 229 § 248.] LAW OF SALE. [BOOK I. utable to the fault of the acceptor, as in misdirecting bis reply, or delaying it beyond the proper time, or in employing careless agents to transmit it, the contract will not thereby be com- pleted. 1 §248. Method of acceptance in these cases. — The adoption by the proposer of a given agency for the transmis- sion of his offer is often deemed to be not only equivalent to an invitation to reply by the same means, as stated in the pre- ceding section, but also to be a conclusive designation of that ao-ency as the one to be employed in the transmission of the acceptance, so as to cast upon the acceptor the risk of employing any other. Though the language of many of the cases appears to give countenance to this idea, it is nevertheless to be re- garded as too narrow a view. The proposer is not, of course, responsible for the fidelity of amj agency which the acceptor may see fit to employ; but where the proposer does not stipu- late otherwise he must ordinarily be held to invite a response by the usual and natural agency as determined by the circum- stances of the case. Thus where an offer was made by mes- senger, but the acceptance was by mail, after the mailing but before the receipt of a withdrawal of the offer, it was said by Eq. 148; Potter v. Sanders, 6 Hare, 1; Moore v. Pierson, 6 Iowa, 279, 71 Am. Stocken v. Collin, 7 Mees. & Wels. Dec. 409; Ferrier v. Storer, 63 Iowa, 515; Hebb's Case, L. R. 4Eq. 9; Tay- 484, 50 Am. R. 752, 19 N. W. R. 288; lor v. Insurance Co., 9 How. (U. S.) Durkee v. Vermont Cent. R. R. Co., 390; Patrick v. Bowman, 149 U. S. 29 Vt. 127. 411. 37 L. Ed. 790; Trevor v. Wood, In Massachusetts it has been 36 N. Y. 307, 93 Am. Dec. 511; Abbott thou ;ht that the contract was not v. Shepard, 48 N. H. 14; Hutcheson complete until the acceptance was v. Blakeman, 3 Mete. (Ky.) 80; Ham- received. McCulloch v. Eagle Ins. ilton v. Insurance Co., 5 Barr (Pa.), Co., 1 Pick. 278; Lewis v. Browning, 339: Levy v. Cohen, 4 Ga. 1; Falls v. 130 Mass. 173. But is this true, since Gaither, 9 Port. (Ala.) 614; Averill v. Brauer v. Shaw (1897), 168 Mass. 198, Hedge, 12 Conn. 436; Wheat v. Cross, 46 N. E. R. 617, 60 Am. St. R. 387? 31 Md. 99, 1 Am. R. 28; Potts v. iMaclay v. Harvey. 90 I1L 525,32 Whitehead, 20 N. J. Eq. 55; Wash- Am. R. 35; Thayer v. Insurance Co.. burn v. Fletcher, 42 Wis. 152; Haas 10 Pick. (Mass.) 326; Bryant v. Booze. v. Myers, 111 I1L 421, 53 Am. R. 634; 55 Ga. 438. 230 CH. VI.] COXTKACT OF SALE — IN GENERAL. [§ 249. Lord Hersehell, in the English court of appeal, 1 that " where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of com- municating the acceptance of an offer, the acceptance is com- plete as soon as it is posted." And Kay, L. J., in the same case, declared the rule thus: " Posting an acceptance of an offer may be sufficient where it can fairly be inferred from the cir- cumstances of the case that the acceptance might be sent by post." The same rule would doubtless extend also to the tele- graph. 2 Whether the agency employed is a " natural and ordinary mode of transmitting such an acceptance " is said to be a ques- tion of fact for the jury. 3 § '240. . Of course, if the acceptance is actually received in due time, there can ordinarily be no room for question as to the suitability of the agency employed in transmitting it; 4 though if the proposer directs the employment of a particular agency, he could not, except under very unusual circumstances, be charged with the risk of any other; and it would also be doubt- less competent for him to expressly stipulate that he should not be charged unless the acceptance came through a specified channel, whether it reached him or not. 5 1 Hen thorn v. Fraser, [1892] 2 Ch. 27. the acceptance should be transmitted In Wilcox v. Cline (1888), rO Mich, by mail." 517, 38 X. W. R. 555, an oiler of sale ' 2 In Perry v. Mt. Hope Iron Co. was made by writing delivered by (1886), 15 R. I. 380, 5 Atl. R. 632, 2 Cline to Wilcox at Bellefontaine, Am. St. R 902, an offer made in per- Ohio. Wilcox lived at Detroit, Mich., son was left open for acceptance and Cline at Frederick City. Md. until next day. Plaintiff lived in Nothing was said as to the method Providence, R. I., and defendant had of acceptance, but Wilcox had a pre- its office in Boston. Plaintiff sent an scribed time within which to accept, acceptance by telegraph. Held, that and after the delivery of the offer the contract was completed at Prov- each party went to his home. Wil- idence when the telegram was sent, cox afterwards, indue time, accepted 3 In Perry v. Mt. Hope Iron Co., the offer by mail. Held, sufficient, supra. Said the court: " We think the facts * Perry v. Mt. Hope Iron Co., supra. show conclusively that the parties 5 See Eliason v. Henshaw, 4 Wheat, intended from the beginning that (17 U. S.) 225. 231 250, 251.] LAW OF SALE. [COOK I. § 250. . It is also competent for the proposer to stipu- late, either expressly or impliedly, that he is to be bound only in case the acceptance actually reaches him; and where he does this, he will not be bound unless it is received, even though the agency employed for transmitting the reply would other- wise have been such as to charge him with the risk. 1 § 251. Time of acceptance in these cases. — The due time within which the acceptance must be transmitted depends upon the principles stated in a preceding section. 2 If the time be limited, either by express words or the nature of the subject, or the evident intention, the answer must be transmitted within that time. 3 In other cases the answer must be transmitted 1 Lewis v. Browning. 130 Mass. 173 [citing Theisiger, L. J., in Household, etc. Ins. Co. v. Grant, 4 Ex. Div. 223; Pollock on Contracts (2d ed.), 17; Leake on Contracts, 39, note]. In this case the proposer had written that, if he did not hear from the other by a given date, he should conclude that his offer was not accepted. To like effect: Haas v. Myers, 111 111. 421, 53 Am. R. 634; Vassar v. Camp, 11 N. Y. 441. 2 See ante, § 244. 3 In Dunlop v. Higgins,l H. L. Cas. 387, the Lord Chancellor says: "Where an individual makes an offer by post, stipulating for, or by the nature of the business having a right to expect, an answer by return of post, the offer can only endure for a limited time, and the making of it is accompanie'd by an implied stipu- lation that the answer shall be sent by return of post. If that implied stipulation is not satisfied, the person making the offer is released from it. When a person seeks to acquire a right, be is bound to act with a de- gree of strictness such as may not be required where he is only en- deavoring to excuse himself from a liability." Where the nature of the business demanded a prompt answer, it was held that the words "you will confer a favor by giving me your answer by return mail," do, in effect, stipulate for an answer by return mail. Maclay v. Harvey, 90 111. 525, 32 Am. R. 35, citing Taylor v. Rennie, 35 Barb. (N. Y.) 272. Where an offer by telegraph states that the sender " must have reply early to-morrow,'' a reply sent late in the evening of that day is not in time. Union Na- tional Bank v. Miller, 106 N. C. 347, 19 Am. St. R. 538, 11 S. E. R. 321. In case of a proposition by tele- graph to sell certain goods, the mar- ket for which was subject to sudden and great fluctuations, an immediate answer should be returned, and an acceptance of such pi-oposition tele- graphed after a delay of twenty-five hours from the time of its receipt was not an acceptance within a rea- sonable time and did not operate to complete the contract. Minnesota Linseed Oil Co. v. Collier White Lead Co., 4 Dill. (U. S. C. C.) 431. Where a telegram making an offer 232 en. vi.] CONTRACT OF SALE IN GENERAL. [§ 251. within a reasonable time, 1 or, as stated in a case already re- ferred to, 2 the offer will remain open only until the party ad- dressed has had a fair opportunity to answer it. If the delivery of the' offer was delayed by the fault of the sender, the time for its acceptance dates from its actual receipt, even though the sender may in the meantime have sold the goods to others, 3 demanded an instant acceptance, but was not received until ten o'clock on Saturday night, and the answer was delayed until Monday, the delay was in this case unreasonable, and the acceptance did not bind. The court siid: "This offer plaintiffs received on Saturday night at 10 P. M., but instead of wiring back their accept- ance that night through the same agency, as they might have done, they delayed action until the second day thereafter. It is true that the next day was Sum lay, but no reason was shown why acceptance was not wired back on the evening of the re- ceipt of the offer. If the time for acceptance had not been Limited by the terms of the offer, the delay of acceptance doubtless would not, under the circumstances, be deemed unreasonable or untimely. But the plaintiffs were admonished by the very terms of the offer that prompt and immediate action was required of them if they desired to accept the defendant's offer, and that if they did not so act the offer was with- drawn. They were warned in the same connection that the prices were advancing, and that there was an emergency calling for prompt and immediate action on their part. We feel justified in ruling, as a matter of law, that the acceptance of the plaintiffs, thirty-six hours after the receipt of the offer, even under the circumstances shown by the evi- dence, was not an acceptance within the time required by the terms of the offer itself. The defendant had a perfect right, by the terms of the offer, to limit the time for its ac- ceptance. The time for acceptance Bp iiii'd in the offer was as much a term thereof as the price, or the kind and quantity of the goods. After the specified time passed without ac- ceptance the offer was determined. Clark on Contracts, 30, 40, 52. It follows from these observations that the acceptance of the plaintiffs had no effect." James v. Marion Fruit Jar Co.. 60 Mo. App. 807. 1 Dunlop v. Higgins, 1 H. L. Cas. 387; Duncan v. Topham. 8 Com. Bench, 325; Minnesota Oil Co. v. Col- lier White Lead Co., 4 Dill. (U. S. C. C.) 431; Stockham v. Stockham, 32 M.l. 196; Abbott v. Shepard, is X. BL 14, An offer by letter, dated May 16, 1884, and made by the offerer "solely from a feeling of friendship" towards the offeree, to purchase certain shares of stock "at anytime after January 1, 1886, if at that time " the latter shall so desire, must be ac- cepted by that date or within a rea- sonable time thereafter, and an ac- ceptance of the offer sent on July 0, 1886, is not within a reasonable time. Park v. Whitney, 14* Mass. 278, 19 N. K. R. 161. - 1 Averill v. Hedge, 12 Conn. 424, citing Mactier v. Frith, 6 Wend. (X. Y.) 103, 21 Am. Dec. 262. 3 Adams v. Lindsell, 1 B. & Aid. 681. 233 §§ 252, 253.] la.\v of sale. [book i. unless the fact of the delay be obvious to the receiver and he could not reasonably rely upon it as continuing without in- quiry. § 252. Right to withdraw offer. — A mere offer to enter into a contract can, evidently, operate only during the period of its continuance. The very purpose of its making, however, contemplates that it shall continue until the other party can act upon it, unless it sooner expires by its express or implied limitations, or is sooner revoked. But, being purely voluntary, it is equally obvious that the party making the offer may re- tract it at any time before it has ripened into a contract by acceptance. 1 As stated by Lush, J., of the Queen's Bench Di- vision: 2 "It is clear that a unilateral promise is not bind- ing, and that if a person who makes an offer revokes it before it has been accepted, which he is at liberty to do, the negotia- tion is at an end. 3 But in the absence of an intermediate revo- cation, a party who makes a proposal by letter to another is considered as repeating the offer every instant of time till the letter has reached its destination and the correspondent has had a reasonable time to answer it. 4 'Common sense tells us,' said Lord Cottenham, 5 ' that transactions cannot go on without such a rule.' It cannot make any difference whether the nego- tiation is carried on by post, or by telegraph, or by oral mes- sage. If the offer is not retracted, it is in force as a continuing offer till the time for accepting or rejecting it has arrived. But, if it is retracted, there is an end of the proposal." § 253. Voluntary offer may be retracted, though time given for its acceptance. — It is equally true that a voluntary i Cooke v. Oxley, 3 T. R. 653; Ste- 2 In Stevenson v. McLean, L. R. 5 venson v. McLean, 5 Q. B. Div. 346; Q. B. Div. 346. Dickinson v. Dodds, 2 Ch. Div. 463; 3 Citing Routledge v. Grant, 4 Bing. Byrne v. Van Tienhoven, 5 C. P. Div. 653. 344; Bristol Bread Co. v. Maggs, 44 4 Citing Adams v. Lindsell, 1 B. & Ch. Div. 616; Larmon v. Jordan, 56 A. 681. 111. 204; Paddock v. Davenport. 107 5 In Dunlap v. Higgins, 1 H. L. Cas. N. C. 710, 12 S. E. R. 464; Bosshardt 381. & Wilson Co. v. Crescent Oil Co., 171 Pa. St. 109, 32 Atl. R. 1120. 234 OH. VI. J OONTEAOT OF SALE — I2S GENEEAL. [§§ 254,255. offer may be retracted at any time before acceptance, even though the proposition was in writing, and the proposer lias expressly stated that he would permit the offer to remain open for a given period, which has not yet expired. 1 The promise to allow time for acceptance, being without consideration's, of course, merely nudwm pactum, &nd the offer may be revoked by the proposer before acceptance without legal liability. § 254. Voluntary offer may be revoked though de- clared irrevocable.— So a voluntary offer, as, for example, an order for goods, may be revoked at any time before acceptance, even though it may have been in writing, and contained an express stipulation that it should be irrevocable. 2 Such a con- dition, being without consideration, stands upon no better ground than the offer or order itself. § 255. Unaccepted offer does not constitute such a contract as to exclude parol evidence.— So a written offer or order, before acceptance, docs not constitute such a written contract between the parties as will exclude parol evidence as to other stipulations which are not included in the order. 3 i Routledge v. Grant, I Bing. 863; !»:: Mich. 328, 53 X. W. R. 555, are to Dickinson v. Dodds, 2 Ch. I»i\. 163; the same effect Cheney v. Cook, 7 Wis. US; School ; in Weiden v. Woodruff, 38 Mich. Directors v. Trefethren, 10 Bradw. 130, Woodruff Bought to recover (111.) 187; Weiden v. Woodruff, 38 upon an order addressed to him stat- Mich. ISO; Burton v. Shotwell, 13 ing: "You will please send mi Bush k\.. 371; Tucker v. Law- rence, 56 \'t. 167; Quick v. Wheeler, r8 X. V. 800; Bosshardt & Wilson e'e v. Crescent I Ml Co., 1 7 1 Pa. St Id'.'. ::•-> Atl. R, 1100. -This is well illustrated, as is also th«' rule of the following section, by the recent case of National Refining To. x. Miller. 1 S. I >. :. IS IT N. W. R, vanized lightning rods for my house, within sixty days, lor which 1 will give you thirty-tive cents per foot, due when work is completed. II. Wei- den." Plaintiff proved that under this order he had delivered two hun- dred and six feet of lightning rod. Defendant, claiming that this writ- ten instrument did net constitutes 962, where it was expressly stipulated complete binding contract between that the oiler (an order) should not the parties, offered to prove the con- be subject to countermand. Peckv. versation between plaintiff's agent Preese, lot Mich. 321, ■">!' X. W. \i. 600, ; ,nd defendant at the time tin- and Challenge Wind Mill Co v. Kerr, was given; that defendant reserved § 256.] LAW OF SALE. [BOOK I. § 256. Agreement upon consideration not to with- draw offer. — It is undoubtedly competent for the parties, upon a sufficient consideration, to agree that the offer shall not be withdrawn within a specified time, and such an agreement is binding. The consequences of the breach of such an agree- ment are, however, material. If the offer be a mere proposal to enter into a contract, and the proposer, in violation of his agreement to leave the proposal open, refuses to do so, and re- vokes it, he is clearly liable, but his liability will be, not for the breach of the contract which was never made, but for the breach of the agreement to leave the offer open so that such a contract might be made. No title to the chattel to be sold could pass by such an agreement because no contract of sale has been entered into. This must also be the result in every case in which the proposal does not amount to a present offer of sale that requires no further act on the part of either party than a mere acceptance according to its terms. If, however, the right to countermand the order within sixty days; that he did in fact within that time, and before any of the rod was delivered, act- ually countermand the order; and he further offered to prove that at the time the order was given the number of feet of rod to be delivered was agreed upon. This evidence was all objected to and excluded, and plaintiff recovered judgment for the amount claimed. Said the court: "I. This written order did not constitute such a writ- ten contract between the parties as would exclude parol evidence, or pre- vent the defendant from showing any further agreement entered into between the parties at the time the order was given, and not embraced therein. Richards v. Fuller, 37 Mich. 161; Phelps v. Whitaker, 37 Mich. 72, and cases there cited. "II. This instrument was but a mere order. Woodruff was not 236 bound by it in any way to deliver any rod. Until accepted by him it was not binding upon either party. Woodruff testified that he passed upon all orders taken by his agents; if he considered the parties good he delivered the orders, and that if he doubted the responsibility of the party who gave the order, he had the right to reject it. Under such cir- cumstances it is preposterous to say that there was a valid binding con- tract between the parties before Woodruff had accepted the order, and in some way notified the defend- ant of that fact. Even independent of such testimony, before an actual acceptance and notice thereof, the defendant had the right to withdraw his order. It is similar to an order given a merchant for goods, which, before acceptance, the party would have a right to withdraw. 1 Par- sons on Con. (5th ed.) 483." CH. VI.] CONTRACT OF SALE — IN GENERAL. [§ 257. the proposal is such a complete offer of present sale, an accept- ance of it within the time specified may operate to transfer the title notwithstanding an attempted revocation of the offer by the proposer. § 257. How offer revoked — Revocation must be act- ually communicated.— While the offer is, in general, as has Just been seen, subject to revocation by the proposer at any time before it is accepted, it is obvious that such revocation, during the time that the offer might otherwise be accepted, must, in order to be effectual, be communicated to the other party. 1 The offer has been communicated to the latter for the purpose of obtaining his acceptance of it. ami, clearly, if it is to be withdrawn from his consideration during the period in which he would otherwise be still invited to accept it, the fact of such withdrawal must in some way be brought home to him. No particular method of communicating the fact of the rev- ocation would ordinarily be requisite. Notice might be given expressly, or the fact might be made apparent from acts and conduct leading necessarily to that conclusion; as where one who has offered a specific chattel for sale to A, sells it to 13, as A knows, before the latter has accepted the offer. 2 The death 1 Stevenson v. McLean, 5 Q. B. Div. sell property, which can be with- 846; Byrne v. Van. Tienhoven, 5 Com. drawn at any time, and which is PI. Div. 344; Tayloe v. .Merchants' F. made dependent on the acceptance Ins. Co., 9 How. (U. S.) 390. of the person to whom it is made, is 1 In Dickinson v. Dodds, 2 Ch. Div. a mere nudum pactum, how is it pos- 463, Mellish, J., says: "If a man sible that the person to whom the makes an offer to sell a particular offer has been made can by accept- horse in his stable, and says ' I will ance make a binding contract after give you until the day after to-mor- he knows that the person who has row to accept the offer,' and the next made the offer has sold the property day goes and sells tbe horse to some- to some one else? It is admitted law body else, and receives the purchase- that, if a man who makes an offer money from him, can the person to dies, the offer cannot be accepted whom the offer was originally made after he is dead; and parting with then come and say 'I accept,' so as the property has very much the same to make a binding contract, and so effect as the death of the owner, for as to be entitled to recover damages it makes the peril >rmance of the offer for the non-delivery of the horse? If impossible. I am clearly of opinion the rule of law is that a mere offer to that, just as when a man who has 237 §§258,259.] law or sale. [book i. of the proposer will also operate as a revocation ; 1 as would doubtless, in many cases, his subsequently occurring insanity 2 or bankruptcy. 3 § 258. Mailing letter, etc., not enough. — Where the offer was made by mail or telegraph, the requirement of actual communication oP its withdrawal applies with full vigor, and it is abundantly settled that, unlike the case of the acceptance, the mere depositing of the letter of withdrawal in the post- office, or the delivery of a message to the telegraph company for transmission, will not operate a revocation, and the offer will remain open until the notice of its revocation is actually received. 4 If, therefore, an acceptance of the offer has been duly mailed, it wdl not be affected by a revocation of the offer mailed be- fore the acceptance was mailed, but not received until after- wards. 5 The acceptance made by the post is not affected by the fact that a letter of revocation is on its way. This would be true, moreover, even though the letter of acceptance, duly mailed, were delayed or never received. 6 § 259. Offer under seal. — "An exception to the gen- eral rule as to the revocability of an offer," says Sir William made an offer dies before it is ac- 3 See Mechem on Agency, § 263. cepted, it is impossible that it can be 4 Stevenson v. McLean, 5 Q. B. Div. then accepted, so when once the per- 346; Tayloe v. Merchants* F. Ins. Co., son to whom the offer was made 9 How. (U. S.) 390; Wheat v. Cross, knows that the property has been 31 Md. 99, 1 Am. R. 28; Kerftpner v. sold to someone else, it is too late for Cohn, 47 Ark. 519, 58 Am. R. 775, 1 S. him to accept the offer." Followed W. R. 869; Sherwin v. National Cash in Coleman v. Applegarth, 68 Md. Register Co., 5 Colo. App. 162, 38 Pac. 21, 6 Am. St. R. 417. To like effect: R. 392. School Directors v. Trefethren, 10 5 Byrne v. Van Tienhoven (1880), 5 Bradw. (111.) 127. See also Gilbert v. Com. PI. Div. 344. 49 Law Jour. Com. Holmes, 64 111. 548: Ahern v. Baker, PI. 316, 42 Law Times, 371; Henthorn 34 Minn. 98,. 24 N. W. R. 341; Walker v. Fraser, [1892J 2 Ch. 27, C. A. v. Denison, 86 111. 142; Bissell v. <"Dunlop v. Higgins (1848), 1 H. L. Terry, 69 111. 184. Cas. 381; Household, etc. Ins. Co. v. !See preceding note; Anson on Grant (1879), 4 Ex. Div. 216, 48 L. Contracts (7th ed.), 27. Jour. Ex. 577, 41 L. Times, 298, 6 Eng. 2 See Mechem on Agency, § 254. Rul. Cas. 115. 238 CH. VI.] CONTRACT OF SALE — IN GENERAL. [§§ 260, 201. Anson, " must be made in the case of offers under seal. Such an offer cannot be revoked: even though it is not communi- cated to the offeree it remains open for his acceptance when he becomes aware of its existence." 1 260. Lapse of otter — Notice.— Where the offer was, by its express terms, to remain open for a prescribed period, it will, unless previously accepted, lapse and expire by its own limitation at the expiration of that period, and no notice of such expiration is necessary. 2 So though no time was expressly prescribed, the offer must, as has been seen, be accepted if at all within a reasonable time, and if not so accepted it also will lapse and expire without notice when that reasonable time has expired. 3 But where the offer is thus one which may be accepted within a reasonable time, and the other party signifies his acceptance of it within a time which he could fairly have supposed to be reasonable, good faith, it is held, 4 requires that the proposer, if he intends to retract on account of the delay, shall make known that intention promptly. " If he does not, he must be regarded as waiving any objection to the acceptance as being too late." § 261. Waiver of revocation. — A party who has taken all necessary steps to withdraw an offer may, nevertheless, with the consent of the other party, waive his revocation and com- plete the contract. If, therefore, a person who has ordered goods withdraws his offer, but, on being advised that the goods have been shipped, is requested to receive them and hold for further advice, and does receive the goods and disposes of them as his own, the withdrawal will be deemed to have been waived by both parties, and the vendor cannot treat the contract as thereby rescinded. 5 i Anson on Contracts (7th ed.), 30, * Phillips v. Moor (1880), 71 Me. 78. citing Doe v. Knight, 5 B. & C. 71: 5 Sullivan v. Sullivan. 70 Mich. 583, Xenos v. Wickham, L. R. 2 H. L. 21)0. 38 N. W. R 472, 70 Mich. 101, 42 N. 2 Leake on Contracts 1 1878), p. 40. W. R. 1090. 8 See Ramsgate Hotel Co. v. Monte- fiore, L. R, 1 Exch. 109. 239 §§ 262, 203.] LAW OF SALE. [book I. § 262. Withdrawal of acceptance.— "An acceptance, while in course of communication," says Mr. Leake, 1 "may be inter- cepted in fact, or may be revoked by an actual communication to that effect before the acceptance is received ; but as the com- munication of the acceptance completes the contract, it cannot afterwards be revoked without the consent of the other party. " A letter once posted cannot be withdrawn by reason of the regulations of the postoffice; 2 but the operation of the letter may be revoked by any other means, if possible, before it is actually delivered. 3 Thus, if a letter accepting a proposed con- tract be posted, and a subsequent letter recalling the accept- ance be also posted, and arrive at the same time with the former letter, there is no contract. 4 A revocation or change of inten- tion as to acceptance, not communicated until after the accept- ance is complete, is void of operation." II. Of Unilateral Contracts. §263. Unilateral contracts — Options. — Closely allied to the subject of the preceding sections is that of the so-called option or unilateral agreement, which presents itself in various forms, but usually in that of an undertaking by one party to sup- ply such goods as the other may require during a given period, though such other party may not bind himself to take any. Upon this subject Mr. Bishop uses strong language, 5 saying that " unless both are bound, so that an action could be main- tained by either against the other for a breach, neither will be bound. 6 This proposition is absolutely axiomatic, not admitting of being overthrown by authorities, so long as the law requires something of value as a consideration ; for, where it is admitted 1 Leake on Contracts (1878), p. 46. Shaw & Dunlop (Scotch), 190; Lang- 2 In the United States the practice dell's Cas. on Contr. 112. is often otherwise. 5 Bishop on Contracts, § 78. 3 Citing Cockburn, C. J., in New- 6 Citing Stiles v. McClellan, 6 Colo, combe v. De Eoos, 2 El. & El. 271. 89; Townsend v. Fisher, 2 Hilton *Dunmore v, Alexander (1830), 9 (N. Y.), 47; Ewins v. Gordon, 49 N. H. 444. 240 CH. VI. J CONTRACT OF SALE IN GENERAL [§ 263. that there is nothing for A's promise to rest on butB's promise, if B has not promised, A's promise rests on nothing, and is void. There may be cases in seeming contradiction to this; if there are any really so, they are not to be followed. In one case, 1 1 Great Northern Ry.Co. v. Witham, L. R. 9 C. P. 16, 7 Eng. R. 130. In Campbell v. Lambert, 36 La. Ann. 35, 51 Am. R 1. the parties signed a paper in which they de- clare. I that they had "mutually agreed with each other "that Lam- bert should furnish and deliver to Campbell such quantities of coal as the latter might require during a certain year "to the extent of sixty thousand barrels, with the privilege of twenty thousand barrels or more, to be delivered with dispatch in such quantities and at such places" as Campbell should designate, Lambert to receive a certain price per barrel payable at the end of each month. Lambert delivered thirty-three thou- sand three hundred and forty-five barrels, and then, owing to a great increase in price and large and rapid orders from Campbell, refused to de- liver more. Campbell thereupon de- manded the balance of the eighty thousand barrels, and upon failure to deliver sued for the difference be- tween the contract price and the then market price. "But on plaint- iff's own theory." said the court, "it is manifest that the agreement is a nudum pactum. We scan its pro- visions in vain to find the imposition on Campbell of any obligation to take or pay for any amount of coal whatever. He undertakes nothing, except to pay at the end of each month for such coal as he may have chosen to order. One promise may be a good consideration for another promise, but not ' unless there is an absolute mutuality of engagement. so that each party has the right at once to hold the other to a positive agree- ment' 1 Pars. Cont, 448. Thus it has been held that a written agree- ment to give A the refusal of a lease of a farm at a stipulated rent, with no agreement on the part of A to take it, and no other consideration, is void. Burnet v. Biseo. 4 Johns. 235. So a contract in writing to con- vey lands at a fixed price and within a stated time, where the other party did not himself take and nothing was paid or agreed to to be paid by him, was held void. Bean v. Bur- bank, 16 Me. 458, Again, where the purchaser at an execution sale gave the defendant a written promise to reconvey upon the payment of a specified sum by a day named, but the defendant did not bind himself to make such payment, the promise was held to be without considera- tion. Mers v. Franklin, 68 Mo. 127. The following case is yet more ex- actly in point, viz.: It was held that a written agreement under which one party was to deliver to the other prairie hay 'not to exceed two hun- dred tons,* payment to be made on delivery of designated instalments, did not confer upon the latter party a right to enforce delivery to the limit mentioned; was therefore with- out complete mutuality, and left it optional with each party to avoid the agreement on giving notice to the other at any period during the time of delivery. Houston, etc. Co. v. Mitchell, 38 Tex. 85. If the con- 16 241 § 2G3.] LAW OF SALE. [HOOK I. parties agreed that one of them should supply the other daring a designated period with certain stores, as the latter might order. He made an order which was filled; then made an- other, which was declined; and on suit brought the defendant dition upon which defendant's prom- ise was to take effect had been the doing of something involving labor or other value by Campbell, and upon the faith of said promise, and before its revocation, Campbell had done the thing, different principles would apply, not necessary to specify here. But the foregoing cases sutli- ciently show that the mere exercise of an option to exact the perform- ance of a promise does not alter the situation of the parties, and does not prevent the promisor from exercis- ing his right of refusal. The author- ities quoted are sound and applica- ble to our law. On these grounds we hold that defendants were not bound in law to execute the naked promise contained in their agree- ment, but had the right at any time to refuse to proceed in execution thereof, and for such refusal are not responsible in damages to plaintiff." In Thayer v. Burchard. 99 Mass. 508, A wrote to B, a common carrier over one of two routes from the west, that he was about to buy grain in the west and wished to hear soon if B was disposed to contract for its transportation, as he should buy in a different market for B's route than tor the other. B, in reply, stated his rates for carrying flour from the end of a canal to several towns. A then wrote asking whether the rates ap- plied to grain as well as flour, and whether B would abate a discrimina- tion in them against A's town. B answered that he would carry A's flour and grain from the canal to that town at a given rate "to con- tinue in force till close of navigation unless notice to contrary." A replied the same day accepting the proposal. Held, that to ascertain the terms of the agreement, regard was to be had to the whole correspondence, and not the two last letters only. Held, also, that, by the terms so ascertained, the relation of the parties was in the nat- ure of an open proposition by B, to which A might from time to time give effect as a contract by deliver- ing flour and grain and calling for its transportation, and B's right to end which by notice was unqualified. Held, further, that after giving A no- tice of a change of rates to take effect on a certain day, B's obligation to carry any of A's flour or grain at the former rates after that day was lim- ited to such flour and grain as at the time of the notice had been delivered to B by A for transportation. In Bailey v. Austrian, 19 Minn. 535, plaintiffs being engaged in a general foundry business, defendant prom- ised to supply them with all the Lake Superior pig iron wanted by them in their business from September 2d until December 31st next ensuing, at specified prices, and plaintiffs simul- taneously promised to purchase of defendant all of said iron, which they might want in their said business during the time above mentioned, at said prices. Held, that this state of facts did not establish a valid con- tract, since it did not establish an ab- solute mutuality of engagement, giv- ing each party the right to hold the 242 OH. VI.] CONTRACT OF SALE — IX GENERAL. [§ 203. rested his case on the lack of mutuality in the contract, which, he contended, rendered it void. Plainly it stood, in law, as a mere continuing offer by the defendant; but, when the plaintiff made an order, he thereby accepted the offer to the extent of the order, and it was too late for the other to recede. So judg- ment went for the plaintiff; Brett, J., observing that this case 'does not decide the question whether the defendant might fendant "to deliver to plaintiff as many grapes as he should wish at a given price " is a mere offer, which the plaintiff had the right to accept or reject, and defendant to retract at anytime before acceptance; but other to a positive agreement. See also Tarbox v. Gotzian, 20 Minn. 139. In Drake v. Vorse, 52 Iowa, 417, where the defendant contracted to purchase from the plaintiff, at a cer- tain fixed price, all of the castings lie should want (luring the year in his when the plaintiff named the quan business, it was held that the con- tract did not preclude him from en- tering into a partnership during the year, and would not become obliga- tory upon the firm. In Burton v. Great Northern Ry. Co., 9 Exch. 507, where an agent agreed to transport all the goods that might be "presented to him" tor that purpose during the year, but the prin- tity which he would take, the con- 1 1 act became complete, and both par- ties were bound by it. In Chicago, etc. Ry. Co. v. Dane, 43 N.Y. 240, where the defendant offered by letterto receive from plaintiff and transport a quantity of iron not to 62 1 a certain number of tons, at a specified rate per ton, and the plaint- iff answered merely assenting to the cipal did not expressly agree to fur- proposal, but did not agree on his nish any goods for transportation, it was held that the agreement was binding upon the agent only, and that the principal might at any time refuse to furnish any goods, and thus practically terminate the agency dur- ing the year without liability. In Rhodes v. Forwood, L R. 1 App. I las. 356, 15 Eng. R.(Moak), 124, where the owner of coal mines appointed agents for the sale of the coal at Liv- erpool for seven years, but did not agree to furnish them any coal to sell during that period, it was held that the owner might sell his mines and terminate the agency, even though the seven years had not ex- pired, without liability to the agents. In Keller v. Ybarru, 3 Cal. 147, it was held that an undertaking by de- part to deliver any iron for such transportation, it was held that there was no valid contract binding on eil her party. In Bryant v. Smith, 87 Mich. 525, 49 X. W. R. 889, the plaintiffs sued defendant for the breach of an agree- ment which was reduced to writing but not signed, under which defend- ant agreed to sell and deliver, and plaintiffs to receive and pay for. five car-loads of wood at a stated price per cord. Defendant further agreed to sell and deliver to plaintiffs as much more of the same kind of wood as they should order at the same price. After delivering eight car-loads, further delivery was re- fused, and plaintiffs were held not to be entitled to recover. 243 § 2G4.] LAW OF SALE. [BOOK I. have absolved himself from the further performance by giving- notice.' " § '261. . But in a very late case in Maryland, 1 the question of the right of the promisor to absolve himself from further performance by giving notice was decided in the negative. In that case defendants had agreed to sell and deliver to the plaintiffs during the month of September from three hundred to five hundred tons of acid phosphate. The phosphate was to be "filled into buyers' bags and delivered to buyers' drays in sellers' factory." Plaintiffs were " to give ample notice of their wants twenty-four hours ahead" and were to pay cash on de- livery. Three hundred tons were delivered and paid for in cash on delivery. The defendants then informed the plaintiffs that they would decline to deliver any more. Plaintiffs denied their right so to decline, and on the '2'2d of September notified defendants of their desire to take the remaining two hundred tons and requested the delivery thereof. Defendants refused to deliver, and suit was brought to recover damages for the breach of the contract. Said the court: " The plaintiffs had an option to make a demand for the delivery of the remaining two hundred tons of phosphate or any portion of it. The plaintiffs were not bound to make a demand for delivery, but if they did so, the defendant had agreed to deliver the article. It seems to be a settled principle that an agreement may be so framed as to leave one party an option, and thus impose no obligation on the other party until the option is exercised so as to create an obligation. 2 In contracts of this nature, when one party has an option, and gives notice that he has exercised it, the effect of such notice is to impose on the other party a binding obligation enforceable at law." 3 As to the effect of the notice of withdrawal of the offer, which was of the essence of the case, the court dispose of it by adopting the rule laid down by the 1 Dambmann v. Rittler, 70 Md. 380, 3 " Such is clearly the doctrine as 14 Am. St, R. 364, 17 Atl. R. 389. expounded by Parke, J., in Chippen- 2 Citing 2 Parsons on Contracts.657; dale v. Thurston, 4 Car. & P. 101." Wolf v. Willetts, 35 111. 88; Jenkins v. Green, 27 Beav. 437. 214 CH. VI.] CONTRACT OF BALE IX GENERAL. [§ 264- United States supreme court, 1 that "the promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance. 1 In Wheeler v. New Brunswick, etc. R. R. Co.. 115 U. S. 29. Im Rational Furnace Co. v. Keystone Mfg. Co., 110 111. 427. where it was that there was no mutuality, the court said: "The undertaking, here, was substantially this: Appel- lant agreed to deliver in car. at Ster- ling, Illinois, all the iron that appellee needed in its business during the then ensuing year, at $22.35 per ton. Appellee, on its part, agreed to take its year's supply of iron of the appel- lant, and pay for the same ton. We do not regard the contract void on the ground stated. It is true that appellee was only bound by the contract to accept of appellant the amount of iron it needed for use in its business; but a reasonable con- struction must be placed upon this part of the contract, in view of the .situation of the parties. Appellee was engaged in a large manufact- uring business, necessarily using a large quantity of iron in the trans- action of its business. It is not to be presumed that appellee would close its business and need no iron, but, on the contrary, a reasonable pre- sumption would be that the business would be continued, and appellee would necessarily need the quantity of iron which it had been in the habit of using during previous years. It cannot be said that appellee was not bound by the contract. It had no right to purchase iron elsewhere for use in its business. If it had done so, appellant might have main- tained an action for a breach of the contract. It was bound by the con- tract to take of appellant, at the price named, its entire supply of iron for the year, — that is, such a quan- tity of iron, in view of the situation and business of appellee, as was rea- sonably required and necessary in its manufacturing busine>s. Such con- tracts are not unusual. A foundry may purchase its supply of coal for the season, of the coal dealer. A hotel may do the same. A city, for the use of the public schools, may engage its supply of coal for the wint«r, at a specified price. Such contracts are not uncommon, and we have never understood that they were void. Smith v. Morse, 20 La. Ann. 220. is a case in point. In this case Smith agreed to furnish Morse all the ice he might require for the use of his hotel for five years, at a certain price. Smith undertook to avoid the contract, on the ground that Morse was not bound, but the court held the contract valid and binding on both parties," In Lee Silver Mining Co. v. Omaha, etc. Smelting Co., 16 Colo. 118, 26 Pac. R. 326, the smelting company addressed a letter to the mining company saying: '"For a period of sis months from date we offer for the product of the Robert E. Lee mine as follows: Up to To ounces per ton. will pay 92 per cent, of New York quotations; 76 to 150 ounces silver per ton, 9'di per cent, of New York quotations: 151 to 250 ounces silver per ton, 9-4 per cent, of New York quotations; 251 ounces up, sil- 245 § 264.] LAW OF SALE. [book I. . . . On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his ac- tion on a breach of it." This process of reasoning seems very ver per ton, 95 per cent, of New York quotations. Deducting seven- teen dollars and fifty cents ($17.50) per ton for working charges. Price of silver based on New York quota- tions on day of settlement. Yours truly, Omaha and Grant S. & R. Co. By Henry Head. This letter was also signed by the mining company as evidence of its acceptance. The mining company delivered to the smelting company all its product for a n amber of months, when it leased its mines to a stranger, who refused to deliver any more ore to the smelt- ing company. In an action by the latter to recover damages, it was urged that there was no mutuality in the contract, but the court held otherwise, saying: "An almost par- allel case to the one under consider- ation, in many respects, was Riggins v. Railroad Co., 73 Mo. 598, growing out of the following memorandum: ' Kansas City, Mo., November 6, 1872. Lead from Baxter to St. Louis at 22+ per 100. All lead shipped by Chap- man & Riggins to be forwarded by M. R. F. S. & G. R. R. at above rates from January 1st, 1873, to January 1st, 1874, and above rates guaranteed for same time. H. J. Hayden, G. F. A., Riggins and Chapman,' — the breach alleged being that the railroad com- pany refused to transport large quan- tities of lead offered by plaintiff at the rates mentioned in the proposi- tion. The same defenses were inter- posed that are here insisted upon in argument, and it was held that, al- though Riggins & Chapman did not agree to ship any definite quantity of lead, they did bind themselves to ship over the road of the company any lead they should ship to St. Louis, and that that was a sufficient consideration for the company's guaranty of rates." In Cherry v. Smith, 3 Humph. (Tenn.) 19, 39 Am. Dec. 150, Smith signed a paper stating: "We agree to ship and forward to D. Cherry . . . a number of barrels of salt, not to exceed one hundred and fifty, when called on, at the rate of fifty cents a bushel. . . ." In an ac- tion by Cherry against Smith for a refusal to deliver the salt, it was urged that the paper was not a con- tract, and if it was there was no mut- uality. But the court said: "As to the first point, we think the paper contains an undertaking on the part of the defendants. They say: 'We agree to ship and forward,' etc., thereby obliging themselves to per- form what they thus agree to do. As to the second point, we think there is mutuality in this contract. The fact that the agreement is op- tional as to one of the parties, and obligatory as to the other, does not destroy its mutuality. If there be a sufficient consideration on both sides it is mutual. Disborough v. Neilson, 3 Johns. Cas. 81 ; Giles v. Bradley, 2 id. 253; Penniman v. Hartshorn, 13 Mass. 91. The stipulation here is, by the one party, that they will deliver the salt when called on, and by the other that he will pay for the salt so delivered at fifty cents per bushel. 2iG OH. VI.] CONTRACT OF SALE — IN GENERAL. [§ 204. much like petitio prinoipiij inasmuch as it appears to assume that a contract as to the two hundred tons existed between the parties, when this was the very question at issue. Much conflict of authority exists, as will be seen from the cases cited in the notes. This constitutes the mutuality. These promises, the one in consideration of the other, are sufficient to make the contract binding. The agreement on the part of Cherry is to pay for the salt at the rate of fifty cents per bushel, and he cannot claim the per- formance of the engagement on the part of the defendants, unless he is ready to fulfill his own as set out in the contract. It cannot, therefore, be regarded as a naked undertaking by one party only; for mutual exec- utory undertakings constitute a suf- ficient consideration. Disborough v. Neilson, 3 Johns. Cas. 81." In Kaufman Bros. & Co. v. Farley Mfg. Co., 78 Iowa. 679, 4:; X. W. R. 612, 16 Am. St. R. 463, it was held that "a contract to furnish a vendee with a certain line of goods for sale in a specified district, with a provision that the goods shall be sent him as he orders them, and as long as he has sale for them, is an agreement on the part of the vendor to furnish the goods as ordered by the vendee, and not only to fill orders taken by him; nor can the vendor terminate the contract at pleasure." In Cooper v. Lansing Wheel Co.. 94 Mich. 272, 54 N. W. R. 39, it was held that " where carriage manufacturers make an order for whatever wheels they may want during a specified season, at prices stated in the order, which is accepted by the orderee, the order and acceptance, when sup- plemented by the filling of one or more orders for wheels, become a valid and binding contract for the entire season." In Sheffield Furnace Co. v. Hull Coal Co., 101 Ala. 446, 14 S. R. 672, it was held that " where an agreement m writing evidences a sale and pur- chase of a certain quantity of coke at a specified price, provided the seller is able to induce coke manu- facturers to build ovens and make a certain portion of the stipulated amount of coke, and provides for no- tice by the seller at various times mentioned as to how much of the en- tire quantity of coke can be supplied during certain specified periods, and recites that the conditions of sale, binding the buyer to take the coke as specified and giving the seller the option to furnish it, are entered into to enable the seller to induce the manufacturers to build sufficient ovens by promising a certain sale of their product at a fixed price, the seller obligating himself to use his best endeavor to accomplish this end. though at the time made such agreement was unilateral, imposing no enforceable obligation on the seller, and therefore not binding on the buyer, when the seller induces the manufacturers to build ovens sufficient in number to produce the requisite quantity of coke, the uni- lateral agreement is converted from a conditional and optional one into a mutually binding contract, impos- ing mutually enforceable obligations on the parties thereto, for the breach of which suit can be maintained." 247 § 2C5.] LAW OF SALE. [BOOK I. III. Of Mistakes in Making the Contract. §265. Mistakes of parties in making the contract. — In order that there may be a contract between the parties it is evident that the parties must agree — they must, as it is so often said, assent to the same thing in the same sense. In a particular case, however, it may be found that, owing to the mistake, misapprehension or ignorance of one or both of the parties, they have not agreed, although, perhaps, they thought they had; and some attention must now be given to the ef- fect which a mistake may have upon the formation of the con- tract, although its general effect upon the repudiation of the contract will be considered later. 1 In Minnesota Lumber Co. v. "White- breast Coal Co., 160 111. 85, 43 N. E. R. 774, 31 L. R. A. 529, it was held that "a contract for its ' requirements ' of coal for a certain season, made by a lumber company, is not void for un- certainty and for want of mutuality, where it is evidently meant to call for the amount of coal which the corporation should need in its busi- ness for such season, and not merely what it might choose to require of the other party." In Wells v. Alexandre. 130 N. Y. 642. 29 N. E. R. 142, 15 L. R. A. 218, it was held that "1. The acceptance of an offer to furnish coal for a year at a certain price to three steamers named, which are then employed on a certain steamship line, makes a definite and binding contract for the amount of coal required to supply them for one year in their ordinary employment. 2. If a notice that coal is needed is requisite to the execu- tion of a contract to supply certain steamers with coal for one year, a covenant to give such notice will be inferred. 3. The sale of steamers after making a contract for the sup- ply of coal to them for one year will not relieve them from the obligation to take the coal which their ordinary and accustomed use required." In Walsh v. Myers, 92 Wis. 397, 66 N. W. R 250, the court said: "By a written contract defendants agreed to take plaintiff's entire output of lye cans, and he was to continue to furnish them as theretofore their 'entire wants for cans,' which were to be not less than ten thousand cans per day. They agreed to keep him supplied with ample material so as to keep his force constantly em- ployed, and the contract was " to con- tinue in force as long as [the defend- ants] use lye cans.' Held, that the contract was not void for want of mutuality." See further, Michigan Stove Co. v. Harris, 81 Fed. R. 928, 27 C. C. A. 6, 54 U. S. App. 137; Shad- bolt, etc. Iron Co. v. Topliff, 85 Wis. 513, 55 N. W. R. 854; Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N. W. R. 536; Staples v. O'Neal, 64 Minn. 27. 65 N. W. R. 1083. 1 See post, $$ 830-844 (Avoidance of Contract for Mistake). 248 CH. VI.] CONTRACT OF SALE IN GENERAL. [§ 200. The mistakes which parties may make are, of course, very numerous; but they will, in the main, fall under one of the following heads: 1. Mistake as to the nature of the transaction. 2. Mistake as to the parties to the transaction. 3. Mistake as to the subject-matter of the transaction. 4. Mistake as to the terms of the transaction. 5. Mistake as to the possibility of performance. Each of these will be briefly considered. §266. Mistake as to the nature of the transaction. — In general, if the parties are mistaken as to the nature of the transaction, no contract of sale is made. If through ignorance or inadvertence, while intending to make a contract of sale they make a contract which in legal effect is a lease, there clearly is no sale and the lease may be avoided. If A says to B, "I will sell you this property for $1,000," and B replies, "I accept your offer to lease me this property for §1,000," there is clearly no agreement. So if A, through the fraud of B or a third person, is induced to make a contract of sale when he supposed he was making a contract of lease, he is not bound, 1 in the absence of negligence or of facts creating an estoppel, even to a bona fide holder. 2 So, also, if A, intending to make a contract of lease to B, as B knows — that being the effect of their negotiation — makes what is in legal effect a contract of sale, as B knows but A does not, A is not bound. But if A makes what is in legal ef- fect a contract of sale to B, when B, who has acted in good faith, expects a contract of sale and supposes that A intends i See Throughgood's Case, 2 Co. R. 9. Sanger v. Dun (1879), 47 Wis. 615, 3 2 See Foster v. Mackinnon (1869). N. W. R. oSS: .Maine Mut. Ins. Co. v. L. R. 4 C. P. 711. Of course, if a Hodgkins (1876), 66 Me. 109. And so, party can read, but does not, and no though he cannot read, if he does artifice or fraud is practiced [as to not ask to have it read to him. which, see Moore v. Copp (1897), 119 Greenfield's Case (18.10), 14 Pa. St. CaL 429, 51 Pac. R. 630], he is bound 489. 496; Waller's Appeal (1883), 103 by the contract he signs. Black v. Pa. St. o94. Wabash Ry. Co. (1884), 111 111 351; 219 § 267.] LAW OF SALE. [book I. to make a contract of sale — that being the apparent result of their negotiation, — A is bound though he may have intended a contract of lease only. §267. Mistake as to identity of party. — Like results may also flow from a mistake as to the identity of one of the parties to the contract. As is said in a recent case, 1 " every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his con- sent. In the familiar phrase of Lord Denman, 2 'you have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract.' " If, therefore, at the time of making the contract, one of the par- ties supposed the other to be another than he was, as the latter knew or had reason to believe, there is a mistake as to a ma- terial fact and hence no sale. 3 Thus if A orders goods of B, C, though he is B's successor in business, cannot fill the order without A's consent, and if be does A is not bound. 4 But 1 Mr. Justice Gray, in Arkansas Smelting Co. v. Belclen Mining Co., 127 U. S. 379, citing Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305, 93 Am. Dec. 93; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. R. 9; King v. Batter- son, 13 R. I. 117, 120, 43 Am. R. 13; Lansden v. McCarthy, 45 Mo. 106. 2 In Humble v. Hunter, supra. 3 Where the vendor in an executory contract for the future sale and de- livery of ice is led to believe by the person who negotiates the contract on behalf of the vendee that he is acting for a particular firm, when he really was acting for a, corpora- tion of the same name, of the exist- ence of which the vendor was igno- rant, " there was no contract, and in case ice had been delivered under it without knowledge of the facts, title to the ice would not have passed to the plaintiff." Consumers' Ice Co. v. Webster (1898), 32 N. Y. App. Div. 592. 4 Boulton v. Jones, 2 Hurl. & Nor. 564, furnishes an illustration of the principle. There the defendants, who had been in the habit of dealing with B., sent a written order for goods di- rected to B. The plaintiff, who on the same day had bought B.'s busi- ness, filled the order without giving the defendants any notice that the goods were not supplied to B. Upon the plaintiff's rendering his account to defendants they disclaimed all transactions with him and he brought an action for the price of the goods, but was held not to be entitled to re- cover. Martin, B., said: " This is not a case of principal and agent. If there was any contract at all, it was not with the plaintiff. If a man goes to a shop and makes a contract, in- tending it to be with one particular person, no other person can convert 250 CII. VI.] CONTRACT OF SALE IN GENERAL. [§ 2<» where A begins negotiations for a purchase with B, supposing that he is dealing with C, but before the negotiations are com- pleted is informed of the mistake and completes the purchase, he is bound and cannot afterwards set up the mistake to defeat that into a contract with him." To like effect: Randolph Iron Co. v. El- liott (1869), 34 N. J. L. 184. Lansden v. Mo) arty, 45 Mo. 10G, is also to the same effect. Thei - e de- fendant had entered into a contract with B. & K. to supply their hotel witli meat for a period of one year at a certain rate per pound, payment to be made at the expiration of each month for the meat furnished during that month. During the year B. & K. sold out to plaintiff and assigned to him their meal contract with defend- ant. Plaintiff notified defendant of the assignment and demanded the further performance of the contract to himself, offering upon hi-; part to perform all of the covenants of his assignors. The defendant refused to continue to furnish the meat and the plaintiff brought an action against him, but was not permitted to re- cover. "The defendant,'" said the court, " may have been willing to deliver his meats in advance of pay- ment by reason of the confidence ii<- reposed in the credit and solvency of the parties with whom he originally contracted The readiness and offer of the plaintiffs to pledge themselves to a faithful performance of the stip- ulations of the contract obligatory upon their assignors is not to the pur- pose. It does not meet the exigency of the case. The question presented was one of personal trust and confi- dence, which it was the right of the defendant to decide for himself." Boston Ice Co. v. Potter, 123 Mass. 28, 85 Am. R. 9, furnishes another illustration. Here the defendant had made a contract with the Citizens' Ice Co. to supply him with ice. With- out his knowledge the Citizens' Ice Co. sold its business to the plaintiff, with the privilege of supplying ice to all its customers, and the plaintiff furn isl ied ice tothe defendant's house for more than a year before he was notified of the change. Defendant had formerly purchased ice of the plaintiff company, but had been dis- satisfied with its performance and had terminated his contract with the plaintiff at the time of making the contract with the Citizens' Ice Co. Plaintiff sued to recover for the ice so furnished, but it was held that it had no cause of action. Endicott, J., said: "A party has a right to select and determine with whom he will contract and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or quality of an individual, or has, as in this case, reasons why he does not wish to deal with a par- ticular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant, before receiving the ice, or during its delivery, had received notice of the change, and that the Citizens' Ice Co. could no longer rjerform its contract with him, 251 § 268.] LAW OF SALE. [BOOK I. his liability.' A sale would not be void, however, but voidable merely, where goods are actually sold to A, though the sale was procured by his false representation that he is D. 2 § 268. Undisclosed principal. — So "it is true that an agent may sell the property of his principal without disclosing the fact that he acts as an agent, or that the property is not his own, and the principal may maintain an action in his own name to recover the price. If the purchaser says nothing on the subject, he is liable to the unknown principal." 3 But the it would then have been his un- doubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do, because the plaintiff failed to inform him of that which he had a right to know. If he had received notice and continued to take the ice as delivered, a con- tract would be implied." Arkansas Smelting Co. v. Belden Mining Co., 127 U. S. 379, furnishes a late illustration of the rule. In this case defendant had contracted with Billing & Eilers to furnish to them at their smelting works ten thou- sand tons of lead ore in certain amounts daily, upon the understand- ing that the ore should, upon deliv- ery, become the property of Billing & Eilers, and should afterwards be paid for at current New York quo- tations, in one hundred-ton lots, ac- cording to an assay of each lot, w T ith a further provision for arbitration in case the parties could not agree upon the assay. After part of the ore had been delivered, Billing & Eilers dissolved partnership, and all rights in the business and in the con- tract for ore were transferred to Billing, and defendant continued, after notice of the dissolution, to furnish ore to him under the con- tract. Soon afterwards, and while nearly nine thousand tons remained undelivered. Billing sold all of his interest in the works and in the ore contract to the plaintiff company, of which sale defendant had notice. Thereupon defendant ceased to de- liver ore under the contract, and gave plaintiff notice that it consid- ered the contract canceled and an- nulled. Plaintiff, alleging its ability and willingness to carry out the con- tract on its part, brought an action for damages. The circuit court sus- tained a demurrer to the complaint, and upon appeal to the United States Supreme Court the judgment was af- firmed. " During the time that must elapse between the delivery of the ore and the ascertainment and pay- ment of the price," said Mr. Justice Gray, "the defendant has no secu- rity for its payment except in the character and solvency of Billing & Eilers. The defendant, therefore, could not be compelled to accept the liability of any other person or cor- poration as a substitute for the lia- bility of those with whom it had contracted." 1 Mudge v. Oliver, 1 Allen (Mass.). 74 2 Edmunds v. Merchants' Desp. Transp. Co., 135 Mass. 283. 3 Huntington v. Knox, 7 Gush. (Mass.) 371; Winchester v. Howard, 232 CH. VI.] CONTRACT OF SALE — IN GENERAL. [§ 209. other party ma} 7 expressly exclude negotiations with the prin- cipal and confine them to the agent personally, and where he does so the principal cannot intervene. 1 So, on the other hand, where one is really buying goods for himself, the seller cannot hold a third person responsible who subsequently buys the goods from the first purchaser because he supposed that the latter was only the agent of such third person. 2 s -:w. Assumed agent. — "Where an assumed agent has no authority to bind and does not bind his alleged principal, there is, of course, no sale. 3 Neither is there any sale where one, by falsely representing himself to be the agent of a named or an unnamed principal, procures goods on the credit of such principal ; ' and the vendor may maintain replevin for his goods or recover their value in trover even from the honajide pledgee 5 97 Mass. 303, 93 Am. Dec. 93. This would, of coarse, be subject to de- fenses against the agent. See Mecbem <>n Agency, § 773; Baxter v. Sherman (1898), 73 Mum. 434, 76 N. W. K. 311, 72 Am. St. R. 681; Bel- field v. National Supply Co. (1899), 189 Pa St. 189, 42 Atl. R. 131, 69 Am. St. H. 799. 1 Winchester v. Howard, supra. -Stoddard v.Ham, 139 Mass. 383, 37 Am. R. 369, distinguishing Boston Ice Co. v. Potter, 123 Mass. 28. 23 Am. K. 9; Ilardman v. Booth, 1 H. & C. 803: and Mitchell v. La Page, Holts N. P. 253. 3 J. S., who pretended to represent B. & Co., called upon D. and con- tracted with him for wool to be con- signed to B. & Co. at Pittsburgh, to be paid for when D. should call. J. S. also called upon B. & Co., pretended to be the son of D., and contracted to sell them wool. The wool was shipped by D.. consigned to B. & Co., but was recei% T ed by J. S., who de- livered it to B. & Co. and received the pay for it. In an action of re- plevin by D. against B. & Co. it was held that D.'s titlt.> was not divested and that he could recover. Barker v. Dinsmore (1872), 72 Pa. St. 427. 13 Am. R. (597. Compare with McGold- rick v. Willits (1873), 52 X. Y. 612. 4 If A., representing himself to be a brother of a reputable merchant, buying for him, buys, in person, goods of another, the property in the goods does not pass to A., and the seller may recover them from a car- rier to whom A. has delivered them for carriage. Aborn v. Merchants' Despatch Transportation Co., 135 Mass. 283. 5 The plaintiff refusing to sell goods to C, a broker, delivered them to him on his representation that they were for an undisclosed principal in good credit, and entered and billed them as on a sale to C. It turning out that there was no such principal, held, that the plaintiff might maintain re- plevin for the goods from the de- fendant, who was C.'s bona fide pledgee. Rodliff v. Dallinger, 141 Ma—. 1, 55 Am. R. 439. "It was ad- 253 §§ 270, 271.] LAW OF SALE. [boos I. or vendee l of the assumed agent, there being not even a de facto contract between the latter and the true owner. § 270. Mistake regarding the tiling sold. — Failure to con- tract may also result from mistake regarding the thing Bold. This mistake may be that of both parties or of one only; and it may be respecting its existence, location or character. Some- what different results may follow in these several c;ises. § 271. Existence of thing sold.— If, contrary to the belief of both parties, the thing contracted for never had any existence, or it had ceased to exist, as if the horse supposed to be alive in the vendor's stable had suddenly died before the mitted," said the court, "that Clem- entson (C.) in fact was not acting for such an undisclosed principal; and it follows that if the plaintiff's evi- dence was believed there was no sale. There could not be one to this sup- posed principal, because there was no such person, and there was not one to Clementson. because none pur- ported to be made to him, but, on the contrary, such a sale was ex- pressly refused and excluded." Cit- ing Edmunds v. Merchants' Despatch Transportation Co., 135 Mass. 283. 1 H., relying on the representations of R. that he was the agent of L. & Co., agreed to sell goods to L. & Co. on credit, delivered them to L. & Co. and received part of the price from R. R. was not the agent of L. & Co., and had no authority to purchase for L. & Co., and the latter bought the goods from R., without any knowl- edge of the fraud R. was practicing on H. Held, that the title did not pass and that H. could recover their value from L. & Co. less the amount paid by R. Ha met v. Letcher, 37 Ohio St. 336, 41 Am. R 519. Said the court: "This, therefore, was not a contract voidable merely, but an agreement wholly void; and under the circumstances the pi-operty in the hogs never passed from Hamet. Hence, applying the maxim that no one can transfer a greater right or better title than he himself possesses (Roland v. Gundy, 5 Ohio, 202), it necessarily follows that Letcher & Co. are liable as for a conversion." Citing Moody v. Blake, 117 Mass. 23; Barker v. Dinsmore, 72 Pa. St. 427, 13 Am. R. 697; Saltus v. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541; Fawcett v. Osborn, 32 111. 411; Hard- man v. Booth, 1 H. & C. 803; Higgons v. Burton. 26 L. J. Ex. 342; Kings- ford v. Merry. 1 H. & N. 503: Hollins v. Fowler, L. R. 7 Q. B. 616; affirmed, L. R. 7 H. L. 757; In re Reed, 3 Ch. Div. 123; Lickbarrow v. Mason, 1 Smith L. C. 388; Cundy v. Lindsay, L. R. 3 App. Cas. 459. Stoddard v. Ham, 129 Mass. 383, 37 Am. R. 369; Dean v. Yates, 22 Ohio St. 388, and Sanders v. Keber, 28 Ohio St, 630, were also cited and reconciled. 254 OH. VI.] CONTRACT OF SALE — IN GENERAL. [§ 2 < 2 - negotiations were completed, there would clearly be no sale, 1 as both parties contemplate the sale of a living and not a dead horse. The same result would doubtless ensue if one of the parties had secret knowledge of the death which he concealed from the other. §272. Identity of tiling sold.— Xo contract of sale obviously can result if the parties are not agreed as to the iden- tity of the thing sold. If A says to 13: "1 will sell you my black horse for one hundred dollars;" and B replies: "I ac- cept your offer to sell me your white horse for one hundred dollars," there is clearly no agreement; and though the nego- tiations may not take this simple and specific form, if A sup- 3 he is selling one thing while B supposes he is buying another, no sale results. 2 iSee Thomas v. Knowles (1879), 128 Mass. 22. SKyle v. Kavanagh (1809), 103 Mass. 356, -1 Am. K. 560; Stong v. L896), 66 Minn. 94, 68 X. W. R. Where a certain number of barrels of No. 1 mackerel are sold, and by mistake some barrels of No. '■'> mack- erel and some barrels of salt are de- liv.nd.no title to the articles thus delivered by mistake passes to the purchaser. Gardner v. Lane, 9 Allen. 492, 85 Am. Dec. 779. The delivery of a ten-dollar gold piece by mistake instead of a fifty-cent piece conveys no title to the gold piece. Chapman v. Cole, 12 Gray (Mass.), 111. 71 Am. Dec. 739. Damaged flour was offered for sale at auction, divided into two classes. One class, slightly damaged, was of- fered by the barrel, in the barrels in which it was originally packed. The other, much damaged, had bni re- packed, and was offered by the pound as repacked flour or " dough." The sale took place in an auction room; the flour was in the street outside. After the auctioneer had sold, as he thought, all of the fust class, he of- fered i->r sale tin- Becond class, stat- ing the difference between the two cla-ses. The plaintiff , who was the highest bidder, selected bytheirnum- bers two rows of barrels as the flour he would take. These rows were made up of barrels of flour of the first .lass, accidentally mi-place. I with- out the knowledge of the owner or auctioneer. Held, there had been no sale, as the minds of th parties had not met as to the subject-matter of the sale. Harvey v. Harris, 112 Mass. 32. The purchaser at an auction sale by catalogue, wherein the parcels are numbered, is entitled upon his bid only to the parcel put up by the auctioneer by its number, though through mistake a parcel of another number is exhibited to the bidders. Where the auctioneer put up for sale parcel No. 24 and ( '. bid thereon, sup- posing No. 25 to be offered, and the parcel was struck off to him, held, that neither parcel was sold, but the 255 §§ 273, 274.] LAW OF SALE. [book I. 273. Unknown article contained or concealed in thing sold. — Allied to the cases considered in the preceding section are those in which the thing sold contains or has at- tached to or concealed in it some article of whose presence the vendor was ignorant. Thus the sale of a coat passes no title to a pocket-book which may happen to be temporarily deposited therein; the sale of a safe or a chest of drawers passes no title to the deposits contained therein; and the sale of a machine conveys no title to money and valuables which the former owner had concealed within it. 1 § 274. Mistake as to quantity. — Mistakes as to quan- tity may readily occur. If the quantity is open to inspection, one party could not ordinarily escape, in the absence of artifice, title to each remained unchanged. Sheldon v. Capron, 3 R. I. 171. A sale was of ten tons of sound merchantable hemp, but it was in- tended by the vendor to sell St. Pe- tersburg hemp, and by the buyer to purchase Riga Rhine hemp, a supe- rior article. The broker had made a mistake in describing the hemp to the buyer, and the court held that there had been no contract whatever, the assent of the parties not having really existed as to the same subject- matter of sale. Thornton v. Kemp- ster, 5 Taunt. 786. A contract was made for the sale of "one hundred and twenty-five bales of Surat cotton, guaranteed middling fair merchants' Dhollerah, to arrive ex Peerless from Bombay," and the defendant pleaded to an ac- tion against him for not accepting the goods on arrival, that the cotton which he intended to buy was cotton on another ship Peerless, which sailed from Bombay in October, not that which arrived in a ship Peerless that sailed in December, the latter being the cotton that plaintiff had offered to deliver. On demurrer, held, that on this state of facts there was no consensus ad idem, no contract at all between the parties. Raffles v. Wichelhaus, 2 H. & C. 900. 1 Huthmacher v. Harris, 38 Pa. St, 491, 80 Am. Dec. 502; Durfee v. Jones, 11 R. I. 588, 23 Am. R 528; Merry v. Green, 7 Mees. & W. 623; Bowen v. Sullivan, 62 Ind. 281, 30 Am. R 172; Ray v. Light, 34 Ark. 421. The owner of a tannery sold it, and accidentally omitted to remove a few hides from the vats. More than twenty years afterwards a laborer, working for a subsequent grantee, found them. Held, that he got no title to them, as they were neither lost, abandoned, derelict nor treasure trove, but belonged to the original owner or his representatives. Livermore v. White, 74 Me. 452, 43 Am. R. 600. A bought an old safe, and after- wards offered to sell it to B, who de- clined to purchase. It was then left with B to sell, with the privilege of using it until sold. B found secreted in it a roll of bills belonging to some 256 OH. VI.] CONTRACT OF SALE IN GENEEAL. [§ 274. contrivance or unequal footing, because the quantity was dif- ferent from what he supposed it to be. But if both parties were alike mistaken, 1 or if the quantity was not open to in- spection and one party is in error as to the quantity proposed, there is no meeting of the minds. 2 person unknown, whereupon A de- manded the money and also the safe and its cimtents as when B received it. B returned the safe but kept the money. Held, as between A and B, that B was entitled to retain the money as finder, it being conceded thai A by his purchase of the safe acquired no title to the money. Dur- fee v. Jones, 11 R. I. 588, 23 Am. R. 538 A girl assorting paper rags in a paper mill found a Dumber of bank hills in a clean, unmarked envelope, among the ra^s. Ibid, tint as against the proprietor of the mills she was entitled to them, as under, the purchase of the rags not carry- ing with it the title to the hills. U. .w.n v. Sullivan. 02 Ind. 281, 30 Am. R. 172. i In Wheadon v. Ohls 1 1 B Wend. (N. Y.) 174, the contract was for the sale of a quantity of oats sup- posed to contain from one thousand six hundred to two thousand bushels. The oats were to be delivered from a storehouse into a canal boat; as the delivery proceeded tallies were kept, an 1 after the tallies amounted to five hundred, it was proposed to guess at the whole quantity by comparing the amount gone into the boat with that yet remaining, and it was finally agreed that there were one thousand nine hundred bushels, for which amount the buyer paid. Afterwards when the oats were measured out there were found to be but one thousand four hundred and eighty- eight bushels, and then it was dis- covered that both parties were in error as to the tallies: they were of half bushels, instead of bushels, as the parties supposed. It appeared also that the buyer had said, while they were agreeing upon the quan- tity, that lie would take the oats at one thousand nine hundred bushels, " hit or miss: " hut it was held that there was such mistake that the buyer could recover for the differ- ence het ween the actual and the es- timated quantity. So, where the parties were negotiating for the sale of a ton of hay. and. to avoid the trouble of weighing it. measured at a rate which they mistakenly esti- mated would constitute a ton, but which really made but little more than half a ton. it was held that there was such mistake as to justify a recovery of the excess in prices paid. Scott v. Warner 1 1870), '3 Lans. i X. Y. i I'.i. And to the same effect is Cox v. Prentice (1815), 3 Maule & Sel. 344, where the parties sold a bar of silver and paid for it on the basis of the aasayer's estimate, which was proved to be incorrect. 2 In Hartford & N. H. R. Co. v. Jackson (1856), 24 Conn. 514, 63 Am. Dec. 177. it appeared that defend- ants applied to the agent of the car- rier for a rate for transportation of a quantity of laths. The agent asked how many there would be. Defend- ants turned to a companion, who said he thought there would be five hundred bundles. The agent claimed 17 257 § 275.] LAW OF SALE. [BOOK I. On the other hand, where one submits a plain and unam- biguous order for goods to a manufacturer which is accepted, the person ordering cannot be relieved because he ordered more goods than he thought he was ordering. 1 275. Mistake as to kind, quality or character. — Mistakes as to kind, qualit c y or character are not so easily dis- posed of. A mistake as to kind may be so great as really to amount to a mistake as to identity; and, if it is the mistake of both parties, will prevent agreement, and if the mistake of one, going to the substance of the contract, will justify him in re- fusing to execute the attempted agreement, or in repudiating it if*executed. that he understood him to say one hundred bundles, and made a rate for that quantity. When the laths were delivered to the carrier the agent discovered the mistake, and tried to communicate with the de- fendants, but did not succeed in find- ing them. He therefore forwarded the whole quantity, and the action was to recover the usual rate of sur- plus. Held, that if the parties did not assent to the same thing in the same sense, there was no contract, and that whether they did so assent was a question of fact for the jury. > In Coates v. Early (1895), 46 S. C. 220, 24 S. E. R. 305, it appeared that Coates & Sons had solicited from Early an order for "needle-cards." They sent him a sample card and a printed blank for the order. Each needle-card contained thirty-two nepdles. Early filled out an order on the blank for five thousand needle- cards as described, with his adver- tisement printed on each card. The needle-cards were duly supplied, printed as directed, but Early re- fused to receive them because, as he contended, he thought he was order- ing five thousand needles, and not five thousand cards of thirty-two needles each. But the court held that as the order was clear and un- ambiguous, and as the plaintiffs were in no way responsible for the mistake or conscious of it, Early was bound. Avoidance of contract for mis- take.— In Sherwood v. Walker, 66 Mich. 568, 11 Am. St. R. 531, Morse, J., says: "It must be considered as well settled that a party who has given an apparent consent to a contract of sale may refuse to execute it, or he may avoid it after it has been completed, if the assent was founded, or the con- tract made, upon the mistake of a material fact, such as the subject- matter of the sale, the price, or some collateral fact materially inducing the agreement; and this can be done when the mistake is mutual." Citing Benjamin on Sale, sees. 605, 606: Leake on Contracts, 339; Story on Sales (4th ed.), sees. 148, 377; Cutts v. Guild, 57 N. Y. 229; Harvey v. Harris, 112 Mass. 32; Gardner v. Lane, 9 Allen (Mass.), 492, 85 Am. Dec. 779, 12 Allen, 44; Huthmacher v. Harris, 258 CII. VI.] CONTRACT OF SALB IN GENERAL. [§ 276. But, in order that the mistake of one party shall have this effect, it must be a mistake as to a fact which is of the very essence of the contract, and not as to some collateral thing which does not affect the substance of the whole consideration. As is said in a late case, 1 " the mistake must be one which af- fects the existence or identity of the thing sold. Any mistake as to value or quality, or other collateral attributes, is not suf- ficient if the thing delivered is existent, and is the identical thins in kind which was sold." In another case 2 the rule is stated thus: "If there is a difference or misapprehension as to the substance of the thing bargained for, if the thing actually delivered or received is different in substance from the thing bargained for and intended to be sold, then there is no con- tract; but if it be only a difference in some quality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both of them, yet the contract remains binding." " The difficulty in every case is to deter- mine whether the mistake or misapprehension is as to the sub- stance of the matter, or only to some point, even though a material point, an error as to which does not affect the sub- stance of the whole consideration." 3 § 276. . On the ground that there was such an essential mistake in regard to the kind of article dealt with, it was held that, where both parties believed a cow contracted for was not a breeder, and was therefore valuable only for beef, when in fact she was a breeder and really worth ten to twelve times the price agreed upon, the seller might repudiate the contract and refuse to surrender the cow. 4 So it is a material mistake * 38 Pa. St. 491, 80 Am. Dec-, 502; Byers 2 Sherwood v. Walker, 6G Mich. 568, v. Chapin. 28 Ohio St. 300; Gibson v. 11 Am. St. R. 531. Pelkie, 37 Mich. 380; Allen v. Ham- 3 Kennedy v. Panama, etc. Mail mond, 11 Pet. (U. S.) 63. Co., L. R. 2 Q. B. 580, 588. 1 Hecht v. Batcheller, 147 Mass. 335, * Sherwood v. Walker (1887), 66 9 Am. St. R. 708, citing Gardner v. Mich. 568, 33 N. W. R. 919, 11 Am. Lane, siqwa; Spurr v. Benedict, 99 St. R. 531. "It seems to me." said Mass. 463; Bridgewater Iron Co. v. Morse, J., writing for the majority Enterprise Ins. Co., 134 Mass. 433. of the court, "that the mistake or 259 § 276.] LAW OF SALE. [book I. where the parties deal upon the understanding that the seller has the title to the goods and may lawfully convey it, whereas- in fact he had no title. 1 Upon the other hand, it was held that there was no such mistake as would defeat the contract where, without any fraud or unfairness, a woman sold to a jeweler for $1 a stone which both supposed to be a topaz or some other curious speci- men, but which proved to be a diamond worth $1,000. 2 Nor misapprehension of the parties went to the whole substance of the agree- ment. If the cow was a breeder she was worth at least $750; if barren, she was worth not over $80. The parties would not have made the contract of sale except upon the un- derstanding and belief that she was incapable of breeding, and of no use as a cow. It is true she is now the identical animal that they thought her to be when the contract was made; there is no mistake as to the identity of the creature. Yet the mistake was not of the mere quality of the animal, but went to the very nature of the thing. A barren cow is substantially a different creature than a breeding one. There is as much difference between them for all purposes of use as there is be- tween an ox and a cow that is ca- pable of breeding and giving milk. If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it ought have been a good sale; but the mistake affected the character of the animal for all time, and for her present and ultimate use. She was not in fact the animal, or the kind of animal, the defendants in- tended to sell or the plaintiff to buy. She was not a barren cow, and, if this fact had been known, there would have been no contract. The mistake affected the substance of the whole consideration, and it must be considered that there was no con- tract to sell or sale of the cow as she actually was. The thing sold and bought had in fact no existence. She was sold as a beef creature would be sold; she is in fact a breeding cow and a valuable one." In Newell v. Smith (1885), 53 Conn. 72, plaintiff had sold defendant a cow for which he was to pay $100 if she was with calf, and $40 if she was not. Six months later, both parties con- cluded that she was not with calf, and settled on that basis. She proved to be with calf, and it was held that plaintiff could recover the remain- ing $60. 1 Varnum v. Highgate (1892), 65 Vt. 416, 26 Atl. R. 628. 2 Wood v. Boynton (1885), 64 Wis. 265, 25 N. W. R. 42, 54 Am. R. 610. So a contract for the sale of a horse known by both parties to be sick, but no warranty being given, cannot be afterwards repudiated because the purchasers discover that the horse is sicker than they thought it was. " Such an error or mistake as that in no manner affects the validity of the contract. In a case where there is a mutual mistake of the parties as to the subject-matter of the contract, or the price or terms, going to show the want of a consensus ad idem. 260 CH. VI.] CONTRACT OF SALE IX GENERAL. [§ 277. is there where a promissory note was sold, both parties suppos- ing the makers to be doing business as usual, though in fact the makers, two hours before the sale, had made a general assign- ment of all their property for the benefit of creditors. 1 § 277. Mistake as to location. — A mistake as to the location of the property may be so material, within the mean- without which no contract can arise, such a defense may be made. But here the mistake of the defendants was in relation to a fact wholly col- lateral, and not affecting the essence of the contract itself. The vendees cannot escape from the obligation of their contract because they have been mistaken or disappointed in the quality of the article purchased. In the absence of a warranty the prin- ciple of caveat emptor applies, and the buyer takes the risk of quality upon himself." Wheat v. Cross (1869), 31 Md. 99, 1 Am. R 28. •iHecht v. Batcheller (1888), 147 Mass. 335, 17 N. E. R 651. 9 Am. St. R. 708. "The note delivered," said the court, " was the same note which the parties bought and sold. They may both have understood that the mak- ers were solvent, whereas they were insolvent; but such a mistake or mis- apprehension affects the value of the note, and not its identity. . » . The makers of the note had made an assignment for the benefit of their creditors, but this did not extinguish the note or destroy its identity. It remained an existing note, capable of being enforced with every essen- tial attribute going to its nature as a note which it had before. Its quality and value were impaired, but not its identity. The parties bought and sold what they intended, and their mistake was not as to the sub- ject-matter of the sale, but as to its quality.'' The same result was reached in Sample v. Bridgforth (1894), 72 Miss. 293, 16 S. R 876, where the parties to the sale and purchase of a note mis- takenly supposed it was secured by a first mortgage, but this was held to be a mistake as to a collateral point which affected value only and not identity. But where one sells promissory notes at less than their face, repre- senting them to be business papers when in fact they are accommoda- tion notes, and thus usurious and void in the hands of the vendee, the latter may rescind the contract and recover back the purchase-money al- though there be no fraud or war- ranty. Said the court: "It is a gen- eral rule that upon the sale and delivery of personal property with- out fraud or warranty, no action will lie against the vendor to recover damages for any defects which may exist; and this rule applies when the article differs from the representa- tions of the seller as to quality, un- less such representations were fraudu- lent. But when the thing sold differs in substance from what the pur- chaser was led by the vendor to be- lieve he was buying, and the differ- ence in subject-matter is so substan- tial and essential in character as to amount to a failure of consideration, there is no contract, and the pur- chaser may recover back the money paid." Webb v. Odell (1872), 49 N. Y. 583. 261 § 278.] LAW OF SALE. [book I. ing of the rules just referred to, that it will prevent the for- mation of the contract. Thus where both parties, negotiating at Burlington, Vermont, supposed the property to be in the custody of a storekeeper at Whitehall, where the buyer desired to receive it, when in fact it had been forwarded to Boston and there commingled with the goods of a commission mer- chant, it was held that the mistake was so material that, if the fact had been known, the contract would not have been en- tered into, and therefore that no title passed. 1 §278. Mistake as to terms of contract — Price. — There may also be mistake as to the terms of the contract. The mis- take most commonly made, perhaps, is in reference to the price. If the parties are mutually mistaken, as where 'an offer of a certain price for shingles was understood by the seller to be so much per bunch and by the buyer to be so much per thou- sand — a material difference, — it was held that there was no contract 2 So where one party alone is in error, but the other 1 Ketchum v. Catlin (1849), 21 Vt. 191. "If a contract," it was said, " is made in mutual error of material facts which have induced the con- tract, it is invalid and may be set aside. This is upon the principle, mainly, that when the parties are under a mutual mistake as to mate- rial facts, affecting the subject-mat- ter of the contract, there is a want of a binding assent, and we think a contract so made may be avoided in a court of law." To like effect: Be- dell v. Wilder (1892), 65 Vt. 406, 26 Atl. R. 589, 36 Am. St. R 871. 2 Greene v. Bateman (1846), 2 Woodb. & M. 359, Fed. Cas. No. 5762. Where the owner of a mare asked $165 for her, and the purchaser un- derstood the price asked to be $65, and took her home with him and re- fused to pay more than the latter named sum, there being a clear mis- understanding between the parties, it was held that there was no sale, and consequently no title passed. Rupley v. Daggett (1874), 74 111. 351. And so in Rovegno v. Defferari (1871), 40 Cal. 459, where the seller understood that he was selling at one price while the buyer understood that he was buying at a different price. To like effect, also, in Phil- lips v. Bistolli, 2 B. & Cr. 511, where a foreigner, not familiar with English, supposed he was buying an article at auction at forty-eight guineas while the auctioneer understood the bid to be eighty-eight guineas. So in Hogue v. Mackey (1890), 44 Kan. 277, 24 Pac. R. 477, where one of the parties undei-stood that the in- stalments of the price were to be paid at intervals of thirty days, and the other understood the interval to be ninety days, there was held to be no sale. 262 CII< vi.] CONTRACT OF SALE — IN GENERAL. [§ 279. is aware of it and "snaps at an offer which he perfectly well knows to be made by mistake," there is no contract. 1 But where one party is in error, while the other is ignorant of it — as where a party who makes an offer has made an error in his calculations upon which the offer was based, and the other ac- cepts in good faith and the contract is completed,— the con- tract cannot be defeated. 3 § 279. Mistake as to possibility of performance.— The gen- eral question of the effect of impossibility as an excuse for the non-performance of the contract will be considered in later sections ; 3 but there may arise such aspects of it as are germane to the present discussion. It must be assumed, ordinarily, that the parties to a contract contemplate its performance, and that they believe it possible to perform it according to its terms. Hence, if, through mutual error as to facts, they stipulate for things impossible of accomplishment, or if in a contract of sale of machinery, for example, they fix a standard of performance which it is impossible to realize, "the contract which they in- tended to establish on that foundation falls when the founda- tion itself is discovered to have no existence." * iHarran v. Foley (1885), 62 Wis. *In Nordyke & Marmon Co. v. 584 22NW.R. 837, where the seller Kehlor (1900), 155 Mo. 643, 56 S. W. intended to offer cattle for $261.50, R 287, the parties stipulated that but by slip of tongue said $161.50, milling machinery should be capable and the buyer having good reason to of producing a certain quantity ot believe that it was a mistake imme- flour "fully equal in quality to the diately made a payment to bind the best fifty-five per cent, that Kelly & bargain, and claimed the cattla Lysle can make in their mill. Both (Webster v. Cecil, 30 Beav. 62, and parties supposed that the mill ot Tamplin v. James, L, R 15 Ch. Div. Kelly & Lysle produced flour of the 221, were cited.) To like effect; Shel- grade specified, but it in fact did ton v. Ellis (1883), 70 Ga. 297. not and could not without change. 2 Griffin v O'Neil (1892), 48 Kan. It was held that, on the discovery ot 117 29 Pac. R. 143. the facts, the seller was justified in 3 See post, §§ 830-844 abandoning the undertaking. 263 CHAPTER TIL OF THE CONTRACT OF SALE UNDER THE STATUTE OF FRAUDa § 280. Purpose of this chapter. 281. Sales prior to the statute. I. The Statute. 282, 283. The seventeenth section of the statute of frauds. 284. English sale of goods art. 285-290. Statutes in United States. 291. General effect of the statutes. IL What are Contracts for the Sale op Goods, Wares and Merchandise. 292. Importance of this question. 1. Executory Contracts. 293. Statute applies to executory- contracts. 2. Contracts of Sale or Manufacture. 294. Statute applies only to con- tracts of sale and not for manufacture. 295-297. English cases — Immedi- ate sale as the test. 298, 299. Impossibility of pres- ent delivery as the test — Goods not in existence. 300. Work on one's own ma- terials as the test. 301. Whether work or mate- rials is the essence of the contract, as the test. 302. 303. The present English test. 304, 305. American cases — The rule in New York. 306, 307. The rule in Massa- chusetts. § 308-310. The rule in Vermont, Oregon, Washington and Michigan, 311-313. The rule in Maine and New I [ampshire. 314, 315. The rule in Wiscon- sin and California 316. The rule in New Jersey. 317. The rule in New Mexico. 318. The rule in Colorado. 319. The rule in Minnesota. 320. The rule in Missouri. 321. 322. The rule in Georgia. 323. The rule in Maryland. 324, 325. The rule in Iowa, 326. The true rule. 3. Auction Sale. 327. Auction sales within the stat- ute. 328. Contracts of barter or ex- change within the statute. III. What are Goods, Wares and Merchandise. 329. English rule includes only corporeal movable property. Rule in United States more comprehensive. What included — Stocks — Notes — Inventions. 332-335. Fixtures. 330. 331. 36-339. Growing trees. 340-344. Growing crops. 345. Crops to be raised. 346. Uncut ice. 347. Minerals. 264 CH, VIT.] CONTRACT UNDER STATUTE OF FRAUDS. IV. Of the Price or Value. § 348. Operation of the statute. 349,350. Sale of several articles aggregating more than the limit. 851 Sale of various articles at auc- tion. Soi. How when amount uncertain at time of sale. V. Of AcceptaX'T. and Receipt. 853. What the statute requires. 854 Delivery, acceptance and act- ual receipt required. 1. Of Delivery by the Seller. 855. Necessity of delivery. Delivery alone not enough. 2. Of Acceptance by the Buyt r. 857. Acceptance must be shown. 338. Must be voluntary and unconditional 359. No acceptance while awaiting test or opportu- nity for examination. 300,361. Acceptance may be im- plied. 362. When acceptance must occur. 363. Who may accept — Agent 361 Tenant in common. 365. Carrier. 366. Administrator. 367. That buyer ought to accept, not enough. 368,370. Whether acceptance must be final and conclusive. 371. Acceptance of unfinished article. 372. Burden of proof as to accept- ance. 373. Question for the jury. 371 Right of seller to retract be- fore acceptance. 3. Of Receipt by the Buyer. 375. Necessity of receipt. 376. Nature of receipt required. 377. Fact that title would have passed not enough. 378, 379. Constructive delivery and receipt. 330, 381. What sufficient 382,383. Mere words do not con- stitute delivery and receipt. 384,385. Delivery and receipt where goods still remain in seller's possession. 386. Goods remaining in sell- er's possession as seller. 387,388. Delivery and receipt where goods are in posses- sion of third person. 389. Delivery and receipt where goods are already in posses- sion of purchaser. 390. Delivery where seller and buyer occupy same premises. 891, 393. Receipt by common agent 89a (airier as agent to re- ceive. 391 Acceptance and receipt may precede passing of title. 395. Receipt and acceptance may be complete though terms of contract in dispute. 396. No title passes until receipt and acceptance. 397. Question of receipt for the jury. 1 Part of the Goods Sold. 398. Acceptance and receipt of part of goods suffices. 399. Any part, though small, enough. 400. But it must actually be a part of the goods sold— Sample- Specimen. 401 At what time part may be ac- cepted and received. 402. After part acceptance, loss of remainder falls on buyer. 403. Acceptance and receipt of part must be in pursuance of the contract 265 LAW OF SALE. [BOOK I. 5. Earnest or Part Payment, a. Of Earnest. § 404. Earnest and part payment syn- onymous. 405. Thing in earnest must be act- ually given. 406. Must be a thing of some value. 407. Deposit with third person by way of forfeiture not enough. 408. Effect of earnest in passing the title. b. Of Part Payment. 409. What the statute requires. 410. The amount required. 411. What may be paid. 412. Check. 413. Buyer's note. 414. Note of stranger. 415. Money already in hands of seller. 416. Satisfaction of previous debt. 417. Payment of seller's debt to third person. 418. Mere unaccepted payment not enough. 419. 420. When part payment to be made. 421. Part payment to agent suffices. 6. The Note or Memorandum. 422. What the statute requires. a. What is a Note or Memorandum. 423. Is distinct from the agreement itself. 424. At what time to be made. 425. Form of note or memorandum. 426. 427. Several papers. 428. Letters. 429. Telegrams. 430. Books. 431. Records of corporate meet- ings. 432. Not necessary that note be ad- dressed to or pass between the parties. 266 >. What Note or Memorandum is Suf- ficient. 433. The requisites in general. 434. Parties must be named or de- scribed. 435. What description suffi- cient. 436. Agent named instead of principal. 437. Goods sold must be stated or described. 438. Price must be shown. 439. Terms of credit and mode of payment must be stated. 440. Time and place of delivery must be stated if agreed upon. 441. All other material terms must be included. 442. Consideration need not be ex- pressed unless required by statute. 443. Memorandum must show com- plete contract. 444. Memorandum must import a sale. 445. Parol evidence not admissible to supply deficiencies. 446. 447. Parol evidence to contra- dict complete memoran- dum. 448. But defendant may show memorandum, relied upon by plaintiff, to be incom- plete. c. Of the Signing by the Parties. 449. Whether both parties must sign. 450. Written offer accepted by parol. 451. How to be signed. d. Of Signing by Agent. 452. Who may be agent. 453. How appointed. 454. Several owners — One as agent for all. CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 280, 2S1. 455-45% How sign. •i.jQ. One person as agent for both parties. 460. Evidence of authority. 461. Signing by auctioneer. 462. Auctioneer selling his own goods cannot sign for both. 463-466. Broker as agent for both parties. 467. "Bought and sold notes" in English practice* 468. English rules governing. § 469. Bought and sold notes in the United States. 470. Revocation of broker's authority. 471. Signing by one partner. e. Of Alteration of the Memorandum. 472. Effect of alteration. 473. Memorandum not to be altered by parol. 474. Discharge or substitution of agreement may be shown. § 2S0. Purpose of this chapter. — Having now considered the nature of the contract of sale, its parties, the subject-mat- ter and the price, there remains to be considered the effect of the statute of frauds upon the negotiations of the parties. § 281. Sales before the statute. — The effect of this famous statute can perhaps best be made manifest by recalling first the requisites of a valid contract of sale at common law before the passing of the statute, particularly inasmuch as the same requisites, as has been seen, still prevail in respect of those con- tracts to which the statute does not apply. At the common law, as was seen in a previous chapter, a contract for the sale of goods stands upon the same footing as any other contract, requiring the mutual assent of competent parties for a consideration. Neither a written contract or memorandum, nor an entire or partial delivery, nor an entire or partial payment, nor the payment of earnest, is indispensa- ble, but it is sufficient to pass the title, if such be the intention of the parties, that the terms are definitely agreed upon and the chattel is distinguished, identified or separated from the mass of which it forms a part. The purchaser may then take possession of it, upon paying or tendering the price agreed upon, but not otherwise, unless a credit has been agreed upon, in which case the vendor's lien does not attach. 1 i Simmons v. Swift, 5 B. & C. 862; Dixon v. Yates, 5 B. & Ad. 313; Gil- mour v. Supple, 11 Moore, P. C. 566. 267 §§ 2S2, 2S3.] LAW OF SALE. [book I. A more detailed examination of this subject will be made hereafter, but this will suffice for the present purposes of con- trast. The Statute. § 282. The seventeenth section of the statute of frauds. This being the state of the common law, the " Act for the pre- vention of frauds and perjuries," commonly known as the Stat- ute of Frauds, was passed in the twenty-ninth year of the reign of Charles the Second, and went into effect on the 2±th day of June, 1677. Of this act, the seventeenth section chiefly con- cerns the present inquiry, and reads as follows: "And bee it further enacted, by the authority aforesaid, that from and after the said fouer and twentyeth day of June noe contract for the Sale of any Goods, wares, or Merchandises for the price of ten pounds Sterling or upwards shall be allowed to be good except the Buyer shall accept part of the goods soe sold and actually receive the same or give something in earnest to bind the bar- gaine or in part of payment, or that some Note or Memoran- dum in writing of the said bargaine be made and signed by the partyes to be charged by such contract or their agents thereunto lawfully authorized." 283. . Afterwards, because of conflicting decisions as to the application of this statute to executory agreements, fur- ther legislation became desirable, and in 1S29 Lord Tenter- den's Act declared that this seventeenth section "shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be in- tended 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." 2G3 CH. Til.] CONTRACT TJXDER STATUTE OF FRAUDS. [§§ 284,285. These two statutes are now construed as if incorporated to- gether, the word value being substituted for the word price in the original act. 1 §284. English sale of goods act. — The present English statute 2 upon this subject provides as follows: " (1) A contract for the sale of any goods of the value of ten pounds or upward shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually re- ceive the same, or give something in earnest to bind the con- tract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. " (2) The provisions of this section apply to every such con- tract, notwithstanding that 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. " (3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale, whether there be an acceptance in performance of the contract or not. " (4) The provisions of this section do not apply to Scot- land." § 285. The statutes in the United States. — Statutes sub- stantially similar to the English act have been adopted in many, but not all, of the United States. No attempt will be made to give the language of these statutes in full, as they are collected in the various treatises on the subject of the statute and else- where, but the following summary of them, so far as applicable to the contracts for the sale of goods, will sufficiently indicate their character: i Scott v. Railway Co., 12 M. & W. 2 Sale of Goods Act, ch. 71, 56 & 57 38; Harman v. Reeve, 18 C. B. 587. Vict. 1894, § 4. 269 §§ 286-288.] law of sale. [book i. § 286. . In Arkansas, 1 Georgia, 2 Massachusetts, 3 Maine, 4 Maryland, 5 Michigan, 6 Missouri, 7 New Hampshire, 8 New Jer- sey, 9 South Carolina, 10 Vermont 11 and "Washington 12 the lan- guage is " contract for the sale of goods, wares and merchan- dise." § 287. . In South Dakota, 13 Colorado, 14 Idaho, 15 Minnesota, 16 Nebraska, 17 Nevada, 18 New York, 19 Utah, 20 Wisconsin 21 and Wy- oming 22 the words used are " contract for the sale of goods, chat- tels or things in action." In California, 23 Connecticut, 24 Mon- tana, 25 Oregon 26 and North Dakota 27 the words are "agreement for the sale of any personal property." In Iowa 28 the statutory language is the same, but unlike the English and most of the American statutes the act is content with forbidding evidence to be given of the unwritten contract. The Indiana 29 statute invalidates a "contract for the sale of any goods;" and in Florida 30 and Mississippi 31 the wording is "contract for the sale of any personal property, goods, wares or merchandise." § 288. . In Arkansas, California, Colorado, Idaho, In- diana, Massachusetts, Michigan, Minnesota, Mississippi, Mis- souri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oregon, South Carolina, i Digest of Statutes 1894. § 3470. " General Statutes 1885, § 2631. 2 Code of Statutes 1895, § 2693. " Revised Statutes 1896, p. 1886, § 3. 3 Public Statutes 1882, ch. 78, § 5. 20 Revised Statutes 1898, § 2469. 4 Revised Statutes 1883, ch. Ill, §4 2 1 Sanborn & Berryuian Statutes 5 Corbet v. Wolford, 48 Md. 426. 1898, § 2308. e Compiled Laws 1897, § 9516. 22 Revised Statutes 1887, § 1250. 7 Revised Statutes 1889, § 5187. 23Deering's Statutes, § 1739; Civ. 8 General Laws 1878, ch. 220, § 16. Code, Div. III. 9 General Statutes 1895, p. 1603, § 6. 24 General Statutes 1888, § 1367. i« Revised Statutes 1893, vol I, § 2152. 25 Civil Code, £ 2340. 11 Statutes 1894, § 1225. 26 Hill's Annotated Laws 1892, § 785. 12 General Laws 1897, § 4577. 27 Revised Statutes 1895, § 3958. 13 Compiled Laws of Dakota 1887. 23 Code of 1897, § 4625. " Mill's Statutes, § 2025. 29 Revised Statutes 1897, § 6944 1 5 Revised Statutes 1887, § 6009. 30 Revised Statutes 1892, § 1996. i 6 General Statutes 1894, § 4210. 31 Code, § 4229. " Compiled Statutes 1897, § 3183. 270 CH. VII.] CONTRACT UXDEK STATUTE OF FRAUDS. [§§ 289-291. South Dakota, Vermont, Utah, Washington, Wisconsin and "Wyoming the word price is used. In Connecticut, Florida and Maine, neither the word price nor value is used, but simply " agreement for the sale of personal property." In Maryland ' and South Carolina the English statute is adopted. In Georgia the words " to the amount of " are used. 2 § 2S9. . In Connecticut, Colorado, Georgia, Indiana, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New York, North Dakota, Oregon, South Carolina, South Dakota, Washington, Wisconsin and Wyoming, the amount is fixed at fifty dollars; in Arkansas, Maine, Missouri and New Jersey at thirty dollars; in California, Idaho, Mon- tana and Utah at two hundred dollars; in New Hampshire at thirty-three dollars; in Vermont at forty dollars; and in Florida no limit is prescribed. § 290. . In Alabama, Arizona, Delaware, Illinois, Kan- sas, Kentucky, Louisiana, New Mexico, 3 North Carolina, Ohio, Pennsylvania, Ehode Island, Tennessee, Texas, Virginia and West Virginia no provision similar to the seventeenth section seems to have been adopted. § 291. The general effect of the statute. — The general ef- fect of the statute, in the cases to which it applies, will be seen to consist chiefly in the introduction of a new rule of evidence which requires a kind of proof that the common law did not deem necessary. This rule demands either — (a) An actual receipt and acceptance of a part of the goods, or (b) the giving of something in earnest to bind the bargain, or (c) a part payment, or 1 Corbett v. Wolford, 84 Md. 426, 35 adopt the fourth section of the Eng- Atl. R. 1088. lish statute, but are silent as to the 2 For reference to the various stat- seventeenth section, although the utes see supra. reasoning might well apply to either 3 In Childers v. Talbott, 4 N. M. 336, section. 16 Pac. R. 275, the supreme court 271 §§ 292, 293.] law of sale. [book i. (d) a note or memorandum in writing of the bargain, signed by the party to be charged thereby or by his agent thereunto duly authorized II. What are Contracts for the Sale of Goods, Wares and Merchandise. § 292. Importance of this question. — One of the most im- portant and difficult of the questions presenting themselves under the provisions of this statute is, What is a contract for the sale of goods, wares and merchandise within its operation ? Does it apply to executory agreements or only to the completed contract? Is there a contract for the sale when the goods are not in esse, but are to be grown, produced or manufactured? 