UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY ADAMS' ILLUSTRATIVE CASES ON THE LAW OF SALES Selected by Professors of Leading Law Schools St. Paul, Minn. WEST PUBLISHING CO. 1893 COPYRIOHT. 1893, WEST PUBr-ISHING COMPA>fY. PREFACE. Adams' Illustrative Cases on Sales is one of a series of "Selected Cases" issued by the publishers for the use, more especially, of law students. The name "Adams," given to this volume, is not the name of editor or compiler; but since every book, like every person, must have a name for identification, this title has been arbitrarily chosen for that purpose, and for advantages in cataloguing. The cases are not the selection of one person, but of leading law-school professors. They are published without headnotes, but a table of contents by subject and an index are given. The cases named by ditfereut instructors as most desirable for illus- trating any one branch of the law naturally differ, and, in order that this collection may be most useful to different classes, it has been made very comprehensive. As , a natural consequence, it will be found to contain more cases than will probably be required by any one school. But the cases not used by one school may be the very ones most wanted in another, and it is hoped that many teachers will thus find among the cases here given all that they would have selected. The matter has been so arranged typographically that each case begins at the top of a new page, and is fronted by a blank page or two, to be used for annotations in the class room. This makes a note book in conjunction with a volume of selected cases, and it is be- lieved that this feature will be found peculiarly valuable by the careful student. St. Paul, Minnesota. (iii)* 72H<iz:> TABLE OF CONTENTS. [the numbers refer to page.--.] THE CONTRACT, I. In General, o. What is a sale, 173, 187, 391, 395, 501, 509, 533, 535, 553, 739. 6. Who may make, 125, 159, 593, 677. c. Mutual assent, 185, 217, 2r,5, 263, 333, 391, 403, 445, 673, 731, 733. d. The price, 3, 503, 531, 539. e. Time and place of performance, 133, 147, 355, 487. II. Under the Statute of Frauds, a. What are goods, wares and merchandise, 23, 187, 337, 443, 641, 879. h. Goods of the value of fifty dollars, 3, 879. c. Acceptance and receipt, 3, 19, 59, 63, 87, 135, 313, 349, 387, 491, 609, 737, 807, 837. d. Earnest or part payment, 441, 467, 879. c. The memorandum, 65, 125, 126, 159,165,267,469,509,549,601, 685, 817, 893. III. Wlien Title Passes, 1. What CoNsxiTrTEs Transfer, 15, 25, 151, 175, 203, 309, 323, 445, 473, 527, 531, 541, 631, 657. 2. Delivery, a. Necessity of, 47, 73, 91, 197, 359. 6. What constitutes, 7, 47, 59, 63, 99, 181, 225, 233, 313, 317, 341, 349, 411, 419, 513, 573, 581, 781, 789, 799, 809, 813, 849. c. Sufficiency of, 77, 207, 407, 419, 453, 563, 587, 595, 867. d. By agent, 669, 777. e. To carrier or agent, 3, 43, 77, 387, 423, 463, 635, 669, 697, 767, 771. {. Weighing and measuring, m, 303, 42i, 527, 587, 689, 697,205^ 845, 825, 901. g. Effect onHfen, 7, 367, 523. IV. Inspection and Acceptance, a. Right to inspect, 245, 271, (S'.U. b. What constitutes acceptance, 3, 19, 61, 105. 135, 221, 233, 403, 427, 567, 675. c. Necessity of acceptance, 3, 403, 419, 567. d. Refusal to accept, 25, 47, 87, 161, 387, 487, 557, 691, 727, 837. LAW SALES. (V) vi TABLE OF CONTENTS. [The numbers refer to pases.] AVOIDANCE OF CONTRACT, I. By Seller, a. For fiaud, 27, 29, 33, 211, 233, 237, 249, 275, 299,391,631,6(15. 743. 6. For insolvency of buyer, 51, 449, 519, 767, 789, 793, 803. c. For failure to pay price, 293, 539, 619. d. For n)istake, 4:)3, 445, 673, 733, 915. II. By Buyer, o. For fraud, 515, 561. b. For failure to deliver, 595, 841. c. Fur mistake and defective quality, 1S5, 623, 839. WARRANTY, I. Express Warranty, <i. What constitutes, 83, 141, 371. /). As to quality of goods, 251, 333, 371, 849, 883. II. Implied Warranty, a. Of title, 283, 359, 605, 623, 701. b. Of fitness and quality, 77, 83, 111, 289, 345, 389, 483, 550, 651, 700, 709. 745, 911. c. Breach, 307, 785. REMEDIES, I. Of Seller against Buyer, a. Action for price, 25, 47, 121, 327, 349, 437, 487, 557, 587, 709, 727, 809, 813, 837, 867. b. Action for damages, 25, 47, 87, 327, 391, 437, 561, 691, 837, 903. II. Of Seller against Goods, o. Resale, 27, 73, 271, 539. 6. Lien, 7, 143, 221, 367, 523, 539, 613, 675, 827. c. Stoppage in transitu, 11, 43, 51, 411, 449,481,497,577,579,665, 767, 789, 793, 825. m. Of Seller against Third Persons, a. Trover and conversion, 289, 391, 453, 481, 617, 759, 763, 777, 799. b. Recovery of goods, 249, 407, 637. rV. Of Buyer before Obtaining Possession of Goods, a. Action for damages, 323, 403, oO:;, 879. b. Replevin of goods bought, 705. V. Of Buyer when Title to Goods has Passed, a. For breach of warranty, 37, 199, 251, 289, 293, 307, 363, 651, 785, 849, 883. 6. Action for damages, 283, 287, 323, 353, 403, 503, 605, 841. TABLE OF CONTEXTS. vii [The numbers refer to pages.] BONA FIDE PURCHASERS, I. Who are, 299, 497, 677, 743, 861. n. Rights of, 27, 29, 33, 43, 237, 275, 435,541,613,657,665,751,759,821, 871. CONDITIONAL. SALES, I. Title in Property, CI, l.JS, 175, 541, 545, 757, 823. II. Performance of Conditions, 37, 61, 71, 151, 169, 203, 293, 395. GIFTS, I. Inter Vivos, 55, 79, 379, 591, 627, 661, 747, 755, 831, 907. II. Donatio Causa Mortis, 117, 383, 415, B95, 855, 887. CASES REPORTED. Allanl V. Greasert (01 N. Y. 1) Arnold v. Delano (4 Cush. 33; Babcoek v. Bonnell (80 N. Y. 244) Bailey v. Hudson U. U. Co. (49 N. Y. 70) Baldev v. Parker (2 Barn. & C. 37) Baldwin v. WiMinnis (3 Mete. [Mass.] 3G5) Ballciiline v. Udiinson (40 Pa. St. 177)... Barker v. Dinsmore (72 Pa. St. 427) Barnard v. Campbell (.->;") N. Y. 4.-i6) Barnard v. Camuhell (58 N. Y. 73) Beaeli'.s Appeal (20 All. Rep. 475, .'jS Conn. 4(H) Becker v. HallKarten (86 N. Y. 167) Bement r. Smith (15 Wend. 493) Benedict v. Schaettle (12 Ohio St. 515). . . Bennett v. Cook (6 S. E. Rep. 28, 28 S. (\ :»3) Bentall v. Bum (3 Barn. & C. 423) Bianclii v. Nash (1 Mees. & W. .54.5) Bill V. Banient (9 Mees. & W. 3(>l Bird V. Mnnroe (OG Me. ."..".7) Bishop V. Shillifo (2 Barn. & Aid. 329 n. a) Hlii\:mi V. SainliTs (4 Barn. & C. 941)... Boollihy V. Plaisted (51 N. H. 430) I'.rnhrciok v. Hciston Five Cents Savinj;.* Bank (104 Mass. 228) Bradford t. Manlv (13 Ma.ss. 139) Bridsford v. Crocker (00 N. Y. 027) Brooks V. Powers (15 Mass. 244) Brown v. Northcutt (13 Pac. R<'p. 4.S.-., 14 Or. 529) Browne v. Hare (3 Hurl. & N. 484, 4 Hnrl. & N. 822) Bniwnfield v. Johnson (18 Atl. Rep. 543, 128 Pa. St. 2.54) Butlington v. (Jerrish (15 Mass. 151!)... Bnlwinkle v. Cramer (3 S. E. Rep. 770, 27 S. C. 370) Bunn T. Markham (7 Taunt. 224) Buller V. Butler (77 N. Y. 472) Butler T. Thomson (92 U. S. 412) C'amplioll Print ing-Press Co. v. Thnrp. CV; Fed. Rep. 414) Cardinell v. Bennett (.52 Cal. 470) Caulkins v. Hellman (47 N. Y. 44ti) Chandelor v. Lopus (2 Cro. Jae. 2) Chapman v. Murch (19 .Tohna. 291)| Clark V. Draper (19 N. H. 419) Clark V. I''ey (24 N. E. Rep. 703, 121 X. Y. 470) Clarkson v. Stevens (1 Sup. Ct. Rep. 200, 100 U. S. 50.5) Coddinpton v. Goddard (16 Grav. 4.30)... Coe V. Toufe'h (22 X. E. Rep. 5.50, 116 N. Y. 273) • Comer v. Cunningham (77 N. Y. 391).... Commercial Nat. Bank v. Oill.'tte (90 Ind. 208) (^ominonwealth v. Fleming (18 Atl. Rep. (;22, 130 Pa. St. 1 3S) Commonwealth v. Miller (IS Atl. Rep. 938, 131 Pa. St. 118) Conner v. Henderson (15 Mass. 319) . . t%)oke V. Millard (05 N. Y. 352) Pii' ■■ P«pe 3 Cusack V. Robinson (1 Best & S. 299) 221 7 Gushing v. Bree<l (14 Allen, 370) 225 Coon V. Spaulding (10 N. W. Rep. 183, 47 Mich. 102) Oiplay Iron Co. v. Pope (15 N. E. Rep. .335, 108 X. Y. 232) Crawcour, Kx iKirle (9 Ch. Div. 419) Crofoot V. Bennett (2 N. Y. 258) Cross V. Peters (1 Greenl. 