1. Executory Contracts. § 293. Statute applies to executory contracts. — It was thought at one time in England that the statute had no appli- cation to the case of executory contracts by which the present title was not conveyed, but this question was set at rest by Lord Tenterden's Act, 1 and the application of the statute to such contracts has always been recognized by the courts of the United States. Thus it is said in a leading case 2 in Connecti- cut: "It seems now to be well settled, in accordance with the rules of just interpretation, as well as the dictates of reason and common sense, that a contract for the sale of goods is not without the purview of the statute merely because it is execu- tory." 1 See ante, § 283. Hargreaves (1885), 47 N. J. L. 334, 54 2 Atwater v. Hough (1861), 29 Conn. Am. R. 162]; Edwards v. Grand Trunk 508, 79 Am. Dec. 229. To the same Ry. Co. (1860), 48 Me. 379, 54 Me. 105; effect: Mechanical Boiler Cleaner Co. Ide v. Stanton (1843), 15 Vt. 685,40 v. Kellner (1899), 62 N. J. L. 544, 43 Am. Dec. 698; Downs v. Ross (1840). Atl. R. 599 [citing Carman v. Smick 23 Wend. (N.Y.) 270; Hanson v. Rolter (1836), 15 N. J. L. 252; Finney v. Apgar (1885), 64 Wis. 622. (1865), 31 N. J. L. 206; Pawelski v. 272 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 294, 295. 2. Contracts of Sale or for the Manufacture of Goods. § 294. Statute applies only to contracts for the sale and not for the manufacture of goods. — The statute of frauds, by its express terms, applies only to contracts for the sale of goods, wares and merchandise, and not to contracts for their manvfacture. In the abstract, the distinction between a con- tract for the sale of goods and a contract for the manufacture of goods seems clear enough, but in respect of the application of this statute the question is one of the most confused and perplexing in the law. Most goods have to be manufactured, and the seller is often the manufacturer. If a contract is made with such a seller for the sale of goods of the kind he makes, and he happens not to have them already made, he must set at work to manufacture them. The fact that he will or must so manufacture them may have been clearly within the con- templation of both parties at the time they made the contract. Is the contract, then, one for the manufacture or the sale of the goods? Suppose, further, that in the particular case the goods are not of the kind that the party usually manufactures, but are to be made in accordance with some special ideas or needs of the other. Is it now a contract for manufacture or sale? Suppose, still further, that the goods are such as the maker never produces except upon the order and to suit the case of the person who orders them, as in the case of a contract to supply a set of artificial teeth ; what kind of a contract is this — for manufacture or sale ? Quite widely differing views have, not unnaturally, been taken of these questions, and a full exposition of the subject can scarcely be made without setting forth at some length a few of the leading cases. Beginning with the early English cases, the following will indicate the manner in which the sub- ject has developed: §295. English cases — Immediate sale as the test. — In 1724 the case of Towers v. Osborne 1 came before Chief Justice 1 (1724) 1 Strange, 506. 18 273 §§ 296, 297.] law of sale. [book r. Pratt. The report is very brief, and may be reproduced en- tire. " The defendant bespoke a chariot, and when it was made refused to take it; and in an action for the value it was ob- jected that they should prove something given in earnest, or a note in writing, since there was no delivery 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 immediately answer- able, without time given him by special agreement, and the seller is to deliver the goods immediately." § 296. . This case was said to be " directly in point " in Clayton v. Andrews, 1 a case which came before Lord Mansfield in 1767. There the defendant had " agreed to deliver one load and a half of wheat to the plaintiff within three weeks or a month from the said agreement, at the rate of twelve guineas a load, to be paid on delivery; which wheat was understood by both parties to be at that time unthrashed. No part of the said wheat so sold was delivered; nor any money paid by way of earnest for the same; nor any memorandum thereof made on writing." The question was whether the contract was within the statute. The trial judge had held the case not to be within the statute, relying upon Towers v. Osborne, and the court of king's bench concurred. § 297. . Both of these cases, however, were distinguished and put on different ground twenty-five years later in Rondeau v. Wyatt, 2 before Lord Loughborough. The defendant here " had entered into a verbal agreement to sell and deliver three thou- sand sacks of flour to the plaintiff, to be put in sacks which the plaintiff was to send to the mill, and shipped on board vessels to be provided by him in the river, on an express condition that the flour should be exported to foreign ports." The ex- portation proving to be impossible, the defendant refused to deliver the flour and an action for damages ensued. The de- fense was based upon the statute of frauds, and the court of i (1767) 4 Burrows, 2101. 2 (1799) 3 Henry Blackstone, 63. 274 CH. VII. J CONTRACT UNDER STATUTE OF FRAUDS. [_§ ^98. common pleas sustained the defense. Referring to the two cases already noticed Lord Loughborough said: "The case of Towers v. Osborne was plainly out of the statute, not because it was an executory contract, as it has been said, but because it was 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 agree- ment to deliver corn at a future period, there was also some work to be performed, for it was necessary that the corn should be threshed before the delivery. This, perhaps, may seem to be a very nice distinction, but still the work to be performed in threshing made, though in a small degree, a part of the con- tract." § 298. Impossibility of present delivery as the test — Goods not in existence. — In lSli the case of Groves v. Buck* was decided. Here " the defendant agreed by parol to pur- chase of the plaintiff, for a sum exceeding 1<>/., a quantity of oak pins, which were not then made, but were to be cut of slabs and delivered to the defendant at Weymouth." In an action for not accepting the pins the statute of frauds was again relied upon, and the three cases above referred to were cited. Lord Ellen borough said : " The subject-matter of this contract did not exist in rerum 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, to be provided 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 apply where the goods are not deliverable." 1(1814) 3 Maule & Selwyn, 17a 275 §§ 299, 300.] LAW OF SALE. [book I. § 299. . In Garbuttv. Watson, 1 decided in 1822, the same distinction was made. There it appeared that the plaintiffs, who were millers, made an agreement with the defendant, a corn-merchant, for the sale of one hundred sacks of flour at 50s. per sack, to be got ready by the plaintiffs to ship to the defendant's order. There was no memorandum or earnest. The flour at the time of the bargain was not prepared, so as to be capable of being immediately delivered to the defendant. In an action by the sellers the defense of the statute was inter- posed and the four preceding cases were discussed. The plaint- iffs were nonsuited. Abbott, C. J., said : " In lowers v. Osborne, the chariot which was ordered to be made would never, bat for that order, have had any existence. But here the plaint- iffs were proceeding to grind the flour for the purposes of gen- eral sale, and sold this quantity to the defendant as part of their general stock. The distinction, indeed, is 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 de- cided, the contract being one for the sale of goods and falling within the seventeenth section of the statute of frauds." Bay- ley, J., said: "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 con- tract 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., said: "I am of the same opinion. I cannot agree with the judgment of the court in Clayton v. An- drews. This was a contract for the sale of goods, and there- fore the verdict was right." § 300. Work on one's own materials as test. — In Smith v. Surman? decided in 1829, it appeared that the plaintiff, who was the owner of grounds upon which were growing trees which i (1822) 5 Barn. & Aid. 613, 7 Eng. 2 (1829) 9 Barn. & Cress. 561, 17 Eng. Com. L. 335. Com. Law, 253, 4 Man. & RyL 455. 276- OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 301. he desired removed, had ordered them cut down. "While the work was going on and after part had been felled, defendant orally bargained for the timber at so much per foot, and the trees felled and to be felled were numbered. The defendant also gave some instructions as to the manner of cutting. The defendant afterwards refused to take the timber, alleging its unsoundness. In an action for his failure to take and pay for the timber the defendant relied upon both the fourth and the seventeenth sections of the statute. The court of king's bench held that this was not a contract for the sale of an interest in lands, and was therefore not within the provisions of the fourth section, but that it was a contract of sale within the purview of the seventeenth section. Bayley, J., said : " 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 v. Watson is in point." After recalling the facts in that case he proceeded: "I think, there- fore, that the contract in this case was only a contract for the sale of goods, wares and merchandise within the seventeenth section of the statute, and that there ought to have been a note or memorandum of it in writing, or a part acceptance, earnest or part payment." Parke, J., after referring to Groves v. Buck and Garbutt v. Watson, said: "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." § 301, Whether work or materials is the essence of the contract, as test. — In 1856 the case of Clay v. Yates 1 came before the court of exchequer. It appeared there that the plaintiff had orally agreed to print for defendant a treatise on military tactics, furnishing the paper and printing five hun- dred copies, at a certain price per sheet. The book was to con- 1 (183fi) 1 Hurl. & Norm. 73. 277 § 301.] LAW OF SALE. [BOOK I. tain a dedication to Sir William Napier. When the plaintiff began printing, this dedication had not been written, but was afterwards supplied and put in type before plaintiff had notice of it. When plaintiff came to read the proof of the dedication, he found it to contain libelous matter, and refused to print it. The defendant would not pay for the treatise without the dedi- cation, and the action was brought to recover for printing the treatise. The defense, among other things, was that the con- tract was for the sale of goods within the seventeenth section. Pollock, C. B., with whom the otherjudges concurred, said: " The first question is, whether this is a contract for the sale of goods within the seventeenth section of the statute of frauds, and I am of opinion that it is properly a contract for work, labor and materials. « . : It may happen 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 criterion is, whether work is the essence of the con- tract, 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 application 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 bargained for, and, if delivered, might be recovered as goods sold and delivered, still it may also be recovered as work, labor and materials. Therefore it appears to me that this is prop- erly 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. IV., ch. 14) applies; and the reason why no cases on this subject are found in the books is that, before Lord Tenterden'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 the objection does not arise." 278 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 302. § 302. The present English test — Whether the sub- ject-matter is a chattel to be afterwards delivered. — In 1861 arose the case of Lee v. Griffin} which has since been regarded as declaratory of the rule in English courts, and which has had a marked influence upon judicial thought in the United States. The plaintiff, a dentist, sued to recover the price of two sets of artificial teeth ordered by a lady who had died before they could be fitted. The defendant was her executor. The dec- laration was for goods bargained, sold and delivered, and for work and labor done and material furnished. The defense was that the contract was not for labor and material, but for the sale of a chattel, and therefore void under the seventeenth section of the statute of frauds. This defense was sustained. Crompton, J., said: 2 "When the contract is such that a chat- tel is ultimately to be delivered by the plaintiff to the defend- ant, when it has been sent, then the cause of action is goods sold and delivered. . . . I do not agree with the proposi- tion that whenever skill is to be exercised in carrying out the contract that fact makes it a contract for work and labor, and not for the sale of a chattel; it may be the cause of action is for work and labor when the materials supplied are merely ancillary, as in the case put of attorney or printer. But in the present case the goods to be furnished, viz., the teeth, are the principal subject-matter; and the case is nearer that of a tailor, who measures for a garment and afterwards supplies the article fitted." Hill, J., said: "When the subject-matter of the con- tract is a chattel to be afterwards delivered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and labor;" and Blackburn, J., said: "If the con- tract be such that it will result in the sale of a chattel, the proper form of action, if the employer refuses to accept the ar- ticle when made, would be for not accepting. But if the work and labor be bestowed in such a manner as that the result 1 (1861) 1 Best & Smith, 272, 30 L. Journal Reports, which differ some- Jour. R. (Q. B.) 252. what in form, but not in substance, 2 These quotations are made from from the report in Best & Smith, the reports of the case in the Law 279 §§ 303-305.] LAW OF SALE. [book I. would not be anything which could properly be said to be the subject of sale, then an action for work and labor is the proper remedy. ... I do not think that the relative value of the labor and of the materials on which it is bestowed can in any case be the test of what is the cause of action; and that if Benvenuto Cellini had contracted to execute a work of art for another, much as the value of the skill might exceed that of the materials, the contract would have been nevertheless for the sale of a chattel." § 303. . Mr. Benjamin expressed surprise "that a rule so satisfactory and apparently so obvious " should not have been earlier suggested, and concludes: "From the very defini- tion 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 A to B a chattel in which A had no previous prop- erty, it is a contract for the sale of a chattel, and unless that be the case there can be no sale." l § 304:. American cases — The rule in New York. — In New York, on the other hand, entirely opposite conclusions are reached, following the rule of stare decisis, though the court admit that the modern English doctrine is at once philosophical and comprehensible. In Cooke v. Millard, 2 the defendants ver- bally ordered lumber of the plaiutiffs, to be taken from certain lots designated by defendants in plaintiffs' yard, and to be cut by plaintiffs into sizes required by defendants and placed on plaintiffs' dock. Notice was then to be given to defendants, who were thereupon to remove it. Plaintiffs prepared the lumber, placed it upon the dock, and notified defendants as agreed, but before it was removed the lumber was destroyed by accidental fire. It was held that the contract was one of sale. § 305. . After statino- the English and the Massachusetts rule, the court, speaking through the late Professor T. W. Dwight, Commissioner, said: "The New York rule is still dif- 1 Benjamin on Sales, § 103. 2 65 N. Y. 352, 22 Am. R. 619. 280 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 305. fercnt. It is held here by a long course of decisions, that an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manu- facturer, is not a contract of sale. The New York rule lays stress on the word sale. There must be a sale at the time the contract is made. The latest and most authoritative expres- sion of the rule is found in a recent case in this court, Par- sons v. Loueks. 1 The contrast between Parsons v. Zoucks, in this State, on the one hand, and Lee v. Griffin? in England, on the other, is, that in the former case the word sale refers to the time of entering into the contract, while in the latter ref- erence is had to the time of delivery as contemplated by the parties. If at that time it is a chattel, it is enough, according to the English rule. Other cases in this State agreeing with Parsons v. Zoucks are Crook-shank v. Burrell? Sewall v. Fitch^ Robertson v. Vaughn, 5 and Parker v. Schenck* These cases are based on certain old decisions in England, such as Towers v. Osborne? and Clayton v. Andrews? which have been wholly discarded in that country. 1 48 N. Y. 17, 8 Am. R 517. mined, though upon a wrong prin- 2 1 B. & S. 272. ciple, as has since been held both by 8 18 Johns. (N. Y.) 58, 9 Am. Dec. the common pleas and the king's 187. bench." < 8 Cow. (N. Y.) 215. In Crookshank v. Burrell (1820), 18 5 5 Sandf. (N. Y.) 1. Johns. 58, 9 Am. Dec. 187, the same 6 28 Barb. 38. was held of a contract to make and 7 1 Strange, 506. deliver a wagon at a future day. 8 4 Burr. 2101. In Downs v. Ross (1840), 23 Wend. The leading case in New York is 270, the contract was for the delivery Sewall v. Fitch (1828). 8 Cow. 215. of wheat, part being then in granary The contract was for a quantity of and part unthrashed; that in granary nails not then on hand, but which was to be cleaned again and the rest the seller said "could soon be knocked thrashed. Held, to be a contract of off " and sent on the opening of navi- sale within the statute. Bronson, J., gation. Held, to be a contract for said of the cases cited to the contrary, ' work and labor, and therefore not that, "with a single exception, they within the statute. Savage, C. J., all relate to contracts for the sale of said: "Towers v. Osborne and Clay- a thing not then in existence, but ton v. Andrews were rightly deter- which was to be constructed or man- 281 305.] LAW OF SALE. [book "The case at bar does not fall within the rule in Parsons v. Loucks. The facts of that case were, that a manufacturer agreed to make for the other party to the contract two tons of book paper. The paper was not in existence, and so far as it ufactured by the vendor." Citing as a general article of merchandise. the cases of the chariot (Towers v. Osborne), the oak pins (Groves v. Buck), the wagon (Crookshank v. Burrell), the buggy (Mixer v. How- arth. 21 Pick., Mass., 205), and the nails (Sewall v. Fitch). The excep- tion in Clayton v. Andrews he pro- nounced overruled. Cowen, J., dis- sented. In Seymour v. Davis (1848), 2 Sandf. 239, a contract to sell and deliver cider in future, to be procured from farmers and refined by the seller, was held within the statute. In Passaic Mfg. Co. v. Hoffman (1871), 3 Daly, 495, is a review of this subject by Daly, C. J., in which he says : " It may be stated as the result of several well-considered cases that where the contract is for an article coming under the general denomina- tion of goods, wares and merchandise, and it is made with one who sells that kind of commodity to all who traffic in it, the quantity required and the price being agreed upon, it is a contract of sale, and that it in no way affects the character of the con- tract, in such a case, whether the manufacturer and vendor has, when the order is given, the requisite quantity on hand or has to manu- facture it afterward. . . . But if what is clearly contemplated by the agreement is the skill, labor, care or knowledge of the one who fabricates the article or commodity, or if it would not' have been produced if the order had not been given for it, or if, when produced, it is unfitted for sale being adapted for use only by the person ordering it, then the contract is one for work and labor and is not within the statute."' He doubted Sewall v. Fitch, and pronounced Downs v. Ross "still more doubtful *' and now repudiated. Robertson v. Vaughn, 5 Sandf. 1, and Donovan v. Willson, 26 Barb. 138, were also de- clared to be discredited since Smith v. New York Cent. R. Co., supra. This was followed in Flint v. Corbitt (1876), 6 Daly, 429, where the defend- ant selected some unfinished furni- ture and ordered it covered in a cer- tain material to be supplied by the plaintiff. This was held to be a sale within the statute. In Kellogg v. Witherhead, 6 Thomp. & C. 525, the same was held of a con- tract to buy hams to be smoked. " The plaintiffs were not to make the hams; they were to smoke them." In Mead v. Case (1860), 33 Barb. 202, the agreement was for a monument, the pieces of which had been put to- gether, but which the plaintiff was to polish, letter and finish. Held, not within the statute. The court said: "It is very plain, I think, that the monument bargained for was to be afterwards made by the plaintiff's labor and skill, and had no existence as such at the time of the bargain. . . . It is precisely this labor and skill that was necessary to convert it into the monument which the plaint- iff agreed to furnish. Without this, it was no monument whatever, cer- tainly not to the defendant's deceased 282 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 305. appears, not even the rags, 'except so far as such existence may be argued from the fact that matter is indestructible.' So in St wall v. Fitch, sttpra, the nails which were the subject of the contract were not then wrought out, but were to be made and delivered at a future day. " Nothing of this kind is found in the present case. The relatives. A monument is something with certain alterations and fixtures, designed and constructed to perpetu- ate the memory of some particular person or event. Before the material was polished and the inscriptions engraved upon it, it was a mere structure of stone, blank and mean- ingless. It was not this stone, in this condition, that the defendant bar- gained for; if it had been, the con- tract would most likely have been within the statute. What he bar- gained for was the necessary labor and skill to convert this stune into an enduring memorial of the dead. This labor and skill did not convert the stone into any article of general merchandise, but into the particular thing bargained for. For any other purpose the valuable material had been wholly destroyed. It was then entirely unfitted for a sale to any other person; or for any other pur- pose." Daly, C. J., in the case of Passaic Mfg. Co. v. Hoffman, pro- nounces this reasoning conclusive: on the other hand, Dwight, C, in Cooke v. Millard, supra, pronounces it a "border case." Smith, J., dis- sented. In Bates v. Coster (1874), 1 Hun, 400, an agreement to buy a stallion colt, to be operated upon and kept by the plaintiff till he got well, was held within the statute. The court doubted Mead v. Case. In Fitzsimmons v. Woodruff, 1 Thorn p. & C. 3, a contract for a mar- ble mantel, to be put up in a house was held within the statute. In Donnell v. Hearn, IT N. Y. Wkly. Dig. 4G3. a contract to manufacture certain lamps of a peculiar and un- usual pattern was held not within the statute. So in Pierce v. Bourton, 17 N. Y. Wkly. Dig. 444, of a contract to imitate certain woven goods in felt, of a kind not usually dealt in by the plaintiff. In Smith v. N. Y. Cent. R. Co., 4 Keyes. 180, it was held that a con- tract for the delivery of wood to be cut from standing trees is within the statute. Citing Downs v. Ross, and ( rarbutt v. Watson, and Smith v. Sur- man, 9 B. & C. 561, a precisely similar case. The court, by Woodruff, J., said: "There would seem no very sensible reason for holding, with reference to two verbal contracts with wagon makers for the purchase and delivery of twenty wagons on a future day named, that one is void because the wagon maker has the wagons on hand, and the other is valid because the other wagon maker must manufacture them in order to their delivery at the time appointed. Without however disregarding the cases which hold that where the sub- stance of the contract is work and labor to be done in converting ma- terials into a new and totally different article, it is not within the statute, we may say that there is no just no- tion of manufacture involved in an agreement to deliver a specified nurn- 2$:i § 305.] LAW OF SALE. [iiOOK I. lumber, with the possible exception of the clapboards, was all in existence when the contract was made. It only needed to be prepared for the purchaser — dressed and put in a condition to fill his order. The court, accordingly, is not hampered in the disposition of this cause by authority, but may proceed upon principle. " Were this subject now open to full discussion upon princi- ple, no more convenient and easily understood rule could be adopted than that enunciated in Lee v. Griffin. It is at once so philosophical, and so readily comprehensible, that it is a matter of surprise that it should have been first announced at so late a stage in the discussion of the statute. It is too late to adopt it in full in this State. So far as authoritative decis- ions have gone, they must be respected even at the expense of sound principle. The court, however, in view of the present state of the law, should plant itself, so far as it is not precluded from doing so by authority, upon some clearly intelligible ground, and introduce no more nice and perplexing distinc- tions. I think that the true rule to be applied in this State is, ber of cords of firewood; no change In Higgins v. Murray, 73 N. Y. 252. in the thing sold and to be delivered a contract to make circus tents, ma- is contemplated. The circumstance terials to be furnished by the plaint- that it stands in the woods at the iff, was held not within the statute. time involves nothing more than a In Hinds v. Kellogg, 13 N. Y. Supp. necessity to cut it, that it may be 922, 133 N. Y. 536, 30 N. E. R. 1148, a delivered. In this respect it is not contract to furnish circulars, to be different from a purchase and agree- used exclusively in the business of ment to deliver wood of a prescribed the person ordering them, was held length, split into pieces of convenient not within the statute. To the same size, the parties knowing and intend- point see Pelletreau v. United States ing that delivery shall be had of wood Electric Light Co., 34 N. Y. Supp. 125, already cut, but of a greater length 13 Misc. 237. and not split at all." But in Killmore In Warren Chemical Co. v. Hol- v. Howlett, 48 N. Y 569, while a brook, 118 N. Y 586, 23 N. E. R. 908, similar contract was held not to be 16 Am. St. R. 788, a contract for the for the sale of an interest in lands, sale and delivery of patent roofing, the court said it was "rather a con- to be thereafter manufactured and tract by the defendant to bestow delivered, was held not within the work and labor upon his own ma- statute, relying on Parsons v. Loucks, terial, and deliver it in its improved 48 N. Y 17, 8 Am. R. 517. condition to the plaintiff." 284 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 306, 307. that when the chattel is in existence, so as not to be governed by Parsons v. ZoueJcs, supra, the contract should be deemed to be one of sale, even though it may have ordered from a seller who is to do some work upon it to adapt it to the uses of the purchaser. Such a rule makes but a single distinction, and that is between existing and non-existing chattels. There will still be border cases where it will be difficult to draw the line, and to discover whether the chattels are in existence or not. The mass of the cases will, however, readily be classified. If, on further discussion, the rule in Lee v. Griffin should be found most desirable as applicable to both kinds of transactions, a proper case will be presented for the consideration of the leg- islature." § 306. The Massachusetts rule. — In Massachusetts a somewhat middle ground is taken, well illustrated in the case of Goddard v. Binney. 1 There the defendant had orally or- dered of the plaintiff, a manufacturer, a buggy of a certain kind, and gave full instructions as to its construction and finish. The plaintiff made the buggy in all respects as ordered, and when it was completed he notified the defendant and sent him a bill for the price. Plaintiff sent again for a check for the amount, and defendant said he would pay it soon, and would see the plaintiff. Plaintiff sent a third time, and defendant re- plied that he would " come and see him right away." While matters were in this condition, the buggy was destroyed by accidental fire. Plaintiff finally brought this action for the price. The defense was the statute of frauds, but the contract was held not to be within the statute. § 307. . In pointing out the distinction which prevails in Massachusetts between the English rule on the one hand, and the New York rule on the other, Ames, J., said : " According to a long course of decisions in Xew York and in some other States of the Union, an agreement for the sale of any commodity not in existence at the time, but which the 1 (1874) 115 Mass. 450, 15 Am. R, 112. 285 § 307.] LAW OF SALE. [COOK I. vendor is to manufacture or put in a condition to be delivered (such as flour from wheat not yet ground, or nails to be made from iron in the vendor's bands), is not a contract of sale within the meaning of the statute. 1 In England, on the other hand, the tendency of the recent decisions is to treat all contracts of such a kind intended to result in a sale, as substantially con- tracts for the sale of chattels; and the decision in Lee v. Griffin 2 goes so far as to hold that a contract to make and fit a set of artificial teeth for a patient is essentially a contract for the sale of goods, and therefore is subject to the provisions of the statute. 3 "In this Commonwealth, a rule avoiding both of these ex- tremes was established in Mixer v. Uowarthf and has been rec- ognized and affirmed in repeated decisions of more recent date. The effect of these decisions we understand to be this, namely, that a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute. 5 ' The distinction,' says Chief Justice Shaw in Lamb v. Crafts? ' we believe is now well understood. When a per- son stipulates for the future sale of articles which he is habitu- ally making, and which at the time are not made or finished, it is essentially a contract of sale, and not a contract for labor; otherwise, when the article is made pursuant to the agreement.' In Gardner v. Joy, 1 a contract to buy a certain number of boxes i Citing Crookshank v. Burrell. 18 B. & Aid. 321: Baldey v. Parker, 2 Johns. (N. Y.) 58, 9 Am. Dec. 187; B. & C. 37; Atkinson v. Bell, 8 B. & Sewall v. Fitch, 8 Cow. (N. Y.) 215; C. 277. Eobertson v. Vaughn, 5 Sandf. (N. Y.) 4 21 Pick. (Mass.) 205, 32 Am. Dec. 1: Downs v. Ross, 23 Wend. (N. Y.) 256. 270; Eichelberger v. McCauley, 5 H. 8 Citing Spencer v. Cone, 1 Mete. & J. (Md.) 213, 9 Am. Dec. 514. (Mass.) 283. 2 1 B. & S. 272. 6 12 Mete. (Mass.) 353. 3 Referring to Maberley v. Shep- "• 9 Mete. (Mass.) 177. pard, 10 Bing. 99; Howe v. Palmer, 3 286 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. L§ 307. of candles at a fixed rate per pound, which the vendor said he would manufacture and deliver in about three months, was held to be a contract of sale and within the statute. To the same general effect are Waterman v. Meigs l and Clark v. Nich- ols} It is true that in ' the infinitely various shades of differ- UCush. (Mass.) 497. 2 107 Mass. 547. The leading case in Massachusetts is Mixer v. Howarth (1838), 21 Pick. 205, 32 Am. Dec. 256, where the con- tract was for a carriage in the seller's possession, unfinished, and which he was to finish and line with a certain lining selected by the buyer. This was held not within the statute. Shaw, C. J., said: "Where the con- tract is a contract of sale, either of an article then existing or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time as where it is to be exe- cuted immediately. 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 or sale of an article to be completed infuturo, it is not a sale until an actual or constructive de- livery or acceptance, and the remedy for not accepting is on the agree- ment." Citing Sewall v. Fitch, 8 Cow. (N. Y.) 215; Cooper v. Elston, 7 T. R. 14. In Lamb v. Crafts (1847), 12 Mete. 353, where one whose business was collecting raw tallow and preparing it for market agreed to " furnish " another in the future with a certain quantity of prepared tallow, held, within the statute. Shaw, C J., said: -Where a person stipulates for a 28' future sale of articles which he is habitually making, and which, at the time, are not made or finished, it is essentially a contract of sale, and not a contract of labor; other- wise when the article is made pursu- ant to the agreement.*' In Clark v. Nichols, 107 Mass. 547, the contract was to deliver ash build- ing stuff and plank, the logs to be sawed into plank at the buyer's di- rection. Held, within the statute. In Gardner v. Joy (1845). 9 Mete. 177, A asked B what he would take for candles; B said he would take twenty-one cents per pound; A said he would take one hundred boxes: B said they were not made, but he would make and deliver them in the course of the summer. Held, within the statute. Shaw, C. J., said: "If it is a contract to sell and deliver goods whether they are then com- pleted or not, it is within the stat- ute. But if it is a contract to make and deliver an article or quantity of goods, it is not within the statute." So, in Waterman v. Meigs (1849). 4 Cush. 497, an agreement for the de- livery of a quantity of planks, for ship-lmilding, at a future time, was held within the statute. In Smalley v. Hamblin (1898), 170 Mass. 380, 49 N. E. E. 626. it is held that where there is an understand- ing that the articles are not to be manufactured by the vendor, but are to be procured by him of some other person who manufactures and sells them, and are to be delivered by the §§ 308, 309.] LAW OF SALE. [book I. ent contracts,' there is some practical difficulty in disposing of the questions that arise under that section of the statute. But we see no ground for holding that there is any uncertainty in the rule itself. On the contrary, its correctness and justice are clearly implied or expressly affirmed in all of our decisions upon the subject-matter. It is proper to say also that the present case is a much stronger one than Mixer v. Ilowarth. In this case the carriage was not only built for the defendant, but in conformity in some respects with his directions, and at his request was marked with his initials. It was neither in- tended nor adapted for the general market. As we are by no means prepared to overrule the decision in that case, we must therefore hold that the statute of frauds does not apply to the contract which the plaintiff is seeking to enforce in this action." § 308. The rule in Vermont. — In a recent case 1 in Vermont the court had before it a contract for the construction of a monument to be erected for the State of Minnesota upon the battle-field at Gettysburg. The court held the contract to be not within the statute, and declared its preference for the Massachusetts rule, saying: " Under this rule the test is, not the non-existence of the article at the time of the bargain, as in New York, nor whether the contract will result in the sale of a chattel, as in England, but whether the goods are such as the vendor, in the ordinary course of his business, manufact- ures or procures for the general market, or whether they are manufactured especially for the vendee, and on his special order, and not for the general market, and for which they are neither intended nor adapted." § 309. The rule in Oregon. — So in a late case 2 in Ore- gon an oral contract to manufacture and furnish iron work for vendor to the purchaser for an agreed land of the vendor, who was to tear price as completed articles of mer- it down and deliver it in the condition chandise, the transaction is a sale of timber,— the contract was held within the statute of frauds. not within the statute. Scales v. i Forsyth v. Mann (1896). 68 Vt. 116, Wiley, 68 Vt. 39, 33 Atl. R. 771. 34Atl. R. 481,32L.RA.788. The same 2 Heintz v. Burkhard (1896), 29 conclusion is reached where one Oreg. 55, 43 Pac. R 866, 31 L. R A. bought a building situated on the 508. 288 Cn. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 310,311. a brick building according to special designs and measurements and suitable for use on that particular building was held not to be a contract of sale within the statute. The court declared the Massachusetts rule to be the one most widely adopted in the United States, but found it unnecessary to express a pref- erence as between it and the New York rule, as the case would be excluded from the operation of the statute under either rule,— under the New York rule as being for an article not in existence when the contract was made, and under the Massa- chusetts rule as an article made upon special design and not such as the manufacturer usually produced. Lee v. Griffin was repudiated. g 310. The rule in Washington and Michigan.— Like results, for like reasons, were reached in Washington. 1 And in Michigan, a contract for the painting of a portrait, not or- dered as a chattel having any marketable value, was held not to be a contract of sale within the statute. 2 § 311. The rule in Maine and New Hampshire.— Still a different rule has been laid down in Maine and New Hamp- shire, based upon the element of the delectus persona supposed to exist in the contract of the parties. Thus in the leading case in Maine, 3 Shepley, J., laid down the rule as follows: " If i Fox v. Utter (1893), 6 Wash. 299, mould," is not for a sale (Abbott 33 Pac. R 354 (a monument case); v. Gilchrist, 38 Me. 260); nor is a con- Puget Sound Machinery Co. v. Rigby tract to manufacture barrel-staves (1895), 13 Wash. 264, 43 Pac. R. 39. out of a particular lot of timber at 2 Turner v. Mason (1887), 65 Mich, so much per thousand. Crockett v. 662, 32 N. W. R. 846. Scribner, 64 Me. 447. On the other 3 Hight v. Ripley, 19 Me. 137, where hand, a contract to take " all the a contract by defendants " to furnish wood the plaintiff would put on the as soon as practicable from one thou- line of the road that season " was sand to one thousand two hundred held a contract of sale, as no ele- malleable iron hoe-shanks, agreeable ment of personality or particular to patterns left with them on terms," method of manufacture entered into etc., was held not a contract of sale. it. Edwards v. Grand Trunk Ry. Co., So a contract "to procure and de- 48 Ma 379; s. C, 54 Me. 105. And a liver, at a certain time and place, contract " for the delivery, and not one-half of a frame for a vessel, to for the manufacture and delivery, be hewn and fashioned according to of blocks which may have been man- 19 2S9 § 312.] LAW OF SALE. [BOOK I. the contract be one of sale it cannot be material whether the article be then in the possession of the seller or whether he afterward procure or make it. A contract for the manufacture of an article differs from a contract of sale in this: The person ordering the article to be made is under no obligation to re- ceive as good or even a better one of the like kind purchased from another and not made for him. It is the peculiar skill and labor of the other party combined with the materials for which he contracted and to which he is entitled. Hence it has been said that if the article exist at the time in the condi- tion in which it is to be delivered, it should be regarded as a contract for sale." § 312. . In an early Xew Hampshire case, 1 Bellows, J., says: "If a person contract to manufacture and deliver at a future time certain goods, at prices then fixed or at reasonable prices, the essence of the agreement being that he will bestow his own labor and skill upon the manufacture, it is held not to be within the statute. If, on the other hand, the bargain be to deliver goods of a certain description at a future time and they are not existing at the time of the contract, but the seller does not stipulate to manufacture them himself or procure a particular person to do so, the contract is within the statute. The distinction is that in the one case the party stipulates that he will himself manufacture the article, and the buyer has the right to require him to do it, and cannot be compelled to take one as good, or even better, if made by another; while, in the other case, the seller only agrees to sell and deliver the article, ufactured at the time," is a contract their non-delivery it was held that of sale and within the statute. Fick- it was a question for the jury to de- ett v. Swift, 41 Me. 65, 66 Arn. Dec. termine whether under the contract 214. the defendant was bound to raise 1 Pitkin v. Noyes, 48 N. H. 294, 2 the potatoes himself — in which case Am. R. 218. In this case plaintiff it would be a contract for work, made a parol contract with defend- labor and materials, and not within ant, whereby the latter was to raise the statute — or whether he might three acres of potatoes and deliver procure them by purchase or other- them to plaintiff at a stipulated wise — which would render it a con- price per bushel In an action for tract of sale and therefore void. 290 OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 313, 314-. and is under no obligation to make it himself but may purchase it of another." § 313. . In a later case, 1 in the same State, however, the court applied the English rule, Foster, J., saying: "Where the contract is for a chattel to be made and delivered, it clearly is a contract for the sale of goods. In such case the party sup- plying the chattel cannot recover for his labor in making it. If the contract be such that when carried out it would result in the sale of a chattel, the party cannot sue for labor; but if the result of the contract is that the party has done work and labor which end in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered. 2 . . , Where the contracting parties contemplate a sale of goods, al- though the snbject-matter at the time of making the contract does not exist in goods, but is to be converted into that state by the vendor's bestowing labor on his own raw materials, that is a case of a contract of sale within the statute of frauds." 3 314. The rule in Wisconsin and California. — In Wisconsin 4 the court approves the early English cases prior to Lee v. Griffin,) which they deem to have been controlled by Lord Tenterden's Act. and lavs down the rule as follows: "That while an executory contract for the sale of an article for the 1 Prescott v. Locke, 51 N. II. 94, 12 materials, and not for the def end- Am. R. 55. Here it was held that ant-.'* Citing Smith v. Surman, 9 B. a contract by defendant to buy of & C. 561. plaintiff all the spokes he should 2 Citing Lee v. Griffin, 1 B. & S. manufacture at his mill, not more 272. than one hundred thousand in all, 3 Citing Garbutt v. Watson. 5 B. & was a contract of sale. "The true Aid. 613; Smith v. Surman, supra. (•.instruction in this case." said the 4 Meincke v. Falk. 55 Wis. 4','7. 13 court, "is that the contract was for X. W. R. 545. 42 Am. R. 722. This the future sale of the spokes when case contains a very exhaustive re- they should be in a state fit for de- view of the authorities. See also livery. The vendor," so long as he Hardell v. McClure, 2 Pin. (Wis was sawing the timber and doing s. c. 1 Chand. (Wis.) 271; Central any other work preparing it for de- Lith. & Eng. Co. v. Moore, 75 Wis. livery in the form of spokes, was 170, 6 L. R. A. 788; Goodland v. Le doing work for himself upon his own Clair, 7 V Wis. 170. 47 N. W. R. 268. 291 §§ 315, 316.] LA.W OF SALE. [BOOK I- price of fifty dollars or more may be within the statute, not- withstanding such article does not at the time exist in solido y yet where such contract is to furnish materials and manufact- ure the article according to the specifications furnished or a model selected, and when without the special contract the thing would never have been manufactured in the particular manner, shape or condition it was, then the contract is essen- tially for special skill, labor or workmanship, and is not within the statute." § 315. . In California the court adopts the rule as laid down in "Wisconsin, and in almost the same language. 1 § 316. The rule in New Jersey. — In New Jersey 2 the rules are said to be, "First. That a contract for the sale of goods which is purely executory is as much within the statute as is- one to be executed in prcesenti. Second. That where a contract is made for an article not existing at the time in solido, and when such article is to be made according to order, and as a, thing distinguished from the general business of the maker, then such contract is in substance and effect not for a sale, but for work and materials." 1 Flynn v. Dougherty, 91 Cal. 669, alterations were made in them by 14 L. R. A. 230, 27 Pac. R. 1080. the plaintiffs at defendants' request, 2 Finney v. Apgar, 31 N. J. L. 266, and while they were still on plaint- which was a contract for the sale of iffs' premises, a painter, employed by a quantity of spokes which the de- the defendants, painted their name fendant was to "get out." Held, and business on the trucks. De- within the statute. Pawelski v. Har- fendants refused to pay for the» greaves, 47 N. J. L. 334, 54 Am. R. 162. trucks when the money was de- In this case the defendants went to manded before they were taken the shop of plaintiffs, who were from the plaintiffs' premises. In an wagon and carriage makers, to pur- action for damages, held, that the chase brewery trucks. Plaintiffs, contract was within the statute, not having any on hand, ordered The whole subject is again elabo- them with defendants' assent from rately considered in Mechanical makers in another town, and, when Boiler Cleaner Co. v. Kellner (1899), the trucks arrived, plaintiffs ac- 62 N. J. L. 544, 43 AtL R. 599. cepted and paid for them. Some 292 «H. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 317-319. § 317. The rule in New Mexico.— In a New Mexico .case * the court said that " the result of the doctrine declared b}^ the greater part of the decisions seems to be that when the work and labor is to be performed upon materials belonging to the vendor, and the chattel, when completed, is to be delivered to the vendee, or when, the materials being the property of the vendor, the goods ordered are of the kind usually manufactured by him, and which he generally sold in the ordinary course of business, the contract is within the statute. " But when the materials belong to the person to whom the goods are to be delivered when completed, and the other party is simply to expend his skill and labor upon them for the use of the owner, or where the goods to be made are of a special kind which the maker could not sell, unless the person order- ing them should take them, the contract is without the stat- ute." § 318. The rule in Colorado.— In a late case 2 in Colo- rado the court held a contract for the purchase and sale of a number of hemlock ties within the statute, although they were to be prepared from standing timber. The court says: " This was not essential to the contract; the goods might just as well, conformably with the contract, have been obtained by pur- chase ; " and asserts the rule that the true criterion is the con- dition of the goods at the date fixed for delivery. | 319. The rule in Minnesota.— In a recent Minnesota case, 3 where the contract was for the furnishing of certain glass work in the reconstruction of a building, and the evidence showed that some labor would be necessary upon the materials, as cutting and beveling the plate-glass, setting it in frames and cutting the other glass into sheets of the proper size, before the goods would be ready for use about the building, the court held that the contract was not one for the sale of goods within i Orman v. Hagar, 3 N. Mex. 568, 9 3 Brown & Haywood Co. v. Wun- Pac. R. 363. der, 64 Minn. 450, 67 N. W. R. 357. 2 Ellis v. Denver, etc. Ry. Co., 7 Colo. App. 350. 293 § 320.] LA.W OF SALE. [BOOK I. the statute, " but was a contract for the manufacture of articles of special and peculiar design, not suitable for the general trade." As authority for this position the court cites a very- early case l in the same State, in which, after an exhaustive re- view of the authorities, an identical conclusion is reached. In this latter case the plaintiff orally agreed to prepare and fit, for putting up in a specified place, four portable houses; he was only to fit the materials and not to put up the houses. The court said that the contract was not one for the sale of goods, and cites with approval the rule laid down by Mr. Parsons, 2 that if the contract states or implies that the thing is to be made by the seller, blending the price of the thing, and the compensation for materials, work, labor and skill indiscrimi- nately, it is not a contract of purchase and sale within the stat- ute, but is one of hiring and service. § 320. The rule in Missouri. — In a recent case 3 in Missouri the subject is very fully examined, and the following rule is formulated : " That, where the contract is for articles- coming under the general denomination of goods, wares and merchandise, the vendor being at the same time a manufacturer and a dealer in them as a merchant, or, so dealing, has them manufactured for his trade by others; and the vendee being also a merchant dealing in and purchasing the same line of goods for his trade, of which fact the vendor is aware; the quantity required and the price being agreed upon, and the goods contracted for being of the same general line which the vendor manufactures or has manufactured for his general trade as a merchant, requiring the bestowal of no peculiar care or personal skill or the use of material, or a plan of con- struction different from that obtaining in the ordinary produc- tion of such manufactured goods for the vendor's general stock in trade, the contract is one of sale, and within the statute of iPhipps v McFarlane, 3 Minn. 61 sp ra tt v. Miller, 109 Mo. 78, 18 S. (109). W. R. 965, 32 Am. St. R. 656. 2 Parsons on Contracts, vol. II, p. 344 [voL III, 8th ed., *p. 54]. 294 CB. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 321, 322. frauds, although the goods are not in solido at the time of the •contract, but are to be thereafter made and delivered." § 321. The rule in Georgia. — In a case 1 in Georgia, often cited, the cases in which the statute may or may not apply, and the rules applicable to them, are classified as follows: "All contracts for the sale of goods, existing at the time in solido, and capable of immediate delivery, constitute a class about which there can be no difficulty — they are within the statute, without a case to the contrary. The other class of contracts which are equally free from difficult}' are like that in Towers v. Osborne, where an agreement is made for goods not in esse, and therefore incapable of immediate delivery, but by the agreement to be made by the work and labor and with the material of the vendor, and which, when made, may be reason- ably presumed to be unsuited to the general market, such as contracts for the manufacture of goods suited alone to a par- ticular market, or for the painting of one's own portrait. In a former class, the contracts are for the sale of goods upon which no work or labor is to be bestowed. In the latter class, the work and labor and material constitute the prime considera- tion. They are for work and labor, and are, by authority and upon principle, without the influence of the statute. Ex equo et bono, a man who agrees to bestow his labor in the manu- facture of goods for a price, and which price he must lose un- less the goods are received by him who ordered them, ought to be paid; and a statute which would protect the purchaser from liability in such a case, would be alike impolitic and unjust. § 322. . "The cases which are difficult of determination are those which partake in some degree of both the classes referred to, yet fall decidedly within neither — contracts for goods upon which some labor must be bestowed to prepare them for delivery, and which, when ready for delivery, are vendible in the general market. . . . There really is but one exception to the operation of the statute, to wit : contracts 1 Cason v. Cheely (1849), 6 Ga. 554 295 § 323.] LAW OF SALE. [liOOK I. for work and labor; and this grows out of the palpable injus- tice of compelling a man, by law, in any case to lose the price of his labor. All cases which are not within the reason of this exception are not within the exception itself. Hence it is that a contract for goods (cotton bagging or cotton cloth, if you please) which are of pretty uniform value, of common consumption, and therefore very generally in demand, with a manufacturer of these articles, is not within the exception, al- though not in esse at the time, and to make which work and labor are necessary. The manufacturer does not necessarily lose the price of his labor — if the purchaser does not take the goods, others will — the work and labor bestowed are in the line of his business, and his work and labor would be bestowed in the production of such goods had the contract not been made. The goods and their price are the considerations of the contract, and not the work and labor and their price. With greater reason a contract for goods upon which work and labor must be bestowed, not to make them, but to prepare them for delivery, as the threshing of wheat, is not within the exception. In the light of all these views, the rule which we adopt and which I find admirably well expressed by Judge Butler in Bird v. Muhlinbrink, 1 is this: Such contracts only are excluded from the operation of the seventeenth section of the statute of frauds ' as primarily contemplate work and labor to be done at the instance of the purchaser and for his use and accommodation, so as to make the work and labor of the contracting vendor, or such as he may procure to be bestowed at his expense, the essential consideration of the contract.' The cases which recog- nize the principle thus expressed are numerous." § 323. The rule in Maryland. — In a late case 2 in this State, it is said that " from a very early period it has been the settled law of Maryland, where the statute of Charles has al- ways been in force, that when work and labor are to be be- stowed by the vendor upon the article sold before it is to be 1 1 Rich. (S. C.) L. 199, 44 Am. Dec. 2 Bagby v. Walker, 78 Md. 239, 27 247. AtL R. 1033. 29G CH. VII.] CONTRACT UNDER STATUTE OF FKATJDS. [§ 324. delivered, the contract is not within the statute. 1 And the reason is that when work and labor are necessary to prepare an article for delivery, the work and labor to be done by the vendor form part of the consideration of the contract, and, as these are not within the statute, the sale is not a sale of goods, wares and merchandise within the meaning of the seventeenth section." § 324. The rule in Iowa.— The statute of frauds in Iowa contains an exception which provides that the statute snail not apply " when the article of personal property sold is not, at the time of the contract, owned by the vendor and ready for delivery, but labor, skill or money are necessarily to be expended in producing or procuring the same." In a recent case 2 it appeared that the plaintiff had orally contracted with i Eichelberger v. McCauley. 5 H. & J. (Md.) 213, 9 Am. Dec. 514; Rentch v. Long. 27 Md. 188. zffighell v. Dougherty, 86 Iowa, 480, 53 N. W. R. 402, 17 L. R. A. 755. The court further said: " A brief re- view of a few cases which support the rule above laid down may bet- ter illustrate its application. Baker, Sales. § 54. Chief Justice Shaw held that when a contract is for an arti- cle then existing, or such an article as the vendor ' usually has for sale in the course of his business, the statute applies.' Mixer v. Howarth, 21 Pick. 205, 32 Am. Dec. 256. In the same case, Harris, J., expressed the opinion that, if the work and labor required to be done, in order to fit the subject-matter of the contract for delivery, was to be done for the vendor, the case would be within the statute. Story said ' that, where the subject-matter of the contract was not to be created by manufact- ure, but, being already in existence, was merely to be subjected to cer- tain labor for the purpose of render- ing it deliverable, or perhaps even of changing its character, the con- tract would be within the statute of frauds, it being essentially a con- tract of sale.' Story, Sales (Perkins' ed.), ?'?■ 260-260&. In other words, if the labor and service were wholly incidental to a subject-matter in esse, the statute applied." Id., § 260c. " The rule is thus stated in a late Massachusetts case: ' A contract for the sale of articles then existing, or such as the vendor, in the ordinary course of business, manufactures or procures for the general market, whether on hand or not, is a con- tract for the sale of goods, to which the statute applies. But. on the other hand, if the goods are to be manufactured especially for the pur- chaser, and upon his special order, and not for the general market, the case is not within the statute.' God- dard v. Binney, 115 Mass. 450, 15 Am. R. 112. In O'Neil v. New York & S. P. Min. Co., 3 Nev. 141, the court, 297 § 324.] LAW OF SALE. [BOOK I. defendant for the delivery to plaintiff, at a certain price, of fifteen hundred bushels of oats, then raised .but unthreshed. Defendant, having made default, contended that the contract was within the statute, while plaintiff urged that the case fell virtually following the rule laid down in Massachusetts, held that, to make the case one for work and labor, the contract should contem- plate or require some change in the condition, business or circumstances of the vendor. In Downs v. Ross, 23 Wend. 270. the contract was for the purchase of wheat, only a part of which was threshed, and that which had been threshed was to be further cleaned. It was held that the case was one of sale, not for work and labor. The court said: ' If the thing sold exist at the time in solido, the mere fact that the seller is to do something to put it in a marketable condition did not take the contract out of the operation of the statute of frauds.' Cooke v. Millard, 5 Lans. 246; Baker, Sales, §£ 30, 43. In Gil- man v. Hill, 36 N. H. 311, it was held that a contract for sheep pelts, to be taken from sheep, was a contract of sale. So a contract for the purchase of all the flax straw to be raised from forty-five bushels of flax seed, and to be ' delivered in a dry condi- tion, free from grass, weeds and all foreign substances,' was held a con- tract of sale, not for work, labor or skill, in producing the straw. Brown v. Sanborn, 21 Minn. 402. When wheat was sold to be delivered at a certain mill, and there was a con- flict in the evidence as to whether all of it was threshed prior to the time of making the contract, and the court refused to instruct the jury that, the wheat existing in solido at the time the contract was made, and not having to be raised or manufactured, though unthreshed, it was a contract within the statute of frauds, and the plaintiff could not recover, the case was reversed for the refusal to give the instruction. The court adhered to the doctrine that a contract for the sale of goods which may not at the time of such contract be actually made,, procured or provided, or fit or ready for deliv- ery, or some act may be requisite for the making or completing thereof, or rendering the same fit for deliv- ery, is within the statute. Hardell v. McClure, 2 Pinn. 289, 1 Chand. 271. "In a cause decided in 1882 this same court approved the holding in Handell v. McClure, and, in referring to the contract in that case, says: ' It was clearly not a contract for special labor in manufacturing anything, but a contract to sell and deliver a certain quantity of wheat.' Meincke v. Falk, 55 Wis, 437, 13 N. W. R. 545. See Clark v. Nichols, 107 Mass. 547. A contract for the sale of the whole of a crop of cotton for a certain year, to be delivered at a certain price per pound as soon as it could be gathered and prepared for market, was held within the statute. Cason v. Cheely, 6 Ga. 554. The rule we have an- nounced as applicable to the case at bar also finds support in the follow- ing cases: Spencer v. Cone, 1 Met. 283; Lamb v. Crafts, 12 Met. 353; Gardner v. Joy, 9 Met. 177; Prescott v. Locke, 51 N. H. 94, 12 Am. R. 55; Atwater v. Hough, 29 Conn. 508, 79 Am. Dec. 229; Finney v. Apgar, 31 298 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 325. within the exception. The court held, however, that the case was not within the exception, but was a contract of sale within the operation of the statute. Upon the first point the court said that the oats were not produced or procured since the contract within the meaning of the exception. " The grain existed at the time of the making of the contract, in the iden- tical form in which it would finally be sold. True, it must be harvested and separated from the straw and chaff. So the grain was not produced by the defendant at all, nor did he procure it. He had the oats, but, to put them in proper shape for market, he must cut, thresh and haul them. All this he would have done at his own instance, even if he had never heard of the plaintiff. This labor, skill and money, then, was not expended specially at the instance of the plaintiff." § 3*25. . Upon the second point the court said : " In cases like this we think the true rule is, if the grain is sold and no part of it delivered, and no part of the price is paid, and the contract is not in writing, and the labor, skill and money which is necessary to be expended upon it to fit it for market is such only as, in the ordinary course of the defendant's busi- ness, he would be compelled to expend upon it, or devote to it, in order to preserve and care for it as a good husbandman, the case is purely a sale, and comes within the statute. It may be, if the defendant had contracted to plant or raise a crop of such a character or kind as required special skill, labor or work, other than that required in the ordinary performance of his labors incident to raising and harvesting his crops, and such special skill and labor was contemplated at' the time the N. J. L. 266; Edwards v. Grand Trunk would have done if there had been E. Co., 48 Me. 379, 54 Me. 105; Saw- no contract of sale. The case, then, yer v.Ware, 36 Ala. 675; Bird v.Muh- is one clearly within our statute, linbrink, 1 Rich. (S. C.) L. 199. The contract not being in writing, " The evidence in this case shows no part of the price having been without conflict that the defendant paid, none of the oats having been expended no work, labor, skill or delivered, no evidence of the con- money on the oats other than he tract was properly receivable." 299 §§ 320, 327.] law of sale. [book r. contract was made, and was to be bestowed at the instance of and for the benefit of the plaintiff, that the case would be within the exception provided in our statute." In a later case l a contract for the sale of corn to be shelled, and that unfit for shelling to be thrown out, was held to be within the statute, as no labor was theu necessary to produce or procure the corn. § 326. The true rule. — The simplest and most satis- factory rule is doubtless that laid down by the English court in Lee v. Griffin. The fact that it was decided in. contempla- tion of Lord Tenterden's Act can be of no importance, inas- much as it has always been conceded in the United States that the statute of frauds is applicable to executory contracts. The New York distinction between things in existence and those not in existence, while definite and easily applied, is purely arbitrary, and is in manifest conflict with the clear intention of the parties in many cases. The Massachusetts rule, which excludes from the operation of the statute contracts for those articles which the vendor does not usually make, but which he undertakes to make in the particular instance in accordance with the special order of his customer, is more nearly satisfac- tory; but this distinction also, in some cases, does violence to the intention of the parties, inasmuch as it is usually the re- sult, and not the means or the method, which the parties are contracting for. Lee v. Griffin, however, has found but little following in the United States, while the Massachusetts rule seems likely to be received with favor wherever the courts are not debarred by earlier decisions from adopting it. 3. Auction Sales. § 327. Sales by auction are within the statute. — Notwith- standing some early doubts, it is now entirely settled that sales 1 Lewis v. Evans (1899), 108 Iowa, effect: Dierson v. Petersmeyer (1899), 296, 79 N. W. R. 81. See, also, to same — Iowa, — , 80 N. W. R. 389. 300 OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 328, 329. of chattels at auction are sales within the operation of the statute of frauds. 1 4. Contracts for Exchange or Resale. § 328. Contracts for exchange or resale, when within the statute. — Contracts of barter or exchange are included within the provisions of the seventeenth section. 2 So an independent contract for the rescission of an unconditional sale and the repurchase of the goods is within the statute; but not where the agreement for the rescission and resale was part of the orig- inal contract. 3 III. "What are Goods, Wares and Merchandise. § 329. English rule includes only corporeal movable prop- erty. — " The seventeenth section of the statute," says Mr. Ben- jamin (§ 111) in laying down the English rule, " applies to con- tracts for the sale of 'goods, wares and merchandise,' — words which comprehend all corporeal movable property. The statute, therefore, does not apply to shares, stocks, documents of title, choses in action, and other incorporeal rights and property. The following cases have been decided on this point: The stat- ute does not apply to a sale of shares in a joint-stock banking company, 4 nor to a sale of stock of a foreign State, 5 nor to a i Davis v. Eowell, 2 Pick. (Mass.) N. E. E. 377, 15 Am. St. E, 394, 5 L. 64, 13 Am. Dec. 398; Pike v. Balch, E. A. 630; Fay v. Wheeler, 44 Vt. 292 38 Me. 302,61 Am. Dec. 248; John- Williams v. Burgess, 10 Ad. & E. 499 son v. Buck, 35 N. J. L. 338, 10 Am. Dickinson v. Dickinson, 29 Conn. 600 E. 243; Norris v. Blair, 39 Ind. 90. Hilliard v. Weeks, 137 Mass. 304. 2 Bennett v. Hull, 10 Johns. (N. Y.) Contract for payment of debt in 364; Eutan v. Hinchman, 30 N. J. goods is a sale within the statute. . L. (1 Vroom), 255; Ash v. Aldrich, Sawyer v. Ware (1860), 36 Ala. 675. 67 N. H. 581, 39 Atl. E. 442; Gorman Contra, Woodford v. Patterson (1860), v. Brossard (1899), 120 Mich. 611, 79 32 Barb. (N. Y.) 630. N. W. E. 903. 4 Humble v. Mitchell, 11 A. & E. 3 Wulschner v. Ward, 115 Ind. 219; 205. Johnston v. Trask, 116 N. Y. 136, 22 5 Heseltine v. Siggers, 1 Ex. 856. 301 §§ 330, 331.] law or sale. [book r. sale of railway shares, 1 nor to a sale of shares in a mining com- pany on the cost-book principle, 2 nor to a sale of tenants' fix- tures." 3 § 330. Rule in United States more comprehensive. — In the United States, as will be observed from the summary given, 4 the statutes are often more comprehensive than the English act, extending to "goods" in some cases, and in others to "per- sonal property." This variance has caused a somewhat differ- ent line of results to be reached here, though there is doubtless at the same time a tendency to give the statute in its original form a more liberal interpretation. 3 The general rule in this country unquestionably includes not only corporeal movable property, both animate and inanimate, 6 but also those choses in action "which are subjects of common sale and barter, and which have a visible and palpable form." 7 § 331. What included — Stocks — Notes — Inventions, etc. Thus, live animals are included. "For whatever may have been the received meaning formerly of the words 'goods and merchandise,' it is quite certain that at present, according to our standard linguistic authorities, the word goods ' may well include oxen." 8 Stocks in corporations, which are generally not included in England, are here usually deemed to be within the statute, though this ruling in some cases was made under the more com- prehensive statutes referred to. In the leading case 9 in Massa- 1 Tempest v. Kilner, 3 C. B. 249; ^Weston v. McDowell (1870), 20 Bowlby v. Bell, 3 C. B. 284; Bradley Mich. 353. v. Holdsworth, 3 M. & W. 422; Dun- 7 Sonierby v. Buntin, supra. See cuft v. Albrecht. 12 Sim. 189. also Wood on Statute of Frauds, 2 Watson v. Spratley, 10 Ex. 222; §283; Browne on Statute of Frauds, Powell v. Jessopp, 18 C. B. 336. g 295. 3 Lee v. Gaskell, 1 Q. B. Div. 700. 8 Weston v. McDowell (1870), 20 4 See ante, %% 286, 287. Mich. 353. 5 Thus see, per Gray, C. J., in 9 Tisdale v. Harris (1838), 20 Pick. Somerby v. Buntin (1875), 19 Am. R. (Mass.) 9. So also Boardman v. Cut- 459; and Graves, J., in Weston v. ter (1880), 128 Mass. 388; Pray v. McDowell (1870), 20 Mich. 353. Mitchell (1872), 60 Me. 430; North v. 302 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 331. chusetts, where the statutory language was "goods, wares and merchandise," it was said: "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 reason- able restrictions designed by the statute to prevent fraud in the sale of other commodities. On the contrary, these com- panies have become so numerous, so large an amount of the property of the community is now invested in them, and as the ordinary indicia of property, arising from delivery and posses- sion, cannot take place, there seems to be peculiar reason for extending the provisions of this statute to them." On the other hand, in a late case in Maryland, 1 it is said: "A subscription for shares of stock in an ordinary corporation is not a contract for the sale of 'goods, wares and merchandise;' words which comprehend only corporeal movable property. Shares of stock are but choses in action, and are not within the statute." Promissory notes are also in the doubtful class, 2 and United States treasury checks have been held not to be included. 3 Gold, when " regarded, not as money, but as a commodity," is within the statute; 4 and so are the bills of a State bank; 5 and Forrest (1843), 15 Conn. 400; Spear v. In Meehan v. Sharp (1890), 151 Bach (1892), 82 Wis. 192, 52 N. W. R Mass. 565, 24 N. E. R. 90T, it is said to 97- Mayer v. Child (1872), 47 Cal. 142; be at least doubtful whether a sale Fine v. Hornsby (1876), 2 Mo. App. of stock that had not been regularly 61; Bernhardt v. Walls (1888), 29 Mo. issued could be brought within the App. 206; Brownson v. Chapman statute. (1875) 63 N Y 625. 2 That they are included: Baldwin So also Southern L. Ins. Co. v. Cole v. Williams (1841), 3 Mete. (Mass.) (1852) 4 Fla. 359, though here the 365; that they are not: Whittemore statute says « personal property." v. Gibbs (1852), 24 N. H. 484; Vawter i Webb v. Baltimore & East Shore v. Griffin (1872), 40 Ind. 593; Hudson Ry. Co. (1893), 77 Md. 92, 26 Atl. R. v. Weir (1856), 29 Ala. 294. 113, 39 Am. St. R. 396 [repudiating 3 Beers v. Crowell (1831), Dud. (Ga.) Colvin v. Williams (1810), 3 H. & J. 28. (Md.) 38, 5 Am. Dec. 417]. See also 4 Peabody v. Speyers (1874), 06 N. Y. Gadsden v. Lance (1841), 1 McMul. 230. \"t. 388; Mumford v. Whitney, 15 Wend. (N. Y.) 380, 30 Am. Dec. 60; Smith v. Benson, 1 Hill (N. Y.), 176; Russell v. Richards, 10 Me. 429, 35 Am. Dec. 254; Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202; Bennett v. Scutt, 18 Barb. (N. Y.) 347; Douglas v. Shumway, 13 Gray (Mass.), 198; Erskine v. Plummer, 7 Greeul. (Me.) 447, 22 Am. Dec. 210: Selch v. Jones, 28 Ind. 255]. In Fletcher v. Living- ston, 153 Mass. 388, there was a writ- ten contract to sell to plaintiff " all the wood and timber standing " on a certain piece of land, li with one year's time to get it off." There was a verbal extension of this time, and, after the vendor's death, a written extension by her administrator. None of the timber was removed within the time so extended and the administrator sold the land. Plaint- iff brought an action against the ad- ministrator and the purchaser for respectively selling the land and cutting the timber. Said the court: "It is well settled that a contract like that relied on by the plaintiff" does not immediately pass a title to property, and is not a sale or a con- tract for a sale of an interest in land, but an executory agreement for the sale of chattels, to take effect when the wood and timber are severed from t lie land, with a license to enter and cut the trees and remove them. Such a contract, if oral, is not within the statute of frauds, and its con- struction is the same as if it were in writing. Claflin v. Carpenter, 4 Mete. 580; Giles v. Simonds, 15 Gray. 441; Drake v. Wells, 11 Allen, 141; Hill v. Hill, 113 Mass. 103, 105; United So- ciety v. Brooks, 145 Mass. 410. The subject was fully considered by Chief Justice Bigelow in Drake v. Wells, nbi supra, and was discussed in the earlier case of Giles v. Simonds, and it was held that a purchaser of standing wood and timber, after sev- ering the trees from the land, had an irrevocable license to enter and re- move them; but that before they are cut his license may at any time be revoked by the land-owner, leaving him no remedy but an action to re- cover damages for the breach of the contract." 1 In addition to the cases cited 307 § 337.] LAW OF SALE. [book 337. On the other hand, as has been seen, a contract for the sale of trees to be cut and delivered by the vendor has- been held to be a sale of chattels, 1 and in some cases a parol contract for the sale of trees to be at once or soon cut and re- moved by the vendee has been held to fall within the seven- teenth section; 2 and in one such case, 3 where the vendee had entered and cut a part of the trees and sold some of them to a third person, but had not yet removed any, and the vendor then forbade him to enter on the land and to cut or remove any of the trees, it was held that the acts of the vendee amounted to a sufficient acceptance and receipt to satisfy the seventeenth section, and that the parol license to enter and take the trees, being thus coupled with a valid sale of them, was irrevocable. That the trees are to be soon removed seems to above, see Poor v. Oakman, 104 Mass. 309; White v. Foster, 102 Mass. 375; Wilson v. Fuller, 58 Minn. 149, 59 N. W. R. 988. In a written contract for the sale of all the pine timber on cer- tain land, a stipulation that it is to be cut and removed before a certain date is a condition of the grant and not a covenant, and conveys all the designated timber which shall be re- moved within the time specified. All trees which the grantee cuts down before the time limited be- come his personal property, which he has a right to remove within a reasonable time, even though the time fixed in the deed has expired. Hicks v. Smith, 77 Wis. 146, 46 N. W. R 133. i Smith v. Surman, 9 B. & C. 561. 2 According to these cases, " a sale of standing trees in contemplation of their immediate separation from the soil by either the vendor or vendee is a constructive severance of them, and they pass as chattels, and consequently the contract of sale is not embraced by the statute." Byassee v. Reese, 4 Mete. (Ky.) 372, 83 Am. Dec. 481 [citing 1 Greenl. Ev., § 271 ; Cain v. McGuire, 13 B. Mon. (Ky.) 340]. In Leonard v. Medford (1897), 85 Md. 666, 37 Atl. R. 365, 37 L. R. A. 449, it is said: " In Maryland, Massachusetts, Maine, Kentucky and Connecticut sales of growing trees to be presently cut and removed by the vendee are held not to be within the operation of the fourth section of the statute of frauds.'' Citing Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104; Purner v. Piercy, 40 Md. 212, 17 Am. R. 591; Claflin v. Carpenter, 4 Mete. (Mass.) 5S0, 38 Am. Dec. 381; Nettleton v. Sikes, 8 Mete. (Mass.) 34; Bostwick v. Leach, 3 Day (Conn.), 476; Erskine v. Plummer, 7 Me. 447, 22 Am. Dec. 216; Cutler v. Pope, 13 Me. 377; Cain v. McGuire, supra; Byasse v. Reese, supra. See also Crosby Hardwood Co. v. Trester, 90 Wis. 412, 63 N. W. R. 105<7. 3 Marshall v. Green, L. R. 1 C. P. Div. 35. 308 CH. VII.] CONTRACT UNDEE STATUTE OF FRAUDS. [§§ 338-340. be the test applied by these cases, and in the one last referred to Lord Coleridge said : " I think we must look to the position of matters at the time of the contract; and I think that where, at the time of the contract, it is contemplated by the parties that the purchaser should derive benefit from his land, then there is a contract within the fourth section; but if the thing purchased is to be immediately withdrawn from the land, then, the parties having had no intention of dealing with any in- terest in or concerning land, the contract does not fall within that section.'' § 338. . In still other cases this distinction is repudi- ated. Thus in a case in Maryland 1 it is said: "The circum- stance that the produce purchased may, or probably or cer- tainly will, derive nourishment from the soil between the time of the contract and the time of the delivery, is not conclusive as to the operation of the statute. . . . Where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether to be severed from the soil by the vendor or to be taken by the vendee under a spe- cial license to enter for that purpose, it is still, in contempla- tion of the parties, a sale of goods only, and not within the statute." | 339. . "Where trees are raised for the purpose of trans- planting and sale, as in the case of a nursery, it is held that a parol sale is valid. 2 §34.0. Growing crops. — Growing crops are of two kinds — those which spring naturally and perennially from the soil, such as grass, fruit, and the like, and known as fructus not urates; and those which do not spring spontaneously from the soil, but grow as the result of planting or sowing of seed i Purner v. Piercy, 40 Md. 212, 17 Mete. (Mass.) 313; Miller v. Baker, Am. R. 591. id. 27. -'Whitmarsh v. Walker (1810), 1 309 §§ 341, 342.] LAW OF SALE. [book r. and cultivation, such as corn, wheat and other cereals, potatoes, and the like, which are called fructus industriales. § 341. Fructus naturales. — As to the former class, much of the same uncertainty exists which prevails as to grow- ing trees, which obviously belong to the same class, and most of that which has been said regarding trees is applicable here. Mr. Benjamin 1 lays down the English rule as follows: "Grow- ing crops, if fructus naturales, are part of the soil Tjefore sever- ance, and an agreement, therefore, vesting an interest in them in the purchaser before severance is governed by the fourth section ; but if the interest is not to be vested till they are con- verted into chattels by severance, then the agreement is an executory agreement for the sale of goods, wares and merchan- dise, governed by the seventeenth and not by the fourth sec- tion of the statute." In the United States a variety of rules have been suggested, though, in general, the English rule prevails. 2 In some cases- it has been thought that if the crops were yet to derive some nourishment from the soil, the contract is to be considered one for an interest in land; but that, where the process of veg- etation is over, or where the parties agree that the thing* sold shall be immediately removed, the land is regarded as- a mere warehouse for the thing sold, and the contract is for goods. | 342, Fructus industriales. — In respect of this class Mr. Benjamin 3 gives the English rule as follows: "Growing crops, if fructus industriales, are chattels, and an agreement for the sale of them, whether mature or immature, whether the property in them is transferred before or after sever- ance, is not an agreement for the sale of anj^ interest in land i Benjamin on Sales, § 126. strong, 1 Denio (N. Y.), 550; Cutler 2 See cases cited supra as to grow- v. Pope, 13 Me. 377; Smith v. Leighton, ing trees. See also Wescott v. De- 38 Kan. 544, 5 Am. St. R. 778. lano, 20 Wis. 514; Green v. Arm- 3 Benjamin on Sales, § 126. 310 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 343, 344. and is not governed by the fourth section of the statute of frauds." In the United States the same rule prevails, 1 though it is usually held that a sale of the land carries with it the crops growing thereon in the absence of a written reservation of the crops. 2 Such crops only, it is held, can be regarded as fructus in- (hisfriales, so far as the right to emblements is concerned, as ordinarily repay the labor by which they are produced within the year in which that labor is bestowed, though the crop may, in extraordinary seasons, be delayed beyond that period. 3 § 34-3. — — Fruit, hops, etc. — Many kinds of fruit are prop- erly to be classed under the head of fructus naturales, and so it was formerly held of hops. But on account of the great labor required to be annually bestowed upon them, it is now held that hops 4 and many kinds of fruit are rather to be classed among the fructus ind ust /'idles. § 344. . Thus, in a leading case in Maryland, 5 it was held that a sale of a crop of peaches then growing in the seller's orchard, to be gathered and removed by the purchaser as they matured, was not within the statute as a sale of an interest in land, the court saying that " a growing crop of peaches or other 1 Carson v. Browder, 2 Lea (Term.), Mcllvaine v. Harris, 20 Mo. 457, 64 701; Frank v. Harrington, 36 Barb. Am. Dec. 196. (N. Y.) 415; Davis v. McFarlane, 37 3 Graves v. Weld, 5 B. & Ad. 105. CaL 634, 99 Am. Dec. 340; Bricker v. 4 Frank v. Harrington, 36 Barb. Hughes, 4 Ind. 146; Weatherby v. (N. Y.) 415; Rodwell v. Phillips, 9 M. ] 1 1 -ins, 6 Ind. 73; Moreland v. Myall, & W. 501. 14 Bush (Ky.), 474; Holt v. Holt, 57 sPurner v. Piercy, 40 Md. 212, 17 Mo. App. 272. Am. R. 591. That fruit requiring 2 Vanderkarr v. Thompson, 19 Mich, annual labor, like apples, peaches, 82; Tripp v. Hasceig. 20 Mich. 254: blackberries, and the like, is fructus Scriven v. Moote, 36 Mich. 64; Rug- industriales, see also Smock v. gles v. First Nat. Bank, 43 Mich. 192; Smock, 37 Mo. App. 56; Vulicevich Coman v. Thompson, 47 Mich. 22; v. Skinner, 77 CaL 239. Knapp v. "Woolverton, 47 Mich. 292; 311 § 344.] LAW, OF SALE. . [BOOK I. fruit, requiring periodical expense, industry and attention in. its yield and production, may be well classed as fructus in- dustriales, and not subject to the fourth section of the statute." In this case the court, ignoring many of the distinctions often made, lays down the rule as follows: " There is nothing in the vegetable or fruit which is an interest in or concerning land, when severed from the soil, whether trees, grass and other spontaneous growth {prima vestura), or grain, vegetables, or any kind of crops (fructus industriales) the product of peri- odical planting and culture; they are alike mere chattels, and the severance may be in fact, as when they are cut and re- moved from the ground; or in law, as when they are growing, the owner in fee of the land, by a valid conveyance, sells them to another person, or where he sells the land, reserving them by express provision. " As a general rule, if the products of the earth are sold specifically, and by the terms of the contract to be separately delivered, as chattels, such a sale is not affected by the fourth section of the statute, as amounting to a sale of any interest in the land. "When such is the character of the transaction, it matters not whether the product be trees, grass or other spontaneous growth, or grain, vegetables or other crops raised periodically by cultivation; and it is quite as immaterial whether the prod- uct is fully grown or in the process of growing at the time of making the contract. " The circumstance that the produce purchased may, or prob- ably or certainly will, derive nourishment from the soil be- tween the time of the contract and the time of the delivery, is not conclusive as to the operation of the statute. "If the contract, when executed, is to convey to the pur- chaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute; but if the con- tract is, in the interim, to confer upon the purchaser an exclusive right in the land for a time, for the purpose of making a profit of the growing surface, it is affected by the statute, and must 312 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 345-34:7. be in writing, although the purchaser is at the last to take from the land only a chattel." § 345. Crops to be raised.— A contract for the sale of a crop to be raised and delivered by the owner of the soil is clearly not within the provisions of the fourth section, 1 though question might be made whether it was a contract for the sale of goods or a contract for work and labor. 2 Contracts for crops to be raised by the party who is to have them stand obviously upon different ground. g 346. Uncut ice. — Ice gathered and prepared for the market is, of course, a subject of sale as personalty; 3 but even while yet uncut and ungathered a contract for its sale has been held to be for a sale of personalty. Thus, in the leading case, 4 Campbell, C. J., says : " The ephemeral character of ice renders it incapable of any permanent or beneficial use as part of the soil, and it is only valuable when removed from its original place. Its connection — if its position in the water can be called a connection — is neither organic nor lasting. Its re- moval or disappearance can take nothing from the land. It can only be used and sold as personalty, and its only use tends to its immediate destruction. We think that it should be dealt with in law according to its uses in fact, and that any sale of ice ready formed, as a distinct commodity, should be held a sale of personalty, whether in the water or out of the water." § 347. Minerals. — Although the term "land " includes what is above and below the surface of the earth, and minerals 1 Watts v. Friend. 10 B. & C. 446; 3 See Morse v. Moore, 83 Me. 473, 22 Pitkin v. Noyes, 48 N. H. 294, 97 Am. AtL R. 362, 13 L. R. A. 224, 23 Am. Dec. 615. 2 Am. R. 218. See also St. R. 783; Murchie v. Cornell, 155 Webster v. Zielly, 52 Barb. (N. Y.) Mass. 60, 29 N. E. R. 207, 14 L. R. A. 482; Talmadge v. Lane, 41 N. Y. 492. Supp. 413, 17 Misc. 731. Contra, Bow- * Higgins v. Kusterer, 41 Mich. 318, man v. Conn, 8 Ind. 58. 32 Am. R. 160. But see State v. Pott- 2 See Pitkin v. Noyes, supra. meyer, 33 Ind. 402, 5 Am. R. 224. 313 § 348.] LAW OF SALE. [BOOK I. lying below it are included in the general definition of land, nevertheless when these ores or minerals are severed from their immediate connection with the earth, as they must necessarily be in mining, they cease to be a part of the land and become chattels. 1 Hence a contract by which parties are to work quar- ries of stone or mines of lead upon another's land is not a con- tract for the sale of an interest in land when the contract also provides that the parties are to divide the proceeds from the sale of stone so quarried or the minerals so dug; 2 for the par- ties who work the quarries or mines have no interest in any land, but only in the substances taken by them, which are chat- tels. So also in the mining States on the Pacific slope the claim to mine or the right to mine is a chattel interest, while the mine itself is realty. 3 The reason for this rule is, that the right rests only upon possession and is not an interest in land. IV. Of the Pkice or Yalue. §348, Operation of the statute.— As has been seen, the English statute by its terms applies only to contracts for the sale of goods, wares and merchandise of the price or value of ten pounds and upwards; and this provision has been gen- erally adopted in the American States, the limit fixed being usually $50, but varying in other States from no stated amount whatever up to $300. Consideration has also been given to the various methods of fixing the price, and nothing further need here be said on that subject. Where the parties have expressly fixed the price, or where it is readily ascertainable from the data or standards agreed upon, the question whether the price or value is such as to i Green v. Ashland Iron Co., 62 Pa. 3 Hardenbergh v. Bacon, 33 Cal. 356; St. 97; Kelley v. Ohio Oil Co., 57 Ohio Table Mount, etc. Co. v. Stranahan, St. 317, 49 N. E. R. 399, 39 L. R. A. 765. 20 CaL 198. * Treat v. Hiles, 68 Wis. 344. 314 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 349. make the statute applicable is usually one of little difficulty. Certain unusual questions may, however, present themselves, to which some attention must be paid. Thus — § 349. Sales of various articles aggregating more than the limit. — "Where a sale is contracted for of various articles, none of which by itself is of the price or value fixed, but the aggregate of which falls within the provisions of the statute, the question of the statute's application presents some diffi- culty. The usual rule is that where several articles are sold at sub- stantially the same time and as part of the same transaction, though at a separate price for each article, the contract will be deemed to be entire, and the statute will apply according as the aoffreixate falls within or without the limit. 1 This has DO © 1 The leading case upon this sub- ject is that of Baldey v. Parker. 2 B. & C. 87. There the plaintiffs were linen-drapers, and the defendant came to their shop and bargained for several articles. A separate price was agreed for each, and no one arti- cle 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 large bulk. He then desired an account of the whole to be sent to his house, and went away. The account as sent amounted to 707., and he demanded a discount of 20/. per cent, for ready money, which was refused. The goods were then sent to his house, and he refused to take them. Held, that this was one entire contract within the seventeenth section. All the judges, Abbott, C. J., Bayley, Holroyd and Best, JJ., gave separate opinions. Abbott, C. J., said: " Look- ing at the whole transaction, I am of opinion that the parties must be con- sidered to have made one entire con- tract for the whole of the articles." Bayley, J., said : " It is conceded that on the same day, and indeed at the same meeting, the defendant con- tracted with the plaintiffs for the purchase of goods for a much greater amount than 107. 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 seven- teenth section; and I think that the circumstance of a separate price being fixed upon each article makes no such difference as will take the case out of the operation of that law.'' Holroyd, J., said: "This was all one transaction, though composed of dif- ferent 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 be a con- tract for a much larger amount. At last, therefore, it was one entire con- tract within the meaning and mis- 315 350.] LAW OF SALE. [BOOK I. been held to be so, though the articles were to be delivered at different times; 1 though part were yet to be manufactured; 2 and though the various articles contracted for were at different places and the bargain as to each was made where each article was, but all on the same day. 3 " The mere fact that a separate price is agreed upon for each article," it is said, "or even that each article is laid aside as purchased, makes no difference so long as the different pur- chases are so connected in time or place or in the conduct of the parties that the whole may be fairly considered one entire transaction." 4 350. There may be cases, however, where the con- tract as to each article is distinct, and then the statute must be applied to each sale separately. Thus it has been held that where the terms and responsibilities differ as to the various articles, the contracts are distinct; 5 and so they are where dif- chief of the statute of frauds, it being the intention of that statute that tvhere the contract, either at the com- mencement or at the conclusion, amounted to or exceeded the value of 101., it should not bind unless the requisites there mentioned were com- plied with. The danger of false tes- timony is quite as great where the bargain is ultimately of the value of 10Z. as if it had been originally of that amount." Best, J., said: '-What- ever this might have been at the be- ginning, it was clearly at the close one bargain for the whole of the arti- cles. The account was. all made out together, and the conversation about discount was with reference to the whole account." Baldey v. Parker is followed in Allard v. Greasert, 61 N. Y. 1, and in the cases cited in fol- lowing notes. See also Cooke v. Mil- lard, 65 N. Y. 352, 22 Am. R. 619. i Gault v. Brown, 48 N. H. 183, 2 Am. R. 210. 2 Scott v. Railway Co., 12 M. & W. 33. 3 Bigg v. Whisking, 14 C. B. 195. 4 Browne on the Statute of Frauds, §314. 5 Thus where there was a sale by auction of various articles, in differ- ent amounts and at different prices, the court, after referring to other cases deemed to be entire, said : " But in neither of these cases was there any difference in the terms of sale or of warranty by the seller — the terms were precisely the same, and the guaranty the same, as to every arti- cle sold. In the case before us the terms and responsibility were differ- ent, and there were two distinct con- tracts; and it requires no reasoning nor authority to show that two dis- tinct contracts are not one contract." 316 CII. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 351. ferent articles are bought at distinct prices, to be delivered at different times and paid for on delivery. 1 § 351. Sales of various articles at auction. — Al- though the contrary has been held in the case of sales by auc- tion of distinct parcels of land at separate biddings and for a several price for each, 2 in regard to sales of various articles of personalty by auction it has been held that the same rule ap- plies which applies, as has been seen, to private sales, i. e., that ordinarily the contract is to be regarded as entire for all the articles, even though the articles were numerous and were struck off separately at separate and distinct prices, 3 and that it can make no difference, in this respect, whether the auction con- tinued one day or several days upon the same lot of goods sold on the same terms. 4 Barclay v. Tracy (1842), 5 Watts & Serg. (Pa.) 45. 1 Thus where there was negotiation for the sale of apples and a crop of barley, the apples to be delivered im- mediately, and the barley as soon as a car could be procured for shipping it, the court said: "The articles sold were of different characters: they were to be delivered at different times, and paid for respectively on delivery. The contract was to be executed distributively, as was said by Judge Der.io in respect to the hogs sold in the case of Tipton v. Feitner, 20 N. Y. 425. The case seems to me precisely within the rule or exception stated by Chancellor Wal- worth in Mills v. Hunt, 20 Wend. 434." Aldrich v. Pyatt (1872), 64 Barb. (N. Y.) 391. In Irvine v. Stone, 6 Cush. 508, where thex - e was an oral contract for the sale of a large quantity of coal, and also for its transportation, it was held that the contract being void as to the sale was void also as to the transportation: but in Harman v. Reeve, 25 L. J. Com. PI. 257, where the contract was for the sale and pasturing of a mare and colt, worth over 10/., the court, while holding the contract entire, said that a recovery could be had for the pasturing. . - Van Eps v. Schenectady, 12 Johns. (N. Y.) 436, 7 Am. Dec. 330. A fortiori so if a separate memo- randum is signed for each. Wells v. Day, 124 Mass. 32. 3 Mills v. Hunt, 17 Wend. (N. Y.) 336, 20 id. 431 ; Coff man v. Hampton, 2 Watts & Serg. (Pa.) 377, 37 Am. Dec. 511; Jenness v. Wendell, 51 N. H. 63, 12 Am. R. 48; Tompkins v. Haas, 2 Pa. St. 74 (citing also 1 Salk. 65). The remarks in Messer v. Wood- man, 22 N. H. 172, 53 Am. Dec. 241, to the contrary, are said, in Jenness v. Wendell, supra, to be mere dicta. * Jenness v. Wendell, 51 N. H. 63, 12 Am. R. 48. 317 §§ 352, 353.] law of sale. [book i. § 352, How, when amount uncertain at time of sale. — "Where, at the time the contract for the sale is entered into, the amount is uncertain, as where the exact quantity, weight or price is yet to be ascertained, the application of the statute is to be determined by the result. 1 Thus, a contract to sell all the broom-corn which might be raised in a given year on a certain piece of ground at a fixed price per ton, 2 or to sell all the flax-straw at a given price per ton which might be raised from a certain quantity of seed, 3 or to buy all the mules of a given strain which might be bred during a certain season at a fixed price per head, 4 is within the statute where the result shows the aggregate to exceed the statutory limit, though in each case the minimum unit was below the limit. Where no price at all is expressly agreed upon, Mr. Browne 5 expresses the opinion that the parties, agreeing thus tacitly upon the quantum valet, "do contract for a fair price, which is capable of being ascertained by proof, and thus their bargain is brought within the reach of the statute, where that price is shown to exceed the amount therein fixed." Y. Of Acceptance and Receipt. § 353. What the statute requires. — The English statute declares, and the American statutes are substantially the same, that no contract of sale of the kind already considered shall be good, unless — 1. The buyer shall accept part of the goods so sold and act- ually receive the same ; 2. Or give 'something in earnest to bind the bargain, or in part payment; 1 Watts v. Friend, 10 B. & C. 446; 3 Brown v. Sanborn, supra. Carpenter v. Galloway (1881), 73 Ind. 4 Carpenter v. Galloway, supra. 418; Brown v. Sanborn (1875), 21 Minn. 5 Browne on Statute of Frauds, 402; Bowman v. Conn (1856), 8 Ind. 58. § 313. 2 Bowman v. Conn, supra. 318 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 354, 355. 3. 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. The first of these exceptions must now be considered. And, at the outset, it must be noticed that — ■ § 354. Delivery, acceptance and actual receipt are re- quired. — The statute requires two things of the buyer which are here radically different in their nature, neither of which is the equivalent of the other, and neither of which can be dis- pensed with, i. e., (1) that the buyer shall accept part of the goods so sold, and (2) shall actually receive the same. But be- fore the buyer can accept and actually receive the goods, it is evident that there must be a delivery of them by the seller. The result, therefore, is to require a delivery by the seller, and an acceptance and actual receipt by the buyer. Each one of these elements may exist without the others, but the absence of any one of them will invalidate the sale. Thus — 1. Of Delivery l)ij the Seller. § 355. Necessity of delivery. — There must be a delivery of the goods by the seller in pursuance of the contract and with the intention to pass the title. 1 This delivery must also be the voluntary, intentional act of the seller. If, therefore, the pur- chaser acquires possession of the goods without the seller's con- sent, by mistake or fraud, 2 or by legal process, 3 or without the seller's knowledge, 4 or after his order for their delivery had been countermanded, 5 or from an agent whose authority was not sufficient or had expired, 6 there will not be such a delivery as the statute contemplates. 1 Washington Ice Co. v. Webster, 3 Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. R. 462; Smith v. supra. Hudson, 6 B. & S. 431. 4 Young v. Blaisdell, 60 Me. 272. 2 Brand v. Focht, 1 Abb. App. Dec. 5 Smith v. Hudson, supra. (N. Y.) 185. 6 Matthiessen, etc. Co. v. McMahon, 38 N. J. L. 536. 319 §§ 356-358.] law of sale. [book r. § 356. But delivery alone not enough. — But, obviously, in- asmuch as there may be a form of delivery without either an acceptance or actual receipt by the purchaser, delivery alone is not enough. Thus, though the delivery of goods to a common carrier, consigned to the buyer for transportation to him, may be a sufficient delivery to pass the title, it does not constitute such an acceptance and receipt by the buyer as will satisf}^ the statute, even though the carrier were one designated by the buyer, unless the latter also authorizes the carrier to accept. 1 The requirements of the statute demand action on the part of both the seller and the buyer, and clearly, therefore, no act of the seller alone, in attempted execution of the contract, can suffice. 2 The fuller expositions of this principle will be found in the following subdivisions. 2. Of Acceptance faj the Buyer. §357. Acceptance must be shown. — Passing now to the acts required of the buyer, attention will be paid to the require- ment of acceptance. Not only must there be a delivery by the seller, but the buyer must also accept a part, at least, of the goods sold. As will be at once seen, there may be both a de- livery and a receipt of the goods without an acceptance, as where the buyer has the right to examine the goods after their receipt to determine whether he will accept; but both such a delivery and receipt will not suffice without acceptance. §358. Must be voluntary and unconditional. — The acceptance of the goods which will satisfy the requirement of the statute must be the voluntary, unequivocal and uncondi- tional act of the buyer or his authorized agent, manifesting his 1 See post, § 365. W. R. 465; Jamison v. Simon, 68 Cal. 2 Caulkins v. Hellman, 47 N. Y. 449, 17, 8 Pac. R. 502; Hansen v. Roter, 7 Am. R. 461; Taylor v. Mueller, 30 64 Wis. 622, 25 N. W. R. 530; Smith Minn. 343, 44 Am. R. 199, 15 N. W. R. v. Brennan, 62 Mich. 349, 28 N. W. R. 413; Simmons Hardware Co. v. Mul- 892; Ex parte Parker, 11 Neb. 309; len, 33 Minn. 195, 22 N. W. R. 294; Powder Live Stock Co. v. Lamb, 38 Fontaine v. Bush, 40 Minn. 141, 41 N. Neb. 339, 56 N. W. R. 1019. 320 CH. Til.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 35* intention to accept the goods in pursuance of the contract, and to appropriate them to himself as owner by virtue of the contract. 1 1 Hinchman v. Lincoln, 124 U. S. 38; Jones v. Reynolds, 120 N. Y. 213; Stone v. Browning, 51 N. Y. 211, 68 id. 598; Gilman v. Hill, 36 N. H. 311; Remick v. Sandford, 120 Mass. 309; Jones v. Mechanics" Bank. 29 Md. 287, 96 Am. Dec. 533; Hausman v. Nye, 62 Ind. 485. 30 Am. R 199; Hershey Lumber Go. v. St. Paul Sash Co., 66 Minn. 449, 69 N. W. R. 215; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. R. 771; Dauphiny v. Red Poll Creamery Co. (1899), 123 Cal. 548, 56 Pac. R. 451; Young v. Blaisdell. 60 Me. 272; Din- nie v. Johnson (1898). 8 N. Dak. 153, 77 N. W. R. 612. " To take a contract out of the stat- ute of frauds the vendor must no1 only act with the purpose of vesting the right of possession in the vendee, but the latter must actually accept with the intention of taking posses- sion as owner." Dierson v. Peters- meyer (1899), Iowa, — , 80 N. W. R. 389. In Hinchman v. Lincoln, supra, the court said: "In order to take the contract out of the operation of the statute, it was said by the New York court of appeals in Marsh v. Rouse, 44 N. Y. 643. 647, that there must be acts ' of such a character as to un- equivocally place the property within the power and under the exclusive dominion of the buyer 'as absolute owner, discharged of all lien for the price. This is adopted in the text of Benjamin on Sales, £ 179, Bennett's 4th Am. ed., as the language of the decisions in America, In Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316. Gardiner, J., adopts the language 21 3 of the court in Phillips v. Bistolli. 2 B. & C. 511, 'that to satisfy the stat- ute 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 accept- ance by the latter with the intent of taking possession as owner.' And adds, ' This, I apprehend, is the cor- rect rule, and it is obvious that it can only be satisfied by something done subsequent to the sale unequiv- ocally indicating the mutual inten- tions of the parties. Mere words are not sufficient. Bailey v. Ogden, 3 Johns. 399, 3 Am. Dec. 509. ... In a word, the statute of fraudulent con- veyances and contracts pronounced these agreements, when made, void, unless the buyer should " accept and receive some part of the goods." The language is unequivocal and de- mands the action of both parties, for acceptance implies delivery, and there can be no complete delivery without acceptance.' Page 265. In the same case Wright, J., said: '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 carried the principle of constructive delivery to the ut- most limit. . . . 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 inferences to be drawn from them, and hold the con- tract to be within the statute. . . . 21 §§ 359, 3G0.] LAW OF SALE. L B00K r « § 359. No acceptance while awaiting test or oppor- tunity for examination. — Until, therefore, the buyer has had an opportunity to accept, as where the goods are a part of a larger mass from which they have not yet been separated, 1 or while the goods are not yet ready for acceptance, as where the vendor is to do some act in reference to them to put them into the agreed condition, 2 or while the goods are awaiting or being subjected to examination to ascertain whether they will be accepted, 3 there can, of course, be no such acceptance as is here required. §360. Acceptance may be implied. — The acceptance by the buyer need not be express, but may be implied from his acts. As is said in a late case : 4 " The act of acceptance is something over and beyond the agreement of which it is a part performance, and which it assumes as already existing. It is a fact to be proven as are other facts. Acts of ownership constitute strong evidence of acceptance. 5 So, too, does a long and unreasonable delay in returning goods. 6 If a vendee does any act with reference to the thing sold, of wrong if not the owner, or of right if he is the owner, it is evidence that he has accepted it. 7 The rule may be broadly stated that any act from which it may be inferred that the buyer has taken pos- session as owner presents a question for the jury to determine whether the act was done with intent to accept." 8 I think I may affirm with safety that 3 Stone v. Browning, 51 N. Y. 211, the doctrine is now clearly settled 68 id. 598; Rernick v. Sandford, 120 that there must not only be a deliv- Mass. 809; Mechanical Boiler Cleaner ery by the seller, but an ultimate Co. v. Kellner (1899), 62 N. J. L. 544, acceptance of the possession of the 43 Atl. R. 599. goods by the buyer, and that this 4 Jones v. Reynolds, 120 N. Y. 213. delivery and acceptance can only be 5 Reed on Statute of Frauds, § 261. evinced by unequivocal acts inde- 6 Citing Bushell v. Wheeler, 15 Q. pendent of the proof of the con- B. 442; Treadwell v. Reynolds, 39 tract.'" Conn. 31. To same effect: Chambers i Knight v. Mann, 118 Mass. 143; v. Lancaster (1899), 160 N. Y. 342, 54 Terney v. Doten, 70 Cal. 399. N. E. R. 707. 2Gilman v. Hill, 36 N. H. 311; Out- ' Citing Parker v. Wallis, 5 El. & water v. Dodge, 7 Cow. (N. Y.) 85; Bl. 21. Wegg v. Drake, 16 U. C. Q. B. 252. 8 Citing Baines v. Jevons, 7 C. & P. 322 OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 3C1, 362. § 361. . Other illustrations of tlie same rule are found in such acts of ownership as selling, offering to sell, or pledg- ing the goods, 1 directing the goods, e. (/., silverware, to be en- graved with the buyer's name; 2 ordering alterations to be made in a carriage and using it ; 3 cutting down a part of tim- ber sold and reselling a portion of it, 4 or selecting and mark- ing the trees ; 5 taking possession of wood sold and hiring it repiled; 6 expressing satisfaction with an article delivered and asking for other things which are to go with it; 7 trying on a dress made and saying one will take it, though it is then left with the dressmaker temporarily for the buyer's convenience; 8 sending one's servants to take possession of and bale a stack of hay bought, though the whole stack was accidentally burned about twenty minutes after they began; 9 expressing satisfac- tion with the deposit of the goods for him in a warehouse and making a partial payment of the price, though the buyer had not yet examined them. 10 § 362. When acceptance must occur, — The acceptance and receipt need not take place at the time the contract of sale is made, but may occur subsequently. 11 Neither is it necessary that the acceptance and the receipt should be contemporane- 288; Pinkham v. Mattox, 53 N. H. 3 Beaumont v. Brengeri, 5 Com. B. 600; Gray v. Davis, 10 N. Y. 285. See 301. also Stockwell v. Baird, 15 Del. 420. 4 Marshall v. Green, L. R. 1 C. P. D. 31 Atl. R. 811. 35. i Chaplin v. Rogers, 1 East, 192; ^Byassee v. Reese, 4 Mete. (Ky.) Morton v. Tibbett. 15 Q. B. 428; Phil- 372, 83 Am. Dec. 481. lips v. Ocmulgee Mills. 55 Ga. 633; 6 Richards v. Burroughs, 62 Mich. Taylor v. Mueller, 30 Minn. 343, 44 117. Am. R. 199; Roman v. Bressler, 49 ' Schmidt v. Thomas, 75 Wis. 529. Neb. 368, 49 N. W. R. 368. The pay- 8 Galvin v. Mackenzie, 21 Oreg. 184, ing of freight on goods, opening the 27 Pac. R. 1039. boxes and removing a portion of the 9 Corbett v. Wolford, 84 Md. 426, 35 ■contents, and giving a chattel mort- AtL R. 1088. gage upon them, constitute such acts 10 Shaw Lumber Co. v. Manville, — of ownership as will imply accept- Idaho, — , 39 Pac. R. 559. ance. Wyler v. Rothschild, 53 Neb. "Amson v. Dreher, 35 Wis. 615; 566, 74 N. W. R. 41. McKnight v. Dunlop, 5 N. Y. 537, 55 2 Walker v. Boulton, 3 U. C. Q. B. Am. Dec. 370; Gault v. Brown, 48 (O. S.) 202. N. H. 183, 2 Am. R. 210; Bush v. 323 §§363-365.] law or sale. [book I. ous, but the goods may be accepted before they are received,, or received before they are accepted. 1 § 363. Who may accept — Agent.— The acceptance may be not only by the buyer himself, but by an agent with sufficient authority. 2 This authority may be conferred in the same man- ner as in other cases, and may be established either by proof, a prior authorization or a subsequent ratification. 3 It cannot, however, depend upon the same parol agreement which is sought to be rendered valid by the acceptance. 4 The authority relied upon must, moreover, be adequate to the act to be established. Thus an authority to receive the goods will not, of itself, suffice to warrant an acceptance of them, and vice versa. 5 § 364. Tenants in common.— A delivery to and an ac- ceptance by tenants in common will, it is held, be sufficient to support a sale of the goods to one of them. 6 | 365. Carrier. — A carrier employed to transport the goods, even though designated by the buyer, is not thereby au- thorized to accept the goods, though when so designated he is, of course, authorized to receive them. To authorize him to ac- cept, some other authorization than his mere employment as a carrier is necessary. 7 Holmes, 53 Me. 417; Marsh v. Hyde, Oneida Co., 76 Wis. 56, 45 N. W. R. 3 Gray (Mass.), 331 ; Ortloff v. Klitzke, 21. 43 Minn. 154, 44 N. W. R. 1085. 3 See Mechem on Agency, § 81. i Cross v. 0"Donnell, 44 N. Y. 661, 4 Hawley v. Keeler, 53 N. Y. 114. 4 Am. R. 721; Pinkham v. Mattox, 5 Taylor, Ev., § 1045. 53 N. H. 600; Knight v. Mann, 118 6 Wilkinson 's Adm'r v. Wilkinson,. Mass. 143; Garfield v. Paris, 96 U. S. 61 Vt. 409. 557, 1 i n Johnson v. Cuttle, 105 Mass. 2 Snow v. Warner, 10 Mete. (Mass.) 447, 7 Am. R. 545, Gray, J., said: 132, 43 Am. Dec. 417; Jones v. Me- "Mere deliveryis not sufficient; there chanics' Bank, 29 Md. 287, 96 Am. must be unequivocal proof of an ac- Dec. 533; Gaff v. Homeyer, 59 Mo. ceptance and receipt by him. Such 345; Wilcox Silver Plate Co. v. Green, acceptance and receipt may indeed 72 N. Y. 17; Vanderbilt v. Central R. be through an authorized agent. But R. Co., 43 N. J. Eq. 669; Alexander v. a common carrier (whether selected 324 en. til] contract under statute of frauds. [§ 366. § 366. Administrator. — A special administrator can- not, it is held, accept goods in pursuance of a parol contract made by bis intestate. Said the court: "While an adminis- trator or executor may be authorized, and under some circum- stances compelled, to carry out the terms and provisions of a valid contract entered into by the deceased, he cannot make any contracts for him or ratify his void transactions." J by seller or by the buyer), to whom the goods are intrusted without ex- press instructions to do anything but to carry and deliver them to the buyer, is no more than an agent to carry and deliver the goods, and has no implied authority to do the acts required to constitute an acceptance and receipt on the part of the buyer, and to take the case out of the statute of frauds;" citing Snow v. Warner, 10 Mete (Mass.) 132, 43 Am. Dec. 417; Frostburg Mining Co. v. New Eng- land Glass Co., 9 Cush. (Mass.) 115;' Boardman v. Spooner, 13 Allen (Mass.). 353, 90 Am. Dec. 196; Quintard v. Bacon, 99 Mass. 185; Norman v. Phillips. 14 M. & W. 277; Nicholson v. Bower. 1 El. & El. 172. To same effect: Allard v. Greasert, 61 N. Y. 1 ; Billin v. Henkel. 9 Colo. 394; Simmons Hardware Co. v. Mul- len, 33 Minn. 195; Taylor v. Mueller, 30 Minn. 343, 44 Am. R. 199: Atherton v. Newhall, 123 Mass. 141, 25 Am. R. 47; Hudson Furniture Co. v. Freed Furn. Co., 10 Utah, 31, 36 Pac. R. 132; Waite v. McKelvy, 71 Minn. 167, 73 N. W. R. 727; Salomon v. King (1899), m N. J. L. 39. 42 AtL R. 745. In Iowa, where acceptance is not required by the statute, a delivery to the carrier is enough. Bullock v. Tschergi, 13 Fed. R. 345. Many cases hold that a delivery to a carrier, not designated by the buyer, is not 3 enough, but the facts did not require a ruling as to the effect if the carrier had been designated by the buyer. Hausman v. Nye, 62 Ind. 485, 30 Am. R. 199; Keiwert v. Meyer, 62 Ind. 587, 30 Am. R. 206; Webber v. Howe, 30 Mich. 150; 24 Am. R. 590; Grimes v. Van Vechten, 20 Mich. 410; Rinds- kopf v. De Ruyter. 39 Mich. 1; Cross v. O'Donnell, 44 N. Y. 661, 4 Am. R. 721 ; Maxwell v. Brown, 39 Me. 98, 63 Am. Dec. 605; Fontaine v. Bush, 40 Minn. 141, 12 Am. St. R. 722: Sim- mons Hardware Co. v. Mullen, 33 Minn. 195; Leggett & Meyer Co. v. Collier, 89 Iowa, 144, 56 N. W. R. 417. In Vermont a delivery to a carrier named by the buyer is held a suffi- cient acceptance, though the court say: "But this will depend upon the intention of the parties, to be gathered from the circumstances of each case to some extent.'' Spencer v. Hale, 30 Vt. 314, 73 Am. Dec. 309; Strong v. Dodds, 47 Vt. 348. But where the goods were to be delivered by the sellers and the buyer was to receive them from the carrier and pay the freight on the sellers' account, it was held that this nega- tived the idea that the carrier was the buyer's agent to accept. Agnew v. Dumas, 64 Vt. 147, 23 Atl. R. 634. 1 Smith v. Brennan, 62 Mich. 349, 4 Am. St. R. 867. §§ 307, 368.] LAW OF SALE. [book I. §367. That buyer ought to accept, not enough.— The question here involved is not whether the buyer ought, in point of morals or good faith, to accept the goods, but whether he has, in fact, accepted them. He may refuse for entirely frivo- lous or untenable reasons or for no reasons at all, but so long as he does not accept, for whatsoever reasons, he is not bound. 1 There are occasions when it is important to ascertain whether the goods are such as the buyer ought to accept, but this is not one of them. § 368. Whether acceptance must be final and conclusive. — Whether there may be such an acceptance as will satisfy the statute of frauds and yet leave it open to the buyer to after- wards reject the goods as not being such in quantity and qual- ity as the contract calls for, is a question upon which the authorities are not in harmony. In the leading English case 2 there was a sale of wheat by sample, and the purchaser, with- out examining the bulk, directed its delivery to a carrier and sold it by the same sample to a third person, who rejected it as not in conformity to the sample. The first purchaser there- upon also repudiated his purchase. In an action by the orig- inal seller against the first purchaser, Lord Campbell held that there may be an acceptance and receipt within the meaning of the statute, " without the buyer's having examined the goods or done anything to preclude him from contending that they do not correspond Avith the contract. The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which affords conclusive evidence of the contract's having been fulfilled." The court therefore held " that, although the defendant had done nothing which would have precluded him from objecting that the wheat delivered to the carrier was not according to the contract, there was evi- 1 Wood on Statute of Frauds, § 305; A few cases lay down a contrary Gibbs v.Benjamin, 45 Vt. 124; Knight rule. See Meyer v. Thompson, 16 v. Mann, 118 Mass. 143; Hewes v. Oreg. 194, citing Smith v. Stoller, 26 Jordan, 39 Md. 472, 17 Am. R. 578; Wis. 671, and Bacon v. Eccles, 43 id. Stone v. Browning, 51 N. Y. 211, 68 227. id. 598. 2 Morton v. Tibbett, 15 Q. B. 428. 326 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 369. dence to justify the jury in finding that the defendant accepted and received it." § 369. . This doctrine, though meeting with some dis- approval in England, 1 seems finally to be established there, 2 and has been approved by several of the courts in the United States. 3 In others it has been approved only with modifica- 1 See Hunt v. Hecht, 8 Exch. 814; Coombs v. Railway Co., 3 H. & N. 510; Castle v. Sworder, 6 H. & N. 828; Smith v. Hudson, 6 B. & S. 431. 2 Kibble v. Gough, 38 L. T. (N. S.) 204; Rickard v. Moore, 38 L. T. (N. S.) 841. » Remick v. Sandford, 120 Mass. 309 ; Strong v. Dodds, 47 Vt. 348; Smith v. Stoller, 26 Wis. 671; Garfield y. Paris, 96 U. S. 557: Hinchman v. Lincoln, 124 U. S. 38. See also Meyer v. Thomp- son, 16 Oreg. 194, 203; Taylor v. Muel- ler. 30 Minn. 343, 44 Am. R. 199. In Remick v. Sandford, 120 Mass. 309, the court said: ''There may un- doubtedly be an acceptance, which will not afford conclusive evidence that the contract has been fulfilled and its terms complied with, and which will yet satisfy the statute and let in evidence of those terms, which otherwise could only be proved in writing. If the buyer accepts the goods as those which he purchased, he may afterwards reject them if they are not what they were war- ranted to be, but the statute is satis- fied. But, while such an acceptance satisfies the statute, in order to have that effect it must be by some une- quivocal act done on the part of the buyer, with the intent to take pos- session of the goods as owner. The sale must be perfected, and this is to be shown, not by proof of a change of possession only, but of such change with such intent. When it is thus definitely established that the rela- tion of vendor and vendee exists, written evidence of the contract is dispensed with, although the buyer, when the sale is with warranty, may still retain his right to reject the goods if they do not correspond with the warranty. Morton v. Tibbett, 15 Q. B. 428; Johnson v. Cuttle, 105 Mass. 447; Knight v. Mann, 118 Mass. 143, and cases cited. "That there has been an accept- ance of this character, or that the buyer has conducted himself, in re- gard to the goods, as owner (as by a resale, which would deprive him of the option to take or decline them, and which is of itself an acceptance), is to be proved by the party setting up the contract. It cannot be in- ferred, as matter of law, merely from the circumstance that the goods have come into the possession of the buyer. All that the ruling gives to the de- fendants is the right to reject the goods if they do not correspond to the sample, which they would have had at the common law, even if there had been a written memorandum. But they had more than this, as there was no such memorandum; they had a right arbitrarily to refuse the ac- ceptance of the goods, unless they did or had done some act in relation to them consistent only with their own ownership, and inconsistent with that of the seller. The circum- stances under which they received 327 § 369.] LAW OF SALE. [BOOK I. tions, and in some it is not countenanced at all. Thus, in Maryland, it is said: "Xow, it may be readily conceded that the question whether there has been, in any particular case, such acceptance and actual receipt of a part of the goods as will bind the contract, may be quite different and distinct from that as to whether the contract has been fulfilled in respect to quantity and quality of the residue of the goods, where the vendee has had no opportunity of examining the goods that may be offered in fulfillment of the contract, and where he has done nothing to preclude himself from the exercise of the right to object that they do not correspond with those actually re- ceived by him. The effect of the acceptance and actual receipt of part of the goods, however small, is to prove the contract of sale, and it is not inconsistent with this that the vendee should have the right, with respect to the residue of the goods, when offered in fulfillment of the contract, to object that they are not such in quantity and quality as the contract requires; and *in such case the question in dispute can only be determined by the goods, and the manner in which tract must be in writing, or there they acted in reference to them, must be some note or memorandum were to be considered as evidence, of the same to be subscribed by the These might show that they re- party to be charged; but the same ceived the goods with the intent to statute concedes that the party be- accept them, as being the goods they comes liable for the whole amount purchased, and as the owners of of the goods, if he accepts and re- them, but they might also show that ceives part of the same, or the evi- they received them only for the pur- dences, or some of them, of such pose of examination. A receipt for things in action ; and the authorities such a purpose is not inconsistent agree that where the question is with their continuing still the prop- whether the contract has been ful- erty of the seller. Hunt v. Hecht, 8 filled, it is sufficient to show an ac- Exch. 814; Curtis v. Pugh, 10 Q. B. ceptance and actual receipt of a 111." part, however small, of the thing In Garfield v. Paris, 96 U. S. 557, sold, in order that the contract may the court said: "Authorities almost be held to be good, even though it numberless hold that there is a broad does not preclude the purchaser from distinction between the principles refusing to accept the residue of the applicable to the formation of the goods, if it clearly appears that they contract and those applicable to its do not conform to the contract, performance, which appears with Benjamin on Sales (2d ed.); Hinde v. sufficient clearness from the Ian- Whitehouse, 7 East, 558; Morton v. guage of the statute,— such a con- Tibbett, 15 Ad. & E. (N. S.) 428." 328 CH. Til.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 370-372. • the aid of parol eTidence. But in all cases where the goods bargained for have been accepted and actually received by the vendee, he is thereby precluded, in the absence of fraud, from. objecting that they do not correspond with the contract. Any other construction would certainly tend to let in all the evils that were intended to be excluded by the particular provision of the statute." l g 370. . In a leading case 2 in New York, the court say that " the best considered cases hold that there must be a vest- ing of the possession of the goods in the vendee, 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 haTe precluded himself from taking any objection to the quantum or quality of the goods sold." § 371. Acceptance of unfinished articles.— Akin to # the subject of the last section is the subject of the acceptance before completion of articles to be manufactured or fitted for deliTery. In one case 3 the court said : " There could be no acceptance without the assent of the buyers to the articles in their changed condition, and as adapted to their use." And clearly in such cases acceptance will not be implied, except from unequiTOcal acts, until the article is completed and ready for delivery. 4 § 372. The burden of proof.— The burden of proving that there was such an acceptance as will take the case out of the iHewes v. Jordan, 39 Md. 472, 17 4 Thus, in Maberley v. Sheppard, Am. R. 578. 10 Bing. 99, it was held that there 2 Shindler v. Houston, 1 N. Y. 261, was no acceptance to be inferred 49 Am. Dec. 316, citing Chitty on from the fact that the defendant, Contracts, 390; Hilliard on Sales, 135; who had ordered a wagon made for Maberley v. Sheppard, 10 Bing. 99; him by the plaintiff, furnished the Acebal v. Levy, id. 384. iron work, and, during the progress 3 Cooke v. Millard, 65 N. Y. 352, of the work, sent a man to help the 22 Am. E. 619, citing, as analogous, plaintiff put it on, and also bought a Bog Lead Co. v. Montague, 10 C. B. tilt and sent it to the plaintiff to be (N. S.) 481. put on the wagon. 329 §§ 373-375.] law of sale. [book i. statute of frauds rests upon the party alleging it. 1 It cannot be inferred as a matter of law merely from the fact that the goods have come into the possession of the buyer. § 373. Question of acceptance is for the jury. — Where the facts are in dispute, the question whether or not they indicate an acceptance is for the jury to determine. 2 But where the facts in relation to the matter are not in dispute, it belongs to the court to determine their legal effect. 3 " And so it is for the court to withhold the facts from the jury when they are not such as can in law warrant finding an acceptance, and this includes cases where, though the court might admit that there was a scintilla of evidence tending to show an acceptance, they would still feel bound to set aside a verdict finding an accept- ance on that evidence." 4 § 374. Right of seller to retract before acceptance. — The acceptance must be with the consent of the seller, by virtue of the contract of sale and while that contract is still in force. 5 Hence if, before the buyer accepts, the seller elects to repudiate the agreement and withdraw his offer of sale, he may do so; and he may do this, though there has been an actual receipt of the goods. 6 3. Of Receipt ~by the Buyer. § 375. Necessity of receipt, — As has been seen, the statute requires that the buyer shall not only accept but shall also iRemick v. Sandford, 120 Mass. 89 Wis. 86, 61 N. W. R. 307; Galvin 309. v. Mackenzie, 21 Oreg. 184, 27 Pac. R. 2 Hinchman v. Lincoln, 124 U. S. 1039. 38; Garfield v. Paris, 96 U. S. 557 3 Hinchman v. Lincoln, 124 U.S. [citing Bushel v. Wheeler, 15 Ad. & 38; Shepherd v. Pressey, 32 N. H. E. (N. S.) 442; Parker v. Wallis, 5 El. 49, 56. & Bl. 21 ; Lilly white v. Devereux, 15 4 Hinchman v. Lincoln, 124 U. S. 38 M. & W. 285; Simmonds v. Humble, [citing Denny v. Williams, 5 Allen 13 C. B. (N. S.) 258]: Borrowscale v. (Mass.), 1, 5; Howard v. Borden, 13 Bosworth, 99 Mass. 378, 381; Wart- Allen, 299; Pinkham v. Mattox, 53 man v. Breed, 117 Mass. 18; Smith N. H. 600, 604J. v. Stoller, 26 Wis. 671; Amson v. 5 See ante, § 355. Dreher, 35 Wis. 615; Becker v. Holm, « Smith v. Hudson, 6 B. & S. 431. 330 CU. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 376, 377. "actually receive " a part of the goods. As has been noticed, too, this actual receipt is to be distinguished from the accept- ance and may precede or follow that act, and may therefore exist without it. It is. the correlative of the delivery required, which has been already noticed. The result, therefore, is, that there must not only be a delivery by the seller, but an accept- ance of that delivery, i. e., an actual receipt of the goods, by the buyer. §376. Nature of the receipt required.— This delivery of the goods by the seller and their receipt by the buyer are acts, and from these acts the intention of the parties and the results effected are to be determined. To satisfy the statute, these acts, it is said in a leading case, 1 " must be of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer;" and further, "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 with the intent of taking- possession as owner." 2 § 377. Fact that title would have passed at common law, not enough. — The fact that the negotiations may have so far progressed that the title would have passed at common law is not enough. Thus, where the plaintiff sued for goods sold and delivered, the trial judge held that, to maintain the action, two facts must be proven by the plaintiff: 1. The passing of the title between the parties at common law ; and 2. An accept- ance and receipt within the statute of frauds. In approving this ruling, and speaking to the point that proof of the first fact would not dispense with proof of the second, Gray, C. J., said: "In order to constitute an acceptance and receipt under the statute of frauds, it is not enough that the title of the goods has vested in the buyer; but he must have assumed the legal iShindler v. Houston, 1 N. Y. 261, lips v. Bistolli, 2 B. & C. 511; Marsh 49 Am. Dec. 316. v. Rouse. 44 N. Y. 643; Hinchman v. 2 Shmdler v. Houston, sujira; Phil- Lincoln, 124 U. S. 38. 331 §§ 378, 379.] law of sale. [book i. possession of them, either by taking them into the custody or control of himself or of his authorized agent, or by making the seller or a third person his bailee to hold them for him, so as to terminate the seller's possession of the goods and lien for the price." * § 378. Constructive delivery and receipt.— But while the delivery and receipt must be actual, it is not always necessary, as it is not always feasible or possible, that the buyer should take the goods into his physical possession. It was said by Judge Bronson, " There may be a delivery 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." 2 § 379. . So in a Maryland case 3 the court said : " In re- gard to the proof of a delivery of the goods in order to gratify the statute, it must be conceded that an actual or manual de- livery is not in all cases necessary. Upon this subject the law is well settled and clearly defined, and may be thus stated : Where the goods are ponderous and incapable of being handed over from one to another, and where the buyer so far accepts them as to treat them as his own, exercising acts of ownership over them, from which possession as owner may be inferred ; or where the delivery is symbolical, such as the delivery of the key of the warehouse in which the goods are lodged ; or where actual delivery is impracticable and can only be made by such symbolical means as the circumstances of the case will 1 Rodgers v. Jones, 129 Mass. 420. symbolic: Wadham & Co. v. Balfour, 2Shindler v. Houston, 1 N. Y. 261, 32 Oreg. 313, 51 Pac. R. 612. 49 Am. Dec. 316. To the same point 3 Atwell v. Miller, 6 Md. 10. that delivery may be constructive or 332 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 3S0. allow, as in the case of a ship or cargo at sea, etc., — actual or manual delivery is not necessary." § 380. What sufficient. — Illustrations of this symbol- ical or constructive delivery are numerous. Thus, the delivery of the key of the building in which the goods are stored, 1 though the delivery be made at a point distant from the build- ing,- has often been held sufficient; and so is the delivery of the order, receipt or bill of lading usually recognized as the representative of the goods. 3 Catching and branding of cattle sold and then turning them loose upon a common range is sufficient; 4 and so is going in sight of a lot of logs lying within a boom, showing them to the vendee and thereafter abandoning control over them, that being as effectual a method as the nature of the case would admit; 5 and the delivery of a raft of boards as symbolical of a lot of logs lying in the river, and marked with the same mark as the boards. 6 " "Where the goods are so situated," said Shepley, J., 7 "that a delivery cannot be made at the time of sale, as a vessel at sea, a delivery of such, evidence of title as the seller possesses is sufficient until the purchaser can obtain possession. 8 And where goods, though not at sea, are not in the actual but in the constructive possession of the seller, as goods in another's warehouse, or logs in a river; and where it would be very difficult on account of the weight or bulk, as a i Gray v. Davis, 10 N. Y. 285; Pack- ^Boynton v. Veazie, 24 Me. 286. ardv. Dunsmore, HCush. (Mass.) 282; 7 In Ludwig v. Fuller, 17 Me. 162, Barr v. Reitz, 53 Pa. St. 236; Benford 35 Am. Dec. 245. v. SchelL 55 Pa. St. 393; Vining v. 8 Citing Lempriere v. Pasley, 2 T, Gilbreth, 39 Me. 496; Wilkes v. Fer- R. 483; Gardner v. Howland, 2 Pick. ris, 5 Johns. (X. Y.) 335. (Mass.) 599. Thus, the transmission - Vining v. Gilbreth, 39 Me. 496. of a bill of sale by mail is a sufficient 3 Bass v. Walsh, 39 Mo. 192; Wad- delivery, and, as against creditors of hams v. Balfour, 32 Oreg. 313, 51 Pac. the vendor, is perfected the moment R. 643; Meehan v. Sharp, 151 Mass. the letter is mailed. Begley v. Mor- 564, 24 X. E. R. 907. gan, 15 La. 162, 35 Am. Dec. 188. To 4 Walden v. Murdock. 23 Cal. 540. like effect: Cocke v. Chapman, 2 5 Jewett v. Warren, 12 Mass. 300, 7 Eng. (Ark.) 197, 44 Am. Dec. 536. Am. Dec. 74; Carter v. Willard, 19 Pick. (Mass.) 1. 333 § 3S1.] LAW OF SALE. [BOOK T. vessel on the stocks, and in other eases of a peculiar character, what is denominated a symbolical delivery is sufficient, and this requires the performance of such an act as shows, without any other act to be performed, that the purchaser has a right to take possession, and that the right of the seller to control the property has terminated." 1 | 381, . So the delivery to the vendee of a bill of par- cels, followed by acts of ownership by the vendee, is a suffi- cient delivery of a large quantity of pig-iron lying on the bank of a canal ; 2 and so where parties were negotiating regarding a specific quantity of pig-iron lying by itself, and, having agreed upon the terms, the vendor said to the vendees, " I de- liver this iron to you," but before more could be done the iron was seized by the sheriff, it was held that there was a sufficient delivery, at least as against creditors, and the ruling would doubtless be general. 3 " There was here nothing remaining to be done by the vendor to consummate the sale or delivery," said the court. " He had no further claim upon the iron. The ponderous nature of the commodity rendered the removal of it, at that time, impossible. And why should it have been moved? The vendees were there, upon the ground, and went up to receive the iron when it was delivered by the vendor. The delivery was not symbolical, but actual, and it was re- ceived by the vendees at the hands of the vendor with the in- tent to take and hold possession of it. The iron was not to be weighed off and separated from any other, and thus desig- nated. There it was, a parcel of ninety-three tons, by itself." 4 Other cases are referred to in the notes. 5 i Citing Harman v. Anderson, 2 2 Van Brunt v. Pike, 4 Gill (Md.), Camp. (Eng.) 243; Manton v. Moore, 270, 45 Am. Dec. 126. 7 T. R. (Eng.) 67; Hollingsworth v. 3 Calkins v. Lockwood, 17 Conn. Napier, 3 Cai. (N. Y!) 182, 2 Am. Dec. 154, 42 Am. Dec. 729. 268; Wilkes v. Ferris, 5 Johns. (N. Y.) 4 Citing Chaplin v. Rogers, 1 East, 335, 4 Am. Dec. 364; Jewett v. War- 192; Stoveld v. Hughes. 14 East, 308: ren, 12 Mass. 300, 7 Am. Dec. 74; Bad- Manton v. Moore, 7 T. R. 67. lam v. Tucker, 1 Pick. (Mass.) 389, 11 5 In Jones v. Reynolds, 120 N. Y. Am. Dec. 202; Homes v. Crane, 2 213, 24 N. E. R. 279, the delivery of a Pick. 607. model of an invention was held to be 334 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 382,383. § 382. Mere words do not constitute a delivery and re- ceipt, — Mere words, it is held, cannot amount to a delivery and receipt of the goods, but there must be, in addition, some acts of the parties over and above the terms of the contract, indicating on the part of the seller an unequivocal intention to surrender the ownership and possession of the goods to the buyer, and, on the part of the buyer, an intention to assume such ownership and possession in pursuance of the contract. Thus, where the parties negotiating in view of the goods agreed upon terms, the plaintiff making an offer and the defendant saying "It is yours," nothing further being done, the court held that there was no delivery and receipt which would sat- isfy the statute, the words being rather a communication of the agreement than a delivery of the chattels in pursuance of it. 1 This decision has been followed in many other cases, 2 though with some it is not reconcilable. 3 | 3S3. . So long, however, as the statute by its terms requires an actual receipt, it would seem that that rule must be the true one which demands something more than the mere words of the parties indicative merely of their assent to the agreement. It certainly cannot be possible that one portion of the verbal agreement which it is sought to establish can be made use of to authenticate the whole contract. 4 The evident as complete a delivery as could be 300, 7 Am. Dec. 74, which seems also made of the invention. opposed, did not involve the statute i Shindler v. Houston, 1 N. Y. 261, of frauds. 49 Am. Dec. 316. 4 See Alderton v. Buchoz, 3 Mich. 2 Gorman v. Brossard (1899), 120 322; Shindler v. Houston, supra. See Mich. 611, 79 N. W. R. 903; Hallen- also Hawley v. Keeler. 53 N. Y. 114. back v. Cochran, 20 Hun (N. Y), 416; In Alderton v. Buchoz, supra, the Dehority v. Paxson, 97 Ind. 253; Kel- plaintiff had contracted to sell to the logg v. Witherhead, 6Thomp. & Cook defendant for $70 a quantity of mill (N. Y.)i 525; Alderton v. Buchoz, 3 irons from a mill recently burned; Mich. 322; Hinchman v. Lincoln, 124 part of the irons were on the mill- U. S. 38; Edwards v. Railway Co., 54 site and others in the cellar of a third Me. 105; Kirby v. Johnson, 22 Mo. 354. person. Defendant knew where the 3 Calkins v. Lockwood, 17 Conn, irons were and had examined them, 154, 42 Am. Dec. 729, seems directly but at the time of the contract the opposed. Jewett v. Warren, 12 Mass. irons were not present; no attempt 335 384.] LAW OF SALE. [BOOK I. purpose of the statute is that the mere words of the contract shall be supplemented by acts in addition to and in pursuance of that contract. § 384. Delivery and receipt where goods still remain in seller's possession. — Where the goods are left in the posses- sion of the seller, the presumption, ordinarily, would be that they had not yet been delivered to and received by the buyer; but where it appears that the terms of the contract have been fully agreed upon and the property has been placed under the dominion of the buyer, who has been requested or permitted it to remain with the seller as the bailee or agent of the buyer, there may be a sufficient delivery and receipt to satisfy the statute. was made to comply with the stat- ute, " but it was expressly agreed that the defendant should take the property where it then was, and that the plaintiff should not be troubled to make any delivery." Neither party intermeddled with the irons until suit was brought, though defendant on one occasion stated to a third per- son that he had bought the irons, and asked if the latter had one of them in his possession, and was answered in the negative. Afterwards the third party informed the defendant that he did have the iron in question, to which the defendant replied, "very well." Held, that there was no such delivery as would satisfy the statute. Said the court: "The stipulation of the defendant in the agreement to take the irons where they then were was also relied on in the argument as evidence to save the case from the statute. This, however, will not do. This stipulation was a part of the entire verbal agreement and it can- not be separated; hence, the contract being void by the statute, this stipu- lation must fall with the other pro- visions," citing Shindler v. Houston, supra. In Gorman v. Brossard (1899), 120 Mich. 611, 79 N. W. R. 903, it appeared that the plaintiff sold the defendant a quantity of stone, which was de- livered and accepted. Subsequently the defendant discovered that more stone had been delivered than he or- dered, and most of the excess was hauled into an alley and the plaintiff notified that it was subject to his order. The two parties then went together to where the stone lay, and agreed that the plaintiff should take the stone and credit its value against the debt owed by the defendant for it. Held, that the transaction was a sale within the statute of frauds; that the agreement within sight of the stone did not constitute a deliv- ery; that the cancellation of the vendor's debt to the vendee was not payment within the meaning of the statute. 336 OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 385, 386. g 335. . Thus it has been held sufficient, where, after a sale of horses, the purchaser requests the seller to keep them at livery for him and the seller consents, and thereupon removes them from his sale stable to his livery stable; 1 where, after the sale of a horse, the seller requested the buyerto loan it to him, which was done; 2 where a carriage was bought but was left with the seller to make certain alterations; 3 where sheep were bought but were left, separately yarded, with the seller, who was to keep them for a given time for the buyer, who agreed to pay therefor; 4 where barrels of beef were sold, the pur- chaser requesting the seller to keep it for him and resell it, and part was so sold by the purchaser's direction; 5 where a sale of hides was agreed upon, and they were separated and marked with the buyer's name, but left, at his request, on storage in the seller's warehouse. 8 :;s(i. Goods remaining in seller's possession as seller. But there can usually be deemed to be no delivery to and receipt by the purchaser while the goods continue in the possession of the seller as such. Thus, where the sale is for cash, ami the goods yet remain in the seller's possession, by virtue of the vendor's lien, awaiting the performance of that condition precedent- — pavment; 7 or where the goods are to remain in the vendor's possession until a certain date, when payment is to be made, 8 1 Elmore v. Stone, 1 Taunt 437. See statute." Per Holroyd, J., in Baldey al-, i stockwell v. Baird, 15 Del. 420, 81 v. Parker, 2 B. & C. 37, 44. To same Atl. R. 811. But compare Tempest effect: Safford v. McDonough, 120 v. Fitzgerald.3B. &Ald. GSO, and Car- Mass. 290; Marsh v. Rouse, 44 X. Y. ter v. Toussaint, 5 B. & Aid. 855. G43; Edwards v. Railway Co., 54 Me. -Marvin v. Wallis, 6 Ell. & B. 720. 105; Messer v. Woodman, 22 N. H. » Beaumont v. Brengeri, 5 C. B. 301. 172, 53 Am. Dec. 241. 4 Green v. Merriam, 28 Vt. 801. 8 In Terney v. Doten, 70 Cal. 399, sjanvrin v. Maxwell, 23 Wis. 51. the defendants agreed verbally to sell 6 Safford, Ex parte, 2 Low. (TJ. S. the plaintiff one hundred unbroken C. C.) 5G3. horses, at a specified price each, out 7 "As long as the seller preserves of a band of horses belonging to them, his control over the goods, so as to then running at large. The contract retain his lien, he prevents the vendee provided that the defendants were from accepting and receiving them to gather up a number of the horses BS his own within the meaning of the of the band from time to time, from 22 337 !S6.] LAW OF SALE. [book or security given; 1 or where any other condition precedent to the passing of title remains to be performed by the buyer; or where something remains to be done by the seller to fit the goods for delivery ; or where the seller has yet to identify them which the plaintiff was to select a certain number and commence breaking them, after which the num- ber so selected and broken were to be turned into the defendant's pas- tui - e and another selection made in like manner until the whole number agreed to be sold should be gathered up, selected and broken. Thereupon the horses were to be paid for by the plaintiff and then taken by him from the premises of the defendants. The defendants gathered up a number of the horses, from which the plaintiff selected twenty-two, which he broke and turned into the pasture of the defendants. Thereafter the defend- ants refused to further perform their part of the contract. Held, that the contract was void under the statute of frauds. Said the court: "In the case at bar none of the horses form- ing the subject-matter of the con- tract ever passed into the absolute possession and control of the plaint- iff. There was, therefore, no accept- ance and receipt of any of them by plaintiff within the meaning of the statute." To the same effect is Tempest v. Fitzgerald, 3 B. & Aid. G80, where A agreed to buy a horse from B for cash, and to take him away within a time agreed upon, and about that time A rode the horse and gave di- rections as to the treatment, but re- quested that it might remain a further time in B's possession, at the expira- tion of which time he agreed to take the horse and pay the price, to which B assented, but the horse died before A took him away. To like effect, also, is Carter v. Toussaint, 5 B. & Aid. 855. There plaintiff sold to defendant a horse for £30, by verbal contract. At the time of the sale the horse required to be fired, which was done, with the ap- probation of the defendant and in his presence, and it was then agreed that the horse should be kept by the plaint- iff for twenty days without charge. At the expiration of the twenty days the horse was taken by plaint- iff, at defendant's request, to Kings- ton Park, to be turned out to grass. There the horse was entered in plaintiff's name, at request of defend- i In Parker v. Mitchell, 5 N. H. 165, there was a sale of an anvil at auction. One of the conditions of the sale was that the purchaser should have a credit of ninety days on giving good security. The bidder removed the anvil a little way in the auction room, but afterwards refused to take it or give security. Said the court : " The circumstance that the buyer took the anvil and moved it is not conclusive evidence to show a de- livery hj the seller or acceptance by the buyer. At furthest it only shows what might, perhaps, be considered an acceptance if the seller elected so to consider it. For it is clear the buyer had no right to take the anvil until the security was given." To same effect: Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241. 338 •CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 386. or separate them from a larger mass, 1 — there can be no such delivery and receipt as will satisfy the statute. There must first be a delivery by the seller with intent to give possession of the goods to the buyer. ant. No time was specified for pay- ment. Afterwards defendant re- fused to take the horse. Held, that the contract of sale was not opera- tive, as the horse had never left the possession of the sellers, who had a lien on him for the price. Elmore -v. Stone, 1 Taunt. 457, was distin- guished. In Spear v. Bach, 82 Wis. 192, 52 N. W. K. 97. which was an action for the price of stock alleged to have been sold to defendant, plaintiff testified that lie met defendant on a train and there sold and delivered the stock to him; but that afterwards, the defendant, not having the money with him to pay for it, handed it hack to plaintiff ami requested him to send it to a certain bank and draw on him for the price. Plaintiff sent the stock to the bank with draft at- tached, but the defendant failed to take it. Held, no acceptance and re- ceipt. In Dole v. Stimpson. 21 Pick. (Ma^s. ) 384, the defendant offered the plaintiff a certain price for a steam- engine, a part of the money to be paid when the engine should be taken away by the defendant, which was to be done in two or three weeks, and the balance to be secured by a promissory note. The plaintiff ac- cepted the offer and said, " then you consider the engine to be yours as it is,"' and the defendant said " yes." The boiler was set in bricks, in the plaintiffs shop, and could not be re- moved until they were taken away. and the plaintiff was to take them away, winch he did the next week. The defendant told a witness he had bought the engine, and made inqui- ries on what terms he could get it carried to another place. The bar- gain was not in writing, and the de- fendant did not pay or secure any part of the price, and did not take away the engine. It was held that there was no delivery and that the sale was therefore void under the statute of frauds. In Kirby v. Johnson, 22 Mo. 354, a contract was made for the sale of cattle in the field of the seller. The purr I laser told the seller to keep the cattle and feed them until he sent for them, at the expense of the pur- chaser. The seller agreed to do so, but told the purchaser that, if any of them died, he must bear the loss, to which the latter assented. Held, no delivery to take the contract out of the statute of frauds. The court re- garded Elmore v. Stone, 1 Taunt. 457 (cited in § 385, supra), as overruled, on the strength of Proctor v. Jones, 2 C. & P. 532. Chaplin v. Rogers, 1 East, 192 (cited in § 361. supra), was distinguished. The case, however, might well have rested on the ground, also mentioned by the court, that the vendor's lien had not been divested. J Thus on a sale of a quantity of hay, part of a larger mass, there can be no delivery and receipt so long as the hay remains unseparated and unweighed. Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241. In Rodg- ers v. Jones. 129 Mass. 420, a lot of skins had been sold, to be assorted 339 § 387.] LAW OF SALE. [BOOK I, § 387. Delivery and receipt where goods are in possession of a third person. — "When the goods at the time of the sale," says Mr. Benjamin, 1 " are in possession of a third person, an actual receipt takes place when the vendor, the purchaser,, and the third person agree together that the latter shall cease to hold the goods for the vendor and shall hold them for the purchaser. They were in possession of an agent for the ven- dor, and therefore, in contemplation of law, in possession of the vendor himself; and they become in the possession of an agent for the purchaser, and therefore in that of the purchaser him- self. But it is important to remark that all of the parties, must join in this agreement, for the agent of the vendor can- not be converted into an agent for the vendee without his own knowledge and consent. Therefore, if the seller have goods in the possession of a warehouseman, a wharfinger, carrier, or any other bailee, his order given to the buyer directing the bailee to deliver the goods, or to hold them subject to the con- trol of the buyer, will not effect such a change of possession as amounts to actual receipt, unless the bailee accepts the order or recognizes it, or consents to act in accordance with it, and until he has so agreed he remains agent and bailee of the vendor." This assent of the bailee need not be express, but may be inferred from acts or from acquiescence, as in other cases. 2 and weighed and then to be removed was left in the seller's possession, he by the purchaser. An agent of the to select and deliver the two bales, purchaser assisted in assorting part The contract was held invalid as of the skins, and then went away within the statute. Smith v. Evans, leaving the sellers to complete the 36 S. C. 69, 15 S. E. R. 344. work. The sellers did this, set the * Benjamin on Sales, § 174 whole lot apart in bundles marked 2 A delivery order given to the with the purchaser's name, and noti- purchaser does not amount to a re- fied the latter's agent that the skins ceipt until warehouseman accepts were ready for delivery. Before de- it and thereby assents to hold the livery they were burned. Held, that goods as agent of the vendee. Bent- there was no acceptance and receipt all v. Burn. 3 B. & C. 423. Nor does- within the statute. Likewise when the delivery of a warrant for the two bales of cotton were agreed to goods to the purchaser, though the be taken from three, but the whole purchaser keeps the warrant for ten 340 OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 3SS, 389. § 388. . Where the goods are in a government ware- house, with duties unpaid, not even the agreement of the bailee to deliver them to the vendee will amount to a receipt by the vendee, for the goods are really in the custody of the govern- ment and the custodian has no authority to deliver them until the fees are paid and the regulations complied with. 1 And where the custodian of the goods is a prior vendor, having a lien on them for the price, the fact that he is notified of a re- sale of them to a purchaser who will and does give directions as to their shipment, will not amount to a receipt by such pur- chaser if the goods are not so shipped and the custodian does nothing to waive his vendor's lien. 2 AY here goods are left with a third person by the vendor with instructions to deliver them to the vendee when called for, but the vendee does not call for them and they remain in the pos- session of such third person, there is clearly no receipt by the vendee. 8 § 389. Delivery and receipt when goods are already in pos- session of purchaser. — Where the goods, at the time of the contract of sale, are already in the possession of the purchaser by virtue of some other arrangement, the nature of the deliv- months and refuses to return it, but Spooner, 13 Allen (Mass.), 353, 90 Am. does not present it or get the goods. Dec. 190. Farina v. Home, 10 M. & W. 119. Nor But where, upon the sale of cotton is there a receipt where, though the stored in a warehouse, the seller goods are transferred, by the order of gave the purchaser an oi'der for it, the vendor, on the warehouseman's notifying the warehouseman also of book, but their delivery is subse- the sale, and the purchaser there- quently countermanded by the ven- upon applied for the cotton, but the dor on account of the vendee's fail- delivery was postponed until next day ure to pay. Godts v. Rose, 17 C. B. by agreement between the purchaser 229. and warehouseman, it was held that Where a person in Massachusetts there was a sufficient receipt. King sells some hides in a New York ware- v. Jarman, 35 Ark. 190, 37 Am. R. 11. house, and gives a bill of the goods See also Townsend v. Hargraves, and an order on the warehouseman 118 Mass. 325, and post, chapter on to the buyer, without notifying the Deliver//. warehouseman, this is not such a de- * In re Clifford, 2 Sawy. 428. livery to ami receipt by the buyer as - Marsh v. Rouse, 44 N. Y. 643. satisfies the statute. Boardman v. 3 Hart v. Tyler, 15 Pick (Mass.) 171. 341 § 390.] LAW OF SALE. [BOOK I. ery and receipt which will satisfy the statute is necessarily dif- ferent. It is not necessaiy that the parties should go through the idle ceremony of returning the property to the seller that he may make a new delivery to the buyer, who is then to re- ceive it anew. 1 It is sufficient that the attitude of the party in possession shall be changed from that of a mere bailee to that of a purchaser in pursuance of the contract of sale, and this change of attitude can be shown by proof of such acts and con- duct as indicate it. 2 " If it appears," said the court in the lead- ing case 3 upon the subject, "that the conduct of a defendant in dealing with goods already in his possession is wholly in- consistent with the supposition that his former possession con- tinues 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 alter the nature of the property, or the like." Whether the acts show a receipt of this nature is ordinarily a question of fact for the jury, 4 though where the facts are not in dispute the court may determine it. 5 § 390. Delivery where seller and purchaser occupy same premises. — "Where A was at work and living with B upon the latter's farm, and a sale of a part of B's hogs to A was agreed upon, and the parties designated the hogs, but agreed that they should remain upon the farm and be fed and cared for by A with the others until they could be sold, it was held that there was a sufficient delivery to satisfy the statute and as i Snider v. Thrall, 56 Wis. 674, 14 hay, part of a large mass, already in N. W. R. 814. the purchaser's barn, was sold at auo ^Edan v. Dudfield. 1 Q. B. 302; tion. After the sale, the seller offered Lillywhite v. Devereux, 15 M. & W. to weigh and deliver the hay, pro- 285; Snider v. Thrall, supra. vided the purchaser would either pay 3 Lillywhite v. Devereux, supra. the price or secure the payment. The 4 Edan v. Dudfield; Lillywhite v. purchaser refused to do either, and Devereux, supra. also refused to accept a delivery of 5 In Messer v. Woodman, 22 N. H. the hay from the seller. Held, no- 172, 53 Am. Dec. 241, a quantity of delivery. 312 CII. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 391,392. \ against ITs creditors. Said Cooley, J. : " It was all the deliv- ery that could well have been made under the circumstances without requiring Anderson to remove the hogs from the farm where he was employed to some other place where they would have been less in his possession than they were; and for this there could have been no sufficient reason." l § 391. Receipt by agent — Common agent.— The receipt of the goods, like their acceptance, may be not only by the pur- chaser in person, but also by his authorized agent. 2 But here also the authority of the agent must be adequate and to the point, 3 for authority to accept does not necessarily include authority to receive, any more than the contrary case. 4 This authority, however, like the other, may be express and formal, or its existence may be inferred from acts and conduct. 5 It is not enough, however, that it be created by the same parol agreement sought to be made valid by such receipt. 6 g 392, . The same person cannot at the same time law- fully act as agent both for the seller and the buyer without their knowledge and consent; 7 but, with such knowledge and i Webster v. Anderson, 42 Mich. Weiner, 82 Wis. 298, 52 N. W, R 435; 554, 36 Am. R. 452, citing Adams Moore v. Hays, 12 Ind. App. 476, 40 Mining Co. v. Senter, 26 Mich. 73. N. E. R. 638. Where the owner of a horse rents 3 Spear v. Bach, 82 Wis. 192, 52 N. a barn to keep him in and then sells W. R. 97. him to a person who thereafter rents 4 See ante, % 363. the same barn and continues to keep 5 See ante, § 363; Wilcox Silver the horse in it, there is nothing to Plate Co. v. Green, 72 N. Y. 17. negative delivery. Hallock v. Al- ^Hawley v. Keeler, 53 N. Y. 114. vord, 61 Conn. 194, 23 Atl. R. 131. 'Mechem on Agency, § 66. See So also where one who owned a Caulkins v. Hellman, 47 N. Y. 449, 7 building on the land of another sold Am. R. 461; Rodgers v. Jones, 129 the building to the owner of the Mass. 420; Spear v. Bach, 82 Wis. land on which it stood, and remained 192, 52 N. W. R 97. In the last case therein, paying rent to the vendee, it was held that where a person who it was held there was a sufficient de- has agreed to buy shares of stock re- livery and acceptance to satisfy the quests the seller to send the certifi- statute. Reinhart v. Gregg, 8 Wash, cate, with draft for price, to a cer- 191. 35 Pac. R. 1075. tain bank, where he will take it up, 2 See ante, §363; Michelstetter v. and the seller does so, the bank is 343 §§ 393, 394.] la.w of sale. [book i. consent, he may act both for the seller in delivering and the buyer in receiving. 1 "There can be no presumption," says Justice Campbell, 2 " that the agent of the two parties will deal unfairly with either. And when they both deliberately put him in charge of their separate concerns, and there is any like- lihood that he may have to deal with the rights of both in the same transactions, instead of lessening his powers it may be- come necessary to enlarge them far enough to dispense with such formalities as one man would use with another, but which could not be possible for a single person to go through with alone." § 393. Carrier as agent to receive.— The authority of a carrier as agent to accept the goods has already been consid- ered. 3 And, in general, the same rule applies in this case as in that. A delivery to a carrier not designated by the purchaser cannot of itself be deemed a receipt by the buyer; 4 but where the purchaser directs the delivery of the goods to a carrier des- ignated by him, such a delivery will satisfy the statute. 5 The authority of the carrier to receive, however, need not be ex- pressly conferred, but may be shown in the same manner as in other cases, as by conduct, acquiescence or ratification. It must, however, have some other origin than the parol agreement which is sought to be validated by such receipt. 6 § 394. Acceptance and receipt may precede the passing of title.— It is not essential that the absolute legal title to the not thereby made the agent of the 6 Cross v. O'Donnell. 44 N. Y. 661, 4 buyer to receive and accept the Am. R. 721; Wilcox Silver Plate Co. stock, but is the agent of the seller v. Green, 72 N. Y. 17; Caulkins v. only. Hellman, 47 N. Y. 449, 7 Am. R. 461; iMechem on Agency, § 67; Fitz- Dawes v. Peck, 8 T. R. 330; Wait v. simmons v. Express Co., 40 Ga. 330, 2 Baker, 2 Ex. 1; Fragano v. Long, 4 Am. R. 577. B. & C. 219; Dunlop v. Lambert, 6 2 In Adams Mining Co. v. Senter, C. & F. 600; Johnson v. Dodgson, 26 Mich. 73. 2 M. & W. 633; Norman v. Phillips, 3 See ante, § 365. 14 M. & W. 277 ; Meredith v. Meigh, 2 4 Cross v. O'Donnell, 44 N. Y. 661, 4 E. & B. 364; Cusack v. Robinson, 1 B. Am. R. 721; Hausman v. Nye, 62 Ind. & S. 299; Smith v. Hudson, 6 id. 431. 485, 30 Am. R. 199. 6 Hawley v. Keeler, 53 N. Y. 114. 344 OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS: [§§ 395, 390. goods shall pass to the purchaser at the time of the making of the contract of sale, in order to render effective, under the stat- ute, an acceptance and receipt then occurring, but such accept- ance and receipt will sustain the contract, although the absolute legal title is not to pass to the purchaser until the happening of some event or the performance of some condition subsequent. Thus, upon a contract of sale upon condition that, though pos- session is at once given, the legal title shall not pass until the price is paid, the purchaser's acceptance and receipt of the goods at the time the contract is made will satisfy the statute. 1 § 395. Receipt and acceptance may be complete though terms of contract in dispute.— "It is quite true," says Mr. Justice Matthews, 2 "that the receipt and acceptance by the vendee under a verbal agreement, otherwise void by the statute of frauds, may be complete, although the terms of the contract- are in dispute. Keceipt and acceptance by some unequivocal act, sufficiently proven to have taken place under some contract of sale, are sufficient to take the case out of the prohibition of the statute, leaving the jury to ascertain and find from the tes- timony what terms of sale were actually agreed on. 3 But as was said by Williams, J., 4 the acceptance by the defendant must be in the quality of vendee. ' The statute does not mean that the thing which is to dispense with the writing is to take the place of all the terms of the contract, but that the accept- ance is to establish the broad fact of the relation of vendor and vendee.' The act or acts relied on as constituting a receipt and acceptance, to satisfy the statute, must be such as definitely es- tablish that the relation of vendor and vendee exists." 5 § 396. No title passes if goods not received and accepted. Until the goods have been received and accepted, no title, of iPinkham v. Mattox, 53 N. H. 600. 118 Mass. 325; Benjamin on Sales, 2 In Hinchman v. Lincoln, 124 TJ. S. § 170. 3 g 5 4 # 4 i n Tomkinson v. Staight, 17 C. B. » Citing Marsh v. Hyde, 3 Gray 697. (Mass.), 331; Townsend v. Hargraves, 5 Citing Remick v. Sandford, 120 Mass. 309. 345 §§ 397-400.] LAW OF SALE. [book I. course, passes to the purchaser, and they are therefore not sub- ject to levy and sale as his goods at the suit of his creditors. 1 § 397. Question of receipt is for jury,— Like the question of acceptance, 2 the question whether or not there has been such a delivery and receipt as will satisfy the statute is, where the facts are in dispute, for the jury to determine in view of all the circumstances, 3 though, where tlie facts are not disputed, the court may dispose of it as a matter of law. 4. Part of the Goods Sold. § 398. Acceptance and receipt of part of the goods suf- fices. — The statute requires the acceptance and receipt of " part of the goods so sold." It does not designate what part, but clearly requires that it shall be a part of the particular goods so sold. Hence — § 399. Any part, though small, suffices.— Any appreciable part of the goods, though small, will suffice to satisfy this re- quirement. 4 § 400. But it must actually be part of the goods sold — Sample — Specimen.— The part received must be actually a part of the goods so sold. Hence, the acceptance and receipt of a mere sample or specimen like the goods sold, but not act- ually apart thereof, is not enough; 5 but if the sample be act- ually taken from the mass of goods contracted for, diminishing by so much the balance to be subsequently delivered, it will i Winner v. Williams, 62 Mich. 863, stock) are acting in unison and con- 28 N. W. R. 904. sidering their several shares as con- 2 See ante, § 373. stituting one block will not make 3 See ante, § 373; Theilen v. Rath, the several interests so far one that 80 Wis. 263, 50 N. W. R. 183; Pratt v. a delivery of the shares of one will Chase, 40 Me. 269; Houghtaling v. defeat the statute as to the others. Ball, 19 Mo. 84, 59 Am. Dec. 331; Tompkins v. Sheehan (1899), 158 N. Y. Pinkham v. Mattox, 53 N. H. 600. 617, 53 N. E. R. 502. 4 But the mere fact that the own- 5 Moore v. Love, 57 Miss. 765; Cooper ers of several and distinct interests v. Elston, 7 T. R. 14. (e. g., the owners of several shares of 346 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 401. suffice. 1 The sample must, of course, be accepted and actually received within the rules already laid down. 2 § 401. At what time the part may be accepted and re- ceived.— It is not essential that the part delivery, acceptance and receipt should be at the time of making the contract. The parol agreement, unless revoked, may stand for a mutual agreed proposition, at least for a reasonable time, where none is fixed, and the subsequent acceptance and receipt, while the proposi- tion remains open, of a portion of the goods which were the subject of the parol negotiation, will make the entire contract effective. 3 i Gardner v. Grout, 2 C. B. (N. S.) 340; Moore v. Love, 57 Miss. 763; Gil- liat v. Roberts, 19 L. J. Ex. 410. 2 Thus, a mere taking of a sample in the hand, without any express un- derstanding that such taking was to be a delivery, would amount to noth- ing. Carver v. Lane, 4 E. D. Smith (N. Y.), 168. Nor taking a sample for the purpose of testing it only, and then refusing to accept. Me- chanical Boiler Cleaner Co. v. Kellner (1899), 62 N. J. L. 544, 43 Atl. R. 599. In Dierson v. Petersmeyer (1899). — Iowa, , 80 N. W. R. 389, the court said: "When making the contract the defendant took some corn in a small sack to send away as a sample. He simply helped himself to this, and it was neither delivered nor taken as part of the corn bought. No part of that sold was accepted." Held, not sufficient. 3 Sprague v. Blake, 20 Wend. (N. Y.) 61; Rickey v. Tenbroeck, 63 Mo. 563; McKnight v. Dunlop, 5 N. Y. 537, 55 Am. Dec. 370; Davis v. Moore, 13 Me. 424. Where, under a verbal agree- ment for the sale of a lot of cattle, a part was to be delivered in one week and the remainder in instalments as the buyer might require, held, that though the contract when made was void as such under the statute, it was good as a proposition concern? ing the price, and the subsequent de- livery and acceptance of the first instalment, at the time fixed, with- out any change in the proposition, made it binding and took it out of the statute. Rickey v. Tenbroeck, 63 Mo. 563. Where the contract is entire, the acceptance and receipt of a part of the goods, though shipped at a different time from the other, will make the en- tire contract valid. Farmer v. Gray, 16 Neb. 401. Where the part was not accepted and received until after the expira- tion of the time within which the whole contract was to have been com- pleted, the court doubted whether such part receipt would save the contract; but the point was immate- rial, as the court found that a new contract was made at the time of the part delivery, which new contract was made good by such part deliv- ery. Damon v. Osborn, 1 Pick. (Mass.) 476. 11 Am. Dec. 229. On January 1, plaintiff made a 347 §§ 402, 403.] LAW OF SALE. [book t. And this is true even though the goods consist of several parcels, or are to be delivered in instalments at different times. 1 § 402. After part acceptance and receipt, loss of remainder before delivery falls on purchaser.— The entire contract being thus made effective by the part acceptance and receipt, the rights and liabilities of the parties must be determined as of the date of the agreement. Hence, if after a part accept- ance and delivery the remainder of the goods, though still in the hands of the seller, are destroyed without his fault, the loss must fall upon the purchaser. 2 § 403. Acceptance and receipt of part must be in pursu- ance of contract. — The acceptance and receipt of the part must be in pursuance of and with the intention of performing the entire contract, of whose continuing existence they are to be the recognition. If, therefore, at the time of receiving the part the buyer repudiates the contract, and receives the part as being the maximum extent of his obligation, such an acceptance and receipt cannot save the contract as to the residue. 3 parol contract with defendant to sell x See cases in foregoing note. him all the wood upon a certain lot So also in Gilbert v. Lichtenberg, at a fixed price per cord, and to de- 98 Mich. 417, 57 N. W. R. 259, where liver as much as he could that win- there was a sale of a quantity of ou- ter and the balance the winter and ions, aggregating three car-loads, it year following, the defendant to pay was held that the delivery and ae- on demand for amount delivered at ceptance of one car-load satisfied the the close of each winter's delivery, statute as to the whole transaction. Plaintiff delivered a portion of the See also to the same point, Fruit Co. wood that year, which was accepted v. McKinney, 65 Mo. App. 220. and paid for; the remainder he deliv- 2 Townsend v. Hargraves, 118 Mass. ered the winter and spring following, 325; Vincent v. Germond. 11 Johns, but defendant refused to accept or 283; Gilbert v. Lichtenberg, 98 Mich, pay for it. Held, that the contract 417, 57 N. W. R. 259. was entire, and that the delivery and SAtherton v. Newhall, 123 Mass. acceptance of the first part took the 141, 25 Am. R. 47, citing Townsend v. whole contract out of the statute. Hargraves, 118 Mass. 325, 333; Remick Gault v. Brown, 48 N. H. 183, 2 Am. v. Sandford, 120 id. 309. R. 210. See also Edgar v. Breck, 172 Mass. 581. 348 CH. VII.] CONTRACT UNDEK STATUTE OF FRAUDS. [§§ 404-406. 5. Em-nest or Part Payment, a. Of Earnest. § 404. Earnest and part payment synonymous.— The idea of giving something in earnest to bind the bargain was bar- rowed from the civil law, 1 and among the Komans earnest con- sisted of money or some gift or token given by the buyer to the seller and accepted by the latter in recognition of the final and conclusive assent of the parties to the bargain. As such it was formerly in use in England. 2 In modern times, however, earnest and part payment are re- garded as synonymous. Thus it is said in Massachusetts: " As used in the statute of frauds, ' earnest ' is regarded as a part payment of the price." 3 But no sufficient reason is apparent why the giving of some token in earnest should not still have its ancient effect. § 405. The thing in earnest must be actually given.— But to have the effect contemplated by the statute, the thing in earnest must actually be given by the buyer and received by the seller. The mere crossing of the vendor's hand, therefore, by the buyer with a piece of silver, which the latter afterwards puts back into his pocket and retains, is not sufficient. 4 § 406. And must be a thing of some value — Buyer's note. So it is held that the thing in earnest must be a thing of value. Therefore the buyer's own note for a part of the purchase price, being without other consideration than the parol agreement, was held insufficient as earnest, as being of no value. 5 i Howe v. Hay ward, 108 Mass. 54, Pordage v. Cole, 1 Saund. 3197i; Lang- 11 Am. R. 306; Benjamin on Sales, fort v. Tiler, 1 Salk. 113; Morton v. g 189 . Tibbett, 15 Q. B. 428; Walker v. Nus- 2 Benjamin on Sales, § 189, citing sey, 16 M. & W. 302; 1 Dane's Abr. Bracton, 1, 2, c. 27; Bach v. Owen 235. (1793), 5 T. R. 409; Goodall v. Skelton *Blenkinsop v. Clayton, 7 Taunt. (1794), 2 H. Bl. 316. 597. a Howe v. Hay ward, 108 Mass. 54, ^Krohn v. Bantz, 68 Ind. 277. 11 Am. R. 306, citing 2 BL Com. 447; 349 §§ 407-412.] LAW OF SALE. [BOOK I. § 407. A deposit with a third person by way of forfeiture not enough. — A deposit, by each party, of a sum of money with a third person " as a forfeiture, to be paid over to the party who was ready to perform the contract, if the other party neglected to do so," fails obviously to fall within either the definition of earnest or of part payment, and will not save a contract by parol. 1 And the same is true where each party deposits his check as a forfeiture. 2 §408. The effect of earnest in passing title. — This is a question reserved for future consideration, 3 the only question here being the effect of earnest in giving validity to the con- tract. 1). Of Part Payment. §409. What the statute requires. — The statute requires the giving of something in part payment. This clearly con- templates a part payment of the purchase price, — something which is to be deducted from the whole amount, and not, like earnest proper, something in addition to it. § 410. The amount required. — The statute does not specify the amount to be paid, but clearly any appreciable amount paid and received as a part payment will satisfy the statute. § 411. What may be given in part payment. — The statute does not require the payment of money, but of " something " in part payment. Clearly, therefore, anything of value which may be used in payment, .and which the parties give and take as such, will suffice. 4 Thus — § 412. Check. — A check, drawn upon funds and duly paid, will suffice where the parties give and receive it as part iHowe v. Hay ward, 108 Mass. 54, 18 N. E. R. 24, Judge Elliott says: 11 Am. R. 30G; Jennings v. Dunham. "What the parties agree shall con- 60 Mo. App. 635. stitute payment the law will ad- '-'Noakes v. Morey, 30 Ind. 103. judge to be payment. It is compe- 3 See post, %% 514, 532. tent for parties to designate by their 4 In Weir v. Hudnut, 115 Ind. 525, contract how and in what payment 350 CII. VII.] C0NTKACT UNDER STATUTE OF FKAUDS. [§§ 413-415. payment. 1 So it was held that a check drawn upon a deposit will suffice, although it has not yet been presented for pay- ment. 2 | 413. Buyer's note.— But, inasmuch as a mere prom- ise to pay cannot be regarded as an actual payment, it is clear that the buyer's own note cannot satisfy the statute unless it be received and treated as payment. 3 § 414. Note of strangers.— But the note of a third person, accepted as payment, and not merely as collateral, will suffice. 4 § 415. Money already in hands of seller.— Where money, already in the hands of the seller and due to the buyer upon previous dealings, is agreed by both parties to be retained and applied by the seller as part payment, it will suffice. 5 The parties need not go through the idle ceremony of having the seller pay the money to the buyer in satisfaction of the previ- ous indebtedness, to be immediately returned to the seller as part payment. may be made. It is by no means true that payment can only be made in money; on the contrary, it may be made in property or in services. In short, whatever the parties agree shall constitute payment will be re- garde 1 by the courts as payment, provided the thing agreed upon is of some value." In this case there was a sale of corn, and the parties agreed that sacks delivered by the pur- chaser to the seller to be used in transporting the corn should const i- stitute a part payment; that is, their use by the seller should be taken as a part satisfaction of the price of the corn. This point of the agreement distinguishes this case from the de- cision in Hudnut v. Weir, 100 Ind. 501, in which it was shown that the sacks were delivered, but the fact that the value of their service was to be deducted, by agreement of the parties, from the cost of the corn was not made to appear. i Hunter v. Wetsell, 84 N. Y. 549, 38 Am. R. 544 ^McLure v. Sherman, 70 Fed. R. 190. 3Krohn v. Bantz, 68 Ind. 277: Ire- land v. Johnson, 18 Abb. Pr. (N. Y.J 392. The surrender by the buyer of the seller's note previously given is sufficient. Sharp v. Carroll, 66 Wis. 63, 27 N. W. R. 832. 4 Combs v. Bateman,10 Barb. (N. Y.) 573. 5 Dow v. Worthen, 37 Vt. 108. 351 §§ 416-419.] LAW OF SALE. [BOOK I. § 416. Agreement to satisfy previous indebtedness as part payment. — But a mere agreement that the price or a part thereof shall be applied upon a prior indebtedness of the buyer to the seller cannot operate as a payment in whole or in part. 1 In order to satisfy the statute there must be some act, such as a receipt or a discharge, or an indorsement or an entry, by which the application is actually made. 2 § 417. Payment of seller's debt to third person, — But the actual payment by the buyer to a third person, at the seller's direction, of a debt due from the seller to such third person, is as effectual as a payment to the seller in person. 3 § 418. Mere unaccepted part payment not enough.— The payment must clearly be actually made and received, and a proffered payment not accepted is therefore not enough. Thus where the seller wrote that he should stand to the contract, " but shall want you to pay me fifty dollars to bind it," and the buyer at once sent the money in a letter which the seller im- mediately returned, there was held to be no part payment. 4 § 419. When part payment to be made — "At the time." The statute in New York and some other States requires 3 the part payment to be made " at the time " of the contract, and a lArtcherv. Zeh, 5 Hill (N. Y.), 200; 2 Gorman v. Brossard (1899), 120 Clark v. Tucker, 2 Sandf. (N. Y.) 157; Mich. 611, 79 N. W. R. 903; Clark v. Matthiessen, etc. Co. v. McMahon, 38 Tucker, supra; Walker v. Nussey, 16 N. J. L. 536; Gaddis v. Leeson, 55 111. M. & W. 302; Galbraith v. Holmes, 15 83; Brabin v. Hyde, 32 N. Y. 519; Ind. App. 34, 43 N. E. R. 575; Nor- Mattice v. Allen, 3 Abb. App. Dec. wegian Plow Co. v. Hanthorn, 71 (N. Y.) 248, 3 Keyes, 492. Wis. 529, 37 N. W. R. 825. An agreement that a sum of money, 3 Wood on Statute of Frauds, which had been overpaid to the §294, n.; Brady v. Harrahy, 21 Up. vendor upon previous sales to the Can. Q. B. 340; Stoddard v. Graham, same purchaser, should be returned 23 How. Pr. 518. to apply on a later one in question, 4 Edgerton v. Hodge, 41 Vt. 676; does not constitute such part pay- Bowers v. Andersen, 49 Ga. 145. ment as satisfies the statute. Norton 5 As in Alabama, Arizona, Califor v. Davison, [1899] 1 Q. B. 401, approv- nia, Colorado, Dakota, Idaho. Minne- ing Walker v. Nussey, 16 M. & W. sota, Montana, Nebraska, Nevada, 302. Oregon, Utah, Wisconsin, Wyoming, 352 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 420, 421. payment made subsequently will not suffice, except (1) where the parties subsequently meet, and for the express purpose of then complying with the statute and making the contract valid, a payment is made on the contract at the request of the seller; or (2) where the parties subsequently come together and sub- stantially restate, reaffirm or renew its terms, so as then and there, by the meeting of their minds, to make a contract, and then a payment is made upon it. 1 § 420. . A substantial compliance with the statute in this respect suffices. " The statute does not mean rigorously eo instanti. It does contemplate that the contract and the payment shall be at the same time in the sense that they con- stitute parts of one and the same transaction." 2 Under such a provision, the contract seems to take effect from the date of the part payment, which is the date of what is practically a new contract. 3 Where, however, the statute does not require payment "at the time," payment made and accepted at any time before ac- tion brought would seem to be sufficient; 4 and in such case, by analogy to part receipt, 5 the contract would take effect from its date. § 421. Part payment to agent suffices.— The payment of part of the purchase price to the seller's agent, if authorized to receive such payment, suffices. Authority to receive such pay- ment may, as in other cases, be conferred either by prior au- i Browne on Stat. Frauds, § 343, n. ; 2 Hunter v. Wetsell, 84 N. Y. 549, Hunter v. Wetsell, 57 N. Y. 375, 15 38 Am. R. 544 Am. R 508; s. C, 84 N. Y. 549, 38 Am. 3 Wood on Statute of Frauds, § 294; R 544; Jackson v. Tupper, 101 N. Y. Bissell v. Balcom, 39 N. Y. 275; Mo- 515; Bates v. Chesebro, 32 Wis. 594, Knight v. Dunlop, 5 N. Y. 537, 55 Am. 36 Wis. 636; Paine v. Fulton, 34 Wis. Dec. 370. 83; Kerkhof v. Atlas Paper Co., 68 *See Thompson v. Alger, 12 Mete. Wis. 674, 32 N. W. R. 766; Crosby (Mass.) 428; Walker v. Nussey, 16 M. Hardwood Co. v. Trester, 90 Wis. 412, & W. 302, per Parke, B. 63 N. W. R. 1057; Hanson v. Roter, 5 Gault v. Brown, 48 N. H. 183, 2 64 Wis. 622. Am. R. 210. 23 353 §§ 422-424.] LAW OF SALE. [book I. thorization or subsequent ratification, 1 but it cannot be made to depend upon the same verbal agreement which, by such payment, is sought to be sustained. 2 6. Of the Note or Memorandum. §422. What the statute requires.— The statute provides that the agreement for the sale shall not be good in the ab- sence of the acts already referred to, " except 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 duly authorized." There must now be considered, therefore, — a. What is a note or memorandum. h. What note or memorandum will suffice. c. The signing by the parties. d. The signing by their agents duly authorized. a. What is a Note or Memorandum. § 423. Is distinct from the agreement itself.— And first it may be noticed that the note or memorandum of the agree- ment is distinct from the agreement itself. If the parties have formally reduced their agreement to writing, there is, of course, no occasion for any further note or memorandum of it. What the statute here refers to is a parol agreement of which some written note or memorandum is made. § 424. At what time note or memorandum must be made.— It is not essential that the note or memorandum should be made contemporaneously with the agreement itself. 3 It is suf- ficient if made at any time before action brought upon the agreement. 4 Whether it may be made after action brought has been thought not so clear. Peters, J., says in one case: 5 " There has been some judicial inclination to favor the doc- i Hawley v. Keeler, 53 N. Y. 114. * Bill v. Bament, 9 M. & W. 3G. 2 Hawley v. Keeler, mpra. 5 Bird v. Munroe, 66 Me. 337, 23 3 Sherwood v. Walker, 66 Mich. 568, Am. R. 571. 11 Am. St. R. 531. 354 •CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 425, 426. trine to that extent even, and there may be some logic in it. Still the current of decision requires that the writing must exist before action brought. And the reason for the require- ment does not militate against the idea that a memorandum is only evidence of the contract. There is no actionable con- tract before memorandum obtained. The contract cannot be sued until it has been legally verified by writing; until then there is no cause of action although there is a contract. The writing is a condition precedent to the right to sue." And in a recent English case' it is held that the writing must exist at the time the action is begun. §425. Form of the note or giemorandnm. — The statute prescribes no form for the note or memorandum, and it is well settled that no particular form is required, but that any writing, howsoever informal, may suffice, provided always it contains the essential elements of the agreement and is duly signed. 2 Thus — ^ 420. Several papers. — The note or memorandum need not be comprised in a single paper, but may be composed of a num- ber of papers, and they may be made at different times. 3 J Jut unless each paper is properly signed, 4 it is essential that the 1 Lucas v. Dixon, 22 Q. B. Div. 357. citing Levned v. Wannemacher, 9 -Mason v. Decker. 72 N. Y. 595, 2s Allen (Mass.). 412; Rhoades v. Cast- Am. R. 190; Dresel v. Jordan. 1<>4 ner, 12 id. 132; Peek v. Vandeniark, Mass. 407; Newby v. Rogers, 40 Ind. 99 N. Y. 29; Lee v. Mahony, 9 Iowa, 9; Ide v. Stanton. 15 Yt. 685, 40 Am. 344; Jelks v. Barrett. 52 Miss. 315; Dec. 69S; Getchell v. Jewett. 4 Greenl. Fisher v. Kuhn, 54 id. 480; Thayer v. (Me.) 350; Old Colony R. R. Co. v. Luce. 22 Ohio St. 62; Salmon Falls Evans. 6 Gray (Mass. >, 25, 06 Am. Dec. Mfg. Co. v. Goddard. 14 How. (U. S. 1 394: Ivory v. Murphy, 36 Mo. 534: 447: Parkhurst v. Van Cortland, 14 Worrall v. Munn, 5 N. Y. 229, 55 Johns. (N. Y.) 15]; American Oak Am. Dec. 330; Lowry v. Mehaffy. 10 Leather Co. v. Porter, 94 Iowa. 117, Watts (Pa.). 3S7; Douglass v. Spears. 62 X. W. R. 658; Fowler Elevator Co. 2 N. & McC. (S. C.) 207, 10 Am. Dec. v. Cottrell, 38 Neb. 512, 57 X. W. R. 19; 588; McConnell v. Brillhart, 17 111. Turner v. Lorillard Co., 100 Ga. 045. 35 1. 65 Am. Dec. 661. 28 S. E. R. 383; Olson v. Sharpless, 53 3 Johnson v. Buck, 35 X. J. L. 338. Minn. 91. 55 X. W. R. 125: GriffithsCo. 10 Am. R. 243; Louisville Asphalt v. Humber, [1899] 2 Q. B. 414. Varnish Co. v. Lorick, 29 S. C. 533, * In Thayer v. Luce. 22 Ohio St. 62, 8 S. E. R. 8, 2 L. R. A. 212 [and note it is said: "That several writings, 335 426.] LAW OF SALE. [BOOK I. unsigned papers be either physically annexed to the signed paper, 1 or that there be such reference in the signed paper to the unsigned that they may be construed as one instrument. 2 Reference in the unsigned paper to the signed paper is not enough; 3 nor is parol evidence admissible to connect the un- signed to the signed ; 4 though if the signed paper contains a clear reference to an unsigned paper, but does not sufficiently though executed at different times, may be construed together, for the purpose of ascertaining the terms of a contract and for the purpose of taking an action founded thereon out of the statute of frauds, is fully- settled. In such cases, however, the mutual relation of the several writ- ings to the same transaction must appear in the writings themselves, parol evidence being inadmissible for the purpose of showing their connec- tion. If one only of such papers be signed by the party to be charged in the action, the rule seems to be that special reference must be made therein to those papers that are not so signed; but if the several papers relied on be signed by such party, it is sufficient if their connection and relation to the same transaction can be ascertained and determined by in- spection and comparison." "The connection between them must appear by internal evidence derived from the signed memoran- dum." Johnson v. Buck, supra. A letter written by an agent, within the scope of his authority, which refers to and recognizes an unsigned document as containing the terms of a contract made by his prin- cipal, is sufficient. Griffiths Co. v. Humber, [1899] 2 Q. B. 414. 1 As by pinning or otherwise fast- ening them together. Talhnan v. Franklin, 14 N. Y. 584. «'Coe v. Tough, 11G N. Y. 273 [cit- ing Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28; Wright v. Weeks, 25 N. Y. 153; Drake v. Seaman, 97 N. Y. 230; Stone v. Browning, 68 N. Y. 598]; Johnson v. Buck. 35 N. J. L. 338, 10 Am. R. 243; Griffiths Co. v. Humber, [1899] 2 Q. B. 414. 3 Thayer v. Luce, 22 Ohio St. 62. 4 "The connection between the signed and the unsigned papers can- not be made by parol evidence that they were actually intended by the parties to be read together, or of facts and circumstances from which such intention may be inferred. The con- nection between them must appear by internal evidence derived from the signed memorandum. Parol tes- timony will be received only for the purpose of interpretation or explana- tion where technical terms are em- ployed, or to identify papers which, by a reference in the signed memo- randum, are made parts of it." John- son v. Buck, 35 N. J. L. 338. 10 Am. R. 243 (citing Boydell v. Drummond, 11 East, 142; Coles v. Trecothick, 9 Ves. 234; Clinan v. Cooke, 1 Sch. & Lef- roy, 22; Dobell v. Hutchinson, 3 Ad. & E. 355; Ridgway v. Wharton, 6 H. of L. Cas. 238; Parkhurst v. Van Cortlandt. 1 Johns. Ch. (N. Y.) 273). See also Brown v. Whipple, 58 N. H. 229; Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 B. & C. 945. 356 •CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 427, 428. describe it, it is held that parol evidence may be resorted to to identify the unsigned paper referred to; 1 and where the refer- ence to the unsigned paper is ambiguous, parol evidence may be admitted to solve the ambiguity. 2 § 427. . But the several papers, though sufficiently con- nected, must also be consistent and harmonious, for, if they are contradictory or inconsistent, they will clearly be insuffi- cient to satisfy the statute, inasmuch as it would be impossible to determine what the bargain was without the introduction of parol evidence to show which paper stated it correctly. 3 And so, obviously, when all the papers which are actually annexed or by reference incorporated do not constitute a com- plete memorandum, they will be insufficient to satisfy the stat- ute. 4 §428. Letters. — Letters may be, and constantly are, re- sorted to for the purpose of supplying the necessary note or memorandum, and they are unquestionably sufficient as such, either alone or in connection with other instruments, if, with- i il When it is proposed to prove the biguity." Thesiger, L. J., in Bauman existence of a contract by several v. James, 3 Ch. 508. To like effect: documents, it must appear upon the Long v. Millar, 4 C. P. Div. 450: Cave face of the instrument, signed by the v. Hastings, 7 Q. B. Div. 125; Shard- party to be charged, that reference low v. Cotterell, 18 Ch. D. 280; Wilk- is made to another document, and inson v. Taylor Mfg. Co., 67 Miss. 231, this omission cannot by supplied by 7 S. R. 356; Turner v. Lorillard Co., verbal evidence. If, however, it ap- 100 Ga, 645, 28 S. E. R. 383. pears from the instrument itself that In Oliver v. Hunting, 44 Ch. Div. another document is referred to, that 205, parol evidence was admitted to document may be identified by ver- show the relations and situation of bal evidence. A simple illustration the parties, from which it appeared •of this rule is given in Ridgeway v. that a letter written by one referred Wharton, 6 H. L. Cas. 238. There 'in- to a previous memorandum of sale, structions ' were referred to; now in- 2 See cases cited in preceding note, structions may be either written or See also Ansley v. Green, 82 Ga. 181; verbal; but it was held that parol Mohr v. Dillon, 80 Ga. 572. evidence might be adduced to show 3 Cooper v. Smith, 15 East, 103; that certain instructions in writing Richards v. Porter, 6 B. & C. 437; were intended. This rule of inter- Smith v. Surman, 9 B. & C. 561; pretation is merely a particular ap- Archer v. Baynes, 5 Ex. 625. plication of the doctrine of latent am- 4 Taylor v. Smith, [1893] 2 Q. B. 65. 357 428.] LAW OF SALE. [book out the aid of parol testimony, the parties, the subject-matter and the terms of the contract may be collected from them. 1 A letter making a proposition and a letter accepting it present a plain case. 2 And even a letter written to repudiate an agree- ment or countermand an order, the terms of which it stated or referred to, has been held a sufficient memorandum to sustain the agreement. 3 i Austin v. Davis, 128 Ind. 472, 25 Am. St. R. 45G; Wills v. Ross, 77 Ind. 1, 40 Am. R. 279; Lee v. Cherry, 85 Tenn. 707, 4 Am. St. R. 800; Francis v. Barry, 69 Mich. 311 (citing Allen v. Bennet, 3 Taunt. 169; Jackson v. Lowe, 1 Bing. 9; Dobell v. Hutchin- son, 3 Ad. & E. 355; Jones v. Will- iams, 7 M. & W. 493; Telegraph Co. v. Railroad Co., 86 111. 246; Moore v. Mountcastle, 61 Mo. 424; Abbott v. Shepard, 48 N. H. 14); Beckwith v. Talbot, 2 Colo. 639; Doughty v. Man- hattan Brass Co., 101 N. Y. 644; Smith v. Colby, 136 Mass. 562; Linsley v. Tibbals, 40 Conn. 522; Brown v. Whipple, 58 N. H. 229; Jenness v. Mt. Hops Iron Co., 53 Me. 20; Thames, etc. Co. v. Beville, 100 Ind. 309; Mizell v. Burnett, 4 Jones (N. C), 249, 69 Am. Dec. 744. See also Cunningham v. Williams, 43 Mo. App. 629; Pitcher v. Lowe, 95 Ga. 423, 22 S. E. R. 678. 2 Gulf. etc. Ry. Co. v. Settegast, 79 Tex. 256; Kenney v. Hews, 26 Neb. 213; Wilkinson v. Taylor Mfg. Co.. 67 Miss. 231, 7 S. R. 356. 3 Drury v. Young, 58 Md. 546, 42 Am. R. 343; Louisville Asphalt Co. v. Lorick, 29 S. C. 533, 2 L. R. A. 212. See also Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. R. 959, 55 Am. St. R. 680; Elliott v. Dean, Cab. & El. 283; Martin v. Haubner, 26 Canada Sup. R. 142. In Louisville Asphalt Varnish Co. v. Lorick, supra, defendants gave an order for paint to plaintiff's travel- ing salesman, who entered it in his- book and sent a copy of it to plaint- iff. The day after giving the order defendants wrote to plaintiff not to ship paint "ordered through your salesman. We have concluded not to handle it." This letter was not received until plaintiff had shipped the paint. Held, that this letter suf- ficiently referred to the order, which stated the terms, as to furnish a good note or memorandum. In Bailey v. Sweeting, 9 C. B. (N. S.) 843, the defendant wrote to plaintiff describing the goods he had previ- ously ordered and giving the price, but saying, "Which goods I have never received, and have long since declined to have." Held, a sufficient memorandum. In Wilkinson v. Evans, L. R. 1 C. P. 407, the defendant wrote, on the back of the invoice, a letter to the plaint- iff in which he refused the goods be- cause they were badly crushed. Held, a sufficient memorandum. In Leather Cloth Co. v. Hieroni- mus, L. R. 10 Q. B. 140, the defend- ant wrote a letter to plaintiff admit- ting the purchase and referring to the plaintiff's letter containing the invoice, but repudiating any liabil- ity, as the goods had been sent by a wrong route. Held, sufficient. See, to same effect, Saunderson v. Jackson, 2 B. & P. 238; Cave v. Hast- 358 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 429-432. § 429. Telegrams. — So the note or memorandum may be wholly or partly found in telegrams, 1 provided that they, like other instruments, embrace the essentials of the contract, 2 — a subject more fully discussed in the next subdivision. That telegrams shall have this effect is expressly provided by statute in several of the States/ and, in general, telegrams are given the same effect as letters. § 430. Books. — So the memorandum may, of course, consist of entries in trade, 4 broker's 5 or private memorandum 6 books, or of writing's of any nature, however informal, so long as they possess the necessary requisites. § 431. Records of corporate meetings. — Entries in the rec- ord books of private and municipal corporations of resolutions and other actions had at corporate meetings, when signed by the clerk and containing the essential elements of the contract, are sufficient to satisfy this requirement of the statute. 7 § 432. Not necessary that memorandum be addressed to or pass between the parties. — It is not necessary that the note ings, L. R. 7 Q. B. Div. 125; Dobell v. * Newell v. Radford, L. R. 3 C. P. Hutchinson, 3 Ad. & E. 355. 52; Vandenbergh v. Spooner, L. R. 1 But a letter referring to "condi- Ex. 316; Sari v. Bourdillon, 1 C. B. tions of sale," but not stating them, (N. S.) 188. is insufficient. Riley v. Farnsworth, 5 Coddington v. Goddard, 16 Gray 116 Mass. 23a (Mass.), 436. i Trevor v. Wood, 36 N. Y. 307, 93 « Wiener v. Whipple, 53 Wis. 298, Am. Dec. 511; Wells v. Railway Co., 40 Am. R. 775; Champion v. Plum- 30 Wis. 605; King v. Wood, 7 Mo. 389; mer, 4 B. & P. 252; Allen v. Bennett, Little v. Dougherty, 11 Colo. 103. 3 Taunt. 169. - Watt v. Wisconsin Cranberry Co., 7 Argus Co. v. City of Albany, 55 6a Iowa, 730, 18 N. W. R. 898; Whaley N. Y. 495, 14 Am. R. 296; Johnson v. v. Hinchman, 22 Mo. App. 483; North Trinity Church. 11 Allen (Mass.), 123; v. Mendel, 73 Ga. 400, 54 Am. R. 879; Tufts v. Plymouth Mining Co., 14 Lincoln v. Erie Preserving Co., 132 Allen (Mass.), 407; Chase v. City of Mass. 129. Lowell, 7 Gray (Mass.), 33; Dykers v. 3 As in California, Nevada, Oregon Townsend, 24 N. Y. 57. and Utah. 359 §§ 433, 434. J law of sale. [book t. or memorandum be a writing addressed to or passing between the parties. Thus a letter written by defendant to bis own agent, 1 or to his principal, 2 or to a third person, 3 is enough. b. "What Note or Memorandum is Sufficient. § 433. The requisites in general. — To satisfy the require- ments of the statute, the note or memorandum must, in general terms, contain a statement of all of the essential terms of the contract, naming or describing with reasonable" certainty the parties thereto; describing or furnishing reasonably certain means for identifying the property; stating the price, when agreed upon, or showing the data from which it may be ascer- tained; and setting forth all of the essential terms, as to time and place of payment and delivery, the terms of credit, or other incidents of the agreement. 4 It must also be a note or memorandum of the entire contract and not simply of the major portion of it. 5 Following this general rule more fully into its details, we have — ■ § 434. Parties must be named or described. — And first it may be noticed that the note or memorandum should name both buyer and seller, or describe them with reasonable certainty, 6 1 Gibson v. Holland, L.R1C.P.1; salesman who showed me the goods. Spangler v. Danforth. 65 111. 152; Please put them up in fine shape as Wood v. Davis, 82 111. 811; Lee v. promptly as possible," was an insuf- Cherry, 85 Tenn. 707, 4 Am. St. R. flcient memorandum to satisfy the 800. Contra, Steel v. Fife, 48 Iowa, statute. 99, 30 Am. R. 388. « Champion v. Plummer, 4 B. & P. 2Peabody v. Speyers, 56 N. Y. 230. 252; Allen v. Bennett, 3 Taunt. 169; 3 Browne on Stat, Frauds, § 354a. Williams v. Lake, 2 E. & E. 349; Me- 4 See cases cited in following sec- Elroy v. Seery, 61 Md. 389, 48 Am. R. tions. 110; McGovern v. Hern, 153 Mass. & CJoud v. Greasley, 125 111. 313. So 308, 25 Am. St. R. 832, 10 L. R. A. 815, in Sheley v. Whitman, 67 Mich. 397, 26 N. E. R. 861; Lewis v. Wood, 153 34 N. W. R. 879, it was held that a Mass. 321, 25 Am. St. R. 634, n., 11 L. clause in a letter, "you may place the R. A. 143, 26 N. E. R. 862; Williams gas fixtures I selected to-day. The v. Byrnes, 1 Moore, P. C. (N. S.) 154; dining-room fixtures may as well be Vandenbergh v. Spooner, L. R. 1 changed as talked over with the Exch. 316; Fessenden v. Mussey, 11 360 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 434. and should distinguish the one from the other, 1 and for this purpose parol evidence may be received to show the relation of Cush. (Mass.) 127; Coddington v. Goddard, 16 Gray (Mass.), 436; Lin- coln v. Erie Preserving Co., 132 Mass. 129; Grafton v. Cummings, 99 U. S. 100; Nichols v. Johnson, 10 Conn. 192; Sherburne v. Shaw, 1 N. H. 157, 8 Am. Dec. 47; Ross v. Allen, 45 Kan. 331. 10 L. R. A. 835; Mentz v. New- wit ter, 122 N. Y. 491, 25 N. E. R. 1044, 11 L. R. A. 97; Knox v. King. 36 Ala. 367; Clampet v. Bells, 39 Minn. 272; Anderson v. Harold. 10 Ohio, 399; Sabre v. Smith, 62 N. H. 663; Peoria Grape Sugar Co. v. Babcock, 67 Fed. R. 892. i Frank v. Eltringham, 65 Miss. 281, 3 S. R. 665. A memorandum in a broker's book, unsigned, as follows: i'Sold Huguet, for J. Ogden & Co.," etc., does not show who was the seller and who the buyer, Ogden & Co. being the parties alleged to be the buyers. Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509. A memorandum as follows: "Bought of W. Plummer,*' etc., but not signed by anybody, is not suffi- cient, as it does not show who bought the goods. Champion v. Plummer, 4 Bos. & Pul. 252. A note of an order given to plaint- iffs' traveling salesman, made by him in his memorandum or order- book, as follows: "T. F. Hall & Co., 88 South Charles Street, Baltimore, Maryland," followed by a list of the goods, etc., is not enough, not being signed by any one as seller nor other- wise showing who the seller was. McElroy v. Seery, 61 Md. 389, 48 Am. R 110. Three telegrams as follows: "Tel- egraph how much corn you will sell, with lowest cash price;" answer: "Three thousand cases, one dollar five cents, open one week;" reply: "Sold corn, will see you to-morrow," do not show who the buyer is, and are therefore insufficient. Lincoln v. Erie Preserving Co., 132 Mass. 129. In Coddington v. Goddard. 16 Gray (Mass.), 436, the memorandum was: "9th. W. W. Goddard to T. B. Cod- dington & Co., 20,000 pounds Chili pig copper," etc. Said the court : " It is objected that the memorandum made by the broker in the present case was insufficient to take the case out of the operation of the statute. because it does not show who were the vendor and vendee of the mer- chandise. This would be a fatal ob- jection if it were well founded; for although a memorandum of this nat- ure may be very brief, it must nev- ertheless show with reasonable cer- tainty who were the parties to the contract, and the terms of the sale, so that they may appear from the writing itself. But in the present case the entry is perfectly intelligible and free from doubt. If it is read with reference to the book in which it is made, as an entry by a broker in the regular course of his business as an agent of third parties for the purchase and sale of goods, it clearly indicates a sale from defendant to the plaintiff. It is susceptible of no other interpretation." In Butler v. Thompson, 92 U. S. 412. it was held that a memorandum as follows: "Sold for Messrs. Butler &Co.. Boston, to Messrs. A. A. Thomp- son & Co., New York," etc., was a sufficient memorandum not only of the obligation of Butler & Co. to sell, 361 § 435.] LAW OF SALE. [BOOK I. the parties. 1 They need not be expressly named. It is enough that they are described, and in that case parol evidence is ad- missible to apply the description and identify the persons meant. 2 But where the parties are neither named nor so de- scribed, parol evidence is not admissible to show who they were. 3 § 435, What description sufficient. — Merely to refer to the persons selling as vendors is not enough, 4 though a de- scription by the term " proprietor," 5 or " trustee selling under a but also of the reciprocal obligation In Sanborn v. Flagler, 9 Allen, 474, of Thompson & Co. to buy. Adams' Cas. 685, the note began, iln Newell v. Radford, L. R. 3 C. "'Will deliver S. R. & Co.," and was P. 52, the memorandum was as fol- signed "J. H. F., J. B. R." Parol evi- lows: "Mr. H. 32 sacks culasses at dence was admitted that J. B. R. was 39s., 280 lbs., to wait orders," signed one of the partners in S. R. & Co., "John Williams." It was objected and signed for them, and that J. H. F. that this was insufficient as not show- were the initials of Flagler. Held ing who was purchaser and who was sufficient. seller. Parol evidence was allowed - McGovern v. Hern, 153 Mass. 308, of the situation of the parties, that 25 Am. St. R. 632, 10 L. R. A. 815, 26 Williams was defendant's agent and N. E. R. 861, citing Jones v. Dow, 142 made the entry in plaintiff's book. Mass. 130, 140; Catling v. King, 5 Ch. "The plaintiff," said the court, "was Div. 660; Rossiter v. Miller, L. R. 3 a baker, who would require flour, and App. Cas. 1124, 1141, 5 Ch. Div. 648. the defendant was a person who was Where the parties are referred to in the habit of selling it," and the by fictitious names, parol evidence is memorandum was held sufficient. admissible to identify them. Bibb v. In Salmon Falls Mfg. (Jo. v. God- Allen, 149 U. S. 481, 496. dard, 55 U. S. ( 14 How.) 446, the mem- 3 Mentz v. Newwitter, 122 N. Y. 491, orandum was: 25 N. E. R. 1044, 11 L. R. A. 97, 19 Am. " Sept. 19— W. W. Goddard, 12 mos. St. R. 514; North v. Mendel, 73 Ga. 300 bales S. F. drills - 7± 400, 54 Am. R. 879. (In this case the 100 cases blue do - C£ entry was, " Sold account of C. H. R. M. M. North & Co., Mendel," etc. The word W. W. G." " Mendel " was said to mean the firm Parol evidence was permitted that of "M. Mendel & Brother," but the "R. M. M." signed for M. & S., who court said that could only be made were agents of plaintiff, and that apparent by resort to parol evidence, Goddard signed "W. W. G.," and the which was inadmissible, and the memorandum was held good. Two memorandum was therefore held judges dissented. But this use of insufficient.) parol proof was criticised in Grafton 4 McGovern v. Hern, 153 Mass. 308, v. Cummings, 99 TJ. S. 100, and de- 25 Am. St. R. 632, 10 L. R. A. 815; clared to be " clearly in conflict with Potter v. Duffield, L. R. 18 Eq. 4. the general current of authority" in 5 Sale v. Lambert, L. R. 18 Eq. 1; Mentz v. Newwitter, post. Rossiter v. Miller, 5 Ch. Div. 648. 362 CII. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 4:36,437. trust for sale," 1 has been held sufficient, because it is always possible in such cases to ascertain from the records who the parties are who answer the description. But, as is said by Sir G. Jessel, M. It., " the court ought to be careful not to manu- facture descriptions, or to be astute to discover descriptions which a jur}^ could not identify, for, as I understand it, at law that would be a question for a jury." 2 It is not necessary that the christian name or the initials bo given, but a party is sufficiently described as " Mr. Lee." This is, at most, a latent ambiguity, which may be resolved by parol.* §436. Agent named instead of principal. — ft is no objection to the sufficiency of the memorandum that the party named therein as Imyeror seller is but an agent of the real party in interest, as the latter may always sue or be sued <>n the contract made by his agent in his behalf. 4 But the mere fact that certain persons are named in the memorandum of sale as auctioneers does not sufficiently show that they are agents of the sellers within this rule. 5 § 437. Goods sold must be stated or described. — The note or memorandum must also show what goods were sold and in what quantities. This rule requires that the goods sold shall be set out either by name or by such description as will enable them to be ascertained without other recourse to parol evi- dence than to identify the goods or apply the description to them. 6 1 Catling v. King, 5 Ch. Div. 660. B McGovern v. Hern, supra. -'In Commins v. Scott, L. R. 20 6 North v. Mendel, 73 (ia. Inn. 54 Eq. 11. Am. R 879: Clampet v. Bells, 39 Minn. s Lee v. Cherry, 85 Tenn. TOT, 4 Am. 272; Waterman v. Meigs, 4 Cush. St. R. 800. (Mass.: 497; May v. Ward. 134 Mass. ♦Mechem on Agency, g§ 429, T01; 12T: New England Dressed Meat & Salmon Falls Mfg. Co. v. Goddard, 14 Wool Co. v. Standard Worsted Co., How. (U. S.) 446: Gowen v. Klous, 165 Mass. 328, 43 N. E. R, 112,52 Am. 101 Mass. 449; Sanborn v. Flagler, 9 St. R. 516; Pulse v. Miller, 81 Ind. Allen (Mass.), 474; McGovemv. Hern, 190: Holmes v. Evans, 4s Miss. 247, 153 Mass. 308, 25 Am. St. R. 632, 10 12 Am. R 372: Eggleston v. Wagner, L. R, A. 815. 46 Mich. 610, 10 N. W. R. 3T; Heffron 363 § 438.] LAW OF SALE. [book § 438. The price must be shown. — The price also is an es- sential element, and, where it has been fixed, the note or mem- orandum must show the price or furnish the data from which it maybe ascertained; l otherwise it must appear that, the price v. Armsby, 61 Mich. 505, 28 N. W. R. 672; Peoria Grape Sugar Co. v. Bab- cock, 67 Fed. R. 892. In North v. Mendel, supra, the memorandum was: "Sold account of C. H. North & Co., Mendel, 5 bellies 8." The words " 5 bellies 8 " were alleged to mean five boxes of pork bellies at eight cents per pound. Held, insufficient. In New England Dressed Meat & Wool Co. v. Worsted Co., supra, the memorandum was: " Bought of New Eng. D. M. & W. Co. about 2000 to 2500 lbs. F C and all they make for thirty days." The court said : "The most doubtful question arising on the memorandum is whether the words 'about 2000 to 2500 lbs. F C,' taken in connection with the words following, 'and all they make for thirty days,' etc., is a sufficient desig- nation of the property sold. The rule is that the goods must be desig- nated in the writing, and cannot be shown by parol. . . . But we have no doubt that the meaning of the letters 'F C,' which are technical abbreviations used in the wool trade, may be shown by parol, as well when they appear in a memorandum re- lied on under the statute of frauds as in any other writing. Where parol evidence is not competent to contradict or vary the terms of such a memorandum to show what is in- tended, we are of opinion that the situation of the parties and the sur- rounding circumstances at the time when the contract was made may be shown to apply the contract to the subject-matter. Upon this point the decision in Macdonald v. Long- bottom, 1 El. & El. 987, which was concurred in by all the judges sit- ting in the exchequer chamber, is an authority which fully covers the present case. When it is shown who and where the parties were at the time of making the contract, and what property the plaintiff had on hand of the kind described, it is clear, without more, that the mem- orandum referred to the 2,443 pounds of wool on hand recently manufact- ured and to the additional amount which might be manufactured within the thirty days. See Mead v. Par- ker, 115 Mass. 413; Hurley v. Brown, 98 Mass. 545; Scanlan v. Geddes, 112 Mass. 15; Slater v. Smith, 117 Mass. 96; Nichols v. Johnson, 10 Conn. 192; Waring v. Ayres, 40 N. Y. 357; Cole- rick v. Hooper, 3 Ind. 316." A telegram to a hop dealer, by his agent W., stating: " Bought thirteen at eleven five-eighths net you; con- firm purchase by wire to B.;" with a reply by the dealer sent to B. : "We confirm purchase W. eleven five-eight cent, like sample," constitute a suf- ficient memorandum, where it can be shown by parol evidence that, ac- cording to the usages of the hop busi- ness, the words were understood by the parties to mean an agreement to purchase a certain quantity of hops of a certain grade for a certain price. Brewer v. Horst- Lachmund Co. (1900), 127 Cal. 643, 60 Pac. R. 418. 1 Hanson v. Marsh, 40 Minn. 1 (cit- ing Elmore v. Kingscote, 5 B. & C. 364 OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 439, 440. was left to be determined afterward, as by the market or rea- sonable value, or by valuers, or the like, 1 — methods which have already been considered. 2 § 439. Terms of credit or particular mode of payment must be stated. — Where no terms of credit are agreed upon, the sale will be deemed to be one for cash on delivery, and this therefore need not be stated. 3 But where a term of credit is agreed upon, or a particular mode or time of payment is fixed, it is an essential element of the sale, and a memorandum which does not state the fact is insufficient. 4 § 440. Time and place of delivery, if agreed upon, must be stated. — It is not essential to a contract of sale that the time or place of delivery should be stipulated, but, if they are ex- 583; Acebal v. Levy, 10 Bing. 376; Goodman v. Griffiths, 1 H. & N. 574: Ide v. Stanton, 15 Vt. 685, 40 Am. Dec. 6!»^: Waterman v. Meigs, 4 Cush. (Mass.) 497; Ashcroft v. Butterworth, L36 Mass 511; Stone v. Browning. 68 N. Y. 598; James v. Muir, 33 Mich. 223); Smith v. Arnold, 5 Mason (U. S. C. C.) 414; Phelps v. Stillings, 60 N. H. 505; Adams v. McMillan, 7 Port, (Ala.) 73; Soles v. Hickman, 20 Pa. St. 180; Sabre v. Smith, 62 N. H. 663; Heffron v. Armsby, 61 Mich. 505, 28 X. W. R. 672; Peoria Grape Sugar Co. v. Babcock, 67 Fed. R. 892: Tur- ner v. Lorillard Co., 100 Ga. 645, 28 S. E. R. 383; Reid v. Diamond Plate- Glass Co., 54 TJ. S. App. 619, 29 C. C. A. 110. 85 Fed. R. 193. See also Web- ster v. Brown, 67 Mich. 328. 'Valpy v. Gibson, 4 C. B. 837; Hoadly v. McLaine, 10 Bing. 482; Ashcroft v. Morrin, 4 M. & G. 450; O'Neil v. Crain, 67 Mo. 200. 2 See ante, §§ 207-213. 3 Wood on Stat. Frauds, p. 656. 4 Browne on Stat. Frauds, § 382 [citing Morton v. Dean, 13 Mete. (Mass.) 385; Davis v. Shields,26 Wend. (N. Y.) 341; McFarsons Appeal, 11 Pa. St. 503; Soles v. Hickman, 20 Pa. St. 180; Buck v. Pickwell, 27 Vt. 157]; Norris v. Blair, 39 Ind. 90, 10 Am. R, 135; Wardell v. Williams, 62 Mich. 50, 28 N. W. R. 796, 4 Am. St, R. 814; Lester v. Heidt, 86 Ga. 226, 10 L. R. A. 108, 12 S. E. R. 214. In Norris v. Blair the sale was upon a term of credit of nine months, by giving note with security and waiving valuation and appraisement laws, but the memorandum did not show this; held, insufficient. In War- dell v. Williams a part of the pur- chase was to be secured by a mort- gage to contain a clause authorizing the release of lots on the payment of a valuation, but the memorandum did not show the valuation; held, in- sufficient. In Lester v. Heidt the memorandum stated the price to be cash on terms agreed upon, but did not state the terms; held, insuffi- cient. 365 §§ 44:1-443.] LAW OF SALE. [book I. pressly agreed upon, they thus become material parts of the agreement, and a note or memorandum which does not include them is defective. 1 § 441. All other material terms must be included.— And the note or memorandum must also contain any other special terms or conditions, such as a right of rejection if not ap- proved, 2 or a special warranty, 3 which the parties have made a part of their contract. It is not enough that it is a note or memorandum of the greater part of the contract: it must be a note or memorandum of the whole of it. 4 § 442. Consideration need not be stated unless required by statute.— The statute in some cases, as in Oregon, expressly requires that the consideration of the contract must be ex- pressed in the note or memorandum, and such a requirement must, it is held, be complied with to render the note or memo- randum sufficient. 5 In several of the statutes it is expressly declared that the consideration need not be stated. In the ma- jority of the States, however, the statute is silent upon the sub- ject, but it is quite universally held in such cases that the statement of the consideration is not essential. §443. Memorandum must show complete contract.— In- asmuch as it is the note or memorandum which gives the prior parol contract its legal force, it follows that to make a com- plete contract it is essential that the note or memorandum must be complete. Thus, it is essential that the terms be agreed upon with certainty, and that the parties assent to the same thing in the same sense; 6 and if it appears from the note or i Browne, Stat. Frauds, § 384 [cit- 2 Boardman v. Spooner, 13 Allen ing Davis v. Shields, supra; Gault v. (Mass.), 353, 90 Am. Dec. 196. Stormont, 51 Mich. G38, 17 N. W. R. 3 Peltier v. Collins, 3 Wend. (N. Y.) 214; Smith v. Shell, 82 Mo. 215, 52 459, 20 Am. Dec. 711; Newberry v. Am. R. 365 (followed in Lehenbeuter Wall, 65 N. Y. 484 Co. v. McCord, 65 Mo. App. 507); 4 Cloud v. Greasley. 125 111. 313. Salmon Falls Mfg. Co. v. Goddard, 14 5 Corbitt v. Salem Gas Light Co., 6 How. (U. S.) 446; Kriete v. Myer, 61 Oreg. 405, 25 Am. R. 541. Md. 5581 6 Breckinridge v. Crocker, 78 Cal. 529; Oakmanv. Rogers, 120 Mass. 214. 366 €11. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 444-44:6. memorandum that this has not been done, or that some of the terms have not yet been settled, 1 or if the note or memorandum refer to other terms agreed upon than those stated, 2 such a note or memorandum will fail to establish an enforceable agree- ment. § 444. Memorandum must import a sale.— The memoran- dum must, moreover, be such as to import a sale, rather than some other agreement or arrangement. Thus, where the con- tract asserted was a sale of four car-loads of corn, but the mem- orandum relied upon was: " We can spare you four car-loads of corn. If nothing prevents, can load cars in about two weeks," the court held it insufficient; saying that the word "spare" did not necessarily or usually import a sale; and that a memo- randum, in order to suffice, must, "in its very terms, import a sale, and it must contain all the essential parts of the bargain, and they must be clearly deducible from it without resort to the parol agreement." 3 § 445. Parol evidence not admissible to supply deficiencies. It must also be kept in mind, as has frequently been stated in the preceding sections, that parol evidence is not admissible to supply deficiencies or omissions in the note or memorandum. 4 It may be resorted to, to apply descriptions, to aid identifica- tion, or to explain a latent ambiguity, but farther than this it cannot go. § 446, Parol evidence not admissible to contradict com- plete note or memorandum made by both parties.— So, on the other hand, where the parties have deliberately made and i Wardell v. Williams, 62 Mich. 50, sRedus v. Holcomb (1900), — Miss. 4 Am. St. R. 814; May v. Ward, 134 — , 27 S. R. 524. Mass. 127, where memorandum re- 4 See American Oak Leather Co. v. ferred to essential terms "to be Porter, 94 Iowa, 117, 62 N.W. R. 658; agreed upon." Watt v. Wisconsin Cranberry Co., 63 °2 Riley v. Farnsworth, 116 Mass. Iowa, 730, 18 N. W. R. 898; Wilson v. 223, where memorandum referred to Lewiston Mill Co., 150 N. Y. 314, 44 the "condition: of sale," but did not N. E. R. 959, 55 Am. St. R. 680; Frank state them. v. Eltringham, 65 Miss. 281 ; Rector 367 U7.] LAW OF SALE. [book delivered a note or memorandum of their contract, as and for a complete statement of its essential terms, and such note or memorandum is capable of a clear and intelligible interpreta- tion, it must be regarded, like other written contracts, as the final repository of their agreement and conclusive between them; and parol evidence is therefore inadmissible to contra- dict or vary its terms or construction. 