370) Cunningham v. Ashbrook (20 Mo. 553)... \j\\V SAI.liS. ir>5 169 173 Davis V. Russell (52 Cal. Oil) Denny v. Williams (5 Allen, 1 ) Devoe v. Brandt (.53 N. Y. 402) Dexter v. Norton (47 X. Y. 02) Doano v. Dunham (79 III. 131) Donaldson v. Farwell (93 U. S. 631) Dorr V. Fisher (1 C\Lsh. 271) Dows V. National Exch. Bank of Milwau- kee (91 U. S. 018) Drake, Ex parte (5 Ch. Div. 800) Drury t. Young (58 Md. 546) Dustan v. McAndrew (44 N. Y. 72) 229 2.« 237 241 245 249 251 255 263 207 271 Easter v. Allen (8 Allen. 7) 275 Edgerton v. Hodge (41 Vt. (570) 279 Ki.hholz v. Bannister (17 C. B. [N. S.] 708 283 Ellis v. Andrews (50 N. Y. 8,3) 2S7 Ellis V. Hunt (3 Term. R. 464) 289 Empire State Type Founding Co. v. Grant (21 N. E. Rep. 49, 114 N. Y. 40) 293 Fairbank Canning Co. v. Metzger (23 N. E. Rep. 372, 118 N. Y. 200) 295 Farley v. Lincoln (51 N. H. 577) 299 Farmers' Phosphate Co. v. Gill (16 Atl. Rep. 214, 09 Md. 537) 303 Fielder v. Stnrkin (1 H. Bl. 17) 307 First Nat. Bank of Cairo v. Crocker (111 Mass. 163) .309 First Nat. Bank of Green Bay v. Dear- born (115 Ma.ss. 219) 313 First X.Mt. Bank of Toledo v. Shaw (01 N. Y. 283) 317 Foot V. Marsh (51 N. Y. 288) 323 327 333 337 341 345 349 353 Ganson v. Madigan (15 Wis. 144) Gardner v. Lane (9 Allen, 492) Giles V. Simonds (15 Grav. 441) Gill V. Benjamin (25 N. W. Rep. 445, 64 Wis. 302) Giroux V. Stedman, three cases (14 N. E. Rep. 538, 145 Mass. 439) Goddard v. Binnev (115 Mass. 4.50) Gompertz v. Bartlett (2 El. & Bl. 849)... Goodman v. Nordnutt (13 Pac. Rep. 485, 14 Or. .529) 93 Goodwin v. Holbrook (4 Wend. 377) 355 Gould v. Bourgeois (18 Atl. Rep. 64, 51 N. .T. Law. 301) 359 Gould V. Stein (22 N. E. Rep. 47, 149 Mass. 570) 363 Gregory v. Morris (96 U. S. 619) 367 Grieb v. Cole (27 N. W. Rep. 579, 60 M ieh. ."«)-) 371 Groat V. Gile (51 N. Y'. 431) 375 Grover v. Grover (24 Pick. 2('il) .379 Grymes v. Hone (49 N. Y. 17) 383 Hague V. Porter (3 Hill. 141) 387 Hanson v. Busse (45 111. 49()) .3,89 Hardman v. Booth (1 Hurl. & C. 803) 391 Ilarkness v. Russell & Co. (7 Sup. Ct. Hop. 51, lis II. S. 6(!.3) 395 Hastie v. Couturier (9 Exch. 102) 403 Hatch V. Bayley (12 Cush. 27) 407 Hawes v. Watson (2 Barn. & C. 540) 411 Henschel v. Maurer (34 N. W. Rep. 926. 69 Wis. 576) 415 Higgins V. Delaware, L. & W. R. Co. (60 N. Y. 553) 419 Higgins V. Murray (73 N. Y. 2,"i2) 42." CASES EEPOKTEL). Hillestad t. Hostetter (49 N. W. Rep. 192, 4ti Minn. 393) 425 Ilinohman v. I^incoln (8 Sup. Ct. Rep. 309, 124 U. S. 3S) 427 Uoiton V. Biillinton (105 Mass. 399) 435 Hosmer v. Wilson (7 Mich. 294) 437 Howe V. II:iv\vard (108 Mass. .'54) 441 IIi.nil)lp V. .Mitclidl (11 Adol. & E. 20.5). . . 443 Hiillmiaclier v. Harris's Adm'rs (38 I'a. St. 491) 445 Ilsle.v V. Stnbbs (9 Mass. 6.5) 449 lufralls V. Ilcrrick (108 Mass. 351) 4.53 Inslis V. Stock (10 App. Cas. 263) 457 Iron Cliff Co. v. Buhl (3 N. W. Rep. 269. 42 Mich. SO) 403 Jackson v. Tiipper (5 N. B. Rep. 65, 101 N. Y. 51.5) 467 .lames v. Patten (6 N. Y. 9) 469 .Tenner v. Smith (L. R. 4 C. P. 270) 473 .lohnston t. Trask (22 N. E. Rep. 377, 116 N. Y. 136) 477 .Tones v. Earl (37 Cal. 630) 481 .Tones v. Padffelt (24 Q. B. Div. (>.->0) 483 Jones V. U. S. (90 U. S. 24) 487 KimberLv v. Patchin (19 N. Y. 330) 491 Iviiiirman v. Denison (48 N. W. Rep. 26, 84 Mich. 60S) 497 Ivinney v. MoDermott (8 N. W. Rep. 656, 55 Iowa, (174) .501 Kountz V. Kirkpatrick (72 Pa. St. 376) . . 503 r^ee V. Griffin (1 Best & S. 272) 509 Lincoln v. (Gallagher (8 Atl. Rep. 883, 79 Me. ISO) ........ Litchfield v. Hutchinson (117 Mass. 195). . I^oeb V. I'eters (63 Ala. 243) liUpin V. Marie (6 Wend. 77) McConnell v. Hughes (29 Wis. 537) McCrory v. Hamilton (SS 111. App. 490). . . Macomber v. Parker (13 Pick. 175) Mallnry v. Willis (4 N. Y. 70) Marlindale v. Smith (1 Q. B. 389) Marvin Safe Co. v. Norton (7 Atl. Rep. 418, 48 N. J. Law, 410) . MeUlrura v. Snow (9 Pick. 441) Mews T. Carr (1 Hurl. & N. 484) Mitchell V. Cile (12 N. H. 390) Moody V. Brown (34 Me. 107) ."ir.T Moore v. McKinlay (5 Cal. 471) 7i7,'.> Morse v. Shaw (124 Mass. 59) 5(;i Morse v. Sherman (100 Mass. 430) 5^3 Morton v. Tibbett (15 Q. B. 428) . . 567 513 515 519 523 531 533 .527 535 539 .541 .545 549 553 National Bank v. Day(on (102 U. S. 59). . 573 Newhall t. Central Pac. R. Co. (51 Cal 345) 577 Newhall v. L/jingdon (39 Ohio St. 87) .581 Nicholson t. Taylor (31 Pa. St. 128) 585 Nigbtinpale v. Eisoman (24 N. E. Rep. 475, 121 N. Y. 288) .587 Noble T. Smith (2 Johns. 52) 591 Norrington t. Wright (6 Sup. Ct. Ren. 12, 115 U. S. 188) :...: 595 Oliver v. Hunting (44 Ch. Div. 205) 601 Ormrod v. Huth (14 Mees. & W. 051). .. 005 Page v. Morgan (15 Q. B. Div. 228) 009 Palmer v. Hand (13 Johns. 434) 013 Parker v. Patrick (5 Term R. 175) 617 Paul V. Reed (52 N. H. 130) 619 Pecord v. Stedman (14 N. E. Rep. 538, 145 Mass. 43! I) 345 Perley v. Balch (23 Pick. 283) '.'.'.'.'.'. 623 Peters v. Ft. Miulison Const. Co. (34 N W. Rep. 190, 72 Iowa, 405) 627 Peters Box & Lumber Co. v. Lesh (20 N E. Rep. 291, 119 Ind. 98) 631 Philadelphia & R. R. Co. v. Wireman (88 Pa. St. 2(J4) 63,-, Phillips V. Reitz (16 Kan. 396) .'. 037 Page Pitkin v. Noyes (48 N. H. 294) 641 Pope V. Allis (6 Sup. Ct. Rep. 69, 115 U. S. 363) 647 Randijll v. Newson (2 Q. B. Div. 102) 051 Robertson, In re (9 Ch. Div. 419) 203 Rodliff V. Dallingcr (4 N. E. Rep. 805, 141 Mass. 1) 657 Ross V. Draper (55 Vt. 404) 0()1 Rowley v. Bigelow (12 Pick. 307) 0(i.". Ruhl V. Corner (63 Md. 179) OOlt Rupley V. Daggett (74 111. 351) 073 Safford v. McDonondi (120 Mass. 200).. 675 Saltus V. Everett (20 Wend. 2(17) 677 SanlMjrn v. Flagler (9 Allen, 474) 685 Sanger v. Waterbury (22 N. E. Rep. 404, 110 N. Y. 371) 689 Sawyer v. Dean (21 N. E. Rep. 1012, 114 N. Y. 469) 691 Scott V. Eauman (104 Pa. St. 593) 695 Scott v. Wells (6 Watts & S. 357) 097 Scranton v. Clark (39 N. Y. 220) 701 Scudder v. Worster (11 Cush. 573) / 705 Seitz V. Brewers' Refrigerating Mach. Co. (12 Sup. Ct. Rep. 46, 141 U. S. 510) 709 Sewell V. Burdick (10 App. Cas. 74) 713 Shawhan v. Van Nest (25 Ohio St. 49(j). . 727 Sheldon v. Capron (3 R. I. 171) 731 Sherwood v. Walker (33 N. W. Rep. 919, 66 Mich. 508) 733 Shields v. Pettie (4 N. Y. 122) 739 Shufeldt V. Pease (10 Wis. 059) 743 Sinclair v. Hathaway (23 N. W. Rep. 459, 57 Mich. CO) 745 Smith V. Ferguson (90 Ind. 220) 747 Smith v. Lynes (5 N. Y. 41) 751 Smith V. Smith (2 Strange, 955) 755 Spooner y. Curamings (23 N. E. Rep. 839, 151 Mass. 313) 757 Spooner v. Holmes (102 Mass. 503) 759 Spraights v. Hawley (39 N. Y. 441) 703 Stanton v. Eager (10 Pick. 407) 767 State of Vermont v. Four Jugs of Intox- icating Liquor (2 Atl. Rep. 580, 58 Vt. 140) 771 State of Vermont v. O'Neil (2 Atl. Rep. 586, 58 Vt. 140) 771 State of Vermont v. Sixty-Eight Jugs of Intoxicating Liquor (2 Atl. Rep. 586, 58 Vt. 140) 771 Siollcnwerck v. Tliacher (115 Mass. 224).. 777 Straus V. Wessel (30 Ohio St. 211) 781 Stuart V. Wilkins (1 Doug. 18) 785 Stubbs V. Lund (7 Mass. 453) 7S9 Sturtevant v. Orser (24 N. Y. 538) 793 Swanwick v. Sothern (9 Adol. & E. 895). . 797 Swim V. Wilson (27 Pac. Rep. 33, 90 Cal. 126) 799 Talcott V. Henderson (31 Ohio St. 162) ... 803 Talver v. West (Holt. 178) 807 Tarling v. Baxter (0 Barn. & C. 360) 809 Terry v. Wheeler (25 N. Y. 520) 813 Thompson v. Gardiner (1 C. P. Div. 777). . 817 Thompson v. Wedge (7 N. W. Rep. 560, 50 Wis. 042) . 