1 § 447. . Thus it is not competent, by parol, to add to or vary the terms of the contract by showing a particular time for payment or delivery, no time being mentioned; - or to show that the sale was by sample where that did not appear; 3 or to change the place 4 or time 5 of delivery fixed by the contract; or to prove the existence 6 or the waiver 7 of a warranty ; or a modification of a stipulation as to valuation; 8 or to relieve one party from personal obligation by showing that he was simply the agent of another person, though parol evidence might be admissible to charge that other also. 9 Provision Co. v. Sauer, 69 Miss. 235, 13 S. R. 623; Redus v. Holcomb, — Miss. — , 27 S. R. 524 i Williams v. Robinson, 73 Me. 186, 40 Am. R. 352 [citing Small v. Quincy, 4 Me. 497; Codclington v. Goddard, 16 Gray (Mass.), 436; Hawkins v. Chace, 19 Pick. (Mass.) 502; Ryan v. Hall, 13 Mete. (Mass.) 520; Warren v. Wheeler, 8 Mete. (Mass.) 97; Cabot v. Winsor, 1 Allen (Mass.), 546; Remick v. Sand- ford, 118 Mass. 102] ; Wiener v. Whip- ple, 53 Wis. 298, 40 Am. R. 775 [cit- ing Meyer v. Everth, 4 Camp. 22; Gardiner v. Gray, 4 Camp. 144J; Har- rison v. McCormick, 89 Cal. 327, 26 Pac. R. 830, 23 Am. St. R. 469; Thomp- son v. Libby, 34 Minn. 374, 26 N. W. R. 1; McQuaid v. Ross, 77 Wis. 470; Gilbert v. Stockman, 76 Wis. 62, 44 N. W. R. 845, 20 Am. St. R. 23; State v. Hoshaw, 98 Mo. 358: Hills v. Rix, 43 Minn. 543, 46 N. W. R. 297; Burch v. Augusta R. R. Co., 80 Ga. 296; Hill v. Blake, 97 N. Y. 216. 2 Williams v. Robinson, 73 Me. 186, 40 Am. R. 352. 3 Wiener v. Whipple, 53 Wis. 298, 40 Am. R. 775; Harrison v. McCor- mick, 89 Cal. 327, 26 Pac. R. 830, 23 Am. St. R 469; Meyer v. Everth, 4 Camp. 22. 4 Moore v. Campbell, 10 Ex. 323; Stowell v. Robinson, 3 Bing. N. C. 928; Marshall v. Lynn, 6 M. & W. 109; Stead v. Dawber, 10 A. & E. 57. s Noble v. Ward, L. R. 1 Ex. 117. 6 Thompson v. Libby, 34 Minn. 374. 7 Goss v. Nugent, 5 B. & Ad. 58. 8 Harvey v. Grabham, 5 A. & E. 61 9 Bulwinkle v. Cramer, 27 S. C. 376 3 S. E. R. 776, 13 Am. St. R. 645 Higgins v. Senior, 8 M. & W. 834 Nash v. Towne, 5 Wall. (U. S.) 689 Jones v. Littledale, 6 Ad. & E. 486 Mechem on Agency, §§ 429, 701. 368 CII. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 448. § 448. But defendant may show note or memorandum set up by plaintiff to be incomplete.— But the rule of the last section does not conflict with that which permits a defendant to show by parol that the note or memorandum relied upon by the plaintiff is not a note or memorandum of any previous parol agreement at all, 1 or that it is a note or memorandum of but a part of such agreement. 2 The rule of the last section precludes the admission of parol evidence to add to, contradict or vary the written agreement deliberately entered into by both parties, as being in itself their agreement and not merely as a memorandum at a previous parol agreement upon which they rely. The rule of the present section permits the defend- ant to show that what is set up as such a note or memorandum as will render the previous parol agreement enforceable is not a complete note or memorandum of that agreement. The dis- tinction is between impeaching a written agreement upon which the party relies and impeaching a note or memorandum of the previous parol agreement upon which he relies. 3 !Pym v. Campbell, 6 E. & B. 370; to bind the defendant except as au- Wake v. Harrop, 6 H. & N. 768; Hus- thorized by him, and that parol evi- sey v. Home-Payne, 4 App. Cas. 311, denee was admissible to show what p. 320; Coddington v. Goddard, 10 the authority was. Said the court: Gray (Mass.), 436. " It would seem to follow as a nec- 2 Pitts v. Beckett, 13 M. & W. 743; essary consequence that evidence of Elmore v. Kingscote, 5 B. & C. 583; the verbal agreement into which the Goodman v. Griffiths, 1 H. & N. 574; defendant entered for the sale of the Acebal v. Levy, 10 Bing. 376; Cod- copper was competent and material dington v. Goddard, supra; Turner on the question of the extent of his v. Lorillard Co., 100 Ga. 645, 28 S. E. authority to bind the defendant. r 383. Nor does the admission of this evi- 3 See Williams v. Robinson, 73 Me. dence for this purpose at all contra- 186, 40 Am. R. 352; Turner v. Loril- vene the rule that parol proof is in- lard Co., 100 Ga. 645, 28 S. E. R. 383; competent to vary or control a writ- Wiener v. Whipple, 53 Wis. 298, 40 ten contract. It is offered for a Am. R. 775. In Coddington v. God- wholly different purpose. It bears dard, supra, the defendant sought to solely on a preliminary inquiry. The show that a broker's memorandum object is not to explain or alter a of an alleged sale was not a memo- contract, but to show that no con- randum of the bargain as made. The tract was ever entered into, because court held that the broker was a the person who executed it had no special agent and had no authority authority to make it. The authority 24 369 § 449-] LAW OF SALE. [BOOK I. c. Of the Signing of the Parties. § 449. Whether signing by both parties necessary.— The language of the statute usually is that the note or memoran- dum shall be signed by the party to be charged thereby, though the English statute used the word parties. Some importance has, at times, been attached to the use of the plural form, but, though a strong a priori argument might be made that both parties are to be charged or bound by the agreement, it is now well settled by the preponderance of authority that the note or memorandum need be signed only by the party against whom it is to be enforced and that the want of mutuality is no objec- tion. 1 On the other hand, where the contract consists of mut- ual promises, it is held in some cases that though the party to be charged has signed, yet if the party bringing the action has not signed and consequently could not be compelled to per- of an agent may always be shown by parol; but the contracts into which he enters within the scope of his authority, when reduced to writ- ing, can be proved only by the writ- ing itself. The necessity of admit ting evidence of the verbal contract entered into with a broker, in cases where his authority is drawn in question, is quite obvious. If such proof were incompetent, a broker who had entered into negotiations with a person might make a memo- randum of a contract wholly differ- ent from that which he was author- ized to sign, and thereby effectually preclude all proof that no such con- tract was ever made. Allen v. Pink, 4M. & W. 140; Pitts v. Beckett, 13 M. & W. 743, 750." i Allen v. Bennet, 3 Taunt. 169; Thornton v. Kempster, 5 Taunt. 786; Laythoarp v. Bryant, 2 Bing. N. C. 735; Old Colony R. R. Corp. v. Evans, 6 Gray (Mass.), 25, 66 Am. Dec. 394; Williams v. Robinson, 73 Me. 186, 40 Am. R. 352; Smith's Appeal, 69 Pa. St. 474; Tripp v. Bishop, 56 Pa. St. 424: Perkins v. Hadsell, 50 111. 216; Ide v. Leiser, 10 Mont. 5, 24 Am. St. R. 17; Hodges v. Kowing, 58 Conn. 12, 7 L. R. A. 87; Clason v. Bailey, 14 Johns. (N. Y.) 484; McCrea v. Pur- mort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103; Richards v. Green, 23 N. J. Eq. 536; Sabre v. Smith, 62 N. H. 663; Case Threshing Mach. Co. v. Smith, 16 Oreg. 381, 18 Pac. R. 641 ; Mason v. Decker, 72 N. Y. 595, 28 Am. R. 190; Gartrell v. Stafford, 12 Neb. 545, 41 Am. R. 767; Shirley v. Shirley, 7 Blackf. (Ind.) 452; Douglass v. Spears, 2 N. & McC. (S. C.) 207, 10 Am. Dec. 588; Morin v. Martz, 13 Minn. 191; Anderson v. Harold, 10 Ohio, 399; Lowber v. Connit, 36 Wis. 176; Ivory v. Murphy, 36 Mo. 534; De Cordova v. Smith, 9 Tex. 129, 58 Am. Dec. 136; Cunningham v. Williams, 43 Mo. App. 629. 370 €11. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 450, 451. form on his part, there is such a lack of mutuality in the con- tract as renders it binding upon neither. 1 § 450. Written offer accepted by parol. — In accord- ance with the prevailing rule it is held that if one party makes, in writing signed by him, an offer to buy or sell personal prop- erty, the person to whom such offer is made may accept it by parol, and after such an acceptance may enforce the agree- ment against the person signing. 2 § 451. How sign. — The party signing may write his name in full or in part; 3 he may use his initials only; 4 he may make his mark, 5 or any sign which is intended to denote his signature ; G he may touch the pen while some one else guides it; 7 or he may sign his name through the medium of a third person who writes it in his presence and by his express direction. 8 A mere de- 1 Wilkinson v. Heavenrich.58 Mich. 574, 55 Am.K. 70& 2 Justice v. Lang, 42 N. Y. 493, 1 Am. R. 576, 52 N. Y. 823; Mason v. Decker. 72 N. Y. 595, 28 Am. K. 190; Case Threshing Mach. Co. v. Smith, 16 Oreg. 381; Dressel v. Jordan, 104 Mass. 407. 3 Tims the omission of a middle name or initial is not fatal (Fessen- den v. Mussey. 11 Cush., Mass.. 127), nor is the signing only by the first name. Zann v. Haller, 71 Ind. 181). 36 Am. R. 193. * Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446, where the party signed " R. R. M. ; " Sanborn v. Flag- ler, 9 Allen (Mass.), 474, where the party signed "J. B. F." 5 Baker v. Dening, 8 A. & E. 94; Zimmerman v. Sale, 3 Rich. (S. C.) 76; Foye v. Patch, 132 Mass. 105; Brown v. McClanahan, 9 Baxt.(Teun.) 347. 6 Thus the use of the figures "1, 2, 8 "will suffice where the party in- • tends that as his signature. Brown v. r.utchers' Bank, 6 Hill (N. Y). 443. 41 Am. Dec. 755. Nelson, C. J., says that "a party may become bound by any mark or designation he thinks proper to adopt, provided it be used as a substitute for his name and he intend to bind himself." See also Palmer v. Stephens, 1 Denio (N. Y.), 471; Brainerd v. Heydrick, 32 How. Pr. (N. Y.) 97; Mclntire v. Preston, 5 Gilm. (111.) 48, 48 Am. Dec. 821; lias -all v. Life Ass'n, 5 Hun (N. Y), 151; Dewitt v. Walton, 9 N. Y. 571; David v. Insurance Co., 83 N. Y. 265, 38 Am. R. 418; Bickley v. Keenan, 60 Ala. 293. 7 Helshaw v. Langley, 11 L. J. Ch. (X. S.)17. 8 Mechem on Agency, § 96; Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Frost v. Deering, 21 Me. 156; Bird v. Decker, 64 Me. 550; Nye v. Lowry, 82 Ind. 316; Croy v. Busenbark. 72 Ind. 48: McMurtry v. Brown, 6 Neb. 868. ( ontrci, Simpson v. Common- wealth, 89 Ky. 412, 12 S. W. R. 630. 871 451.] LAW OF SALE. [BOOK I. scription of himself as "your father" is not enough, 1 but a fictitious name 2 or mark, adopted as a signature," will suffice. The party may sign the note or memorandum at the begin- ning, in the body, or at the end of it. 4 He may use a pencil,* i Selby v. Selby, 3 Meriv. 2. 2 Thus, see fourth note to this sec- tion. So one who has a French name may use the English translation of it, as where one Couture wrote his name Seam. Augur v. Couture, 68 Me. 427. 3 See fourth note to this section. * Knight v. Crockford, 1 Esp. 190; Lemayne v. Stanley, 3 Lev. 1 ; Saun- derson v. Jackson, 2 B. & P. 238; Coddington v. Goddard, 16 Gray (Mass.), 436; Saunders v. Hackney, 10 Lea (Tenn.), 194. In Drury v. Young, 58 Md. 546, 42 Am. R. 343; Schneider v. Norris, 2 M. & S. 286, and Saunder- son v. Jackson, a printed name at the head of the memorandum was held good. In Johnson v. Dodgson, 2 M. & W. 653, the defendant himself wrote the terms of the bargain in his own book, beginning, "Sold John Dodgson," and the seller signed it. Held, that this was a sufficient sign- ing by Dodgson to bind him. Lord Abinger said: "The cases have de- cided that though the signature be in the beginning or middle of the instru- ment, it is as binding as if at the foot; 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 un- signed because he refused to com- plete it." So if C D writes, "A B bought of C D," etc., this is a good signature by C D personally or by his authorized agent. Hawkins v. Chace, 19 Pick. (Mass.) 502. In Cali- fornia Canneries Co. v. Scatena, 117 Cal. 447, 49 Pac. R. 462, it was held that the writing of the name across the face of the memorandum was a sufficient signature and subscription to satisfy the statute, the party in- tending thereby to signify his intent to accept and be bound by the con- tract. If it appears in the body of the memorandum, it is enough. New Eng. etc. Meat Co. v. Standard Wors- ted Co., 165 Mass. 328, 43 N. E. R. 112 r 52 Am. St. R. 516. In Durrell v. Evans, 1 H. & C. 174, Lord Black- burn said: "If the matter were res integra, I should doubt whether a name printed or written at the head of a bill of parcels was such a. sig- nature as the statute contemplated; but it is now too late to discuss that question. If the name of the party to be charged is printed or written on a document, intended to be a memorandum of the contract, cither by himself or his authorized agent, according to Schneider v. Norris (supra), and Saunderson v. Jackson (supra), it is his signature, whether it is at the beginning or middle or foot of the document. In Johnson v. Dodgson (supra), the memoran- dum was retained by the defendant in his own possession, but as it con- tained his name, and was intended to be a note of the contract, it was held binding on him, although the fact of his keeping it was a clear in- dication that he never intended it as- a voucher of his being bound, but only to bind the other party." 5 Geary v. Physic, 7 D. & R. 653, 5 B. & C. 234. 372 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 452. or a stamp, 1 or may use and adopt a printed signature. 2 The question in every case, where a substituted form of signing is adopted, is whether b\ T that form the party intended to be bound, and this is usually a question of fact. But the party must sign the memorandum which is to be binding on him, and hence where the memorandum was in two parts, and each party signed the one which the other ought to have signed, it was held insufficient. 3 a. Of the Signing by Agent. § 45'2. Who may he agent. — It is a general rule that any person who has sufficient capacity to act for himself is compe- tent to act as the agent of another; but the rule may bo stated still more broadly, for many persons are competent to act for others who would not be competent to bind themselves, such as infants and married women, and it is often said that any person may be an agent except a lunatic, imbecile or child of tender years. 4 As a rule a person cannot at the same time be both a party to the transaction and the agent of the opposite party ; 5 though with the full knowledge and consent of the opposite party there is no legal incapacity to so act. 6 i Bennett v. Brumfitt, L R 3 C. P. thereby adopted the printed heading 28. But it must appear that it was as their signature. To the same ef- the intention to adopt this as his feet: Schneider v. Xorris, 2 M. & S. signature. Boardman v. Spooner, 13 2S6; Saunderson v. Jackson, 2 B. & Allen (Mass.), 353, 90 Am. Dec. 196; P. 238; Tourret v. Cripps, 48 L. J.Ch. Wood on Statute of Frauds, § 412. 567. *Grieb v. Cole, 60 Mich. 397. "It » Canterberry v. Miller, 76 I1L 355. is a sufficient signing if the name be 4 Mechem on Agency, § 57. in print, and in any part of the in- 5 Mechem on Agency, § 68. One strument, provided that the name is party to the contract cannot, there- recognized and appropriated by the fore, be the agent of the other to party to be his. Drury v. Young, 58 bind the latter by signing the mem- Md. 546, 42 Am. R. 343. In this case orandum. Sharman v. Brandt, L. R. the defendants wrote the note or 6 Q. B. 720: Wilson v. Lewiston Mill memorandum on one of their printed Co., 150 X. Y. 314, 44 N. E. R, 959, 55 letter-heads containing their firm Am. St. R. 680. and individual names, but did not b Mechem on Agency, § 68. sign it. Held, sufficient, as they :;73 §§ 453-455.] law of sale. [book i. §453. How appointed.— The language of the fourth sec- tion of the statute requires that, as to interests in land, the authority of the agent shall be conferred by writing, but no such requirement is found in the seventeenth section. That the agent must be " thereunto lawfully authorized " is the only requirement. The power of the agent, therefore, in this case may be conferred in the same manner as in other cases — either by a prior authorization, express or implied, 1 or by a subse- quent ratification. 2 Evidence of such a ratification would be found, for example, where the principal afterward adopted and delivered a memorandum made by another, as a memo- randum of his agreement. 3 It is not essential that the agent shall be specially author- ized to sign the memorandum; here, as elsewhere, it is suffi- cient if the making of such a memorandum falls within the general scope of his authority. 4 § 454. Several owners acting in unison — One as agent for all. — But though owners of several interests are acting in unison, one has not thereby any implied power to bind the others; and the mere fact that one has, in writing, expressed his willingness to sell if the others did, gives no au- thority to the others to bind him, and this writing does not constitute such a memorandum as will defeat the statute. 5 § 455. How sign. — The appropriate manner for an agent to sign is to write his principal's name, followed by such a state- ment as indicates that it was done by him as agent; as, A B by C D, his agent ; or, for A B, C D agent, etc. 6 But though these forms are appropriate they are not indispensable, and the agent may sign his principal's name alone, 7 or his own name i See Mechem on Agency, §§ 80- 4 Griffith Co. v. Humber, [1899] 2 10G. Q. B. 414. 2 Mechem on Agency, § 145; Mac- 5 Tompkins v. Sheehan (1899), 158 lean v. Dunn, 4 Bing." 722; Soames N. Y. 617, 58 N. E. R. 502. v. Spencer, 1 Dowl. & R. 32. 6 See Mechem on Agency, § 432. 3 Hawkins v.Chace, 19 Pick. (Mass.) "See Mechem on Agency, §§ 427- 502. 429; Hawkins v» Chace, 19 Pick.. 374 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ ^C. alone. 1 So he may sign his name in full or in part, 2 or may use his initials only. 3 § 456. Where. — Unless the statute requires the signa- ture to be at the end — and the word " subscribed " has been held to amount to such a requirement, 4 — the agent's signature may be in any part of the memorandum, provided it was in- tended to have effect as such. 5 (Mass.) 502 ; Clason v. Bailey, 14 Johns. (N. Y.) 484; Hunter v. Giddings, 97 Mass. 41, 93 Am. Dec. 54. But in Simpson v. Commonwealth, 89 Ky. 412, 12 S. W. R. 630, the court held that the signing by the agent, in the principal's presence and by his direction, of the principal's name alone, was neither a signing by the principal nor the agent within the meaning of the statute. 1 Wiener v. Whipple, 53 Wis. 298, 40 Am. R. 775; Trueman v. Loder, 11 Ad. & El. 589, 594; Higgins v. Senior, 8 M. & W. 840; Stowell v. Eldred, 39 Wis. 614; Huntington v. Knox, 7 Cash. (Mass.) 371. 2 See ante, § 451. 3 Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446. * Davis v. Shields, 26 Wend. (N. Y.) 341; James v. Patten, 6 N. Y. 9, 55 Am. Dec. 376; In re Clifford, 2 Saw. (TJ. S. C. C.) 428. 5 In Hawkins v. Chace, 19 Pick. (Mass.) 502, it is said: "Two things may be conceded, as well settled by authorities: (1) that to constitute a signing within the meaning of the statute of frauds, it is not necessary that the signatures be placed at the bottom, but if the party to be charged has inserted his name in any part of the paper, in his own handwriting, it is sufficient to give it effect (Saunder- son v. Jackson, 2 Bos. & Puk 238; 37, Knight v. Crockford, 1 Esp. 190; Pen- niman v. Hartshorn, 13 Mass. 87); and (2) that the authority of one person to sign for another need not itself be proved by other evidence, but may well be proved by parol evi- dence." Thus, a memorandum in this form: "W. H. Hawkins & Co., Bought of William H. Chace," etc., is suffi- ciently signed by Chace if written by an authorized agent. Hawkins v. Chace, siqora. So a memorandum, by an author- ized agent, in this form: "Bought for Isaac Clason of Bailey & Voor- hees," etc., is thereby sufficiently signed to bind each. Clason v. Bailey, 14 Johns. (N. Y.) 484. In Merritt v. Clason, 12 id. 102, 7 Am. Dec. 286, the memorandum was: "Bought of Daniel & Isaac Merritt . . . for Isaac Clason," etc. Said the court: " In the body of this memorandum the name of Isaac Clason, the de- fendant, is written by his agent, whom he had expressly authorized to make this contract. The memo- randum, therefore, is equally bind- ing 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 Avell settled that it is immaterial, in such a case, whether the name is written at the top, or in the body, or §§ 457, 458.] LAW OF SALE. [book T. 457. Delegation. — Like other mechanical acts, the signing by the agent may be through the medium of another, as his clerk, who signs in his presence and by his direction. 1 But, on the other hand, where the agency is a personal one, it can- not be delegated, 2 and hence if one person is authorized to make ' the memorandum, one signed by another person will not suf- fice. 3 458. Not as witness. — The signature of the agent which will suffice must, moreover, be that of the agent as agent; at the bottom of the memorandum. It is equally a signing within the statute." So a memorandum in a broker's book in this form is sufficient: "9th. W. W. Goddard to T. B. Coddington & Co.," followed by items and terms. This memorandum shows that God- dard is the seller and Coddington & Co. the buyers; and such writing of their names by their duly-authorized agent is sufficient without further signing. Coddington v. Goddard, 16 Gray (Mass.), 436. Said Bigelow, C. J. : " We know of no case in which it has been held that the signature of the name of the agent through whom the contract is negotiated should appear in the writing. It is sufficient if the names of the pai-ties to be charged are properly inserted, either by them- selves or by some person duly au- thorized to authenticate the docu- ment. Brokers and auctioneers are deemed to be the agents of both par- ties, and by virtue of their employ- ment stand in such relation to their principals that they can sign the names of the parties to a contract of sale effected through their agency. Such authority is implied from the necessity of the case; because with- out it they could not complete a con- 37 tract of sale so as to make it legally binding on the parties. Nor is it at all material that the names should be written at the bottom of the memorandum. It is sufficient if the names of the principals are inserted in such form and manner as to indi- cate that it is their contract, by which one agrees to sell and the other to buy the goods or merchan- dise specified upon the terms therein expressed. It is the substance, and not the form, of the memorandum, which the law regards. The great purpose of the statute is answered, if the names of the parties and the terms of the contract of sale are authenticated by written evidence, and do not rest in parol proof. Pen- niman v. Hartshorn, 13 Mass. 87; Hawkins v. Chace, 19 Pick. (Mass.) 502, 505; Fessenden v. Mussey, 11 Cush. (Mass.) 127; Morton v. Dean. 13 Met. (Mass.) 385; Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446." See also New England Dressed Meat Co. v. Standard Worsted Co., 165 Mass. 328, 43 N. E. R. 112. 1 Williams v. Woods, 16 Md. 220. 2 Mechem on Agency, § 185. 3 Henderson v. Barnewall, 1 Y. & J. 387. In this case a broker's clerk was deputed to make the memoran- CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 459, -iGO. if, therefore, he signs merely as a witness to the transaction, it is not enough. 1 § 459. One person as agent of both parties. — A person may act as the agent of two or more parties in the same transaction if his duties to each are not such as to require him to do incom- patible things; but wherever, from the nature of his employ- ment, each of two principals whose interests are antagonistic is entitled to the benefit of the agent's judgment, discretion or personal influence, the agent will not be permitted to act for both in the same transaction, except with their full knowledge and consent. 2 If, however, with full knowledge of his relations to each, they see fit to mutually confide in him, there is no legal objection to it, nor can either principal afterwards escape responsibility because of such double employment. 3 § 460. ■ Evidence of authority to sign for both. — But while one person may thus act for both parties, such a double relation will not be lightly inferred, but the evidence must be such as to indicate an intention on the part of both that the act of the agent should be their act respectively. 4 Thus, where the plaintiff's traveling agent wrote out an order for goods in du- plicate upon printed headings in the presence of the defendant, handing him the duplicate and retaining the original, it was held that there was no evidence in this that plaintiff's agent was authorized to sign the memorandum as defendant's agent also. 5 dum. and it was held that a memo- the buyer of goods requested the randum made by the broker would agent of the seller to write a note of not suffice. the contract in the buyer's book, ^osbell v. Archer, 2 Ad. & El. 500. which the agent did. and signed it 2 Mechem on Agency, §67, and with his own name. Held, that this cases cited. request did not constitute him the 3 Mechem on Agency, §67, and buyer's agent, so as to make hi- sig- cases cited. nature bind the buyer. It was said. 4 See extract from Murphy r.Boese, however, by Coll man, J., that if he L. R. 10 Exch. 126, in second note had signed the buyer's name instead below. of his own the case might have been 5 Murphy v. Boese, supra. So in different. Graham v. Musson, 5 Bing. X. C. 603, 377 § 460.] LAW OF SALE. [BOOK I. But in another case plaintiff had goods in the possession of his agent and went with the defendant to the agent's premises and there conducted a bargain in the agent's presence. The agent thereupon made a memorandum in his book and also a counterpart, tore out the memorandum and gave it to defend- ant, who kept it and carried it away. Before going, defendant requested an alteration to be made in the memorandum, and the agent made it with the plaintiff's assent. The memoran- dum was in the following form : " Messrs. Evans (the defend- ants) bought of T. T. & W. Xoakes (the agents), T. Durrell " (the plaintiff), followed by a description of the goods and the price. The counterpart entry was, " Sold to Messrs. Evans, T. Durrell," etc. It was held that there was evidence to go to the jury that the agent in making these entries was the agent of the defendant as well as the plaintiff, and if he was, then his writing the name " Messrs. Evans " was a sufficient signing to bind them. 1 i Durrell v. Evans, 1 H. & C. 174 reversing s. C, 6 H. & N. 660. (Gra- ham v. Musson, supra, was distin- guished, and the case was likened to Johnson v. Dodgson, 2 M. & W. 653.) In the later case of Murphy v. Boese, supra, Pollock, B., said: "I think that it is extremely important in all those cases in which it is attempted to prove an implied agency, or that there is evidence from which an agency may be inferred, to take into account the character of the parties and their usual course of dealing. The act requires that the note of the bargain should be signed by an agent of the party to be charged. At first sight it would seem odd that where two contracting parties meet to- gether, that one who is in a position somewhat adverse to the other should be his representative and agent. But no doubt such a thing may happen, as in the instance, which has very properly been cited, of the auction- eer's clerk signing as the agent of both parties. In Lord St. Leonard's work on Vendors and Purchasers (14th ed., p. 147) he explains the prin- ciple upon which the auctioneer can bind both vendor and purchaser by his signature, citing Earl of Glengal v. Barnard, 1 Keen, 769, and Emmer- son v. Heelis, 2 Taunt. 38, and stat- ing that the implied agency of an auctioneer is hot extended to other cases. Therefore the present case is not within this exceptional rule. The case to which it has the nearest analogy is that of Durrell v. Evans, 1 H. & C. 174, 31 L. J. (Ex.) 337, and it is remarkable that when that case came before the court of exchequer, Lord Penzance seems to have drawn the conclusion that what was done was nothing more than what occurs in making out and giving an invoice. I am bound to say that I agree with his reasoning, and I will apply it to the present case. I think Durrell v. OH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. L§ **1. § 461. Signing by auctioneer. — An auctioneer employed by the owner of real or personal property 7 , or of rights of any kind, to sell or dispose of the same at auction, is primarily the agent of the owner, and of him alone; and he remains his agent ex- clusively up to the moment when he accepts the bid of the pur- chaser and knocks down the property to him. Upon the accept- ance of the bid, however, the auctioneer becomes the agent of the purchaser also, to the extent that it is necessary to enable the auctioneer to complete the purchase, and he may therefore bind the purchaser by entering his name as such and by sign- ing the memorandum of the sale. 1 Such a signing is sufficient to satisfy the statute of frauds. 2 But in order to so bind the purchaser, the entry of the name of the purchaser must be done Evans, supra, can only be supported if it decides that the agency did not commence till after the memoran- dum had been written out. and that will distinguish it from the facts be- fore us. It might be said that tl in- direction given by the defendant to Noakes, the factor, to alter the instru- ment was an adoption of his act in preparing it, or a recognition ab ini- tio of the whole document as con- taining the contract. Or one might go further and say that, from the nature of the transaction and the meeting of the parties at the office, it might be thought that there was evidence that it was meant that Noakes should act as the scribe of both parties in drawing up a note of the contract. But here there is an entire absence of any act of recogni- tion by the defendant of the traveler as bis agent." i Bent v. Cobb, 9 Gray (Mass.), 397, 69 Am. Dec. 295; Doty v. Wilder, 15 111. 407, 60 Am. Dec. 756; Thomas v. Kerr, 3 Bush (Ky). 619, 06 Am. Dec. 262; Walker v. Herring, 21 Gratt. (Va.) 678, 8 Am. R. 616. 2 Bent v. Cobb, supra; Sanborn v. Chamberlin, 101 Mass. 409: Craig v. Godfrey, 1 Cal. 415,54 Am. Dec. 299; Thomas v. Kerr, supra; Harvey v. Stevens. 43 Vt. 653; Hart v. Woods, 7 Black f. (Ind.) 568; Adams v. Mc- Millan. 7 Port. (Ala.) 73; O'Donnell v. Leeman. 43 Me. 158; Linn Boyd To- bacco Co. v. Terrill, 13 Bush i Ky. |, 463; Brent v. Green, 6 Leigh (Va. t, 16; Pike v. Balch, 38 Me. 302; Pugh v. Chesseldine, 11 Ohio, 109, 37 Am. Dec. 414: McComb v. Wright, 4 Johns. (N. Y.i Ch. 659; First Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28; Davis v. Rowell, 2 Pick. (Mass.) 64. 13 Am. Dec. 398; Morton v. Dean, 13 Mete (Mass.) 385; Johnson v. Buck, 35 N. J. L. 338, 10 Am. R. 243; Farebrother v. Simmons, 5 B. & Aid. 333: Simon v. Motivos, 3 Burr. 1921; Hinde v. Whitehouse, 7 East. 558; White v. Proctor, 4 Taunt. 209; Emmerson v. Heelis, 2 Taunt. 38. But where the auctioneer is a party in interest, his memorandum is not sufficient. Bent v. Cobb, supra; Tull v. David. 45 Mo. 444, 100 xim. Dec. 385; Johnson v. Buck, 35 N. J. L. 338, 10 Am. R 243. 379 § 161.] LAW OF SALE. [BOOK I. by the auctioneer or his clerk immediately upon the acceptance of his bid and the striking down of the property^ it must be done at the time and place of the sale, and cannot be done after the sale is over. 1 The principle upon which this rule is founded, as is said by a learned judge, is "that the auctioneer at the sale is the agent; that the purchaser, by the act of bid- ding, calls on him or his clerk to put down his name as the purchaser. The entry, being made in his presence, is presumed to be made with his sanction, and to indicate his approval of the terms thus written down. In such case there is but little danger of mistake or fraud. But if a third person, not pres- ent, or even the auctioneers, may afterward add the name of another purchaser, they may strike out the name already in- serted and substitute that of a new and different purchaser. They may defeat rights already vested. They may impose lia- bilities never contracted. The party to be charged may thus iMechem on Agency, §893. "It appears now to be settled by the Eng- lish authorities, . . . that the auc- tioneer is a competent agent to sign for the purchaser either of lands or goods at auction; and the insertion of his name as the highest bidder in the memorandum of the sale by the auctioneer, immediately on receiving his bid and striking down the ham- mer, is a signing within the statute so as to bind the purchaser." Chan- cellor Kent, in McComb v. Wright, 4 Johns. Ch. (N. Y.) 659, 663. " It is now well settled by authori- ties, that a sale of real estate at auc- tion, where the name of the bidder is entered by the auctioneer, or by his clerk under his direction, on the spot, and such entry is so connected with the subject and terms of sale as to make a part of the memorandum, is a contract in writing, so as to take the case out of the statute of frauds." Story, J., in Smith v. Arnold, 5 Mason (U. S. C. C), 414, 419. " The name of the bidder must be entered by the auctioneer, or by his clerk under his direction, on the spot." Shaw, J., in Gill v. Bicknell, 2 Cush. (Mass.) 355, 358. "The law, therefore, when it al- lows him (the auctioneer) to act in the nearly unprecedented relation of agent for both parties, imposes a qualification not applied in the usual cases of agency, and requires that the single act for which, almost from ne- cessity, he is authorized to perform for the buyer, shall be done at the time of sale, and before the termina- tion of the proceedings." Kent, J., in Horton v. McCarty, 53 Me. 394-398. To the same effect, see Craig v. God- frey, 1 Cal. 415, 54 Am. Dec. 299, where the entry was held too late, though made in the afternoon of the same day; Hicks v. Whitmore, 12 Wend. (N. Y.) 548, where one hour's delay was held fatal. 380 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 462. be held liable by a writing he never saw, signed by an agent of whom he never heard." * § 462. But auctioneer who sells his own goods cannot sign for buyer. — Where, however, the auctioneer is himself the seller of the goods, this implied power to bind the buyer does not exist, 2 inasmuch as the same party cannot, as has b^en seen, 3 be at once both party and agent for the opposite party, with- out the latter's knowledge and consent. With such express con- sent, however, he may act for both. 4 But the clerk of the auctioneer may act as agent for both parties, and bis memorandum will bind both. 5 1 Staples, J., in Walker v. Herring, 21 Gratt. (Va.) 678, 8 Am. R 616. 2 In Johnson v. Buck, 35 N. J. L. 338, 10 Am. R. 243, it is said: "The agent, to make the signature, must be some third person. Neither of the contracting parties can be agent for the other. A signature by the vendor or purchaser, of the name of the other, is not a sufficient signing. Wright v. Dannah, 2 Camp. 203; Rayner v. Linthorne, 2 C. & P. 124; Sharman v. Brandt, L, R. 6 Q. B. 720; Bent v. Cobb, 9 Gray (Mass.), 397, 69 Am. Dec. 295. Where the suit is brought by the auctioneer himself, for the purposes of that suit he is re- garded as a contracting party, and a signing by him of the name of the defendant is insufficient. Fare- brother v. Simmons, 5 B. & Aid. 333." See also Smith v. Arnold, 5 Mason (U. S. C. C), 414; Tull v. David, 45 Mo. 444, 100 Am. Dec. 385. 3 See ante, § 452. 4 Mechem on Agency, § 68. 5 In Johnson v. Buck, supra, the court further say: "But the reason of this disqualification to be the agent of the purchaser, for the pur- pose of signing, does not apply to the clerk of the auctioneer. When the bids are announced, and the property struck off, the clerk is the agent of both parties to record the sales and affix the signature of the purchasers, although he is employed to act as clerk by the auctioneer. No reason for his disability to act as agent for the purpose of making the signature of the purchaser, as between the lat- ter and the auctioneer, can be ad- duced, which will not operate equally to exclude the auctioneer, where the litigation is directly between the vendor and purchaser. The question, in every case, is one of fact, whether the person by whom the signature has been made was an agent law- fully authorized to make the same. Auctioneers and brokers, by virtue of their business, by the usages of trade, are assumed to have such au- thority; and where the auctioneer's clerk, or a volunteer, acts openly at a sale in entering the successful bids, as they are publicly announced, his authority to act for the purchaser in the premises is established. Conse- quently, it has been held that, in a suit in the name of the auctioneer against a purchaser to recover the 381 §§463,464.] LAW OF SALE. [BOOK I. § 463. Broker as agent of both parties.— The purchase and sale of goods is constantly being effected through the medium of a special class of agents called brokers. The broker, like other ao-ents, owes a duty of fidelity and single-mindedness to his employer which renders him incompetent to enter into the serv- ice of both parties to the same transaction, except with the full knowledge and consent of both. 1 With this knowledge and consent, however, he may act for both,' 2 and in a great number of mercantile transactions he represents both parties by their express or implied authority ; and where he does so, his signing of the name of each party binds each. 3 | 464. How authorized. — This authority need not be expressly conferred, and in practice ordinarily is not. At the outset the broker is the agent of the party who first employed him, but he becomes the agent of the other also, when the lat- ter instructs him to close the bargain, 4 or deals with him as representing both parties, 5 or subsequently ratifies what, as agent of both parties, he has assumed to do. 6 When so author- ized he has, like other agents, implied authority to do what- ever is necessary and proper to carry his authority into effect, including herein the signing of the necessary memorandum. 7 price of the goods, the signing of the a broker, originally employed by the purchaser's name by the clerk of buyer, having closed a bargain with the auctioneer, upon the successful the sellers, made a memorandum of bid being announced, is a sufficient it, at the time and in their presence, bid within the statute. Bird v. in which they were described as Boulter, 4 B. & Ad. 443; Browne on sellers, it was held that the sellers Frauds, sec. 3G9; Durrell v. Evans, 1 thereby recognized him as their H. & C. 174-188; Gill v. Bickhell, 2 agent also. Clason v. Bailey, 14 < ash. (Mass.) 355." See also Wood on Johns. (N. Y.) 484. Statute of Frauds, § 427. 6 Their assent may be presumed 1 Mechem on Agency, §§ 943, 953. where they receive and retain with- 2 Mechem on Agency, ^ 943, 953. out dissent a memorandum of the 3 Wood on Statute of Frauds, §429; sale made by the broker as their Butler v. Thomson, 92 U. S. 412; New- agent as well as of the other party, berry v. Wall, 84 X. Y. 570; Bacon v. Newberry v. Wall, 35 N. Y. Super. Eccles, 43 Wis. 227; Coddington v. Ct. 100; s. c, 05 N. Y. 484; s. a, 84 Goddard, 16 Gray (Mass.), 436. N. Y. 576: Remick v. Sandford, 118 4 Coddington v. Goddard, supra. Mass. 102. 5 Bacon v. Eccles, supra. So where 1 Coddington v. Goddard, supra. 382 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 465— ±G7. §465. When special agent. — Where, however, he is thus authorized to represent the other party in a single trans- action inaugurated by the broker as agent of the first, he is deemed to be a special agent, and he will not bind such other party unless he keeps within the limits of the authority con- ferred upon him. 1 8 466. When not authorized to sign. — And where he is not employed to make the contract, but simply acts as a go- between to bring together the parties, who make the contract themselves, he has no implied authority therefrom to after- wards make any memorandum of the contract at all. 2 §467. (i Bought and sold notes" in the English practice. In England, the usages of London have entered very greatly into the law upon this subject, and the rights and obligations of the parties are therefore much governed by the established usages controlling the London broker. When such a broker has succeeded in making a contract, says Mr. Benjamin in his 1 Thus in Coddington v. Goddard, siqira, where the broker, acting pri- marily for the buyer, did not include in the memorandum terms and con- ditions upon which the seller author- ized him to close the sale, it was held that the seller was not boimd. Said the court: "A broker, from the very nature of his employment, has only a, limited authority, when it appears, as it does in the present case, that lie had no relation to a party, other than what is derived from a single con- tract of sale. When he applies to a vendor to negotiate a sale, he is not his agent. He does not become so until the vendor enters into the agreement of sale. It is from this agreement that he derives his au- thority, and it must necessarily be limited by its terms and conditions. He is then the special agent of the vendor to act in conformity with the contract to which his principal has agreed, but no further, and he can- not be regarded as his agent, unless he complies with the terms of his special authority as derived from the contract. In short, a broker is au- thorized to sign only that contract into which the vendor has entered, not another and different contract. If he omits to include in the memo- randum special exceptions and con- ditions to the bargain, he signs a contract which he has no authority to make, and the party relying upon it must fail, because it is shown that the broker was not the agent of the vendor to sign the contract." To same effect: Eemick v. Sandford, 118 Mass. 102. 2 Aguirre v. Allen, 10 Barb. (N. Y.) 7-4. 88\ § 467.] LAW OF SALE. [BOOK I. work on Sales, 1 " he reduces it to writing, and delivers to each party a copy of the terms as reduced to writing by him. He also ought to enter them in his book and sign the entry. What he delivers to the seller is called the sold note; to the buyer, the bought note. No particular form is required, and from the cases it seems that there are four varieties used in practice. The Jlrst is where on the face of the notes the broker professes to act for both the parties whose names are disclosed in the note. The sold note, then, in substance, says, ' Sold for A B to C D,' and sets out the terms of the bargain ; the bought note begins, ' Bought for C D of A B,' or equivalent language, and sets out the same terms as the sold note, and both are signed by the broker. The second form is where the broker does not disclose in the bought note the name of the vendor, nor in the sold note the name of the purchaser, but still shows that he is acting as broker, not principal. The form then is simply, 'Bought for C D' and 'Sold for A B.' The third form is where the broker, on the face of the note, appears to be the principal, though he is really only an agent. Instead of giv- ing to the buyer a note, 'Bought for you by me,' he gives it in this form : ' Sold to you by me.' By so doing he assumes the obligation of a principal, and cannot escape responsibility by parol proof that he was only acting as broker for another, al- though the party to whom he gives such a note is at liberty to show that there was an unnamed principal, and to make this principal responsible. The fourth form is where the broker professes to sign as a broker but is really a principal, as in the cases of Sharman v. Brandt 2 and Robinson v. Mollett? in which case his signature does not bind the other party, and he cannot sue on the contract. " According to either of the first two forms, the party who receives and keeps a note, in which the broker tells him in ef- fect, 'I have bought for you, or I have sold for you,' plainly admits that the broker acted by his authority and as his agent, and the signature of the broker is therefore the signature of i § 276. 2 l. R. 6 Q. B. 720. 3 l. R. 7 H. L. 802, 14 Eng. R 177. 884 CH. YII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ ±QS. the party accepting and retaining such a note; but according to the third form, the broker says, in effect, ' I myself sell to you,' and the acceptance of a paper describing the broker as the principal who sells, plainly repels any inference that he is acting as agent for the party who buys, and, in the absence of other evidence, the broker's signature would not be that of an agent of the party retaining the note; and by the fourth form, the language of the written contract is at variance with the real truth of the matter." § 468. English rules gOTerning the bought and sold notes. — As to the rules governing the bought and sold notes, Mr. Benjamin gives the following summary: l "First — The broker's signed entry in his book constitutes the contract between the parties, and is binding on both. 2 " Secondly — The bought and sold notes do not constitute the contract. 3 "Thirdly — But the bought and sold notes, when they cor- respond and state all the terms of the bargain, are complete and sufficient evidence to satisfy the statute; even though there be no entry in the broker's book, or, what is equivalent, only an unsigned entry. 4 i Benjamin on Sales, § 294. overruled in Sievewright v. Archi- z "This proposition rests on the au- bald.. 17 Q. B. 103, 20 L. J. Q. B. 529." thority of Lord Ellenborough in Hey- 3 " This is the opinion of Parke, B., man v. Neale,2 Camp. 337, of Parke, B., in Thornton v. Charles, 9 M. & W. 802, in Thornton v. Charles, 9 M. & W. of Lord Ellenborough in Heyman v. 802, and of Lord Campbell, C. J., and Neale, 2 Camp. 337, and was the Wightman and Patteson, JJ., in unanimous opinion of the four judges Sievewright v. Archibald, 17 Q. B. in Sievewright v. Archibald, 17 Q. B. 103, 20 L. J. Q.B. 529 (and of the court 103. The decision to the contrary, in Thompson v. Gardiner, 1 C. P. D. in the nisi prius case of Thornton v. 777). Gibbs, C. J., in Cumming v. Meux, M. & M. 43, and the dictum Roebuck, Holt, 172; Abbott, C. J., in Goom v. Aflalo, 6 B. & C. 117, and Thornton v. Meux, M. & M. 43; Den- Trueman v. Loder, 11 Ad. & E. 589, man, C. J., in Townend v. Drake- are pointedly disapproved in the case ford, 1 Car. & K. 20, and Lord Abin- of Sievewright v. Archibald, 17 Q. B. ger in Thornton v. Charles, 9 M. & 103, 20 L. J. Q. B. 529." W. 802, are authorities to the con- 4 " This was first settled by Goom trary, but they seem to have been v. Aflalo, 6 B. & C. 117, and reluct- 25 385 § 468.] LAW OF SALE. [BOOK I. " Fourthly — Either the bought or sold note alone will sat- isfy the statute, provided no variance be shown between it and the other note, or between it and the signed entry in the book. 1 " Fifthly —"Where one note only is offered in evidence, the defendant has the right to offer the other note or the signed entry in the book to prove a variance. 2 "Sixthly — As to variance. This may occur between the bought and sold notes where there is a signed entry, or where there is none. It may also occur when the bought and sold notes correspond, but the signed entry differs from them. If there be a signed entry, it follows from the authorities under the first of these propositions that this entry will in general control the case, because it constitutes the contract of which the bought and sold notes are merely secondary evidence, and any variance between them could not affect the validity of the original written bargain. If, however, the bought and sold notes correspond, but there be a variance between them taken collectively and the entry in the book, it becomes a question of fact for the jury whether the acceptance by the parties of the bouo-ht and sold notes constitute evidence of a new contract modifying 1 that which was entered in the book. 3 " Seventhly — If the bargain is made by correspondence, and there is a variance between the agreement thus concluded and antly admitted to be no longer ques- for granted that the defendant may tionable in Sievewright v. Archibald, produce his own bought or sold note 17 Q. B. 103, 20 L. J. Q. B. 529." to show that it does not correspond 1 " This was the decision in Hawes with the plaintiff's." Y- Forster, 1 Mood. & Rob. 368, of the 3 " This is the point established by common pleas in Parton v. Crofts, 16 Hawes v. Forster, 1 Mood. & R. 368, C. B. (N. S.) 11, 33 L. J. C. R 189 (and according to the explanation of that of the common pleas division in case first given by Parke, B., in Thorn- Thompson v. Gardiner, 1 C. P. D. ton v. Charles, 9 M. & W. 802, after- 777)."' wards by Patteson, J., in Sievewright 2 "Hawes v. Forster, 1 Mood. & v. Archibald, 17 Q. B. 103, 20 L. J. Rob. 368, is direct authority in rela- Q. B. 529, and adopted by the other tion to the entry in the book, and in judges in this last-named case." But all the cases on variance, particularly the variance must be one in meaning in Parton v. Crofts, supra, it is taken and not in language merely. 386 CH. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§ 409. the bought and sold notes, the principles are the same as those just stated which govern variance between a signed entry and the bought and sold notes. 1 " Eighthly — If the bought and sold notes vary, and there is no signed entry in the broker's book, nor other writing show- ing the terras of the bargain, there is no valid contract. 2 " Lastly — If a sale be made by a broker on credit, and the name of the purchaser has not been previously communicated to the vendor, evidence of usage is admissible to show that the vendor is not finally bound to the bargain until he has had a reasonable time, after receiving the sold note, to inquire into the sufficiency of the purchaser, and to withdraw if he disap- proves." 3 § 469. " Bought and sold notes " in the United States. The usages of the London brokers have not been generally adopted in the United States, though " bought and sold notes 1 ' are not rare; but, in general, here the broker's book constitutes the appropriate place for his entry, 4 and such entries, as has been seen in the preceding sections, are looked upon with favor; and, however informal or inartificial they may be, if they con- tain the essential elements of the contract and are duly signed 1 "As decided in Hey worth v. note signed by the broker and sent Knight, 17 C. B. (N. S.) 298, 33 L. J. to the defendant." C. P. 298." 3 "This was decided in Hodgson v. 2 " This is settled by Thornton v. Davies, 2 Camp. 530, and as the spe- Kempster, 5 Taunt, 786: dimming cial jury spontaneously intervened v. Roebuck, Holt, 172; Thornton v. in that case, and the usage was held Meux, 1 M. & M. 43; Grant v. Fletcher, good without proof of it, it is not im- 5 B. & C. 436; Gregson v. Rucks, probable that the custom might now 4 Q. B. 737, and Sievewright v. Archi- be considered as judicially recognized bald, 17 Q. B. 103, 20 L. J. Q. B. 529. by that decision, and as requiring no The only opinion to the contrary is proof. See Brandao v. Barnett, 3 that of Erie, J., in the last-named C. B. 519, on appeal to H. of L. (s. C, case. In one case, however, at nisi 12 CI. & Fin. 787), as to the necessity pHus (Rowe v. Osborne, 1 Stark. 140), for proving mercantile usages. Also, Lord Ellenborough held the defend- 1 Smith's L. C. 602 (ed. 1879); but it ant bound by his own signature to a would certainly be more prudent to bought note delivered to the vendor, offer evidence of the usage." -which did not correspond with the 4 Bacon v. Eccles, 43 Wis. 227. 387 §§ 470-472.] LAW OF SALE. [book I. in such manner as signing has been found to be required, they will suffice. If, however, the parties adopt the English system, the rules laid down by the English courts would of course be applicable. 1 §470. Revocation of broker's authority. — The au- thority of the broker, like that of any other agent not coupled with an interest, 2 may be revoked at any time before he has acted, as in making the memorandum ; 3 but after he has signed, if duly authorized, the principal cannot withdraw, except in the case, warranted by usage in England, of a sale by the agent on credit to a person not previously disclosed, in which event the principal may withdraw within a reasonable time after re- ceiving the sale note, if, on inquiry, he is dissatisfied with the responsibility of the purchaser. 4 §471. Signing by partner. — Not only may the signature of the agent to the memorandum evidencing his contract for his principal bind the principal, but also the signature of one partner to a memorandum evidencing an agreement made by him on behalf of the partnership and within the scope of its business will bind the other partners; and this is upon the basic rule of all partnerships that the act of one partner, within the scope of the partnership business, is the act of the copart- nership. 5 e. Of Alteration of the Memorandum. § 472. Alteration of executed memorandum. — In general a material alteration of an instrument by one party destroys its effect in conferring any rights whatever upon him; 6 and the other party, at his option, may repudiate it altogether or iThus if "bought and sold notes" 339, n.; Warwick v. Slade, 3 Camp, are given, a material variance be- 127. tween them will vitiate them. Bacon * Hodgson v. Davies, 2 Camp. 530. v. Eccles, 43 Wis. 227; Suydam v. » California Canneries Co. v. Sea- Clark, 2 Sandf. (N. Y.) 133; Peltier v. tena, 117 Cal. 447, 49 Pac. R 462. Collins, 3 Wend. (N. Y.) 459. 6 gee Bishop on Contracts, § 746 et 2 Mechem on Agency, § 938. seq. 8 Farmer v. Robinson, 2 Camp. 383 <3H. VII.] CONTRACT UNDER STATUTE OF FRAUDS. [§§ 473, 474. rely on it in its original state. 1 Hence, if the seller makes, or causes to be made, a material alteration in the memorandum after it has taken effect, he cannot ignore the alteration and enforce it as it stood. 2 § 473. Memorandum not to be altered by parol. — And so, as has been seen, 3 the completed memorandum is not to be altered or modified by parol. Hence, " where a contract, af- fected by the statute, has been put in writing, and the plaint- iff, in a case of subsequent oral variation of some of the terms of the written agreement, declares upon the writing as quali- fied by the oral variation, he cannot prevail." 4 § 474. Discharge or substitution of agreement may be shown. — But this rule seems not to prevent a showing by parol that the written agreement which was required by the statute of frauds has been wholly discharged, or that some new and different agreement has been substituted for it. 5 i Bishop on Contracts, § 748. ley v. Swanstrom, 40 Minn. 196, 41 N. 2 Powell v.Divett (1812), 15 East, 29; W. R. 1029; Hill v. Blake, 97 N. Y. Mollett v. Wackerbarth (1847), 5 Corn. 216; Carpenter v. Galloway, 73 Ind. B. 181, 17 L. J. Com. P. 47, 57 Eng. 418; Rucker v. Harrington, 52 Mo. Com. Law, 180. App. 481. 3 See ante, § 446 et seq. 5 See Browne, Statute of Frauds, 4 Browne on Statute of Frauds, §§ 429-436; Greenleaf on Evidence, §411; Augusta Southern R. Co. v. §302; Cummings v. Arnold (1842), 3 Smith (1899), 106 Ga. 864, 33 S. E. R. Mete. (Mass.) 486, 37 Am Dec. 155; 28; Burns v. Fidelity Real Estate Co., Stearns v. Hall (1851), 9 Cush. (Mass.) 52 Minn. 31, 53 N. W. R. 1017; Heis- 31. 3S9 BOOK II. OF THE EFFECT OF THE CONTRACT IN PASSING TITLE. CHAPTER I. PURPOSE OF BOOK IL 480. Specific or unascertained goods. 481. How questions classified. § 475. Subjects yet to be considered. 476. Executory and executed con- tracts. 477-479. Intention of parties as the test. g 475. Subjects yet to be considered.— Having considered the questions of the making of the contract, the parties to it, and its form and sufficiency, it next remains to consider the effect of the contract in passing title to the property which was the subject-matter of the contract. This question depends largely upon the distinction between executory and executed contracts. §476. Executory and executed contracts.- As has been already seen, a distinction is to be taken between a present sale, j M present transfer of the title, and an agreement to sell, by virtue of which the title is to be transferred at some future time. The first is the executed contract or sale proper; the latter is the executory contract or the contract for a sale. Xow it is entirely competent for the parties to make either form of contract, and where they have clearly and unambig- uously made one form or the other there can be no difficulty. The difficulty arises in those cases in which they either had no definite intention at all, or, if they had, they have failed to make it clear. §§ 4T7, 478.] LAW OF SALE. [BOOK II. The consequences, however, are material ; for if the title has not yet passed, the intending seller is charged with the respon- sibility for the goods, is liable for their loss, has no present claim for the price, but, at the same time, he has incurred as yet no risk of not getting his pay. If the contract be executed, on the other hand, all this is changed; for the risk of the goods has passed to the purchaser, who is liable for the price, while the seller has either the price in hand or the right to it, and may have a lien upon the goods to secure its payment. § 477. Intention of the parties is the criterion.— The question of possession is sometimes significant, but it is not the criterion; for, as will be seen, the title may pass though the seller retains possession, or the title may be retained though possession has been given to the prospective purchaser. The true criterion is the intention of the parties, to be discovered, when possible, from their express declarations; and where this is not possible, to be gathered from all the circumstances of the case, as well as from their declarations, if any. § 478. . There are, however, many incidents which, as will be seen, are ordinarily regarded as raising a presumption that the title has or has not passed, though this presumption yields to the intention. For example, it is said, 1 " Though by the general rule of law the sale is not complete if anything remains to be done between the parties, yet they may agree, either expressly or tacitly, to change this, and that the title to the property shall pass at once. Conditio quce initio contractus dicta est, postea alia jpactione immutari potest. 2 Thus, though it is implied that a sale is for ready money unless otherwise agreed, yet the condition to pay immediately may be waived, and the goods at once passed to the buyer. 3 Writings may be agreed to be made, but this stipulation may be changed or 1 In Fuller v. Bean (1857), 34 N. II. 3 Citing 2 Kent, Cora. 496; Schind- 290. ler v. Houston, 1 Denio (N. Y.), 48; 2 Citing Dig. 18, 1, 6; Alexander Mixer v. Cook, 31 Me. 340; Blackb. v. Gardner, 1 Bing. N. C. 671; 2 Kent, Sale, 147. Com. 496; Blackb. on Sale, 160. 392 CH. I.] PURPOSE OF BOOK II. [§§ 479, 480. waived. 1 Measures to ascertain quantity or" price may be agreed upon, but tacitly waived or expressly postponed, or dispensed with." 2 § 479. . So it was said by Lord Brougham: 3 " To con- stitute a sale which shall immediately pass the property, it is necessary that the thing sold should be certain, should be ascertained 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 after- wards 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 nothing 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 till something is done to ascertain the amount of the price. The question must always be, what was the intention of the par- ties in this respect, and that is of course to be collected from the terms of the contract. If those terms do not show an in- tention of immediately passing the property, 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." § 480. Specific or unascertained goods. — In addition to the question of the executed or executory nature of the contract, the character and situation of the goods are material. Are the goods specific and definitely agreed upon, or are they not yet ascertained, or perhaps not yet in existence? Are they now in the condition in which they are to be delivered, or are they 1 Citing Draper v. Jones, 11 Barb. 3 In Logan v. Le Mesurier, G Moore, (N. Y.) 263. P. C. 116. 2 Citing Macomber v. Parker, 13 Pick. (Mass.) 175. 393 R 481.] LAW OF SALE. [BOOK II. yet to be fitted for delivery ? Are they separated from the mass of which they previously formed a part, or are they still in the mass and yet to be separated and set apart for the buyer ? These and similar questions are obviously material ; and the two classes of questions present a variety of combinations. § 481. How questions classified .— Attempting to group these various elements in logical order there will be considered here : I. Unconditional contracts for the sale of specific chattels. II. Conditional contracts for the sale of specific chattels. III. Contracts respecting existing chattels not yet identified. IV. Contracts respecting goods to be manufactured or grown. Y. Contracts reserving jus disponendi. Each of these will be made the subject of a separate chapter, and together these questions will form the subject-matter of Book II. 394 CHAPTER II. OF THE UNCONDITIONAL SALE OF SPECIFIC CHATTELS. §492, - Or though goods remain with seller as bailee for buyer. 493-495. Title may pass though price not yet paid. 496-498. Or though something remains to be done to ascer- tain the price. 499. The question is one of inten- tion. 500, 501. Rules for determining the intention. 502. Question of intention, by whom decided. § 482. Purpose of this chapter. 483, 484. Title passes at once on un- conditional sale of specific chattel. 485, 486. Title may pass though goods not delivered. 487, 488. Or though seller is yet to make delivery. 489. Or though seller is to do some other act before de- livery. 490. Or though seller is to do something to the goods after delivery. 491. Or though goods are in hands of seller's bailee or agent. §482. Purpose of this chapter.— It is proposed in this chapter to take up what is perhaps the simplest and most com- mon of the several combinations of questions referred to in the preceding chapter, namely, the case of the unconditional con- tract to sell a specific chattel. And the particular question will be this: Where the parties have in mind a definite, ascer- tained and existing chattel, and they respectively agree with- out condition or qualification that one shall then sell and the other shall then buy that particular chattel, what is the effect of their agreement upon the transfer of the title to the chattel ? To this question it is believed that the law returns the an- swer which forms the substance of the following section, viz.: § 483, Title passes at once on unconditional sale of spe- cific chattel.— When the terms of the contract of sale have been definitely agreed upon and the goods have been specific- 395 § 483.] LAW OF SALE. [book IT. ally ascertained, and nothing remains to be done by the seller except to deliver the goods, the effect of the contract, as be- tween the parties thereto, 1 will, unless a contrary intention appears, be to vest the title to the property immediately in the purchaser, even though the goods have not yet been de- livered or paid for. The purchaser cannot, indeed, take the goods away until he has paid for them, unless a term of credit has been given, but the title and therefore the risk of the goods will be in him, and the seller may have his remedies for the price. 2 i The question may be affected, of the bargain the property was in the course, by the rules which, regulate the effect, so far as creditors and sub- sequent purchasers are concerned, of the retention of possession by the seller. See post. §§ 963, 979. But those rulas are foreign to the present consideration. 2 In Wade v. Moffett, 21 111. 110, 74 Am. Dec. 79, Breese, J., says: "It is a general rule of the common law as to sale of chattels, that, as between the vendor and vendee, no actual de- livery, symbolical or otherwise, is necessary, the completion of the bar- gain being all that is requisite to pass the title, though not the posses- sion, until the price be paid or satis- factorily arranged. In Noy's Max- ims, as quoted by Lord Ellenborough, C. J., in Hinde v. Whitehouse and Galan, 7 East, 558, 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 deliv- ered; 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 delivery, I may have an action of debt for my money, because by buyer.' So in 2 Bl. Com. 448, citing Noy. Kent says: 'When the terms of sale are agreed on, and the bargain is struck, and everything that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without act- ual payment or delivery, and the prop- erty and the risk of accident to the goods vest in the buyer.' 2 Kent's Com. 492. In Potter v. Cowand, Meigs, 22, it is said: 'It is not the de- livery or tender of the property, nor the payment or tender of the pur- chase-money, which constitutes a sale. The sale is good and complete as soon as both parties have agreed to the terms — then the rights of both are instantly fixed. But to have an action for the price, the seller must deliver or offer to deliver the property. If he tenders a deliv- ery of the property and demands the purchase-money, he may have his action of debt or assumpsit if it be refused.' In Willis v. Willis' Adm'r, 6 Dana, 48, the doctrine was declared that a sale of goods becomes abso- lute, the property vested in the buyer and at his risk, as soon as the bargain is concluded, without actual pay- ment or delivery. In Tarling v. Bax- ter, 6 Barn. & Cress. 360, 9 Dow. & 96 CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 4S4. § 484. . The rules here applicable were very clearly stated in an English case by Parke, J., as follows: "I take it to be clear that by the law of England the sale of a specific chattel passes the property in it to the vendee without deliv- Ry. 272, the court say: 'The rule of law is that where there is an imme- diate sale, and nothing remains to be done by the vendor as between him and the vendee, the property in the tiling sold vests in the vendee, and then all the consequences resulting from the vesting of the property fol- low, one of which is that if. it be de- stroyed the loss falls on the vendee.' So in Gardner v. Howland, 2 Pick. 599; Shumway v. Rutter, 8 id. 443, 19 Am. Dec. 340: Parsons v. Dickinson, 11 id. 352. The same doctrine is rec- ognized in North Carolina. State v. Fuller, 5 Ired. L. 26. So in Ohio, the court say, in Hooban v. Bidwell, 16 Ohio, 509, 47 Am. Dec. 386: 'The civil law required a delivery, and so, it has been said, did the common law. But we think delivery not nec- essary by the common law to pass the title to personal property ; that a sale without it is complete as be- tween the parties, though it be not so as to affect the interests in certain cases of third persons.' In New Hampshire (Ricker v. Cross, 5 N. H. 571, 22 Am. Dec. 480), the court say: 'The general rule is that the delivery of possession is necessary in a con- veyance of personal chattels as against every one except the vendor. Between the vendor and the vendee the property will pass without deliv- ery, but not with respect to third persons who may afterwards, with- out notice, acquire a title to the goods under the vendor. An actual delivery by the vendor to the vendee is not in all cases necessary.' So in Maine (Wing v. Clark, 24 Me. 366), it is held that ' when the terms of sale of personal property are agreed on, and the bargain is struck, and every- thing the seller has to do witli the goods is complete, the contract of sale becomes absolute without actual payment or delivery, and the prop- erty in the goods is in the buyer; and if they are destroyed by accidental fire he must bear the loss.' So in Bradeen v. Brooks, 22 Me. 463. A party becomes a buyer when goods are knocked down to him at an auc- tion. Hilliard on Sales, 323. In the case of Lansing v. Turner, 2 Johns. 13, the court held to the rule as laid down by Blackstone; and Thomp- son, J., says: 'This I apprehend to be the rule in all cases on the sale of a specific chattel where the identity of the article cannot be controverted, the inference of the law being that the vendor is a mere bailee, retain- ing the possession at the request of the vendee.' " " Wherever there is a sale of per- sonal property, where nothing re- mains to be done by the seller before it is delivered, the property passes to the buyer without delivery; and if injured or destroyed after the sale, the loss falls upon the purchaser, and the seller is entitled to payment of the price." England v. Forbes, 7 Houst. (Del.) 301, 31 Atl. R. 895. See also the exhaustive discussion in Com. v. Hess (1892), 148 Pa. St. 98, 23 Atl. R. 977, 33 Am. St. R. 810. In Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274, Coke, J., said : " By the common law, if the seller make a proposition and the buyer 397 § 485.] LAW OF SALE. [BOOK II. ery. . . . Where there is a sale of goods generally, no prop- erty in them passes till delivery, because until then the very goods sold are not ascertained. But where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated, price, the parties are then in the same situation as they would be after a delivery of the goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee." ' § 485. Title may pass though goods not yet delivered. Following the general rule as laid down in the preceding section more fully into details, it is to be observed that the title to the goods may often, as between the parties, 2 pass though the goods have not yet been delivered. Assuming that the statute of frauds is not involved or has been satisfied, and that the rights of subsequent purchasers or creditors are not concerned, it is abundantly settled that if the goods are fully identified, appro- priated to the contract, and are in condition for delivery, and if the terms of the contract are agreed upon, the title will, un- less a contrary intention appears, pass at once upon the comple- tion of the contract, even though the goods are not delivered, 3 accept, and the goods are in the pos- (N. S.) 84; Turley v. Bates, 2 H. & C. session of the seller, and nothing re- 200 ; Chambers v. Miller, 13 C. B. (N. S.) mains to be done to identify them, or 125; Hmde v. Whitehouse, 7 East, in any way prepare them for deliv- 558; Tarling v. Baxter, 6 B. & C. 360; ery, the sale is complete, and the Martindale v. Smith, 1 Q. B. 389; property in the goods passes at once. Wood v. Bell, 6 E. & B. 355. The buyer acquires not a mere jus ad 2 It must be kept in mind that the rent, but an absolute jus in re, and he question of the validity of sales as may demand delivery at once on against creditors and subsequent tender of the price, and sue for the purchasers is not now being dealt goods as his own if delivery be re- with. There, as will be seen, differ- fused. 2 Kent's Com. 492; 2 Parsons ent considerations are involved and on Contracts (4th ed.), 320; 1 id. 441; an actual change of possession often Story on Sales, sec. 300." requisite. See post, %% 962, 979. 1 Dixon v. Yates, 5 B. & Ad. 313, :i " Standard authorities," said the 340. See also Joyce v. Swann, 17 C. B. United States supreme court in 398 CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 485. or, as will be seen in a later section, notwithstanding that the price has not yet been paid. 1 As stated in a recent Minnesota case, 2 " Contracts for the purchase and sale of chattels, if com- plete and unconditional, and not within the statute of frauds, Hatch v. Oil Co., 100 U. S. 124, "show that where there is no manifestation of intention, except what arises from the terms of sale, the presumption is, if the thing to be sold is specified and it is ready for immediate deliv- ery, that the contract is an actual sale, unless there is something in the subject-matter or attendant circum- stances to indicate a different inten- tion." That delivery in such cases is not essential to the transfer of the title: Rail v. Little Falls Lumber Co., 47 Minn. 422, 50 N. W. R. 471; Penley v. Bessey, 87 Me. 530, 33 Atl. R. 21; Cummings v. Oilman, 90 Me. .524, 38 Atl. R. 538; Com. v. Hess, 148 Pa. St. 98, 23 AtL R. 977, 33 Am. St. R. 810; Clinton Nat. Bank v. Sfcude- mann. 74 Iowa, 104, 37 N. W. R. 112; England v. Forbes, 7 Houst. (Del.) 301, 31 Atl. R. 895; Fletcher v. Nel- son, 6 N. Dak. 94, 69 N. W. R. 53; Benedict, etc. Mfg. Co. v. Jones, 64 Mo. App. 218; Kneeland v. Renner, 2 Kan. App. 451, 43 Pac. R. 95; Suth- erland v. Brace, 34 U. S. App. 638, 73 Fed. R. 624, 19 C. C. A. 589 ; Montgomery Furn. Co. v. Hardaway, 104 Ala. 100, 16 S. R. 29; Briggs v. United States, 143 U. S. 346; Albemarle Lumber Co. v. Wilcox, 105 N. C. 34, 10 S. E. R. 871; Scarbrough v. Alcorn, 74 Tex. 358, 12 S. W. R. 72. In Leonard v. Davis, 1 Black (U. S.), 470, where there was a written con- tract reciting that one party had " bought of " the other certain logs, described by their location, at so much per thousand feet for a certain quality, less per thousand for an in- ferior quality, all not merchantable to be rejected, the scaling and sort- ing to be done by a person desig- nated, it was held that the property in the logs passed to the vendee by the force of the contract; since noth- ing remained to be done by the seller, the title passed to the buyer at the time the contract was executed. Likewise in First Nat. Bank of Ottumwa v. Reno, 73 Iowa, 145, 34 N. W. R. 796, where the words of the written contract were, '"I hereby sell," it was held that this phrase clearly indicated the intention of the parties to make a present sale and transfer of the property, notwith- standing that it was not delivered, and that the price remained un- ascertained, dependent upon the con- dition of the property in the future. So also in Ruthrauff v. Hagenbuch, 58 Pa. St. 103. there was a written contract which recited that the vendor hereby agrees to sell and doth sell "the said tobacco which is herein and hereby now delivered; " it was held a complete sale, and that the loss of the tobacco occasioned by a flood fell upon the vendee. In Rail v. Little Falls Lumber Co., 47 Minn. 122, 50 N. W. R. 471, where the wording of the contract was essen- tially the same, the court placed no peculiar emphasis upon this fait, but held from other circumstances that, as nothing remained to be done by the parties in completion of the sale, the title passed. In all these cases i Post, §§ 493-495. 2 Rail v. Little Falls Lumber Co., supra. 399 § 486.] LAW OF SALE. [BOOK II. are sufficient as between the parties to vest the property in the purchaser without delivery. The rule is that when the chat- tels are clearly designated and appropriated to the contract, are ready for immediate delivery, and the terms of sale, includ- ing the price, are explicitly given, there is an executed contract, and the title to the property, as between the parties, passes to the purchaser, even without actual payment or delivery." g 486. . This general rule, however, yields to evidence of a contrary intention, and the existence of such a contrary save the last, the wording of the agreement has been held significant of the true intention of the parties and of the character of the trans- action. This intention in all the cases was the cardinal point toward which inquiry was directed, and when ascertained was held to pre- vail. When the property is incapable of delivery into the hand of the pur- chaser it will come under his control and title will pass to him by delivery of a bill of sale (Fletcher v. Nelson, 6 N. D. 94, 69 N. W. R. 53; Cook v. Van Home, 76 Wis. 520, 44 N. W. R. 767), although the seller be put in possession as bailee (White v. Mc- Cracken, 60 Ark. 613, 31 S. W. R. 882); and although there be nothing done symbolical of an intention to vest the title in the purchaser, and owing to the ponderous nature of the arti- cles, as of brick in a kiln, or copper in large quantity, it is impossible to make a manual delivery, the title will pass, if such is clearly shown to be the intention of the parties. Tay- lor v. Thurber, 68 111. App. 114; Hay- den v. Demets, 53 N. Y. 426. In this latter case it was said that the title passed without delivery, and if the purchaser refused to accept the goods and pay the price, "the vendor may, after proper notice, sell the goods and recover the difference in price from the vendee, or sue for the dif- ference between the contract and the actual price, in which case he elects to retain the property as his own, or he may recover the contract price, in which case he holds the prop- erty in trust for the vendee." In Briggs v. United States, 143 U. S. 346, there was a sale to plaintiff, by one Morehead, of " all the cotton in my two plantations in Mississippi, near Eggs' Point and Greenville. Said cotton so sold embraces all that I may have baled and unbaled, gathered and ungathered, . . . sup- posed to be two thousand bales." This cotton was seized and sold by the United States during the war of the Rebellion. After the war was over the action was brought against the United States in the court of claims to recover the value of the cotton so seized. Mr. Justice Field held the title to the cotton was in the plaint- iff, at the time of the seizure, by vir- tue of the bill of sale, and that not- withstanding the fact that it cov- ered cotton yet to be raised, the title to this passed so soon as it appeared above the ground. 400 CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 487-8. intention, when in dispute, is usually a question of fact for the jury, as will be seen in a later section. 1 | 48?. Or though the seller is yet to make delivery. The title may also pass at once, if that appears to be the inten- tion, even though the seller is yet to make a delivery. Thus, it is said by the United States court of appeals: " Undoubtedly, the general rule is, that if the seller obligates himself as a part of his contract to deliver the property to the buyer at some speci- fied place, title will not pass until such delivery; " but, quoting from Mr. Benjamin, the court continues: "Slight evidence is, however, accepted as sufficient to show that title passes imme- diately on the sale, though the seller is to make a delivery. The question, at last, is one of intent, to be ascertained by a consideration of all the circumstances." 2 | 488. . The fact that the price is paid before the deliv- ery is strong evidence that the title has already passed. Thus, in a case 3 often cited, it was said by Selden, J.: "If the pay- ment was to be made on or after delivery, at a particular place, it might fairly be inferred that the contract was executory until such delivery; but where the sale appears to be absolute, the identity of the thing fixed, and the price for it paid, I see no room for an inference that the property 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 con- tract, and that in carrying it the seller acts as bailee and not as owner." The payment of the price is not, however, indispensable; for 1 Post, % 502. Hagins v. Combs, 102 Ky. 165, 43 S. 2 In McElwee v. Metropolitan Lum- W. R. 222; Rail v. Little Falls Lum- ber Co., 37 U. S. App. 266, 69 Fed. R. ber Co., 47 Minn. 422, 50 N. W. R. 302, 16 C. C. A. 232. 471 ; Morris v. Winn, 98 Ga. 482, 25 3 Terry v. Wheeler, 25 N. Y. 520. S. E. R. 562; Clinton Nat. Bank v. To like effect: Bethel Steam Mill Co. Studemann, 74 Iowa, 104, 37 N. W. R. v. Brown, 57 Me. 9; Penley v. Bessey, 112; Burcham v. Griffeth, 31 Neb. 778, 87 Me. 530, 33 Atl. R. 21; Lynch v. 48 N. W. R. 824, Daggett, 62 Ark. 592, 37 S. W. R. 227; 20 401 §§ 489-491.] LAW OF SALE. [book II. if such appears to be the intention, the title will pass without either payment or present delivery. 1 § 489. Or though seller is to do some other act he- fore delivery. — So, to state affirmatively what is hereafter stated negatively, 2 the title to a specific chattel may pass at once, if that appears to have been the intention of the parties, even though the seller has yet to do something to the goods to put them into the form or condition in which they are to be delivered. . " And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as, for instance, to load the goods upon a vessel for transporta- tion, the property may pass by the contract of sale notwith- standing." 3 §490. Or though seller is to do something to the goods after delivery. — So, clearly, the title to a specific chat- tel may pass at once, even though the seller is bound to do something in reference to the goods after their delivery, 4 as to repair or regulate a w T atch sold, or put in operation an engine sold, 5 and the like. The question is one of intention as in other cases ; but the title may pass at once, leaving to the pur- chaser, perhaps, the right to rescind the contract if the act agreed upon is not performed, or to retain the title and pos- session and maintain an action for the breach of the agree- ment. 6 § 491. Or though goods are in hands of seller's bailee or agent.— The fact that the goods, at the time of the sale, are in the possession of a bailee or agent of the seller, will not 1 Thayer v. Davis, 75 Wis. 205, 43 * See Hammond v. Anderson, 1 Bos. N. W. R. 902. & Pul. N. R 69. 2 See post, §§ 507-514, where the 5 Mt. Hope Iron Co. v. Buffinton, subject is more fully considered. 103 Mass. 62. 3 Per Cooley, J., in Lingham v. Eg- 6 Mt. Hope Iron Co. v. Buffinton, gleston, 27 Mich. 324, citing Whit- supra. comb v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520. 402 •CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 492. deprive the transaction of its character as a completed sale, if that result seems to have been intended by the parties. As was said by the court 1 in Missouri, " In the sale of personal property, in order to pass the title to the vendee, it is not nec- essary that the vendor should be in the possession. The sale may be entirely good although the goods are in the possession of a third party. 2 When the goods are in the possession of a bailee or agent of the seller, a completed or absolute sale con- fers an immediate and valid title to the purchaser without any formal delivery of the possession; the possession of the bailee or agent then becomes that of the purchaser, and operates not merely as a transfer of a right in action, but of the goods themselves." 3 The utmost that can be requisite, as between the parties, is that the vendor shall deliver to the vendee such evi- dence, authority or token as may be necessary to show the latter's right to receive possession. 4 § 492. Or though goods remain in hands of seller as bailee for buyer.— Where the goods have been ascertained and the terms of the sale are agreed upon, the title will pass as between the parties, 5 unless a contrary intention appears, i In Erwin v. Arthur, 61 Mo. 386. vendor's bailee to deliver the goods 2 Citing Ben j. on Sales (3d Am. ed.), sold to such purchaser or agent, ^ 6, note a. there is a constructive delivery of 3 To same effect. Williams v. Gray, the property; and the delivery of the 39 Mo. 201 ; Harding v. Manard, 55 order vests the purchaser with the in- Mo. App. 364; Allgear v. Walsh, 24 dvAa of ownership, and has the same Mo. App. 134. effect in transferring the title to the « Where the goods are in the pos- property as the delivery of the prop- session of a bailee of the vendor, a erty." Union Stock Yard Co. v. bill of sale by the vendor gives an Mallory, 157 111. 554, 41 N. E. R. 888, immediate and valid title to the pur- 43 id. 979, 48 Am. St, R. 341 [citing chaser without a formal delivery of McCormick v. Hadden, 37 111. 370; the possession. Williams v. Gray, Burton v. Curyea, 40 111. 320. 89 Am. supra [citing Heine v. Anderson, Dec. 350; Webster v. Granger, 78 111. 2 Duer. 318: Wood v. Tassell, 6 Ad. & 230: Tuxworth v. Moore, 9 Pick. 347, El. (N. S.) 234; Sigerson v. Harker, 20 Am. Dec. 479; Carter v. Willard, 15 Mo. 101]. 19 Pick. 1]. See also Hatch v. Bay- '• When the vendor delivers to the ley, 12 Cush. (Mass.) 27; Gibson v. purchaser, or to the purchaser's au- Stevens, 49 U. S. (8 How.) 384. thorized agent, an order upon the 5 As to the effect upon the rights of 403 R 492.1 L AW 0F SALE. [BOOK II. even though the goods are to remain, for some purpose, in the hands of the seller as bailee of the buyer. Thus, for example, where there was a sale of all the lambs which the seller had in his flock at a given price per head, and it was further agreed that the seller should keep the lambs at pasture until the buyer should call for them, it was held that the title passed at once and the risk of the lambs was imposed upon the buyer, even though they had not been separated from the other sheep and had not been paid for. Said the court: " The case is entirely unlike the sale of certain articles out of a large number. Here the sale was of all the spring lambs owned by the appellee. There was no setting apart to be done. There was no act of separation to be performed. There was no necessity for any counting, or weighing, or for any similar acts. The fact that the appellee was to retain possession of and pasture the lambs did not change the character of the transaction. It was none the less a sale because the seller agreed to care for the property. It was just as competent for the parties to agree that the seller should hold possession as bailee as for them to agree that any- body else might do so." 1 Many similar cases are cited in the notes. 2 creditors and subsequent purchasers Hall, 4 Ind. 189); and when there of leaving the goods in the possession was a sale of lambs to remain with of the seller, sse post, §§ 962, 979. the seller until required by the 1 Elliott, C. J., in Bertelson v. vendee (Bertelson v. Bower, 81 Ind. Bower, 81 Ind. 512 [citing Henline 512), it was held the title to the prop- v. Hall, 4 Ind. 189; Cloud v. Moor- erty passed to the vendee, notwith- man, 18 Ind. 40; Scott v. King, 12 standing its remaining in the pos- Incl 203; Marble v. Moore, 102 Mass. session of the vendor. Barrow v. 443]. To same effect, Robertson v. Window, 71 111. 214. So also in an Hunt, 77 Tex. 321. 14 S. W. R. 68; early Kentucky case (Willis v. Willis' White v. McCracken, 60 Ark. 613, 31 Adm'r, 6 Dana, 48), where there was S. W. R. 882; Barrow v. Window, 71 an exchange of slaves, but owing to I1L 214. See also Cady v. Zimmer- their youth the possession was not man, 20 Mont. 225, 50 Pac. R. 553. changed, it was held that neverthe- 2 Thus, where there was a sale of less the property passed, and they a particular colt, and a stipulation were at the risk of their respective that it should remain with its mother bargainees. Likewise, where hay was until weaned (Sweeney v. Owsley, sold by letter, the amount by weight 14 B. Mon. (Ky.) 332; Henline v. being unknown, but all that was in 404 €IT. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 493. §493. Title may pass though price not yet paid. — It is not at all essential to the transfer of the title that the price shall have been paid. The title, as has been seen, passes as a particular place was conveyed, it . was held a good sale without deliv- ery, imposing the risks of loss on the bargainee. Phillips v. Moor, 71 Me. 78. To the same effect is the case of "Wing v. Clark, 24 Me. 366, where there was a sale of a machine which the vendee sent his agent for, with a team, but the agent, fearing it was too bulky after getting it on his ve- hicle, left it with the vendor, and it was the same night accidentally de- stroyed by fire. It was held that the title had passed, and that the vendee must bear the loss. So also in Roth- well v. Alves, 60 111. App. 156, there was a sale of a buggy, the price being paid, but owing to the muddy condi- tion of the road the purchaser did not wish to take it away, and the seller, to accommodate him, permit- ted it to remain at the shop. The court held the title passed, and that a subsequent purchaser under a bill of sale' generally, describing all the property at the shop, took no title to the carriage. In Penley v. Bessey, 87 Me. 530, 33 Atl. R. 21, plaintiff's agent bought a pair of oxen of defendant, s iw them and paid for them. Defendant agreed to bring them to plaintiff on a later date. Subsequently, but before de- livery of the cattle, one of them, without defendant's fault, died, and the action was brought to recover his value. It was held that the title had passed and the verdict for the plaintiff was set aside. In Clinton Nat. Bank v. Studemann, 74 Iowa, 104. 37 N. W. R. 112, cattle were bought, paid for and delivered to the vendee, who then redelivered 40 them to the vendor to be cared for by him and driven to market. Be- fore they were so driven they were levied upon by the sheriff, with full notice of the sale, as the property of the vendor. It was held the levy was invalid; that the property in the cat- tle had passed to the vendee. Likewise it is held that the pur- chaser must bear the loss occasioned by a destruction of property which is the subject of sale while in transit from the seller to the purchaser. This is upon the theory that the title passes on delivery of the prop- erty to the carrier, this being the last act within the vendor's con- trol. Farmers' Phosphate Co. v. Gill, 69 Md. 537, 16 Atl. R. 214, 1 L. R, A. 767: Mee v. McXider, 109 N. Y. 500, 17 N. E. R. 424; Lord v. Edwards, 148 Mass. 476, 20 N. E. R. 161. In Bates v. Elmer Glass Mfg. Co., — N. J. Eq. — , 14 Atl. R. 273, a cor- poration had received and accepted an order and payment for certain glass. Before it was delivered the concern went into the hands of a re ceiver. It was held that the contract was complete, and the court ordered the receiver to deliver the goods. So also where plaintiff ordered butter from defendant, who selected and set apart the amount required from a larger quantity, afterward sending a bill of account for the same to the plaintiff, it was held that the sale of the butter was complete and that title passed. Mitchell v. Le Clair, 165 Mass. 308, 43 N. E. R. 117. So plaintiff purchased cattle, taking them in payment of a debt, but. not wishing to remove them, left them 493.] LAW OF SALE. [BOOK II. the result of the agreement of the parties. As stated by the supreme court of Minnesota, 1 " The rule is that when the chat- tels are clearly designated and appropriated to the contract,. in care of the vendor until autumn. Meanwhile they were levied upon as property of the vendor, and in a con- test between the officer and the vendee seeking to recover the value of the cattle, it was held that the vendee could recover, as he was the owner of the cattle at the time of the levy. Kennedy v. Whittie, 27 Nova Scotia, 460. In Benedict & Burnham Mfg. Co. v. Jones, 64 Mo. App. 218, defendant's assignor had purchased wire of plaintiffs, but becoming financially embarrassed offered to return what lie had bought less a very little that had been sold. Plaintiffs accepted this offer and requested prepayment of freight, and payment for that part of the wire which had been used. Al- though defendant's assignor was in possession of the goods, in such a condition as to be easily distinguished from the balance of his stock, he neg- lected to make the shipment, hence the action of replevin was brought for the wire against the assignee. The court held that although the wire was mixed with other stock of the assignor, nevertheless, as it re- mained in original packages and bore the shipping tags of plaintiffs, it was so clearly distinguishable from the residue of assignor's stock that the title passed to plaintiffs by means of the previous correspondence concern- ing its shipment. So in Montgomery Furniture Co. v. Hardaway, 104 Ala. 100,. where there was a sale of horses to the agent of the furniture com- pany, but the animals were to remain in the care of the vendor for some little time before payment was to be made or the horses delivered, it was held that the title passed without de- livery, the price having been fixed and the property being identified. So- it was held where hogs were sold while out of the possession of both vendor and vendee, being on the cars in transit to a market, and it was agreed that the consignee should ac- count to the vendee for the price, and he did so account, that the contract of sale was complete; that the title passed, and the vendee was liable for the contract price. Harding v. Manard, 55 Mo. App. 364. In Sutherland v. Bruce, 73 Fed. R. 624, there was an agreement to trade horses. In pursuance of this con- tract one of the parties delivered his horse, but the other refused to fulfill his bargain. Held,tha,t replevin would lie on behalf of the bargainor who had delivered his horse for the ani- mal for which he traded: that the title had passed and with it the right of possession. Likewise where there was a contract concerning some hogs which were identified by the parties, and in part paid for, it was held that notwithstanding the fact that the swine were left with the vendor, the contract was a sale, the title passed, and the vendee could compel a de- livery. O'Farrell v. McClure, — Kan. App. — , 47 Pac. R. 160. So in Lynch v. Daggett, 62 Ark. 592, 37 S W. R. 227, there was a contract concern- i Rail v. Little Falls Lumber Co., 47 Minn. 422, 50 N. W. R. 471, citing. Hatch v. Oil Co., 100 U. S. 124. 406 OH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 493. are ready for immediate delivery, and the terms of sale, in- cluding the price, are explicitly given, there is an executed contract, and the title to the property, as between the parties, ing some wagon tongues and other lumber in a pile on the premises of the vendor. It was agreed that vendor should draw this material to the railway for the vendee, and was to receive a fixed pa-ice for the pile. The court held that the title passed by the force of the contract, the de- livery not being made in no way affecting the title. So, when there was a sale of logs, an unknown quan- tity in feet, but identified and branded by the purchaser, it was held that the title passed, although there was no manual delivery of the property. Hagins v. Combs, 102 Ky. 165, 43 S. W. R 222. In Thayer v. Davis, 75 Wis. 205, 43 N. W. Ff. 902. there was a sale of a definite number of piles of lumber, at a fixed price per thousand feet. As the property was yet undelivered it was coutended that the title did not pass; but the court held that this was immaterial; that from the fact that the agent of the vendee counted the piles and courses in the pile and gave orders for their disposition, an inten- tion to pass the title was shown, and this intention prevailed. In Gatzmer v. Moyer (Pa. St.), 13 Atl. R. 540. there was a sale of all the standing and fallen timber on a cer- tain tract at a fixed price per thou- sand feet sawed: the vendee was to do, the sawing. After the logs had been gotten out they were levied upon as the property of the vendee, and it was held that the title passed to him by virtue of the contract of sale, and the fact that the timber had not yet been measured was immaterial. Likewise where colts were sold to be subse- quently delivered, it was held the title passed and a levy upon them as property of the vendor was void. Kneeland v. Renner, 2 Kan. App. 451, 43 Pac. R 95. In Burcham v. Griff eth, 31 Neb. 778, 48 N. W. R. 824, there was a sale of cattle, the price being paid, to be delivered at a future date. While driving them to the place of delivery several were injured without fault of the vendor. Held, the title had passed and that the loss was on the vendee. When liquors were being pur- chased, from week to week, of a bot- tler, by a hotel keeper in another city, and the practice was, upon re- ceiving orders for the liquor, to set it aside for the purchaser and charge its price to him, delivery being made either by shipment by rail or by the seller's wagon, and the seller, who had no license to sell liquor in the county of the purchaser's domicile, was in- dicted for selling liquor there with- out a license, the question was, When was the contract of sale complete ? When did the title pass to the pur- chaser? If it passed only upon de- livery the law was violated. The court said there was no violation; that the sale was complete in the county of the seller's domicile, and that the title there passed to the purchaser. Com. v. Hess, 148 Pa. St. 98, 23 Atl. R. 977. On the other hand, where it is the evident intention of the parties that title is not to pass until delivery, as where charcoal is to be paid for on delivery at a particular point, the title will not pass until the terms of 407 § 494.] LA.W OF SALE. [BOOK II. passes to the purchaser, even without actual payment or de- livery." ' §494. The payment of the price may, however, be made either expressly or impliedly a condition precedent to the passage of the title; and when such is the case, the COndi- the contract are complied with. (See next chapter.) Diehl v. McCormick, 143 Pa. St. 584. 22 Atl. R. 1033. Or when the contract does not clearly evidence an intention to pass the title, as where one told another he might take a certain mule in pay- ment of a debt, and the other said he would, but there was no further act showing passage of title, it was held to be no sale of the property. Weedon v. Clark, 94 Ala. 505, 10 S. R. 307. Likewise where there was a contract for the sale and purchase of a full boatload of coal slack, it was held that the title to the property did not pass as fast as the boat was loaded, for until fully loaded the contract was ex- ecutory. It was the intention of the parties that the property should all be in the boat before the title passed. Hays v. Pittsburgh, etc. Packet Co., 33 Fed. R. 552. However when the property which is the subject of the contract of sale is on realty owned by the vendee and in place where it will be used, as mining machinery at the head of a mine, the title will pass without de- livery. Hall v. Morrison, 92 Ga. 311, 18 S. E. R. 293. Or, as in the case of lumber yet to be sawed from logs and piled on sticks in vendor's yard, the title will pass to the vendee when the lumber is so piled, and he will be entitled to its possession. Martz v. Putnam, 117 Ind. 392, 20 N. E. R. 270. 1 In Hayden v. Demets, 53 N. Y. 426, it is said: "Upon a valid sale of specific chattels, when nothing re- mains to be done by the vendor ex- cept delivery, whether conditioned upon payment or not, the right of property passes to the vendee, at whose risk it is retained by the vendor." In Clark v. Greeley. 02 N. H. 394, it is said: "As a general rule, under a contract of sale of spe- cific chattels at a stipulated price, when nothing remains to be done to designate the property sold or the price to be paid, the title, independ- ently of the statute of frauds, imme diately 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. Clark v. Draper, 19 N. H. 419, 421; Bailey v. Smith, 43 N. H. 141, 143; Townsend v. Hargraves, 118 Mass. 325, 332: Phillips v. Moor, 71 Me. 78; Dixon v. Yates, 5 B. & Ad. 313, 340. Although the title passes so as to subject the buyer to the risk of future injury to the property, the right of possession does not pass, but is dependent upon the payment of the price. In the absence of any agreement, payment and delivery are to be concurrent acts, and the seller has the right to retain the possession until the price is paid." In Olyphant v. Baker, 5 Denio (N. Y), 379, it is said by Beards- ley, 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 be- fore making delivery, transfers the 408 CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 495-6. tion will be operative unless its provisions are waived, as will be seen in the following chapter; 1 but in the absence of such a condition the title passes, as already stated. § 4-95. . The passing of the title must nevertheless be constantly distinguished from the delivery of the possession. For, though the title may have passed, it may well be, as will be seen hereafter, 2 that the vendor, by virtue of his vendor's lien, is entitled to retain possession of the goods until the price is paid. The title to the goods, the liability to pay for them, and the risk of their loss, may thus all be in the buyer, while the right to the price and to retain possession of the goods to secure its payment may be in the seller. And this being true, it is of course clear that where all the elements of an actual sale, as distinguished from an executory agreement, are pres- ent, there is nothing inconsistent in an express stipulation that the seller shall retain possession until, and as security for, the payment of the price. 3 § 496. Or though something remains to be done to ascertain the price. — As will be seen hereafter, 4 it is well set- tled that when something remains to be done by the seller, such as counting, weighing or measuring, which is necessary in order to identify the goods or separate them from a larger mass of which they form a part, the title will not pass until such act is done, for the reason that until that act is done the goods are not ascertained or identified. 5 But where the entire mass is sold, and must be counted, weighed or measured sim- ply with a view to the ascertainment of the price for the pur- pose of a settlement, though this act may be presumptively a right of property, although the price W. R. 902; Sweeney v. Owsley, 14 B. has not been paid nor the thing sold Mon. (Ky.) 332; Leonard v. Davis, 1 delivered to the purchaser."' To the Black (U. S.). 476. same effect: Phillips v. Moor, 71 Me. l Soepost, eh. III. 78; Towne v. Davis, 66 N. H. 396, 22 -Seepoa*. § 1474. Atl. R. 450; Bertelsou v. Bower, 81 3 Arkansas Cattle Co. v. Mann Ind. 512; Jenkins v. Jarrett, 70 N. C. (1888), 130 U. S. 69. 255; Barrow v. Window. 71 111. 214; 4 See post, § 520. Thayer v. Davis, 75 Wis. 205, 43 N. 5 See post, § 520. 403 §§ 497, 498.] law or sale. [book ii. condition precedent, as will be seen hereafter, 1 the weight of authority is to the effect that the title may pass at once if such appears to have been the intention of the parties, al- though the goods have not been delivered and the act in ques- tion has not been done. 2 The distinction is found between a specific commodity and an indefinite one. 3 g 497. . This distinction was forcibly put in a leading case 4 as follows: "If the goods sold are clearly identified, then, although it may be necessary to number, weigh or meas- ure them in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title passes. If a flock of sheep be sold at so much a head, and it is agreed that they shall be counted after the sale in order to determine the entire price of the whole, 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 dis- tinction in all these cases does not depend so much upon what is done as upon the object which is to be effected by it. If that be specification, the property is not changed; if it be merely to ascertain the total value at designated rates, the change of title is effected." § 498. . What is thus true where the act is to be done by the seller is equally true where it is to be performed by the buyer. Thus, where definite terms are agreed upon concern- ing specific goods, the title may pass at once, unless a contrary intention appears, even though, as in the case of the sale of a i See post, § 525. 223: Kohl v. Lindley, 39 111. 195; Graff 2 Cleveland v. Williams. 29 Tex. v. Fitch, 58 111. 373,11 Am. R. 85; 204, 94 Am. Deo. 274; Crofoot v. Ben- Cook v. Van Home, 76 Wis. 520, 44 nett,2N. Y. 258; Francis-Chenoweth N. W. R. 7G7: Welch v. Spies, 103 Hardware Co. v. Gray, 104 Ala. 236, Iowa, 389, 72 N. W. R. 548. 15 S. R 911; Greene v. Lewis, 85 3 Cunningham v. Ashbrook, 20 Mo. Ala. 221, 7 Am. St. R. 42; Hagins v. 553; Cleveland v. Williams, supra; Combs, 102 Ky. 165,43 S. W. R. 222; Crofoot v. Bennett, supra. Burke v. Shannon (Ky.), 43 S. W. R. 4 Crofoot v. Bennett, 2 N. Y. 258. 410 CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 498. stack of hay, the buyer is ye't to weigh or bale it. 1 In a Ken- tucky case, 2 marked " not to be officially reported," the court said : " Where one purchases personal property of another, and the buyer leaves it with the seller until the performance of i Burke v. Shannon (Ky.), 43 S. W. R. 223; Kohl v. Lindley, 39 111. 195; Phillips v. Moor, 71 Me. 78. 2 Burke v. Shannon, supra. It is said in Joyce v. Adams, 8 N. Y. 291 : " It is a general rule of law that where a contract is made for the pur- chase of goods, and nothing is said about payment or delivery, the prop- erty 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 payment of the price. But if anything remains to be done on the part of the seller, as between him and the buyer, such as weighing, measuring or counting out of a common parcel before the goods purchased are to be delivered, until that is done the right of property has not attached in the buyer, and the future risk, of course, remains with the seller." In this case the price was undetermined and the contract did not provide the method of determin- ing it; so it was held that the risk was with the seller. On the other hand, in the application of a like rule in Burke v. Shannon (Ky.), 43 S. W. R. 223, the court held the risk of loss was in the purchaser when the duty fell upon him to ascertain the price in a method which the contract pro- vided. So also where butter in fir- kins was sold at a fixed price per firkin it was held the title had passed without payment of the price for which the buyer was liable. Seckel v. Scott, 66 111. 106. Where the contract furnished a cri- terion for ascertaining the price, as when on any day the seller might name it should be a certain amount less than the price of like articles on that day at another city, it was held that the property passed to the ven- dee upon delivery of the goods*, al- though the amount of the price was not fixed. McConnell v. Hughes. 29 Wis. 537. Likewise, where a certain barn of hay was sold at a fixed price per ton, the buyer to weigh the hay, it was held the title passed, ami. al- though the property was destroyed, the buyer was liable for the price. Phillips v. Moor, 71 Me. 78. So in Francis-Chenoweth Hardware Co. v. Gray, 104 Ala. 236, 15 S. R. 911, where there was a sale of a stock of goods in payment of a debt, the goods yet to be inventoried and the price thus determined to be so applied to the payment, any discrepancies to be paid to the party in whose favor they might exist, it was held that the title passed and that the goods were not liable to seizure by the vendor's creditors. To the same effect was the case of Pacific Lounge Co. v. Rudebeck, 15 Wash. St. 336, 46 Pac. R. 392, in which there was a sale of property in payment of the vendor's debt to the purchaser, and it was held that the title passed and that the vendee might maintain replevin against a lessee of the vendor, who was in default under the lease, for the recovery of the goods. Likewise, when property is sold and delivered to the purchaser "for a reasonable price," the title will nevertheless pass 411 499.] LAW OF SALE. [book II. subsequent acts by the buyer, such as weighing, measuring, or otherwise ascertaining the quantity, it is left at the risk of the buyer, unless there is an express contract to the contrary; the title having passed immediately upon the trade being closed." §499. The question is one of intention. — It has been de- cided, 1 said Judge Cooley in one case, 2 "that the question whether a sale is completed or only executory is usually one to be determined from the intent of the parties as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that where the goods sold to the purchaser, notwithstanding the fact that the price be undeter- mined. Greene v. Lewis, 85 Ala. 221, 4 S. R. 740, 7 Am. St. R. 42; Phiferv. Erwin, 100 N. C. 59, 6 S. E. R. 672. In Sanger v. Waterbury, 116 N. Y. 371, 22 N. E. R. 404, it was held that where a certain number of bags of coffee were bought to be taken from a larger number of bags, but so marked as to be easily distinguish- able, the title passed, although the coffee must needs be weighed for the purpose of ascertaining the price. Likewise, when standing timber was bought for the purpose of being con- verted into wood, to be paid for at so much a cord, the title passes to the wood that is cut and the price of this may be recovered although it be de- stroyed by fire. Upson v. Holmes, 51 Conn. 500. Where all the corn in two cribs was sold at so much a bushel, the title may pass at once, if such ap- pears to be the intention, even though the seller has the right to retain for his own use two or three hundred bushels. Welch v. Spies, 103 Iowa, 389, 72 N. W. R. 548. 1 In Lingham v. Eggleston, 27 Mich. 324. 2 Byles v. Colier, 54 Mich. 1 [refer- ring, for the same conclusion, to Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223, 18 Am. R. 119; Wilkinson v. Holiday, 33 Mich. 386; Grant v. Merchants' Bank, 35 Mich. 515; Scotten v. Sutter, 37 Mich. 526; Carpenter v. Graham, 42 Mich. 191; Brewer v. Salt Association, 47 Mich. 526. Judge Cooley refers also to Kelsea v. Haines, 41 N. H. 246; Southwestern Freight Co. v. Stan- ard, 44 Mo. 71, 100 Am. Dec. 255; Shelton v. Franklin, 68 111. 333; Straus v. Minzesheimer, 78 111. 492; Crofoot v. Bennett, 2 N. Y. 258; Groat v. Gile, 51 N. Y. 431; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. R. 42; Dennis v. Alexander, 3 Pa. St. 50; Calloway v. Week, 54 Wis. 604; Cay wood v. Tim- mons, 31 Kan. 394]. To same effect also: Hood v. Bloch, 29 W. Va. 244, 11 S. E. R. 910; Wadhams v. Balfour, 32 Oreg. 813, 51 Pac. R. 642; Barker v. Freeland, 91.Tenn. 112, 18 S. W. R. 60; Restad v. Engemoen, 65 Minn. 148, 67 N. W. R 1146; Wagar v. Detroit, etc. R. Co., 79 Mich. 648, 44 N. W. R. 1113; Day v. Gravel (1898), 72 Minn. 159, 75 N. W. R. 1 ; Boswell v. Green, 25 N. J. L. 390; Pacific Lounge Co. v. Rudebeck, 15 Wash. 336, 46 Pac. R. 392. 412 CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 499. are designated, so that no question can arise as to the thing in- tended, it is not absolutely essential that there should be a delivery, or that the goods should be in a deliverable condition, or that the quantity or quality, when the price depends upon either, should be determined; these being circumstances indi- cating intent, but not conclusive; but that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing or measuring them, where the price is to depend upon the quantity or quality of the goods, the per- formance of these things, in the absence of anything indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the indi- vidual goods be ascertained, and they appear to be in a state in which they may be and ought to be accepted." Many other cases, some of which are referred to in the note, show how fully the question is one of the intention of the par- ties. 1 1 In Towne v. Davis, 66 N. H. 396, 22 Atl. R. 450, the question was whether the title had passed to a quantity of hay sold at auction. "This," said the court, "is a question of the intention and understanding of the parties, which is a question of fact. A referee has found that the title did not pass, and the verdict must stand if there was evidence competent to sustain it. " As between the parties, neither delivery nor payment is necessary to a completed sale except when re- quired by the statute of frauds. Clark v. Draper, 19 N. H. 419, 421; Bailey v. Smith, 43 N. H. 141, 143; Clark v. Greeley, 62 N. H. 394. At the common law an agreement for the present sale of specific chattels casts on the buyer the risk of loss. But if anything remains to be done between the parties to identify the goods sold, or to determine the price to be paid, the sale is not complete so as to pass the title, unless it may be inferred from the evidence that the parties intended the title should pass at once. If the goods are sold by number, weight, measure, or the like, the sale is prima facie not com- plete till the quantity is ascertained, and if they are mixed with others, not until they are separated and des- ignated. Warren v. Buckminster, 24 N. H. 336; Fuller v. Bean, 34 N. H. 290; Ockington v. Richey, 41 N. H. 275; Prescott v. Locke, 51 N. H. 94. " The general doctrine on this sub- ject is, that when something remains to be done in relation to the articles which are the subject of the sale, as that of weighing or measuring, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, 413 § 500.] LA.W OF SALE. [UOOK II. § 500. Rules for determining the intention.— In order to aid in ascertaining the intention in doubtful cases, certain rules have been formulated, based upon the presumed iutention of the performance of such act is a pre- requisite to the consummation of the contract; and until it is per- formed the property does not pass to the vendee. But in the case of sales where the property to be sold is in a state ready for delivery, and the pay- ment of money or giving security therefor is not a condition precedent to the transfer, it may well be the understanding of the parties that the s de is perfected and the interest passes immediately to the vendee, although the weight or measure ,of the articles sold remains yet to be ascertained. Such a case presents a question of the intention of the par- ties to the contract. The party af- firming the sale must satisfy the jury that it was intended to be an abso- lute transfer, and all that remained to be done was merely for the pur- pose of ascertaining the price of the articles sold at the rate agreed upon. Riddle v. Varnum, 20 Pick. (Mass.) 280, 283, 284. " The terms of the sale were ' cash, or a bankable note,' and this fact is to be considered in determining whether the parties intended a com- pleted sale. If by the use of these terms the parties understood merely that no credit was to be given, and that the seller would insist on his right to retain possession of the hay until the price was paid or secured, the sale might still be so far com- pleted and absolute that the prop- erty would pass; but if it was the understanding that the hay was to remain the property of the seller until the price was paid or secured, the sale was conditional, and the title would not pass, even on deliv- ery, without performance of the con- dition. Clark v. Greeley, 62 N. H. 394, 396. " In Paul v. Reed, 52 N. H. 136. the buyer, moving into the seller's house, examined and selected a hog, some butter, sugar, tea and other articles, and agreed to take them at certain prices. He mixed the sugar with his own, changed the hog to another pen, and took out his pocket-book to pay for them; but at that moment the money clue for the price was at- tached by a creditor of the seller, and the seller took back his goods. The question was whether the title was vested in the purchaser. The court say: 'The question then is whether the delivery here was abso- lute, intending to pass the title to the vendee and trust him for the price, or whether it was made with the ex- pectation that the cash would be paid immediately on delivery. This is a question of fact, but it is sub- mitted to the court for decision. Or- dinarily it should be passed upon at the trial term.' . . . Assuming that the questions both of law and fact were reserved, the court found that the goods were sold for cash, and of course that the delivery of the goods and the payment of the price were to be simultaneous; and that when a part had been delivered, and the seller was figuring up the amount and the buyer had taken out his money to pay the price, the act was arrested by the service of process, the sale was not completed, and the title had not vested in the buyer." 414 CH. II.] UNCONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 501. the parties in such cases, which will often be of service in mak- ing the issues clear, or will turn the scales where they would otherwise be balanced. Many cases, of course, need no such aid ; for the parties have themselves made their intention plain. In many cases, also, the parties have expressly interposed conditions in the way of the transfer of the title, — and these will be considered in the following chapter; but the rules in question are not designed to apply to cases of that nature. They are designed to aid in answering this question: Where the parties have bargained concerning specific chattels, but have not by their contract im- posed express conditions, or otherwise made their intention clear, when will the title pass ? The rules, moreover, it must be understood, are not fixed principles of law, but simply presumptions as to intention, to be applied where the intention of the parties is not already clear. They must, therefore, like similar rules which govern in the construction of wills, be applied constantly subject to this pro- viso: — "unless a contrary intention appears." § 501. . These rules have been stated in many forms, but, in substance, including the proviso, they are: 1. "Where the terms Of the contract have been definitely agreed upon, and the goods have been specifically ascertained, and nothing remains to be done by the seller except to deliver the goods, or by the buyer except to pay for them, the title will, unless a contrary intention appears, vest at once in the buyer, even though the goods have not been delivered or paid for. In this case, as has been seen, the buyer may retain posses- sion until the goods are paid for; but it is possession which he thus retains and not title. 2. Where, by the agreement, the vendor of specific goods is bound to do something to the goods for the purpose of putting them into that condition in which the buyer is bound to accept them, the title will not pass, in the absence of evidence show- ing an intention to the contrary, until such thing is done. 3. Where, though the specific goods are in a deliverable con- 41. I § 502.] LAW OF SALE. [BOOK IT. dition, there still remains some act, like measuring, weighing or testing, in order to determine the price, where the price is to depend upon the quantity or quality of the goods, the title usually will not pass, in the absence of evidence of an intention to the contrary, until this act is done. The first of these rules has been already considered in the present chapter; the other two, with many other forms of more express conditions, will be dealt with in the following chapter. § 502. Question of intention, by whom decided.— The ques- tion of the intention of the parties is usually one to be deter- mined from all the facts and circumstances surrounding the particular case, and, like such questions generally, is pre-emi- nently a question to be determined by a jury. 1 Where, however, the facts are not disputed, and the only question is one as to their legal effect, the determination is for the court. 2 And so where the whole contract is reduced to writing, the question whether it operates as a present transfer of the title is likewise for the court. 3 1 Riddle v. Varnum, 20 Pick. (Mass.) and whenever a dispute arises as to 280; Lingharn v. Eggleston, 27 Mich, the true character of the agreement, 324; Byles v. Colier, 54 Mich. 1; Cun- the question of intent is rather one ningham v. Ashbrook. 20 Mo. 553; of fact than one of law; and the find- Bates v. Conkling, 10 "Wend. (N. Y.) ing of the trial court, when sustained 389; Olyphant v. Baker, 5 Denio by the evidence, will not be disturbed (N. Y.), 379; Bogy v. Rhodes, 4 Greene upon review." To same effect, OTar- (Iowa), 133; Towne v. Davis, 66 N. H. rel v. McClure, — Kan. App. — , 47 396, 22 Atl. R. 450; Kneeland v. Ren- Pac. R. 160; Towne v. Davis, supra. ner, 2 Kan. App. 451, 43 Pac. R. 95; ^ Merchants' Nat. Bank v. Bangs, Graff v. Fitch, 58 111. 373, 11 Am. 102 Mass. 291; Wigton v. Bowley, 130 R. 85. Mass. 252; Kerr v. Henderson, 62 N. In Kneeland v. Renner, supra, the J. L. 724, 42 Atl. R. 1073; Smalley v. court said: " In a contract of sale of Hendrickson, 29 N. J. L. 371. personal property the intent of the 3 Leonard v. Davis, 1 Black (IT. S.), parties controls, and if they intended 476; Rail v. Little Falls Lumber Co., a present vesting of the title, the 47 Minn. 422, 50 N. W. R. 471; First title may in fact pass at once to the Nat. Bank v. Reno, 73 Iowa, 145, 34 purchaser, although the actual de- N. W. R 796; Ruthrauff v. Hagen- livery is to be made subsequently; buch, 58 Pa. St. 103. 416 CHAPTER III. OF THE CONDITIONAL SALE OF SPECIFIC CHATTELS. § 503. Purpose of this chapter. 504-506. What classes of cases to be considered. L Where Goods are to be Pre- pared for Delivery. 507, 508. Where specific goods are to be completed or prepared for delivery, no title passes ' until this is done. 509-511. Unless a contrary inten- tion appears. 512. But title will pass when required act is done. 513. Effect of part performance of condition. 514 Effect of earnest or part pay- ment. 518. 519. IL Where Goods are to be Meas- ured, Weighed or Tested. 515-517. Title to goods not de- livered presumptively does not pass if goods are yet to be weighed, measured or tested to ascertain price. — Presumption not conclu- sive. — Broader rule in some States. 520, 521. Nor where goods are yet to be measured, etc., with a view to identification. 522, 523. Nor where goods are yet to be measured, etc., in order to ascertain if they comply with contract. 524 By whom weighing, etc., to be done. 27 417 § 525-527. How where whole body of goods is delivered to buyer. 528. What delivery sufficient. 529, 530. How when contem- plated method fails. 531. Effect of part performance. 532. Effect of earnest or part pay- ment. IIL Where Buyer is to do Some- thing Other than to Pay Price. 533. What here included. 534. 535. Title will not pass till act performed. 536. Unless a contrary intention appears. IV. Where Payment of Price is a Condition Precedent. 537. What here included. 1. Payment of Price as Implied Con- dition Precedent. 538, 539. In general — Payment as condition precedent when sale for cash. Payment as implied condition where sale expressly for cash. Meaning of "cash sale." Title may pass though possession retained — Pay- ment and delivery concur- rent. 543, 544 Or title may not pass until payment. 545. Check or draft not pay- ment. 540. 541. 542. LAW OF SALE. [HOOK II. § 546, 547. Giving of note or security as condition precedent. 548. Consideration for condi- tion. 549. Waiver of condition of pay- ment or security. 550. Delivery to carrier as waiver. 551-553. Further of waiver. 554. Goods may be retaken if con- dition not performed. 555. Even from bona fide pur- chaser. 556. Clearly from attaching creditors, etc. 557. Usage does not defeat. 2. Payment of Price as Express Con- dition Precedent, and herein of "Conditional Sales" or "Instalment Contracts.''- 558. Formal contracts of so-called "conditional sales." 559. Confusion respecting name. 560. What is a conditional sale. 561. 562. What varieties pos- sible. 563. What here meant by "conditional sale." 564. Validity and form of " condi- tional sale." 565. Contract in form absolute shown to be conditional. 566. Express promise co pay does not render absolute. 567. Construction of such con- tracts. 568. Declaration of parties not conclusive. 569-571. Instruments in form of lease held conditional con- tracts to sell. 572, 573. Instruments in form of lease held sales upon con- dition subsequent. 574-576. Instruments in form of lease held absolute sales | 418 reserving lien or chattel mortgages. 577-579. Instruments in form of conditional sale held ab- solute reserving lien or mort- gages. 580, 581. The rule in Pennsyl- vania. Bailment and conditional sale distinguished. Conditional sale and chat- tel mortgage distinguished. The true theory. On conditional contract to sell no title passes until perform- ance. Note not payment. 587. Nature of interest acquired by vendee. Whether assignable or leviable. Entitled to legal protec- tion. Performance of condition inures to benefit of trans- feree. Nature of interest retained by vendor. Interest may be sold, seized, etc. May assign interest with contract. 594-596. The right of possession. 597,598. Condition good against creditors of vendee. 599, 600. Condition good against bona fide purchaser. 601, 602. But not where goods bought for resale. 603,604. Statutes requiring filing or recording of contract. 605. Default by purchaser — What constitutes. 606-608. Effect of vendee's de- fault. 609-612. Waiver of default by seller. 582. 583. 584. 5S5. 586. 588. 589. 590. 591. 592. 593. •CH. HI.] CONDITIONAL SALE OF SPECIFIC CHATTELS. § 613, 614. Remedies of seller upon default. 615. What choice offered. 616. Election of remedy. 617. Rescission. 618. Recaption. 619. Personal action. 620-623. Does recovery of goods bar action for price? 624. Waiver by vendor of right to retake property. 625. Vendee usually has no elec- tion. 626. 627. Vendee's right to take pos- session on default — Entry on premises — License. 628. Necessity of demand before recovery. 629. Return of payments if prop- erty retaken by seller. 630. Equities of purchaser. 631. How when action against third person. 632. 633. Return of notes re- ceived. 634, 635. Destruction of property before payment. 636. Additions to or increase of property before payment. 637. Additions to stock of goods sold. 638-641. Changes in form or nature of property. 642. Accession and confusion of goods. 643. Substitution of goods. 644-647. Effect of annexing goods to land. 648-650. Conflict of laws. V. Contracts of Sale Subject to Other Conditions. 651. In general 1. Sale of Goods "to Arrive." 652. Such contracts conditioned on arrival of the goods. 5 653. Contracts limiting time of shipment. 654. Giving notice of name of ship. 655. Classification of cases. 2. Sale of Goods " to be Shipped." 656. Such contracts conditional. 3. Sale on Approval. 657. Sale, if goods are approved. 658. Title and risk pending ap- proval. 659. Within what time option to be exercised. 660. Effect of failure to return within time fixed. 661. Necessity for notice of disap- proval. 662. How notice to be given. 4. Sale if Goods Satisfactory to Buyer. 663. Sale if buyer satisfied. 064. Who to be satisfied. 66o. If buyer not satisfied, no sale. 666. Reasons for his dissatisfac- tion. 667. Duty to test goods. 668. Duty to act in good faith. 669. Within what time decision to be made. 670. Duty to give notice or return. 671. How buyer's satisfaction in- dicated. 5. Sale of Goods Approved by Third Person. 672. No sale unless goods approved. 673. Third person must act in good faith. 6. Sale of Goods to be Appraised. 674 Title does not pass until ap- praisal. 7. Sale or Return. 675, 676. Sale with option to return or pay. 419 §§ 503, 504.] § 677. Nature of title acquired by vendee — Risk of loss. 678. Option usually vendee's only — Security of seller. 679. Stipulations reserving title. 680. Form of option. 681. Within what time option ex- ercised. 682. Effect of not returning in time prescribed. 683. How, when buyer puts it out of his power to return. 684 How, when return becomes impossible. 685. How return effected. 8. Sale with Option in Vendee to Re- take. 686. Title in vendee until option exercised. LAW OF SALE. [BOOK II. 687. "Waiver of option. 9. Sale with Right in Vendee to Re- purchase. 688. Title in vendee until right ex- ercised. 689. Such contracts strictly con- strued. 690. Within what time right exer- cised. 691. Interests in goods before re- purchase. 10. Sale to be Void if Vendor Pays. 692. Such contracts valid. 11. Sale to be Void if Vendee Does Not Pay. 693. Such contracts valid. § 503. Purpose of this chapter. — In the preceding chapter there has been considered the case of the unconditional sale of a specific chattel. But, as has been already intimated, this is but one of a number of forms which the contract may as- sume, each of which requires special consideration. The one most closely allied to the form discussed in the foregoing chap- ter is, perhaps, the case in which the chattel is, as there, iden- tified and certain, but in which the contract for its sale is sub- ject to conditions, express or implied, and either precedent or subsequent. § 5 § 524 4 Andrew v. Dieterich (1835), 14 2 Ward v. Shaw (1831), 7 Wend. Wend. (N. Y.) 31. (N. Y.) 404. 5 See ante, § 498. 3 Hoffman v. Culver (1880), 7 111. 6 See Burke v. Shannon (Ky.), 43 S. A PP- 45 °- W. R. 223; Kohl v. Lindley, 39 111. 195; Phillips v. Moor, 71 Me. 78. 446 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 538. of the vendor's lien. There it will be found that, though the title may have passed, the seller has in many cases the right to retain possession as a means of securing the payment of the price. The question here is different, and involves the matter, not of the transfer of possession, but of the passing of the title. Is the payment of the price a condition precedent to the pass- ing of the title? This question divides itself into two distinct parts: (1) In gen- eral, is the payment of the price, by implication, a condition precedent; and (2) May the parties, by express agreement, make it a condition precedent ? The former of these two subdivisions will be considered, first, and after it the second. 1. Payment of Price as Implied Condition Precedent to Passing of Title. § 538. In general — Payment as condition precedent where sale impliedly for cash. — Where a contract for the present sale of goods has been made, and nothing is said as to the time of payment, the law presumes that no credit is to be given, and that the price is to be paid concurrently with the delivery of the goods, — or, as it is often phrased, that the sale is to be for cash. Under such circumstances, is the payment of the price to be deemed by implication a condition precedent to the trans- fer of the title ? To this question there may be given the general answer that where the parties are negotiating concerning specific goods, and all of the terms have been agreed upon, and nothing re- mains to be done except to deliver the goods and pay the price, the title, as has been seen, 1 will be deemed to pass at once, even without delivery or payment, unless a contrary intention ap- pears. The right to possession, however, as has also been seen, does not necessarily pass, for the seller, who has not waived it, has the right to retain possession of the goods by virtue of his vendor's lien to secure the payment of the price. 2 i See ante, § 483. 2 See ante, § 493. 447 §§ 539-541.] LAW OF SALE. [book II. § 539. . Notwithstanding this general answer, the spe- cific question may still be pressed : Where the parties evidently contemplate that the transaction is to be closed at once — where no term of credit is agreed upon — no stipulation for further dealings had — where the seller, clearly expects cash in hand, although there may have been no express agreement to that effect, — is there not in these facts such evidence of an inten- tion that the title shall not pass until the price is paid as to make such payment a condition precedent, even within the gen- eral rule above referred to ? Before the answer to this question is given let another be put. Thus — § 540. Payment of price as implied condition where sale is expressly for cash. — Instead of remaining silent as to the time of payment, as above supposed, the parties may expressly stipulate that the sale is to be for " cash " or for " cash upon delivery." In such a case, also, is the payment of the price to be regarded as a condition precedent to the passing of the title ? The parties may, indeed, go further and expressly stipulate in terms that the title shall not pass until the price is paid ; but the effectiveness of such a stipulation, unless it is waived, is so clear as to require no comment here. The difficult question is, whether a sale which, by implication or expressly, is to be for "cash" or "cash upon delivery," shall be deemed conditional. § 541. Meaning of i( cash sale." — It will be evident, upon reflection, that the expressions " cash," " cash down," or " cash upon delivery," may be used in two different senses — one where the words indicate simply that the goods must be paid for before the buyer is to be entitled to possession; and the other, where they indicate an intention not to part with the title until the price is paid. 1 Whether they are to have the one !Thus in Clark v. Greeley (1882), condition precedent to the transfer 62 N. H. 394, the court say: "A sale of the title, and in such a case the of chattels may be conditional. The property will not pass although the payment of the price may be made a goods are delivered. A sale for cash 448 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 542- meaning or the other is a question of intention, depending largely upon the situation of the parties, the character of the property and the circumstances of the case. If the contract is in writing, or the facts are not disputed, it is a question for the court; 1 if the facts are in dispute, the question is for the jury. 2 g 542. Title may pass though possession retained — Payment and delivery to be concurrent. — Where the words are given the first meaning, it must be true that the title passes at once upon the completion of the contract and by force of it, so as to cast the risk upon the buyer and entitle the seller to the price. 3 It is, of course, true that the buyer, even though he has the title, is not entitled to possession until he pays the price ; for payment and delivery, in such a case, are presumed to be concurrent acts, 4 and until payment is made the seller may re- tain the goods by virtue of his vendor's lien. But the seller retains possession and not title. is not necessarily a conditional sale. Scudder v. Bradbury, 106 Mass. 422. The phrases ' terms cash ' and ' cash down ' may or may not import that payment of the price is made a con- dition precedent to the transfer of the title, according to the intent of the parties. If by the use of these terms the parties understand merely that no credit is to be given, and that the seller will insist on his right to retain possession of the goods until the payment of the price, the sale is still so far completed and absolute that the property passes; but if it is understood that the goods are to re- main the property of the seller until the price is paid, the sale is condi- tional and the title does not pass." To same effect: Towne v. Davis (1890), 66 N. H. 396, 22 AtL R 450. i Davis v. Giddings, 30 Neb. 209, 46 N. W. R. 425. 2 Collins v. Houston, 138 Pa. St. 481, 21 Atl. R. 234; Paul v. Reed, 52 N. H. 136; Clark v. Greeley, 62 N. H. 394; Towne v. Davis, 66 N. H. 396, 22 Atl. R. 450; Scudder v. Bradbury, 106 Mass. 422; Empire State Type Found- ing Co. v. Grant, 114 N. Y. 40, 21 N. E. R. 49 (citing Hall v. Stevens, 40 Hun, 578; Hammett v. Linneman, 48 N. Y. 399). 3 Clark v. Greeley, supra; Phillips v. Moor, 71 Me. 78; Rail v. Little Falls Lumber Co., 47 Minn. 422, 50 N. W. R. 471; Hayden v. Demets, 53 N. Y. 426. 4 In Southwestern Freight Co. v. Stanard (1869), 44 Mo. 71, 100 Am. Dec. 255, it is said : " Where no time is stipulated for payment, it is un- derstood to be a cash sale, and the payment and delivery are immediate and concurrent acts, and the vendor may refuse to deliver without pay- ment: and if the payment be not immediately made, the contract be- comes void. Outwater v. Dodge, 7 Cow. (N. Y.) 85; Woods v. Magee, 7 29 449 543.] LA.W OF SALE. [book II. § 543. Or title may not pass until payment.— Where the words are given the second meaning, it is clear that the title will not pass until the price is paid or the condition waived. Here, until payment or its tender, the seller retains not simply the possession, but the title also. It is unquestion- able that this is the ordinary interpretation of the words, and that the title does not pass until the price is paid or payment waived, not only in those cases in which the parties expressly stipulate that the sale is to be for cash, but also in those in which, though there was no express stipulation, the parties evidently contemplated that the transfer of the title and the payment of the price were to be concurrent acts. 1 Ohio (Pt. II), 128, 30 Am. Deo. 202; Leven v. Smith, 1 Denio (N. Y.), 571; Com. Dig., tit. Agreement, B. 3; Pal- mer v. Hand, 13 Johns. (N. Y.) 434; Harris v. Smith, 3 Serg. & R. (Pa.) 20; Bainbridge v. Caldwell, 4 Dana (Ky.), 213; Ferguson v. Clifford, 37 N. H. 86; Morris v. Rexford, 18 N. Y. 552; 2 Kent'aCom.(llthed.) 605." This state- ment, however, as will be observed, and as an examination of the cases cited will more clearly indicate, con- fuses the delivery of possession with the transfer of the title. A much more accurate statement is that found in Saff ord v. McDonough (1876), 120 Mass. 290, as follows: " It should be kept in mind that the question is not whether . . . the title in the property would have passed to the defendant so that it would be at his risk. In such a case the title would pass to the purchaser unless there was some agreement to the contrary, but the vendor would have a lien for the price and could re- tain possession until its payment. Has- kins v. Warren, 115 Mass. 514; Morse v. Sherman, 106 Mass. 430; Townsend v. Hargraves, 118 Mass. 325." 1 It was laid down by the earlier writers that a sale for cash is a con- ditional sale. Thus, Kent says that "Where no time is agreed on for payment, it is understood to be a cash sale, and the payment and de- livery are immediate and concurrent acts, and the vendor may refuse to deliver without payment, and if the payment be not immediately made, the contract becomes void." 2 Kent's Cora. 496, where he cites Comyn's Digest, tit. Agreements, B. 3, and Bell on Sales, Edin. (1844), 20, 21. In an early case, Copland v. Bos- quet (1826), 4 Wash. C. C. 588, 6 Fed. Cas., p. 513, No. 3212, it was said that " if the sale be for money to be im- mediately paid, or to be paid upon delivery, payment of the price is a precedent condition of the sale, which suspends the completion of the contract until the condition is performed, and prevents the right of property from passing to the vendee, unless the vendor chooses to trust to the personal credit of the vendee. If credit be not given, the bargain is considered nothing more than a com- munication." Quoted and approved in Bergan v. Magnus (1896), 98 Ga. 514, 25 S. E. R. 570. In Paul v. Reed (1872), 52 N. H. 136, 450 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 5W. § 644. The subject, nevertheless, is one concerning which there seems to be much difference of opinion and con- siderable cloudiness of thought. It is often said that a sale for cash is a conditional one, and that the property will not Williston's Cas. on Sales, 68, it ap- peared that Reed, who was keeping a boarding house, had arranged to sell out to one Moody, who was to buy Reed's hog, sugar and certain other supplies. On the day that the transfer was to be made Reed was to furnish the breakfast and Moody was to furnish the dinner, and the parties were respectively to change posses- sion of the house. A price was agreed upon for the several articles which Moody was to buy, the hog was changed from one pen to another at Moody's request, the sugar was put in with his stock, and, the amount to be paid having been ascertained, he stood with his pocket-book in his hand looking over the list preparatory to immediate payment, when he was served with garnishment or trustee process by. Paul, a creditor of Reed. Reed immediately demanded back the goods, saying: "We can call it no sale, and I can take my stuff." Moody said he had no objections to giving up the goods if he could safely do so; but he was advised not to do so. The understanding, as testified to by Moody, was, " 1 was to pay cash right in his fingers; I did not ask any time for him to wait." The ques- tion was whether the title had passed so that Moody owed Reed the price at the time of the service of the writ. The court below held that the title had passed and that the trustee was therefore liable; but the supreme court reversed it, holding that the transfer of title was conditioned upon immediate payment. Said the court : " The question then is whether the goods were delivered so as to vest the title in the trustee. The proof tends to show that the sale was for cash, and not on credit; so the trus- tee testifies, and this is just what would have been intended had no time of payment been stipulated. 2 Kent's Com. 496, 497; Story on Con., sec. 796; Noy's Maxims, 87; Insurance Co. v. De Wolf, 2 Cow. 105. The case, then, stands before us as a contract of sale for cash on delivery; in such case the delivery and payment are to be concurrent acts; and therefore, if the goods are put into the possession of the buyer in the expectation that he will immediately pay the price, and he does not do it, the seller is at liberty to regard the delivery as con- ditional, and may at once reclaim the goods. In such a case the con- tract of sale is not consummated, and the title does not vest in the buyer. The seller may, to be sure, waive the payment of the price, and agree to postpone it to a future day, and proceed to complete the deliv- ery; in which case it would be abso- lute, and the title would vest in the buyer. But in order to have this ef- fect it must appear that the goods were put into the buyer's possession with the intention of vesting the title in him. If, however, the delivery and payment were to be simultane- ous, and the goods were delivered in the expectation that the price would be immediately paid, the refusal to make payment would be such a fail- ure on the part of the buyer to per- 451 § 544.] LAW OF SALE. [BOOK II. pass until the price is paid, when all that was really necessary or intended was evidently that the buyer could not have pos- session until he paid the price. There are, doubtless, on the other hand, cases in which the sale was really conditional — form the contract as to entitle the seller to put an end to it and reclaim the goods. The evidence relied upon to prove the delivery to be absolute and intended to pass the title at all events is simply and solely the changing of the hog into another pen, and mixing the sugar with the sugar of the buyer. Without the mixing of the sugar, the case would be just the ordinary one of a deliv- ery of the goods with the expecta- tion that the buyer would at once pay the price; and we think that circumstance is not enough to show a purpose to make the delivery abso- lute, but rather a confident expecta- tion that the buyer would do as he had agreed, and pay the price at once. . , . It is very clear that the in- termingling of the sugar does not. as matter of law, make the delivery ab- solute: and I think, as matter of fact, it is not sufficient to prove an inten- tion to pass the title absolutely. When the buyer declined to pay the price, the seller at once reclaimed the goods, and so notified the buyer, who did not object to giving up the sale if he could safely do so." In Turner v. Moore (1886), 58 Vt. 455, plaintiff had bargained with de- fendant for a tombstone. Defend- ant claimed that the sale was to be for cash, and plaintiff testified that at the time of the contract nothing was said as to the time of payment and that she expected to pay cash on delivery. When the stone was completed, defendant took it on Sat- urday afternoon to the cemetery to place it in position, but, night com- ing on before it was erected, he left it there until the following Wednes- day, when, having become concerned about the payment, he took the stone back to his shop. Plaintiff there- upon brought this action, declaring in trover and for the conversion of the stone. The court below permit- ted a recovery, but this judgment was reversed by the supreme court, where it was said: '• If the contract was for the sale of the stone, and there was no agreement that time should be given the plaintiff in which to make payment, it was a cash sale, and no title would vest in the plaintiff until she paid or tend- ered the money. The court told the jury that if the stone was delivered to the plaintiff, the title vested in her, and she became the owner. We think they should have been told that, if they found it a cash sale, title would not vest until payment or tender of payment." In Evansville, etc. R. Co. v. Erwin (1882), 84 Ind. 457, the parties ex- pressly stipulated that the goods in question — a carload of wheat — should be delivered, weighed and paid for at a certain place and that payment should be made upon de- livery, and the seller gave as his rea- son for insisting upon such payment that the vendee was a stranger to him. This was held to be a case where payment was a condition pre- cedent to the passing of the title. Palmer v. Hand (1816), 13 Johns. (N. Y.) 434, was a case where a raft 452 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. . [§ 54.4. cases in which it is clear, from, the surrounding circumstances or the express language of the parties, that the title was not to be transferred until the price was paid. merit being made or demanded. Upon the vendor attempting to assert title, the court held that in such a sale title would not pass before pay- ment, unless the condition had been waived, an apparently unrestricted and unconditional delivery being pre- sumptive evidence of such waiver. In Johnson-Brinkman Co. v. Cen- tral Bank (1893), 116 Mo. 558, 22 S. W. R. 813, 38 Am. St. R. 615, plaint- iffs sold a number of cars of wheat for cash, and payment was made by private check of the vendee. The check, after being duly deposited and sent through the clearing-house, was presented to the defendant bank, on which it was drawn, and payment refused, the wheat having meantime been transferred to a third party and the proceeds depos- ited with defendant to the original vendee's account. It was held that payment by check was conditional, and the title had not passed to the vendee, in the absence of negligence or laches. Com. v. Devlin (1886), 141 Mass. 423, 6 N. E. R. 64, was a criminal case wherein the defendant was charged with obtaining goods under false pre- tenses. He had agreed to purchase certain sheep for cash, and about an hour after delivery the parties met and the defendant by false pretenses induced the vendor to take a worth- less check in payment. It was held that the facts showed an intention that delivery and payment should be substantially concurrent, and the de- lay of an hour was no waiver on the part of the vendor. The title did not pass until the parties met and of lumber was sold with the evident intention that cash should be paid on delivery. The vendee resold it and absconded before the delivery was complete, and the vendor there- upon stopped delivery and asserted ownership as against the vendee of the absconding purchaser. The court used language which was somewhat self contradictory, but the opinion evidently was that the title had not passed. In Leven v. Smith (1845), 1 Denio (N. Y.), 571, the plaintiffs were vend- ors of boots and shoes which were delivered to the defendant in the expectation of immediate cash pay- ment. Instead of tendering cash, the defendant offered a matured note of the plaintiffs as part pay- ment, and cash for the balance, which was refused and replevin brought for the goods. Action sus- tained on the ground that after such delivery the defendant held the goods in trust for the plaintiffs until payment was made or waived. Pinkham v. Appleton (1890), 82 Me. 574. 20 AtL R. 237. following Mixer v. Cook(1850),31 Me.340,held that where a sale of personal property was to be for cash (in both these cases expressly so), the title would pass to the vendee before payment only when the pay- ment as a condition precedent had been waived, and it was clear that mere delivery was not held to be such a waiver. So, also, in Stone v. Perry (1872), 60 Me. 48. In Fishback v. Van Dusen (1885), 33 Minn. Ill, 22 N. W. R. 244, a sale of wheat was made expressly for cash, and the wheat delivered without pay- 453 § 544.] LAW OF SALE. [BOOK II. In many cases, moreover, it is practically immaterial whether there was a reservation of the title or a reservation of posses- sion ; because, if it were the latter only, the operation of the vendor's lien would adequately protect the seller. That there agreed about the check, and the goods were therefore obtained by said false pretenses. In McDonough v. Sutton (1876), 35 Mich. 1, a number of farmers, who had driven their hogs to market, agreed to sell them to the defend- ant, and he in turn agreed to sell them to the plaintiff, both sales to be for cash. The plaintiff's money not arriving, defendant sold the hogs to another, and while the purchaser was driving them off plaintiff tend- ered the price and then brought trover. It was held that all parties understood that defendant was not the owner and could not convey title. The property remained in the farmers until they received the pur- chase price, and defendant was at no time in a position to convey title to any one. fn Welsh v. Bell (1858), 32 Pa. St. 12, the court said : " It is a condition precedent of a sale for cash, in order to pass the property to the vendee, that payment should be made. . . . Yet, even if the contract be for a cash sale, if the thing agreed to be sold be delivered without payment, the property passes to the vendee and is liable to levy and sale as his." In Hammett v. Linneman (1872), 48 N. Y. 399, a contract of sale was made for a quantity of coal, for cash on delivery. The coal was delivered and mixed with other coal in the de- fendant's yard. Within two or three days payment was demanded, but the defendant had sold the coal and refused to pay. The court held that defendant had no title, saying that " it was not necessary to stand by the coal while being delivered to the de- fendant's carts and demand payment for each load before it was carted away, under penalty of waiving the condition upon which the title was to pass. It was sufficient that pay- ment was the condition agreed on, and that a request, in the case of a bulky article like coal, was made for payment promptly, within two or three clays after it had been re- ceived." In Dows v. Kidder (1881), 81 N. Y. 121, the plaintiffs sold a cargo of corn to Atkinson & Co., expressly for cash on delivery. They sent a bill to the vendee for the price and made a conditional delivery by delivering the official weigher's return, indorsed by themselves, in order to allow At- kinson & Co. to draw up exchange against the corn; but this delivery was only on the express condition that title should not pass till pay- ment was made. Atkinson & Co. sold the corn and failed, whereupon plaintiffs asserted title. The court said: •' Upon the facts found by the referee it is plain that no title to the corn passed from the plaintiffs to Atkinson or to Atkinson & Co. There was an agreement to sell, but pay- ment was to be made in cash on de- livery. Payment was thus made a condition precedent, and until the condition was performed the title could not be affected." In Adams v. O'Connor (1868), 100 Mass. 515, where a cash sale of whisky 451 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 544. are cases, however, in which the question of the reservation of the title must be determined is clear; and to these only the present consideration is devoted : the question of the vendor's lien is fully treated in a later chapter. sale was completed so as to pass the property. The general rule in such cases is, that the price must be paid before the property will pass, al- though conditional delivery may occur. If delivery takes place, where payment is expected simultaneously therewith, it is in law made upon the condition precedent that the price shall forthwith be paid." So in Neil v. Cheves (1830), 1 Bailey (S. C), 537, and Pickett v. Cloud (1830), 1 id. 362, where nothing was said about the time for payment, it was held that payment on delivery was a condition precedent to the vesting of the property. Mathews v. Cowan (187a), 59 111. 341, was a case of trover for wheat sold for cash and never paid for. In such a case the court held that pay- ment was a condition precedent to the passing of the title, and the ap- propriation of the flour by the de- fendant was a conversion of the plaintiff's property. To the same ef- fect, Mich. Cent. R. Co. v. Phillips (1871), 60 I1L 190. In Lehman v. Warren (1875), 53 Ala. 535, the court had under consid- eration a contract of sale of cotton made by commission merchants, and the decision was based upon a stat- ute declaring that "no cotton sold by commission merchants to brokers or buyers shall be considered as de- livered and the ownership given up until the same is fully paid for." Flanders v. Maynard (1877), 58 Ga. 56, was a similar case and rested upon a like statute. was made, the court said: " The sale to the defendants, having been found by the jury to have been for cash, was a conditional sale, and vested no title in the purchasers until the terms of sale had been complied with." In Wabash Elevator Co. v. Bank (1872), 23 Ohio St. 311, in construing a contract for the sale of wheat, the court said: "The title did not pass. Under the circumstances disclosed by the evidence, there can be no doubt but that the transaction was understood by the parties as a cash sale. ... A delivery with the expectation of receiving immediate payment is not absolute, but condi- tional until payment is made, and, where there is no waiver of pay- ment, no title vests in the purchaser till the price is paid." Followed in Hodgson v. Barrett (1877), 33 Ohio St. 63. So Fenelon v. Hogaboom (1872), 31 Wis. 172, following Goldsmith v. Bry- ant (1870), 26 Wis. 34, holds that in a cash sale payment is a condition pre- cedent to the passing of the title. In Ferguson v. Clifford (1858), 37 N. H. 86, which was an action of trover for a church organ, the court said: "We think it was properly left to the jury to find, upon all the evi- dence before them, whether the sale to Laurence was completed so as to pass the property to him. The price not having been paid, and no evi- dence being offered tending to show any understanding or agreement that credit was to be given, the court would not have been justified in holding, as a matter of law, that the 455 545-547.] LAW OF SALE. [BOOK II. § 545. Check or draft not payment if dishonored. — "Where the sale is thus to be for cash and payment is found to be a condition precedent, it is clear that if the buyer obtains the goods by giving for the price a check or draft which is subse- quently dishonored, there is no payment (unless the check or draft was clearly taken as such), and the title does not pass. 1 § 546. Giving of note or other security as condition pre- cedent. — Reasons similar to those found applicable in the pre- ceding sections operate where it is agreed that the buyer shall give a note, mortgage or other security for the price. The par- ties may thus, either expressly or impliedly, make the giving of such note or security a condition precedent to the passing of the title ; and where they have done so the title will not pass until the act is performed or its performance has been waived. 2 §547. How determined. — Whether the srivino- .of the note or other security is to be a condition precedent is here, as in the former case, usually a question of fact, if the parties have i Mathews v. Cowan (1871), 59 111. 341; Hodgson v. Barrett (1877), 33 Ohio St. 63, 31 Am. E. 527; Canadian Bank v. McCrea (1882), 106 111. 281; Peoria & Pekin Un. Ry. Co. v. Buck- ley (1885), 114 111. 337; National Bank of Commerce v. Chicago, etc. R. Co. (1890), 44 Minn. 224, 46 N. W. R. 342, 560, 20 Am. St. R. 566; John son-Br ink- man Com. Co. v. Central Bank (1893), 116 Mo. 558, 22 S. W. R. 813, 38 Am. St. R. 615. - Whitney v. Eaton, 15 Gray (Mass.), 225; Bainbridge v. Caldwell, 4 Dana (Ky), 211; Young v. Kansas Mfg. Co., 23 Fla. 394; Towne v. Davis, 66 N. H. 396, 22 Atl. R. 450; Harris v. Smith (1817), 3 S. & R. (Pa.) 20; Tyler v. Free- man (1849), 3 Cush. (Mass.) 261 ; Hill v. Freeman, 3 id. 257; Coggill v. Hart- ford, etc. R. Co. (1854), 3 Gray (Mass.), 545; Hirschorn v. Canney (1867), 98 Mass. 149; Armour v. Pecker (1877), 123 Mass. 143; Salomon v. Hathaway (1879), 126 Mass. 482; Kenney v. Ingalls, 126 id. 488; Van Duzor v. Allen (1878), 90 111. 499; Peabody v. Maguire (1887), 79 Me. 572; Russell v. Minor (1838), 22 Wend. (N. Y.) 659; Osborn v. Gantz (1875), 60 N. Y. 540: Empire State Type Founding Co. v. Grant, 114 N. Y. 40, 21 N. E. R. 49; Adams v. Roscoe Lum- ber Co. (1899), 159 N. Y. 176, 53 N. E. R. 805. In Nicholson v. Taylor (1858), 31 Pa. St. 128, an estimated amount of lumber was sold at a certain price per thousand, to be paid for by a note at six months. The lumber had to be measured before the exact price could be determined and the note drawn, and no time was set for the measuring. The court held that these facts showed that the contract was executory. 456 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 54^, 549. not made their intention clear; ! and, if it were a condition, the question whether or not its performance has been waived is likewise for the jury. 2 § 548» Consideration for the condition. — The consideration for the condition, whether express or implied, is ordinarily found in the same acts or events which supply the considera- tion for the remainder of the contract. "Where, however, the property has once been unconditionally sold and delivered, a subsequent agreement annexing conditions is without consid- eration and void. 3 § 549. Waiver of the condition of payment or secu- rity. — But as this condition of payment or security, whether express or implied, is, as has been seen, for the benefit of the seller, he may waive it if he so elects. This waiver, like the condition itself, may be either express or implied. Where it is express, no doubt of course can arise as to its existence ; but it need not be express, and can be inferred from acts and cir- cumstances. Delivery of the goods without insisting upon the performance of the condition may be such an act. Hence it is well settled that an absolute and unconditional delivery of the goods without requiring payment, or the giving of the se- curity, is to be deemed a waiver of payment as a condition precedent or concurrent; 4 and, in any case, a voluntary de- 1 Empire State Type Founding Co. 114 N. Y. 40; Chapman v. Lathrop, 6 v. Grant, 114 N. Y. 40, 21 N. E. R. 49; Cow. (N. Y.) 110, 16 Am. Dec. 4:3:3; Towne v. Davis, 66 N. H. 396, 22 Atl. Scudder v. Bradbury, 106 Mass. 422; R. 450. Goodwin v. Railroad Co., Ill Mass. 2 Silsby v. Boston & Albany R. Co. 487; Freeman v. Nichols, 116 Mass. (1900), 176 Mass. 158, 57 N. E. R. 376. 309; Haskins v. Warren. 115 Mass. s Merrill Furniture Co. v. Hill (1894), 514; Smith v. Dennie, 6 Pick. (Mass.) 87 Me. 17, 32 Atl. R. 712; Domestic 262, 17 Am. Dec. 368; Warder v. Sewing Mach. Co. v. Anderson (1876), Hoover, 51 Iowa, 491; Scharff v. 23 Minn. 57. See also Houser & Meyer, 133 Mo. 428, 34 S. W. R. 858; Haines Mfg. Co. v. Hargrove (1900), Lewenberg v. Hayes, 91 Me. 104. 39 129 Cal. 90, 61 Pac. R. 660. Atl. R. 469: Freeport Stone Co. v. 'Fishback v. Van Dusen (1885), 33 Carey, 42 W. Va. 276, 26 S. E. R. 183; Minn. Ill; Pinkham v. Appleton, 82 Neal v. Boggan, 97 Ala. 611, 11 S. R. Me. 574; Empire State Co. v. Grant, 809; England v. Forbes, 7 Houst. 457 § 549.] LAW OF SALE. [BOOK II. livery without requiring such payment or security is strong evidence of a waiver, particularly where the rights of third per- sons have intervened based upon such delivery. Still, whether, in fact, under all the circumstances, there has been a waiver is a question for the jury. 1 (Del.) 301, 31 Atl. R 895; Merrill Furniture Co. v. Hill, 87 Me. 17, 32 Atl. R. 712; Oester v. Sitlington, 115 Mo. 247, 21 S. W. R. 820; Wheeler & Wilson Mfg. Co. v. Bank, 105 Ga..57, 31 S. E. R. 48. In Fishback v. Van Dusen (1885), 33 Minn. Ill, 22 N. W. R. 244, it is said: "The doctrine is uniform and well es- tablished that if the vendor unquali- fiedly and unconditionally delivers the goods to the vendee without in- sisting on performance of conditions, intending to rely solely on the per- sonal responsibility of the vendee, the title passes to the latter, and the vendor cannot afterwards reclaim the property, even if the condition is never performed. His only remedy is upon the contract for the purchase- money. 2 Kent, *496; Benj. Sales, § 320, note d; Carlton v. Sumner, 4 Pick. 516; Smith v.Dejinie, 6 Pick. 262, 17 Am. Dec. 368; Dresser Mfg. Co. v. Waterston, 3 Met. 9; Farlow v. Ellis, 15 Gray, 229; Goodwin v. Railroad Co., Ill Mass. 487; Scudder v. Brad- bury, 106 Mass. 422; Haskins v. War- ren, 115 Mass. 514; Freeman v. Nich- ols, 116 Mass. 309; Bowen v. Burk, 13 Pa. St. 146; Mixer v. Cook. 31 Me. 340. The weight of authority seems to be that a delivery, apparently unre- stricted and unconditional, of goods sold for cash, is presumptive evi- dence of the waiver of the condition that payment should be made on de- livery in order to vest the title in the purchaser. Scudder v. Bradbury, 106 Mass. 422; Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Hammett v. Lin- neman, 48 N. Y. 399; Smith v. Lynes, 5 N. Y. 41; Farlow v. Ellis, supra." 1 Fishback v. Van Dusen, supra; Young v. Kansas Mfg. Co. (1887), 23 Fla. 394 [citing Whitney v. Eaton, 15 Gray (Mass.), 225; Farlow v. Ellis, 15 Gray, 229; Armour v. Pecker, 123 Mass. 143; Salomon v. Hathaway, 126 Mass. 482]; Peabody v. Maguire (1887), 79 Me. 572. Asking for. and being promised, se- curity, which is not given, is not a waiver of the condition. Sargent v. Metcalf, 5 Gray (Mass.), 306, 66 Am. Dec. 368. A contract for the sale of three hundred barrels of flour to be delivered in lots of one hundred bar- rels each, each lot to be paid for on delivery, is severable, and delivery and receipt of payment for the last two lots do not constitute a waiver of any rights of the seller arising out of the unauthorized delivery of the first lot by a railroad company to the purchaser without payment. Sawyer v. Railway Co., 22 Wis. 402, 99 Am. Dec. 49. The fact that the seller loaded the goods into cars, in pursuance of his contract, is not a waiver. Globe Mill- ing Co. v. Minneapolis Elevator Co., 44 Minn. 153, 46 N. W. R. 306. Nor the fact that the seller helped the buyer to put them into cars, where, under the contract, they were to be paid for. Meeker v. Johnson, 3 Wash. 247, 28 Pac. R. 542. But knowingly to mark logs with the log-mark of the purchaser — rec- 458 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 550, 551. § 550. Delivery to carrier as waiver.— An uncondi- tional delivery of the goods to a carrier for transportation to the buyer is just as effectual to waive the condition as a per- sonal delivery to the buyer. Such a delivery is equivalent to a delivery to the purchaser, subject to the right of stoppage in transitu. If, in such a case, the seller desires to retain the jus disponendi, 1 he must do it by taking the bill of lading in his own name, or in some other similar manner indicating his intention not to pass the title until payment ; otherwise the title passes and the condition is waived. 2 § 551. Further of waiver.— It is not necessarily to be inferred, where a conditional bargain has been made and a de- livery has immediately taken place upon the expectation that the promised payment or security will shortly be given, that the sale ipso facto becomes absolute. There is always an im- plied understanding that the vendee is acting honestly and that he takes the goods subject to the contract. It is not necessary, therefore, that the vendor shall in express terms declare that he makes the delivery conditional; it is sufficient if the intent of the parties that the delivery is conditional can be inferred from their acts and the circumstances of the case. 3 Waiver is the voluntary relinquishment of some right which, but for such waiver, the party would have enjoyed. Voluntary choice is of the essence of waiver, and not mere negligence, though from ognized by the laws of the State as 'See post, ch. VI, on Reservation the indicia of ownership — is a of Jus Disponencli. waiver. Hance v. Boom Co. (1888), 2Scharff v. Meyer (1895), 133 Mo. 70 Mich. 227, 38 N. W. R. 228. 428, 34 S. W. R. 858, 54 Am. St. R. Ratification.— Where there was a 672. sale for cash, but the vendee ob- " Smith v. Dennie (1828), 6 Pick. tained the goods without payment, (Mass.), 262, 17 Am. Dec. 368; Fish- andthen sold them to another, and back v. Van Dusen, 33 Minn. Ill; the first seller with full knowledge Leven v. Smith, 1 Denio (N. Y.), 571; took a note from the last purchaser Peabody v. Maguire, 79 Me. 572; Mer- for the price, this constitutes an rill Furn. Co. v. Hill, 87 Me. 17, 32 abandonment of the sale as for cash Atl. R. 712; Farlow v. Ellis, 15 Gray and ratines the disposition made of (Mass.), 229: Paul v. Reed, 52 N. H. the goods. Bullard v. Bank of Madi- 136. son (1899), 107 Ga. 772, 33 S. E. R. 684. 459 §§ 552-554.] law of sale. [book it. such negligence, if unexplained, an intention to waive may be inferred. § 552. . The important question, therefore, is: Has the vendor manifested, by his language or conduct, an intention or willingness to waive the condition, and make the delivery un- conditional, and the sale absolute, without having received pay- ment or the performance of the conditions of the sale ? This must depend upon the intent of the parties at the time, to be ascertained from their conduct and language, and not from the mere fact of delivery alone. Whether there has been a waiver is a question of fact. It may be proved by various species of evidence : by declarations, by acts, or by forbearance to act. But however proved, the question is: Has the vendor volun- tarily and unconditionally delivered the goods without intend- ing to claim the benefit of the condition? 1 | 553. . No secret or undisclosed intention of the seller is sufficient of itself to make a delivery conditional; 2 and where the delivery is absolute and unconditional, usage alone cannot operate to defeat its effect as a waiver. 3 § 554. Goods may be retaken if condition not performed. "Where payment of the purchase-money, or the giving of secu- rity for it, is thus expressly or impliedly a condition precedent to the passing of the title, and the making of the payment or the giving of the security is omitted, evaded or refused by the purchaser upon obtaining possession of the goods, the delivery is deemed to be conditional, and the seller may immediately reclaim and recover the goods themselves or their value in i Fishback v. Van Dusen, supra; Elevator Co., 44 Minn. 153, 46 N. W. Carleton v. Sumner, 4 Pick. (Mass.) R. 306; Silsby v. Boston & Albany 516; Smith v. Dennie, supra; Fuller R. Co., 176 Mass. 158, 57 N. E. R. 376. v. Bean. 34 N. H. 290; Hammett v. 2 Fishback v. Van Dusen, supra; Linneman, 48 N. Y. 399; Peabody v. Upton v. Sturbridge Cotton Mills, Maguire, supra; Stone v. Perry, 60 111 Mass. 446: Haskins v. Warren, Me. 48; Seed v. Lord, 66 Me. 580; 115 Mass. 514; West v. Piatt, 127 Mass. Smith v. Lynes. 5 N. Y. 41 ; Farlow 367. v. Ellis, supra; Globe Milling Co. v. 3 Haskins v. Warren, 115 Mass. 514. 460 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 555. trover, either from the original purchaser 1 or from any one claiming title through or under him, 2 though it is said that, at least in the case of an implied condition, a waiver of the con- dition will be more readily inferred for the protection of the sub-vendee. 3 § 555. Even from bona fide purchaser. — Thus, where goods were sold and delivered to be paid for in cash on deliv- ery, and the purchaser gave the seller a check which was dis- honored on presentation, it was held that the seller might re- take the goods, 4 if he had done nothing to estop himself, even from an innocent sub-vendee for value. 5 And the rip-ht to re- 1 Whitwell v.Vincent (1827), 4 Pick. (Mass.) 449, 16 Am. Dec. 355; Reed v. Upton (1830), 10 Pick. (Mass.) 522, 20 Am. Dec. 545; Barrett v. Pritchard (1824), 2 Pick. 512, 13 Am. Dec. 449; Fishback v. Van Dusen (1885). 33 Minn. Ill ; Peabody v. Maguire (1887), 79 Me. 572; Ferguson v. Clifford, 37 N. H 86: Bain bridge v. Caldwell, 4 Dana (Ky.), 213; Wabash Elevator Co. v. First Nat. Bank, 23 Ohio St. 311; Bauendahl v. Horr, 7 Blatchf. (U. S. C. C.) 548; Harding v. Metz, 1 Tenn. Ch. 610; Thorpe v. Fowler, 57 Iowa, 541; Paul v. Reed, 52 N. H. 136; Dows v. Kidder,84 N. Y. 121; Evans- ville, etc. R. Co. v. Erwin, 84 Ind. 457; Harris v. Smith, 3 Serg. & R. (Pa.) 20; Morris v. Rexford, 18 N. Y. 552. 2 In National Bank of Commerce v. Chicago, B. & N. R. Co. (1890), 44 Minn. 224, 46 N. W. R. 342, 560, 20 Am. St. R. 566, it is said: "It is urged that a different rule applies where, intermediately, the property has been purchased by an innocent sub-vendee for value. The general rule is that a title, like a stream, cannot rise higher than its source, and it is difficult to see how a person can communicate a better title than he himself has, unless some principle of equitable estoppel comes into operation against the person claim- ing under what would otherwise be the better title. We have found no case holding that any different rule obtains in cases like the present, as to a sub-vendee, than as to the original purchaser, except perhaps that, as to the former, a waiver of the condi- tion, as, for example, of payment on delivery, will be more readily in- ferred from the delivery, especially when the condition is not express but implied. See Benjamin on Sales, Am. note 269; Coggill v. Railroad Co., 3 Gray, 545; Hirschorn v. Canney, 98 Mass. 149; Armour v. Pecker, 123 Mass. 143." 'National Bank v. Railroad Co., supra. 4 National Bank v. Railroad Co., supra: Hodgson v. Barrett (1877), 33 Ohio St. 63, 31 Am. R. 527; Johnson- Brinkman Com. Co. v. Central Bank (1893), 116 Mo. 558, 22 S. W. R. 813, 38 Am. St. R. 615; Canadian Bank v. McCrea (1882), 106 I1L 281; Peoria & Pekin Un. Ry. Co. v. Buckley (1885), 114 111. 337; Mathews v. Cowan (1871), 59 III. 341. 5 National Bank v. Railroad Co., 461 §§ 556-558.] law or sale. [book ii. cover the goods has been sustained where the purchaser was to give an indorsed note, or a mortgage or other security for the price, which he failed or refused to do. 1 § 556. And clearly from attaching creditors, etc.— The right to retake extends also a fortiori as against the cred- itors of the purchaser who have seized the goods for debts due themselves, 2 and against the purchaser's assignee in bank- ruptcy. 3 § 557. Usage does not defeat.— This right of the seller to reclaim his goods is one which cannot be defeated by any local usage. 4 2. Payment of Price as Express Condition Precedent to Pass- ing of Title, and Herein of So-called "Conditional Sales " or " Instalment Contracts." § 558. Formal contracts of so-called "conditional sales." The contracts of sale conditioned upon payment which have thus far been considered have been those in which, either ex- pressly or impliedly, the payment was to be made at, or shortly after, the delivery of the goods, no extended period of credit being contemplated or agreed upon. The exigencies of business, however, have given rise to an entirely different class of contracts, to which the term " con- supra. See also Andrew v. Dieter- against the vendee, but also against ich (1835), 14 Wend. (N. Y.) 31 (but as his creditors, claiming to hold them to this case see 3 Barb. Ch. 451); under attachments. Everett v. Hall, Adams v. Roscoe Lumber Co. (1899), 67 Me. 498; Brown v. Haynes, 52 Me. 159 N. Y. 176, 53 N. E. R. 805. 580." Peabody v. Maguire, 79 Me. i Whitwell v.Vincent (1827), 4 Pick. 572. (Mass.) 449, 16 Am. Dec. 355; Davison 3 Rogers v. Whitehouse (1880), 71 v. Davis (1887), 125 U. S. 90; Sargent Me. 222;. Ballantyne v. Appleton, 82 v. Metcalf, 5 Gray (Mass.), 306, 66 Am. Me. 570, 20 Atl. R. 235; Whitney v. Dec. 368; Leatherbury v. Connor Eaton (1860), 15 Gray (Mass.), 225. (1891), 54 N. J. L. 172. 4 Globe Milling Co. v. Elevator Co., 2 Mack v. Stoiy (1889), 57 Conn. 407. 44 Minn. 153, 46 N. W. R. 306; Silsby "The vendor has a right to repossess v. Boston & Albany R. Co. (1900), 178 himself of the goods, not only as Mass. 158, 57 N. E. R. 376. 462 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 559, 560. ditional sale" has been popularly applied, and which contem- plate a delivery of the goods to the prospective purchaser upon a more or less extended term of credit, subject nevertheless to the condition that the title shall remain in the vendor until the price is paid. The price, moreover, is frequently made payable in instalments, and from this fact the term "instalment con- fcract" is often applied to these agreements. Their purpose is to facilitate sales and purchases upon credit, and especially to avoid the publicity and statutory regulation of chattel mort- gages. § 550. Confusion respecting the name. — It will be evident to any one who has occasion to examine the cases that the term "conditional sale" has been indiscriminately applied to a great variety of differing transactions, and that much confusion has resulted therefrom. It will be further evident that this con- fusion is the legitimate result and natural consequence of the ill-advised efforts of the framers of these agreements to make them appear to be what they are not; and that by their very efforts to force a particular appearance upon such agreements without construction, they have most effectually invited and required the application of legal rules of construction to arrive at their true intent. In applying these rules here, as in other cases in which intent is to be sought after, different courts will inevitably come to different conclusions often in respect to in- struments substantially alike. § 560. What is a conditional sale. — It will be evident also that confusion has arisen from the use of words in different senses. What is meant by the term "conditional sale?" In order to answer this question, it is necessary to determine first what is meant by the word "sale." As has been seen in the opening sections of this work, the word "sale," in actual use, is not a word of precise Legal import. It is constantly being used to mean either the actual transfer of the title, or the agree- mentto transfer the title. If the first meaning be adopted, then obviously the only conditional sale possible is the present trans- 463 § 561.] LAW OF SALE. [BOOK II. fer subject to be defeated by a condition subsequent. If, on the other hand, the second definition be adopted, a conditional sale is a conditional contract to convey, and the condition will usually, if not always, be a condition precedent. This is more than a mere dispute about words, because it will be seen that substantial differences in result ensue according as the one view or the other is adopted. | 561. What varieties are possible.— The very nature of the case shows that these various forms of agreement are usually intended to be bargainings about sales to be made, and not perfect and completed sales in themselves. The question then is: "What forms of agreement may there be amounting to less than a present unconditional and perfect sale ? The an- swer to this is plain: 1. There may be the ordinary agreement, on the one part to sell, and on the other part to buy, a particular chattel. Here the seller is entitled to keep the chattel until the other party pays for it. 2. There may be the ordinary executory agreement above mentioned, and annexed to it a voluntary delivery of the prop- erty to the prospective purchaser to be kept by him as the property of the seller until he demands it, if not sooner paid for. This is the executory agreement, plus a bailment. 3. There may be the executory agreement as before, but as part of it an express or implied agreement that the seller shall deliver the chattel to the prospective buyer to be kept and used by him until he makes default in his performance of the agreement (at which time the seller may resume possession), the title to the chattel remaining nevertheless in the seller until the price is paid. 4. There may be a present transfer of the title and of the pos- session, subject to a right in the seller to rescind the transfer, and have back the title and possession upon default in payment. 5. There may be a present transfer of title and possession, reserving a lien upon the chattel as security for the payment of the price. 464 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 562-5G4. 6. There may also be a present transfer of title and posses- sion, and a formal chattel mortgage taken by the seller to secure payment. § 562. . Of these, the first is clearly not within the class now being considered. The second and third are in many respects alike, but the third has the additional feature that the purchaser acquires by the contract a right to the possession of the chattel of which he can only be deprived upon a default in pursuance of the pro- visions of the contract. The fourth is the true conditional sale, i. e., a present sale subject to defeat upon a condition subsequent. The fifth and sixth are alike in their result; the former being an informal mortgage and the latter a formal one. The second and third are the kinds of agreement ordinarily meant by the popular use of the term " conditional sale," but the cases are numerous where courts have used the same term meaning sometimes an agreement of the second or third kind, and sometimes one of the fourth. § 563. What here meant by conditional sale. — Adopt- ing for the present the popular signification of the term, it is of agreements of the second and third kinds, namely, exec- utory contracts of sale accompanied by a delivery of the chat- tel to the purchaser to be held by him pending payment, either at the will of the seller or Until default in performance by the buyer of some term of the agreement, the title, however, being reserved by the seller until payment by the purchaser — that it is now proposed to treat. § 564. Validity and form of ona fide purchasers for value. 4 So, though the delivery and sale were at first absolute, it may, upon sufficient consideration, be subsequently made con- ditional; and while the Avhole transaction still remains execu- tory, a sale originally intended to be absolute may by agreement be made conditional. 5 Wash. 14, 38 Pac. R. 752. See also ing creditors who have relied upon Page v. Edwards, 64 Vt. 124, 23 Atl. its absolute appearance in making R. 917. their attachments. Dixon v. Blondin. 1 Palmer v. Howard, supra; An- 58 Vt. 689; Sanborn v. Chittenden, 27 drews v. Colorado Savings Bank, Vt. 171. Where seller gave an abso- supra; Aultman v. Silha, supra. lute bill of sale he will not be per- 2 Scudder v. Bradbury, 105 Mass. niitted. say the court in Connecticut, 422; Armour v. Pecker, 123 Mass. 143; to show that, by contemporaneous Gurney v. Collins, 64 Mich. 458; Se- parol agreement, the sale was con- grist v. Crabtree, 13117. S. 287; Claflin ditional, to the prejudice of a bona v. Furniture Co., 58 N. J. L. 379; fide purchaser, attaching creditor or Rohn v. Dennis, 109 Pa. St. 504. trustee in insolvency. Ryder v. 3 Smith v. Tilton, 10 Me. 350. It Cooley, 58 Conn. 367, 20 Atl. R. 470. being evident that part of the con- 5 Goss Printing Press Co. v. Jordan, tract rested in parol, parol evidence 171 Pa. St. 474, 32 Atl. R. 1031. But is properly admissible, although the the intent to change must be clear. order and acceptance were in writ- Caraway v. Wallace, 2 Ala. 542. And ing. Burditt v. Howe, 69 Vt. 563, 38 in Vermont a change of possession Atl. R 240. was held necessary, as against cred- 4 Nor, in Vermont, against attach- itors. Wright v. Vaughn, 45 Vt. 369. 467 §§ 566-568.] law of sale. [book ii. § 566. Fact that promise to pay is absolute does not make sale absolute.— On the other hand, the fact that the vendee's promise to pay is absolute does not necessarily deprive the contract of its conditional character and make it absolute. 1 In a doubtful case it would be suggestive, but it is not conclu- sive; and, indeed, as will be seen, 2 the absolute character of the vendee's obligation — at least where the vendor elects so to treat it — is a common characteristic of these contracts. §567, Construction of such contracts.— As has been al- ready seen, contracts intended to fall within the class now under consideration have been made in every variety of form, and many different names have been applied to them. They have often been purposely given the form or name of some other contract, in order to disguise their real nature. This has led to much difficulty in determining what is the true con- struction to be given them. " The answer to this question," said the supreme court of the United States, 3 " is not to be found in any name which the parties may have given to the instrument, and not alone in any particular provisions it con- tains, disconnected from all others, but in the ruling intention of the parties gathered from all the language they have used. It is the legal effect of the whole which is to be sought for. The form of the instrument is of little account." § 568. Declaration of parties not conclusive.— The mere fact that the parties declare that their agreement shall not amount to a sale, or shall not be construed in any other manner, is not conclusive. They cannot, by their agreement, control the operation of the rules of construction. 4 i Perkins v. Mettler (1899), 126 Cal. ^Heryford v. Davis, supra; Greer 100, 58 Pac. R. 384; Van Allen v. v. Church, 13 Bush (Ky.), 430; Dede- Francis (1897), 123 Cal. 474, 5G Pac. R. rick v. Wolfe, 68 Miss. 500, 9 S. R. 350, 339; Harkness v. Russell, 118 U. S. 24 Am. St. R 283; Gerow v. Castello, 663> 11 Colo. 560, 7 Am. St. R. 260, 19 Pac. 2 See post, % 625. But see §£ 578, 579. R. 505, 3 In Heryford v. Davis (1880), 102 U. S. 235. 4G8 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 569. § 569. Instruments in form of lease held to l)e con- ditional contracts to sell. — In very many of the cases the instrument in question has been called a lease, and much of the language used has been such as would be appropriate to a lease. It is, of course, entirely competent for parties to make leases of chattels, but the instrument will not be deemed a lease where its contents and evident purpose show that some other construction is demanded. Hence the cases are numer- ous in which instruments called leases have been held to be conditional contracts to sell, 1 that is, agreements to sell with payment made a condition precedent to the passing of the title, notwithstanding that the parties have expressly stipu- lated that no such construction should be put upon their con- tract. 2 1 Hine v. Roberts, 48 Conn. 267, 40 Am. R 170; Loomis v. Bragg. 50 Conn. 228, 47 Am. R 638; Singer Mfg. Co. v. Cole, 4 Lea (Tenn.), 439, 40 Am. R. 20; Cowan v. Singer Mfg. Co., 92 Tenn. 376, 21 S. W. R 663; Singer Mfg. Co. v. Graham, 8 Oreg. 17, 34 Am. R 572; Gerow v. Castello, 11 Colo. 560, 19 Pac. R 505, 7 Am. St. R 260; Hays v. Jordan, 85 Ga, 741, 11 S. E. R 833, 9 L. R A. 373; Cottrell v. Bank, 89 Ga. 508, 15 S. E. R 944; Ross v. Mo- Duffie, 91 Ga. 120, 16 S. E. R 648; Miller v. Steen, 30 Cal. 402, 89 Am. Dec. 124; Lucas v. Campbell, 88 111. 447; Gerrish v. Clark, 64 N. H. 492, 13 Atl. R 870; Hill v. Townsend, 69 Ala. 286; Sumner v. Woods, 67 Ala. 139; Hegler v. Eddy, 53 Cal. 597; Parke, etc. Co. v. Lumber Co., 101 Cal. 37, 35 Pac. R 442; Lundy Fur- niture Co. v. White, 128 Cal. 170, 60 Pac. R. 759; Kohler v. Hayes, 41 Cal. 455; Watertown S. C. Co. v. Davis, 5 Del. 192; Forrest v. Hamilton, 98 Ind. 91: Budlong v. Cottrell, 64 Iowa, 234; Fleck v. Warner, 25 Kan. 492; Chase v. Ingalls, 122 Mass. 381; Cole v. Berry, 42 N. J. L. 308; Sage v. Sleutz, 23 Ohio St. 1; Carpenter v. Scott, 13 R. I. 477; Matthews v. Lucia, 55 Vt. 308; Fosdick v. Schall, 99 U. S. 235; Whelan v. Couch, 26 Grant Ch.74; De St. Germain v. Wind, 3 Wash. Ter. 189; Quinn v. Parke, etc. Co., 5 Wash. 276, 31 Pac. R 866; Whitcomb v. Wood worth, 54 Vt, 544; Collender Co. v. Marshall, 57 Vt. 232; Gorham v. Holden, 79 Me. 317, 9 Atl. R 894; Gross v. Jordan, 83 Me. 380, 22 Atl. R 250; Campbell v. Atherton, 92 Me. 66, 42 Atl. R 232; Ham v. Cerniglia, 73 Miss. 290, 18 S. R. 577; Puffer v. Lucas, 112 N. C. 377, 17 S. E. R. 174; Clark v. Hill, 117 N. C. 11, 23 S. E. R 91, 53 Am. St. R. 574; Singer Mfg. Co. v. Gray, 121 N. C. 168, 28 S. E. R. 257; Wilcox v. Cherry, 123 N. C. 79, 31 S. E. R 369; Wickes v. Hill, 115 Mich. 333, 73 N. W. R 375; Farquhar v. McAlevy, 142 Pa. St. 233. 21 Atl. R. 811; Sanders v. Wilson, 19 D. C. (8 Mackey), 555. 2 See Gerow v. Castello, 11 Colo. 560, 7 Am. St. R. 260; Gross v. Jordan, 83 Me. 380, 22 Atl. R 250; Hays v. Jordan, 469 §§ 570, 571.] LAW OF SALE. [ROOK II. § 570. . This result has been almost uniformly reached in those cases, now so common, in which, by the terms of the contract, one party purports to lease or rent to another per- sonal property delivered into his possession upon his agreeing to pay stipulated sums as rent, upon the payment of which he is to become the owner of the property ; but further stipulating that if such sums are not paid the other party may terminate the lease and retake the property. Usually the instalments of " rent " to be paid in these cases are out of any proportion to the fair rental value of the property for the periods fixed ; the aggregate of the instalments is always the agreed value of the property, and when the total rent is paid the lessee be- comes the owner. To call such contracts leases is, it is said, a mere subterfuge which cannot deceive the court as to their true character and purpose. l § 571. -. In a few cases, however, not easily distinguish- able from those last referred to, the courts have held that the instrument involved was really a lease with an option in the lessee to become the owner. 2 85 Ga. 741. 9 L. R. A. 373; Hervey v. be given when the full amount is Locomotive Works, 93 U. S. 664; paid; and the sale of the piano, and Heryford v. Davis, 102 U. S. 235; not the renting thereof, is evidently Dederick v. Wolfe. 68 Miss. 500. 24 the real end and basis of the con- Am. St. R. 283; Cowan v. Singer Mfg. tract." Co., 92 Tenn. 376, 21 S. W. R. 663. 2 Thus in Southern Music House v. *In Hays v. Jordan, supra, the Dusenbury, 27 S. C. 464, 4 S. E. R. court say: "Although the contract 60, an agreement in form of a lease does use the term 'rent,' and states for an organ, worth §95, for the use that the notes are given for the ' use ' of which the lessee was to pay $10 of the piano, we do not so construe per month, and which gave him the it, but regard it, not as a lease or right, at any time during the rental renting, but as a conditional sale period, to "purchase said instrument with title reserved in the vendor by paying the above valuation there- until the purchase price is paid. for. and then, and in that case only, Guilford v. McKinley, 61 Ga. 232. all amounts theretofore paid as rental The entire $350 styled ' rent ' is made or advance deposit shall be deducted payable within six months from the from price of instrument," was held date of the transaction, and is the to be a lease with an option to pur- stipulated value of the piano, and chase. Talmadge v. Oliver, 14 S. C. the consideration for a bill of sale to 522; Straub v. Screven, 19 S. C. 445, 470 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§572,573. § 572. Instruments in form of lease construed to be sales upon condition subsequent. — But in other cases of in- struments denominated leases courts have held them to amount to true conditional sales, i. e., present sales subject to be de- feated upon a condition subsequent, namely, upon non-pay- ment. Thus, in a leading case, 1 upon this view of the contract, a piano had been delivered under an agreement called a lease, the party taking it paying $50 on delivery as rent for the first month and agreeing to pay $50 a month rent for thirteen months thereafter. If within thirteen months he should pay $700 the piano should become his property, in which case all sums paid as rent were to apply as part of the $700 purchase price. " It was a mere subterfuge," said the court, " to call this transaction a lease; and the application of that term in the written agreement between the parties does not change its real character. It was a conditional sale, with a right of re- scission on the part of the vendor in case the purchaser should fail in payment of his instalments." § 573. . This view of these agreements, differing radi- cally, as will be seen, from that of the previous sections, has not been generally followed in other States, 2 though it has been followed in Colorado. 3 The same rule also prevails in Massa- and Herring v. Cannon, 21 S. C. 212, but "one piano, equal in value to the were distinguished. The same form above-named piano," was held, two of instrument received the same con- judges dissenting, not to be a condi- struction in the later case of South- tional sale. em Music House v. Hornsby, 45 S. C. * Murch v. Wright, 4G I1L 487, 95 111, 22 S. E. R. 781, although the court Am. Dec. 455. See also Lucas v. below had characterized it as "ex- Campbell, 88 111. 447. treme doctrine." In Singer Mfg. Co. 2 See criticisms upon this case in v. Smith, 40 S. C. 529, 19 S. E. R. 132, Sanders v. Heber, 28 Ohio St. 636, an instrument similar in all respects where it is said to stand almost alone except that it reserved no option to and to be contrary to the weight of purchase was construed as a sale authority. with lien reserved. In Guest v. Diack, 3 Gerow v. Castello, 11 Colo. 560, 19 29 Nova Scotia, 504, a contract sub- Pac. R. 505, 7 Am. St. R. 260. But stantially like that of the Southern see Andrews v. Colorado Savings Music House, supra, except that upon Bank, 20 Colo. 313, 36 Pac. R 902, 36 a payment the seller agreed to de- Am. St. R. 291. liver, not necessarily the same piano, 471 §§ 574, 575.J law of sale. [book ii. chusetts, where such contracts are regarded as conditional sales, " liable to be defeated by non-performance of the condi- tion," but " which could be ripened into an absolute title by the performance of the conditions." 1 g 574. Instruments in form of leases held to be .abso- lute sales reserving a lien or constituting chattel mortgages. But in yet other cases of instruments denominated leases, courts have reached still different conclusions as to their effect, based upon language thought to disclose a different intention. Thus, in a leading case 2 in the supreme court of the United States, the agreement was held to be neither a lease nor a conditional sale, but a mortgage. In that case it appeared that a number of cars had been delivered to a railroad company under a con- tract which " industriously and repeatedly " spoke of the ar- rangement as a loan for hire. Still, notes had been given for the amount of the rent, secured by collateral, and they fell due before the term of the lease expired, and were clearly intended to be collected at maturity. If they were duly paid, the cars were to become the property of the railroad company; if they were not paid, the cars might be sold for the payment of the notes, and any surplus was to be returned to the railroad com- pany. § 575. . " In view of these provisions," said the court, " we can come to no other conclusion than that it was the in- tention of the parties, manifested by the agreement, that the ownership of the cars should pass at once to the railroad com- pany, in consideration of their becoming debtors for the price. Notwithstanding the efforts to cover up the real nature of the contract, its substance was an hypothecation of the cars to secure a debt due to the vendors for the price of a sale. The railroad company was not accorded an option to buy or not. They were bound to pay the price, either by paying their notes 1 Day v. Bassett, 102 Mass. 445; Cur- 2 Heryford v. Davis (1880), 102 U. S. rier v. Knapp, 117 Mass. 324; New- 235. hall v. Kingsbury, 131 Mass. 445; Vin- cent v. Cornell, 13 Pick. 294. 472 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 576, 577. or surrendering the property to be sold in order to make pay- ment. This was in no sense a conditional sale. This giving the property as a security for the pa} 7 ment of a debt is the ve^ essence of a mortgage, which has no existence in a case of con- ditional sale." §576. The same result has also been reached in other cases less readily distinguishable from those in the preceding sections than the one just referred to. 1 § 577. Instruments in form of couditional sale held to be absolute sales reserving a lien or mortgages. — Cases, further, are not infrequent in which instruments denominated, or in the form of, conditional sales have been held to consti- tute executed and absolute sales with a lien reserved. In a somewhat clear case 2 before the supreme court of the United 1 The same result, i. e., that the agreement was a sale with a lien reserved, was reached in Greer v. Church (1877), 13 Bush (Ky.), 430, where the court says: "In this case the transaction shows a sale, and that being shown, it does not matter whether the parties intended the title to pass or not; the sale being completed by an agreement as to the price and terms of payment and de- livery of possession to the vendee, the law, in furtherance of public policy and to prevent fraud, will treat the title as being where the nature of the transaction required it should be;" and that "at best the effect was to give the appellees a lien " as against the purchaser; and in Knittel v. Cushing, 57 Tex. 354, 44 Am. R. 598, where Greer v. Church was approved, and where the court say of the so-called lease: " If a valid instrument # at all, it must be held to be a sale, and that the pretended renting was but a device to secure the remainder of the purchase-money due; " and in Palmer v. Howard, 72 473 Cal. 293, 1 Am. St. R. 60, where the court follows Heryford v. Davis, upon the ground that, in the case at bar, " the intention must be taken to have been to transfer the ownership of the property, reserving a security for the price, and nothing more." ^Beardsley v. Beardsley (1890), 138 U. S. 262. In Arkansas Cattle. Co. v. Mann (1888), 130 U. S. 69, the court, in con- struing a contract relating to the sale of cattle, said: "That instru- ment recites that the owners had, on the day of its execution, 'sold' the cattle, and that recital is followed by clause guaranteeing the title and providing the mode in which the buyer was to make payment. Here are all the elements of an actual sale, as distinguished from an executory agreement. The retention of posses- sion by the sellers until, ami as secu- rity for, the payment of the price, was not inconsistent with an actual sale by which title passed to the buver." § 577.] LAW OF SALE. [BOOK II. States, the contract read: " I hold of the stock of the "Washing- ton and Hope Railway Company . . . thirteen hundred and fifty shares, which is sold to P. F. B., and which, though stand- ing in my name, belongs to him, subject to a payment of eight thousand dollars," etc. Said the court: " By the appellant it is claimed that this is a mere executory contract, an agreement to sell; by the appellee, that it is an executed contract, a sale with a reservation of security. The distinction is obvious, and the significance important. If an agreement to sell, the mov- ing party must be the purchaser. If a sale, an executed con- tract with reservation of security, the moving party is the vendor, the one retaining security. If an agreement to sell, the moving party, the purchaser, must within a reasonable time tender performance or make excuse therefor. If an exe- cuted contract, a completed sale, then the moving party is the vendor, the security holder, and he assumes all the burdens and risks of delay. What, therefore, is the significance and import of this instrument? This, as claimed by the appellant, is not to be determined by any separate clause, but by the in- strument as a whole. . . . Tested by this rule, this instru- ment must be adjudged not a contract to sell, but a sale with reservation of security. Note the language of the instrument: 'which is sold.' Again, ' which, though standing in my name, belongs to him.' These words imply nothing executory, but something executed. It is not that the vendor will sell, but has sold. Not that the title remains in the vendor, yet to be trans- ferred, but that it already has been transferred. The owner- ship, equitable if not legal, is in the vendee. It is not that the stock belongs to the vendee, upon payment, as appeared in the case of French v. Hay} but that it is now his, subject to a lien. Its meaning is, therefore, that of a sale, with retention of the legal title as security for purchase-money. It is an equitable mortgage, and the rights created and assumed by it are like those created and assumed when the owner of real estate con- veys by deed to a purchaser, and takes back a mortgage as se- curity for the unpaid purchase-money." 122 Wall. (89 U. S.) 231. 474 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 578. g 578, . In a somewhat different case in Colorado, 1 it appeared that Andrews & Co. had bargained to one Smith a quantity of opera chairs which were put into the latter's opera house. After the making of the contract, but before the chairs had been delivered, Smith had mortgaged the opera house and contents to the Colorado Savings Bank, and in an action by the bank to foreclose its mortgage Andrews & Co. intervened, claiming to be the owners of the chairs. The contract between Andrews & Co. and Smith provided for payment of one-fourth of the price in cash and of the residue by his notes; and it ex- pressly stipulated that the title should be and remain in An- drews & Co. until the whole was paid. This contract was duly filed, but was not executed or acknowledged as required for chattel mortgages. The decisive question, said the court, was " whether the arrangement under and in pursuance of which the seating was furnished constitutes a conditional sale, or an absolute sale and transfer of ownership, with a reservation of a lien to secure the payment of the purchase price. If the lat- ter, it must be conceded that it is in effect a chattel mortgage, and void as to third parties, because not executed and acknowl- edged in conformity with the chattel-mortgage act. In deter- mining this question the entire transaction between intervenors and Smith must be considered, and its legal effect ascertained, not alone by any particular provisions of the written contract itself, but from all the stipulations and agreements contained therein, as well as in the notes given in connection therewith. When so considered it is evident, notwithstanding the agree- ment itself provides that the title to the seating shall remain in Andrews & Co. until full payment in cash shall have been made therefor, thus evidencing an intent to make the sale con- ditional so far as the transfer of the title is concerned, that such an intention is rebutted by the terms and stipulations in the notes given in pursuance of the agreement, they being ab- solute obligations, making the purchaser unconditionally liable i Andrews v. Colorado Savings in substance is Palmer v. Howard Bank (1894), 20 Colo. 313, 36 Pac. R. (1887), 72 CaL 293, 13 Pac. R. 858, 1 902, 36 Am. St, R. 291. Very similar Am. St. R. 60. 475 5780 LAW OF SALE. [BOOK II. for the purchase price. The optional payment of the purchase price is as essential to constitute a transaction a conditional sale as the conditional passing of the title; and a transaction that in express terms imposes an unconditional liability upon the vendee to pay the purchase price for the property deliv- ered, however characterized by the parties, is essentially and in legal effect an absolute, and not a conditional, sale. ' If, by the terms of the agreement, the purchaser became liable un- conditionally for the purchase price, although by the agree- ment he may never get the title and ownership of the property, then the agreement is an evasion of the registration statute, as its purpose is simply to retain a secret lien.' 1 ... In 1 Citing Hart v. Barney, etc. Mfg. Co., 7 Fed. R. 543. In Aultman v. Silha (1893), 85 Wis. 359, 55 N. W. R. 711, it appeared that Silha had ordered from Aultman & Co. a threshing outfit for which he was to give his notes secured by a mortgage upon the machineiy and also upon certain land; and the ques- tion arose whether there was a con- ditional sale or a sale absolute with a mortgage back for security. Said the court: "Where this question is at all doubtful the courts are in- clined to hold the transaction a mort- gage. The real nature of the trans- actions, as disclosed by the written documents and all the surrounding circumstances, is sought to be ascer- tained. Rockwell v. Humphrey, 57 Wis. 410. The courts do not favor a conditional sale. In viewing this transaction, and ascertaining its legal effect, all the contemporaneous doc- uments executed between the parties are to be considered. There is, first, the order, which plainly contem- plates an absolute sale and expressly provides for the execution of a first mortgage on the machinery; second, the notes, which contain a provision that the title of the machinery shall not pass until the notes are paid in full, but which also contain a clause authorizing sale of the property and application of the proceeds on the notes, which clause is inappropriate to anything but a mortgage; third, the chattel mortgage, which ex- pressly recognizes and asserts and warrants that the title of the ma- chinery is in Silha, and contains elaborate and full provisions for fore- closure and sale in case of default, and covenants that, in case the pro- ceeds of the sale are insufficient to pay the debt, Silha will pay the de- ficiency; fourth, the real-estate mort- gage. Consideration of all of these documents forces our minds to the conclusion that the transaction is an absolute sale with mortgage back. The stipulations and agreements whicli indicate this intent are nu- merous, while there is only one which points to a conditional sale, and that is coupled with a provision only suit- able to a chattel mortgage. The acts and conduct of the parties also point to the same conclusion. The giving of mortgages upon the machinery and other property to secure the pay- 476 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 578. terms the notes executed by Smith to the interveners made him an absolute debtor for the price of the furniture, and the stipulation therein that 'A. H. Andrews & Co., or their as- signs, shall have the right to assume possession at any time they may deem themselves insecure, and, after maturity, to sell said property and apply the proceeds of such sale, over and above the expenses of taking and retaining possession thereof, on this note, and to collect the balance,' being mani- festly for the purpose of enabling the intervenors to enforce such payment by subjecting the property to sale for that pur- pose, is "an attempt to reserve a lien thereon to secure the pay- ment of the purchase price." It was therefore held void as to third parties, " as being in contravention of our chattel-mort- gage act." ment of the notes, with stipulations to pay the balance remaining after foreclosure, is utterly inconsistent with the idea of a conditional sale. Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288." In Baldwin v. Crow (1888), 86 Ky. 679, 7 S. W. R 146, it appeared that Baldwin & Co. had delivered to one Dennis a piano, and received from him three notes, each of which con- tained the following clause: "This note is of a series given for the pur- chase of the instrument mentioned below, the conditions of which pur- chase are, that said instrument re- mains the property of D. H. Baldwin & Co. until all notes given for the instrument are paid, and in default of payment of any of said notes at maturity, or at any time after such default, before accepting payment of amount thus due, or in case said in- strument, before payment in full, is removed from Nicholasville, Ken- tucky, without written consent of D. H. Baldwin & Co., they may re- ceive possession of said instrument 4 without any liability on their part to refund any money previously paid on account of said purchase. Loss in case of fire to be borne by me, A. J. Dennis." Held to be an ab- solute sale and mortgage back, rely- ing on Greer v. Church, 13 Bush (Ky.), 430 (cited in preceding section), and Barney & Smith Mfg. Co. v. Hart, 8 Ky. Law R 223, 1 S. W. R. 414. Sub- stantially similar also is Singer Mfg. Co. v. Smith, 40 S. C. 529, 19 S. E. R. 132. In Damm v. Mason, 98 Mich. 237, 57 N. W. R. 123, it appeared that one Partrick was indebted to Mason, and, being desirous of securing him, gave to Mason a contract describing prop- erty already owned by Partrick, and in his possession, but declaring, as in a contract of conditional sale, that the title should remain in Mason until paid for. Damm was a subse- quent mortgagee for Partrick. In a contest between Damm and Mason it was held that the contract given to Mason was merely a security. See a' so Findley v. Deal, 69 Ga. 359. 77 §§ 57^-581.] LAW OF SALE. [BOOX II. § 579. . It is believed, however, that the doctrines here laid down are not in harmony with those generally prevailing elsewhere. 1 § 580. The rule in Pennsylvania. — The rule in Penn- sylvania has been thought to be somewhat peculiar, and re- quires mention. Distinction is there made between a bailment with a power of purchase annexed, and a conditional sale. If goods are delivered to be used and returned, this is a bailment, and it continues such in Pennsylvania notwithstanding that there may be annexed to it a stipulation that if the bailee shall pay a designated price he shall become the owner, and other- wise shall pay for the use. 2 If, however, notwithstanding the form or the name of the agreement, it is not contemplated that the article shall be returned to the bailor, but that the bailee has bought it or is bound to buy it, though the title may be re- served by way of security, it is a conditional sale. 3 § 581. ■ . Of a contract of the first kind it was said: " Properly speaking there was not a sale, but a contract to sell at a future clay, and the delivery in the meantime was a loan subject to be turned into a sale by a compliance with certain conditions." 4 In a case of the latter kind: "It is true it was claimed to be a lease and the transaction a bailment, but it was 1 See post § 583. 53,37 Am. R. 661; Farquhar v. Mc- 2 Clark v.Jack, 7 Watts, 375; Myers Alevy, 142 Pa. St. 233; Clow v. t. Harvey, 2 Pen. & W. 478, 23 Am. Woods, 5 S. & R. 275, 9 Am. Dec. 346; Dec. 60; Rowe v. Sharp, 51 Pa. St, 26; Babb v. Clemson, 10 S. & R. 419, 13 Chamberlain v. Smith, 44 Pa. St. 431; Am. Dec. 684; Martin v. Mathiot, 14 Henry v. Patterson, 57 Pa. St. 346; S. & R. 214, 16 Am. Dec. 491; Jenkins Becker v. Smith,, 59 Pa. St. 469; En- v. Eichelberger, 4 Watts, 121,28 Am. low v. Klein, 79 Pa. St. 488; Crist v. Dec. 691; Rose v. Story, 1 Pa. St. 190, Kleber, 79. Pa. St. 290; Christie's Ap- 44 Am. Dec. 121; Waldron v. Hanpt, peal, 85 Pa. St. 463; Edwards' Appeal, 2 P. F. Smith, 408; Haak v. Linder- 105 Pa. St. 103; Dando v. Foulds, 105 mann, 64 Pa. St. 499. 3 Am. R. 612; Pa. St. 74; Brown v. Billington, 163 Dearborn v. Raysor, 132 Pa. St. 231, Pa. St. 76, 29 Atl. R. 904; Ditman v. 20 Atl. R. 690; Ott v. Sweatman, 166 Cottrell, 125 Pa. St. 606, 17 Atl. R. 504; Pa. St. 217, 31 Atl. R. 102; Peek v. Case v. L'Oeble, 84 Fed. R. 582. Heim, 127 Pa. St. 500, 17 Atl. R. 984. 3 Stadtfeld v. Huntsman, 92 Pa. St. 4 Clark v. Jack, supra. 478 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 582, 583. . not even so in form. It lacked the essential feature of a bail- ment, viz. : a stipulation for a return of the property at the end of the term. . . . It is of the essence of a contract of bail- ment that the article shall be returned in its own or some al- tered form to the bailor, so that he may have his own again. . . . The agreement was clearly a conditional sale." 1 § 582. Bailment and conditional sale distinguished. There is, however, nothing peculiar in principle in this partic- ular phase of the Pennsylvania cases. It is undoubted that there may be a mere bailment with a privilege of purchase annexed, and it would be so held in any State; 2 but a bail- ment coupled with an agreement to sell and purchase is held in Pennsylvania, as in other States, to be a conditional sale. Few of the States, however, go so far as Pennsylvania in de- termining the results of such contracts, in which respect, as will be seen, 3 the Pennsylvania doctrine is peculiar. § 583. Conditional sale and chattel mortgage distin- guished. — Although some of the anomalous contracts which this kind of dealing has produced have been held to be chat- tel mortgages in effect, 4 there is a clear distinction to be drawn between either the conditional contract to sell or the condi- tional sale and the chattel mortgage, and this distinction lias usually been recognized by the courts. 5 As is said in one case, 6 iFarquhar v. McAlevy, supra. See 133, 48 N. W. R. 1100; Wadleigh v. also Morgan-Gardner Electric Co. v. Buckingham, 80 Wis. 230, 49 N. W. Brown, 193 Pa. St. 351, 44 Atl. R. 459. R. 745; Nichols v. Ashton, 155 M;iss. 2 See, for example, McCall v. Pow- 205, 29 N. E. R. 519; Harkness v. Rus- ell, 64 Ala. 254. sell, 118 U. S. 663; Gilbert v. National * See post, § 600, note. Cash Reg. Co., 176 111. 288, 52 N. E. 4 See ante, § 577 ; Hery ford v. Davis, R. 22 [citing also Plummer v. Shir- 102 U. S. 235; Greer v. Church, 13 ley, 16 Ind. 380; Sumner v. Woods, Bush (Ky.), 430; Knittel v. Cushing, 52 Ala. 94; Bingham v. Vandergrift, 57 Tex. 354, 44 Am. R. 598; Camp- 93 Ala. 283; Jowers v. Blandy, 58 Ga. bell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 379; McComb v. Donald, 82 Va. 903; R. 279, 6 Am. St. R. 889. McGinnis v. Savage, 29 W. Va. 362; 5 Kimball Co. v. Mellon, 80 Wis. Yasser v. Buxton, 86 N. C.335; Frick e Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. R. 1110. 479 § 583.] LAW OF SALE. [BOOK II. " it is very difficult to see how a contract for the sale of per- sonal property, in which it is agreed that the title of the prop- erty shall remain in the vendor, and the possession in the vendee, until payment of the debt, can be called a mortgage v. Hilliard, 95 N. C. 117; The Ma- rina, 19 Fed. R. 760]. In Harkness v. Russell (1886), 118 U. S. 663, it is said: "The first ques- tion to be considered is whether the transaction in question was a conditional sale or a mortgage; that is, whether it was a mere agreement to sell upon a condition to be per- formed, or an absolute sale with a reservation of a lien or mortgage to secure the purchase-money. If it was the latter, it is conceded that the lien or mortgage was void as against third persons because not verified by affidavit and not recorded as required by the law of Idaho. But, so far as words and express intent of the parties can go, it is perfectly evi- dent that it was not an absolute sale, but only an agreement to sell upon condition that the purchasers should pay their notes at maturity. The language is: 'The express condition of this transaction is such that the title . . . does not pass . . . until this note and interest shall have been paid in full' If the vendees should fail in this, or if the vendors should deem themselves insecure be- fore the maturity of the notes, the latter were authorized to repossess themselves of the machinery, and credit the then value of it, or the pro- ceeds if they should sell it, upon the unpaid notes. If this did not pay the notes, the balance was still to be paid by the makers by way of ' damages and rental for said machinery.' This stipulation was strictly in accord- ance with the rule of damages in such cases. Upon an agreement to sell, if the purchaser fails to execute his contract, the true measure of damages for its breach is the differ- ence between the price of the goods agreed on and their value at the time of the breach or trial, which may fairly be stipulated to be the pi'ice they bring on a resale. It cannot be said, therefore, that the stipulations of the contract were inconsistent with, or repugnant to, what the par- ties declared to be their intention, namely, to make an executory and conditional contract of sale. Such contracts are well known in the law and often recognized ; and when free from any fraudulent intent are not repugnant to any principle of justice or equity, even though possession of the property be given to the proposed purchaser." In Nichols v. Ashton (1891), 155 Mass. 205, 29 N. E. R. 519, where goods were delivered to one Fred L. Stiff under a contract purporting to be a contract of conditional sale, but which, it was contended, amounted to a mortgage in legal effect, it was said: "As to whether the written contract discloses a mortgage from Stiff to the plaintiff, it purports, it is true, to bind Stiff to make the pay- ments necessary to entitle him to the goods, but it declares that he has borrowed and received those goods, and provides in the most explicit way that the title shall not pass until the whole amount of the stipu- lated value shall have been paid, and that the plaintiffs also retain 480 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 584. by the most liberal construction. In a mortgage the title of the property is in the mortgagor as well as the possession. The mortgage is a mere incumbrance, and the mortgagor may sell and confer a good title subject to such incumbrance. The two contracts are entirely different in form and essentially so in substance." § 584. The true theory. — A satisfactory and harmoni- ous rule in respect of these cases cannot be attained until agreement is had as to definitions. In the writer's judgment the term " conditional sale " is a misnomer as applied to this class of contracts. Still, notwithstanding differences as to names and some difference as to essential nature, the great weight of authority is to the effect that agreements of the kind now under consideration, by whatever name called, are con- tracts of sale subject to a condition precedent, namely, the pay- ment of the price. In other words, they are conditional contracts to sell, and are most appropriately described as conditional contracts of sale, to distinguish them from the true conditional sale, which is a sale subject to a condition subsequent, though the right to the immediate posses- which has gone farthest in another sion. It is impossible by construction direction contains nothing inconsist- of such a contract to turn the trans- ent with our decision. Bailey v. Her- action between the parties into a sale vey, 135 Mass. 172. See McCarthy v. passing the title to Stiff and a mort- Henderson, 138 Mass. 310, 312." gage or pledge back by him. Such a In Smith v. De Vaughn, 82 Ga. 574, result can be reached only by over- 9 S. E. R. 425, De Vaughn sold Smith turning the instrument, which de- a mule and took from him a note for clares that the title does not pass, the price, which note contained also and there is no warrant for overturn- the following language: " And to se- ing it. Blanchard v. Cooke, 144 Mass. cure the payment of this note, I 207, 221. If the plain effect of the hereby mortgage and convey unto English language needs confirmation said payee, his heirs and assigns, the by authority, it may be mentioned following described property, to wit: that contracts like the present are One dark mare-mule named Queen, recognized as being what they pur- about ten years old, for which this port to be by statutes. St. 1884, ch. 313; note is given in part. Said mule to re- Pub. Stat., ch. 192, § 13. See also main the property of J. E. De Vaughn Carter v. Kingman, 103 Mass. 517; until paid for." Held, that this was a Benner v. Puffer, 114 Mass. 376; Chase conditional bill of sale with reserva- v. Ingalls, 122 Mass. 381. The case tion of title, and not a mortgage. 31 481 §§ 535-587.] law of sale. [cook ii. the shorter term, " conditional sale," seems to be so firmly fixed in our legal nomenclature that it is not likely to be abandoned. § 585, On conditional contract to sell, no title passes until performance. — Such being the nature of the contracts of the first class, namely, the conditional contracts to sell, it remains next to consider their effect, and especially the question of their effect upon the transfer of the title. Upon this point the con- clusion, both in reason and authority, is clear that until full 1 payment of the price no title passes to the prospective pur- chaser, unless this condition precedent of payment is waived. 2 In the case of the true conditional sale, however, that is, the sale upon condition subsequent, a present title passes, subject to be divested upon non-payment. g 5S6 % Note not payment. — It is very common in these cases for the buyer to give his note or notes to the seller as part of the contract, to further evidence his agreement to pay the price; and such notes are often afterward taken to secure the payment of a deferred instalment of the price. Kot infre- quently the contract expressly provides that the title shall re- main in the seller until all such notes are paid; but in the absence of such an express stipulation the usual rule would apply and the note would not be regarded as payment, so as to defeat the vendor's claim, in the absence of clear evidence of an intention so to treat it. 3 § 587. Nature of the interest acquired by vendee. — Al- though it is thus true that, in the case of the conditional con- l Entire payment is the condition Campbell Printing Co. v. Walker, 114 unless otherwise stipulated. Brown N. Y. 7, 20 N. E. R. 625; Levan v. Wil- v. Haynes, 52 Me. 578. ten, 135 Pa. St. 61, 19 AtL R. 045: 2 Seymour v. Farquhar, 93 Ala. 292; McComb v. Donald, 82 Va. 903, 5 S. E. Mcintosh v. Hill. 47 Ark. 363; McRea R. 558, and the many other cases v. Merrifield, 48 Ark. 160; Simpson v. classified and arranged under § 542 Shackleford. 49 Ark. 63; Cincinnati and following. Safe Co. v.Kelly, 54 Ark. 476; Kohler 3Triplett v. Mansur & Tebbetts v. Hayes, 41 Cal. 455; Briggs v. Mc- Implement Co. (1900), — Ark. — , 57 Ewen, 77 Iowa, 303, 42 N. W. R. 303; S. W. R. 261: Segrist v. Crabtree Singer Mfg. Co. v. Bullard, 62 N. H. 129 ; (1888), 131 U. S. 287. 482 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 51 tract to sell, the prospective purchaser acquires no present title to the goods, he does acquire a present interest, namely, a right to become the owner upon the performance of the conditions, and also such rights to possession in the interval as the contract expressly or impliedly gives him. In the case of the conditional sale — that is, the sale upon condition subsequent, — as has been seen, the vendee acquires a defeasible present title. § 588. Whether assignable or leviable. — In either case the interest or title acquired, where no restrictions are imposed by the .con tract and no personal considerations are in- volved, is usually deemed to be an assignable one, and the party may sell, assign or mortgage whatever interest he has, 1 though an attempt to transfer a greater interest would ordinarily be regarded as a conversion, which would entitle the true owner to recover the goods. 