819 Towne v. Collins (14 Mass. 5(X)) 821 Tufts V. Griffin (12 S. E. Rep. 08, 107 N. C. 47) 823 Tufts V. Sylvester (9 Atl. Rep. 357, 79 Me. 213) 825 Tuthill V. Skidmore (20 N. E. Reo 348 124 N. Y. 148)..... ':...' 827 Twyne's Case (3 Coke, 80) 831 Unexcelled Fire-Works Co. v. Polites (18 Atl. Kep. 1058, 130 Pa. St. 530). ...... 837 Walker v. Davis (18 Atl. Rep. 190, 05 N. H. 1 (0) 839 Walter A. Wood Mowing & Reaping Mach. Co. V. Gaertner (30 N. W. Reo 100, 03 Mich. 520) '^' 841 Ward V. Shaw (7 Wend. 4<>4) '.'.'. 845 CASKS lllil'OinEU. Pace Ware, In re (5 Ch. Div. 866) 263 Watsou V. Uoodp (40 N. W. Rep. 491, 30 Nob. 264) &iO Wells T. Tucker (3 Bin. .366) 855 Wheelhouse v. Parr (6 N. E. Rep. 787, 141 Mass. 503) 8.59 Wheelwright v. Depcyster (1 Johns. 471) . . 861 Whitcomb v. Whitm-v (24 Mich. 486) 867 White V. Spettigue (13 Ue^s. & W. 603).. 871 Whitehouse v. Frost (12 East. 614) 875 Whitmarsh v. Walker (1 Mefc. [Mass.] 313) 879 Wieler v. Schilizzi (17 C. B. 019) 883 Wilcox V. Matteson (9 N. W. Rep. 814, 53 Wis. 23) &87 Williams v. Allen (10 Humph. 330) 891 Williams T. Bacon (2 Gray, 3.87) 893 Williams v. .Tackman (16 (Jray, 514) 897 Williams v. Merle (11 Wend. 80) 901 WindmuUer v. Pope (14 N. E. Kep. 436, 107 N. Y. 674) 903 Winfield v. Dodge (7 N. W. Rep. 900, 45 Mich. 3.-..->) 905 Wing V. Merchant (57 Me. 383) 907 Winsor v. Lombard (18 Pick. 57) 911 WofKl V. Boyuton (25 N. W. Rep. 42, 64 Wis. 205) 915 Wood V. Manley (11 Adol. & E. 34) 919 Wood Mowing & Reaping Mach. Co. v. Gacrtner (30 N. W. Kep. 106, 63 Mich. 520) Sil ILLUSTRATIVE CASES THE LAW OF SALES (1)^ ALLARD V. GllEASEIlT. 3 ALLAItn T. GKKASERT. (01 N. Y. 1.) Commission of Appeals of New York. Sept. Term, 1874. Action for got)ds sold and delivered. Defendant film orally OKrced with an af-ent of phiiiitiffs to lui.v by sample the roUowInK bill of liatH and capH: Of c'ase Xo. 'Ml, % doz. child's fyOKliorii sylviins, at $11 per rloz $ 5 r,o Of case No. 312, one doz. harvest hats, at 4 50 Of case No. 371, half doz. Pana- ma huts at 28 50 a doz. Of case Xo. 372, half doz. I'ana- ma hats at 36 00 a doz. Of case Xo. 326, one doz. palm leaf hats, at 2 50 a doz. Of c.'ise Xo. .'524, one doz. palm leaf hats, at 3 00 a doz. Of case Xo. 320, one doz. white (ileiiwood, at 15 00 a doz. Of case No. 159, one doz. black Al|)ine, at 24 00 a doz. Of case No. 309, one doz. Leg. harvest, at 3 25 a doz. Tlie SHU' pies were Kliown by the aKent, and tiiepricesof tlicdifferen t stylesnanied, and a nieinorandiim made by the agent of the nuniberof each kind [nirehased. No ineniorandnin was made in writing, and sinni'il l>y either party. When the goods were sent, by express, as ordered, defend- ants refused to receive them because the one dozen harvest were in someslight par- ticular different from the samples shown. Itcfendants moved for a nonsuit because ( 1 )■' that the agreement under which the plaintiffs seek to recover is within the statute of frauds, and void; (2) that the Older for the goods constitutes one entire contract, and the plaintiffs have failed to fulMll, on their part, to ilcliver the harvest hats of the descrijition ordered; that, b.v reason of said failui'e. the defendants had a right to refuse to receive any of tlie goods sent." The court nonsuited plain- tiffs on the last ground. Uanid Wood, for appellants. Bowen & I'itts, for respondents. EAUL, (y" The judge at the circuit re- garded this ns an entire contract of sale, and not severable; and if ho was right in this, he properly nonsuited the plaintiffs upon that ground. If it was an entire contract, within the meaning of the law, the plaintiffs could recover only by show- ing entire performance, by a full delivery of all the articles iiurchased. But it is not necessary, in this case, to determine wheth- er this was an entire or a severable con- tract, because the defendants also moved for a nonsuit upon the ground that the contract of sale was void uniler the stat- ute of frauds. .Vltliougli the judge did not place the nonsuit uiion this ground, it may he considered here. He nonsuited the plaintiffs, and even if he gave a wrong reason for it. and placed it upon the wrong ground, the nonsuit may be upheld upon any ground appearing in the case. Curtis v. Hubbard, 1 Hill, 3;jG; ijimar v. LAW SALES Canaday, 53 X. Y. 2'.)S; 13 Am. Rep. 523; Deland v. Richardson, 4 Den. 9.t. Even if this were a severable contract so far as relates to the performance of the same, within the meaning of the statute of frauds it is an entire contract. The reasons for holding it to be such are clear- ly set forth in Baldey v. Parker, 2 H. & C 41, and Story Sales. § 241. This, within the meaning of the statute of frauds, is a ctHitract for the sale of goods for the price of §.JOorniore,and as there was no noteor memorandum or ])ayment, the (juestion to be determined is. whether the goods were accepted and received by the buyers so as to satisfy the statute. By the terms of the contract, the goods were to be de- livered to the Merchants' Union Kxpross, to be carried to the defendants, and they were so delivered. It is well settled that when there is a valid contract of sale, a deliver.v to a carrier, according to the terms of the contract, vests the title to the property in the buver. It was decided in Hodgors v. Phillips, 40 X. Y. .")1!», that a delivery, according to the contract, to a general carrier, not designated or selected by the buyer, does not constitute such a delivery and acceptance as to answer the statute of frauds. But it has been held that when the goods have been accepted by the buyer, so as to answer that portion of the statute which requires acceptance, a delivery to a carrier selected by the buyer will answer that portion of the statute which requires the buyer to re- ceive. Cross V. O'Dounell, 44 X'. Y. G6I ; 4 Am. liep. 721. So far as I can discover, it has never yet been decided in any case that is entitled to respect as authoritj", that a mere carrier designated by the buyer can both accept and receive the goods so as to answer the statute. Benj. Sales, 124. The cases upon this subject are cited and commented ujjon, and the prin- ciples applicable to the ()ucstion are so fully set forth in the two recent cases above referred to that no further citation of authorities or extended discussions at this time is important. It will be found by an examination of the authorities, that in most of the cases where a delivery to a carrier has been held to satisfy the stat- ute of frauds, there had been a prior ac- ceptance of the goods by the buyer or his agent. A buyer may accept ond receive through an agent exi)ressly or Impliedly appointed for that purpose. There is every reason for holding tiiat n designated carrier may receive for the buyer, because he is expressly authorized to receive, and the act of receiving is a mere formal act reijuiring the exercise of no discretion. But tliere Is no reason for holding that the buyer in such case intended to clothe the carrier, of whose agents he may know nothing, with authority to accept the goods, so as to conclude him ns to their quality, and bind him to take them as a compliance with a contract ol which such agents can know nothing. This case fur- nishes as good an illiistrjition an any. The uoods were lioxcil: the carrier could know nothing aliout them: and itsagents had no right to unpack and handle them. Its sole duty and authority was to receive ALLARD V. GREASERT. nnil transport tliem. In such n case, it woulcllie unite absurd to hold that the currier had an inii)lied authority from the buyer to accept the goods for him. If the bu'ver does not accept in person, he must dr)"it through an authorized agent. Here