2 It is not, however, in cases of the lirst i Bailey v. Colby (1856), 34 N. H. 29, 66 Am. Dec. 752; Sargent v. Gile, 8 N. H. 325; Carpenter v. Scott, 13 R. I. 477. In this case the transac- tion, " though in form a lease, is re- garded in law as a conditional sale. Goodell v. Fairbrother, 12 R. L 233; Currier v. Knapp, 117 Mass. 324; Greer v. Church, 13 Bush t. 94 Wis. 168, 68 X W. R. 762; Singer Mfg. Co. v. Xash. 70 Vt. 434, 41 Atl. R 429; Batchelder v. Sanborn, 66 X H. 192, 22 Atl. R. 535: First Xat. Bank v. Tufts, 53 Kan. 710, 37 Pac, R, 127. 32 497 605.] LAW OF SALE. [BOOK II. §605. Defar.lt by purchaser — What constitutes.— The most common purpose which the vendor has in view in retain- ing title is usually, as has been seen, to secure thereby the pay- ment of the purchase price. Incident to this, however, or coupled Wooley v. Wagon Co., 59 N. J. L. 278, 35 Atl. R. 789. In New York such contracts are void as to subsequent purchasers and mortgagees in good faith unless filed. Laws 1884, ch. 315. Creditors are not protected by this statute (Frank v. Batten, 49 Hun, 91); nor is a mortgagee for an ante- cedent debt (Duffus v. Furnace Co., 15 Misc. 169); nor a pledgee. Kauff- man v. Klang. 16 Misc. 379. In North Carolina the contract must be in writing and recorded like a chattel mortgage. As between the parties the con- tract is not affected by the statute. Kornegay v. Kornegay, 109 N. C. 188, 13 S. E. R. 770. See also Henkel v. Greene, 125 N. C. 489, 34 S. E. R. 554. The statute does not operate re- trospectively. Harrell v. Godwin, 102 N. C. 330, 8 S. E. R. 925; Perry v. Young, 105 N. C. 463, 11 S. E. R. 511. Contract once properly recorded need not be rerecorded upon re- moval of property to another county. Barrington v. Skinner, 117 N. C. 47, 23 S. E. R. 90. In Ohio the condition is void as to subsequent purchasers, mortgagees in good faith and creditors, unless it is in writing, and verified and filed as chattel mortgages are required to be. Act of May 4, 1885, 82 Ohio L. 238. The statute is constitutional. Weil v. State, 46 Ohio St. 450. For construction, see Speyer v. Baker, 59 Ohio St. 11, 51 N. E. R. 442; Metro- politan Trust Co. v. Columbus, S. R. Co., 93 Fed. R. 702, In South Carolina such contracts are void as to subsequent creditors or purchasers for valuable considera- tion without notice unless recorded. Herring v. Cannon, 21 S. C. 212, 53 Am. R. 661; Southern Music House v. Dusenbury, 27 S. C. 464, 4 S. E. R. 60. In Texas such contracts are void as to creditors and bona fide pur- chasers unless registered like chattel mortgages. Creditor here means a lien creditor. Pari in v. Harrell, 8 Tex. Civ. App. 368, 27 S. W. R. 1084. Valid as against assignee for cred- itors. Mansur, etc. Co. v. Beeman, etc. Co., — Tex. Civ. App. , 45 S.W. R. 729. See also Bowen v. Lansing Wagon Works, 91 Tex. 385, 43 S. W. R. 872; Hall, etc. Co. v. Brown, 82 Tex. 469. 17 S. W. R. 715; San An- tonio Brewing Ass'n v. Arctic Mfg. Co., 81 Tex. 99, 16 S. W. R. 797; Hoyt v. Weiss, 10 Tex. Civ. App. 462, 32 S. W. R. 86. In Vermont contract must be re- corded within thirty days to be valid against attaching creditors or subse- quent purchasers without notice. Rev. L. 1880, § 1992; Desany v. Thorp, 70 Vt. 31, 39 Atl. R. 309; Whitcomb v. Woodworth, 54 Vt. 544; Church v. McLeod, 58 Vt. 541. Attaching creditors, to be pro- tected, must likewise be without no- tice. McPhail v. Gerry, 55 Vt. 174; Singer Mfg. Co. v. Nash, 70 Vt, 434, 41 Atl. R. 429. Lien must be foreclosed by public sale by a public officer, and vendee has the right to redeem within a 498 €11. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. ["§ , ' (l ~ ) - with it, may be provisions that the property shall not be re- moved from a specified place, 1 or shall be used only for a cer- tain purpose, 2 or shall be kept insured, or be kept up to a certain value, as in the case of a stock of goods, 3 or be preserved in good order, and the like. In the formal contracts now so common, these matters will be found specifically provided for, with penalties attached for their breach, the usual penalty being the resumption of posses- sion by the seller, and perhaps the total termination of the con- tract. The default, however, which is most frequently presented is time prescribed. Act 1884, No. 93; Roberts v. Hunt, 61 Vt. 612, 17 Atl. E. 1006. In Virginia contract must be re- corded or it will be void as to cred- itors and bona fide purchasers. Code, § 2462; Hash v. Lore, 88 Va. 716, 14 S. E. R. 365; Callahan v. Young, 90 Va. 574, 19 S. E. R. 163; Arbuckle v. Gates, 95 Va. 802, 30 S. E. R. 496. In Washington the sale is absolute as to all creditors or purchasers in good faith unless filed within ten days. Bal. Code, § 4585. As to what is a conditional sale hereunder, see Eisenberg v. Nichols, 22 Wash. 70, 60 Pac. R. 124. Purchaser in consideration of a pre-existing debt is protected by this statute. Johnston v. Wood, 19 Wash. •441, 53 Pac. R. 707. In West Virginia, unless recorded, the contract is void as to creditors and purchasers without notice. Bald- win v. Van Wagner, 33 W. Va. 293, 10 S. E. R 716. In Wisconsin contract must be subscribed by both parties, and filed in office of town clerk, in order to be valid against others than the parties and those having notice. Rawson Mfg. Co. v. Richards, 69 Wis. 643, 35 N. W. R. 40; Kellogg v. Costello, 93 Wis. 232, 67 N. W. R. 24. As to signing by both parties, see Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. R. 1100; Sheldon Co. v. Mayers, 81 Wis. 627, 51 N. W. R. 1082; Kellogg v. Costello, supra. Assignee for creditors has the rights of such creditors. Sheldon Co. v. Mayers, supra. Notice by re- citals in other instruments through which the party claims is sufficient. Perkins v. Best, 94 Wis. 168, 68 N. W. R. 762. Contract for sale of standing tim- ber is not within this statute. Bent v. Hoxie, 90 Wis. 625, 64 N. W. R. 426; Lillie v. Dunbar, 62 Wis. 198. Statute requiring notice has no ap- plication where the vendee surrepti- tiously obtains possession before the contract is completed. Owen v. Long, 97 Wis. 78, 72 N. W. R 364. Statute does not protect a mere tres- passer. Kimball v. Post, 44 Wis. 471. i Johnston v. Whittemore, 27 Mich. 463; Whitney v. McConnell, 29 Mich. 12; Smith v. Lozo, 42 Mich. 6. 2 Faisst v. Waldo, 57 Ark. 270, 21 S. W. R. 436. 3 Ryan v. Wayson, 108 Mich. 519, 66 N. W. R 370. 499 § 606.] LAW OF SALE. [BOOK II. that of the failure of the vendee to pay for the goods at the time specified, or, if no time was agreed upon, then within a reasonable time; 1 and, whatever the condition, there will be a default whenever the buyer, without the consent of the seller, has failed or omitted to pay the price or do the other act at the time or in the manner agreed upon. 2 §606. Effect of vendee's default.— It is customary and competent for the parties to stipulate, with more or less of par- ticularity, what shall be the effect of the default by the vendee, and what shall be the respective rights and duties of the par- ties thereafter. The mere omission, however, of the vendee to pay the price, or perform the other acts agreed upon, at maturity, while it may terminate his right to possession 3 does not, unless by force of an express provision, ipso facto operate as an absolute forfeiture of all his rights, in the absence of a demand for such payment or performance, or a request for the restoration of the goods, on the part of the vendor; 4 and upon such a demand, even after maturity, the vendee may, it is held, still pay the amount or perform the other stipulated acts and save the goods. 9 i Mathews v. McElroy, 79 Mo. 202; this reason or ask instructions, or no- Wiggins v. Snow, $9 Mich. 476, 50 N. tify it of his readiness to deliver. W. R. 991 ; Ryan v. Wayson, 108 Mich. Held, that Kelly was in default. -519, 66 N. W. R. 370. 3 As to necessity of demand hefore 2 In Cincinnati Safe Co. v. Kelly, 54 retaking the goods, see post, § 628. Ark. 476, 16 S. W. R. 263, plaintiff sold 4 Sunny South Lumber Co. v. Nei- Kelly a new safe for a sum of money meyer Lumber Co., 63 Ark. 268,38 and his old safe, which Kelly was to S. W. R. 902; Ames Iron Works v. deliver at the depot. Kelly paid the Rea, 56 Ark. 450, 19 S. W. R. 1063; money, but, though " urged " to do so, Nattin v. Riley, 54 Ark. 30, 14 S. W. did not deliver the old safe at the R. 1100; Deyoe v. Jamison, 33 Mich. depot, though it appeared afterward 94; Taylor v. Finley, 48 Vt. 78; that he had requested permission of Hutchings v. Munger, 41 N. Y. 155. the station agent to place the safe 5 Taylor v. Finley, Hutchins v. on the depot platform, which was re- Munger, Nattin v. Riley, and other fused unless it was placed there for cases in preceding note; O'Rourke shipment. Kelly could give no ship- v. Hadcock, 114 N. Y. 541, 22 N. E. R. ping instructions and therefore did 33; Vaughn v. McFadyen, 110 Mich, not deliver the safe at the depot. He 234, 68 N. W. R. 135. did not, however, notify plaintiff of If money is not paid at the time 500 GH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 607-G10. § 607. . The default of the vendee does, nevertheless, work a radical change in the relations of the parties. It puts the vendee in the position of one who, at least, has failed to improve an opportunity,— as where he was not absolutely bound to buy, — or who has violated his undertaking — as in the ordinary case where he has absolutely agreed to buy and pay for the chattel; and it gives to the vendor, unless he waives it, the right to avail himself of the remedies which the contract or the rules of law prescribe or offer. § 608. . Moreover, after the seller has exercised his right to terminate the buyer's interest, no new transfers of the buy- er's former title can be made in such wise as to force new par- ties or new obligations upon the seller. 1 § 609. Waiver of default by seller. — The law has no inter- ests of its own to subserve in insisting upon forfeitures or the other results of default. The remedies it gives are for the benefit of the vendor, and he may waive them if he will. He may do this, moreover, either expressly or by implication, and as the results of default more often work hardship to the buyer than to the seller, the law looks with complacence at least upon those acts of the vendor which may fairly be construed as indicative of his intention not to insist upon a forfeiture of the buyer's rights. If, therefore, the seller, notwithstanding the default, does not avail himself of his appropriate remedy, but so acts as to reasonably warrant the inference that he re- gards the buyer's rights as still subsisting, he will be deemed to have waived the default, and he will not be at liberty to de- clare a forfeiture until he has in some way put the buyer, whom he has thus misled, in the attitude of a fresh default. § 610. . Thus, if, after default, the seller permits the buyer to retain possession of the goods and accepts part pay- specified, and the seller resumes pos- not kept good. Summerson v. Hicks, session, the buyer cannot maintain 134 Pa. St. 566, 19 Atl. R. 808. replevin by virtue of a subsequent l Lippincott v. Rich, 19 Utah, 140, tender of the price, if the tender is 56 Pac. R. 806. 501 §§ 611-61 3.] LAW OF SALE. [BOOK II. inents on the price; 1 or if, where the price is payable in instal- ments, the vendor permits the vendee to continue in possession and extends the time of payment of an instalment due; 2 or permits the vendee to make payments and retain possession after the whole amount is due, 3 — his conduct will be deemed to be a waiver of the default in question, and he can only in- sist upon a default and regain possession by making a fresh demand of payment or performance which is not complied with. 4 §611. . It is not, however, to be understood that the seller is, at his peril, bound to act instantly, or to proceed with all possible dispatch or harshness: the question is whether his conduct can reasonably be viewed as indicating that he does not expect to insist upon a forfeiture, and thereby leading the vendee into a position of false security. 5 § 612. . Whether the vendor has so conducted himself as to establish a waiver is ordinarily a question of fact for the jury, in view of all the circumstances of the case. 6 §613. Remedies of seller upon default.— The common and characteristic remedy of the seller, upon default, is to de- clare the buyer's rights under the contract forfeited and re- cover his goods. There may, however, be cases in which the right to the possession of the property is so far at the will of the conditional vendor, or is so far dependent upon other con- ditions than that of payment, that the vendor may resume i Hutchings v. Hunger, 41 N. Y. 155. Quinn v. Parke & Lacy Mach. Co., 5 2 Cole v. Hines, 81 Md. 476, 32 Atl. Wash. 276. 31 Pac. R. 866. R. 196, 32 L. R. A. 455. 5 Delay of vendor is construed with 3 0'Rourke v. Haclcock, 114 N. Y. much strictness in Delaware. Math- 541, 22 N. E. R. 33; Mosby v. Goff, 21 ews v. Smith, 8 Houst, 22, 31 Atl. R. R 1. 494, 44 Atl. R. 930 ; People's Furn. 879. & Carp. Co. v. Crosby, 57 Neb. 282, 6 Goslen v. Campbell, 88 Me. 450, 77 N. W. R. 658, 73 Am. St. R. 504; 34 Atl. R. 265; Quimby v. Lowell, 89 Taylor v. Finley, 48 Vt. 78; Fairbank Me. 547, 36 Atl. R. 902; Wing v. v. Phelps, 22 Pick. (Mass.) 535. Thompson, 78 Wis. 256, 47 N. W. R. 4 Hutchings v. Munger, Cole v. 606; Warnken v. Langdon Co., 8 N. Hines, O'Rourke v. Hadcock, supra; Dak. 243, 77 N. W. R. 1000. 502 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 614, 615. possession even before default in payment. There are also cases, as will be seen, in which the vendor may, by virtue of the peculiar provisions of the contract, resume possession of the goods and at the same time leave the general obligations of the contract unimpaired. When, however, by the express or implied conditions of the contract, the vendee is entitled to possession until default, his possession cannot, of course, be disturbed until he has made default, 1 though upon such default, unless waived, the seller may resume possession. 2 § 614. . Eecovery of possession, however, is not neces- sarily the only remedy of the seller. It may be his only rem- edy, as where, in the not uncommon case, the other party has not agreed to buy, but has merely the option to do so; 3 but in the ordinary case the buyer does agree to buy and pay for the chattel, in terms which are more or less absolute and uncondi- tional; and where he has done so, the seller may have personal remedies in lieu of, or in addition to, his remedy against the goods. § 615. What choice of remedies is offered. — Where, there- fore, the vendee is, expressly or impliedly, entitled to the pos- session until default, the vendor, who would take advantage of a default, may often have a choice of remedies. Under vary- ing circumstances, the following list is open to him: 1. He may treat the contract as rescinded, upon the default iNewhall v. Kingsbury, 131 Mass. agree to buy or pay. If he did pay, 445; Hurd v. Fleming, 34 Vt. 169; he obtained the goods; if he did not Lambert v. McCloud, 63 Cal. 162. pay, the vendor might recover them, 2 Harmon v. Goetter, 87 Ala. 325, 6 and this was held to be the extent of S. R. 93; Richardson Drug Co. v. his loss or liability. So in Rodgers Teasdall, 52 Neb. 698, 72 N. W. R. v. Bachman, 109 Cal. 552, 42 Pac. R 1028; Wiggins v. Snow, 89 Mich. 476, 448. 50 N. W. R. 991; Ryan v. Wayson, When the contract is in form a 108 Mich. 519, 66 N. W. R. 370. lease, and the lessee gives his notes 3 Thus, in Loomis v. Bragg, 50 for instalments of rent to fall due, Conn. 228, 47 Am. R. 638; Hine v. the lessor who reclaims the goods Roberts, 48 Conn. 267, 40 Am. R. 170 cannot recover on the notes falling (as see Beach's Appeal, 58 Conn. 464, due thereafter. Campbell Print. 20 Atl. R. 475), the vendee did not Press Co. v. Henkle, 19 D. C. 95. 503 §§ 616-618.] LAW OF SALE. [BOOK IT. of the buyer, and recover his goods. If he does this, he has no other remedy. 2. He may treat the contract as in force but broken by the vendee ; he may retake and keep the goods as his own, and, if the contract imposed upon the buyer an absolute obligation to buy, he may recover of the buyer damages for the breach of his agree- ment to buy and pay for the goods. The measure of damages will ordinarily be the difference between the contract price and the market value of the goods at the time and place of default. 3. He may, if the contract contains an unconditional agree- ment on the part of the vendee to pay, waive a return of the goods, treat the contract as executed on his own part, and re- cover from the vendee the agreed price of the goods. 4. He may, in some cases, if the contract permits it, without rescinding or terminating the contract, resume possession of the goods, hold them subject to the contract, and then enforce performance by the vendee, who, upon such performance, will be entitled to restoration of the goods. § 616. Election of remedy. — The remedies of the vendor are usually regarded as alternative and not cumulative. He has his choice, but, having elected to pursue one remedy, he cannot, it is said, afterwards abandon that and try another. §617. Rescission. — With respect of the first remedy suggested, — that of rescission, — it is clear that such a course defeats all further remedies under the contract. The vendor is not required, unless by reason of some express term of the contract, to go so far as to rescind the contract; he may ordi- narily deem it simply broken by the vendee, 1 and may sue for damages for its breach. If, however, he does treat it as re- scinded, he.is neither entitled to the price nor to damages; for the right to either flows from the contract, and the rescission wipes out the contract from the beginning. § 618. Recaption. — If the vendor has not rescinded, he has usually his choice of the second or the third remedies open i See Hayes v. Nashville (1897), 47 U. S. App. 713, 26 C. C. A. 59, 80 Fed. R. 641. 504 Cff. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 619. to him. He may treat the contract as broken by the vendee and may recover his property. If he does regain his property and keeps it as his own, he has lost simply the benefit of the bargain, — the profit he would have made, — and the dimin- ished value of the goods from use or deterioration. This loss he may recover in an action, not for the price, but for damages for the breach of the contract. § 619. Personal action. — If the vendor prefers neither to rescind nor to retake the property, but to rely on the personal responsibility of the vendee, he may do that, and may bring an action to recover the price as such, whenever there was an express or implied agreement by the vendee to buy and pay for the goods. 1 But the price is not ordinarily payable unless the title has passed; hence if the vendor chooses this remedy he clearly indicates his election to treat the sale as perfected, and thereby bars either a subsequent rescission of the contract or a reclamation of the property — unless the contract expressly permits him this double remedy, — even though he may not suc- ceed in his endeavor to collect the price. 2 Having thus elected 1 Bailey v. Hervey, 135 Mass. 172; Hervey, 135 Mass. 172, it appeared McRea v. Merrifield, 48 Ark. 160, 2 that plaintiff Bailey entered into a S. W. R. 780; Beach's Appeal, 58 Conn, contract with defendants Hervey & 464, 20 Atl. R. 475; Crompton v. Beach, Co., which recited that plaintiff had 62 Conn. 25, 25 Atl. R. 446, 18 L. R. A. " hired and received " from them 187; Seanor v. McLaughlin, 165 Pa. St. certain goods for which he agreed to 150, 30 Atl. R. 717; Holt Mfg. Co. v. pay them certain sums of money as Ewing, 109 Cal. 353, 42 Pac. R. 435; "rent" at stated times, and -the Richards v. The Schreiher Co., 98 balance " at a certain rate per month Iowa, 422, 67 N. W. R. 569; Johnson- "until paid;" that no title to the Brinkman Co. v. Railway Co., 126 goods should vest in him until he Mo. 344, 28 S. W. R. 870, 47 Am. St. R. had performed all the conditions of 675. the agreement, upon performance of A formal act of delivery or tender which the title should vest. Bailey of the goods, or specific waiver of further agreed in said contract "that the right to reclaim them, is not a if any default be made in the pay- condition precedent to an action for ment of the rent or any part thereof the price. Smith v. Barber, 153 Ind. as above specified, or if any default 322, 53 N. E. R. 1014 be made in the performance of any 2 See post, as to waiver of right to of the agreements herein contained, retake property, § 624. In Bailey v. my right to hold or retain said prop- 505 § 619.] LAW OF SALE. | BOOK IT. to affirm the sale and pass the title, the vendor loses all claim upon the goods, unless the contract specially provides other- wise, and no lien will be afterwards implied to secure the pay- ment of the price. erty or any part hereof shall wholly and determine " (62 Conn. 39). Bailey being subsequently in default, the sellers sued him for the price, and then reclaimed the goods, under the circumstances stated in the opin- ion. Bailey then brought this ac- tion for the conversion of the goods. The court said: "By the terms of the written agreement the plaintiff was bound at all events to pay to the defendants the full amount at which the goods were valued, and upon such payment the title was to vest in him. This payment, there- fore, constitutes the agreed price of the goods, and it is a misnomer to call it rent. The defendants would have no right to exact payment in full of the money and also to re- claim the goods. When the plaint- iff discontinued his payments on account, what was the legal position of the defendants? If it be assumed that they might, at their option, either reclaim the goods as their own property, without any obliga- tion to account for their proceeds or value to the plaintiff, or that they might collect the price in full, it is plain that they were not entitled to do both. They could not treat the transaction as a valid sale and an in- valid one at the same time. If they reclaimed their property it must be on the ground that they elected to treat the transaction as no sale. If they brought an action for the price they would thereby affirm it as a sale. Two inconsistent courses being open to them they must elect which they would pursue; and, electing one, they are debarred from the other. Re- claiming the goods would show an election to forego the right to re- cover the price. But, instead of re- claiming the goods in the first instance, they brought an action against Bailey for the price, made an attachment of his property by trustee process, entered their action in court, and he was defaulted. They were thereupon entitled to judgment against him. Under this state of things, the action was continued to a later term of court, and after the lapse of several months, and after the commencement of the second subsequent term of court, the defend- ants, without discontinuing their ac- tion, or giving any notice to Bailey of an intention to abandon that rem- edy, took possession of the goods; and, after this had been done, they proceeded in their action to judg- ment, and took out execution, upon which they collected a small sum from the trustee. They had thus made a decisive election to treat the transaction as a sale before reclaim- ing the goods; and, under such an election, the title passed to Bailey. Butler v. Hildreth,5 Met. 49; Arnold v. Richmond Iron Works, 1 Gray, 434,440; Heryford v. Davis, 102 U. S. 235, 246. For these reasons a major- ity of the court is of opinion that there must be judgment for the plaintiff." In Crompton v. Beach, 62 Conn. 25, 25 Atl. R. 446, 36 Am. St. R. 323, 18 L. R. A. 187, property was delivered 506 UI1. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 620, § 620. Does recovery of goods bar action for the price? — But, while it is thus generally true that an attempt to collect the price, as such, is deemed to be such an election of remedies as will bar a subsequent recaption of the goods, is the converse of the proposition true, and will a recaption of the goods bar a which was to become the property of the vendee upon the payment of a certain price for which he gave his note. It was also agreed that upon default the vendor should " have the right at any time to resume posses- sion of the machinery, and to enter the premises and remove the same as his own property; and if any por- tion of said note, or renewals thereof, shall remain unpaid when possession shall be so taken, . . . then the amount which may have been paid shall be for the use of said ma- chinery while in possession of the party of the second part, and said note shall then be canceled and ijircn up:' [Italics mine: F. R. M.] The buyer became insolvent and the seller first sued on the note and at- tached property, and afterwards made claim on the note against his estate and procured a dividend of twenty-five per cent. (See Beach's Appeal, 58 Conn. 464, 20 Atl. R. 47.1) The seller then sought to recover the property, but it was held that she had made an election of remedies by her efforts to recover the price and could therefore not recover the prop- erty. In Holt Mfg. Co. v. Ewing, 109 Cal. 353, 42 Pac. R. 435. there was a con- tract for the sale of harvesting ma- chinery for which the vendee gave his notes, and also agreed that if he made default the vendor might, at his option, without notice and with or without legal proceedings, take and retain the property, and all moneys paid by the vendee prior to such default should be compensation for the use of the machinery up to that time. The buyer died, in de- fault, and the notes, without refer- ence to the contract, were presented and allowed as claims against his estate. The seller afterwards sought to recover the machinery. It was held that the presentation and allow- ance of the claim was an elect In pursue the personal remedy, and that the property could not !»■ recovered. To like elfecl : Richards v. S ■hreiber, 98 towa, L22.67N.W. R. 569; Smith v. Ghlmore, 7 D. C. A pp. L92. Prosecuting a claim for the price to final judgment is an election. Smith v. Barber, L53 1ml. 332, 58 N. E. R. 1014. An attempt, though unsuccessful, to establish a material-man's lien for the property is a waiver of the right to retake it. Hickman v. Richburg (1899), 122 Ala. 688, 26 S. El L86. Where the seller sues for the price and attaches or levies upon t lie prop- erty in question as the property of the vendee, he thereby treats the (•out ract as absolute. Tanner Engine Co. v. Hall, 89 Ala. 628, 7 S. h\ 187; Montgomery Iron Works v. Smith, 98 Ala. 644, 18 S. \l. 525; Fuller v. Karnes, 108 Ala. 404, 1!) S. \l. 866; Al- bright v. Meredith, 58 Ohio St. L94, 50 N. E. R. 719. But in Matthews v. Lucia, 55 Vt. 308, where the seller at first sued and attached the goods, and then discon- tinued the suit and took the goods 507 620.] LAW OF SALE. [book IT. subsequent action for the price? The cases generally answer this question in the affirmative, though they often proceed upon different reasons and are not all capable of being reconciled. It is said in some of them that this is simply another case of elec- tion of remedies; that the vendor may either retake his goods or proceed for the price, and, if he does one of these things, he cannot afterwards do the other. 1 In other of the cases it is said that when the seller reclaims the property he destroys the consideration for which the promise to pay was given, and that therefore the promise is thenceforward nudum pactum? In under the contract, it was held that the action was not a conclusive elec- tion, citing Child v. Allen, 33 Vt. 476. In Thomason v. Lewis, 103 Ala. 426, 15 S. R. 830, a suit on the notes to judgment, but the judgment not being paid, was held not to be a con- clusive election which would bar the recovery of the property, where the contract was that the title was not to pass until the notes were paid in full; and the same ruling in a like case, where the rights of third per- sons had not intervened, was made in Campbell Printing Press Co. v. Rockaway Pub. Co., 56 N. J. L. 676, 29 Atl. R. 681. In Fuller v. Byrne, 102 Mich. 461, 60 N. W. R. 980, the agreement was that the property should remain the seller's until the price 4 ' and any judg- ment rendered thereon is paid in full." Held, that the title did not "pass until the judgment was paid. Kirkwood v. Hoxie, 95 Mich. 62, was cited. In Mississippi the seller may sue upon the note and replevy property at the same time, but he can have but one satisfaction. McPherson v. Acme Lumber Co., 70 Miss. 649, 12 S. R. 857. Where there was an absolute prom- ise to pay, and the contract stipulated that nothing should "constitute a defense or offset or delay prompt payment of this note in full at ma- turity," it was held that though the vendor had reclaimed and resold the property and applied the proceeds on the note, he could sue on the note for the balance. Dederick v. Wolfe, 68 Miss. 500, 9 S. R. 350. In Georgia a recovery of judgment and its part payment do not bar seller of right of action against the goods for the balance. Jones v. Snider, 99 Ga. 276, 25 S. E. R. 668; Bowen v. Frick, 75 Ga. 786. A transfer to third persons, apart from the contract itself, of the notes given for the price, is an election to make the sale absolute. Merchants', etc. Bank v. Thomas, 69 Tex. 237; Parlin v. Harrell, 8 Tex. Civ. App. 368, 27 S. W. R. 1087. 1 Thus in Dowdell v. Empire Furn. Co., 84 Ala. 316, it is said that a claim upon the purchase price after the property has been retaken is an an- tagonistic position which cannot be maintained. 2 So held in Minnesota. Aultman v. Olson, 43 Minn. 409, 45 N. W. R. 852. following Minneapolis Harvester Works v. Hally, 27 Minn. 495, 8 N. W. R. 597, and distinguishing Third Nat. Bank v. Armstrong, 25 Minn. 530. See 508 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 620. still other cases it is held that, however it may be in name, the reclamation of the property is, in fact, a rescission of the con- tract, upon which thereafter no action can be maintained. 1 In other cases still, although these proceed upon a different and also Perkins v. Grobben, 116 Mich. 172, 74 N. W. R 469, 39 L. R. A. 815, 72 Am. St. R. 512. ^lius in Seanor v. McLaughlin, 165 Pa. St. 150, 30 Atl. R. 717, 32 L. R, A. 467, it appeared that, under a con- tract in form a lease, articles had been delivered which the lessee might buy, and, if he did, all rent paid was to apply on the purchase price. He covenanted to pay the "rent'' and gave a judgment bond as collateral. It was also stipulated that in case of default the property was to be returned. The " lessee " paid one instalment, but then de- faulted, and the " lessors " retook the property, refusing to surrender the bond. They then caused judgment to be entered against the " lessee " on the judgment bond, and the action was to determine the validity of that judgment. The court said that the lessors had two remedies or securi- ties. They had reserved the title, and they had the judgment bond. " Either remedy was complete in it- self, and the plaintiffs, on default, could adopt either; but they were not cumulative; they coidd not adopt both, unless it was plainly expressed in the contract or a necessary impli- cation from its terms. The words of this contract negative such a con- struction. The defendant stipulates that ' if default be made ... I hereby covenant and agree to return said machines . . . and they or their agent may resume actual pos- session of the same.' That was the penalty for default on the primary obligation, and repossession of the machines the discharge of it. On de- fault of payment the plaintiffs were not bound to accept the machine or take possession of it; the} - could have entered judgment on the bond, levied on the machine and any other prop- erty of the defendant in satisfaction of their demand. But they rescinded the contract by retaking into their possession the subject of it, which they had a right to do, and then im- mediately entered their bond and is- sued execution to levy on other prop- erty of defendant, which they had no right to do, for the contract or obligation, to which the bond was collateral, no longer existed. It ought to have been surrendered to defend- ant when he demanded it at the time plaintiffs took away the machine. " The contract in this case is not essentially different from those in Campbell v. Hickok, 140 Pa. St, 290, and Scott v. Hough, 151 Pa. St. 630, in both of which cases we held that the remedies were distinct and not cu- mulative. If the bailor rescinded by repossessing himself of the property, the right of personal action against the bailee was at an end. That the words ' rescission ' or ' rescind ' do not occur in this contract is not ma- terial. Rescission is a fact; the word itself may be used by the contract- ing parties to indicate the right, but other words may be adopted to point out that course of conduct of the par- ties which shall constitute the fact of rescission. ''The decision in Campbell v. 509 § 621.] LAW OF SALE. [BOOK II. wholly tenable theory, it has been held that the contract im- posed upon the buyer no obligation to buy and pay, but simply gave him an option to do so; and if he did not pay, the seller's only remedy was to reclaim the goods. 1 § 621. . But does it necessarily follow that a recovery of the property destroys the consideration for the contract, or in Hickok. sujira, was based on the stip- ulation of the contract that the lessor had the right, on lessee's failure to pay any instalment, to repossess himself of the property, and, having exercised this right, the contract was rescinded in fact, and there was an end of personal obligation on part of lessee. While the word 'rescinded' is used in that contract, the right to rescind and the act necessary to a rescission are plainly expressed with- out it, and the interpretation was fully warranted even if the word had not been used. " Here the plaintiffs, in effect, in their contract, stipulated that on de- fault of payment of rental they should have the right to take the machine back to make good the de- fault; there was default, and because of it they took back the machine. This was both a right to rescind and the exercise of the right, or a rescis- sion in fact." (But see Durr v. Rep- logle, 167 Pa. St. 347.) Seanor v. McLaughlin is cited and followed in Perkins v. Grobben, 116 Mich. 172, 74 N. W. R. 469, 39 L. R. A. 815, where it is said: "The contract provides for two way of enforcing it. The plaintiff might sue on the note and retain the property [title] until the judgment was paid, or might re- take the property, and treat the pay- ments up to that time made as pay- ments for the use, wear and tear of the machineiy, but he cannot do both. The plaintiff lias taken pos- session of the property as the owner thereof. What have the defendants had as the consideration of the note ? They acquired no title or interest in the property, and could not until they paid the notes. They could not call the plaintiff to account for a disposi- tion of the property, if he has made any, because they had no interest whatever in it, having made default in the payment of the notes, the vendor having exercised his right under the contract to take posses- sion. The defendants have simply had for the notes the use of the prop- erty, and for that use they have paid the $800, which the contract gives the vendor the right to so apply. The vendor is not entitled to the title and possession of the property, and to be paid for it also." Where the vendor reclaims the property and then sells it as his own. or otherwise appropriates the same to his own use, he does, in effect, rescind the contract, and he cannot afterwards recover the price. Tufts v. Brace (1899), 103 Wis. 341, 79 N. W. R. 414 See also Glisson v. Heggie (1898), 105 Ga. 30, 31 S. E. R. 118. i Hine v. Roberts, 48 Conn. 267, 40 Am. R. 170; Loomis v. Bragg, 50 Conn. 228, 47 Am. R. 638; Beach's Appeal, 58 Conn. 464, 20 Atl. R. 475; Rodgers v. Bachman, 109 CaL 552, 42 Pac. R. 448. 510 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 622, G23. effect rescinds it? As has been seen before, these agreements may usually be separated into two parts — an executory agree- ment to sell, and a bailment of the property. Either of these is a valid contract and may stand alone. May not the latter be withdrawn without necessarily defeating the former? Clearly it may be by express terms of the contract; but without express provisions to that effect, may not the contract be so interpreted as to permit of this result? This must depend upon the con- tract. If by a fair interpretation of the contract the seller may, upon default in payment or otherwise, have a right to resume possession, may he not do so without rescinding, but holding the property still subject to the contract, ready to be restored if payment is made ? § 622, . In such a case 1 as this the court said : " The con- tract provides expressly that the title to the property shall con- tinue to remain in plaintiff until the apparatus is paid for, and that, in case of the non-payment of either of the notes at maturity, the plaintiff shall have the right to take possession of the prop- erty ; but it contains no provision that such act shall operate as a rescission of the contract or a forfeiture of the payments thereon. The reduction of the property to possession by the plaintiff does not excuse performance by defendant, as defend- ant has the right, upon payment of the amount due, to a return of the property. Plaintiff had the right, under the express conditions of the contract, to secure himself by taking posses- sion, and the exercise of this right under the contract did not entitle the defendant to rescind the contract, or to a recovery of the amount paid, or to a delivery to him of the unpaid notes; neither did it give him any lien upon the property for the amount paid by him." § 623. . And where the contract provided that the seller, if he should deem himself insecure, might take possession of the property, even before the debt was due, and might sell the 1 Tufts v. D'Arcambal, 85 Mich. 185, R. A. 446. See also Latham v. Sum- 48 N. W. R. 497, 24 Am. St. R. 79, 12 L. ner, 89 111. 233, 31 Am. R. 79. 511 § 624.] LAW OF SALE. [BOOK II. property at public or private sale, and, after applying the net proceeds upon the debt, recover the unpaid balance, it was held that this was a valid and binding contract by which the parties must abide. 1 §624. Waiver by vendor of right to retake property. The conditional vendor may not only elect some other remedy, but he may also, by his conduct, waive or lose his right to re- take the goods in case of default, both as against the condi- tional purchaser and those who succeed to his rights, and thus be remitted to his remedy against the person merely. 2 This question of waiver has been already touched upon, 3 and no general rule can be laid down in reference to it, other than that a waiver may be inferred wherever the conduct of the conditional vendor is inconsistent with the idea that he still expects to enforce a return of the goods if the conditions be not performed. 4 Whether such is the case or not is a question of fact for the jury. 5 1 McCormick Harv. Mack Co. v. Koch (1899), 8 Okl. 374, 58 Pac. R. 626. To tbe same effect: Dederick v. Wolfe (1891), 68 Miss. 500, 9 S. R. 350. 2 Robbins v. Phillips, 68 Mo. 100. 3 See ante, § 609. 4 A vendor of personal property who reserves title until the pur- chase price is paid does not waive his right to retake the property on default by advising a creditor of the vendee with knowledge of the reser- vation to take a mortgage upon the property. Ames Iron Works v. Rich- ardson, 55 Ark. 642, 18 S. W. R. 381. Taking a note for an instalment due, the note being unpaid, is not a waiver of the right to retake. Levan v. Wil- ten, 135 Pa. St. 61, 19 Atl. R. 945. The fact that the vendee is permitted to manufacture into goods materials sold conditionally, and to sell the goods upon the express agreement that the proceeds shall be applied upon the price, is not a waiver. Pren- tiss Tool Co. v. Schirmer, 136 N. Y. 305, 32 N. E. R 849. Taking a chat- tel mortgage upon other property is not a waiver. Montgomery Iron Works v. Smith, 98 Ala. 644, 13 S. R 525; Cherry v. Arthur, 5 Wash. 787, 32 Pac. R. 744; Petty place v. Manu- facturing Co., 103 Mich. 155, 61 N. W. R. 266. Taking and foreclosing a mortgage on the property itself is a waiver (Hinchman v. Point Defiance Ry. Co., 14 Wash. 349, 44 Pac. R. 8G7), but not sGoslen v. Campbell, 88 Me. 450. 34 Atl. I;. 265; Quimby v. Lowell, 89 Me. 517. 36 Atl. R. 902; Peabody v. Ma- guire, 79 Me. 572, 12 Atl. R 630; Wing v. Thompson, 78 Wis. 256, 47 N. W. R 606; Page v. Edwards, 64 Vt. 124, 23 Atl. R 917. 512 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 625, 626. §625. Yendee lias usually no election. — The choice of courses of conduct in these cases is usually the privilege of the seller only. Contracts may undoubtedly be so framed as to give to the conditional purchaser the option either to return the goods and be released from his obligation to pay for them, or to keep and pay for them, and such a construction has been put upon contracts in a few cases, 1 although other courts upon the same contracts would probably have reached different con- clusions. In the great majority of cases, however, the obliga- tion of the conditional purchaser to buy and pay for the goods is a fixed and absolute one, from which he cannot relieve him- self by tendering back the goods. 2 And, on the other hand, the vendor's right of election, considered in the preceding sec- tions, does not arise until the vendee is in default; up to that time the obligation of the former to sell is usually as absolute and irrevocable as that of the latter to buy. § 626. Vendor's right to take possession upon default — Entry upon premises — License. — It is customary, in con- where the property is then redeliv- pear to be the unconditional owner ered to the vendee under the original and to sell the goods as such (Foster contract (Goodkind v. Gilliam, 19 v. Warner, 49 Mich. 641, 14 N. W. R. Mont. 385, 48 Pac. R. 548), nor where 673), and where the vendor led cred- the mortgage is taken on this and itors to believe the sale was absolute, other property as further security, Brayton v. Harding, 56 111. App. 362. with no intention of waiving the ] Such was claimed and tacitly ad- condition. Page v. Edwards, 64 Vt. mitted in Beach's Appeal, 58 Conn. 124. Endeavoring, though without 464, 20 Atl. R. 475, to be the effect of success,- to establish a material-man's Hine v. Roberts, 48 Conn. 267, 40 Am. lien for the price, is a waiver. Hick- R. 170, and Loomis v. Bragg, 50 Conn. man v. Richburg (1899), 122 Ala. 638, 228, 47 Am. R. 638. So also Rodgers 26 S. R. 136. v. Bachman, 109 Cal. 552, 42 Pac. R. But where the vendor knows that 448. See also the contracts of " Sale logs contracted to be sold condi- or Return," post, $ 675 et seq. tionally are being removed to the 2 Appleton v. Norwalk Library As- vendee's mill, sawed into lumber and sociation, 53 Conn. 4, 22 Atl. R. 681; sold to third persons for removal by Beach's Appeal, supra; Geist v. Stier, them, and does not object, there is 134 Pa. St. 216, 19 Atl. R 505; Finlay evidence of waiver to go to the jury. v. Ludden & Bates South. Music Wing v. Thompson, 78 Wis. 256. And House (1898), 105 Ga. 264, 31 S. E. R. so where the vendor, through his 180. agents, permitted the vendee to ap- 33 513 626.] LAW OF SALE. [BOOK II. tracts of this nature, to expressly stipulate that the vendor, in case of the buyer's default, may resume possession of the goods, and that for this purpose he may enter upon the buyer's prem- ises and remove them. But even in the absence of such an ex- press stipulation — there being no agreement to the contrary, — the seller would have the right to resume possession ; and if the goods had been placed by the buyer upon his premises, the seller would, it is held, have an implied but irrevocable license to enter upon the buyer's premises to remove the goods. 1 1 Heath v. Randall, 4 Cush. (Mass.) 195. The right reserved by the contract to enter upon the buyer's premises to retake the goods is irrevocable. Walsh v. Taylor, 39 Md. 592. In Smith v. Hale (1893), 158 Mass. 178, 33 N. E. R. 493, 35 Am. St. R. 485, there had been an exchange of a buggy for a heifer. The buggy was war- ranted, and there was a breach of the warranty under circumstances en- titling the person who acquired the buggy to rescind. She tendered back the buggy and demanded the heifer, which was refused. She thereupon entered upon the other's land and took the heifer, and this action re- sulted. The court said: "The most important question in the case is whether, on these facts, the defend- ant had a right to enter upon the plaintiff's premises and reclaim her heifer. We are of opinion that she had. It is true that it lias been held tiiat, where nothing appears except that the goods of one person are upon the land of another, the owner of the goods has no implied license from the owner of the land to enter and take them away. Anthony v. Haneys, 8 Bing. 186. And this rule has been applied to the case of a mortgage of personal property before foreclos- ure, if the goods have been left in the mortgagor's possession. Mc- Leod v. Jones, 105 Mass. 403, 7 Am. R. 539. But after foreclosure the mortgagee has an implied irrevo- cable license to enter ami carry away his goods. McNeal v. Emerson, 15 Gray, 384. Where a piano was hired for an indefinite time, with no agree- ment giving to the owner a right to enter the hirer's premises and re- claim the piano without demand or notice, it was held that he had no implied license to do so. Smith v. Pierce, 110 Mass. 35. But where one sells personal property which is on his own land, the purchaser has an implied license to enter and take it away. Nettleton v. Sikes, 8 Mete. 34; Giles v. Simonds, 15 Gray, 441, 77 Am. Dec. 373. In the present case, on the facts assumed, the defendant had a right to the possession of her heifer under her bargain with the plaintiff, and it was the plaintiffs duty to restore it, and the defendant had demanded it, and the plaintiff had refused to deliver it, and in this state of things, under the agreement be- tween them, the law gave the defend- ant a right to enter and take away the heifer in the way in which she did it. Drake v. Wells, 11 Allen, 141 ; Heath v. Randall, 4 Cush. 195; Cooley on Torts, 50 et seq." ,11 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 627. The seller may act in person or by his agent, and it is not necessary that the agent should have or should exhibit any authority in writing. 1 If the seller goes in person, he may take with him such agents or assistants as are necessary to remove the goods. 2 § 627. . Acting in pursuance of such a license, and ex- ercising his right at a reasonable time and in a reasonable man- ner, the seller needs no legal process or other warrant, and is not liable as a trespasser for his act. 3 If, however, he seeks to enter at an unreasonable time or in an unreasonable manner, he may lawfully be resisted, and will make himself liable in damages if he persists. 4 i North v. Williams, 120 Pa. St. 109, 13 Atl. R. 723, 6 Am. St. R. 695. 2 Walsh v. Taylor, 39 Md. 592; Drury v. Hervey, 126 Mass. 519. 3 Walsh v. Taylor, Heath v. Ran- dall, North v. Williams, siqwa; Boyd v. Lofton, 34 Ga. 494; Watertown Steam Engine Co. v. Davis, 5 Houst. (Del.) 192. The seller, acting in a proper man- ner, may not only peaceably enter the buyer's house, but he may go into those rooms or portions of it where he would be likely to find his goods, without being thereby a trespasser. Walsh v. Taylor, supra. 4 In Drury v. Hervey, 126 Mass. 519, it appeared that the purchaser of the chattel rented a room in the house of a third person and there kept the chattel. The contract con- tained the usual provision giving the seller the right to enter and take the chattel upon default. The buyer being in default, the seller sent his servants to get the chattel. They found that the buyer was not in, and that the owner of the house was away, but his wife was pres- ent. They showed her the contract, 51 stated their business, and sought ad- mission. She asked them to wait two hours, when the buyer would be back, but they declined, and, push- ing her away, went in and took the chattel. She sued the seller for dam- ages for the assault, and it was held that her request to the servants to wait was a reasonable one and that their act was wrongful. In Van Wren v. Flynn, 34 La. Ann. 1158, furniture had been sold under the condition that if not paid for it could be retaken, and was placed in the buyer's house. Shortly before the first payment fell due the buyer's wife became sick, and he was obliged temporarily to take her elsewhere. Before going he informed the seller of the facts, and stated that upon his return he would pay; and to this the seller made no objection. The buy- er's absence was unexpectedly pro- tracted by his wife's illness, so that he did not return until nearly a month after the last payment was due. Not hearing anything further from the buyer, the seller went one day with men and wagon to the buy- er's house, which other members of 628.] LAW OF SALE. [BOOK II. The law, moreover, does not encourage a forcible assertion of one's rights, and even though the seller may have an irrev- ocable license, if he cannot enter without violence or a breach of the peace, he should desist from his efforts and avail himself of his legal remedies. 1 § 628. Necessity of demand before recovery of goods. — Upon default by the buyer his right to the further possession of the his family were occupying, stated that he had come for the furniture, and, disregarding their statement that the buyer was expected and their request that he defer until the buyer returned, took away the fur- niture. That night the buyer re- turned with his invalid wife and children and found their sleeping apartments denuded of furniture, so that they had to seek accommoda- tions elsewhere. The buyer sued the seller for damages and was permitted to recover. "The agreement estab- lished on this record," said the court, "cannot shield the conduct of the defendant. It does not purport, in terms, to confer upon the defendant the right to enter the house of plaint- iff in his absence without his con- sent and without notice and carry off its contents. An agreement con- ferring such extraordinary power would need to be so clearly worded and proven as to leave nothing to implication. The gi'ant of the simple right to retake his furniture on non- payment of the price cannot be con- strued to embrace such power." In North v. Williams, 120 Pa. St. 109. 13 Atl. R. 723, 6 Am. St. R. 695, supra, the contract for the sale of a piano provided that in case of default the seller or his agent might '"enter into and upon any premises where said piano may be, and without let or hindrance take away the same." The buyer being in default, the seller sent his agent to take away the piano. The agent rang the bell and was ad- mitted to or entered the entry or vestibule (the case does not disclose by whom he was admitted). Here the buyer met the agent and asked him what he wanted, and the agent replied that he had come to tune the piano. The buyer asked the agent to wait wliile he went to call his wife. While the buyer was thus gone, the agent, having apparently admitted other servants of the seller, went with them into the parlor, where the piano was, and began to remote it. The buyer returning protested, but they took the piano away. The buyer sued the seller in trespass, con- tending that his agent had obtained permission by a subterfuge and that his acts were a trespass. The court, however, held that as the seller had a right to enter and remove the piano, the fact that the agent gained ad- mission by a false reason did not destroy the right. "If a citizen de- sired to see another upon business which he knew to be unpleasant to the latter," said the court, "and chose to assign some other than the real reason for asking admission, he certainly would not become a tres- passer merely because he failed to give the true reason." !Drury v. Hervey, 126 Mass. 519; Churchill v. Hulbert, 110 Mass. 42. il6 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ C28. goods ordinarily ceases, and the seller is again invested not only with the title but with the right to the immediate possession of the goods. Except, therefore, in those cases, already noticed, 1 in which the vendor has permitted the vendee to believe that a previous default will not be insisted upon, and those in which the contract by its terms requires a demand, 2 it is usually held, that a demand for the goods is not necessary to entitle the vendor to retake the goods from the vendee upon default or to maintain replevin for their recovery. 3 Some cases, however, deem a demand necessary. 4 i See ante, §§ 609, 634 2 In Wheeler & Wilson Mfg. Co. v. Teetzlaff, 53 Wis. 211, the court said: " The contract says the appellant [the seller] may, at his option, take the machine away if the payments are not made according to the terms of the contract. A fair construction of this contract would require the ap- pellant to give notice to the respond- ent that it would exercise its option to take away the machine, on ac- count of the non-payment of the purchase-money, before an action could be commenced to get posses- sion thereof. A demand of posses- sion, or notice to the respondent that the company would exercise its op- tion to take possession of the ma- chine, was especially necessary after the company had failed to take im- mediate advantage of the provision in the contract, and suffered the ma- chine to remain in the respondent's possession for several months after such failure, during all that time de- manding payment of the $5 claimed to be due. Under such circum- stances, if the appellant determined to avail itself of the forfeiture of the money paid, and assert its right to the possession and ownership of the machine, notwithstanding it had re- ceived eight-ninths of the purchase- money, it was clearly its duty to give the respondent unequivocal notice of such determination on its part before exercising that right. Smith v. New- land, 9 Hun (N. Y.), 553; Johnston v. Whittemore, 27 Mich. 463; Giddey v. Altaian, 27 Mich. 206; Deyoe v. Jami- son, 33 Mich. 94; Cushman v. Jewell, 7 Hun, 525; Hutchings v. Hunger, 41 N. Y. 155. With reference to the first portion of this holding, its soundness may be open to question; upon the latter ground it is in accord with many cases elsewhere. 3 In Hughes v. Kelly, 40 Conn. 148, it appeared that Hughes had con- tracted, under the form of a lease, to sell certain property to one Spreyer. Spreyer paid part but was in default 4 Thus in Michigan a previous de- mand, where the buyer was in law- ful possession of the chattel "and had nearly paid for it," was held necessary. New Home Sewing Mach. Co. v. Bothane, 70 Mich. 443, 38 N. W. R. 326; and in Illinois. Hamilton v. Singer Mfg. Co., 54 111. 370. So also Nattin v. Riley, 54 Ark. 30, 14 S. W. R. 1100. Davis v. Emery, 11 N. H. 230, which so held, is distinguished in Proctor v. Tilton, supra. 517 § 628.] LAW OF SALE. [BOOK II. And where the goods have, without right, been transferred by the original vendee to a third person, the vendor may also, as to several payments, when the property was attached by Kelly, a creditor of Spreyer, as the property of the latter. Hughes brought re- plevin against Kelly, having first de- manded of him a return of the prop- erty, which was refused. It was contended that as Hughes had not demanded the property of Spreyer he had still the right of possession, and therefore Hughes could not maintain replevin. To this the court replied: "By the terms of the contract Hughes was at liberty, on the neglect of Spreyer to pay, to take the prop- erty into his possession wherever found. As the contract says noth- ing of any demand to be made pre- vious to taking possession on default of payment, we find no warrant for interpolating such a provision into the contract." In Proctor v. Tilton, 65 N. H. 3, 17 Atl. R. 638, Proctor was suing Tilton, a deputy sheriff, for taking on a writ of replevin, at the suit of one Wink- ley, a horse from the possession of Proctor. Tilton defended on the ground that Winkley at the date of the replevin writ was entitled to pos- session. The horse had been sold conditionally by Winkley to Proctor, who, though often requested, had paid no part of the price. Said the court: " By the terms of the contract Proctor had no title to the horse. He had the possession with the priv- ilege of acquiring a title by payment within a reasonable time. Upon his failure to make such payment in a reasonable time his right to the pos- session of the horse terminated, and both the right of property and the right of possession were in Winkley, and he had the right to take the horse wherever he could find it. As Proctor had no right to the posses- sion against Winkley no demand was' necessary. Bailey v. Colby, 34 N. H. 29; McFarland v. Farmer, 42 N. H. 386, 390. The case differs from Davis v. Emery, 11 N. H. 230, where it was held that a demand and a reasonable notice to surrender the property or perfect the title was necessary, be- cause by the terms of the contract the bailee had an election whether he would buy or not. So also in Kim- ball v. Farnum. 61 N. H. 348, a de- mand was held necessary because the time of payment had been ex- tended with an understanding that the vendee might pay when he could, and therefore the vendee's possession was lawful." Where goods are sold for cash or a note upon delivery, and delivery is obtained without paying the cash or giving the note, the vendor, who has not waived it, has the right to regain his goods, and no previous demand is necessary. Salomon v. Hathaway, 126 Mass. 482; Stone v. Perry, 60 Me. 48. It is immaterial to a third person claiming rights in the property whether the seller made a demand for it before retaking it from the vendee. Moses v. Rogers, 62 Vt. 84, 19 Atl. R. 118. If demand before replevin were necessary, the fact that the buyer has secreted himself to prevent a de- mand, or has left the jurisdiction, or denies the seller's rights, will excuse the want of demand. Wall v. De Mitkiewioz, 9 D. C. App. 109. Where the vendor has taken peace- 518 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ G29. without demand, recover the goods or their value from such third person, even though he is a bonaf.de purchaser for value. 1 § 629. Return of payments if property retaken by seller. — Whether payments already made upon the price by the pur- chaser are to be returned to him in case, for a later default, the goods are retaken by the seller, is a question which has given rise to some difficulty. If the contract be entirely rescinded and avoided from the beginning, the seller, it is held, must put the buyer in statu quo, by restoring to him what he has parted with upon the contract. 2 But, as has been seen, it is not usually able possession of the property, but the vendee retakes it with force, the vendor need make no demand before replevying it. Hyland v. Bohn Mfg. Co., 92 Wis. 157, 65 N. W. R 170. 1 Gilmore v. Newton, 9 Allen (Mass.), 171, 85 Am. Dec. 749; Carter v. King- man, 103 Mass. 517, (In this case it was a condition of the contract that the goods should not be sold or re- moved without the vendor's consent. Having been sold to and removed by a third person, he was held liable to the vendor as for a con version, though he had acted in good faith and had parted with the goods before a de- mand was made upon him.) Galvin v. Bacon, 11 Me. 28; Prime v. Cobb, 63 Me. 200. 2 Thus in Ketchum v. Brennan, 53 Miss. 596. where the vendee had resold the property and the vendor brought replevin for it, the court said: "A rescission of the contract by the plaintiff was a condition precedent to his right to sue for the property; and, to rescind, it was his duty to re- turn or offer to return to his vendee what had been paid on the contract of sale. This he did." But see Duke v. Shackleford, 56 Miss. 552, where this statement is explained and modi- fied, if not overruled. In Drew v. Pedlar, 87 Cal. 443, 25 Pac. R. 749, 22 Am. St. R. 257, a case of sale of land with a stipulation for forfeiture, in which the buyer, after making a payment of §1,000, de- faulted until after the stipulated time, and then tendered perform- ance, which was refused, the court said: " From the time defendants re- fused to accept payment and execute a deed, the plaintiff has considered the contract rescinded and bases this action partly upon that ground, his complaint stating facts from which a rescission is a necessary inference. Under these circumstances the plaintiff was entitled to recover the one thousand dollars paid by him, less such actual damages as may have been sustained by the defend- ants by plaintiff's breach of the con- tract. Grey v. Tubbs, 43 Cal. 359; Cleary v. Folger, 84 Cal. 316, 18 Am. St. R. 187." In Latham v. Davis, 44 Fed. R. 862, it is said that the better rule is " that in reclaiming the property the seller rescinds the contract in so far as it has been executed, and is thereupon bound to restore to the buyer any- thing that he may have received in the way of payment." Citing Hamil- ton v. Singer Mfg. Co., 54 111. 370; 519 629.] LAW OF SALE. [book ir. necessary for the seller to go so far as to rescind the contract; ! he may retake the property, in case of a default, in pursuance of the contract and by its authority, and where he does so it is well settled that, unless the contract itself or some statute Hine v. Roberts, 48 Conn. 267, 40 Am. R. 170; Preston v. Whitney, 23 Mich. 260, — sed qucere. In Brewster v. Wooster (1892), 131 N. Y. 473, 30 N. E. R. 489, there seems to have been a clear case of rescis- sion. i In Tufts v. D'Arcambal, 85 Mich. 185, 48 N. W. R. 497, 24 Am. St. R. 79, 12 L. R. A. 446, the condition was that the title should remain in the seller until notes given for the price were paid, and that the seller should have the right, in case of default, "without process of law, to enter and retake immediate possession of said property, wherever it may be, and remove the same." The action was replevin to regain possession of the property from the buyer in de- fault, and the buyer sought to im- press upon the property a lien for the amount he had paid upon it. The court said: "It will be observed that the contract here does not pro- vide for a rescission thereof before plaintiff should have the right to re- duce the property to his possession. nor does it provide that the taking of possession should rescind the con- tract or work i forfeiture of the amount paid upon the apparatus, but the plaintiff treats the contract as still existing and executory. The contract provides expressly that the title to the property shall continue to remain in plaintiff until the ap- paratus is paid for, and that, in case of the non-payment of either of the notes at maturity, the plaintiff should have the right to take possession of the property; but it contains no pro- vision that such act shall operate as a rescission of the contract or a for- feiture of the payments thereon. The reduction of the property to pos- session by plaintiff does not excuse performance by defendant, as defend- ant has the right, upon payment of the amount due, to a return of the property. Plaintiff had the right, under the express conditions of the contract, to secure himself by taking possession, and the exercise of this right under the contract did not en- title the defendant to rescind the contract, or to a recovery of the amount paid, or to a delivery to him of the unpaid notes; neither did it give him any lien upon the property for the amount paid by him." Declaring contract " void." — It is a common provision in contracts of this nature that, in case of default, the seller shall have the right to de- clare the contract "void," recover the property, and retain what lias been paid upon it. What do the par- ties mean by declaring the contract void? As of what time does it be- come void? Is this ecmivalent to a rescission or a termination merely? If a contract is void it is of no effect, and no rights can be based upon it by either party. If it is rescinded the parties must ordinarily be placed in statu quo. If it is terminated so far as the vendee's right to further possession and longer time in which to pay are concerned, this would not be inconsistent with the seller's rem- edy under the contractor with rights 520 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 029. expressly requires it, he is not obliged to restore what he has received, as a condition precedent to resuming possession. 1 Statutes, however, in some States do require it. 2 still remaining in the buyer. Ordi- narily a provision in a contract that it shall be " void " in a certain con- tingency means only that it may be treated as voidable. In Preston v. Whitney, 23 Mich. 260, the stipula- tion was that on default the seller should be entitled to possession, " and said agreement to sell . . . shall become void." Said the court: "From the time of the taking of possession the agreement for the sale may be treated as void, or more properly as terminated." In Johnston v. Whitte- more, 27 Mich. 463, the provision was that in case of default the seller might declare the agreement void, recover the property, and retain the payments already made as damages for the non-performance of the agree- ment. See also Hayes v. Nashville, 47 U. S. App. 713. 1 Unless the contract so provides, a return of what has been received under it is not a conditiou prece- dent to the vendor's right to recover the property on the seller's default. " Strictly speaking, his action in re- taking the property is not a rescission of the contract, but in pursuance of it." Fairbanks v. Malloy, 16 111. App. 277. Retaking the property by the seller on default is "in affirmance, and not in avoidance, of the con- tract, and the seller having per- formed on his part, the purchaser could have no right to rescind it or to treat it as rescinded." Singer Mfg. Co. v. Treadway. 4 III. App. 57. To same effect: Latham v. Sumner, 89 111. 233, 31 Am. R. 79; Tufts v. D'Arcambal. siqira; White v. Oakes, 88 Me. 367, 34 Atl. R. 175, 32 L. R. A. 592; Duke v. Shackleford, 56 Miss. 552. " The plaintiff [seller] was entitled to the possession of the property without paying back anything to the defendant; and whether the de- fendant should ever receive any- thing back, or should be paid any- thing for what he had already paid to the plaintiff, is a question for fur- ther consideration." Fleck v. War- ner, 25 Kan. 492. 2 Thus, in Ohio the vendor cannot retake the property without tenclei'- ing back to the purchaser the amount paid by him "after deducting there- from a reasonable compensation for the use of such property." Acts 1885, p. 239, § 2; Speyer v. Baker, 59 Ohio St. 11, 51 N. E. R. 442; Albright v. Meredith, 58 Ohio St. 194, 50 N. E. R. 719. This statute is constitutional. Weil v. State, 46 Ohio St. 450, 21 N. E. R. 643. A substantially similar statute ex- ists in Missouri. R. S. 1879, § 2508. In Vermont and Tennessee the vendee's rights are protected by re- quiring a foreclosure by public sale. See French v. Osmer, 67 Vt, 427; Lieberman v. Puckett, 94 Tenn. 273. In Louisiana purchasers of sewing machines are protected. Jenks v. Howe Sewing Mach. Co., 34 La. Ann. 1241. In Georgia, under the code and practice, the court may " mould the verdict so as to do full justice to the parties, and in the same manner as a decree in equity." Hays v. Jordan, 85 Ga. 741, 11 S. E. R. 833, 9 L. R. A. 373. 521 §§ 630-632.] LA.W OF SALE. [book II. § 630. Equities of purchaser.— Whether the buyer, after such retaking,— not a rescission, — has any rights or equities by reason of his payments, which maybe made effectual by any means, is also a question of some uncertainty. It is usual, in the contract, to expressly stipulate that payments al- ready made shall be forfeited to the seller, either as compensa- tion for use and depreciation or as liquidated damages for the breach of the contract. Stipulations of this nature, when clearly declared and reasonable in amount, are constantly en- forced under the well settled rules governing liquidated dam- ages; 1 but even where the stipulation is not thus reasonable, it is difficult to see what standing the vendee, in default, can have in a court of law to recover from the vendor the excess after satisfying the latter's reasonable demands. 2 A court of equity may give relief, 3 but an adjustment of equities cannot be worked out in an action of replevin brought by the vendor to recover the goods upon default, 4 though trover may be found more flexible. 5 §631. How when action against third person.— In actions by the vendor against third persons to recover as for a conversion of the goods by them, it is held that he may recover the full value of the goods without any deduction for what may have been paid by the original vendee. 6 §632. Return of notes received.— The buyer's note for the price is often made a part of the contract of sale. Fre- quently the stipulations showing the conditional character of 1 See, e. g.. Wheeler & Wilson Mfg. Mich. 463, where, in an action of Co. v. Jacobs, 2 N. Y. Misc. 236. trover, the seller was permitted to 2 See Lowrie v. Gourlay, 112 Mich, recover only according to his inter- 641, 71 N. W. R. 174; Satterlee v. est. Cronkhite, 114 Mich. 634, 72 N. W. R. 6 Angier v. Taunton Paper Co., 1 616. Gray (Mass.), 621, 61 Am. Dec. 436; 3 See Lowrie v. Gourlay, supra. Carter v. Kingman, 103 Mass. 517; * Ryan v. Wayson, 108 Mich. 519, Colcord v. McDonald, 128 Mass. 470; 66 N. W. R. 370; Thirlby v. Rainbow, Brown v. Haynes, 52 Me. 578; Everett 93 Mich. 164, 53 N. W. R. 159. v. Hall, 67 Me. 497. 5 See Johnston v. Whittemore, 27 522 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§633,634. the contract of sale are incorporated in or attached to the note; on other occasions the note is physically entirely separate. "Whether such a note is to be returned upon a recovery of the property depends largely upon the considerations mentioned in the preceding sections. If the note were taken as payment, " either absolute or conditional," it was said in one case, 1 " it might well be argued that, as the plaintiffs [the sellers] were not entitled both to the property and to the purchase price of the property, they would be put to their election, and, if they insisted upon recaption of the property, they could only take it after a surrender of the notes." So, where the note and the contract are separate, a transfer of the note, apart from the contract, thus putting it out of the seller's power to return it, is evidence that he elects to treat it as payment, and this pre- cludes recovery of the goods. 2 § 633. . In the ordinary case, however, the note is not payment, but simply evidence of the undertaking of the vendee ; and while if the seller rescind he should return the note, he is usually, as has been seen, not obliged to rescind, nor is he bound to surrender the evidence of the contract. 3 If a return in such a case becomes necessary, as where the action is for damages or a deficiency after sale, restitution upon the trial would un- doubtedly suffice. 4 § 634. Destruction of property before payment. — The ques- tion of the effect of the accidental destruction of the property before it was fully paid for has also given rise to decisions ap- parently in conflict. The true view would seem to be that the loss follows the title. 5 Hence in the case of the conditional i Van Allen v. Francis (1899), 123 3 S. W. R. 363; Lippincott v. Rich CaL 474, 56 Pac. R. 339, citing Segrist (1900), — Utah, — , 61 Pac. R. 526. See v. Crabtree, 131 U. S. 287, 9 Sup. Ct. R. also Fleck v. Warner, 25 Kan. 492: 687. Bauendahl v. Horr, 7 Blatch. 548, 2 Merchants' Bank v. Thomas (1887), Fed. Cas. No. 1,1 13. 69 Tex. 237; Parlin, etc. Co. v. Harrell 4 See Brewer v. Ford (1889), 54 Hun (1894), 8 Tex. Civ. Ap. 368, 27 S.W. R. (N. Y.), 116. 1084. 5 See Williams v. Allen, 10 Humph. »Kirby v. Tompkins, 48 Ark. 273, (Tenn.) 337, 51 Am. Dec. 709; Black 523 § 635.] LAW OF SALE. [UOOK II. contract to sell, where no title passes until payment in full, the loss, unless otherwise provided by the contract, would fall upon the party agreeing to sell; while in the case of a sale upon condition subsequent the loss would fall upon the purchaser; and so the decisions are, when not complicated by other facts. 1 g 635. . At the same time it is possible that, even in case of a contract of the first kind, the party undertaking to sell may, by the terms of the agreement, be entitled to recover the sum agreed to be paid notwithstanding the destruction of the property. In one case 2 the defendant Burnley had entered into a contract for the purchase of a soda fountain from the plaintiff Tufts and had given his notes for the amount payable at different times. These notes stipulated that the title should remain in Tufts until payment, and in case of default in pay- ment of any one of them he might resume possession. After part of the notes had been paid, the property while in posses- sion of Burnley was burned without his fault, and he refused to pay the remaining notes. Tufts sued to recover on these notes and succeeded. Said the court: "Burnley uncondition- ally and absolutely promised to pay a certain sum for the prop- v. Webb, 20 Ohio, 304, 55 Am. Dec. 2 Burnley v. Tufts, 66 Miss. 48, 5 S. 456. R. 627, 14 Am. St. R. 540. This case !See Swallow v. Emery, 111 Mass. was approved and followed in Tufts 855: Stone v. Waite, 88 Ala. 599, 7 S. v. Griffin (1890). 107 N. C. 47, 12 S. E. R.117; Bishop v. Minderhout, — Ala. R, 68, 22 Am. St. R. 863, 10 L. R. A. — ,29S. R. 11; Randle v.Stone, 77 Ga. 526, where the court also take the 501. In this case it is said: "Thereser- same view of the nature of the con- vatiou of title and ownership is with- tract, i e„ that it was "a conditional out any modification or condition sale to be defeated upon the non- whatever. It is absolutely reserved performance of the conditions." up to the maturity. of the notes; not Swallow v. Emery, supra, was said only ' title ' is so reserved, but, by to be perhaps distinguishable upon way of emphasis, 'ownership' is the ground that in that case the added. The owner must bear the vendor was to execute a bill of sale loss if there be no fault in the actual to the vendee upon the payment of possessor who is a bailee. 1 Benjamin the price. Burnley v. Tufts is also on Sales, § 620; 1 Parsons, Contracts, approved in Tufts v. Wynne, 45 Mo. 526, 533, 537 (note), 51 Am. R. 59, 62. App. 42, and Osborn v. South Shore 63; 1 Benj.. g^ 412, 427." To same Lumber Co. (1895), 91 Wis. 526,65 N. effect: Mountain City Mill Co. v. W. R. 184. Butler, 109 Ga. 469, 34 S. E. R. 565. 524 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 636. erty, the possession of which he received from Tufts. The fact that the property has been destroyed while in his custody, and before the time for the payment of the note last due, on pay- ment of which only his right to the legal title of the property would have accrued, does not relieve him of payment of the price agreed on. He got exactly what he contracted for, viz., the possession of the property, and the right to acquire an ab- solute title by payment of the agreed price. The transaction was something more than an executory conditional sale. The seller had done all that he was to do except to receive the pur- chase price; the purchaser had received all that he was to re- ceive as the consideration of his promises to pay. The inquiry is not whether, if he had foreseen the contingency which has occurred, he could have provided against it, nor whether he might have made a more prudent contract, but it is whether, by the contract he has made, his promise is absolute or condi- tional. The contract made was a lawful one, and, as we have said, imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation the court must make a new agreement for the parties, instead of enforcing the one made, which it cannot do." The contract made in this case, it will be observed, fell within the class of those which amount to " something more than an executory conditional sale." § 636. Additions to or increase of property before pay- ment.— As the risk of loss or destruction thus usually follows the title, so the chance of gain or advantage from accessions or additions to, or the increase or increment of, the chattel, is usually held to likewise follow the title. Thus, in a number of cases where a conditional contract for the sale of a mare has been made, it has been held that a colt foaled before the title has passed belonged, in case of default, to the owner of the mare, and this whether the colt was begotten before x or after 2 the making of the contract. In the same manner per- i Allen v. Delano 55 Me. 113, 92 v. Fitzpatrick, 56 Ala. 400. See also Am. Dec. 573. Desany v. Thorp, 70 Vt. 31, 39 Atl. R, 2 Buckmaster v. Smith, 22 Vt. 203; 309. Clark v. Hayward, 51 Vt. 14; Elmore 525 § 637.] LAW OF SALE. [BOOK II. manent additions, improvements or repairs belong, usually, as accessions, to the owner of the chattel to which they are made. 1 This is in analogy to the rule prevailing in respect of chat- tel mortgages by which additions to the property or its increase inure to the benefit of the mortgagee. 2 § 637. Additions to stock of goods sold. — But the doc- trine of the preceding section has been held not to apply, in the absence of express contract, to cases of the sale of a stock of goods from which the vendee is to be permitted to sell at retail and which he is to replenish by purchases. Thus, in such a case, 3 the court said: "There cannot be a transfer of title by bringing in goods in this way without a clear agreement to that effect. The writing contains no such agreement. It nowhere says that the [seller] is to acquire any title under the instrument. . . . It is silent in regard to the ownership of the property to be bought by [the vendee] to keep up his stock. If it was the intention of the parties that the title to this property should pass to the [seller] whenever it was put with the stock of goods, they failed to express it." iSee Eaton v. Munroe, 52 Me. 63 mortgaged, and the like, will pass (the facts of which are stated in the by the mortgage. Harding v. Co- note to the following section). But burn, 12 Mete. (Mass.) 833, 46 Am. in Wiggins v. Snow (1891), 89 Mich. Dec. 680; Perry v. Pettingill, 33 N. H. 476, 50 N. W. R. 991, where the vendor 433; Crosby v. Baker, 6 Allen (Mass.), failed to supply certain parts or ap- 295; Ames, Ex parte, 1 Low. (U. S. purtenances of a machine sold, and C. C.) 561 ; Bryant v. Pennell, 61 Me. the vendee was obliged to procure 108, 14 Am. R. 550. So will the young them, it was held that these parts born of animals mortgaged. Rogers belonged to the vendee and could v. Highland, 69 Iowa, 504, 29 N. W. not be taken by the seller on recov- R. 429, 58 Am. R. 230; Kellogg v. ering the machine. See also Rich- Lovely, 46 Mich. 131, 8 N. W. R. 699, ardson Drug Co. v. Teasdall (1897), 41 Am. R. 151; Darling v. Wilson, 60 52 Neb. 698, 72 N. W. R. 1028, more N. H. 59, 49 Am. R. 305. fully referred to in section following 3 Harding v. Lewenberg (1899), 174 on "Accession and confusion," § 642. Mass. 394, 54 N. E. R. 870. Ricliard- 2 Thus additions, repairs or im- son Drug Co. v. Teasdall (1897), 52 provements to chattels mortgaged, Neb. 698, 72 N. W. R 1028, accords, completions of incomplete chattels 526 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 638, 039. § 638. Changes in the form or nature of the property. — "Where, after the delivery to the prospective purchaser, but before payment, the goods are changed in form or nature or are incorporated into other chattels, the question of the right of the proposed seller to follow and recover them, in case of default, presents interesting and difficult considerations. The question has not frequently presented itself in reference to the class of cases now under consideration, but analogy to general principles would seem to suggest the following rules, under which the seller's rights would be preserved, unless he has done something to waive them or estop himself from asserting them. 1 The question may present itself in three classes of cases: (1) Where the change was wrongfully made; (2) where it was not wilful but accidental, as through a mistake of fact; and (3) where the change was rightful, or at least made with- out wilful or intentional wrong. § 639. , 1. Where the prospective purchaser has made the change wrongfully, the proposed seller may, in case of de- fault, recover his property in its changed form, without refer- 1 In Eaton v. Munroe, 52 Me. 63, possession of the lumber after de- plaintiff had delivered to one Hall fault in payment by the purchaser, about $40 worth of canvas. This In "Wing v. Thompson, 78 Wis. 256, Hall was to make into a sail which 47 N. W. R. 606, a contract had been was to remain the property of plaint- made for the sale of standing timber iff until paid for. Hall had the can- which was to be cut and removed by vas made into the sail, as agreed, at the vendees and kept in their pos- an expense for labor and materials of session, but the title was to remain about $18, and then, without paying in the vendor until full payment was plaintiff, sold the sail to one Chase, made. Said the court: "It may be and Chase sold it to defendant. The premised that a contract of this kind plaintiff, after demand, replevied the is not favored in the law. and the sail and was held entitled to recover, right to enforce the reservations as not only because the sail was to be against a bona fide purchaser with- his until paid for, but also on the out notice must be based upon evi- ground of accession. dence which shows that the plaintiff In Hineman v. Matthews, 138 Pa. has not done anything in regard to St. 204, 20 Atl. E. 843, 10 L. R. A. 233, such property while in the hands of it was held, that, where timber was his vendee which would amount to conditionally sold, the fact that it a waiver of his right or estop him was converted into lumber did not from asserting his title against a pur- deprive the seller of his right to take chaser from his vendee." 527 639.] LAW OF SALE. [BOOK II. ence to the degree of the improvement or the additional value given to it by the labor of the wrong-doer, provided that the original chattels are still capable of identification, or, accord- ing to some cases, provided that they can be traced into the new form though their identity be lost. 1 " This rule," says 1 " As a general rule," says Cooley, J.. " one whose property has been ap- propriated by another without au- thority has a right to follow it, and recover the possession from any one who may have received it; and if, in the meantime, it has been increased in value by the addition of labor or money, the owner may, nevertheless, reclaim it, provided there has been no destruction of substantial iden- tity. So far the authorities are agreed. A man cannot generally be deprived of his property except by his own voluntary act or by operation of law; and if unauthorized parties have be- stowed expense or labor upon it, that fact cannot constitute a bar to his reclaiming it, so long as identifica- tion is not impracticable. But there must, nevertheless, in reason be some limit to the right to follow and re- claim materials which have under- gone a process of manufacture. . . . No test which satisfies the reason of the law can be applied in the adjust- ment of questions of title to chattels by accession unless it keeps in view the circumstance of relative values. When we bear in mind the fact that what the law aims at is the accom- plishment of substantial equity, we shall readily perceive that the fact of the value of the materials having been increased a hundred fold is of more importance in the adjustment than any chemical change or me- chanical transformation, which, how- ever radical, neither is expensive to the party making it, nor adds mate- rially to the value." Wetherbee v. Green, 22 Mich. 311, 7 Am. R. 653. "In Betts v. Lee, 5 Johns. 348, 4 Am. Dec. 368, it was decided," says Kuggles, J., " that as against a tres- passer the original owner of the property may seize it in its new shape, whatever alteration of form it may have undergone, if he can prove the identity of the original materials. That was a case in which the defendant had cut down the plaintiff's trees and made them into shingles. The property could neither be identified by inspection nor re- stored to its original form; but the plaintiff recovered the value of the shingles. So in Curtis v. Groat, 6 Johns. 168, 5 Am. Dec. 204, a tres- passer cut wood on another's land and converted it into charcoal. It was held that the charcoal still be- longed to the owner of the wood. Here was a change of the wood into an article of different kind and spe- cies. No part of the substance of the wood remained in its original state; its identity could not be ascer- tained by the senses, nor could it be restored to what it originally was. That case distinctly recognizes the principle that a wilful trespasser cannot acquire a title to property merely by changing it from one spe- cies to another. And the late Chan- cellor Kent, in his Commentaries (vol. 2, p. 363), declares that the Eng- lish law will not allow one man to gain a title to the property of an- other upon the principle of accession 528 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 640, 641. Ruggles, J., 1 " holds good against an innocent purchaser from the wrong-doer, although its value be increased a hundred fold by the labor of the purchaser. This is a necessary con- sequence of the continuance of the original ownership." An exception exists where the change was made by the innocent purchaser himself, believing himself to be the owner. In this case, if the identity be destroyed, the true owner may recover only the value of the original chattel and not the chattel in its improved or altered form. 2 | 640. . 2. Where the change was not wilful, but acci- dental, and the original can still be identified, the owner may have it in its altered form unless the additions have gone fur- ther than the original chattel to make up its present improved form, in which case he may have simply the value of the orig- inal. 3 § 641, . 3. Where the change was not wrongful, the orig- inal owner may recover his chattel even in its improved form if he took the other's property wil- fully as a trespasser; and that it was settled as early as the time of the Year Books that whatever alteration of form any property had undergone, the owner might seize it in its new shape if he could prove the identity of the original materials. The same rule has been adopted in Pennsyl- vania: Snyder v. Vaux, 2 Rawle, 427, 21 Am. Dec. 406." Silsbury v. Mc- Coon, 3 N. Y. 379, 53 Am. Dec. 307. In this case whisky made from corn wrongfully taken was held to be- long to the owner of the corn. See also interesting illustrations and dis- cussions in Strubbee v. Railway Co., 78 Ky. 481, 39 Am. R. 251; Murphy v. Railroad Co., 55 Iowa, 473, 8 N. W. R. 320, 39 Am. R. 175; Hazelton v. Weeks, 49 Wis. 661, 35 Am. R. 796; Heard v. James, 49 Miss. 236. 1 In Silsbury v. McCoon, supra. To same effect: Strubbee v. Railway Co., supra, disapproving of Lake Shore R. Co. v. Hutchins, 32 Ohio St. 571, 30 Am. R. 629. 2 Silsbury v. McCoon, supra; Weth- erbee v. Green, supra. sWetherbee v. Green, 22 Mich. 311, 7 Am. R. 653, is the leading case upon this subject. There timber of the value of $25 had been, in the exercise of what was supposed to be proper authority, converted into hoops of the value of $700, and it was held that while, as a general rule, the owner may recover his prop- erty in its increased form, yet where, as here, the act was not wilful, and the change in value was so great, he could recover only the original value. But in Isle Royal Mining Co. v. Her- tin, 37 Mich. 332, 26 Am. R. 520, where the disparity in values was slight, the contrary result was reached. See the note to this case in 26 Am. R.525. 34 529 R 642.] LAW OF SALE. [BOOK II. unless its identity has been lost, or the alterations or additions exceed it in value, in which case also he may recover simply the value of the original. 1 § 642. Accession and confusion of goods.— The question of the confusion of goods presents substantially the same consider- ations. Four cases may here present themselves: (1) The au- thorized commingling. (2) The wilful or tortious comming- ling. (3) The unintentionally mistaken commingling; and (4) The commingling by accident or vis major. Without going at large into the subject, it may be said that the following rules apply: 1. Where the commingling was with the consent of the par- ties, they become tenants in common of the mass. 2 2. Where the confusion was tortious, the parties will still be treated as tenants in common, if the parts are of like nature and value; or, if the goods of each can be distinguished, then each may take his own; but where they are of different kinds and value, or the goods of each cannot be distinguished, the innocent owner will take the whole. 3 i See 2 Schouler, Personal Property, R. 226; First Nat. Bank v. Schween, 37; Bishop, Non-Contract Law, § 939. 127 111. 573, 11 Am. St. R 174; First 2 Dole v. Olmstead, 36 111. 150,85 Nat. Bank of Elgin v. Kilbourne, 20 Am. Dec. 397; S. C, 41 111. 344, 89 Am. N. E. R. 681 ; Stephenson v. Little, 10 Dec. 386; Sexton v. Graham, 53 Iowa, Mich. 433. 181, 4 N. W. R. 1090; Nowlen v. Colt, In Richardson Drug Co. v. Teas- 6 Hill (N. Y.), 461, 41 Am. Dec. 756. dall (1897), 52 Neb. 698, 72 N. W. R. 3 " There is no forfeiture," says 1028, where the subject-matter of the Shepley, C. J., "in a case of a fraud- sale was a stock of drugs, which the ulent intermixture when the goods vendee was, by the contract, to dis- intermixed are of equal value. This pose of at retail and not to deplete, has not been sufficiently noticed, and it was held that, on default, the yet it is a just rule and is fully sus- vendor was entitled only to so much tained by authority." Hesseltine v. of the original stock as remained un- Stockwell, 30 Me. 237, 50 Am. Dec. disposed of, and not to additions 627. See also Robinson v. Holt, 39 made by the vendee; and that the N. H. 557, 75 Am. Dec. 233; First Nat. vendee's mixing of the goods abso- Bank v. Hummel, 14 Colo. 259, 23 lutely purchased by him with the Pac. R. 986, 20 Am. St. R. 257; Little goods conditionally purchased was Pittsburg Mining Co. v. Mining Co., neither wrongful nor fraudulent 11 Colo. 223, 17 Pac. R. 760, 7 Am. St. within such principles as are dis- 530 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 64:3-045. 3. If the confusion was caused by the unintentional mistake of the party making it, the parties will usually be regarded as tenants in common, if their contributions are of like kind and value, and the share of each can be ascertained ; but, if not, the person by whose carelessness, folly or misfortune the confusion was caused must lose his share. 1 4. If the confusion was caused by - inevitable accident or vis major, each may recover his share if distinguishable, otherwise they will be held to be tenants in common of the mass. 2 §643. Substitution of goods. — If the property originally agreed to be sold is exchanged by the prospective purchaser for other chattels, the latter do not thereby become the property of the vendor or subject to the contract, 3 though with the con- sent of both parties such a substitution may be made. 4 § 644. Effect of annexing chattels conditionally sold to the freehold. — The annexation of the chattels contracted to be sold to his freehold by the conditional purchaser raises all of the vexed and difficult questions which attend the subject of fixtures generally. § 645. As between the immediate parties to the trans- action there can ordinarily be no difficulty in preserving the character of the chattels as personalty, even though annexed cussed in the text. Wiggins v. Snow, S. R. 717, it is held that if a horse sold 89 Mich. 476, 50 N. W. R. 991, was conditionally be wrongfully killed cited and relied upon. See also Hard- by a railroad company, either the ing v. Lewenberg, 174 Mass. 394, 54 vendor or vendee may sue to recover N. E. R. 870. the damages. If the vendee sues and 1 Ryder v. Hathaway, 21 Pick, recovers, the vendor has a claim upon {Mass.) 298; Pratt v. Bryant, 20 Vt. the vendee for money had to his use 333; Hesseltine v. Stockwell, supra; to the extent of the original purchase Thome v. Colton, 27 Iowa, 425. price; but if the vendee uses the 2 Spence v. Insurance Co., L. R. 3 money to buy another horse, it does C. P. 427; Moore v. Railway Co., 7 not become the property of the orig- Lans. (N. Y.) 39. inal vendor, nor has he any lien upon 3 Nattin v. Riley, 54 Ark. 30, 14 S. it for the purchase price of the horse "W. R. 1100; Dedman v. Earle, 52 Ark. killed. 164, 12 S. W. R. 330. * Kelsey v. Kendall, 48 Vt. 24 ; Perry In Smith v. Gufford, 36 Fla. 481, 18 v. Young, 105 N. C. 463, 11 S. E. R. 511. 531 § 616.] LAW OF SALE. [book II. to the realty with the seller's assent, so long as they remain distinguishable and severable. 1 The same rule applies also asrainst creditors of the vendee: 2 but when the claims of mort- gagees or purchasers of the land, to which such chattels have been annexed, arise, questions of difficulty present themselves. 646. As against subsequent purchasers without no- tice, the condition, by the weight of authority, could net oper- ate to characterize as personalty that which appears to be, and by its ordinary nature is, a part of the realty. 3 The same rule also applies in respect of a subsequent mortgagee of the land where he takes without notice, 4 but not where he took with 1 Harkey v. Cain, 69 Tex. 146, 6 S. W. R 637; Brewing Ass'n v. Manu- facturing Co., 81 Tex. 99. 16 S. W. R 797; Lansing Iron Works v. Walker, 91 Mich. 409, 51 N. W. R. 1061, 30 Am. St. R. 488; Tyson v. Post, 108 N. Y. 217, 15 N. E. R. 316, 2 Am. St. R. 409; Rogers v. Cox, 96 Ind. 157, 49 Am. R. 152; Price v. Malott, 85 Ind. 266, 109 Ind. 22; Hendy v. Dinkerhoff, 57 Cal. 3, 40 Am. R. 107; Haven v. Emery, 33 N. H. 66. 2Sturgis v. Warren, 11 Vt. 433: Sis- son v. Hibbard, 75 N. Y. 542. s Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675; Powers v. Dennison, 30 Vt. 752; Hunt v. Bay State Iron Co., 97 Mass. 279; Tibbetts v. Home, 65 N. H. 242, 23 Atl. R. 145, 23 Am. St. R 31; Stillman v. Flenniken, 58 Iowa, 450, 43 Am. R 120, 10 N. W. R. 842; Hobson v. Gorringe (1897), 1 Ch. 182; Watson v. Alberts, 120 Mich. 508, 79 N. W. R. 1048; Landigan v. Mayer (1898 1 , 32 Oreg. 245, 51 Pac. R. 649, 67 Am. St. R 521. But see Mott v. Palmer, 1 N. Y. 564; Ford v. Cobb, 20 N. Y. 344. where it is held that the subsequent purchaser gets no title, but must rely on the warranties in 3 »is deed. 4 Hopewell Mills v. Taunton Sav- ings Bank, 150 Mass. 519, 15 Am. St. R. 235, 6 L. R. A. 249, 23 N. E. R. 327 [citing Hunt v. Bay State Iron Co., supra; Thompson v. Vinton, 121 Mass. 139; Southbridge Sav. Bank v. Exeter Mach. Wks., 127 Mass. 542; Case Mfg. Co. v. Garven, 45 Ohio St. 289, 13 N. E. R 493]; Tibbetts v. Home, 65 N. H. 242, 23 Atl. R. 145, 23 Am. St, R. 81; Pierce v. George, 108 Mass. 78; Wickes v. Hill, 115 Mich. 333, 73 N. W. R. 375. But contra in Alabama. Warren v. Liddell (1895), 110 Ala. 232, 20 S. R. 89, citing many other cases from that state. A planer used in a saw-mill, al- though some fastening be necessary to its use, is not such a fixture as to pass with a subsequent mortgage of the realty, as against the conditional vendor, especially as the mortgage was merely to secure an antecedent indebtedness. Cherry v. Arthur, 5 Wash. 787, 32 Pac. R. 744. When chattels are sold under an agreement that the title shall not pass until full payment, and are de- livered to the purchaser after he has made a mortgage covering after- acquired property, of which mort- 532 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 647. notice that the chattels still retained their character as per- sonalty. 1 647. As to a prior mortgagee of the land, the rule seems to be that a chattel not intended to become a fixture, and so affixed as to be removable without destroying or seriously injuring either the chattel itself or the realty to which it is attached, may, by virtue of a reservation of title in the vendor, retain its character as personalty and be subject to his rights. 2 gage the vendor has constructive notice through its record, the vend- or's lien on such chattels for their price will prevail, as against the mortgagee, provided such chattels are separate and distinct personalty, and do not become part of the real estate mortgaged; but if, with the consent of the vendor, implied by his knowledge of the mortgage, such chattels become part of the realty, they are subject to the lien of the mortgage. A stipulation in a con- tract for the sale of chattels that they shall not become or be deemed a part of any real estate cannot alter, as against one not a party to such contract, the legal effect of what may afterwards be done with such chat- tels. New York Sec. & Tr. Co. v. Capital Ry. Co., 77 Fed. R. 529. 1 Horn v. Indianapolis Nat. Bank, 125 Ind. 381, 21 Am. St. R. 231, 9 L. R A. 676, 25 N. E. R. 558. The retention of open control by a vendor's employee over machinery placed in the works of a company which were being fitted up by the vendee is notice to said company of the existence of a vendor's lien. Holly Mfg. Co. v. New Chester Water Co., 48 Fed. R. 879. Where machinery is sold and placed in a building for the purpose of mak- ing it available as a manufactory, but under an agreement between the seller and buyer that the title shall remain in the former until it is wholly paid for, it may properly be deemed personal property as against a mortgagee who with full knowl- edge consents to the arrangement, and may be removed by the seller who retained the title, although it has the character of a fixture and has been permanently annexed. Haw- kins v. Hersey,88 Me. 394, 30 Atl. R. 14. Chattels were conditionally sold to the tenant of a building, who placed them in the building, but without af- fixing them to such an extent that they could not be removed without in- jury to the building. He surrendered the building with those chattels to his landlord, who afterwards leased the building and the chattels to other tenants; but it was held that the surrender of the building with these chattels affixed did not affect the title of the conditional vendor or his right to remove them. Medicke v. Sauer, 61 Minn. 15, 63 N W. R. 110. 2Binkley v. Forkner, 117 Ind. 176, 19 N. E. R. 753, 3 L. R. A. 31; Eaves v. Estes, 10 Kan. 314, 15 Am. R. 345; Tifft v. Horton, 53 N. Y. 377, 13 Am. R. 537; Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. R. 279, 6 Am. St. R. 889; Fosdick v. Schall, 99 U. S. 235; Schumacher v. Allis, 70 111. App. 556; 533 §§ 648, 649.] J'AW OF SALE. [book it, "Where, however, " the articles are of such a character that their detachment would involve a destruction or dismantling of an important feature of the realty, such annexation might well be regarded as an abandonment of the lien by him who im- pliedly assented to the annexation." l § 648. Conflict of laws.— Contracts of this sort, though made in one State, and in contemplation of its laws, may, by reason of the removal of the parties or the property into an- other State, fall within the influence of varying if not conflict- ing laws; and it becomes necessary to inquire by what law the rights of the parties are to be determined. § 649. "The general rule," it is said in one case, 2 "is that the validity and effect of contracts relating to personal property are to be determined by the laws of the State or country where they are made, and, as a matter of comity, they will, if valid there, be enforced in another State or country, although not executed or recorded according to the law of the latter. And the rule has been applied, in a great number of cases, to chattel mortgages, where the mortgagor removes with the property into another State, continuing in possession of it, permissible by the law of the former, under circumstances that, had the mortgage been executed in the latter State by German Savings Society v. Weber, 16 Mort., §§ 260, 299-301 ; Offutt v. Flagg, Wash. 95, 47 Pac. R. 224; Baldwin v. 10 N. H. 46; Ferguson v. Clifford, 87 Young, 47 La, Ann. 1466, 17 S. R. 883; N. H. 86; Cobb v. Buswell, 37 Vt, 337; Walburn-Swenson Co. v. Darrell, 49 Jones v. Taylor, 30 Vt. 42; Taylor v. La. Ann. 1044, 22 S. R. 310. Boardman, 25 Vt. 581; Ballard v. Campbell v. Roddy, supra, was fol- Winter, 39 Conn. 179; Langworthy lowed and applied in Palmateer v. v. Little, 12 Cush. (Mass.) 109; Bank Robinson, 00 N. J. L. 433, 38 Atl. R. v. Danforth, 14 Gray (Mass.), 123; 957, in a case arising between a prior Martin v. Hill, 12 Barb. (N. Y.) 631; conditional vendor of the realty and Kanaga v. Taylor, 7 Ohio St. 134, 70 a subsequent conditional vendor of Am. Dec. 62; Wilson v. Carson, 12 the chattel. It is distinguished in Md. 54; Smith v. McLean, 24 Iowa, Warren v. Liddell, 110 Ala. 232, 20 322; Simms v. McKee, 25 Iowa, 341; S. R 89. Feurt v. Rowell, f>2 Mo. 524]; Gross v. 1 Campbell v. Roddy, supra. Jordan, 83 Me. 380, 22 Atl. R. 250; 2Keenan v. Stimson, 32 Minn. 377, Woolley v. Geneva Wagon Co., 59 N. 20 N. W. R, 364 [citing Jones, Chat. J. L. 278, 35 Atl. R. 789. 534 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 649. one resident therein, would have made it invalid as against creditors or purchasers." This rule has, with substantial una- nimity, been applied to cases of conditional contracts of sale. 1 1 A contract made in New Hamp- shire and there valid will be held valid in Vermont, though not re- duced to writing or recorded as there required. Dixon v. Blond in, 58 Vt. 689, 5 Atl. R. 514. To same effect: Barrett v. Kelley, 66 Vt. 515, 29 Atl. R. 8Q9; Wooley v. Wagon Co., supra; Gross v. Jordan, supra; Public Parks Amusement Co. v. Embree-McLean Carriage Co., 64 Ark. 29, 40 S. W. R. 582; Baldwin v. Hill, 4 Kan. App. 168, 46 Pac. R. 329; Harper v. People, 2 Colo. App. 177. 29 Pac. R. 1040; Cleve- land Mach. Works v. Lang, 67 N. H. 348, 31 Atl. R. 20. By the laws of Georgia a reserva- tion of title by the seller until the property is paid for, though invalid as against third persons unless the contract is reduced to writing, ac- knowledged and duly recorded, is valid as between the parties; and if the purchaser, holding possession under such a conditional sale, brings the property into Alabama and there sells it to a third person, the title of the latter cannot prevail against that of the original vendor under the laws of Georgia. Weinstein v. Freyer, 93 Ala. 257, 9 S. R. 285, 12 L. R. A. 700. By the laws of New Jersey a con- ditional contract of sale was valid against a bona fide purchaser from the conditional vendee. By the law of Pennsylvania it is not good against such a bona fide purchaser, though it is good as between the parties. S. made a contract for the purchase of a safe with the Marvin Safe Co. in Philadelphia by which the company reserved title till the safe was paid for. The safe was sent to New Jer- sey, where S. resided. He there sold it to N., a bona fide purchaser. In trover by the safe company against N. it was held that N.'s rights were determined by the law of New Jersey, but that he acquired only such title as S. had when the property was brought into New Jersey, and that therefore the title was in the com- pany. Marvin Safe Co. v. Norton, 48 N. J. L. 410, 7 Atl. R. 418, 57 Am. R. 566. (Compare the earlier case of The Marina, 19 Fed. R. 760, in the New Jersey district court.) B. made a contract in Michigan for the purchase from W. of a piano. W. reserved title till paid for. B. re- moved the piano to Illinois without W.'s knowledge or consent and there mortgaged it to C. The contract was good in Michigan against even a bona fide sub-vendee though not recorded. Such a contract was not good in Illi- nois against a bona fide purchaser. Held, that by comity the law of Michigan should prevail and that W.'s right was superior to C.'s. Wa- ters v. Cox, 2 111. App. 129. But com- pare with Hervey v. Locomotive Works, 93 U. S. 664 — an Illinois case, cited below. In Mershon v. Moors, 76 Wis. 502 (Mershon v. Wheeler, 45 N. W. R. 95), the court gave effect to an unre- corded contract made either in Mas- sachusetts or Connecticut where it was valid, though such contracts in Wisconsin were required to be re- corded. See also Collender Co. v. Marshall, 57 Vt. 232. Under the laws of Kansas a con- 535 650.] LAW OF SALE. [book IT. 650. But where, though the parties reside and the contract is executed in one State, the property is then situated in another State, or is brought into the latter State in pursuance and by virtue of the contract, the law of the latter State is usually held to control with reference to questions thereafter involving it, and if the conditional vendor would preserve his rights in the latter State he must comply with the provisions of its laws. 1 tract for the sale of personal prop- erty by which possession is at once given to the vendees and the title is to remain in the vendors until pay- ment is valid. Where property thus sold in Kansas was removed to Colo- rado it was held that such contract was enforceable in Colorado, though by the laws of that State compliance with certain conditions was requi- site to make such a contract valid. Harper v. People, 2 Colo. App. 177, 29 Pac. R. 1040, distinguishing Wilson v. Voight, 9 Colo. 614, 13 Pac. R. 726. In this case the court said : " It is al- ways essential to ascertain the domi- cile of the parties, the lex loci con- tractus, and the situs of the property. Wherever these unite to sustain the validity of the contract it may be safely asserted that it is enforceable in the courts of evei*y State where a controversy arises over the title to the property. These elements are present in this suit. All the parties to the contract lived in Kansas. By the law of the place of the contract the agreement was a valid one against everybody. The property was within the limits of that jurisdiction when the contract was made. Ac- cording to the weight of authority the removal of the property into an- other State, whether with or without the consent of the contracting par- ties, will not invalidate a contract enforceable when and where it was entered into. A multitude of author- ities can be cited upon this question, but we shall content ourselves with the citation of a few well-considered decisions in which the doctrine has been announced. Mumford v. Canty, 50 111. 370, 99 Am. Dec. 526; Ferguson v. Clifford, 37 N. H. 86; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62; Cobb v. Buswell, 37 Vt. 337; Smith v. McLean, 24 Iowa, 322; Born v. Shaw, 29 Pa. St. 288, 72 Am. Dec. 633; Crapo v. Kelly, 16 Wall. (U. S.) 610; Thuret v. Jenkins, 7 Mart. (La.) 318, 12 Am. Dec. 508." 1 In Hervey v. Locomotive Works, 93 U. S. 664, it is said: "It was de- cided by this court in Green v. Van Buskirk, 5 Wall. 307: S. C, 7 id. 139, that the liability of property to be sold under legal process, issuing from the courts of the State where it is situated, must be determined by the law there, rather than that of the jurisdiction where the owner lives. These decisions rest on the ground that every State has the right to reg- ulate the transfer of property within its limits, and that whoever sends property to it impliedly submits to the regulations concerning its trans- fer in force there, although a differ- ent rule of transfer prevails in the jurisdiction where he resides. He has no absolute right, to have the 536 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ G51. Y. Contracts of Sale Subject to Other Conditions. § 651. In general. — It is entirely competent for parties, in making contracts of sale, to subject them to such lawful con- ditions as they deem material, and where they have done so transfer of property, lawful in that jurisdiction, respected in the courts of the State where it is found, and it is only on a principle of comity that it is ever allowed. But this principle yields when the laws and policy of the latter State conflict with those of the former." In this case an agree- ment, called a lease, but held by the court to be a conditional sale, of prop- erty to be taken into Illinois, executed by one party in Rhode Island and by the other in New York, was held to be inoperative in Illinois as against creditors in that State because not recorded under the chattel-mortgage act. To like effect : In re Legg (1899), 96 Fed. Rep. 336 [citing Hart v. Man- ufacturing Co., 7 Fed. R. 543; Pitts- burg Locomotive Works v. Keokuk Bank, 19 Fed. Cas. 785; Heryford v. Davis, 102 U. S. 235; Chicago Ry. Equipment Co. v. Merchants' Bank, 136 U. S. 268, 10 Sup. Ct. R. 999; Mo Gourkey v. Railway Co., 146 IT. S. 536, 13 Sup. Ct. R. 170]. In Cunningham v. Cureton, 96 Ga. 489, 23 S. E. R. 420, it appeared that the vendees, who resided in Georgia, went into Tennessee to purchase cer- tain chattels and there gave their notes for them, which notes con- tained a clause reserving title in the vendoi-s until payment. The chattels were then shipped to the vendees in Georgia. The law of Georgia re- quired such contracts to be attested and recorded, but the law of Tennes- see had no such requirement. The Georgia law was not complied with. In a conflict between the sellers and the holders of liens acquired in Geor- gia, it was contended that the case was to be governed by the law of Tennessee, but the Georgia court said: " When the property is brought into this State the requirements which our law imposes for the bene- fit of third persons, as to the attesta- tion and recording of such contracts, are not dispensed with by the fact that it was purchased or is to be paid for in another State." Though the contract may have been dated in Massachusetts, yet if delivered in Maine, relating to prop- erty in Maine, it is to be governed by the laws of Maine. Eolt v. Knowl- ton, 86 Me. 456, 29 Atl. R. 1113. The law of New Jersey applies to a contract of sale made in New York of property to be delivered to and held by the purchaser in New Jersey. Knowles Loom Works v. Vacher, 57 N. J. L. 490, 31 Atl. R. 306, 33 L. R. A. 305. The law of Connecticut applies to a contract of sale made and the prop- erty delivered in New York, but in contemplation that the property is to be taken to Connecticut, where the contract is to be performed. Beggs v. Bartels (1900), — Conn. — , 46 Atl. R. 874. But in a late case in New Hamp- shire it was held that a contract of conditional sale, made in Massachu- setts by parties there resident, con- 537 § 652.] LAW OF SALE. [BOOK II. the title will not pass until the condition is performed. 1 It is not practicable, however, to attempt to discuss all such possi- ble contracts. There are, on the other hand, certain kinds of contracts, frequently entered into, which from their nature are necessarily subject to conditions growing out of the essential character of the contract itself, and the most important of these Avill now be considered. One of the most important of these is the contract for the — 1. Sale of Goods " to Arrive." § 652. Such contracts conditioned upon the arrival of the goods.— " A sale to arrive," it is said in one case, 2 is "condi- tional, and if the article contracted for does not arrive, either cerning a chattel there situated and valid by its laws, may be enforced in New Hampshire, though the statute of that State has not been complied with; and the fact that the parties, at the time the contract was made, con- templated that the property should be removed to New Hampshire does not alter the rule. Cleveland Mach. Works v. Lang (1892), 67 N. H. 348, 31 Atl. R. 20, 68 Am. St, R. 675. To same effect: Dorntee Casket Co. v. Gunnison (1898), 69 N. H. 297, 45 Atl. R.318. Where the seller in Maine sold to a New Hampshire resident a chattel which was removed to New Hamp- shire, and the statute of Maine re- quired the contract, when executed by a non-resident, to be recorded where the property was when the contract was made (i. e., in Maine), but it was not so recorded in Maine, the contract will not be valid in New Hampshire against a subsequent up .it gagee of the goods in that State. Davis v. Osgood (1898), 69 N. H. 427, 44 Atl. R 432. 1 Thus, for example, an agreement in a contract for the sale of a saloon. that if no license should be granted there should be no sale, shows that the title is not to pass until the license is procured. Kost v. Reilly (1892), 62 Conn. 57, 24 Atl. R. 519. While, on the other hand, where one agrees that he will purchase a planter if it did not " break all to the devil " before he got through using it, he be- comes the purchaser and is liable to pay if the planter does not break as so stipulated. Norton v. Hummel (1887), 22 111. App. 194. A stipulation in an order for a harvester that "if my crops are a failure, and I do not need a ma- chine," justifies the buyer in rescind- ing if those crops fail for which he would need such a harvester, though his other crops may be good. Mc- Cormick Co. v. Williams (1896), 99 Iowa, 601, 68 N. W. R. 907. 2 Neldon v. Smith, 36 N. J. L. 148, To same effect: Shields v. Pettee, 2 Sandf. (N. Y.) 262; Benedict v. Field, 4 Duer (N. Y.), 154; Dike v. Reit- linger, 23 Hun (N. Y.), 241; Russell v. Nicoll, 3 Wend. (N. Y.) 112, 20 Am. Dec. 670; Lovatt v. Hamilton, 5 M. & W. 639; Stockdale v. Dunlop, 6 M. 538 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 653. from the vessel's being lost or other cause by accident, and without any fraud or fault of the vendor, the contract is at an end. The contract is executory and does not pass the prop- erty in the goods to arrive. It is merely an agreement for the sale and delivery of the articles named at a future period when they shall arrive. It is in the nature of a condition and not a warranty." Stipulations in such contracts as to the time of arrival are therefore construed as fixing a limit beyond which the contract is not to continue, rather than as warranties that the goods shall arrive within that time. 1 The vendor is not liable for the non-delivery of the goods until their arrival, and unless they arrive within the time specified the vendor is not bound to de- liver nor the vendee to receive them. 2 So, if the contract be entire, the vendor is not bound to deliver nor the vendee to receive a part of the goods only which arrives within the pe- riod fixed. 3 § 653. Contracts limiting time of shipment.— It is entirely competent, of course, for the parties to limit the time within which the goods shall be shipped, and when the time is so lim- ited it becomes a condition precedent that they shall be shipped within the time agreed upon; and if not complied with, both parties are released from their respective obligations to deliver and receive. 4 & W. 224; Johnson v. Macdonald, 9 other words showing a contrary in- M. & W. 600; Eogers v. Woodruff, 23 tent, contingent upon its arrival," Ohio St. 632, 13 Am. R. 276. citing many of the cases supra. i Russell v. Nicoll, supra; Alewyn 2 Hill v. Blake (1884), 97 N. Y. 216. v. Pryor, R. & M. 406. In Rogers v. 3 Russell v. Nicoll, supra. Woodruff, supra, it is said: "It has 4 Alexander v. Vanderzee, L. R. 7 uniformly been held that contracts C. R 530; Shand v. Bowes, 1 Q. B. of this description — for the sale of Div. 470; S. C, 2 Q. B. Div. 112; s. c. goods to arrive — are conditional, the sub nom. Bowes v. Shand. 2 A pp. words ' to arrive,' or other equivalent Cas. 455. words, not importing a warranty Where the contract was for five that the goods will arrive, and the hundred tons of rails to be shipped obligation to perform the contract "from the other side, January or by an actual transfer of the property February or March, seller's option," being, therefore, in the absence of the court said: " It is the settled rule 539 §§ 654, 655.] LAW OF SALE. [book IT. In construing: agreements of this nature it seems to be dc- termined that the expressions in the contract, " to be shipped " or "shipment" within a certain time, have reference, in the absence of usage to the contrary, to the time when the goods shall be placed on board, and not to the time when the ship- ment shall actually be completed. 1 654. Giving notice of name of ship. — It is a common stipulation in these contracts that the vendor shall give the vendee notice of the name of the ship on which the goods are expected as soon as it becomes known to him, and a strict com- pliance with this requirement is a condition precedent to his right to enforce the contract. 2 § 655. Classification of the cases. — Mr. Benjamin, after reviewing the English cases in which the question has been much more frequently considered than in the American cases, classifies the decisions as follows: that in a case like the present the date of shipment is a material ele- ment in the identification of the property (Hill v. Blake, 97 N. Y. 216; Tobias v. Lissberger, 105 id. 404). It was not five hundred tons of rails generally that were the subject of the contract, but a specific quantity shipped from the other side during the three named months, and unless such were tendered the contract was not performed. The offer of other rails would impose no obligation upon the purchaser." Clark v. Fey (1890), 131 N. Y. 470, 24 N. E. R. 703. The destruction of the vessel named before the date of shipment terminates the contract. Nickoll v. Ashton, 1 1900] 2 Q. B. 298. 1 Bowes v. Shand, sujyra. A con- tract to ship goods by railroad on a certain day is satisfied by putting them on the car on that day. al- though the carrier does not send the car forward until the following day. Clark v. Lindsay (1896), 19 Mont. 1. 47 Pac. R. 102. 2 Benjamin on Sales, § 588; Busk v. Spence, 4 Camp. 329; Graves v. Legg, 9 Ex. 709. But where the seller gave the name of the ship as the " Chris- topher" and the goods arrived on the "St. Christopher," it was held that the refusal of the buyer to re- ceive the goods on that account was unwarranted. Smith v. Pet tee (1877), 70 N. Y. 13. So where there was a contract for goods to be shipped from the Philippines in a certain vessel, provided that if she was by any ac- cident unable to load and no other steamer could be procured the con- tract was to be void, it was held not to preclude reshipment by another vessel at an intermediate point due to an accident to the original vessel. Harrison v. Fortlage (1896), 161 U. S. 57. 540 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 656. First. "Where the language is that goods are sold "on arrival per ship A or ex ship A," or " to arrive per ship A or ex ship A" (for these two expressions mean precisely the same thing), it imports a double condition precedent, viz., that the ship shall arrive, and that the goods sold shall be on board on her arrival. Secondly. "Where the language asserts the goods to be on board of the vessel named, as " 1,170 bales now on passage, and expected to arrive per ship A," or other terms of like import, there is a warranty that the goods are on board, and a single condition precedent, to wit, the arrival of the vessel. Thirdly. The condition precedent that the goods shall ar- rive by the vessel will not be fulfilled by the arrival of goods answering the description of those sold, but not consigned to the vendor and with which he did not affect to deal; but semble, the condition will be fulfilled if the goods which arrive are the same which the vendor intended to sell, in the expecta- tion, which turns out to be unfounded, that they would be con- signed to him. Fourthly. Where the sale describes the expected cargo to be of a particular description, as "400 tons of Aracan Necrensie rice," and the cargo turns out on arrival to be rice of a differ- ent description, and neither party is bound by the bargain. 2. Sale of Goods " to le Shipped." §656. Such contracts conditional. — Similar in many re- spects to the contract for the sale of goods " to arrive," and often associated with it, is the contract for the sale of goods " to be shipped." Such contracts, already slightly touched upon in the preceding subdivision, however, are less conditional than the former, and the condition, like many others to be hereafter noticed, is rather one relating to the performance of the contract than one which goes to the discharge of both par- ties from it. As will be seen hereafter, whatever in executory contracts goes to the matter of the identification or description of the goods to be supplied, or the time, place, quantity or man- ner of supplying them, is usually to be deemed a condition 541 §§ 657-659.] law or sale. [book ii. precedent to the buyer's liability ; — giving the buyer the op- tion to reject the goods, or to waive the default and accept a substituted performance if he will. 1 It is deemed most con- venient, therefore, to leave this question until the subject of delivery is reached, 2 and to confine attention here to those conditions less intimately connected with the mere matter of performance. 3. Sale on Approval. § 657. Sale if goods are approved. — Contracts are not un- common in pursuance of which goods are delivered "on trial," or " on approval," to be bought and paid for if the prospective purchaser approves them, and, if not, to be returned. § 658. Title and risk pending approval. — Such a transac- tion does not constitute a present sale, and the title does not pass until in some manner, either expressly or by implication, this necessary approval is manifested. 3 With the title also re- mains the risk of loss or injury not caused by the buyer's default. 4 Whether the sale is absolute or on approval, in a doubtful case, is a question for the jury. 5 §650. Within what time option exercised. — Where the terms of the contract fix the time within which the option is to be exercised, the contract will, of course, govern; but where no time is so fixed the law will require the determination to be made within a reasonable time. 6 1 See post, § 1205 et seq. 4 Thus if a horse sold upon approval 2 See jjost, § 1116 et seq. dies without the fault of the buyer 3 Hunt v. Wyman (1868>, 100 Mass. before approval and before the ex- 198; Dando v. Foulds (1884), 105 Pa. piration of the time limited, the loss St. 71; Wartman v. Breed (1875), 117 falls on the seller. Elphick v. Barnes Mass. 18; Fairfield v. Madison Mfg. (1880), 5 C. P. Div. 301. Co. (1875), 38 Wis. 346; Hall & Brown 5 Reber v. Schitler (1891), 141 Pa. St, Mach. Co. v. Brown (1891\ 82 Tex. 640, 21 Atl. R. 736. 469, 17 S. W. R. 715; Mowbray v. e Washington v. Johnson (1846), 7 ( lady (1^75), 40 Iowa, 604; Glasscock Humph. (Tenn.) 468; Hickman v. v. Ilazell (1891). 109 N. C. 145, 13 S. Shimp (1885), 109 Pa. St. 16. E. R. 789. 542 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. G60. § 660. Effect of failure to return within time required. — In either case, while the. mere failure to return the goods within the time required may not be per se an election to purchase, 1 it is still such evidence that, if unexplained, a conclusive elec- tion may be found. 2 Of course, in these cases, there can ordi- 1 Hunt v. Wyman, supra. 2 Washington v. Johnson, supra; Butler v. School District (1892), 149 Pa. St. 351; Hickman v. Shimp, supra; Stutz v. Coal Co., 131 Pa. St, 267. In Aultman v. Theirer (1872), 34 Iowa, 272, a buyer of a reaper was to try the machine for a certain period and give notice if it failed to work as warranted. The buyer gave the notice as required, but continued to use the machine. Held, that he lost his right to return it, but could still reduce the recovery by the damages sustained by him. In Turner v. Machine Co. (1893), 97 Mich. 166, 56 N. W. R. 356, plaintiff sold certain machinery to defendant on trial, trial to cover thirty days. If satisfactory defendant was to pay for it. He failed to give notice at the expiration of the time, and it was held that such failure consti- tuted an acceptance. In Columbia Rolling Co. v. Beckett Foundry Co. (1893), 55 N. J. L. 391, 26 AtL R. 888, it was held that where goods are sold subject to approval it is necessary for the purchaser, unless he approves, to express disapproval within a reasonable time, in the ab- sence of which the seller may sue and recover, the failure constitut- ing either an approval or a least at waiver. In Fairfield v. Madison Mfg. Co. (1875), 38 Wis. 346, plaintiff agreed to take one of defendant's machines, give it a fair trial, and notify defend- ant if it failed to give satisfaction. The machine was to be settled for after the trial, and taken back if it could not be made to work: but if used more than two days the war- ranty should be considered fulfilled. The machine did not work and de- fendant was notified, but plaintiff was prevailed upon to keep the ma- chine with the promise that it would be fixed. It was kept and used part of two seasons, but was nearly use- less. Held, that title had not passed when plaintiff first notified defend- ant that the machine did not work. But after plaintiff kept the machine so long it will be presumed that he elected to keep it and sue for breach of warranty. In Keeler v. Jacobs (1894), 87 Wis. 545, 58 N. W. R. 1107, plaintiffs let the defendant have a machine on trial until satisfied with it, and if not sat- isfied with it he might return it. De- fendant was not satisfied and noti- fied plaintiffs, but he was induced to keep it longer under the promise that plaintiffs' agent would write to plaintiffs and see what could be done. Nothing was done. Held, that the question whether defendant had kept the machine more than a reasonable time was for the jury. In Ellis v. Mortimer (1805), 1 Bos. & P. N. R 257, plaintiff offered de- fendant a horse at a certain price, defendant to try it for a month and pay the price if he liked the horse at the price. At the end of two weeks defendant told plaintiff that he liked 543 |§ 661, 062.] LAW OF SALE. [BOOK II. narily be no election until an opportunity for inspection or examination has been afforded. 1 §661. Necessity for notice of disapproval. — Ordinarily, and in the absence of a stipulation to the contrary, the party receiving the goods must, in the event of his disapproval, re- turn them or offer to return them or give notice of his disap- proval. 2 But the parties may, by their express or implied agreements, dispense with this requirement, and throw upon the person delivering the duty of ascertaining whether the goods are approved or not. 3 If the duty in this respect is not made clear by the terms of the agreement, it becomes a ques- tion of fact for the jury to determine whether notice was re- quired from the receiver or not. 4 §662. How notice to be given. — In a case 5 in which the defendants were bound by their contract to give notice of their the horse but not the price, where- upon plaintiff asked him to return the horse. But defendant kept it ten days longer. Held, that he was at liberty to keep the horse for a month if he chose. i Wilson v. Stratton (1860), 47 Me. 120, citing Crane v. Roberts, 5 Me. 419; McCarren v. McNulty, 7 Gray (Mass.), 139; Grout v. Hill, 4 id. 331. In Hunt v. Wyman, supra, a horse taken upon trial had received seri- ous injury without the fault of the bailee before he had a chance to try him, nor, on account of the injury, could the horse be returned within the time specified. Held, not a sale. To like effect: Lyons v. Stills (1896), 97 Tenn. 514, 37 S. W. E. 280. In Kahn v. Klabunde (1880), 50 Wis. 235, it was held that where A takes to his own home a horse be- longing to B, intending to purchase it, if satisfactory, with an under- standing that he is to use it by way of trial until a specified time, and then, if not satisfied, bring it back to B, or, if too busy for that, to let it stand unused till B comes for it, and A continues to use the horse after the time so fixed, but then refuses to buy and offers to return it, this is evidence for the jury on the question whether A, at the time so fixed, had determined to retain the horse, and is therefore liable for the price, but it is not conclusive evidence. 2 Dewey v. Erie Borough (1850), 14 Pa. St. 211, 53 Am. Dec. 533. 3 In Gibson v. Vail (1881), 53 Vt. 476, it was found that the seller was to come and ascertain whether the other party was satisfied. Such was also the fact in Smalley v. Hendrick- son (1862), 29 N. J. L. 371. ^Wartman v. Breed (1875% 117 Mass. 18. 5 Dewey v. Erie Borough (1850), 14 Pa. St. 211, 53 Am. Dec. 533. 544 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 6G3, GQ4:. dissatisfaction to the plaintiff, Gibson, C. J., said : " They were not bound to follow the plaintiff to a foreign country; but if foreign residence had been alleged, they would have been bound to prove it. If his residence was unknown, they were bound to prove that they had attempted to discover it. If it was known to be in a sister State, they were bound to prove that they had attempted to reach him through the postoffice. But there was not a spark of evidence to prove that any effort had been made whatever, and the contract had become absolute." 4. Sale if Satisfactory to Buyer. § 663. Sales if buyer is satisfied. — Similar to the questions involved in the last sections are those which arise where the contract is that the buyer shall purchase if the goods are satis- factory. It is entirely competent for the parties to agree that the transaction shall not constitute a sale unless the goods are satisfactory, and where such is the contract no sale takes place until the condition is performed. 1 § 664. Who is to be satisfied. — In many of the cases it is expressly stipulated that the sale shall not result unless the buyer is satisfied; but this express stipulation is not necessary. "Where a proposition of sale is made to a person upon the con- 1 It is of course essential that this even though it did good work. Piano shall really be the condition. Thus, Mfg. Co. v. Ellis (1888), 68 Mich. 101, in Clark v. Rice (1881), 46 Mich. 308, 35 N. W. R. 841. 9 N. W. R 427, where the contract So, a contract that a machine may- was that there should be a sale " if, be returned if it does not do good on trial of thirty days, the machine is work will not justify a return if it satisfactory, or does what is claimed does good work, unless the return be for it," it was held that the sale was assented to by the seller. Manny v. absolute if the machine did what Glendinning (1862), 15 Wis. 50. But was claimed for it whether the pur- a stipulation that a machine may be chaser was satisfied or not. But where returned by the purchaser if it does the stipulation was that the machine not suit him and answer his purpose " is to do good work and give satisfao gives him the right to return it if he tion," it was held that the require- is not suited, even though the ma- ment to give satisfaction was an in- chine might answer his purpose, dependent one, and that there was Goodrich v. Van Nortwick (1867), 43 no sale unless it gave satisfaction, I1L 445. 35 545 §§ 665, 6Q6.~\ law of sale. [book ii. dition that he need not purchase unless the article is satisfac- tory, the necessary inference, even in the absence of an express statement, is that he need not buy unless the article is satis- factory to him. 1 §665. If vendee not satisfied there is no sale.— In such cases, if the vendee is in fact not satisfied, there is no sale. It is not enough that he ought to be satisfied, or that the article would be satisfactory to a reasonable man, or that the court or jury deem the article satisfactory. 2 The contract is that the article shall be satisfactory to the vendee himself, and not to some one else. § 666. Reasons for his dissatisfaction.— To assign reasons for one's dissatisfaction is not always easy, nor, in these cases, is it ordinarily necessary. In many cases the question is one appealing to taste, sentiment or artistic sensibility, rather than reason ; and in such cases, frequently, no reason can be assigned, and none, therefore, is required. If the undertaking is, for in- stance, to supply a portrait, a photograph, a bust, a suit of clothes, a musical instrument, or an article of furniture, which shall be satisfactory to the other party, " the buyer may reject it without assigning any reason for his dissatisfaction. In such a case the law cannot relieve against the folly of the vendor by inquiring whether the dissatisfaction of the vendee was based upon reasonable grounds or not. It is even doubtful whether it can inquire into the good faith of the vendee's de- cision." 3 i Singerly v. Thayer (1885), 108 Pa. 312, 18 S. E. R. 591, and many other St. 291, 2 Atl. R. 230; Adams Radiator cases cited in the following notes. Works v. Schnader (1893), 155 Pa. St. 3 Per Brown, J., in Campbell Print- 39 l, 26 Atl. R. 745. See also McCar- ing Press Co. v. Thorp (1888), 36 Fed. ren v. MoNulty, 7 Gray (Mass.), 139. R. 414. 2 See Singerly v. Thayer, supra; In McCarren v. McNulty (1856), 7 Brown v. Foster, 113 Mass. 136; Za- Gray (Mass.), 139, the contract was leski v. Clark, 44 Conn. 218; Gibson for the construction of a book case, v. Cranage, 39 Mich. 49; Palmer v. which the plaintiff agreed to finish Banfield, 86 Wis. 441, 56 N. W. R. "in a good, strong and workmanlike 1090; Osborne v. Francis, 38 W. Va. manner, to the satisfaction of" one 546 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 667. § 667. Duty to test goods. — In the cases mentioned in the preceding section, the case cannot ordinarily be made clearer by any test. It would, of course, be the duty of the buyer to examine the article and not to reject it unseen ; but there could of the defendants. It was held that unless the plaintiff showed that the work was satisfactory to or accepted by the defendant in question he could not maintain the action. Hoffman v. Gallaher (1875), 6 Daly (N. Y.), 42, was the case of a contract to paint the defendant's portrait, it being agreed that the picture should be referred to the defendant's friends, and if thej" thought it a good likeness he would take it, otherwise he would not. The court held that he was not bound to take it unless his friends liked it, and that it was error to in- troduce the portrait in evidence and show it to the jury that they might judge of the portrait as a likeness of the defendant. In the case of Zaleski v. Clark (1876), 44 Conn. 218, 26 Am. R. 446, the plaintiff, who was a sculptor, agreed to make for the defendant a bust of her deceased husband, stipulating that she was not bound to take it unless she was satisfied with it. The bust was completed, .was a fine piece of workmanship and an accurate likeness, but from the very nature of the materials was des- titute of lifedike expression and color. The defendant was not satisfied with it, and would not accept or pay for it; but her dissatisfaction was based upon grounds applicable to all busts. The supreme court said: "Courts of law must allow parties to make their own contracts, and can enforce only such as they actually make. Whether the contract is wise or unwise, rea- sonable or unreasonable, is ordinarily an immaterial inquiry. ... In this case the plaintiff undertook to make a bust which should be satis- factory to the defendant. The case shows that she was not satisfied with it. The plaintiff has not yet then ful- filled his contract. It is not enough to say that she ought to be satisfied with it, and that her dissatisfaction is unreasonable. She, and not the court, is entitled to judge of that. The contract was not to make one that she ought to be satisfied with, but to make one that she icoirfcl be satisfied with. Nor is it sufficient to say that the bust is the best thing of the kind that could possibly be produced. . . . A contract to pro- duce a bust perfect in every respect, and one with which the defendant ought to be satisfied, is one thing; an undertaking to make one with which she icill be satisfied is quite another thing. The former can only be de- termined by experts. The latter can only be determined by the defendant herself. It may have been unwise in the plaintiff to make such a contract, but having made it he is bound by it." In the case of Brown v. Foster (1873), 113 Mass. 136, 18 Am. R. 463, the plaintiff had agreed to make a satisfactory suit of clothes for the defendant. They were made and delivered according to agreement, but the defendant was not satisfied with them and refused to accept them. The court held that he was not obliged to do so, for " it is not for any one else to decide whether a re- fusal to accept is or is not reasou- 547 § 667.] LAW OF SALE. [BOOK II. be no other test than his own convictions or sentiments. There are, however, other cases involving questions of mechanical fitness or adaptability where, from the nature of the case, a test would be required. Thus, if the agreement is to supply a able, when the contract permits the defendant to decide himself whether the articles furnished are to his satis- faction." The rule is further illustrated in the case of Gibson v. Cranage (1878), 39 Mich. 49, 33 Am. R. 351. Here an artist had undertaken to make an enlarged picture from a smaller one, the picture when completed to be one that the purchaser would like and that would be satisfactory to him. The artist made the picture, but the other party was not satisfied with it and would not accept or pay for it. The artist endeavored to as- certain what the objections were, and had the picture changed in some re- spects. He than endeavored to have the other party examine it again, but he refused to do so, and the artist brought suit. On the trial the de- fendant looked at the picture and found it still unsatisfactory to him. The plaintiff urged that he was en- titled to have the defects pointed out and to be allowed a reasonable time to remedy them. He failed to re- cover and appealed to the supreme court, but that court affirmed the judgment, and said: "The plaintiff agreed that the picture when fin- ished should be satisfactory to the defendant, and his own evidence si lowed that in this important par- ticular the contract had not been performed. It may be that the pic- ture was an excellent one and that the defendant ought to have been satisfied with it and accepted it, but under the agreement the defendant was the only person who had the right to decide this question. Where parties thus deliberately enter into an agreement which violates no rule of public policy and which is free from all taint of fraud or mistake, there is no hardship whatever in holding them bound by it. Artists or third parties might consider a por- trait an excellent one and yet it might prove very unsatisfactory to the person who ordered it, and who might not be able to point out with clearness or certainty the defects or objections. And if the party giving the order stipulates that the portrait when finished must be satisfactory to him or else he will not accept or pay for it, he may insist upon his right as given him by the contract." McClure v. Briggs (1886), 58 Vt. 82, 54 Am. R. 715, was a case in which an organ was sold under the con- dition that it should be satisfactory to the purchaser. He was distrustful of his own judgment and called in an expert, who told him the tone of the organ was good, but notwith- standing the expert's opinion he still thought he was dissatisfied with it. The court said: " If he really thought so he was so. . . . He was bound to act honestly and to give the instru- ment a fair trial, and such as the seller had a right, in the circum- stances, to expect he would give it, and therein to exercise such judg- ment and capacity as he had, for by the contract he was the one to be satisfied, and not another for him." In Moore v. Goodwin (1887), 43 548 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ GG7. machine which will work to the vendee's satisfaction, there is necessarily involved the duty on the part of the vendee to try it reasonably in order to determine whether it will do the work or not, and no arbitrary rejection, without a reasonable test, would be consistent with the vendee's duty. 1 If, however, upon such test, it does not work to his satisfaction, he may de- cline to buy it; and the fact that others would deem it satis- factory, or that it worked well before or after his test, would be immaterial. 2 Hun, 534, the defendant contracted to make certain crayon portraits for the plaintiff, not to be accepted unless in all respects satisfactory likenesses. It was held that neither the opposite party nor the jury could decide that he ought to be satisfied with the por- traits made. i In Hartford Sorghum Mfg. Co. v. Brush (1871), 43 Vt. 528, the plaintiff sold a patent sugar evaporator to the defendant, who was to try it and pay for it if he liked it, otherwise the plaintiff was to take it back. The court held that the defendant was bound to bring to the trial of it honesty of purpose and judgment according to his capacity to ascer- tain his wishes, but was not bound to use the care and skill of ordinary persons in making the determina- tion. Daggett v. Johnson (1877), 49 Vt. 345, was an action in assumpsit to recover the price of a number of milk pans. The pans were a patented device for cooling the milk with run- ning water, and the defendant was to pay a certain price if satisfied with them. He used them like ordi- nary pans for a time and then notified the plaintiffs to take them away and refused to pay for them. The court said: "We think the ruling of the court, that the defendant had no right to say, arbitrarily and without cause, that he was dissatisfied and would not pay for the pans, was sen- sible and sound. ... He must act honestly and in accordance with the reasonable expectations of the seller as implied from the contract, its subject-matter and surrounding circumstances. His dissatisfaction must be actual, not feigned; real, not merely pretended." In Singerly v. Thayer (1885), 108 Pa. St. 291, 2 Atl. R 230, 56 Am. R 207, it was claimed that an elevator was rejected as unsatisfactory before it was finished, and the court held that if it was so far incomplete that the purchaser could not reasonably determine whether it was or would be satisfactory to him, his rejection was premature and constituted no bar to the action. See also Exhaust Ventilator Co. v. Chicago, etc. R Co. (1886), 66 Wis. 218, 28 N. W. R 343, 57 Am. R 257. 2 In Gray v. Central R Co. (1877), 11 Hun, 70, a contract was made wherein the defendants agreed to take a certain steamboat for a stipu- lated price, " provided upon trial they are satisfied with the soundness of her machinery, boilers, etc." Held, that this wording of the written in- strument expressed precisely what both parties meant, and it was im- 549 § 668.] LA.W OF SALE. [BOOK II. § 668. Duty to act in good faith. — It clearly is the duty of the vendee in these cases, it is said, to act in good faith and with honesty of purpose, and not to express a dissatisfac- tion which is wholly feigned or simulated. 1 In ordinary cases, material whether they ought to have been satisfied. Brady, J., dissenting, did " not agree with the proposition that the defendants had a right to declare arbitrarily that they were not satisfied with the soundness of the machinery, etc." Aiken v. Hyde (1868), 99 Mass. 183, was a case where a machine was sold with the agreement that it should be '• entirely satisfactory in all respects" to the vendee, or it might be re- turned. It was held that the buyer was not bound to give any notice of its failure, and it was immaterial that the machine worked well in the hands of the vendor after being re- turned to him. In Clark v. Rice (1881), 46 Mich. 308, 9 N. W. R. 427, the contract of sale contained the provision "if on trial of thirty days the machine is satisfactory, or does what is claimed for it." The defendant claimed that he could reject the heater if not sat- isfactory to him, whether it met the warranty or not. But the court held that the contract very clearly bound him to pay, whether satisfied or not, if the machine did what was claimed for it. In Wood Reaping, etc. Mach. Co. v. Smith (1883), 50 Mich. 565, 15 N. W. R. 906, the defendant insisted on the stipulation, in addition to the ordi- nary warranty, that the contract should be of no effect unless the ma- chine worked to the purchaser's sat- isfaction. The court held that while the cases in which the right of de- cision is completely reserved to the promisor without liability to disclose reasons "are generally such as in- volve the feelings, taste or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capa- ble of being seen and appreciated by others," yet "this is not always so. It sometimes happens thai the right is fully reserved where it is the chief ground, if not the only one, that the party is determined to pre- serve an unqualified option, and is not willing to leave his freedom of choice exposed to any contention or subject to any contingency." The transaction was declared to belong to this class. Pope Iron and Metal Co. v. Best (1883), 14 Mo. App. 502, was a case where a furnace was sold under the condition that it should "work sat- isfactorily in melting iron." It was held that the opinions and feelings of the managers of the plaintiff cor- poration were not, by the contract, made the test, but that the contract, fairly construed, meant that the fur- nace should work satisfactorily to a reasonable and fair-minded man who was an expert in such matters. In Singerly v. Thayer (1885), 108 Pa. St. 291, 2 Atl. R. 230, 56 Am. R. 207, it was held that where an ele- vator was put into a building and " warranted satisfactory in every re- spect," the fair inference was that the elevator was to be satisfactory to the purchaser; and while it could not be rejected arbitrarily, yet a bona li'ir objection by him to its working was a valid defense to the action. Un Baltimore & Ohio R Co. v. 550 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ G6S. however, there can be no means of inquiring into the good faith of his purpose, though circumstances may exist which would make it clear; and so far as those cases are concerned which appeal solely to considerations of taste, sentiment or Bryclon (1885), 65 Md. 198, 3 AtL R. 306, 57 Am. R 318, the plaintiff con- tracted to supply the defendant with coal "of such quality as should be satisfactory to defendant's masters of transportation and machinery." It was held that this term of the contract did not give the officers named a capricious or arbitrary dis- cretion to reject it. It was their judgment which was to decide the question of acceptance, but the law required them to exercise a fair, just and honest judgment on the subject. On the question of fraud it was held proper to show what knowledge and means of knowledge they had of the quality of the coal and its fitness for the use intended. Silsby Mfg. Co. v. Town of Chico (1885), 24 Fed. R. 893, involved the sale of a steam fire engine " subject to the approval of the fire commit- tee," the vendor warranting " the workmanship, finish and perform- ance of the machine satisfactory to them, or the same to be removed without expense." It was held that, in the absence of fraud, it was not enough that the vendees ought to be satisfied; they must be satisfied, or they are not bound to accept it. In Exhaust Ventilator Co. v. Chi- cago, etc. R. Co. (1886), 66 Wis. 218, 28 N. W. R. 343, 57 Am. R 257, fans were sold under a warranty that " they will exhaust the smoke and gases in a satisfactory manner." The court held that " if the fans are not honestly and in good faith satisfac- tory to the defendant, and the defend- ant notified the plaintiff of that fact in a reasonable time, then and in that case there had been no sale, and the defendant is not liable for the price." Duplex Safety Boiler Co. v. Garden (1886), 101 N. Y. 387, 4 N. E. R. 749, 54 Am. R. 709, was a case of rebuild- ing boilers, which were to be paid for as soon as the defendants " are satisfied that the boilers as changed are a success." As soon as the boil- ers were changed the defendants be- gan to use them and continued to do so. The defendants defended an ac- tion for the price on the ground that the question of the success of the boilers was for them alone. But the court held that a simple allegation of dissatisfaction, without some good reason assigned for it, might be a mere pretext, and cannot be re- garded. In McCormick Mach. Co. v. Coch- ran (1887), 64 Mich. 636, 31 N. W. R, 561, a warranty of a machine to give the defendant satisfaction was held to contemplate a reasonable satis- faction. In the case of Seeley v. Welles (1888), 120 Pa. St. 69, 13 Atl. R. 736, the defendant testified that he told plaintiff's agent that he would not take the reaper until he tried it, and if it worked to suit him, and his team could handle it on his farm, he would buy it, and that he was to be the judge of this himself. Assuming the truth of this testi- mony the court held that although his objections may have been ill- founded or even unreasonable, yet if 551 § 669.] LAW OF SALE. [book IT. artistic sensibility, it is, as has been said, doubtful whether the vendee's motives can be questioned. § 669. Within what time decision to he made.— The par- ties may, by their contract, expressly stipulate as to the time within which the decision is to be reached; but if they have they were made in good faith he had a right to reject the reaper. A similar conclusion was reached in Piatt v. Broderick (1888), 70 Mich. 577, 38 N. W. R. 579, where a ma- chine was sold with the understand- ing that it would be paid for if it suited the purchaser. The court held that under the agreement it was immaterial whether the machine worked well or not. The defendant . was to be satisfied with it, and if it did not suit him he had a right to return it. In Hawkins v. Graham (1889), 149 Mass-284, 21 N. E. R. 312, the plaint- iff agreed to put a heating plant into defendant's buildings, to be paid for upon satisfactory completion. If not able to heat the buildings "in ac- cordance with the requirements as above set forth," the plaintiff was to remove the machinery at his own expense. But if the heating was sat- isfactory and conformed to the re- quirements, the price was to be paid " after such acknowledgment by the owner or the work demonstrated." It was held that the evident intent of these phrases was that the satis- factoriness of the system was to be determined by the mind of a reason- able man and by the external meas- ures set forth in the conti'act. In the case of United States Fire- Alarm Co. v. Big Rapids (1889), 78 Mich. 67, 43 N. W. R. 1030, the plaint- iff contracted to furnish defendant witli a fire-alarm bell, which was to be tested by defendant and ac- cepted if it proved satisfactory. The common council tested it and were not satisfied, and rejected the bell. Held, that the common council was not bound to accept it unless satis- fied after the test. In Warder v. Whitish (1890), 77 Wis. 430, 46 N. W. R. 540, the de- fendant took a binder with the un- derstanding that he could try it and if not suited he could return it at any time. A charge that he might reject it whether it was capable of doing good work or not was ap- proved. In Howard v. Smedley (1891)* 140 Pa. St. 81. 21 Atl. R. 253, the court held that where the plaintiff con- tracted to erect an elevator in de- fendant's hotel, to be paid for when " in running order satisfactory to " the defendant, it was not error to enter a peremptory nonsuit upon showing by the plaintiff that the ele- vator was not running to his satis- faction and that his objections did not arise out of mere caprice. Osborne v. Francis (1893), 38 W. Va. 312, 18 S. E. R. 591, 45 Am. St. R. 859, was a case where the defendant agreed to take a binder if it worked to his satisfaction. He was not sat- isfied with it and refused to accept it. There was no written contract, but the court held that the evidence sufficed to show that the buyer ex- pressly reserved the right to reject and send back the machine if on 532 CH. III. J CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 669. not, a reasonable time would be implied. In either event the vendee must exercise his right within the time so fixed, and a failure to do so, without reasonable excuse, would furnish strong evidence of satisfaction. 1 trial it should not be satisfactory to him positively and generally with- out saying in what respect. In the case of Jay v. Wilson (1895), 91 Hun, 391, the court held that where a loan is to be made upon a title, provided the title is satisfactory to the attorneys of the lender, the at- torneys have no right to refuse arbi- trarily or capriciously to be satisfied with the title. In Crane Elevator Co. v. Clark (1897), 53 U. S. App. 257, 80 Fed. R. 705, 26 C. C. A. 100, an elevator was to be put into a building subject to the satisfaction of the architect. It was held that the decision of the architect was conclusive, but the par- ties had a right to his independent and honest judgment. 1 In Wood Reaping, etc. Mach. Co. v. Smith (1883), 50 Mich. 565, 15 N. W. R. 906, the court said of a provision in a warranty calling for immediate notice, in case a machine did not work well, "This provision for im- mediate notice does not mean the shortest time possible in which notice could be given. The terms must re- ceive a sensible interpretation — an interpretation favorable to the gen- eral object and consistent with the surrounding conditions. It would be necessary to make allowance for the engagements of the parties, the dis- tance between them, the facility of communication, and any other inci- dents having a bearing. No greater dispatch would be implied than such as would be fairly just and reason- able in view of all the circum- stances." Pierce v. Cooley (1885), 56 Mich. 552, 23 N. W. R. 310, was a case where the defendants purchased a machine from the plaintiffs, to be accepted if it worked to defendants' satisfaction, and paid for by a note due May 1, 1884, or by cash payment on that day. The court held that the option to take or reject continued until May 1, 1881, when they were undoubtedly bound to decide. Prior to that date title could not pass with- out an acceptance by the purchaser. In Stutz v. Coal & Coke Co. (1889), 131 Pa. St. 267, 18 Atl. R. 875, ma- chinery was sold with the stipula- tion that it was " to be first class in all particulars, and perform in a sat- isfactory manner," and thirty days were allowed for trial. But the ma- chinery, while not satisfactory, was retained after the expiration of the thirty days, and the plaintiffs were notified that unless they put it into satisfactory working condition the defendants would have it done at plaintiffs' expense. This, the court held, was an election to keep the ma- chinery. In the case of Aultman v. Wykle (1889), 36 111. App. 293, the defendant bought a machine from the plaintiff with a warranty that it would do good work. Five days were, by the terms of the agreement, allowed for the trial, and if dissatisfied the de- fendant was to give immediate no- tice, but if no notice was given within that time and defendant continued to use the machine, it was to be conclusive evidence of satisfaction. Held, that an instruction ignoring 553 §§ 670, 671.] LAW OF SALE. [BOOK II. § 670. Duty to give notice or return. — Unless so stipulated in the contract, the vendee is not bound to return the article; he performs his duty when he gives reasonable notice of his dissatisfaction. 1 The contract may, however, require him to return the article, and if it does this provision must be complied with. §671. How buyer's satisfaction indicated. — The fact of the buyer's satisfaction may be established in a variety of ways. There may, of course, be express admissions of the fact; but other forms will suffice. Retention beyond a reasonable time has already been suggested, and a failure to return where that was required. A sale or disposition of the article as one's own would also be evidence, ordinarily conclusive; and so would the fact that the buyer had kept and consumed the article in the terms of the contract and allow- ing defendant a reasonable time in which to test the machine was error. In the case of C. & C. Electric Motor Co. v. Frisbie (1895), 66 Conn. 67, 33 AtL R. 604, an elevator was put in with the agreement that it should be a satisfactory working machine for one year. It was claimed that this was a condition of the sale and by its express terms gave the plaint- iff a year in which to reject. But the court held that such a warranty is not a condition at all; if it were it would be a subsequent, not a pre- cedent, one. Hence there was no error of law in the finding that the plaintiff had, by acts and conduct, accepted the elevator prior to the expiration of the year. In Forsaith Mach. Co. v. Mengel (1894), 99 Mich. 280, 58 N. W. R 305, defendants purchased a match ma- chine with the privilege of returning it if not satisfactory. Four months after they were in a position to test the machine, and nearly a year after shipment, the defendants for the first time proposed to return the machine. Held, that the delay was clearly un- reasonable. The defendants had the option of accepting or rejecting the machine, but they were bound to act promptly, and retention beyond a reasonable time is tantamount to an acceptance. In Palmer v. Banfield (1893), 86 Wis. 441, 56 N. W. R 1090, the vendee of a harvesting machine had a right to return it either because of defects or dissatisfaction. He was not sat- isfied but continued to use it, not as further test but to complete his har- vest. Held, to constitute an accept- ance whereby his right to return was lost. i Esterly v. Campbell (1891), 44 Mo. App. 621 [citing Exhaust Vent. Co. v. Railroad Co., 69 Wis. 454; McCormick Harv. Machine Co. v. Chesrown, 33 Minn. 32; Gibson v. Vail, 53 Vt. 476; Hunt v. Wyman, 100 Mass. 198]. 554 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 672, 673. use. 1 A refusal to restore the goods to the seller would have the same effect. 2 5. Sale if Approved oy Third Person. §672, Sales upon approval of third person. — But the principle of the foregoing sections, so far as they hold that the question is one for the unlimited arbitrament of the vendee, without inquiry into motives, does not, it is said, 3 "apply, in its unqualified form, in a case where the contracting parties have expressly stipulated that the article to be supplied shall be such, in respect to the quality or otherwise, as shall be ap- proved by or satisfactory to some third person, though that third person may be an agent or an employee of one of the parties to the contract. In such case, though it be made a con- dition precedent that the article shall be approved by the party designated, yet, if it can be shown that the approval has been withheld from motives of selfish interest, bias, partiality or corruption, the party prejudiced by such action may, notwith- standing the absence of such approval, recover on the contract for the non-acceptance of the article furnished." § 673. - — Third person must act in good faith. — '• In such contracts it is an implied condition that the person desig- nated to approve shall act with entire good faith to both of the contracting parties. Both parties have the right to insist upon such good faith, and the want of it will dispense with the condition requiring the approval. The court will not allow a defendant to avail himself of the condition precedent to de- feat the right of the plaintiff to recover for a violation of the contract, where there has been fraud or mala fides on the part of the person appointed to approve or disapprove. But in the absence of fraud or bad faith in the conduct of such party, in respect to the fact of his approval or the withholding of it, his judgment or determination is to be accepted as final and con- i Boothby v. Piaisted (1871). 51 N. H. 2 Jones v. Wright (1873), 71 III. 61. 436, 12 Am. R, 140; Delamater v. 3 Baltimore & Ohio R. Co. v. Biy don Chappell (1877), 48 Md. 241. (1885), 65 Md. 198, 57 Am. R. 318. 555 § 673.] LAW OF SALE. [BOOK II. elusive. No mere error or mistake of judgment will vitiate his determination. The very object of his appointment is to prevent and exclude contention and litigation ; and hence noth- ing short of fraud' or mala fides in the exercise of his power to reject or approve the article contracted for will dispense with the strict legal effect of the condition precedent. This is now the settled doctrine, in respect to this class of contracts, in the courts both of this country and of England." l i Baltimore & Ohio R. Co. v. Brydon, supra [citing Wilson v. Y. & Md. Line R. Co., 11 G. & J. (Md.) 58; Lynn v. Baltimore & Ohio R. Co., 60 Md.. 404, 45 Am. R. 741 ; Sweeney v. United States, 109 U. S. 618; Martinsburg v. Potomac R. Co., 114 U. S. 549; Sharpe v. San Paulo R. Co., L. R. 8 Ch. A pp. 597]. "Wood was purchased, to be meas- ured and received by the quarter- master at Walla Walla. Held, that title did not pass until such measure- ment and receipt by the quarter- master at Walla Walla. Rosenthal v. Kahn (1890), 19 Oreg. 571, 24 Pac. R. 989. A ship-builder agreed to alter, fit for sea and deliver a gun-boat as a merchant vessel, under the inspec- tion and subject to the approval of a third person who was experienced in ship-building. Held, that the third person named was made an arbitra- tor between the parties, and his ap- proval was binding upon them as an award, however much he may have erred in his judgment. Flint v. Gib- son (1871), 106 Mass. 391. Plaintiff was the vendor of a de- vice to be used in boilers for the purpose of saving fuel. Defendant agreed to take one provided that upon trial it made a saving of twelve per cent, and his engineer was to be the judge of its performance. The test was made and the engineer's decision rendered to the effect that it saved more than the required amount. Held, that this decision of defendant's engineer "is to be con- sidered as the award of a referee under a submission to arbitrate. In the absence of any suggestion of fraud, this award cannot be im- peached on the ground of any error in judgment on his part." Robbins v. Clark (1880), 129 Mass. 145. De- fendant purchased meat from plaint- iffs, of a stipulated kind and quality, and appointed an inspector, with plaintiffs' approval, to pass upon it as satisfying the terms of the con- tract. The meat was inspected and approved by the inspector, and put upon the cars for shipment, but de- fendant refused to take it. Accord- ingly it was sold by plaintiffs and action brought for damages. Held, that the substance of the agreement was that the defendant would accept such meat, when delivered, as had been inspected and pronounced in conformity with the terms of the contract. In the absence of fraud the purchaser was as much bound to receive the meat as though he had inspected and approved it in person. Nofsinger v. Ring (1879), 71 Mo. 149. But where a contract was made for the delivery of about sixty thou- sand blocks of granite according to certain directions, provided that if 556 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§§ 674, 675. 6. Sate of Goods to ~be Appraised. § 674. Title does not pass ordinarily until appraisal.— It has been seen in an earlier chapter l that it is competent for the parties to contract for the sale of goods at a price which shall be fixed by some third person specified or to be agreed upon, and that, when the price is so fixed, it becomes operative between the parties as though they had themselves deter- mined it. But in order that such a contract of sale shall operate to pass the title, it is, in general, essential that the price shall be fixed as provided in the agreement; for if the parties fail to agree upon the valuer, or if the latter fails or refuses to act, the contract, if executory, must lack an essential element, and the title will not pass, 2 unless a contrary intention appears, even though the failure to procure the appraisal was due to the default of one of the parties. 3 Where, however, the goods have been delivered, and the vendee has prevented the valu- ation, as by consuming or disposing of the goods before the value was fixed, he will be liable for their reasonable value. 4 7. Sale or Return. §675. Sale with option to return or pay.— To be distin- guished from the cases in the last sections are those in which the option is the opposite, *'. e., that the article is purchased and shall be paid for unless it be returned. at any time, in the judgment of the plaintiff. Connecticut Valley, defendants' engineer, plaintiff was etc. Co. v. Trustees (1898), 32 App. manifestly unable to furnish the Div. (N. Y.) 83. blocks as required, then the trustees 1 See ante, §§ 202, 203. might declare the contract null and 2 Fuller v. Bean (1857), 34 N. H. void, the court held that the ques- 290'; Hutton v. Moore (1870), 26 Ark. tion of the ability of the contractor 382. to furnish the stone did not rest 3T/hurnell v. Balbirnie (1837), 2 exclusively with the engineer, but Mees. & Wels. 786; Vickers v. Vick- that a jury might properly consider ers (1867), L. R. 4 Eq. 529; Milnes v. whether, under the circumstances, Gery (1807), 14 Ves. 400; Wilks v. the engineer had any sufficient justi- Davis (1817), 3 Meriv. 507. fication for his decision adverse to 4 Clarke v. Westrope (1856), 18 Com. 557 §§ 676, 677.] law of sale. [book ii. g 676. Here there is a present sale subject to a con- dition subsequent.— As is said in one case: 1 "An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined ; in the other the property passes at once, subject to the right to rescind and re- turn." This is directly in line with cases already considered in a previous section when treating of deposits of grain, in which it was found that a sale existed whenever the owner had con- ferred upon the other party the option to determine whether to pay for the article in money or property as he should elect. 2 § 677. Nature of title acquired by vendee — Risk of loss.— A contract of this nature, as has been seen, constitutes usually a present sale subject to be defeated by a condition subsequent. Until return, therefore, the title is in the vendee. lie may sell the goods as his own, 3 and thus defeat the return; or they may be seized by his creditors, 4 with like effect. The risk usually is "his also, as the risk follows the title, 5 excepting, perhaps, such B. 765, 86 Eng. Com. L. 764; Humas- facture and sale of soda-water de- ton v. Telegraph Co. (1873), 20 Wall, livers it in bottles to a customer, and (U. S.) 20; Kenniston v. Ham (1854), takes a deposit from him with the 29 N. H. 501. understanding that he may return 1 Hunt v. Wynian (1868), 100 Mass. the bottles and take back the deposit, 198. To same effect: McKinney v. or keep the bottles and regard the de- Bradlee (1873), 117 Mass. 321; Foley posit as. a payment, as he may elect, v. Felrath (1893), 98 Ala. 176, 13 S. R. such a transaction amounts to a sale 485; Wind v. Her (1895), 93 Iowa, 316, of the bottles at the election of the 61 N. W. R. 1001, 27 L. R. A. 219; purchaser. People v. Cannon (1893), Str, uss Saf\alery Co. v. Kingman 139 N. Y. 32, 34 N. E. R. 759, 36 Am. (1890), 4^ Mo. App. 208; Jameson v. St. R. 668, distinguishing Westcott v. Gregory (1863), 4 Mete. (Ky.) 363; Thompson (1858), 18 N. Y. 363. Johnson v. McLane (1845), 7 Blackf. 2 See ante, § 34. (Ind.) 501, 43 Am. Dec. 102; Walker 3 Dearborn v. Turner (1839), 16 Me. v. Blake (1854), 37 Me. 373; Allen v. 17, 33 Am. Dec. 630; McKinney v. Maury (1880), 66 Ala. 10; Robinson v. Bradlee (1873), 117 Mass. 321. Fairbanks (1886), 81 Ala. 132; House 4 Martin v. Adams (1870), 104 Mass. v. Beak (1892), 141 111. 290, 30 N. E. R. 262; Hotchkiss v. Higgins (1884), 52 1065, 33 Am. St. R. 307. Conn. 205, 52 Am. R. 582. If a person engaged in the manu- 5 As where goods are destroyed by 558 CH. III.] CONDITIONAL SALE OF SPECIFIC CHATTELS. [§ 677. risks as inhere in the very nature of the property or are inci- dental to the tests or other acts which the contract gives the buyer the right to perform. 1 fire before return (Strauss Saddlery Co. v. Kingman (1890), 42 Mo. App. 208; Foley v. Felrath (1893), 98 Ala. 176, 13 S. R. 485); or a horse dies. Carter v. Wallace (1884), 32 Hun 7ace at which the title passes. 1 With the title also go the risk and the liability, and the seller may recover the price, though the goods never arrive, or, without his fault, are injured on the way. 2 The goods, moreover, having become the property of the buyer are subject to the same rights and liabil- ities as his other goods, and are taxable or attachable, as well as transferable, as his own. The seller, further, thus performs on his part, and the order for the goods is no longer open to withdrawal or revocation by the purchaser. 3 iTIius, in Sarbecker v. State (1886), 65 Wis. 171, 56 Am. R 624, it is said: " We are constrained to hold that where the contract is silent on the subject, and there is nothing in the transaction indicating a different in- tention, and a manufacturer in one city receives through his agent re- siding in another an order for goods from a customer there, and fills the order by delivering the goods to a common carrier at the place of man- ufacture, consigned to such customer at his place of residence, or to such agent for him, the sale is complete and the title passes at the place of shipment, even though the customer on receiving the goods at his place of residence pays to such agent there the purchase price. . . . The same princi pie has frequently been applied in the sale of liquors to a purchaser residing in a place where all such sales, or all such sales without license, were prohibited. Garbracht v. Com., 96- Pa. St. 449, 42 Am. R 550; Finch v. Mansfield. 97 Mass. 89; Abberger v. Marrin, 102 Mass. 70; Brockway v. Maloney. 102 Mass. 308; Dolan v. Oreen, 110 Mass. 322; Frank v. Hoey, 128 Mass. 263; Hill v. Spear, 50 N. H. 253, 9 Am. R 205; Tegler v. Shipman, 33 Iowa, 194, 11 Am. R 118; Boothby v. Piaisted, 51 N. H. 436, 12 Am. R. 140; Shuenfeldt v. Junkermann, 20 Fed. R. 357." See also State v. Wing- field (1893), 115 Mo. 428, 22 S. W. R 363, 37 Am. St, R 406; Com. v. Flem- ing (1889), 130 Pa. St. 138, 18 Atl. R. 622, 17 Am. St, R. 763; State v. O'Neil, 58 Vt. 140, 56 Am. R 557; State v. Carl, 43 Ark. 353, 51 Am. R 565; State v. Peters, 91 Me. 31, 39 Atl. R 342. See also further in chapter on Illegal Sales, post, §§1125 et seq. 2 If goods are properly delivered to the carrier, the risk of loss, injury or depreciation falls from that time upon the purchaser. Diversy v. Kel- logg (1867), 44 111. 114, 92 Am. Dec. 154; Whiting v. Farrand (1814), 1 Conn. 60; Ranney v. Higby (1855), 4 Wis. 154, 5 Wis. 62; Janney v. Sleeper (1883), 30 Minn. 473; Magruder v. Gage (1870), 33 Md. 344, 3 Am. R 177; Bur- ton v. Baird (1884), 44 Ark. 556; Mo- bile Fruit Co. v. McGuire (1900), — Minn. — , 83 N. W. R 833; Lord v. Edwards, 148 Mass. 476, 20 N. E. R. 16, 2 L. R. A. 519; Mee v. McNider, 109 N. Y. 500, 17 N. E. R 424. The fact that the seller has a lien upon them for the price (see post, the Sellers Lien), or has reserved the jus dispo- nendi (see p>ost, ch. VI), will not nec- essarily operate to prevent the risk from passing to the buyer upon the shipment. Hobart v. Littlefield (1881), 13 R. L 341, and other cases referred to in the note to the following sec- tion. 3 Leggett & Meyer Tobacco Co. v. 613 § HO.] LAW OF SALE. [BOOK II. § 740. Intention governs. — The delivery to the carrier to pass the title must be unconditional and made with the in- tention that the title shall pass thereby. 1 Of this intention, where the facts are in dispute, the jury is to judge. Consign- ing the goods without restriction to the purchaser, or assigning and transmitting to him the bill of lading, are strong evidences of an intention to pass the title, and cannot be controlled by secret determinations to the contrary. 2 And so though the Collier (1893), 89 Iowa, 144, 56 N. W. R. 417. i Godts v. Rose (1855), 17 Cora. B. 229. 2 In Wigton v. Bowley (1881), 130 Mass. 252, it is said: "In the sale of specific chattels an unconditional delivery to the buyer or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or not, is sufficient to pass the title, if there is nothing to conti'ol the effect of it. If the bill of lading or written evidence of the delivery to a carrier be taken in the name of the consignee, or be transferred to him by indorsement, the strongest proof is afforded of the intention to trans- fer the property to the vendee. Mer- chants' National Bank v. Bangs, 102 Mass. 291. If the vendor intends to retain the right to dispose of the goods while they are in course of transportation, he must manifest that intention at the time of their deliv- ery to the carrier. It is not the secret purpose, but the intention as dis- closed by the vendor's acts and dec- ollations at the time, which governs. Foster v. Ropes, 111 Mass. 10; Upton v. Sturbridge Mills, 111 Mass. 446. Where there is conflicting evidence as to intention the question is for the jury. It cannot be disposed of as matter of law unless the evidence will justify a finding but one way. National Bank of Cairo v. Crocker, 111 Mass. 163; National Bank of Chi- cago v. Bailey, 115 Mass. 228; Alder- man v. Eastern Railroad Co., 115 Mass. 233." In Merchants' National Bank v. Bangs (1869), 102 Mass. 291 (supra), it is said : " In all completed contracts of sale property in the goods sold passes to the buyer, although they may not have come to his actual possession. An unconditional sale of specific chattels passes the title at once, and the buyer takes the risk of loss and has the right to immedi- ate possession. When anything re- mains to be done in the way of specifically appropriating the goods sold to the contract, the agreement is executory and the property does not pass. When, from the nature of the agreement, the vendor is to make the appropriation, then, as soon as any act is done by him identify- ing the property and it is set apart with the intention unconditionally to apply it in fulfillment of the con- tract, the title vests and the sale is complete. Thus the delivery to the buyer or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or not, if there is nothing in the circumstances to control the effect of the transaction, will be sufficient. If the bill of lad- ing or other written evidence of the delivery to the carrier be taken in 614 CH. IV.] EXISTING CHATTELS NOT TET IDENTIFIED. [§ 740. goods are, by the terms of the contract, to be paid for by note the name of the consignee, or be transferred to him by indorsement, the strongest proof is afforded of the intention to transfer an absolute title to the vendee. But the vendor may retain his hold upon the goods to secure payment of the price, al- though he puts them in course of transportation to the place of desti- nation by delivery to a carrier. The appropriation which he then makes is said to be provisional or condi- tional. He may take the bill of lad- ing or carrier "s receipt in his own or some agent's name, to be transferred on payment of the price by his own or his agent's indorsement to the purchaser, and in all cases when he manifests an intention to retain this jus disponendi the property will not pass to the vendee. Practically the difficulty is to ascertain, when the evidence is meagre or equivocal, what the real intention of the parties was at the time. It is properly a ques- tion of fact for the jury, under proper instructions, and must be submitted to them unless it is plain as matter of law that the evidence will justify a finding but one way. Allen v. Williams, 12 Pick. (Mass.) 297; Stan- ton v. Eager, 16 id. 467; Stevens v. Boston & Wor. R. Co., 8 Gray (Mass.), 262; Coggill v. Hartford & N. H. R. Co., 8 id. 545; Moakes v. Nicolson, 19 C. B. (N. S. ) 290; Godts v. Rose, 17 C. B. 229; Tregelles v. Sewell, 7 H. & N. 574" In Wigton v. Bowley, supra, A ordered a car-load of flour of B, at an agreed price f. o. b., and authorized him to draw for the price at ten days' sight. B delivered the flour to a carrier, taking a receipt in which A was named as consignee, and sent it, attached to a draft, to a bank, with directions to deliver the receipt on acceptance of the draft. The draft was not accepted, and it and the re- ceipt were returned to B. A sold the flour to C, who bought in good faith and obtained possession of it from the carrier. Held, That these facts justified a finding that the title to the flour passed to A upon delivery to the carrier and that B could not recover it from C. In Browne v. Hare (1858), 3 H. & N. 484, 4 H. & N. 822, defendant ordered of plaintiffs, through their broker, a quantity of oil, to be shipped f. o. b. Plaintiffs shipped the oil, and wrote their broker to so advise defendant, which he did. The bdl of lading was taken to plaintiffs' order or assigns. They indorsed the bill of lading to defendant and sent it with invoice to the broker. He sent these papers to defendant. The ship was actually lost before the papers were received by the broker, but defendant did not learn of it until two hours after he had received the bill of lading from the broker, when he at once returned it. Held, that the title had passed. Said Erie, J. : " 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 property passed when the goods were placed free on board in performance of the contract. In this class of contracts 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. If the bill of lading 615 § 740.] LAW OF SALE. [BOOK II. or in cash on arrival, 1 or though the seller takes a bill of lading in his own name and retains it, the title may still pass upon the had made the goods to be delivered ' 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 in- tention with which the bill of lading was taken in this form, whether the consignor shipped the goods in per- formance of his contract to place them free on board, or for the pur- pose of retaining control over them and continuing owner contrary to the contract. 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 neces- sarily prevented the property from passing. In our opinion it did not, under the circumstances." 1 Thus, in Farmers' Phosphate Co. v. Gill (1888), 69 Md. 537, 16 Atl. R. 214, 1 L. R. A. 767, 9 Am. St. R. 443, it is said: '• We think the law is well settled that where a buyer purchases or orders a specific quantity of goods to be shipped to him from a distant place, and the seller segregates and appropriates to the contract the specified quantity by delivering them to a vessel designated by the buyer, or, in the absence of such designation, to a common carrier, the mere fact that the contract contains a stipula- tion that they are to be paid for by note or in cash on arrival does not prevent the title from passing or make either payment or arrival a condition precedent thereto. In such case the goods become the property of the vendee, and are at his risk from the time they are put on board the vessel," citing Magruder v. Gage, 33 Md. 344, 3 Am. R. 177 Appleman v. Michael, 43 Md. 2G9 Dutton v. Solomonson, 3 Bos. & Pul 582; Fragano v. Long, 4 B. & C. 219 Alexander v. Gardner, 1 Bing. N. G 671. See also Sarbecker v. State (1886), 65 Wis. 171, 56 Am. R. 624, where it is said that the title will pass on de- livery to the carrier, even though the purchaser on receiving the goods at his place of residence pays the pur- chase price there to the seller's agent. To like effect: State v. Wingfield (1893), 115 Mo. 428, 22 S. W. R. 363, 37 Am. St. R. 406, citing State v. Hughes, 22 W. Va. 743. C. 0. D. — As to the effect where goods are sent G O. D., the authori- ties are in conflict. In State v. Intoxicating Liquors (1882), 73 Me. 278, where liquors had been ordered in Maine from a firm in Boston to be sent by express G O. D., and they were so sent, the court held that the title passed on the delivery to the carrier in Boston. The same rule was adhei-ed to in a case of the sale of " butterine." State v. Peters (1897), 91 Me. 31, 39 Atl. R. 342. In Com. v. Fleming (1889), ICO Pa. St. 138, 18 Atl. R. 622, 17 Am. St, R. 763, 5 L. R. A. 470, where the question was as to the place of sale of in- toxicating liquors shipped G O. D. on order from one county to another, it was held that the title passed upon delivery to the carrier, and that the only effect of the terms G G. D. was to make the carrier the agent of the 616 CH". IV.] EXISTING CHATTELS NOT YET IDENTIFIED. [§ T40. delivery to the carrier if such were the intention. 1 Notice of the shipment is not necessary unless stipulated for. 2 seller to collect the price. Three judges dissented. State v. Carl (1884), 43 Ark. 353, 51 Am. R. 565; Pilgreen v. State (1882), 71 Ala. 368; Brech- wald v. People (1886), 21 111. App. 213, are similar. Norfolk Southern R. Co. v. Barnes (1889), 104 N. C. 25, and Crook v. Cowan (1870), 64 N. C. 743, are to same effect. On the other hand, in State v. O'Neil (1885), 58 Vt, 140, 56 Am. R. 557 (see also O'Neil v. Vermont, 144 U. S. 323, where the question is dis- cussed, but writ of error dismissed for want of jurisdiction); United States v. Shriver (1885). 23 Fed. R. 134 (S. C siib nom. People v. Shriver, 31 Alb. L. Jour. 163): State v. Wingfield (1893), 115 Mo. 428, 22 S. W. R. 363, 37 Am. St. R. 406, where intoxicating liquors were sent C. O. D., it was held that the title did not pass until pay- ment and delivery. So also United States v. Cline (1885), 26 Fed. R. 515. See also Wagner v. Hallack (1877), 3 Colo. 176. A consignee to whom goods are shipped C. O. D. has neither title nor right of possession which will sus- tain replevin for the goods against the carrier, before payment and de- livery. Lane v. Chadwick (1888), 146 Mass. 68, 15 N. E. R. 121. 1 The intention governs, and title may pass even though consignor takes the bill of lading in his own name and does not send it to vendee. Straus v. Wessel (1876), 30 Ohio St. 211 ; Joyce v. Swann (1864), 17 C. B. (N. S.) 84. To like effect : Hobartv. Littlefield (1881), 13 R. I. 341. In Joyce v. Swann, siqyra, the court said: "It is true that the bill of lad- ing was taken in the names of the sellers, and at the time the insurance was declared was unindorsed. That was a circumstance which was well worthy the attention of the jury and might have induced them to come to a contrary conclusion. But if they thought that, notwithstanding this, there were other circumstances suffi- ciently cogent to induce them to come to the conclusion that the prop- erty was intended to pass, I am of opinion that the mere circumstance of the form of the bill of lading and of the invoice being transmitted to [an agent] instead of to [the buyer] direct was not sufficient to annihilate the other evidence in the cause, though it might induce the jury to pause. The cases of Wait v. Baker, 2 Ex. 1, and Browne v. Hare, 3 H. & N. 484, 4 id. 822, appear to me clearly to establish the distinction that if, from all the facts, it may fairly be inferred that the bill of lading was taken in the name of the seller in order to re- tain dominion over the goods, that shows that there was no intention to pass the property; but if the whole 2 "The general rule with respect to consignments to third persons, so as to place the property at the risk of the buyer, is that notice shall be given. Goom v. Jackson, 5 Esp. 112. But where the carrier or warehouse- man is named or indicated by the buyer, a delivery to the carrier, etc., is a delivery to the buyer. Dawes v. Peck, 8 T. R. 330; Cooke v. Ludlow, 2 Bos. & P. (N. R.) 119." Bradford v. Marbury (1847), 12 Ala. 520, 46 Am. Dec 264. 617 '41.] LAW OF SALE. [book II. § 711. Payment of freight as evidence.— It has been thought in a few cases 1 that the fact that the seller was to pay the freight would operate to prevent the passing of title by- delivery to the carrier; but it is clear that this is not conclusive and that the title will pass if such appears to be the intention, notwithstanding such an agreement. 2 of the circumstances lead to the con- v. Woodhall, 113 Mass. 391; Havens elusion that that was not the object, the form of the bill of lading has no influence on the result." In Hobart v. Littlefield, supra, where the bill of lading had been issued to the sellers and, having been indorsed in blank, had been at- tached to a draft on the buyer, the court said: " In the present case the title might pass on the completion of the bargain, and the selection and appropriation of the cotton to that purpose, in such a manner that the goods would be at the buyer's risk and yet the seller retain possession of them by himself or by the master, as his bailee and agent, until paid. If the retention of the bill of lading was merely to retain the possession of the cotton for this purpose, then the title and the risk belonged to the defendants [the buyers]." But, as will be seen in a following chapter, the seller may adopt this as a method of retaining security for the price, and in such a case the title will not pass until payment or tender of the price. See chapter VI, follow- ing. 1 See, per Holroyd, J., in Fragano v. Long, 4 B. & C. 219. See also De- vine v. Edwards, 101 111. 138. - Though the fact that the seller pays the freight is some evidence, perhaps prima facie evidence, that the title has not passed (Berger v. State, 50 Ark. 20, 6 S. W. R. 15; Suit v. Grand Island L. & F. Co., 41 Neb. 153, 59 N. W. R. 681; McLaughlin v. Marston, 78 Wis. 670, 47 N. W. R. 1058), it is not conclusive, and the title will nevertheless pass if such appears to have been the intention. Neimeyer Lumber Co. v. Burlington R. Co., 54 Neb. 321, 74 N. W. R. 670, 40 L. R. A.' 534; Wagner v. Breed, 29 Neb. 720; , Mee v. McNider (1888), 109 N. Y. 500, 17 N. E. R. 424; Hobart v. Littlefield, 13 R. I. 341; Tregelles v. Sewell, 7 Hurl. & Nor. 574; Dun lop v. Lam- bert, 6 CI. & Fin. 600. F. 0. B.— This agreement that the seller shall pay the freight often takes the form of an agreement to deliver f. o. b. (free on board) at a certain place. The initials f. o. b., it is said, have a well-defined meaning of which the courts takes judicial cognizance; they are not ambiguous and admit of no parol explanation; they mean that the seller is to de- liver the goods at the point named free of costs or charges of transporta- tion. Sheffield Furnace Co. v. Hull Coal & Coke Co. (1893), 101 Ala. 446, 14 S. R. 672; Capehart v. Furman Farm Improvement Co. (1893), 103 Ala. 671, 16 S. R. 627. Where the point at which the goods are to be delivered f. o. b. is the place of shipment, the letters mean that the goods are there to be put on board the vehicle for transportation free from cartage or loading charges. 618 CH. IV.] EXISTING CHATTELS NOT YET IDENTIFIED. L§ 742. On the other hand, the fact that the purchaser is to pay the freight is evidence that the carriage is at his risk; but this like- wise is not conclusive, for the agreement of the parties may be such that the seller retains the title for security or other- wise, notwithstanding a delivery to the carrier for carriage at the expense of the purchaser. 1 g 742. Agreement that goods shall not be paid for unless they arrive. — So notwithstanding such a delivery to the carrier as will pass the title to the property, it may be evi- dent from the agreement of the parties that the goods were not to be paid for unless they reached their destination, and if such was the agreement it will be given effect. 2 In dealing Ex parte Rosevear China Clay Co. (1879), 11 Ch. Div. 560; Silberinan v. Clark (1884), 96 N. Y. 522. When the point named is the point of destination, they mean that the seller is to pay the freight to that point. Knapp Electrical Works v. N. Y. Insulated Wire Co. (1895), 157 111. 456. 42 N. E. R. 147; Miller v. Sea- man (1896), 176 Pa. St. 291, 35 Atl. R. 134. Where the language is, "Prices f. o. b." at a price named, it indicates the cost of the goods to the buyer at v that place. Neimeyer Lumber Co. v. Burlington, etc. R. Co. (1898), 51 Neb. 321, 74 N. W. R. 670, 40 L. R. A. 534. Under an agreement to deliver f. o. b. at maker's shop, the goods are delivered and title passes when goods placed on the cars for shipment, though the bill of lading may not actually be issued and dated until a few days later. Congdon v. Kendall (1898), 53 Neb. 282, 73 N. W. R. 659. 1 See second chapter following. 2 This is clearly shown by the fa- mous case of The Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322, 33 id. 214. In that case A contracted to supply to B one thousand tons of coal, delivered at Rangoon alongside craft, etc., as might be directed by B: the price to be 45s. per ton deliv- ered at Rangoon; payment, onedialf of invoice value by bill at three months on handing bills of lading and policy of insurance to cover the amount, or in cash at five per cent, discount at A's option; and the bal- ance in cash on right delivery at Rangoon. A chartered a ship in pur- suance of his contract and shipped on board one thousand one hundred and sixty-six tons of coal, and deliv- ered to B the bill of lading and a pol- icy covering half the invoice price, and B paid the half invoice price. On the voyage the ship became dis- abled, and the master chartered an- other vessel and transhipped eight hundred and fifty tons of the coal at 45s. per ton freight to Rangoon. On arrival at Rangoon the master of this latter vessel offered the coal to B's agent for B on payment of the 45s. freight; this offer was refused, and the coals were afterwards put up for sale by auction by direction of the master, and were purchased bona 619 742.] LAW OF SALE. [LOOK 11. with cases of this nature care must be taken to discriminate between those like the ones now under consideration, which involve the question merely of such designation and delivery as will suffice to change an executory into an executed con- tract, and those previously considered, which involve the ques- fide by B's agent for B at 25s. per ton, that being the best price that could be obtained for them there. A brought an action against B to re- cover for the other half of the in- voice, or at least for the eight hun- dred and fifty tons which B had obtained as aforesaid; and B brought an action against A to recover back the amount of the half invoice paid to him. The two cases were argued together. In the court of Queen's Bench it was held by Cockburn, C. J., and Wightman, J., that by the con- tract, though the property in t#ie coal passed to B on the shipment and de- livery of the shipping documents, A was bound to deliver the coal at Ran- goon, and not having delivered any (as the purchase by B's agent was no delivery under the contract) he was liable to refund to B the half which he had received of the purchase- money and for damages for the non- delivery. By Blackburn and Mellor, JJ., it was held that the property in the coal passed to B, the right of A to the second half of the price being contingent on the right delivery at Rangoon ; and that, therefore, under the circumstances that had occurred, neither party had any right of action against the other. On appeal to the exchequer chamber it was held by Erie, C. J., Willes, J., and Channell, B., that the property in the coal passed to B on A's shipping it on board and delivering to B the bills of lading and policy of insurance; and that A having done this was entitled to re- tain the half of the invoice price that had been paid to him; that A was bound to have delivered to B at Ran- goon so much of the coal as arrived there; that the offer of the coal at Rangoon on condition of paying the freight of 45s. per ton was not a de- livery in accordance with the con- tract, and therefore that A was not entitled to demand from B any part of the residue of the invoice price; and semble, by Willes, J., that B might sue A for the non-delivery at Rangoon, and recover as damages the difference between the 25s. per ton which B paid to get the coal and the 22s. Qd. which B was to have paid under the contract. By Martin and Pigott, BB., held, that the property in the coal did not pass to B, but that, by the special terms as to payment, A was entitled to keep the half price paid him, but that he could not re- cover more, since he had not deliv- ered the coal at Rangoon pursuant to his contract; by Williams, J., that the property in the coal passed to B on the shipment and delivery of the shipping documents; but that A was bound to deliver the coal at Rangoon, and that, as he had not done so, B was entitled to recover back the half price paid, and also any damages sus- tained by A's breach of contract in not delivering the coal. An extract from the opinion of Blackburn, J., which was approved by a majority of the judges, will be found in the text of the following section. 620 CH. IV.] EXISTING CIIATTELS NOT YET IDENTIFIED. [§§ 743, 744. tion whether a delivery to a carrier is a good acceptance and receipt to satify the statute of frauds. 1 In several cases of the first kind authorities upon the latter question have erroneously been deemed controlling though the true question was clearly different. §743. Further of the intention. — Upon this ques- tion of intention the language of Lord Blackburn in the lead- ing case 2 cited in the note has been often quoted with approval: " There is no rule of law to prevent the parties in cases like the present from making whatever bargain they please. If they use words in the contract showing that they intend that the goods shall be shipped by the person who is to supply them, on the terms that when shipped they shall be the con- signee's property and at his risk, so that the vendor shall be paid for them whether delivered at the port of destination or not, this intention is effectual. Such is the common case where goods are ordered to be sent by a carrier to a port of destina- tion. The vendor's duty is in such cases at an end when he has delivered the goods to the carrier; and if the goods per- ish in the carrier's hands, the vendor is discharged and the purchaser is bound to pay him the price. 3 § 744. . " If the parties intend that the vendor shall not merely deliver the goods to the carrier, but also under- x Thus it is said in Wait v. Baker payment or subsequently by part ac- (1848), 2 Exch. 1: "It may be ad- ceptance, then there is no doubt that mitted that if goods are ordered by the property passes by such delivery a person, although they are to be se- to the carrier." See also Cross v. lected by the vendor and to be deliv- O'Donnell (1871), 44 N. Y. 661, 4 Am. ered to a common carrier to be sent R. 721. The distinction between ac- to the person by whom they have ceptance and delivery to satisfy the been ordered, the moment the goods, statute of frauds and delivery to pass which have been selected in pursu- the title generally is commented ance of the contract, are delivered to upon in Hobart v. Littlefield (1881), the carrier, the carrier becomes the 13 R. L 341. agent of the vendee, and such a de- ^Calcutta Co. v. De Mattos, 32 L. livery amounts to a delivery to the J. Q. B. 322, 33 id. 214, in Ex. Ch. vendee; and if there is a binding con- 3 Citing Dunlop v. Lambert, 6 CI. tract between the vendor and vendee, & Fin. 600. either by note in writing or by part 621 §§ 74:5, 746.] LAW OF sale. [book n. take that they shall actually be delivered at their destination, and express such intention, this also is effectual. In such a case, if the goods perish in the hands of the carrier, the vendor is not only not entitled to the price, but he is liable for whatever damage may have been sustained by the purchaser in conse- quence of the breach of the vendor's contract to deliver at the place of destination. 1 §745. . "But the parties may intend an intermediate state of things; they may intend that the vendor shall de- liver the goods to the carrier; and that when he has done so he shall have fulfilled his undertaking, so that he shall not be liable in damages for a breach of contract if the goods do not reach their destination, and yet they may intend that the whole or part of the price shall not be payable unless the goods do arrive. They may bargain that the property shall vest in the purchaser as owner as soon as the goods are* shipped, that then they shall be both sold and delivered, and yet that the price (in whole or in part) shall be payable only on the contingency of the goods arriving, just as they might, if they pleased, contract that the price should not be payable unless a particular tree fall, but without any contract on the vendor's part in the one case to procure the goods to arrive, or in the other to cause the tree to fall." § 746. Goods must be sent in conformity with order- But in order that the delivery of the goods to the carrier shall operate to pass the title to the consignee, it is essential that the goods so delivered shall conform in quantity and quality with the order given for them, and be sent at the time and in the manner agreed upon. If, therefore, the vendor sends more or less than the quantity ordered or of a different quality, 2 or 1 Citing Dunlop v. Lambert, supra, order and imposed no* obligation on 2 In Barton v. Kane (1863), 17 Wis. the defendant without showing an ac- 37, 84 Am. Dec. 728, an order for five ceptance in fact by him after the thousand cigars was given. The cigars were received, the burden of vendor sent five thousand six hun- which was upon the plaintiff. Tocon- dred and twenty-five. Said the court : stitute a delivery to the carrier, a de- " This was no compliance with the livery to the consignee, so as to pass G22 CH. IT.] EXISTING CHATTELS NOT YET IDENTIFIED. [§ 74:6. at a different time, or in a different manner, 1 or otherwise ma- terially vary from the order, 2 the title will not pass unless the the title and make the consignee lia- ble for goods sold and delivered, the goods must correspond in quantity as •well as quality with those named in the order. Bruce v. Pearson, 3 Johns. (N. Y.) 534, and Downer v. Thomp- son, 2 Hill (N. Y.), 137, are clear upon this question, and though the latter was reversed in the court of errors (6 Hill, 208), the main point of re- versal cannot arise here. There can be no pretense that the six hundred and twenty-five extra cigars were sent out of an abundance of caution, and to insure a scriptural compliance with the order. They were sent to fill up the case and the defendant was charged with their price. To entitle himself to recover under these cir- cumstances the plaintiff should have shown that the defendant actually received and accepted the cigars sent, upon the terms indicated in the plaintiff's letter notifying him of the consignment." To the same effect are Larkin v. Mitchell Lum- ber Co. (1879), 42 Mich. 296, 3 N. W. R. 904 (In this case plaintiff had sent more shingles than defendant had ordered; defendant "in good faith and for plaintiff's benefit took them in charge as goods consigned for sale but not purchased, and advanced the freight charges;" while so situ- ated the shingles were destroyed by accidental fire. Held, that the title to the excess did not pass and the consignee could recover from the consignor the amount paid for freight); Levy v. Green (1859), 1 E. & E. 969, 102 Eng. Com. L. 968 (where it was held that if the consignor sent less than were ordered of a particu- lar kind, and also other goods not ordered, all in an indistinguishable mass, the consignee might reject the whole consignment); Cunliffe v. Har- rison (1851), 6 Ex. 903 (to same effect): Rommel v. Win gate (1869). 103 Mass. 327; Hart v. Mills (1846), 15 M. & W. 85; Dixon v. Fletcher (1837), 3 M. & W. 145 (though if he holds them without objecting within a reason- able time, he waives the defect); Ellis v. Roche (1874), 73 IU. 280. The same rule applies where the vendor sends less than was ordered, though if the purchaser assents or accepts the goods the variance may be waived. Richardson v. Dunn(1841), 2 Q. B. 218, 42 Eng. Com. L. 645; Downs v. Marsh (1860), 29 Conn. 409. So if the goods sent are of a differ- ent kind. Gardner v. Lane (1865), 9 Allen (Mass.), 492, 85 Am. Dec. 779; Barton v. Kane (1863), 17 Wis. 38, 84 Am. Dec. 728. The burden is on the seller to show that he complied with the terms of the order. Wolf v. Dietzsch (1874), 75 111. 205. 1 If the seller disregards the in- structions of the buyer as to the method of shipment or the carrier to be employed, the title does not pass and the goods are at the seller's risk. Wheelhouse v. Parr (1886), 141 Mass. 593, 6 N. E. R. 787: Hills v. Lynch (1864), 3 Robt. (N. Y.) 42. As where the goods are ordered to be sent by water but are shipped by land car- rier. Corning v. Colt (1830), 5 Wend. (N. Y.) 253. So where the goods are ordered shipped from a certain place (Jones v. Schneider (1875), 22 Minn. 279), or at a certain time (Hoover v. Maher (1892), 51 Minn. 269, 53 X. W. R. 646). 2 In Woodruff v. Noyes (1843), 15 623 §§ 747, 748.] law or sale. [book ii. purchaser accepts them. A fortiori if goods are sent without being ordered no title passes unless they are accepted. § 747. Due care must be used in shipping. — And not only must the goods conform in quantity and quality with the order and be sent in the manner, if any, designated by the buyer, but the seller must also, if he would pass the title and cast the risk upon the buyer, take such precautions as to packing, di- recting and shipping the goods as are reasonably necessary to secure their safe arrival at their place of destination. If he neglects to do this, and the goods are thereby lost, the buyer will not be liable for the price. 1 § 748. Remedy over against carrier must be pre- served. — And so, " while it is the rule that the delivery of goods bought, to a carrier to be conveyed to the vendee, is a complete delivery to the latter, and vests the property in the goods in him, yet the delivery to a carrier is incomplete to charge the vendee for the price of the goods if lost, unless the vendor, in so delivering them, exercises due care and diligence so as to provide the consignee with a remedy over against the carrier." 2 But where goods are ordered to be shipped, and no other in- structions are given, the seller has implied power to avail him- Conn. 335, the goods were ordered iff could not recover for the goods, shipped " to the care of F. W. Bush- but the supreme court reversed this, nell," but they were not so shipped, holding that there was a sale and Held, that the purchaser was not constructive delivery, and that bound to accept them. plaintiff could recover unless it were In Garretson v. Selby (1873), 37 shown that this transposition of the Iowa, 529, 18 Am. R. 14, it appeared initials caused the loss, that H. W. Selby had ordered goods 1 Finn v. Clark (1865), 10 Allen of plaintiff. Selby was a member of (Mass.), 479, 12 Allen. 522. Goods the firm of H. W. Selby & Co., but must be properly packed and pro- plaintiff did not know of the exist- tected. Wilson v. Fruit Co., 11 Ind. ence of the firm. The goods were App. 89, 38 N. E. R. 827. shipped directed (by mistake) to 2 Clarke v. Hutchins, 14 East, 475; W. H. Selby, but never came to the Buckman v. Levi, 3 Campb. 414; possession of H. W. Selby or his firm. Ward v. Taylor, 56 111. 494. The court below held that the plaint- 624 CH. IV.] EXISTING CHATTELS NOT YET IDENTIFIED. [§§ 749, 750. self of the usual and appropriate means to accomplish that re- sult. If, therefore, for example, the carrier will not accept goods of a certain kind for transportation without a stipulation limiting his liability, the seller having general instructions to ship by such a carrier has been held to have implied power to stipulate for such a release. 1 § 749. Duty to insure. — "In the absence of a special contract," it is said, 2 "the seller of goods is not bound to in- sure, nor to impart any information upon the subject of insur- ance." But such an obligation may undoubtedly be imposed by agreement, or instructions, or even by a course of dealing to that effect. 3 § 750. What constitutes delivery to the carrier. — The question, what constitutes such a delivery to the carrier in these cases as will amount to an appropriation of the goods to the contract, has occasioned some difficulty. No inflexible rule can be laid down, but, in general, it must be such an act as un- conditionally and unreservedly places the goods in the posses- sion and under the control of the carrier. 4 " What amounts to a delivery to carriers," it was said in one case, 5 " may some- times be a question of fact for a jury; ordinarily, delivery at their wharf, freight house or warehouse, and bringing it to the notice of the servants of the carriers, would be so considered. A delivery at a wharf ma}' be of itself an incomplete act, to be explained by what has preceded it or by what takes place sub- sequently. 6 No one would contend that if the [goods] had i Stafford v. Walter. 67 111. 83. Co. 'v. Nettleship, L. R. 3 C. P. 499, 2 Bartlett v. Jewett, 98 lnd. 206. 502; Packard v. Getman, 6 Cow. (N. See also Elmore v. Kearney, 23 La. Y.) 757, 16 Am. Dec. 475; Railroad Ann. 479. Co. v. Barrett, 36 Ohio St. 448. See 3 See New York Tartar Co. v. also Schmidt v. Nunan, 63 Cal. 371. French, 154 Pa. St. 273, 26 Atl. R. 425. Where the contract is for the sale 4 See Mechem's Hutchinson on Car- of a car-load or a boat-load, etc., the riers, § 94 et seq. title does not pass until the car, boat, s Hobart v. Littlefield (1881), 13 R. I. etc., is full. Rochester, etc. Oil Co. 341. v. Hughey, 56 Pa. St. 322; Hays v. e Citing The M. K. Rawley, 2 Low. Pittsburgh Packet Co., 33 Fed. R. Dec. 447; British Columbia Sawmill 552. 40 625 §§ 751, 752.] LAW OF SALE. [book II. been merely delivered on the wharf, and no information given to the master or his servants of the purpose for which it was delivered, he could be considered as having received it, either so as to bind his owners or as agent of the buyer." 5. Of Appropriation where Goods Consigned on Account of Previous Advances. % 751. How when goods consigned on account of previous advances. — Analogous to the question of the last sections is that which arises when advances have been made by one per- son to another upon the strength of consignments thereafter to be made. The question here is what appropriation is suffi- cient to fix the goods with a lien or charge for the advance- ments. It most frequently arises where the advances have been made by a factor, and this aspect of the question has been considered in another work; 1 but some general statement of the rules seems desirable here. g 752. . Upon this question the authorities are in con- flict, one line of cases holding that no lien or charge will attach until the goods are actually in the possession of the consignee, 2 while another line maintains that where advances have pre- viously been made in reliance upon a promise to subsequently consign goods, a delivery to a common carrier consigned to the creditor is sufficient. 3 The true rule seems to be that laid * Mechem on Agency, § 1033. to pay the advance or pay any in- 2 Saunders v. Bartlett. 12 Heisk. debtedness, he may or may not com- (Tenn.) 316; Oliver v. Moore, id. 482; ply with his contract. He may ship Woodruff v. Nashville, etc. R. Co., 2 it to C, or he may ship it to B upon Head (Tenn.), 87. conditions. As owner he can dis- 3 Elliott v. Cox, 48 Ga. 39; Harde- pose of it as he pleases. But if he man v. De Vaughn, 49 Ga. 596 ; Wade actually ships it to B in pursuance of v. Hamilton, 30 Ga. 450; Nelsou v. his contract, the title vests in B upon Railroad Co., 2 111. App. 180. the shipment. The highest evidence In Bailey v. Hudson R. R. Co. that he has done so is the consign- (1872), 49 N. Y. 70, it is said: "If A ment and unconditional delivery to has property upon which he has re- B of the bill of lading." ceived an advance from B upon an In. Desha v. Pope (1844), 6 Ala. 690, agreement that he will ship it to B 41 Am. Dec. 76, it is said: " The mere 626 C.H. IV.] EXISTING CHATTELS NOT YET IDENTIFIED. [§ 752. clown by Chief Justice Redfield in Vermont, that in order to give to the party making the advances a charge upon the goods consigned, but not actually received, two things must concur: 1. The consignment must be in terms to the creditor; and agreement to ship goods in satisfac- tion of antecedent advances will not, in general, give the factor or con- signee a lien upon them for his gen- eral balance, until they come to his actual possession; but if there is a specific pledge or appropriation of certain ascertained goods, accompa- nied with the intention that they shall be a security, or the proceeds as a payment, and they are deposited with a bailee, then the property is changed, and vests in the individual to whom they are to be delivered by the depositary." In Valle v. Cerre (1865), 36 Mo. 575, 88 Am. Dec. 161, it is said: "Where acceptances have actually been given upon the faitli of a consignment by bill of lading, there can be no doubt that the consignee acquires such a lien or property in the goods as no subsequent act of conveyance can divest; such an acceptance is held to be an advance upon the particu- lar shipment. Where there has been no advance or acceptance expressly made upon the particular consign- ment, and the question is only of a general balance of account for pre- vious advances, the case differs not so much in principle as in the evi- dence required to establish the lien. It matters not whether the lien for a balance of account arises by oper- ation of law from the usage of trade, or from the positive and special agreement and understanding of the parties; and it may extend to all sums for which a factor has become liable as surety or otherwise for his principal, whenever the suretyship has resulted from the nature of the agency, or the express arrangement of the parties, or it has been under- taken upon the footing of such a lien. Whether or not the given con- signment is to be considered as made to cover a general balance of ac- count will depend upon the special arrangements, agi'eement and un- derstanding of the parties: but where such an arrangement exists, and the consignment is made in pursuance of it, and there is nothing else in the case which is inconsistent with the hypothesis, the case would be gov- erned by the same principle, and a delivery to the carrier will be con- sidered as a constructive delivery to the consignee. In such case the shipment and delivery of the goods to the carrier, under the bill of lad- ing, amounts to a specific appropria- tion of the property with an inten- tion that it shall be a security or a payment to the consignee for the advances he has made." In an Illinois case it was held that a consignor who had put goods into the possession of a common carrier to be carried and delivered to a fac- tor in pursuance of a preceding ar- rangement and to apply on prior advances, and had taken a bill of lading in the factor's name, had, be- fore the shipment of the goods and before the delivery of the bill of lading to the factor, the right to change the destination of the goods and that the carrier was bound to obey such directions. Lewis v. Ga- G27 § 752.] LAW OF SALE. [BOOK II. 2, the advances must have been made upon the faith of this particular consignment. 1 These cases are of course distinct from those in which advances have been made in reliance upon a particular shipment of which constructive delivery has been made by the transfer of the bill of lading or other like docu- ment. 2 lena, etc. R. Co., 40 111. 281. Same point: Strahorn v. Union Stock Yard Co., 43 111. 424, 92 Am. Dec. 142. • i In Davis v. Bradley (1855), 28 Vt. 118, 65 Am. Dec. 226, approving Hol- brook v. Wight (1840), 24 Wend. (N. Y) 169, 35 Am. Dec. 607. To the same effect: Hodges v. Kimball (1878), 49 Iowa, 577, 31 Am. R. 158; First Nat. Bank v. McAndrews (1885), 5 Mont. 325, 51 Am. R. 51. See also Grosvenor v. Phillips (1841), 2 Hill (N. Y), 147; Bonner v. Marsh (1848), 10 Sm. & M. (Miss.) 376, 48 Am. Dec. 754. 2 As in First Nat. Bank v. Dear- born (1874), 115 Mass. 219, 15 Am. R. 92; De Wolf v. Gardner (1853), 12 Cush. (Mass.) 19, 59 Am. Dec. 165. 628 CHAPTER V. OF CONTRACTS RESPECTING GOODS TO BE MANUFACTURED OR GROWN. § 753. Purpose of this chapter. I. Where Goods are to be Manu- factured. 754. Title ordinarily does not pass until goods are completed and tendered. 755. Title does not pass dur- ing progress of work. 756. Especially if yet to be separated from larger mass. 757. Same rule where goods to be manufactured and shipped. 758. Goods must correspond with order. § 759. Title may pass sooner if such appears to have been inten- tion. 760. Even without actual de- livery. 761. When title passes to article designed for, but not an- nexed to, another. 762. Articles to be supplied as repairs or alteration of chattel. II. Where Goods are to be Grown. 763-765. Title passes when chattel grown and appropriated. § 753. Purpose of this chapter. — In the preceding chapter attention has been given to the effect of contracts for the sale of chattels then in existence, but not yet designated, set apart or appropriated to the contract. There yet remains to be con- sidered that class of contracts which relate to the sale of goods not then in existence, but which are to be manufactured, grown or otherwise produced in pursuance of the contract and which are to be supplied in performance of it. 1 This question will Le dealt with in the present chapter, and it will be treated under the two heads of contracts for the manufacture of goods to be supplied, and of contracts to grow and supply goods. 1 The question presupposes an order for goods to be manufactured. Where an order is given to an agent of a manufacturing company for the pur- chase of goods described in its cata- logue and supposed to be in stock, without any knowledge that they \vould have to be manufactured, and the order is revoked before any no- tice of its acceptance has been given, and without knowledge that the com- pany was manufacturing the goods, no contract either of manufacture or sale is entered into between the par- ties. Harvey v. Duffey (1893), 99 CaL 401, 33 Pac. R. 897. 629 § 754:.] LAW OF SALE. [BOOK II. In an earlier chapter the question whether these contracts are contracts of sale within the provisions of the statute of frauds has been considered; but the question now involved is obviously a different one, namely, " When does the title pass ? " I. "Where Goods are to be Manufactured. § 754. Title ordinarily does not pass until goods are com- pleted and delivery tendered. — The question of the time when the title will pass to goods which have been ordered to be manufactured is involved in some little conflict of decision, though the decided tendency of the authorities in the United States is clear. Under a contract for the manufacture of an article, as for the building of a ship or the construction of any other chattel, not existing in specie at the time of making the contract, it is the general rule that no title vests in the pur- chaser during the progress of the work, nor until the chattel is finished and delivered, or, at least, is ready for delivery, and, by tender or other equivalent act, is appropriated to the buyer. 1 A few cases hold that the title will not pass until there has been, on the part of the buyer, either an acceptance of the chat- tel or some " acts or words respecting it from which an accept- ance can be inferred." 2 But, by the weight of authority, acceptance by the buyer is not indispensable; if the chattel is produced at the time, and of the kind and quality specified, and in all other respects in compliance with the order, so that the 1 Under a contract for the sale of act on the part of the seller identify- two hundred tons of No. 1 pig iron, ing "any particular piles as belong- to be thereafter delivered by a man- ing to the buyer, or of any inspection ufacturer who is engaged in the or acceptance on the part of the manufacture of various grades and buyer." First National Bank v. Crow- producing large quantities daily, and ley (1872), 24 Mich. 492. See also all the iron so manufactured is piled. Tufts v. Lawrence (1890), 77 Tex. 526. as fast as made, upon the dock in 2 Moody v. Brown (1832), 34 Me. 107, separate piles, according as the man- 56 Am. Dec. 640; Rider v. Kelley ufacturer sees fit to grade it, the title (1859), 32 Vt. 268, 76 Am. Dec. 176: to any specific portion will not pass Gammage v. Alexander (1855), 14 to the buyer in the absence of any Tex. 414. 