it is not claimed that there was express authority conferred upon the carrier to accept, and the circumstances are not su:-h that such authority can be implied. Upon this last ground therefore the non- suit was proper, and the judgment must be affirmed, with costs. All concur. AUXOLD V. DELANO. ARNOLD v. DELANO. (4 Cu.sh. 3.3.) Supreme Judicial Court of M.issachusetts. Sept. Term, 1.840. This was an action of trover, brought by the plaiutiff ns the aHsiKiiee of Artliur Sowerby, an insolvent deljtor, and was Buliniittetl to tbe court of common pleas upon the followinir airreecl stutement of facts: On the 3()th of MQrcii,184S, Sowerby and j one (irunt. who were partners as silk ! manufacturers. In Northanipton, pur- chased of Delano, the defendant, sixty-live cords of wood, then i)iled with a much larmier quantity on Lelano's land. The wood sold was measured off at the time of th(! sale, but no otherwise separateiJ from the residue, than by means of a stake putdo wn to desiKuate the extent of sixty- llveconls. The contract i,\ as made with Sowerby, and a bill (jf the wood was given him by Deluno, as follows: " Messrs. Sowerby & tJrant. Bo't of C.\ Delano. 1S4S, March :!Otli. 6.') cords wood, ?'.)7.U(J, Received payment by note at G mos. at Northampton Bank. C. Delano." At the time of MiaUing the contract, there Wf.s no formal takin(< possession or delivery c)f the wood, except as above slated, but the purchasers were to remove the san)e before the Ist of April, 1849. On the I'Dth of .lune, 1S48. Sowerby np- plied personally for the benelit of the in- solvent la w, an<i a warrant was aceord- ininly issued to Ansel Wright, as mes- sentrer, on the sanie day. Possession was taken of the property at tlie silk works by the niesseuKer, on the ."Kith of .June, and a schedule of assets was furnished him by Sowerby on the same dui'. On the sched- ule was the followinti entry, in tiie hund- writin;: of the nieKsen;jer: "(!.") cords of woixi on V. Delano's lanil." Xo formal possession was taken of the wood liy the niesseuKer; nor was any entry made by him on the land where it was ]iiled, which was distant, in fact, two miles or more from the silk works. On the l.')th of .July, Sowerby furnished a schedule of credit- ors, on which ivas this entry: "(."ornelins Delano, Northampton. Note. Wood. No security. S'.IT " On the eveniuK of Saturday, the 1st of July, Delano, havinj; heard of the insol- vent proceedings, nave the messenger no- tice that the wood had not been paid for, and that he cluimecl to hold it, until the price should he paid. Delano also saw Sowerby the same eveninu, and reiiuested him to ;;ive up the bill and take the note. Sowerby took until the next .Monday morniuK for consideration, and beinii then apilii'd to, jinve up the bill to Delano, who thereupon canceled the note. The lii-st publication of notice of the insolvency did not take i)lacc until Monday after- noon. On the 17th of June, 1S48, Sowerby nn.l (Jraiit advertised a dissolution of part- nership, and save public notice that Sow- erby was duly authorized to settle all accounts of tlie late lirm. .\s a part of the terms of <liss()lution. Sowerby under- took to pay all the partnership debts, and Orant conveyed to him all his right and title in and to the [lartnership property but this conveyance was not known to Deluno. At the time of the dissolution, the partners, severally, as well as the partnership, were, in fact, deeply insol- vent. The plaintiff was appointed assignee ol Sowerby in October, ls48; the first meet- ing of creditors having been continued on account of certain legal objections; and the assignment was then first made by the commissioner. To the deu:aud made by the assignee on Delano for the wood, Delano answered that lie could have it whenever he paid for it; and Delano has always been will- ing to give up the wood upon poyinent of the price. Siibse(|ucnt to tlie Ist ol April, 1840, Delano sold a i.ortion of the wood measured off; but there has always re- mained in the same lot more than sixty- five cords of similar <|unlity, of which he has <jffered to give up that amount, upon payment ot the price agreeil upon. Upon the foregoing statement of facts, the court of common pleas gave judgment for the plaintiff, whereupon the defendant appeale.l to this court. The case was argued in writing, as fol- lows, on the points considered by the court. C. P. Huntington, for pin in tiff. C. Delano, for defendant. SHAW, C. J. This is an action of trover, to recover the value of sixty-five cords of wood, brought by the plaintiff, as the assignee of Arthur Sowerby, an in- so'vent del)tor. It is submitted to the court upon an agreed statement of facts, which being clearly stated, It is not nec- essary to recapitulate. On these facts, the plaintiff contends, that there was a complete sale and pur- chase of the wood, by which the property became ve.steil in Sowerby and (Jruut; that by the dissolution of partnership be- tween tlieni in June, 1S4S, and the transfer by Grant to Sonerby of &I1 his right, title and interest in the partnership property, .Sowei'by sti[)ulating to pay all the part- nership debts, this property l>ecame vested in Sowerby: and that by his subseijuent insolvency, the procredini;s under it, and tlie assignment to the plaintiff, the same title to the property became vested in him. On the other hand, thedefendnnt insists, th.'it thc)ugh the wood was sold and meas- ured off, with a license to the purchasers to come on to his land, an<l take it away as they wanted it, at any time within one year; and though a credit of six months was given for the purchase money, and a note was given to the plaintiff payable at the Nortliaiii|iton ISank In six months; yet as the wood remained as It originally lay on his premises, it was in his actual possession; and, as the ]inrchasers be- came insolvent, and legal proceedings in insolvency were instituted against thera, before the price of the wood had been paiti, he had a right to detain the wood until payment or its etiiiivalent. The cause has been extremely well ar- ARNOLD V. DELANO. Riie<l on both sides, unrl many nuthoiitics linve liHcii cited. Bvit without tjoiiiK oviT tlie wliclu )j;r()miil. it in proposed to state only wh'it we uiidei-Htund to l)e the rules of liiw l>euriIl^' upon the snl).icct, and to apply them to the facts of the case as they appear in the a^ieed statement. ■J'here is niunifestly amarkeil distinction lietween those arts, which, as hetween the vendor anrl vendee upon a contract of siili'.jio to make a constructive delivery and to vest the property in the vendee, anil that actual delivery by the vendor to the vendee, which puts an enii to the rijilit of the vendor to liold the KO<'Js as secu- rity for the price. \Vhen Koods are sold, and there is no Ktipnlatioii for creilit or time allowed for payment, the venilor hiiR liy the common law a lien for the price; in other vi-ords, he is not bound actually t(( part with the possession of the goodH, witiiout beinR paid for them. The term "lieu" Imports, that l)y the contract of sale, and a form- al, symbolical or constructive delivery, the proi)erty has vested in the vendee; l)e- causo nu man can have a lien on his own floods. The very ilehnition of a lien is, a rittht to hold uoods, the property of an- other, in security for some debt, duty or other (ddifiMtioii. If the holder is the owner, the rifjht to retain is a rinht inci- dent to the riftlit of property ; if he have had a lien, it is merged in the general prop- erty. A lieu for the price is incident to the