630 CH. V.] CONTRACTS — GOODS TO BE MANUFACTURED, ETC. [§ 755. buyer ought to accept it, the title will pass upon a tender or offer of delivery even though the buyer refuses to accept it. 1 § 755. Not during progress of work. — That no title passes, ordinarily, during the progress of the work is now clear. This rule prevails in this country, contrary to the later but in 1 In Shawhan v. Van Nest (1874), 25 and have recovered from the defend- Ohio St. 490, 18 Am. R. 313, Shawhan had ordered of Van Nest, who was a carriage maker, a two-seated wagon to be built by Van Nest from his own materials, in accordance with Shaw- han's directions, for a certain price. Van Nest in all respects complied with his contract and tendered the wagon at his shop to Shawhan, and requested him to accept and pay for it, but Shawhan refused to do so. The action was for the price, and Van Nest was held to be entitled to recover. Said the court: "When the plaintiff below had completed and tendered the carriage in strict per- formance of the contract on his part, if the defendant below had accepted it, as he agreed to do, there is no question but that he would have been liable to pay the full contract price for it, and he cannot be per- mitted to place the plaintiff in a worse condition by breaking than by performing the contract according to its terms on his part. When plaint- iff had completed and tendered the carriage in full performance of the contract on his part, and the defend- ant refused to accept it, he had the right to keep it at the defendant's risk, using reasonable diligence to preserve it, and recover the contract price, with interest, as damages for the breach of the contract by the de- fendant. Or, at his election, he could have sold tbo carriage for what it would have brought* at a fair sale, ant the difference between the con- tract price and what it sold for." Bement v. Smith, 15 Wend. (N. Y.) 493, is to same effect; and so are- Gordon v. Norris, 49 N. H. 376; Mo- In tyre v. Kline, 30 Miss. 361, 64 Am. Dec. 163 (in this last case it is said that acceptance by the buyer may be implied from the fact that notice of the completion of the work was given to him and that he made no objection to it); Ballentine v. Robin- son, 46 Pa. St. 177. See also Central Lith. & Eng. Co. v. Moore (1889), 75 Wis. 170, 43 N. W. R. 1124, 6 L. R. A. 788, 17 Am. St. R. 186. In Goddard v. Binney (1874), 115 Mass. 450, 15 Am. R. 112. defendant ordered a buggy to be built for him by the plaintiff according to certain directions, and to be marked with his monogram. Before the buggy was entirely completed, defendant called on plaintiff and asked when it would be done. Plaintiff inquired whether he still wanted it, saying if he did not want it another person did. Defendant replied that he wanted it. Plaintiff finished the buggy according to directions, and sent defendant a bill for it by a clerk, to whom defendant said he would see the plaintiff soon; on a subsequent request by the same clerk for payment defendant replied that he would pay it soon and would see the plaintiff, and upon a third call he directed the clerk to tell plaintiff 631 755.] LAW OF SALE. [BOOK II. conformity with the early English rule, 1 notwithstanding that, by the terms of the contract, the purchaser was to pay and has paid a portion of the price in instalments as the work pro- tliat he would come and see him right away. Soon afterwards the buggy was burned without plaintiff's fault. Held, that the general owner- ship had vested in defendant, who must bear £he loss. Followed in Moore v. Perrott (1891), 2 Wash. 1, 25 Pac R. 906. In Whitcomb v. Whitney (1872), 24 Mich. 486, there was a contract in March for the sale of all the lumber of certain grades which Whitcomb should make during that season, "lumber to be delivered on rail of vessel when lumber is ready to ship or when vessel is ready to send for it. ; ' Whitney advanced money on the contract at various times and re- ceived one cargo of lumber. In Sep- tember Whitcomb wrote to Whitney that the lumber was all cut, ready to ship, and the sooner a vessel was sent the better he would like it. On receipt of this letter Whitney sent an inspector who inspected and ap- proved about sixty-four thousand feet, acting for both parties in so doing. As fast as it was inspected the lumber was hauled to the dock ready for the vessel when it should arrive. The inspection was com- pleted on October 6th, and Wlritney was notified of that fact on October 1 1th. On October 9th, however, the lumber was destroyed by accidental fire. In an action for the price it was held that title passed when the lumber was inspected and put on the dock ready for delivery, and that Whitney was liable for the price. In Fordice v. Gibson, 129 lnd. 7, 28 N. E. R. 303, the court states the rule to be that "ordinarily no title passes until the thing is completely done and notice given to the vendee, or some act done by the vendor desig- nating it as the article sold, either by setting it apart, marking it, or some other similar act," citing First Nat. Bank v. Crowley, 24 Mich. 492; Ballentine v. Robinson. 46 Pa. St. 177; Moline Scale Co. v. Beed, 52 Iovwa, 307. Where the goods were to be man- ufactured and delivered upon the dock in New York as the buyer should call for them, and he refused to take certain goods so manufact- ured, the price may be recovered without proof of delivery or tender. Atkinson v. Truesdell (1891), 127 N. Y. 230, 27 N. E. R. 844. i In Woods v. Russell (1822), 5 B. & Aid. (Eng.) 942, a ship-builder had contracted to build a ship for the defendant to be completed by a given date, and the defendant was to pay for her in four instalments, two dur- ing construction and two when the ship was launched. Before the ship was finished, the defendant, with the builder's privity, had had the ship measured that he might get her registered in his own name, the ship- builder signing the necessary certifi- cate, and had appointed a master who superintended the construction, had advertised her for a charter and had chartered her for a voyage. The defendant had also paid the third instalment, but before completion the ship-builder went into bank- ruptcy and the defendant thereupon took possession of the ship in her un- finished condition. The assignees of the bankrupt sued in trover, but it 632 CH. V.] CONTRACTS — GOODS TO BE MANUFACTURED, ETC. [§ 755. gressed. It also prevails notwithstanding the fact that the purchaser has furnished a part of the materials, and, by the weight of authority, it prevails though the purchaser not only was held that the title had passed, the court holding that the act of the builder in signing the certificate to enable defendant to register the ship in his ow.i name was equivalent to a consent that the property should be in defendant from that time. In Clarke v. Spence (1836), 4 Ad. & El. (Eng.) 448, under a substantially similar contract, the plaintiff had contracted for a vessel to be paid for in instalments and to be con- structed under the supervision of his agent. When the ship was par- tially completed and after several instalments had been paid, the builder became bankrupt, and the defendants were his assignees. The court held that the title had passed upon the ground that the provision for payment in instalments was equivalent to a declaration of an in- tention that, upon payment of the first instalment, the title should pass to the purchaser. In Anglo-Egyptian Nav. Co. v. Rennie, L. R. 10 C. P. 271, it is said: " The case of Laidler v. Burlinson, 2 M. & W. 602, shows how strictly confined to that simple state of things the doctrine of Clarke v. Spence is held to be." In Wood v. Bell (1856), 5 El. & Bl. (Eng.) 772; s. c, 6 id. 355, under a like contract, the plaintiff had paid several instalments; had had the work superintended by his own agent; had had his name punched on a plate riveted to the keel of the ship, and, in discussions concerning the execution of an assignment of the ship to the plaintiff, the builder had admitted that the ship was the property of the plaintiff, though he objected to the execution of the as- signment. After this, and before the completion of the ship, the builder became bankrupt. Held, that the title had passed. In the United States, Woods v. Russell and Clarke v. Spence have not been generally approved. In Andrews v. Durant (1854), 11 N. Y. 35, 62 Am. Dec. 55, a contract had been made for the building of a ship, under the inspection of the pur- chasers' superintendent, to be paid for in instalments. After three in- stalments had been paid, but before the ship was completed, the build- ers became insolvent and the ship was seized on execution for theif debts. The purchasers replevied her, completed her and treated her as their own. In the meantime the builders made a general assignment for the benefit of creditors, and the assignees brought an action of tro- ver to establish their claim of owner- ship. It was held, in accordance with the rule stated in the text, that the title had not passed to the pur- chasers and Clarke v. Spence and Woods v. Russell were disapproved, the court, per Denio, J., saying " that the modern English rule is not founded upon sufficient reasons and that it ought not to be followed." See also Low v. Austin, 20 N. Y. 181; People v. Commissioners, 58 N. Y. 242; Seymour v. Montgomery, 1 Keyes (N. Y), 463: Wright v. 0"Brien, 5 Daly (N. Y.), 54; Comfort v. Kier- sted, 26 Barb. (N. Y.) 472; Happy v. Mosher, 47 Barb. 501; Halterline v. Rice, 62 Barb. 593; Dyckman v. 633 § 755.] LAW OF SALE. [BOOK II. paid the price in instalments as the work progressed, but also, in person or by his agent, superintended the work of construc- tion. Valiente, 43 Barb. 131; In re Non- Magnetic Watch Co., 89 Hun, 196. The ruling in Andrews v. Durant was approved and followed under substantially similar circumstances in Hall v. Green (1858), 1 Houst. (Del.) 546, 71 Am. Dec. 96; Elliott v. Ed- wards (1871), 35 N. J. L. 265; West Jersey R. Co. v. Trenton Car Works (1866), 32 N. J. L. 517; Shaw v. Smith (1880), 48 Conn. 306, 40 Am. R. 170; Clarkson v. Stevens (1882), 106 U. S. 505; The Poconoket, 67 Fed. R. 262. See also Crosby v. Delaware & Hud. Can. Co. (1890), 119 N. Y. 334, 23 N. E. R. 736. In Merritt v. Johnson (1811), 7 Johns. (N. Y.) 473, 5 Am. Dec. 289, it appeared that A contracted with B to build a vessel for the latter, the former to furnish the timber requi- site to complete the frame, and the latter to advance the money and fur- nish materials for the joiners' work, and the vessel while standing on land hired by A, and in an unfin- ished condition, was seized on an execution against A and sold to C, who completed the vessel and sold her to D. In an action of trover by B's assignee against D, it was held that the property was in D, and that B had no title until completion and delivery. In McConihe v. Railroad Co. (1859), 20 N. Y. 495, 75 Am. Dec. 420, it ap- peared that plaintiff's assignor had made a contract with the defendant to build cars for it, the defendant to furnish the iron boxes needed for the construction. The defendant, though frequently requested, did not supply the boxes within the time agreed, and the builder did all he could without them, but before com- pletion and delivery the cars were burned without his fault. Held, on the strength of Andrews v. Durant. supra, that the title had not passed to the defendant. In Shaw v. Smith (1880), 48 Conn. 306, 40 Am. R. 170, the contract was for the manufacture of certain tools for plaintiffs for a price to be paid in instalments. Before completion, but upon a fraudulent representation of full completion, the builder secured the last instalment without delivery of any of them, and then made an assignment for the benefit of credit- ors. Held, that as against creditors no title had passed, and the court also said that no title had passed as be- tween plaintiffs and the builder. McConihe v. Railroad Co., and An- drews v. Durant, supra, were cited with approval, as was also Williams v. Jackman, 16 Gray (Mass.), 514, where Bigelow, C. J., said: "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 general rule of law. It must prevail in all cases, unless a contrary intent is expressed or clearly implied from the terms of the contract." To like effect, Wright v. Tetlow, 99 Mass. 397. In Clarkson v. Stevens (1882), 106 U. S. 505, the court, through Mr. Jus- tice Matthews, review the cases at some length, and decline to follow the English rule, saying: " The courts of this country have not adopted any 634 CH. V.] CONTRACTS — GOODS TO BE MANUFACTURED, ETC. [§§ 756-7. | 756, , Especially if goods yet to be separated from larger mass. — A fortiori, will not the title pass where, after manufacture, the goods are yet to be separated and set off from a larger mass. 1 § 757. Same rule where goods to be manufactured and shipped to buyer.—" In the case of goods to be manufactured," it is said in a late case, 2 " the seller, as he has to tender them, gener- arbitrary rule of construction as con- trolling such agreements, but con- sider the question of intent open in every case to be determined upon the terms of the contract and the circumstances attending the trans- action. 1 Parsons, Shipping and Admiralty, 63. And such seems to us to be the true principle. Accord- ingly we are of opinion that the fact that advances were made out of the purchase-money, according to the contract, for the cost of the work as it progressed, and that the govern- ment was authorized to require the presence of an agent to join in certi- fying to the accounts, are not con- clusive evidence of an intent that the property in the ship should vest in the United States prior to final delivery." See also Scull v. Shake- spear (1874), 75 Pa. St. 297; In re Derbyshire's Estate, Lang's Appeal (1876), 81 Pa. St. 18; Chambers v. Board of Education (1875), 60 Mo. 370 (quoted from in note to the fol- lowing section); Wollensak v. Briggs (1887), 119 I1L 453, 10 N. E. R. 23. But in Sandford v. Wiggins Ferry Co. (1867), 27 Ind. 522, the court ap- prove the English cases as constitut- ing the common law, and hold that the parties must be presumed to have dealt with them in view; and Clif- ford, J., in his dissenting opinion in Calais Steamboat Co. v. Van Pelt . (1862), 2 Black (U. S.), 380, approves them. So also Butterworth v. Mc- Kinly, 11 Humph. (Tenn.) 206; Moody v. Brown, 34 Me. 107, 56 Am. Dec. 6-10. iNew England Dressed Meat & Wool Co. v. Worsted Co. (1896), 165 Mass. 328, 43 N. E. R. 112, 52 Am. St. R. 516. 2 Smith v. Edwards (1892), 156 Mass. 221, 30 N.-E. R. 1017. Here shoe deal- ers in Ohio ordered of the manu- facturers in Massachusetts a quant it y of calf and buff shoes according to a sample. The shoes were manufact- ured in accordance with the sample and shipped to the buyers by railroad. The buyers accepted the buff shoes but rejected the calf shoes, and shipped them back by the same car- rier to the makers. The latter re- fused to accept them, sued the buyers for the price, and garnished the rail- road company. Held, that the title to the shoes had passed to the buyers. To like effect: Kelsea v. Ramsey & Gore Mfg. Co. (1893), 55 N. J. L. 320, 26 Atl. R. 907, 22 L. R. A. 415; Pacific Iron Works v. Long Island R. Co. (1875), 62 N. Y. 272; Johnson v. Hibbard, 29 Oreg. 184, 44 Pac. R. 287, 54 Am. St. R. 787. "Of course the title to the shoes could not be vested in the defend- ants," said the court in Smith v. Ed- wards, supra, " without their consent. But in the present state of the law it does not need argument to show 635 § 758.] LAW OF SALE. [BOOR II. ally has the right to appropriate the goods to the contract so far that, if he tenders goods conformable to it, the buyer's refusal to accept them is a breach. The buyer cannot say that he would have accepted some other goods had they been tendered. When goods are to be manufactured and forwarded by a carrier to a buyer at a distance, the seller's delivery of such goods to the carrier as bailee for the purchaser passes the title. The seller cannot forward them until they are specified. The delivery is an overt dealing with the goods as those to which the contract applies, and puts them into a position adverse to the seller. Although not strictly a delivery, it is an act having the legal effect of a true delivery, which in common legal language it is said to be. 1 The act is required of the seller by the terms of the contract, and thus is assented to in advance by the buyer, on the condition that, as supposed, the goods answer the re- quirements of the contract. Therefore it is a binding appropria- tion of the goods to the contract and passes the title." 2 § 758. But goods must correspond with the order.— But here, as in other cases of similar appropriation, the goods must be of the kind and in the amount ordered ; for if the seller sends more goods than were ordered or different goods than those specified, the title will not pass by the shipment. 3 that a contract can be made in such I Citing Orcutt v. Nelson, 1 Gray, a way as subsequently to pass the 536, 543; Merchant v. Chapman, 4 title, as between the parties, to goods Allen, 362, 364; Kline v. Baker, 99 unascertained at the time when the Mass. 253, 234; Hallgarten v. Oldham, contract is made, without a subse- 135 Mass. 1, 9. quent acceptance by the buyer, if the '-'Citing Putnam v. Tillotson. 13 contract commits the buyer in ad- Mete. 517, 520; Merchant v. Chap- vance to the acceptance of goods de- man, snpra; Odell v. Boston & Maine termined by other marks. Middlesex R. Co., 109 Mass. 50 ; Wigton v. Bowley, Co. v. Osgood, 4 Gray, 447, 449; Nich- 130 Mass. 252, 254; Fragano v. Long, ols v. Morse, 100 Mass. 523; Brewer 4 B. & C. 219; Wait v. Baker, 2 Exch. v. Housatonic R. Co., 104 Mass. 593. 1, 7. 595; Rodman v. Guilford, 112 Mass. 3 New England Dressed M. & W. 405, 407; Goddard v. Binney, 115 Mass. Co. v. Standard Worsted Co. (1896), 450: Blanchard v. Cooke, 144 Mass. 165 Mass. 328, 43 N. E. R 112, 52 Am. 207, 227; Aldridge v. Johnson, 7 El. St. R 516. & Bl. 885, 899." CH. V.] CONTRACTS — GOODS TO BE MANUFACTURED, ETC. [§ 759, § 759. But title may pass sooner if such appears to have been intention. — The criterion here, however, as in other cases, is the intention of the parties, and the general rule yields to an intention, clearly apparent from a view of the whole con- tract, that the title should pass at some earlier period. It is, of course, clear, as is said by the court in a leading English case, that a man may purchase a ship or other article as it is in progress of construction, and the title will be held to have then passed if that clearly appears to have been the intention of the parties. 1 But such an intention is not decisively shown by the mere fact of payment in instalments, or of superin- 1 The general rule and the excep- tion to it are well stated by Daly, C. J., in Wright v. O'Brien, 5 Daly (N. Y.), 56. as follows: " Where a party orders a thing to be made, such as a vessel or any other article, it does not be- come his property until it is deliv- ered into his possession, even though he may have paid for it in advance or furnished a large portion of the materials of which it is constructed; but during its production it is, and after it is finished it continues to be, up to its delivery, the properly of the person who produced it, and may be levied upon and sold under ex- ecution against bim. Mucklow v. Mangles, 1 Taunt. 318; Merritt v. Johnson, 7 Johns. (N. Y.) 173; John- son v. Hunt, 11 Wend. (N. Y.) 139; Andrews v. Durant, 11 N. Y. 35. But, whilst this is the rule, it is equally well settled that it is competent for the parties to agree that the thing to be produced from the beginning, or at any stage of its production, is to be the property of the person who ordered it, and that where a mutual assent to that effect is shown by un- equivocal acts or declarations, the title passes before delivery. Woods v. Russell, 5 B. & Aid. 942; Rohde v. Thwaites, B. & C. 388; Atkinson v. Bell. 8 id. 277; Jackson v. Anderson, 4 Wend. (N. Y.) 474; Whitehouse v. Frost, 12 East, 614; Kiniberly v. Patchin, 19 N. Y. 333; Olyphant v. Baker, 5 Denio (N. Y.), 383; Andrews v. Durant, 11 N. Y. 35." In the case quoted from (Wright v. O'Brien, 5 Daly, 54), it appeared that plaintiff had employed A, an artist, to make a portrait from a photograph of a deceased child, and on making the contract had made him a payment on account. After the portrait was partially com- pleted plaintiff made an arrange- ment with A (who desired to go abroad) by which he agreed to pay him a certain sum for the work al- ready done, and A agreed to deliver the portrait to B to be finished. Held, that the effect of this last agreement was to vest the title to the portrait in the plaintiff, so that it could not thereafter be seized by the creditors of A. Robinson, J., expressed the opinion that the ownership of a pic- ture painted to order is always in the person who gives the ordei - , and that the artist has only a lien upon it for his services. 637 :eo.] LAW OF SALE. [BOOK II. tendence by the purchaser, though these facts are significant, and in connection with other facts may be conclusive. 1 760. Even without actual delivery. — So it is clear that, if such appears to have been the intention of the parties, the title may vest even though there has been no formal ten- der of delivery or though the goods still remain in the maker's possession. If that has been done which, according to the in- tention of the parties, was to mark the transfer of the title, it is enough. 2 1 In the case of Briggs v. A Light Boat, 7 Allen (Mass.), 287, Bigelow, C. J., says: "The general rule of law- is well settled and familiar that under a contract for building a ship or making any other chattel, not subsisting in specie at the time of making the contract, no property vests in the purchaser during the progress of the work, nor until the vessel or other chattel is finished and ready for delivery. To this rule there are exceptions, founded for the most part on express stipulations in con- tracts, by which the property is held to vest in the purchaser from time to time as the work goes on. It is doubtless true that a particular agreement in a contract concerning the mode or time of payment of the purchase-money, or providing for the appointment of a superintendent of the work, may have an important bearing in determining the question whether the property passes to the purchaser before the completion of the chattel. It is, however, errone- ous to say, as is sometimes stated by text-writers, that an agreement to pay the purchase-money in instal- ments, as certain stages of the work are completed, or a stipulation for the employment of a superintendent by the purchaser to overlook the work and see that it is done accord- ing to the tenor of the contract, will, of itself, operate to vest the title in the person for whom the chattel is intended. Such stipulations may be very significant as indicating the in- tention of the parties, but they are not in all cases decisive. Both of them may co-exist in a particular case, and yet the property may re- main in the builder or manufacturer. Even in England, where the cases go the farthest in holding that property in a chattel in the course of con- struction passes to and vests in the purchaser, these stipulations are not always deemed to be conclusive of title in him. It is a question of intent, arising on the interpretation of the entire contract in each case. If, tak- ing all the stipulations together, it is clear that the parties intended that the property should vest in the pur- chaser during the progress of the work and before its completion, ef- fect will be given to such intention and the property will be held to pass accordingly; but, on the other hand, it will not be deemed to have passed out of the builder unless such intent is clearly manifested, but the general rule of law will prevail." 2 Thus, in Brewer v. Michigan Salt Association, 47 Mich. 526, 11 N. W. 638 CH. V.] CONTRACTS — GOODS TO BE MANUFACTURED, ETC. [§ 761. "What their intention was, when not made clear by the terms of the contract, becomes a question of fact for the jury to de- termine. 1 § 761. When title passes to article intended for, but not made part of, the principal article — Lumber for building. Closely connected with the subject of the preceding sections is R. 370, it appeared that the defend- ant had made a contract with Brewer, a manufacturer of salt, to take all the salt he manufactured and to make a specified advance on all received. The salt was to become the property of the defendant as soon as inspected and branded, but plaintiff was to furnish storage for it and be " responsible for the same " until it was delivered at his expense alongside such vessel, car or lighter as the defendant might send for it. A quantity of salt, after being in- spected and branded, but while still remaining on plaintiff's premises, was destroyed by accidental fire. Held, that the title had passed, and that the clause making him "re- sponsible " made him responsible as bailee only. See also Jenkinson v. Monroe, 6l"Mich. 454, 28 N. W. R. 663. i In Weld v. Came, 98 Mass. 152. it appeared that defendants had con- tracted to manufacture five billiard tables for plaintiffs which they in- tended to ship to the East Indies. The tables were to be finished within a specified time, and were, by the makers, to be delivered on the wharf, packed in cases ready for shipment, at such vessel as plaintiffs might have. On a certain date plaintiffs notified defendants that they had a ship about to sail, and would take the tables if they were ready. Four w r ere delivered and paid for, but the fifth was not completed. Subse- quently plaintiffs were notified that the fifth table was finished, boxed up and ready for shipment, and plaintiffs, without seeing or receiving the table, paid for it. It remained boxed up and set aside in defend- ants' store-room, and they suggested to plaintiffs that it could be sold to some one else, but plaintiffs declined to have it sold, saying that they in- tended to ship it. "While remaining in this condition the table was de- stroyed by accidental fire, and this action was brought to recover back the price paid for it. The trial court directed a verdict for the plaintiffs. Said the supreme court: "The de- fendants were to transport the .prop- erty to the wharf, and this is a cir- cumstance to be considered by a jury as tending to show that the property was not delivered [that the title had not passed?] But it is not conclu- sive, and the other circumstances so far explain it that a jury would be authorized to find that the sale was completed by the arrangement that the defendants should store it till a ship should be ready to receive it. There was nothing to be done, such as weighing, measuring, identifying or making payment, and there seems to be no reason for holding that the defendants' creditors could have at- tached it, or that the plaintiffs could not have demanded it at the shop. We think, therefore, that the ques- tion whether the property had passed 639 761.] LAW OF SALE. [book II. that of the passing of title to things intended to constitute a part of the principal article, as the rudder of a ship or engines for a steamship, but not yet actually made a part of it. As to such articles, the English courts, while adopting a more liberal rule than our courts as to the title to the main thing, hold that these accessories do not pass to the purchaser of the main thing until they have actually been affixed to or made a part of it, but having been once affixed they become a part of the main thing though temporarily removed. 1 Under the rule prevail- ing in the United States, the same conclusion would follow a fortiori? to the plaintiffs should have been left to the jury." See also Kent Iron Co. v. Norbeck, 150 Pa. St. 559, 24 Atl. R. 737. i See Woods v. Russell, 5 B. & Aid. 942; Tripp v. Armitage, 4 M. & W. 687; Goss v. Quinton, 3 M. & G. 825; Wood v. Bell, 6 E. & B. 355. In the latter case the question was as to the engines, plates, irons and planking designed for a ship and in course of preparation for her, but not yet actu- ally put in place. Said the chief justice: "The question is, What is the contract? The contract is for the purchase of a ship, not for the purchase of everything in use for the making of the ship. I agree that those things which have been fitted to and formed part of the ship would pass, even though at the moment they were not attached to the vessel. But I do not think that those things which had merely been bought for the ship and intended for it would pass to the plaintiff. Nothing that has not gone through the ordeal of being approved as part of the ship passes, in my opinion, under the con- tract." 2 Thus in Chambers v. Board of Education (1875), 60 Mo. 370, a con- tractor had undertaken to build a schoohhouse for the defendant, under the supervision of the latter's archi- tect, and the work was to be paid for in instalments. Upon the contractor's request, the defendant had advanced him $3,000 to buy lumber for use in the building, upon the parol under- standing that it was to become the property of defendant. The lumber was brought upon the lot, but before becoming incorporated in the build- ing was transferred by the con- tractor to satisfy a debt to a third person. The court held the parol understanding insufficient to trans- fer the title, and the question there- upon arose whether the title to the lumber had otherwise passed to the defendant. The court below held that it had. " This doctrine," said the supreme court, " was based on the ground that a superintendent was appointed by the orderer (the defendant) and that the manufact- urer or builder was to be paid in in- stalments as the work progressed, and that in such cases, where the materials were inspected and al- lowed by the superintendent, the title to them at once passed to the purchaser or orderer. But the gen- G40 CH. V.] CONTRACTS — GOODS TO BE MANUFACTURED, ETC. [§ 762. § 762. Articles to be supplied by way of repairs or alterations to another chattel. — Where articles are to be supplied by way of repairs or alterations to a chattel, the Eng- lish courts hold that the title does not pass until the whole of eral law is otherwise, as the cases in New York and Massachusetts, and indeed in England — unless we ex- cept the case of Woods v. Russell (5 B. & Aid. 942),— show; and there must be a special agreement between the contractor and his employer to transfer the property so bought by the contractor to his employer; and in this case there was no such agree- ment, except the parol one hereto- fore considered. Or this instruction may have been based on the assump- tion that when the builder put the lumber on the ground of defendant, with the intention to use it in the building he was to erect on such ground, this alone transferred the title in the materials to the owner of the ground. But this is not the law. The materials belonged to the builder and were at his risk until actually put in the house. The fact that the builder bought them with a view to putting them in the defend- ant's house did not change their ownership, nor did the inspection of the superintendent or architect have this effect. Johnson v. Hunt, 11 Wend. (N. Y.) 135; Mucklow v. Man- gles, 1 Taunt. (Eng.) 319; Merritt v. Johnson, 7 Johns. (N. Y.) 473, 5 Am. Dec. 289." In Ellis v. Bonner (1891), 80 Tex. 198, 15 S. W. R. 1045, 26 Am. St. R. 731, a building society had undertaken to build two portable houses for Bon- ner. The material for the houses had been delivered upon the lot and Bon- ner had paid the greater part of the contract price when Ellis attached the lumber as the property of the building company. The court held that the rule applicable to the man- ufacture of chattels did not apply to a case like the present; that it was within the power of the parties by their contract to determine either that the title should vest in Bonner when it was delivered upon the lots, or that it should remain in the build- ing company until the houses were completed; that the contract in this respect would determine whether the lumber was subject to seizure as the property of the building company; that if the contract was intended to be a sale of the material, its delivery upon the lot would be sufficient to pass the title to Bonner; that if the contract was for completed houses, then such delivery and part payment would not be sufficient to pass the title. " But if," continued the court, " under a proper construction of the contract, the title to the material re- mained in the building company be- fore being put into the building, and was therefore subject to levy for its debts, it does not follow that Bonner had not acquired in it an interest which should be protected. If it be conceded that the title to the mate- rial remained in the building com- pany, still it had delivered the lum- ber to Bonner, and received money from him as a payment upon it under circumstances that justified him in believing, and sufficient to at least show an implied contract, that the very material should be used in the construction of the houses. Under 41 641 r f>3. LAW OF SALE. [book II. the work contracted for has been completed, notwithstanding payment has been made in instalments, and the repairs or alter- ations have been constructed under the supervision of the pur- chaser. 1 II. Where Goods are to be Grown. § 763. Title passes when chattel is grown and appropri- ated to the contract. — A contract to sell and deliver a chattel not then in existence, but subsequently to be grown and pro- duced, " comes by analogy," said the court in Vermont, 2 " within the class of contracts for the manufacture of goods and for their delivery at a future day. In such cases the authorities have abundantly established the general rule that the article must not only be made and offered to the vendee, but that he must accept of it, or it must be set apart for him by his con- sent, before the title to it will vest in him; and although the such circumstances the building as- The defendant employed other par- sociation would not have been al- ties to make the repairs and used the lowed to take the property from Bonner's possession and deprive him of it as a security for the money paid by him." No cases or statutes are cited by the court as authority for its holdings, and the English and Amer- ican cases are not referred to. See also Johnson v. Hunt, 11 Wend. (N. Y.) 135. In Abbott v. Blossom (1873), 66 Barb. (N. Y.) 353, it appeared that G., a carpenter, agreed with the defendant to put certain repairs upon the house of the latter. G. was to furnish the lumber required and de- fendant was to draw it. No separate price was to be paid for the lumber, but the work and materials were to be paid for at a fixed price on the completion of the job. G. selected the lumber to be used and the de- fendant drew it to the house. G. failed to commence work upon the job and abandoned the contract. lumber in making them. Held, that the lumber did not become the prop- erty of the defendant, there having been no delivery of it with intent to pass the title. In Hood v. Manhattan Ins. Co. (1854), 11 N. Y. 532, it is said: " It frequently happens that one man owns the keel and employs another, the ship-builder, to furnish materials and finish the ship. Such materials, though completely finished, remain the property of the builder until they actually become a part of the struct- ure of the ship." !See Anglo-Egyptian Navigation Co. v. Rennie (1875), L. R. 10 C. P. 271, distinguishing Clarke v. Spence, 4 Ad. & E. 448; Woods v. Russell, 5 B. & Aid. 942; Wood v. Bell, 5 E. & B. 772; s. C, 6 id. 355. 2 Rider v. Kelley (1859), 32 Vt. 268, 76 Am. Dec. 176. 642 CH. V.] CONTRACTS — GOODS TO BE MANUFACTURED, ETC. [§§ 704-5. cases, to some extent, modify this general rule, as where the parties agree to treat the article as constructively delivered when finished, or as where the vendee finds the materials and superintends or specially directs in the process of manufacture, yet we find nothing to make this case an exception." § 764. . The contract in this case was for hops to be grown, cured, packed and inspected in Vermont, and the ques- tion was whether a tender of the hops would operate to pass the title. Upon this question it was said : "It is obvious that the parties did not intend, and could not have intended, that a mere tender of the hops by the vendor should pass the title in them to the vendee against his positive refusal to accept them. The hops were to be raised thereafter, were to answer the spe- cial description specified in the contract, and were to be of Vermont inspection. The vendee was entitled to examine them, and use his judgment in determining whether they came within the contract. They would not become his property against his consent; although if he wrongfully refused to ac- cept them he would be liable in damages. He was not bound by the offer of delivery to accept them, and treat them as his own. Where the contract so plainly points for something fur- ther to be done by the purchaser, some further right or priv- ilege to be exercised by him before actual delivery takes place, and actual possession and title change, there the possession and title must be held to remain in the seller, and he must take charge of the property, and keep or sell the same as he sees fit." 1 § 765. . However sound this decision may have been upon its own peculiar facts, it is obvious that the rule laid down, in supposed analogy to the case of goods to be manu- factured or supplied, is not that which has been seen to be supported by the weight of modern authority. 2 And no reason is apparent why cases of this description should not fall within i Citing Hale v. Huntley, 21 Vt. man v. Hill, 86 N. H. 311; Comfort v. 147; Jones v. Marsh, 22 Vt. 144; Gil- Kiersted, 26 Barb. (N. Y.) 472. 2 See ante, § 754 et seq. 64:3 § 765.] LAW OF SALE. [BOOK II. the general rule that, unless a contrary intention is evident, the title would pass when the goods, of the kind agreed upon, are by tender or other equivalent act set apart and appropri- ated to the buyer. 1 iThus, in Colorado Springs Live Stock Co. v. Godding (1894), 20 Colo. 249, 38 Pac. R. 58, where the contract was for raising and selling certain crops of alfalfa, and the alfalfa had been raised, cut, stacked and meas- ured as the contract required, it was held that the title then passed and the price could be recovered. Said the court: "While it has been held in some of the cases that the accept- ance by the purchaser of an article appropriated by the seller according 644 to the terms of an executory con- tract of sale is necessary to pass the title, the weight of authority is that the appropriation by the seller of an article, when completed in accord- ance with the terms of the contract, passes the title without the subse- quent assent of the purchaser, and an action for the agreed price can be maintained." See also Wood v. Michaud (1896), 63 Minn. 478, 63 N. W. R. 963. CHAPTER YI. OF THE RESERVATION OF THE JUS DISPONENDL Custom does not affect. Sending invoice, etc., to buyer does not affect. 786. The rules stated. Resume of English cases. 789. Bill of lading consigning goods to buyer. ■792. Transfer of bill of lading during transit. 794. How when goods sent C. O. D. -797. How when goods to be delivered F. O. B. §§ 766, 767. Purpose of this chapter. § 781. 768. Distinctions. 782. 769. Sending goods by carrier not an appropriation if seller 783- retains power of disposal. 787. 770. Methods adopted. 78S, 771-773. Choice of methods. 774-776. Bill of lading taken to 790- seller's order. 777, 778. Purpose and effect. 793, 779. Bill of lading to seller's order attached to draft on buyer. 795- 780. Buyer obtaining posses- sion without payment. § 766, Purpose of this chapter,— It has been seen in an earlier chapter that the question when the title passes is pri- marily one of the intention of the parties; and the rules which have been heretofore considered are rules of construction ap- plied by the courts in their endeavors to arrive at the intention of the parties where the latter have not made their meaning clear by their agreement. Among other rules it has been found that where the parties have come to an agreement for the pres- ent sale of a specific chattel, the title to it, in the absence of anything to indicate a contrary intent, will be deemed forth- with to pass without the necessity of any other act of the par- ties, such as payment or delivery. But the chattel to be sold is not always designated at the time of the agreement, and in the preceding chapters there has been considered what acts will suffice, where the parties have agreed upon the terms of the contract but not upon the chattel, to subsequently designate the chattel which is to be transferred and to appropriate it to the contract. 641 §§ 767-709.] LAW OF SALE. [book II. § 767. . A variety of acts which have been passed upon by the courts has been enumerated, but it is obvious that the list is not exhaustive owing to the infinite variety of forms in which the transactions of the parties may present themselves. These acts, also, have been held to pass the title because that was presumed to have been the intention of the parties. Such may not always have been their intention, however, and it re- mains to consider what acts will suffice to indicate an inten- tion that the title shall not pass, notwithstanding such conduct or events as would otherwise have operated to transfer the title. § 768. Distinctions. — In considering this question care must be taken to discriminate between those cases in which the title has passed, though the seller has a right to retain the goods until some act has been done by the buyer, and those in which the act is to be done before the title is to pass even though the goods may have left the possession of the seller, — in other words, between a lien and a reservation of the title. It is to the latter question that the present chapter is devoted, and to that branch of the latter question which has to do with the subject of the preceding chapters. § 769. Sending goods by carrier is not an appropriation if seller reserves jus disponendi. — The question now in hand most frequently arises where goods have been ordered from a seller at a distance, who is to transmit them by carrier to the buyer. It was seen in a preceding chapter that when such goods have been unconditionally delivered to the carrier for transportation to the purchaser, such delivery is usually deemed to be an appropriation of t>e goods to the contract and operates thereupon to transfer the title. Cases, however, frequently arise in which, while he desires and expects to transmit the goods, the seller still desires to retain some hold upon them to secure himself against the insolvency or default of the buyer. The seller in such cases may be content to rely upon his ordi- nary right of stoppage in transitu, or he may desire to retain the title in himself until the goods are paid for. He may, of 646 CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§§ 770-772. course, do this, as was seen in a preceding chapter, by an ex- press stipulation that the title shall not pass until the price is paid ; but a simpler and more temporary reservation of con- trol is now the purpose. § 770. Methods adopted. — In accomplishing this pur- pose one of three methods is commonly employed: 1. The ship- per takes a bill of lading providing for the delivery of the goods at the point of destination to his own order or that of his agent, and then transmits the bill of lading to an agent at the place of delivery with instructions not to deliver the goods to the vendee until paid for; 2. The shipper may take a like bill of lading and, attaching it indorsed to a draft upon the pur- chaser, may deliver the draft for collection to, or may dis- count it at, some bank which will forward both to a correspond- ent at the place of delivery, where the latter will deliver the bill of lading to the purchaser upon his paying or accepting the draft; or 3. The shipper may take a bill of lading reciting the delivery of the goods by him to the carrier for transporta- tion to the purchaser (without making them expressly deliver- able to the shipper or his order), and may use this in connec- tion with a draft, as in the second method. The first two methods are the most common, particularly in the English cases. § 771. Choice of methods. — Whatever be the method adopted, it must be one calculated to effectuate the purpose and to rebut the presumption arising from unconditional de- livery to the carrier. A mere mental act on the part of the seller will not suffice if it be not accompanied by some out- ward act indicative of a purpose and legally sufficient to re- tain a hold upon the title other than the mere right of stoppage in transitu. § 772. . The method adopted should, moreover, be an unambiguous and unequivocal one. Thus, where the terms of the invoice showed clearly that the seller deemed the title to have passed, the fact that he sent a bill of lading to his agent 647 §§ 773, 774] law of sale. [book ii. to be used in coercing payment was held not to prevent the passing of the title. 1 § 773, . The seller must also act in good faith. Thus where, after an unconditional delivery for the buyer to the captain of the buyer's own ship, the seller by misrepresenta- tion obtained from the captain a bill of lading in blank as to the consignee and sent that with draft attached to an agent for collection, it was held that the title had passed and that this dealing with the bill of lading did not affect it. 2 § 771. Bill of lading to seller's order. — Where the seller takes a bill of lading which expressly stipulates that the goods are to be delivered, at the point of destination, to himself or agent, or to his order or assigns, there is the clearest possible evidence upon the face of the transaction that, notwithstand- ing such an appropriation of the goods as might have been suf- ficient to transfer the title to the buyer, the seller has deter- mined to prevent this resu't by keeping the goods within his own control. 3 iWalley v. Montgomery (1803), 3 Co. v. Commercial Bank (1887), 123 East, 583. U. S. 727, 8 S. Ct. 266; Libby v. In- 2 Ogle v. Atkinson (1814), 5 Taunt, galls (1878), 124 Mass. 503; Furman v. 759. Eailroad Co., 106 N. Y. 579, 13 N. E. 3 Craven v. Ryder (1816), 6 Taunt. R. 587; Joslyn v. Grand Trunk Ry. 433; Ruck v. Hatfield (1822), 5 B. & Co., 51 Vt. 92; Peoria Bank v. Rail- Aid. 632; Wait v. Baker (1848), 2 Ex. road Co., 58 N. H. 203; Bank v. Cum- 1; Van Casteel v. Booker (1848), 2 Ex. mings, 89 Term. 609, 18 S. W. R. 115, 691; Ellershaw v. Magniac (1843), 6 24 Am. St. R 618; Security Bank v. Ex. 570; Ward v. Taylor (1870), 56 111. Luttgen, 29 Minn. 363, 13 N. W. R. 491; Bellefontaine v. Vassaux (1896), 151. 53 Ohio St. 323, 45 N. E. R 321; Will- Where the bill of lading is taken man Co. v. Fussy (1895), 15 Mont. 511, to the seller's order, the mere fact 39 Pac. R. 738; Dows v. National Ex- that the buyer is named as con- change Bank (1875), 91 U. S. 618: See- signee will not pass the title to him. ligson v. Philbrick (1886), 30 Fed. R. First Nat. Bank v. Crocker (1872), 111 600; Berger v. State (1887), 50 Ark. Mass. 163. 20, 6 S. W. R. 15; Bergeman v. Rail- Wait v. Baker, 2 Ex. 1 (supra), is road Co. (1890), 104 Mo. 77, 15 S. W. R. a leading case upon the subject of 992; Pennsylvania Ry. Co. v. Stern reserving the jus disponendi by tak- (1888), 119 Pa. St. 24, 12 Atl. R. 756, ingthe bill of lading to the shipper's 4 Am. St. R 626; North Penn. R R. order. There the defendant, who 648 CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§ 775. This evidence, however, is not absolutely conclusive, though, as stated by the supreme court of the United States, " it is held to be almost conclusive." l § 775. Thus, for example, it is possible, even in such a case, that it was the intention of the parties — as where the person occupying the relation of vendor was really acting as agent of the buyer 2 — that the title should pass upon the de- was a corn factor at Bristol, ery to the captain of the vessel to be made a contract by mail with one Lethbridge, a corn factor at Ply- mouth, to buy from him a quantity of barley f. o. b. at Kingsbridge, for cash on handing bills of lading or acceptance at two months. Leth- bridge was directed to charter a ves- sel and he chartered the " Emerald." Her captain signed a bill of lading, making the barley deliverable at Bris- tol to the order of Lethbridge or as- signs. Lethbridge went to Bristol and called at defendant's office early in the morning, leaving there an unindorsed bill of lading and an invoice. He called again later in the day, when a dispute arose, and though the defendant finally said that he accepted the barley and offered to pay the cash, Lethbridge declined it and took away the bill of lading, which he indorsed to plaintiffs for value. When the ship arrived, defendant obtained possession of part of the cargo before plaintiffs pre- sented their bill of lading. The ac- tion was trover for the barley so taken and plaintiffs recovered. Parke, B., after pointing out that although a delivery to a carrier is, if nothing further takes place, a delivery to the vendee so as to vest the property in him, but that such was not the case, said: "The delivery of the goods on board the ship was not a delivery of them to the defendant, but a deliv- carried under a bill of lading, and that bill of lading indicated the per- son for whom they were to be car- ried. By that bill of lading the goods were to be carried by the master of the vessel for and on account of Leth- bridge. to be delivered to him in case the bill of lading should not be as- signed, and, if it should, then to the assignee. The goods therefore still continued in possession of the mas- ter of the vessel, not as in the case of a common carrier, but as a person carrying them on behalf of Leth- bridge." 1 Dows v. National Exch. Bank (1875), 91 U. S. 618, supra. 2 This was the case in Van Casteel v. Booker (1848), 2 Ex. 691, where Parke, B., said: "Notwithstanding the form of the bill of lading, the contract may have been made really on behalf of the vendee, though prima facie it is made on behalf of the vendor; and it is a question for the jury, to be decided on the evi- dence, looking at the form of the bill of lading, particularly noticing that it is made freight free, and the lan- guage of the invoice, and the imme- diate transfer of the bill of lading to the [vendeesj, and other facts, whether the goods were not really delivered on board to be carried for and on account and at the risk of the [vendeesj." 649 § 775.] LAW OF SALE. [book II. livery to the carrier. And notwithstanding the evidence of the bill of lading, there may be other evidence sufficient to overthrow it indicating a contrary intention; as where, from the invoice, it appears that the goods were shipped "for ac- .count and at the risk " of the buyer, 1 and the like. Whether there was such a contrary intention is usually a question of fact for the jury, 2 and it must be shown by evi- dence sufficiently strong to overcome the presumption arising upon the face of the transaction. 3 In the absence of such a iWalley v. Montgomery (1803), 3 East, 585. So where the goods marked with the initials of the buyer have been delivered to the carrier, and the purchaser has accepted a draft for the price, the fact that the seller takes the carrier's receipt in his own name will not overthrow the pre- sumption that the title passed. Hall v. Richardson (1860), 16 Md. 396, 77 Am. Dec 303. And where the con- tract was that the goods should be delivered over the rail of a vessel, and they have been so delivered, the fact that afterwards, at the master's suggestion, a bill of lading in the shipper's name is made out, as the master said. " for the purpose of fix- ing the freight," will not necessarily defeat the effect of the delivery. Gibbons v. Robinson (1886), 63 Mich. 146, 29 N. W. R. 533. And where the sellers, who were indebted to the buyers, delivered goods to the carrier consigned to the buyers, and wrote them saying "we deliver you this load on our indebtedness,'' the fact that the shippers took a bill of lad- ing in their own names was held not to defeat the effect of the delivery. Straus v. Wessel (1876), 30 Ohio St. 211, Adams' Cases on Sales, 781. 2 In Gibbons v. Robinson, supra, it is sa|d: " The question of delivery is one of fact, and is mainly governed by the intention of the parties. Where the evidence is equivocal, it is prop- erly a question of fact for the jury, under proper instructions, and must be submitted to them, unless it is plain, as matter of law, that the evi- dence will justify a finding but one way," citing Allen v. Williams, 12 Pick. 297; Stanton v. Eager, 16 Pick. 467; Stevens v. Boston, etc. R. Co., 8 Gray, 262; Moakes v. Nicolson, 19 Com. B. (N. S.) 290, 115 Eng. Com. L. 290; Godts v. Rose, 25 L. J. C. P. 61, 84 Eng. Com. L, 229: Tregelles v. Sewell, 7 H. & N. 574. Though where it appears on the face of the docu- ments, the court may decide it as a quest ion of law. Key v. Cotesvvorth (1852), 7 Exch. 595. 3 In Browne v. Hare (1859), 4 H. & N. 822, Erie, J., said: "The contract was for the purchase of unascer- tained goods, and the question has been when the property passed. For the answer the contract must be re- sorted to; and under that we think the property passed when the goods were placed ' free on board ' in per- formance of the contract. In this class of cases the passing of the prop- erty may depend, according to the contract, either on mutual consent of both parties, or on the act of the vendor communicated to the pur- chaser, or on the act of the vendor 650 en. vi.] RESERVATION OF THE JUS DISPOXENDI. [§ 775. showing, the transaction will have its natural effect of reserv- ing the jus disponendi in the seller, and will prevent a trans- fer of the title to the buyer until such time as, upon payment or otherwise, the seller, by indorsement or its equivalent, places the goods at the disposal of the buyer. 1 The question is, was it the purpose of the seller, in taking the bill of lading to his own order, to reserve the jus disponendi — to retain con- trol of the goods,— or was he desirous that the buyer should take the goods and simply adopted this method as matter of precaution in case the buyer, for any reason, should not take them. 2 alone. Here it passed by the act of the vendor alone. If the bill of lad- ing had made the goods ' to be de- livered 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 in- tention with which the bill of lading was taken in this form : whether the consignor shipped the goods in per- formance of his contract to place them 'free on board;' or for the pur- pose of retaining a control over them and continuing to be owner, con- trary to the contract, as in the case of Wait v. Baker, 2 Ex. 1, and as is explained in Turner v. The Trust- ees of the Liverpool Docks, 6 Ex. 543. and Van Casteel v. Booker, 2 Ex. 691. 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 pass- ing. In our opinion it did not, under the circumstances." i Where the seller indorses the bill of lading and sends it to the pur- chaser he clearly waives the jus dis- ponendi. Key v. Cotesworth (1852), 7 Exch. 595; Browne v. Hare (1859), 4 H. & N. 822; Wilmshurst v. Bowker (1844), 7 Man. & Gr. 882. So, also, where he gives the buyer an uncon- ditional order on the carrier for the goods. Hatch v. Bayley (1853), 12 Cash. (Mass.) 27; Hatch v. Lincoln (1853), 12 Gush. 31. So, though the seller retains the bill of lading, if the goods are actu- ally delivered to and received by the buyer, the jus disponendi is gone. Hope Lumber Co. v. Hardware Co. (1890), 53 Ark. 196, 13 S. W. R. 731. 2 The distinction is clearly shown in Joyce v. Swann (1864), 17 C. B. (N. S.) 84. There it appeared that Seagrave & Co. of Liverpool had contracted to sell a cargo of guano to McCarter of Londonderry. They wrote him February 26th that they had engaged a vessel and would have the cargo on board in a few days and proposed to draw on him for the guano at a certain price per ton. On March 2d McCarter ordered the cargo insured for him. On March 3d he wrote to Seagi - ave & Co. complaining that the 651 776.] LAW OF SALE. [L'OOK II. 776. The mere fact, however, that the consignor was the agent of the consignee is not necessarily conclusive, for "where a commercial correspondent, however set in motion by a principal for whom he acts, advances his own money or credit for the purchase of property and takes the bill of lading in his own name, looking to such property as the reliable and safe means of reimbursement up to the moment when the orig- inal principal shall pay the purchase price, he becomes the owner of the property instead of its pledgee, and his relation to the original mover in the transaction is that of an owner price was too high. On March 4th Seagrave Co., fearing from this let- ter that McCarter might not accept the guano, took a bill of lading in their own names and insured the cargo on their own account. This bill of lading and an invoice were sent to a partner of the firm who happened to be near Londonderry, and he called on McCarter in the evening on Saturday, March 7th. Mc- Carter was then willing to take the cargo and they met Monday morn- ing, when the bill of lading was in- dorsed to McCarter and he gave his acceptance for it. It afterwards ap- peared that the vessel and cargo had been lost on the evening of March 7th. The action was upon the insur- ance effected by Joyce, the insur- ance broker, for McCarter, and de- fendants, the underwriters, con- tended that McCarter had no insur- able interest on March 2d, but the jury found that Seagrave & Co. had put the cargo on board with inten- tion of passing the property to him, and found for the plaintiff. A mo- tion for nonsuit or new trial was de- nied. The court, per Williams, J., said: " It was a question for the jury, and I think they were warranted in assuming that the guano was put on board pursuant to that contract 65 with the intention of transferring the property from the sellers to the buyers. It is true that the bill of lading was taken in the names of the sellers, and at the time the insur- ance was declared was unindorsed. That was a circumstance which was well worthy the attention of the jury, and might have induced them to come to a contrary conclusion. But, if they thought that, notwith- standing this, there were other cir- cumstances sufficiently cogent to induce them to come to the conclu- sion that the property was intended to pass, I am of opinion that the mere circumstance of the form of the bill of lading, and of the invoice being transmitted to the partner then in Ireland, instead of to Mc- Carter direct, was not sufficient to annihilate the other evidence in the cause, though it might induce the jury to pause. The cases of Wait v. Baker, 2 Ex. 1, and Browne v. Hare. 3 H. & N. 484, 4 id. 822, appear to me clearly to establish the distinc- tion that, if from all the facts it may fairly be inferred that the bill of lading w r as taken in the name of the seller in order to retain dominion over the goods, that shows that there was no intention to pass the prop- erty; but if the whole of the circum- CH. VI.] KESERVATIOX OF THE JUS DISPONEXDI. [§§ 777, 778. under a contract to sell and deliver when the purchase price is paid." 1 §777. Purpose and effect.— This reservation of the title by the seller may be prompted by any one of a number of motives and it may have a variety of effects. Its ordinary pur- pose, undoubtedly, is to coerce payment of the price by retain- ing title until payment. In addition to this main purpose and effect, it may have several incidental or collateral effects. It may, for example, determine when and where the title has passed and the sale has been completed within the purview of local statutes forbidding or restricting sales, as in the common case of the statutes forbidding or restricting sales of intoxicat- ing liquors. 2 It may also determine whether or not the goods have become taxable or leviable as the property of the vendee. 3 And in addition to these, as will be seen, 4 it may give to the vendor a wide power of making pledges, sales or mortgages of the goods before they become the property of the original vendee. § 778. . "With the title would also ordinarily be retained the risk, though this must depend upon the manner in which the bill of lading is subsequently dealt with. If, for example, though the bill of lading were taken to the seller's order, he at once indorses it and sends it to the buyer, or gives the lat- ter an order on the carrier for the goods, the title, as has been stances lead to the conclusion that Berger v. State, 50 Ark. 20, 6 S. W. R. that was not the object, the form of 15; Sarbecker v. State, 65 Wis. 171, the bill of lading has no influence on 56 Am. R. 624; Coin. v. Fleming, 130 the result." See also Straus v. Wes- Pa. St. 138, 18 Atl. R. 622, 17 Am. St. sel (1876), 30 Ohio St. 211. R. 763, 5 L. R. A. 470; State v. O'Neil, i Moors v. Kidder (1887), 106 N. Y. 56 Vt. 140, 56 Am. R. 557; State v. 32; Farmers,' etc. Bank v. Logan Peters, 91 Me. 31, 39 Atl. R. 342; State (1878), 74 N. Y. 568. v. Wingfield, 115 Mo. 428, 22 S. W. R. 2 Thus, where the jus disponendi 363, 37 Am. St. R. 406, and many other lias been so reserved, the title passes cases cited in these. and the sale is completed at the time 3 For example, see Merchants' Ex- and place of delivery rather than of change Bank v. McGraw, 59 Fed. R. shipment. See Bellefontaine v. Vas- 972, 15 U. S. App. 332, 8 C. C. A. 420. saux, 55 Ohio St. 323, 45 N. E. R 321 ; * See post, g§ 793, 794.- 653 § 770.] LAW OF SALE. [LOOK II. seen, would be vested in the buyer. 1 And if the seller retain the bill of lading merely for the purpose of obtaining payment of the price, but intending that the buyer should have the goods upon payment, the buyer, by the shipment, acquires an interest in the gooils which will entitle him to have them upon payment. "With reference to such a case Lord Bramwell said on one occasion: 2 "That the vendee has an interest in the specific goods as soon as they are shipped is plain. By the contract they are at his risk. If lost or damaged, he must bear the loss. If specially good and above the average qual- ity which the seller was bound to deliver, the benefit is the vendee's. If he pays the price, and the vendor receives it, not having transferred the property, nor created any right over it in another, the property vests." § 779. Bill of lading to seller's order attached to draft on buyer. — Equally significant of the intention is the case in which the bill of lading, taken to the order of the seller, 3 is indorsed by him and attached to a draft upon the purchaser for the price; and the draft is then delivered to a bank for col- lection, 4 or is discounted by the bank in reliance upon the secu- *See cases cited in the fifth note bank on acceptance of the draft, and to section 775. passes title to the goods, and the 2 Mirabita v. Imperial Ottoman bank need not hold the bill of lading Bank (1878), 3 Exch. Div. 164. until payment, the time draft being 3 The same effect has been given evidence of a term of credit given to to the transaction where the bill of the drawee. St. Paul Mill Co. v. Great lading was a mere receipt, naming Western Despatch Co. (1886), 27 Fed. the seller as consignor and the buyer R. 434; National Bank v. Merchants' as consignee. Emery s Sons v. Irving Bank (1875), 91 U. S. 92: Moore v. National Bank (1874), 25 Ohio St. 360, Louisiana Nat. Bank (1892), 44 La. 18 Am. R. 299. See also post, §$ 783- Ann. 99, 32 Am. St. R. 332, 10 S. R, 786. 407. See also Marine Bank v. Wright, 4 " Time " and " sight " drafts — A 48 N. Y. 1 ; Hall v. Richardson (1860), bill of lading making goods deliver- 16 Md. 396, 77 Am. Dec. 303. able to the order of the shipper and But where the draft is a sight draft, attached to a time draft drawn on or the papers otherwise show that no the purchaser and sent to a bank credit was given, the bill of lading "for acceptance and collection," with should not be delivered until pay- no other instructions, has been held ment. Second National Bank v. Cum- to be rightfully delivered by the mings (1891), 89 Tenn. 609, 24 Am. St. 654 CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§ 779. rity afforded by the bill of lading. In such a case presumptively no title passes to the purchaser until by payment of the draft he has duly obtained the possession of the bill of lading, 1 al- though the goods have been sent in the buyer's own ship. 2 R. 618, 18 S. W. R. 115; Mc Arthur Co. v. Old Second Nat. Bank (1899), — Mich. — ,81 N. W. R. 92; Security Bank v. Luttgen (1882), 29 Minn. 363, 13 N. W. R. 151; Kentucky Refining Co. v. Globe Refining Co. (1898), — Ky. — , 47 S. W. R. 602, 42 L. R. A. 353. Un Jenkyns v. Brown (1849), 14 Q B. 496, it appeared that one Klin- gender, a merchant in New Orleans, had bought a cargo of corn on the order of the plaintiffs, and taken a bill of lading for it, deliverable to his own order. He then drew bills for the cost of the cargo on the plaint- iffs, and sold the bills to a New Or- leans banker, to whom he also in- dorsed the bill of lading. He sent invoices and a letter of advice to the plaintiffs, showing that the cargo was bought and shipped on their ac- count. It was held that the prop- erty did not pass to plaintiffs, as the taking of a bill of lading by Klin- gender in his own name was " nearly conclusive evidence " that he did not intend to pass the property to plaint- iffs; that by delivering the indorsed bill of lading to the buyer of the bills of exchange he had conveyed to them "a special property" in the cargo; and by the invoice and letter of advice to the plaintiffs he had passed to them the "general prop- erty" in the cargo, subject to this special property, so that the plaint- iffs' rights to the goods would not 2 Thus, in Turner v. Trustees of Liv- erpool Docks (1851), 6 Exch. 543, a cargo of cotton had been purchased by customers who sent their own ves- sel for it and it was placed on board; but the sellers took bills of lading making the goods deliverable '"to order or to our [the sellers'] assigns, he or they paying freight . . . nothing, being owner's property." The sellers drew on the purchasers for the price, and the bills were dis- counted at a bauk with the bill of lading as security. The question was whether by delivery on board the buyer's vessel, and the statement in the bill of lading that the goods were his property, the title had so passed as to defeat the claim of the bank. Said the court, per Patteson, J.: " There is no doubt that the delivery of goods on board the purchasers' own ship is a delivery to him, unless the vendor protects himself by spe- cial terms restraining the effect of such delivery. In the present case the vendors, by the terms of the bill of lading, made the cotton deliver- able at Liverpool to their order or assigns, and there was not, therefore, a delivery of the cotton to the pur- chasers as owners, although there was a delivery on board their ship.'' To like effect: Ellershaw v. Magniac (1843), 6 Ex. 570; Brandt v. Bowlby (1831), 2 B. & Ad. 932; Van Casteel v. Booker (1848), 2 Ex. 691; Moakes v. Nicholson (1865), 19 C. B. (N. S.) 290; Schotsmans v. Railway Co. (1867), 2 Ch. Ap. 332; Dows v. National Ex- change Bank (1875), 91 U. S. 618. 655 780.] LAW OF SALE. [BOOK II. This presumption, however, as in the former case, is not ab- solutely conclusive, and the title may pass if such appears to have been the intention, notwithstanding the draft. 1 780. Buyer obtaining possession without payment. And, in the ordinary case, even though the bill of lading in- dorsed by the seller comes into the possession of the buyer, yet if it so comes into his possession upon condition that he will pay the draft, no title passes to him until he has paid it. 2 But arise till the bills of exchange were that there was evidence to go to the paid by them. In Merchants' Exchange Bank v. McGraw (1894). 59 Fed. R. 972, 15 U. S. App. 332, 8 C. C. A. 420, it appeared that L. & Co. of Milwaukee had bought a quantity of hops from K., M. & Co., in Seattle, on the under- standing that the sellers should re- tain title till payment. In accord- ance with an undertaking by the Merchants' Exchange Bank of Mil- waukee to guaranty payment by L. & Co., the hops were delivered to a carrier at Seattle and K., M. & Co. took a bill of lading in which L. & Co. were named as consignees. This bill of lading was attached to a draft on L. & Co., and the draft was dis- counted by a bank in Seattle, which then forwarded the draft with bill of lading attached to the Merchants' Exchange Bank for collection. After the delivery of the hops to the car- rier (but whether before or after the discount by the Seattle bank was not clear) the hops were attached at Seattle as the goods of L. & Co. In an action by the Merchants' Ex- change Bank against the attaching parties, the lower court nonsuited the plaintiff upon the ground that it did not appear that the draft was cashed by the Seattle bank before the levy; but on appeal it was held jury tending to prove that, up to the time of the delivery of the bill of lading to the Seattle bank, the title to the hops remained in K., M. & Co., and that by the cashing of the draft, and the delivery of the bill of lading to that bank, it acted as the agent of the Milwaukee bank, and that the title passed to the latter. See also that title does not pass until payment, Freeman v. Kraemer, 63 Minn. 242, 65 N. W. R. 455; Belle- fontaine v. Vassaux, 55 Ohio St. 323, 45 N. E. R. 321; Baker v. Chicago, etc. R. Co., 98 Iowa, 438, 67 N. W. R. 376; Erwin v. Harris, 87 Ga. 333, 13 S. E. Rep. 513; Scharff v. Meyer, 133 Mo. 428, 34 S. W. R. 858, 54 Am. St. R. 672; Kentucky Refining Co. v. Globe Refining Co., — Ky. — , 47 S. W. R. 602, 42 L. R. A. 353; Bergeman v. Indianapolis, etc. R. Co., 104 Mo. 77, 15 S. W. R. 992; Willman Mercantile Co. v. Fussy, 15 Mont. 511, 39 Pac. R. 738; Jones v. Brewer (1885), 79 Ala. 545. iHobart v. Littleheld (1881), 13 R. I. 341. See also Straus v. Wessel (1876), 30 Ohio St. 211; Joyce v. Swann (1864), 17 Com. B. (N. S.) 84. 2 Farmers' Bank v. Logan (1878), 74 N. Y. 568; Shepherd v. Harrison (1871), L. R. 4 Q. B. 196, 4 id. 493,' L. R. 5 H. L. 116; Bank of Rochester v. 656 CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§ 780. where the seller has so dealt with the bill of lading for the purpose of securing the payment of the price, the buyer, upon paying or tendering the price, is entitled to have the goods. 1 Jones (1851), 4 N. Y. 497, 55 Am. Dec. 290; Moors v. Kidder (1887), 106 N. Y. 32, 12 N. E. R. 818; The New Haven Wire Co. Cases (1889). 57 Conn. 352, 18 Atl. R. 2GG. In Moors v. Kidder (supra), the facts were as follows: Kidder, Pea- body & Co., bankers of Boston, Mass., issued a letter of credit to C. C. Ban- croft & Co., of Calcutta, authorizing the latter to draw on Baring Bros. & Co., of London, for the cost of ship- ments of goods, through bills of lad- ing" to Boston or New York, to the extent of £3,000, for account of P. M. Swain, guaranteeing that the bills drawn by virtue of this credit would be duly honored by Baring Bros. & Co. Swain, on his part, agreed to provide sufficient funds in London for meeting the payment of what- ever bills should be drawn, as they matured. And he further expressly agreed that all property purchased under this arrangement, together with the bills of lading and insur- ance, was " hereby pledged " to Bar- ing Bros. & Co. as collateral security for the payment of the drafts, and might be sold or otherwise disposed of as Baring Bros. & Co. might deem necessary for their own protection. In due course C. C. Bancroft & Co. drew their draft for account of Swain, for the cost of one hundred cases of shellac, and attached thereto a bill of lading to the order of Bail- ing Bros. & Co., deliverable in New York. The draft was accepted and paid by Baring Bros. & Co. After the arrival of the goods Swain ob- tained the papers from Kidder, Pea- body & Co., as attorneys for Baring Bros. & Co., in order, as he alleged, to enter them at the custom-house and have them warehoused in the name of Baring Bros. & Co. But in- stead of doing so, he entered them in the name of his broker, and subse- quently obtained a loan of $6,000 from the plaintiff on the security of ninety-five of the cases of shellac, for which he gave warehouse receipts. The case turned solely upon the ques- tion whether Swain was general owner of the shellac and Baring Bros. & Co. only pledgees. The court held that the property in the goods was vested in Baring Bros. & Co., since their money and credit bought the goods, the bill of lading was to them, the goods were expressly stated by Swain to be held by them as se- curity, and they had the power of absolute disposal. A similar decision, under an almost identical state of facts, was reached in The New Haven Wire Co. Cases (supra). In one of these, which was typical of them all, the New Haven Wire Co., through its agents in Eng- land, purchased iron rods from Ger- man manufacturers on the credit of Baring Bros. & Co. The said agents drew drafts, accompanied by bills of lading, to the order of the drawees, on Baring Bros. & Co., which the latter accepted and paid at maturity, 1 Per Cotton, L. J., in Mirabita v. Imperial Ottoman Bank (1878), 3 Exch. Div. 164, quoted post, § 783. 42 657 §§ 781, 782.] LAW OF SALE. [BOOK II. §781. Custom does not affect.— An alleged custom that the title should pass upon delivery to the carrier notwith- standing that a bill of lading has been taken to the order of the seller and attached to a draft forwarded for collection has been held invalid. 1 782. Sending invoice, etc., to buyer does not affect result. — The mere fact that the seller has sent to the buj^er an invoice of the goods in which the specific goods are de- scribed and the buyer is named as consignee does not change the result; 2 for, though these acts of themselves might amount to an appropriation, they cannot pass the title in the face of the bill of lading taken to the order of the seller. The same is true also where an unindorsed copy 3 or duplicate 4 of the bill of lading is sent to the buyer, although, as will be seen, 5 where the bill of lading is not taken to the seller's order, but the buyer is named as consignee, then a duplicate of the bill of lading sent to the buyer is as effectual as the original. 6 under the agreement that the goods, together with the bills of lading, were, in consideration of the credit, sold, assigned and transferred to them as collateral security, subject only to the right of the New Haven Wire Co. to acquire title by the com- plete and strict performance of their contract as to payment. The court said: "The decisions are so numer- ous, and by so many courts, to the effect that when a commercial cor- respondent advances money for the purchase of property and takes pos- session, either actual or symbolical, he becomes the owner thereof, even when the advancement was made and the property was purchased at the request and for the ultimate use of another, and there is an agree- ment to transfer title to that other upon the performance of conditions precedent, and ownership was taken solely for the protection of the ad- vancement, that such may be said to be the established rule." J Charles v. Carter (1896), 96 Tenn. 607, 86 S. W. R. 396. 2 Jenkyns v. Brown (1850), 14 Q. B. 496; Wait v. Baker (1848), 2 Ex. 1; Shepherd v. Harrison (1871), L. R. 4 Q. B. 194, 4 id. 493, L.R5H. L. 116. "The invoice standing alone fur- nishes no proof of title." Pennsyl- vania R. Co. v. Stern, 119 Pa. St. 24, 4 Am. St. R. 626; Dows v. Milwaukee Bank, 91 U. S. 618. 3 Wait v. Baker, supra; Brandt v. Bowlby (1831), 2 B. & Ad. 932. 4Weyand v. Railway Co. (1888), 75 Iowa, 573, 9 Am. St. R. 504, 39 N. W. R. 899. 5SeejX>s£, §788et seq. 6 Missouri Pac. Ry. Co. v. Heitlen- heimer (1891), 82 Tex. 195, 27 Am. St, R. 861, 17 S. W. R. 608. 658 €H. VI.] RESERVATION OF THE JUS DISPONENDI. [§§ 783-785. § 783. The rules stated. — In a leading case 1 upon this subject decided in the English court of appeal in 1878, Cot- ton, L. J., laid down the principles governing the cases as fol- lows : " Under a contract for sale of chattels not specific, the property does not pass to the purchaser unless there is after- wards an appropriation of the specific chattels to pass under the contract; that is, unless both parties agree as to the specific chattels in which the property is to pass, and nothing remains to be done in order to pass it. In the case of such a contract the delivery by the vendor to a common carrier, or (unless the effect of the shipment is restricted by the terms of the bill of lading) shipment on board a ship of, or chartered for, the pur- chaser, is an appropriation sufficient to pass the property." § 7S4-. . «If } however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so, not as agent or on behalf of the purchaser, but on his own behalf, it is held that he thereby reserves to himself a power of disposing of the prop- erty and that consequently there is no final appropriation, and the property does not on shipment pass to the purchasers. When the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein; and accordingly in Wait v. BaTcer? Ellersliaw v. Magniac 3 and Gabarron v. Kreeft* (in each of which cases the vendors had dealt with the bills of lading for their own benefit), the decisions were that the purchaser had no property in the goods, though he had offered to accept bills for or had paid the price." § 785. . " So, if the vendor deals with or claims to re- tain the bill of lading in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be i Mirabita v. Imperial Ottoman 2 2Ex., 1. Bank (1878), 3 Ex. Div. 164, 31 Eng. R. 3 6 Ex. 570. (Moak's), 200. 4 L. R. 10 Ex. 274, 14 Eng. R. 562. 659 §§ 78 6, 787.] law of sale. [book ii. delivered to the purchaser till acceptance or payment of the bill of exchange, the appropriation is not absolute, but, until acceptance of the draft, or payment or tender of the price, is conditional only, and until such acceptance or payment or tender the property in the goods does not pass to the purchaser; and so it was decided in Turner v. Trustees of Liverpool Docks, 1 Shepherd v. Harrison 2 and Ogg v. Shuter." 3 § 786. . "But if the bill of lading has been dealt with only to secure the contract price, there is neither principle nor au- thority for holding that in" such a case the goods shipped for the purpose of completing the contract do not, on payment or tender by the purchaser of the contract price, vest in him. When this occurs there is a performance of the condition sub- ject to which the appropriation was made, and everything which, according to the intention of the parties, is necessary to transfer the property is done ; and, in my opinion, under such circumstances, the property does, on payment or tender of the price, pass to the purchaser." § 787. Resume' of English cases. — The rules to be de- duced from the English cases are stated by Mr. Benjamin 4 as follows: " First. Where goods are delivered by the vendor, in pursu- ance 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. 5 "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 1 6 Ex. 543. Dutton v. Solomonson, 3 B. & P. 582; 2 L. R. 4 Q. B. 196. London & Northwestern Ry. Co. v. 3 1 C. P. Div. 47, 15 Eng. R. 231. Bartlett, 7 H. & N. 400; Dunlop v. 4 Benjamin on Sales, § 399. Lambert, 6 CI. & Fin. 600; Cork Dis- 5 Citing "Wait v. Baker, 2 Ex. 1. tilleries Co. v. Great Southern Ry. "See also Dawes v. Peck, 8 T. R. 330; Co., L. R. 7 H. L 269." 600 CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§ 78 T. bailee for delivery to the person indicated by the bill of lading as the one for whom they are to be carried. 1 "Thirdly. The fact of making the bill of lading deliverable to the order of the vendor is, when not rebutted by evidence to the contrary, almost decisive to show his intention to re- serve the jus disponendi and to prevent the property from passing to the vendee. 2 "Fourthly. The prima facie conclusion that the vendor re- serves the jus disponendi when the bill of lading is to his order may be rebutted by proof that in so doing he acted as agent for the vendee and did not intend to retain control of the prop- erty; and it is for the jury to determine as a question of fact what the real intention was. 3 "Fifthly. That although, as a general rule, the delivery of goods by the vendor, on board the purchaser's own ship, is a delivery to the purchaser and passes the property, yet the vendor may by special terms restrain the effect of such de- livery and reserve the jus disponendi, even in cases where the bills of lading show that the goods are free of freight because owner's property. 4 And on a sale of goods which are not specific, although the goods have been delivered on board a ship of, or i"This principle," continues the Van Casteel v. Booker, 2 Ex. 691; text quoted, "runs through all the Jenkyns v. Brown, 14 Q. B. 496; cases, and is clearly enunciated by Shepherd v. Harrison, supra; Gabar- Parke, B., in Wait v. Baker, supra; ron v. Kreeft, supra; Ogg v. Shuter, by Byles, J., in Moakes v. Nicholson, 1 C. P. Div. 47; and Ex parte Ban- 19 C. B. (N. S.) 290; by Brarnwell and ner, 2 Ch. Div. 278. Cleasby, BB., in Gabarron v. Kreeft, 3 Citing Van Casteel v. Booker, L. R. 10 Ex., at pp. 281 and 285; and supra; Brown v. Hare, 4 H. & N. 822; by Cotton, L. J., in Mirabita v. lm- Joyce v. Swan, 17 C. B. (N. S.) 84; perial Ottoman Bank, 3 Ex. D. (C. A.), Moakes v. Nicholson, supra. at p. 172. And the above two points 4 Citing Turner v. Liverpool Dock were approved as an accurate state- Trustees, 6 Ex. 543; Ellershaw v. ment of the law by Lord Chelms- Magniac, supra; Brandt v. Bowlby, ford in Shepherd v. Harrison, L. R. 2 B. & Ad. 932; Van Casteel v. Booker, 4 _ Q. B. 196. in L. R. 4 Q. B. 493, in supra; Moakes v. Nicholson, supra; L. R. 5 H. L. 116/' Falk v. Fletcher, 18 C. B. (N S.) 403; 2 Citing Wilmshurst v. Bowker, 2 Schotsmans v. Railway Co., 2 Ch. 332; M. & G. 792; Ellershaw v. Magniac, Gum m v. Tyrie, 33 L. J. Q. B. 97, 34 6 Ex. 570; Wait v. Baker, 2 Ex. 1; id. 124. 661 § 788.] LAW OF SALE. [book II, chartered for, the purchaser, yet, in the absence of any appro- priation of the goods in fulfillment of the contract previous to shipment, the fact that the vendor has taken a bill of lading making the goods deliverable to his own order, or that of a third person, will prevent the property in them from passing to the purchaser. 2 "-Sixthly. That where a bill of exchange for the price of goods is inclosed to the buyer for acceptance, together with the bill of lading, the buyer cannot retain the bill of lading unless he accepts the bill of exchange; and if he refuse accept- ance, he acquires no right to the bill of lading or the goods of which it is the symbol. 2 And the vendor may exercise his jus disponendi by selling or otherwise disposing of the goods, so long at least as the buyer remains in default. 3 "Seventhly. But although the vendor may intend the trans- fer of the property to be conditional upon the buyer's accept- ance of the bill of exchange, yet, if he puts into the post addressed to the buyer a bill of lading making the goods de- liverable to the buyer's order, he thereby abandons all control over the goods, and the property thereupon vests uncondition- ally in the buyer and does not revest in the vendor on the buyer's failure or refusal to accept the bill of exchange. 4 "Eighthly. When the vendor deals with the bill of lading only to secure the contract price, as, e. g., by depositing it with bankers who have discounted the bill of exchange, then the property vests in the buyer upon the payment or tender by him of the contract price." 5 §788. Bill of lading consigning goods to buyer.— But a question more difficult than those considered in the foregoing sections is presented where the bill of lading, instead of mak- ing the goods deliverable to the seller or his order, simply de- 1 Citing Gabarron v. Kreeft, supra, distinguishing Shepherd v. Harrison, 2 Citing Shepherd v. Harrison, su- supra. pra; Ogg v. Shuter, supra; Revv v. 5 Citing Mirabita v. Imperial Otto- Payne, 1 C. P. D. 47. man Bank, 3 Ex. Div. 1G4, determin- ating Ogg v. Shuter, supra. ing a point left undecided by Lord 4 Citing Ex parte Banner, supra; Cairns in Ogg v. Shuter, supra. mi CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§ 7S8. clares that, having been received for carriage from the seller, they are consigned to the buyer. Upon this subject it is said in a leading case: 1 " Where goods are delivered by a vendor to a common carrier, consigned to the vendee, the question whether I Emery's Sons v. Irving National Bank (1874), 25 Ohio St. 360, 18 Am. R. 299. In this case it appeared that one Mirrielees of New York had been in the habit of buying goods upon the order of Thos. Emery's Sons of Cincinnati, and shipping those goods to them, drawing drafts upon them with the bill of lading attached. As the result of previous transactions Mirrielees was indebted to Emery's Sons. On March 24, 1869, he shipped three casks of stearine to them, tak- ing from the carrier a bill of lading or receipt which read as follows: " Received from G. M. Mirrielees the following packages (contents and value unknown) in apparent good order, and marked as in the margin: (3) three casks stearine. For Thos. Emery's Sons." In the margin was written " Cin., O." On the same day he drew upon them as follows: "$299 T y 5 New York, March 24, 1869. " On demand, pay to the order of myself, two hundred and ninety-nine T %V/ dollars, value received,and charge the same to account of three casks stearine. G. M. Mirrielees. " To Thos. Emery's Sons, Cincinnati." On March 26th he shipped ten casks of stearine under a substan- tially similar bill of lading (except that the words " Thos. Emery's Sons " appeared in the margin instead of in the body), and drew upon them a draft similar to the other for $1,098 ftfe He wrote Emery's Sons of the shipments, inclosing invoices and advising them of the drafts. He attached these bills of lading to the drafts, respectively, and sold the drafts to the Irving Na- tional Bank of New York. The bank sent the drafts on to Cincinnati for collection, but Emery's Sons refused to accept or pay them. After the bills of lading and drafts had been transferred to the bank, Emery's Sons obtained the stearine from the carrier and sold it, refusing to ac- count to the bank, but claiming the right to apply the proceeds on the indebtedness of Mirrielees to them. The action was by the bank against Emery's Sons to recover the proceeds. It was held, in an opinion from which the quotation of the text was taken, that the bank was entitled to recover, though a judgment in its favor was reversed for errors in procedure. In First National Bank v. Dearborn (1874), 115 Mass. 219, 15 Am. R. 92, it appeared that one Parks in Wisconsin had been in the habit of shipping flour to Harvey Scudder & Co. of Boston, drawing upon them for the price. On October 17, 1870, he de- livered to a carrier in Wisconsin one hundred barrels of flour and received a receipt in the following terms: "Received from R. G. Parks & Co. one hundred barrels of flour branded W., consigned to Harvey Scudder & Co., Boston, Mass., via Green Bay." At the same time Parks made a draft on Scudder & Co. for $400, to the order of the cashier of the plaintiff bank, and delivered to the bank the said receipt. The bank thereupon placed the $400 to Parks' credit. The bank sent the draft and receipt to 663 TS8.] LAW OF SALE. [book II. the title thereby passes from the vendor to the vendee depends upon the intention of the vendor, which intention is to be gath- ered from all the circumstances of the transaction. "If the goods be shipped in pursuance of the purchaser's Boston, where Scudder & Co. refused to accept the draft and disclaimed any interest in it, and the flour on arrival was attached by a creditor of Parks as his property: The action was replevin by the bank against the officer. It was admitted that Parks delivered the receipt to the bank for the purpose of securing the $400, and that it was the understanding of the parties that the flour was transferred as security for the money. Said the court, per Ames, J: "If there was a sufficient delivery of the property to the plaintiff there was nothing to hinder the intention of the parties from going into full effect. The character and situation of the prop- erty at the time of this transaction were such that an actual delivery was impossible. A constructive or symbolical delivery was all that the circumstances allowed; but a de- livery of that nature, if properly made, would have been sufficient to give to the plaintiff corporation the title to the property and an imme- diate right of possession, which it could maintain, not only against Parks himself, but also against his creditors. Tux worth v. Moore, 9 Pick. (Mass.) 347, 20 Am. Dec. 479; Fetty- place v. Dutch, 13 Pick. 388, 23 Am. Dec. 688; Whipple v. Thayer, 16 Pick. 25, 26 Am. Dec. 626; Carter v. Wil- lard, 19 Pick. 1. The delivery of the evidences of title, with orders in- dorsed upon them, would be equiv- alent to the delivery of the property itself. Gibson v. Stevens, 8 How. (U. S.) 384; Nathan v. Giles, 5 Taunt. 558; National Bank of Cairo v. Crocker, 111 Mass. 163, and cases there cited. All that would be neces- sary in such a case would be that the thing actually delivered should have been intended as a symbol of the property sold. . , . It is true that a receipt of this kind does not purport on its face to have the quasi- negotiable character which is some- times said to belong to bills of lading in the ordinary form; neither does it purport in terms to be good to the bearer. But independently of any indorsement, or formal transfer in writing, the possession and produc- tion of it would be evidence indicat- ing to the carrier that the bank was entitled to demand the property, and that he would be justified in deliver- ing it to them. There are cases in which the delivery of a receipt of this nature, though not indorsed or formally transferred, yet intended as a transfer, has been held to be a good symbolical delivery of the prop- erty described in it. In Haille v. Smith, 1 B. & P. 563, Eyre, C. J., uses this language: ' I see no reason why we should not expound this doctrine of transfer very largely upon the agreement of the parties and iipon their intent to carry the substance of that agreement into execution.' In Allen v. Williams, 12 Pick. (Mass.) 297, 301, Shaw, C. J., in delivering the judgment of the court says: ' Even a sale or pledge of the property with- out a formal bill of lading, by the shipper, would operate as a good as- signment of the property; and the 664 CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§ 789. order and at bis risk, or if it otherwise appear to be the inten- tion of the shipper to part with the title, the carrier becomes the agent of the consignee, and the delivery to him is equiva- lent to a delivery to the purchaser. If the vendor, however, in making the consignment and delivering the goods to the carrier, does not intend to part with his title to and control over them, the carrier must be regarded as the agent of the consignor and not of the consignee. § 789. " In all such transactions," continued the court, " the bill of lading is an important item, of proof as to the intention, delivery of an informal or unin- dorsed bill of lading, or other docu- mentary evidence of the shipper's property, would be a good symbolical delivery, so as to vest the property in the plaintiff.' It is true that he adds that it was not necessary to place the case upon that ground. But this dictum was cited with entire appro- bation, in a case raising that exact point, in the court of appeals of the state of New York. Bank of Roches- ter v. Jones, 4 N. Y. 497, 55 Am. Dec. 290. In that case, as in this, the plaintiff had discounted a draft drawn against a quantity of flour, and its title, as in this case, depended upon a carrier's receipt, delivered to it without any written indorsement. The court held that the plaintiff thereby acquired a sufficient title to the property, and could call the con- signee to account for it, he having converted the property to his own use, without accepting the draft. It is not necessary to hold that the plaintiff was absolute owner of the property; it is enough that it had a right of property and of possession to secure the payment of the particular draft; and the right of the former owner, Parks, in the specific prop- erty, had become divested, leaving him only a right in the surplus money which might remain after a sale of the flour and a payment of the draft from the proceeds. De Wolf v. Gardner, 12 Cush. (Mass.) 19, 24, 59 Am. Dec. 165." Following and approving First National Bank v. Dearborn; see National Bank v. Bayley (1874), 115 Mass. 228: New- comb v. Railroad Co. (1874), 115 Mass. 230; Alderman v. Railroad Co. (1874), 115 Mass. 233. See also Douglas v. People's Bank (1887), 86 Ky. 176, 9 Am. St. R. 276, 5 S. W. R. 420; Mer- chants' National Bank v.Bangs(1869), 102 Mass. 291; Hobart v. Littlefield (1882), 13 R. I. 341; Halsey v. Warden (1881), 25 Kan. 128; Wigton v. Bow- ley (1881), 130 Mass. 252; Robinson v. Pogue (1888), 86 Ala. 257, 5 S. R. 685; The St. Joze Indiano (1816), 1 Wheat, 208. [But in Hallgarten v. Oldham (1883), 135 Mass. 1, 46 Am. R. 433, the court question First National Bank v. Dearborn, supra, on the ground that, in principle, the transfer of the docu- ment can only be sufficient when the document originally was made " to order " or the like, or the issuer has subsequently consented to become the purchaser's bailee.] 665 § 790.] LAW OF SALE. [BOOK II. but it is not necessarity conclusive of the question. If the bill of lading shows that the consignment was made for the benefit of the consignor or his order, it is very strong proof of his in- tention to reserve the jus dlsponendi. And on the other hand, if the bill of lading shows that the shipment is made for the benefit of the consignee, it is almost decisive of the consignor's intention to part with the ownership of the property. If the bill of lading does not disclose the person for whose benefit the consignment is made, it is of less weight on the question of the shipper's intention. We have no doubt, however, that if the bill of lading shows a consignment by vendor to vendee, and no other circumstance appears as to the intention, it will be taken as prima facie evidence of an unconditional delivery to the vendee. " As between the consignor and consignee, the bill of lading cannot be regarded as a contract in writing, but merely as an admission or declaration on the part of the consignor as to his purpose, at the time, in making the shipment, and such admis- sion is subject to be rebutted by other circumstances connected with the transaction." * § 790. Transfer of bill of lading during transit.— Con- tinuing in the case referred to in the last section, 1 the court further says: "By the rules of commercial law, bills of lading are regarded as symbols of the property therein described, and the delivery of such bill by one having an interest in or a right to control the property is equivalent to a delivery of the prop- erty itself. A consignor who has reserved the^s dlsponendi may effectuate a sale or pledge of the property consigned, by delivery of the bill of sale to the purchaser or pledgee, as com- pletely as if the property were, in fact, delivered. If such transfer of the bill of lading be made after the property has passed into the actual possession of the consignee, the trans- feree of the bill takes it subject to any right or lien which the consignee may have acquired by reason of his possession. But 1 Emery's Sons v. Irving National Bank, 25 Ohio St. SCO, 18 Am. R. 299, stated in preceding note. CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§§ 791, 792. if the bill of lading be transferred by way of sale or pledge to a third person, before the property comes into the possession of the consignee, the consignee takes the property subject to any right which the transferee of the bill may have acquired by the symbolic delivery of the property to him. The principle on which the title to the goods maybe transferred by transfer of the bill of lading is wholly distinct from that on which the right of stoppage in transitu rests. The right to stop goods in transit exists only where the vendor has consigned them to the buyer under circumstances which vest the title in the buyer. The transfer of goods by delivering the bill of lading can be made only in cases where the vendor has not parted with the title." § 791, — . — . It is to be kept in mind that the case from which the foregoing language is quoted was one in which the bill of lading had not consigned the goods to the seller's order, but was a mere receipt naming the buyer as the consignee. Where the bill of lading is expressly taken to the seller's order, there can, of course, be no doubt about his power to transfer the title by assignment; but where the seller is simply named as con- signor and the buyer as the consignee, then the language of the foregoing section is applicable. In another case l of this latter sort the court said: "If a bill of lading in favor of the con- signee, although such consignee be the agent or factor of the consignor, may be transferred by the consignor by delivery for a valuable consideration, we can conceive of no reason, in the absence of statutory inhibition, why such bill in favor of a con- signee who is a purchaser, when retained by the consignor, may not be transferred in the same way. We can see no difference in principle. If extraneous evidence is admissible to show the real intent of the consignor as to the retention of the title of the goods covered by the bill in the one case, it must be in the other." § 790, . Where, therefore, the seller by either method has reserved the jus disponendi, he may, by assignment of the i Scharff v. Meyer (1895), 133 Mo. 428, 34 S. W. R. 858, 54 Am. St. R. 672. 667 § T02.] LAW OF SALE. [book ir. bill of lading, sell, assign or pledge his interest in the goods as fully as by a delivery of the goods themselves, and the pledgee or assignee for value will obtain a good title, even though such a transfer by the seller were in violation of his contract with the buyer. 1 Such dealings with the bill of lading — particularly in pledg- ing it as security for discounts or advancements upon bills of exchange drawn against the goods — are of daily occurrence, and the rights of the assignee or pledgee are constantly enforced.' 3 iPer Bramwell, L. J., in Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. Div. 164, citing AVait v. Baker, 2 Ex. 1; Gabarron v. Kreeft, L. R. 10 Ex. 274. - When the goods are delivered to the carrier, but the right of disposi- tion is retained in the seller by the bill of lading or receipt, then the de- livery of the bill or receipt, even with- out indorsement, for value transfers the property. Scharff v. Meyer (1895), 133 Mo. 428, 34 S. W. R. 858, 54 Am. St. R. 672. To same effect: Means v. Bank of Randall (1892), 146 U. S. 620; Dows v. National Exchange Bank 1 875 . 91 U. S. 618; Union Pac. R. Co. v. Johnson (1895). 45 Neb. 57. 63 X. W. R. 144; Bank of Rochester v. Jones (1851), 4 N Y. 497, 55 Am. Dec. 290: In re Non-Magnetic Watch Co. (1895), 89 Hun, 196; Mich. Cent. R. Co. v. Phillips (1871), 60 111- 190; Holmes v. German Bank (1878), 87 Pa. St. 525: Holmes v. Bailey (1879), 92 Pa. St. 57: First Nat. Bank v. Pettit (1872), 9 Heisk (56 Tenn.) 447; Forbes v. Rail- road Co. H882), 133 Mass. 154; Com- mercial Bank v. Pfeiffer (1888), 108 N. Y. 242. 15 N. E. R. 311; First Nat. Bank v. Kelley (1874), 57 N Y. 34; Richardson v. Nathan (1895), 167 Pa. St. 513, 31 Atl. R. 740; Ha haway v. Haynes (1878), 124 Mass. 311; Cayuga Nat, Bank v. Daniels (1872),- 47 N. Y. 631; Heiskell v. Bank (1879), 89 Pa. St. 155. In Mich. Cent. R. Co. v. Phillips (1871), 60 III. ISO {siqyra), a number of barrels of wine were shipped to one Ames and hauled to his store, with the evident understanding that pay- ment was to be a condition precedent to the vesting of the title. Upon ob- taining possession of the goods Ames shipped them on board a car of the Michigan Central Railroad, consigned to a party in New York, and drew a draft against them, which, with bill of lading attached, was discounted by a Chicago bank. The bill of lad- ing was not indorsed, and it was ob- jected that on this account no valid transfer of title took place, even as- suming that Ames was in a position to transfer title. The court held that Ames could transfer a good title, since he had been intrusted with the indicia of ownership by his vendor, and that the bank was a bona fide purchaser for value. Delivery of the bill was tantamount to delivery of the goods, and was as efficacious to vest title; and the fact of its being unindorsed would not. as in the case of a negotiable instrument, convey 66S CH. VI.] RESERVATION OF THE JUS DISPONEXDI. [§ T93. ,5 793. How when goods sent C. 0. D. — "Whether the seller, who has delivered goods to the carrier for transportation to the buyer, thereby transfers the title, if he send them C. O. D., is a question upon which, it has been seen, the authorities are only an equitable interest, but the legal title itself pass In Commercial Bank v. Pfeiffer 1888), 1 - N. Y. 242, 15 N. E. R. 311 {supra . the defendants, who were dealers in live-stock in Buffalo, agreed with the plaintiff, a banking corpo- ration of Iowa, to accept and pay the sight drafts of one Quick for cattle and hogs purchased by him, after notification of shipment and receipt of bills of lading. Under this arrange- ment a shipment was made and a sight draft for $5,63L*82 was drawn by Quick to the order of plaintiff's cashier and sent to defendants with bill of lading attached. Defendants obtained the live-stock without the production of the bill of lading, sold the same, and turned over the pro- ceeds of the sale. s5. - 249.1T. to the holder of the draft and bill of lading. The difference between the face of the draft and the amount paid on it, §380.35, the defendants claimed the right to retain on account of a de- mand held by them against Quick for a loss sustained on a previous shipment. But the court held that the plaintiff, who discounted the draft for Quick and took the bill of lading, had a special interest in the property to the amount of the draft, and the defendants had no right to receive and retain the property and dishonor the draft. The court said: "It is settled beyond dispute in this State that the discount of a draft drawn by a consignor upon his con- signee, which is accompanied by the delivery of a bill of lading to the party making the advance, passes to such party not only the legal title to such property, but, in the eye of the law, the transfer of the bill of lading is regarded as an actual delivery and an actual change of possession of the property." The same question, under practi- cally the same state of facts, was ^•red in Holmes v. German Bank 1878 M Pa. St 525 [supra), and the court held that the defend- ants could not retain the proceeds of a sale of the goods consigned, on ac- count of an old debt owed by the consignor to them; for the bank, which had discounted a draft drawn by the consignor against the goods and taken the bill of lading as se- curity, had thereby appropriated the proceeds of the sale to the satisfac- tion of its demand, and this was true whether the bill of lading was in- dorsed or not. In Forbes v. Railroad Co. 133 Mass. 15 a firm of grain dealers in Chicago, in response to an order, forwarded fifty carloads of corn to Boston, consigned by bill of lading to their own order at Boston. A draft upon the purchasers, to- gether with the bill of lading, was sent to a Boston bank, and upon pay- ment by the purchasers of the amount of the draft it was delivered, with the bill of lading, to them. Im- mediately thereafter the draft and bill of lading were indorsed over to the plaintiffs, as security for an ad- vance then made by the plaintiffs to the full amount of the draft. It 609 § 794.] LAW OF SALE. [BOOK II. much in conflict. 1 The practice of sending goods C. O. D. is one quite largely confined to those cases in which the carrier is an express company, though it is, of course, available in the case of other carriers. It is insisted in some cases, as has been already noticed, that the delivery to the carrier has the usual effect to pass the title, and that the result of the instructions to deliver only upon pay- ment, or to collect on delivery, is simply to make the carrier the agent of the seller to collect and return the price. 2 Ac- cording to this view, obviously, the sale is complete at the time and place of delivery, though the seller has a lien upon the o-oods for the price and an action against the carrier if he de- livers them without obtaining the price. 3 § 794, . In other cases it is urged that the shipment C. O. D. very clearly makes the carrier the agent of the seller, not only to collect the price, but to carry and deliver the goods. defendants, and indorsed and de- livered by Lyons to the bank, with the bill of lading for the four cars. The draft and bill of lading were presented to the defendants, but the draft was not accepted or paid. Three hours afterwards the defend- ants sold the cattle, but kept the pro- ceeds because they claimed that Lyons was indebted to them on an old account. The court held that the bank was entitled to recover the proceeds from the defendants. 1 See ante, § 740, notes. 2 See State v. Peters (1897), 91 Me. 31, 39 Atl. R. 342; State v. Intoxicat- ing Liquors (1882), 73 Me. 278; Com. v. Fleming (1889), 130 Pa. St. 138, 18 AtL R 622, 17 Am. St. R 763, 5 L. R. A. 470; Norfolk R Co. v. Barnes (1889), 104 N. C. 25; Pilgreen v. State (1882). 71 Ala. 368; State v. Carl (1884), 43 Ark. 353, 51 Am. R 565, more fully stated ante, § 740, note. 8 See Com. v. Fleming, supra. was held that, by the transfer of the draft and bill of lading by the orig- inal purchasers of the corn to the plaintiffs, the title and property in the corn passed to them. In Means v. Bank (1892), 146 U. S. 620 (supra), one Lyons, desiring to purchase cattle from one Patterson, the plaintiff bank paid the purchase- money for Lyons to Patterson, and Patterson delivered the cattle to the bank, and they were shipped by rail to the defendants, in six cars, to sell, accompanied by Patterson, Lyons and one Guthrie. A bill of lading for four of the cars was issued in the name of Lyons. A bill of lading was to be issued for the other two cars in the name of Guthrie, as a pass could be issued to only two persons on one bill of lading. Guthrie had no interest in the cattle. The cattle in the six cars were delivered to the defendants. A draft was drawn by Lyons against the shipment on the 670 CH. VI.] RESERVATION OF THE JUS DISPONENDI. [§§ 795, 796. " In such cases the possession of the express company is the possession of the seller, and generally the right of property remains in the seller until the payment of the price." 1 Accord- ing to this view, clearly, the sale takes place at the time and place of delivery to the buyer, and the seller retains the title and the right of disposal until that time. 2 § 795. How when goods were to be delivered F. 0. B.— Some attention has been given in a previous chapter 3 to the effect of contracts to deliver the goods " f. o. b." (free on board) at a designated place. As has there been seen, such an agree- ment means ordinarily, where the place specified is the place of shipment, that the seller will put the goods on board the ship or car for transportation without charge to the buyer for cartage or loading; and, where the place specified is the place of delivery, that the seller will also pay the freight to that point. § 796. . This language, however, especially in the Eng- lish cases, has often been thought to affect the question of the reservation of the jtis disponendi. Thus, where the agreement was to deliver the goods f. o. b. at the point of shipment, and the seller took a bill of lading to his own order, but imme- diately indorsed it and sent it to the buyer, it was held that the agreement to deliver free on board threw light upon the intention with which the bill of lading was so taken. 4 " The real question," said the court, "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 iSee State v. O'Neil (1885), 58 Vt. (1893), 115 Mo. 428, 22 S. W. R. 363, 37 140, 56 Am. R. 557 (see also O'Neil v. Am. St. R. 406, more fully stated Vermont, 144 U. S. 323, where this ante, § 740, note, case was considered at much length, 2 See also Wagner v. Hallack (1877), but the writ of error was dismissed 3 Colo. 176. for want of jurisdiction); United 3 See ante, §§ 733 and 741, notes. States v. Shriver (1885), 23 Fed. R. 134 * Browne v. Hare (1858), 4 Hurl. & (s. c. sub nom. People v. Shriver, 31 Nor. 822, per Erie, J. See also Stock Alb. L, Jour. 163); State v. Wingfield v. Inglis (1884), 12 Q. B. Div. 564 671 § 797.] LAW OF SALE. [BOOK II. control over them and continuing to be owner, contrary to the contract." "The contract was for the purchase of unascer- tained 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 property passed when the goods were placed ' free on board ' in performance of the contract." l § 797, , But in a later case where the bill of lading, in- stead of being sent to the buyer, was attached to a draft for the price and sent forward for collection, it was held by the court of appeal that the jus disponendi had been effectually retained notwithstanding the agreement to deliver free on board, which the court below had deemed strong evidence of a contrary intention. 2 Where, however, the language was "Prices f. o. b. Omaha," the majority of the court in Nebraska held that while this might ordinarily " afford a presumption that the delivery was to be made at Omaha and that title should there pass," there was other evidence in the case sufficient to overthrow it and justify the conclusion that the title passed on shipment. 3 3 i " As in the case of Wait v. Baker, 2 Ogg v. Shuter (1875), L. R. 10 C. P. 2 Exch. 1, and (as is explained in 159, 1 C. P. Div. 47. Turner v. Trustees of Liverpool 3 Neimeyer Lumber Co. v. Burling- Docks, 6 Exch. 543) Van Casteel v. ton, etc. R. Co. (1898), 54 Neb. 321, 74 Booker, 2 Exch. 691." N. W. R. 670, 40 L R. A. 534. 672 University of California Library Los Angeles This book is DUE on the last date stamped below. AA 000 742 641 4 liite:-»^