con- tract of sale, when there is no stipulation tlierein to the contrary; because a man is not reuuired to part with his jioods, un- til he is jiaid for them. But conventio legeni vincit ; and when a credit is niveu by agreement, the vendee lias a right to the custody and actual possession, on a promise to pay at a future time, lie may then take the goods away, and into his own actual possession; and if he does so, the lien of tlie vendor is gone, it lieing a right incident to the possession. I'.ut the law, in holding that a vendor, who has thus given credit for goods, waives his lien for the piice, does so on one implied condition, which is, that the veujlee shall, Jieep his credit gootT ~Tt, therefore, before pay ment, the vendee be- come l)ankru|)t or insolvent, and the ven- dor still I'l tains the custody of the gcjods, or any part of them ; or if the goods are in the hands of a carrier, or middle-man, on their way to the vendee, and have not .vet got into his actual possession, and the vendor, before tliey do so, can regain his oclual /x.ssession, by a stoppage in tran- situ; tiien his lien is restored, and lie may hold the goods as security for the price. The princiide we take to be well settled, but the dilliculty which arises in practice, — one which has given rise to so many cases, — lies in iletermining what is such an actual chansre of (lossession from the vendor to the vendee, as shall be deemed to put an end to the vendor's lien. Some cases seem to he clear, and to illustrate the rule. If the goods are delivered to the vendee's oW!> servant, agent, wagoner, or shipmaster, that is in law a delivery to tlie \endee himself. So if poods are Htored in u commou warehouse, as the dock warehouses at the London docks, and entered in the liooks as the proi)erty of A. B., and deliverable to him, and a dock warrant issued, and afterwards, upon the pi-oper order of A. B. on the warrant, the whole or a i)art are transferred to (?. P., and entered in like manner in his name, this is an actual change of custody, con- trol and possession, though the goods are not moved from their position. So, if the seller sustain different characters, as if a person, who is a livery stable keeper, having a horse to sell, makes u sale to C. D., and then transfers the horse to his livery stable, to be kept for C. D. at a stipulated weekly hire, this may be regarded as an actual change of custody and possession. But by far the most common case which ticcurs, is where goods are ordered by let- ter, on credit, to be sent from one country to another, or from one part of the same country to another, and are accordingly forwarded by a common carrier. There, as the carrier is not the servant of the vendee, the goods, though they have left the actual possession of the vendor, if they have not reached the actual custody of the veudee, or the ultimate i)lace of tles- tiuation ordered by him, may be stopped in transitu by the vendor; and if he can thus stop them, he regains !iis lien. Now to apply these rules to the present case: it appears to us very clear, that tliore was a good sale and delivery of the wood to Grant and .Sowerby. The wood was measured and marked off, so that the very sticks composing the sixty-live cords would be iilentified. And thereasou, why marking, measuring, weighing, &c., is necessai'y. is, that the particular goods may be identified. If ten barrels of oil are sold, lying in a tank of thirty barrels, the buyer can identify no part of it as his, un- til itis measured. So, if fifty bales of cot- ton are sold out of one hundred, no par- ticular bales are identified until separa- tion. But, if they are capable of being identihed, and Ity the contract of sale are identified, that is surticient, and the prop- erty passes ; as, if in the last case, there are one hundred bales of cotton, num- bered from one to one hundred, and the contract is for the fifty odd nunibers, or the hfty even nunibers, or any other speci- fied fifty nnraliers, the bales sold are iden- tified though notseparated. Inthepreseut case, the wood was marked off and iden- tified, aud the vendees had a license for o!ie year to roiue on to the vendor's land and to take it away This was a com- plete sale and a constructive delivrry, so as to vest the property inOrant and Sow- erby ; and, <>n their dissolution and trans- fer, it vested in Sowerby, and by the as- signnicnt in his assignee. Then, the (jucs- tion is, w 1, ether the defendant had, under tlie circumstances, a lien for the price, and we think he had. The purchasers had a license to go on to the defendant's land, and take the wood; whether this license was revocable or not, it is not necessary to consider, as it was not in fact revoked. But the vendees did not enter and take the wood ; it remained ou the vendor's land, and in his possession, in the same manner as before and at the AUXOLI) V. DELANO. time of tlip sale. The vcikJov octeil in no new capacity; lie was to receive notliinu for kee|)inK ; lie was precisely in the condi- tion of a vendor, who l)ad not parted will) the possession and eiistoily of the i^oods sold. And this was the state c)f things, / when Sowerhy went into insolvency; 1 upon which event, \\e tliinlt, tlie vendor ( was remitted to liis ri^ht to keep iiosses Sinn of the wood as security for tlie price. Such a vendor in jiossession is rega riled a.s haviii;c n hiKlier equity to retain foi-ihe |)rice, than the assignee of a debtor, who lias not paiil for the property, has to claim it for the Kt'lieral creditors. Sometinres a (inestion may arise as to what constitutes an Insolvency, and whetlier a nierestoppa^e of payment, and failure, in the popular sense, is sulli'.ient. In this case, there is no donlit, hecansp there was an insolvi'iicy declared l)y law, and a seciuc'stration of all the vendee's property, under which this wood is claimed liy the plaintiff. If it might be supposed, that tlie s'vinR of a noie in this case was a payment, which would vary the case from that of a siiiiph! promise to pay for the wood, we think the answer i.s, that a promissor.v note, even if in form ncKotiahle, whilst it remains in the hands of tlie vendor an<l not negotiated, but reaily to be delivered up on the discharge of the lien, is re- garded as the evidence in writing of a promise to pay for the goods purchased, and does not vary the rights of the par- ties. Thurston V. IJIanchard, 22 Pick. 18. Tlie fact, that after the proceedings Id insolvency commenced, and becaine kncjwn to the defendant, he applied to Sowerby and got up the bill of sale, cannot of it- self, we think, avail the defendant. The insolvent could not, in that state, vacate the sale, or reconvey tho property ; and if the wood was worth more tlian the lien ot the defendant upon it, we think that the assignee, fin paying the defendant the price, was entitle<l to the wood for the benefit ot the general creditors; and this was a right which the insolvent could not defeat. A fact was stated, on the port of the plaintiff, as of some weight, namely, that after the expiraticni of one year from the sale, the defemlant sold a part of the wood. Whether, at that fine, he had an absolute right to sell the wo<id or not, it seems t(j us, that such sale can have no effect on this claim. The plaintiff, if he can recover at all, must recover on the strength of his own title. He must prove a conversion. 'I'he action of trover ad- mi's that the defendant obtained the [los- session rightfully; then, if he hml a lien and a right to liold until the |)riee was paid, his refusal to deliver the wood on (leinand to tlie plain tiff, (such demand not being accompanied with a tender of the price,) was no evidence of conversion; and. until -luch tender made, the plaintiff has no ground of couiplaint. .luUgment for the defendant. BABCOCK V. BONNELL. 11 BABfOCK V. BONNELL. (80 N. Y. 244.) Court of Appeals of New York. Jan. Term. 1880. Action by the.'KlininiHtratrix of Bnbcock agtiiiiHt Bounell for an accountinfj for the proceuilHof a policy of inHurance taken out on the life of liabcoek, and delivered to defendant as collateral necurity for two proiniHsory notcH of Babcock & Co. for .f4,fl7S.4S. Bonnell afterwards received from one VVlieelriRht .fUl'.j in full satiHfac- tion of the notes which were delivered to Babcock & Co. and destroyed. Wrn. W. Niles, for appellant. Julien T. Davis, for respondent. (;IIL'RCH, C. J. The findinR of the trial jud^e that the poIic.v was taken out and delivered to the defendant as collateral security for tlie paynient of the indebted- ness of Babcock & Co. to him was war- ranted by the evidence. No other conclu- sion could be arrived at, and the evidence is substantially uudi8|)uted. Some years afterward Mr. Babcock ex- pressed a desirenot to bere;;ar(le(l as hav- ing an interest, and stated that the entire interest was in thedefendant ; but I do not think that this e\pres.«ion, under the cir- cumstances, would have the effect of a re- lease, orcreate an estoppel. 'I'here is no dis- pute tliatat the time the policy was taken out, there was an itKlebtedness in favor of the defendant af^ainst Babcock & Co., evi- denced by two notes, aniountinja: to .f4,(i7S.4S. The policy was issued in Feb- ruary, ISTO, and it is claimed and found that in Ajiril, IMO, these notes were com- promised and settled, and that the defend- ant received fioni one Wheelrif^ht, on behalf of Babcock & Co., .f92.') in money, in full satisfaction and <lischar^;eof said indebted- ness, and delivered and surrendered said notes to him, and that they were after- ward delivered up to I'.ahcock it Co., who destroyed and canceled them. WheelriRht testified that he inirchased the notes of the defendant, and i)aid his own nione.v, and delivered them to Babcock & Co. up- on beiuf? repaid that amount and his ex- penses. In eitlier view we think the debt was dischariied. It was nn executed ac- cord. Nothing remained executory, and it operated as a full satisfaction. A mere pronii.se to accept less than the full amount of a debt althonjih 1 he sum prom- ised has lieen paid has been held not sutli- cient; hut when the security has been sur- ren<lered, or some act done of a like na- ture, there is nt) reason in law or morals, why the party should not be bound. Kronier v. Heiin, 7.5 N. Y. nH; 31 Am. Kep. 4yi. It may be that the defendant Intended to hold the policy of insurance to indem- nify him for the deficiency, but there was no aureement to that effect, and the de- fendant's letters indicate that he had re- Harded ihe det)t fully released and can- celed. The defendant claims also to hold the policy as security for the balance of an additional indebtedness of :fl,'_'J(i.-14 and interest, after applying the proceeds of a cargo of coal, the finding In respect to which is here inserted. "F«>urth. On the 15tli day of November, IKG!), thedefend- ant sold a carRO of coal to said Charles A. Babcock & Co., and took a note in payment therefor of $l,:;i!l!.44, due March 1.'), 1S70; the said last-mentioned cargo of coal wasshiiiped to said Charles A. Bab- cock & Co. by the schooner llepzibah, on or about the 21st day of February, 1S70, thedefendant through his agent, Hdward (lUllager, stopped the said last-mentioned cargo of coal in transitu, took possession thereof and disallirmed the contract of sale therefor, and on the 4th day of May, 1S70, sold the said last-mentioned cargo of coal to one E. S. Farrar. " If tl)is finding can be sustained as a finding of fact, it disposes of any claim for the debt. If the disaffirmance of the contract of sale of the coal dejjends as matter of law ninin the stoppage of the coal in transitu, then a moredilDcult and doubtful i)uestion is pre- sented. lOvery Intendment isin favorof the findings of facts, and findings may be im- plied if warranted by the evidence to bus- tain a judgment. The evidence as to the stoppage of the coal, as to the possession of the defendant, and the sale thereof by him does not present the facts as clearly as would be desirable upon tliis (juestlon. If the defendant took possession of the coal in the exercise of the right of stop- page in transitu, and sold the same with- out notice to Babcock & Co., and without their consent, and especially before the <lebt was due, an inference of an intention to disafhrm the contract of sale might be ilrawn, because upon the theory that this right is to enforce a lien, as claimed by the defendant, he must hold the pro|)erty un- til the expiration of the credit, and be able to deliver it upon paynient of the price, and the venilee has the right to pay the price and take the property. According to that theory thecredit is not abrogated, nor the sale, but the vendor is permitted to re-take the possession of the property, and hold it as security until the price is I)aid. If not jiaid at the time stiimlated the ven<lor, in aiuilogy to other cases of lien, may sell the property upon giving notice. The general rule upon the theory of a lien must be that the vendor having ex- ercised the right of stoni)age in transitu, is restored to his position l)efore he parted with the i)088ession of the property. The jiroperty is vested in the vendee, and the vendorholds possession as security for the payment of the purchase-price. If there- fore the defendant sold the coal without notice or consent, or if with consent of the vendees with the understanding that the sale was to be deemed rescinded Ihelind- ing would l)e justilied, and the defendant would have no claim upon this note. The coal was sohl to one Farrar. and a bill of sale thereof made by the defeudjint, and he received the purchase-money. The coal was sold and the bill of sale and pay- ment were not made until .\pril, after the note beiami" due. and there is some con- llict in Ihe evidence whether it was made with the knowledge or consent of Bab- cock & Co.. or not. As to the legal queslion, although the 12 BABCOCK V. BONNELL. right of Btoppnce in tratiKitii Ims bocn roc- omiizpd in Hiislaiid for ni-arly two liiin- tlreil years, tiiore is great confusion in tlie lmol<H as to tiie origin of tlie rijilit, and tlie prinoipioH upon wiiicli it is founded. As late as 1S41 Lord .Abiiider said, that "although tlie tiuestion of stoppage in transitu liatl lieeii as fn><iiiently raised as any other merrantiie (jiicstion witliin tlie Inst bunflred years.it tnust he owned that tlie principle on which it depends has never lieen either settled or stated in a satisfac- tory manner. " incourt.sof equity it has been a received opinion tliat it was founded on some priiicipli'(,f common law. Incourtsof law it is just as much the practice to call it a principle of e(|uity which the common law has adopted. " Mr. Parsons, in his work on Admiralty, Hnyt. there are Ihiee ways, in either of which it miKht he supposed that the law of stoppage entered into the law of Eng- land. One that it is based upon the civil law by which, in case of a sale, the prop- erty does not pass to the buyer until he has possession of the floods. It would follow that the seller would continue the owner until they reach the Imyer, and that by the insolvency of the latter the goods would remain the projierty of the loriiier. E.v the common la w a sale does of itself pass the property to the buyer, without delivery. Another way is by im- plying; a right of resciudiii};- the contract «if sale in case of insolvency, and that the act of stoppage was an exercise of that right, and a third way is by implying con- structive possession in the seller for the purpose of a lien, to be enforc("d b.v the act of stoppage, or, in other words, that this right is an enlargement of the common- law right of lien. I'ars. Adm. ■179. The rule seems not to h,Tve been settled in 1S42. Parke, H.. said : " What theeffect of stoppage in triuisitu is, whether en- tirely to rescind the contract, or <mly to rei)lnco the vendor in the same position as if lie had not parted with the possession, and entitle him to hold the gr)ods until the price be paid down, is a point not yet fully deci<ied, and there are ditficulties at- tending each construction." Mr. Bell, in his ('oinmentaries on the Law of .Scotland, favors the doctrine of rescission. He says: "Although there are many ditticulties either way. it ap- pears, on the whole, most consistent with the great lines of this doctrine of stoppage in transitu, that the seller's security over the goods sold, though peHiaps in a large sense of the nature of a lien, is given by equit.v originally on the condition that the stiler shall take back the goods, as if the contract were ab initio recalled." There are some other authorities favor- ing the same view, and there are others that favor the theory of a lien. F'eise v. Wray, ;i East. 'J3: Ex Parte Gwynne, 12 Ves. Jr. 379; Lick barrow v. Mason, 6 East, 21, note. Mr. Parsons says that the earlier Eng- lish cases sustain the doctrine of a lien, and intimates that later authorities changed the ground to that of rescission, but that the latest returned to the orig- inal doctrine. Pars. Ad.'B.4SL Whatever uncertainty there may be as to the rule in England, the decisions in this country are quite preponderating in favor of tlie theory of a lien. Rowley v. Bigelow, 12 Pick. 307; 23 Am. Dec. 007; Stanton v. Eager, ]() Pick. 4()7-475; Arnold v. Delano, 4 Cush. 33, 3!>; 50 Am. Dec. 7.')4: Newhall V.Vargas, 13 Me. 93; 29 Am. Dec. tf*!); S. C, 15 Me. 314; 33 Am. Dec. C17, and cases cited; Rogers v. Thomas, 20 Conn. .")3; .Jordan v. James, 5 Ohio, SS-98; Harris v. Pratt, 17 N. Y. 203. The elementary writers favor the same view. 2 Kent Com. .541 ; Pars. Adm. 4S3; Pars. Cont. .598. The (juestion has never been, that I am aware, definitely decided in this state. As an original question the doctrine of rescission commends itself to my judgment as Ijeing more simple, and in most cases, more just to both parties than the notion that the act of stoppage is the exercise of a -right of lien, but in deference to the prevailing current of authority, I should hesitate in attempting to oppose it by an.v opinion of my own, and for that reason I do not deem it necessary to state the grounds which influence my judgment. It is found as a, Fact that the policy was delivered to the defendant as collateral securit.v for the payment of the first two notes referred to only, "and that the de- fendants never acquired or had any inter- est in said policy or in the moneys to ac- crue or become paj'aVile thereon, except as a creditor of tlie said firm, and to the ex- tent of liis claim upon the aforesaid two notes against the said firm." The evi- dence justified this finding. The letter of the defendant of March 1, lS7fi. shows that he did not then suppose that he had any legal indebtedness against Babcock & Co. At the time the policy was issued the cargo of coal for vvhirrh the last note was given was in possession of thedefendant as he claimed, and had not tieen disjiosed of, so that the balance, even if Babcock & Co. were liablefor it, could not tlien beknown, and in March after, in a letter to the de- fendant, introducing Mr. Wheelright, Bab- cock & Co. say: "We will avail ourselves of theopportunity to have him arrange for the settlement of .your claim against us, leaving in abeyance thecargoof Hepzibah, and the note given in settlement of the same. " The testimony of the insurance agent is to the effect that tlie polic.v was lielivered to secure a fixed indebtedness, which could only refer to the tjrst two notes. We are of opinion therefore that the de- fendant has no lien upon this money to secuie the balance of the note given for that cargo of coal, even if Babcock & Co. are liable for it. It follows that the judgment must he atllrmed. All concur, except EARL, J., dissenting. BAILEY P. HUDSON lUVEll U. CO. 15 i5Aii.i;v V. iirnsox river r. cx). (49 N. Y. 70.) Court of Appciils-of New York. 1872. Action by Uiiilej- & Co. nguiiiBt defend- ant for tlie converHion of certain dry (jo'xIh (lelivonil to defendant and con- si;;iR'd to pJaiutiffH. Tlinron K. Stronf?. for appellant. .Samuel Hand, for rcHpondents. CHURCH, C. J. It l8 iindiHpiitpd that Allien, Fiink i*i WpKton delivered the j^oodH in (jneHtion to the dofeiidiint, to be trniis|i<)rted hy them to the plaintiffH; tliat they were consi«iicii to tiie plaintiffs, and the packanespropeily marked with the name of the plaintiffH' lirni, and lliedefend- aiit Rave a receipt for the same, aureeinf; to deliver the goodH nafely to the plain tiffs at the city of .New York. It is also iindis- imteii tha t the plaintiffs had ma<le a spe- eilie advanee upon a portion of the ^oods, anil the renininder were shipped in pnrsu- anee of an agreement Itetween the plain- tiffs and Allien, Krink & VVeston, to pay for uione.v borrowed l>y the Intter of the toriner a few days previouH, and that in- voices of all the goods, statinc Hie eon- si^rnnient and shipment hy thedefeiidant's railroad, had I'een forwarded to the plain- tiffs hy mail. This xvas suiistanlially the condition of things on the 17lh of t>(lolier, wlu-n one of the niemlicrs of the lirm (A Allien, Kriak & Weston, for his individual benefit, but in the name of his firm, chantreil the destination of the goods, and the defendant delivered them in pursuance of such changed destination to another person. The ijuestiun is. whether the title had vested in the plaintiffs, i think it had. It is clear that the consignors de- livered the goods to the carrier for the plaintiffs in comjiliance with their con- tract to do so. The parol contract %\ as thereby executed, and the title vested in the plaintiffs. The iilainliffs occupied the legal position of vendees after having paid the purchase-money and received the delivery of the goods. Hut it is unnec- essary, in order the uphold this judgment, to maintain that the plaintiffs occupied strictly the relation of vendees. The legal rights of a vendee attach when goods are shipped to a commission niercliant, who has made advances upon them in liursuanee of an agreement between the parties. Such an agreement may be either inferred from the circuii'stnnccs or shown bv express contract. Holbniok v. Wight, L'4 Wend. Kilt, a.") Am. Dec. (107 ; Haille v. Smith. 1 Bos. & Pnl. TM:\. In the latter rase. Kyre, .1., said : "From the moment (ho goods were set apart for this partic- ular purpose, why should we not hold the liropcrty in them to have changi'd. it be- ing in perfect conforinily to the agrrenient ond such an execution thereof as the jus- tice of tlie case reiiiijres." The same priii- cii)le lias been repea tcdiv adopted. (Jros- venor v. I'liillips, •_' Ilill,"l47. It must appear that the delivery was made with intent to transfer the prop- erty. I'ntil this is done the parol agree- ment is executory, the title remains in the consignor, and ho has the power to trans- fer the property to whomsoever ho pleases, and render himself liable for the non-performance of the contract. It is urged by the counsel for the defendant that no bill of lading was forwarded or ilelivered to the plaintiffs, and that until this was done the title remnined in the consignors. This is undoubtedly true in many ('ases: but it is mainly important in characterizing the act of the sliipiier, and showing with what purpose and intent the goods were delivered to the carrier. If A. has [iroperty. upon whirh he has re- ceived an advance from H. upon an agree- ment that he will ship it to li. to pa^ the advance or to pay any indebtedness, he may or may not comply with his con- tract. He may ship it to t'. or he may ship it to H. upon conditions. As owner he can disposi- of it as he pleases. Hut If he actually ships it to B. in pursuance of his contract, the title vests in P.. uiion the sliip'ment. The highest evidence that he has ilone so is Hie consignnieiu and un- conditional delivery to B. of the bill of lading. If the consignor procures an ad- vance upon the bill of lailing Iroin a thiril person, or delivers or indorses the bill of lading to a third person for a considera- tion, it furnishes eijually satisfact(jry evi- dence that the property was not delivereil to the consignee, for the simple reason that it was delivered to some one else. I'ut I apprehend that if a consignor who made such an agreement retained in his own possession H du|)licate of the bill of lading, and notified the consignee by let- ter that he had shipped the property for him in pursuance of the agreement, or in any other manner the in tent ion thus to ship it was evinced, the title would pass as effectually, as between them, as if ho had forwarded the bill of ladinir. The ques- tion whether a subsenuent indorsee of the liill of lading for a valuable consideration couhi ac(]uire any rights against the con- signee is not invfdved. .\s against the consignor the delivery of the property to the carrier, witli intent to comply with his contract, vests the title in tlie con- signee. It is largelv a question of inten- tion. Jn .Mitchel v, Ede, 11 Adol. & El. 9IK?, cited by the defendants. Lord Deninan said: "The intention of Mackenzie to transfer the propert,v to the plaintiff is umiuestionabie, and we think that under the circumstauces he has carried that in- tention into effect." .^nd in Bank of Kochoster v. Jones, 4 N. V.."i(ll, .">."> .Am. Dec. J'.Mi, this court said: "When The bill of lading has not been delivired to the consignee, un<l there is nootherevidence of !Ui intention on the part of the consignor to consign the specilic iiroiieity to him, no lien will attach." In that case the bill of lailiug was not only not sent to the con- signee, but was transferred to the plain- tiffs and money borrowed upon it, and there was no evidence of an intention to consign the tionr to the defendant except upon thecondition of paying the mone.vso borrowed. It slinuld be observed also that in that case there was no agreement to consign the property to the defeinlant as security, or in payment of the indebt- edness due hiiu from the consignor. Such 16 BAILKY V. IlUnSOX RIVER R. CO. an nKreeiiicnt, oitlior ox|)i-chh (ir iiii|ili?(], in iinportiiiit. iilthoiiicli not i-oiiclusive, in showitm tlio intent with which the m-t WHS iliiiif. in III is cttsc tliiMi- ^vns no ntlicr bill of lailiiifi tlmn the reci'i|)l i)r()- (Inceil ill ovickMu-e, nnd no duplicate \vnn taken; but the intention of Aldeii, KrinU & Weston to transfer this specilie property to the i)laiiitiff8, to Reapplied upon their indelitediu'SH, eontlusively appears liy the undisputed evidence. 1. I!y the agree- ment the day prior to the shipment, l!. Uy forwarding invoices of the shipment t<") the plaintiffs. :!. l$y inaUint;; the sliip- ent iiTiconditiotially. 4. I!y retaining the receipt given by the defendant, and neither making or Dtteinptini: to make any use of it. Thi'se nets were so nnequivopnl of an in- teiilidii to transfer the property to the [ilaiiililfs that there remains no room for doubt. 'I'he moment these acts were done, the title vested in the pl.-iintiffs, nnd the eoiisifinors were powerless to inter- fere with the property. The recent ease of Cayuga County Na- tional liiink v. Daniels, 47 N. Y. tV-'A. was decided against the cousignees upon the distinction above referred to. It was held in that case that the coiisignors did not deliver the property to the carrier with tlie intention to vest the title in the tle- fendants, except upon condition of pay- ing a draft discounted by the plaintiffs, and that the bill of lading was delivered upon that conrlition, and that on the de- fendants' refusal to comply with the con- <lition, tliey HC(|uired no right or title to the property, and that the case tiierefore caiiK! within tin; principle of Hank of Kochester v .lones, snpra. Here the in- tention to vest the title is clear and plain, it is tirged that the words "on our ac. count" in the invoices evinced an inten- tion not to vest the title in the plaintiffs. They can have no such effect in this case, even if, standing alone and nne.viiUiined, they might have. A bill of lading for which, as between the parties, the invoices were a substitute, can always be ex- plained by parol, it may be shown by parol to have been intended as evidence of an absolute sale, a trust, a mortgage, a pledge, a lien, or a mere agency. 2 Hill, 15i; 4 N. Y. 501, and cases cited." The ac- tual agreement and transaction will pre- vail, and it was proveil ny two of the members of the firm, an<l uncontradicted, that the goods were 4n fact shipped in pursuance of the agreement. liesides, these words are not ne(;cssai'ily inconsist- ent with the agreement. The goods were not purchased alisolntely liy the plaintiffs at a stiecified price, but were to l)e sold and the avails applied. The relation of the plaintiffs was more nearly that of trus- tee, having the title, and bonnd to dispose (»f the jtroiierty and apply the proceeds in a particular manner, and the consignors Vt'ere the cestuis que trust, having the legal right to enforce the terms of the agreement for their benefit. In this sense the property was sliippeil on thoir account, and the agreement is consistent with the meaning of those words. The statute of frauds has no npi)lication. 1. There was no sale. 2. If there was the consid- eration was paid. 3. The property was specified when the agreement was made as being that which had been anil was then being shipped, and the idainiiffs agreed to accept that particular i)rop- erly, and the subsequent delivery to the carrier agreed upon was in legal effect a deliverv to the plaintiffs. Cross v. O'Uonnell. 44 N. Y. 661, 4 Am. Rep. 721; .Stafford v. Webb, Lalor Snpp. 217. The defendant is liable for a conversion of the property. It had receipted the l)roi)erty and agreed to transport safely and deliver it to the plaintiffs. Instead of complying with its contract, it deliv- ered the property to another person by the direction of one who had no more legal authority over the property than a stranger, without the return even of its receipt. The plaintiffs haci vested rights which the defendant was bound to re- spect, and with a knowledge of which it was legally chargeable. Willetts v Sun .Mut, Ins. (;o., 4.5 N. T. 49; Hawkins v. Hoffman, 6 Hill, ,586; Holbrook v. Wight, 24 Wend. 169; Story Bailm. 414; Royce v. Brockway, 31 N. V. 490. Ii was its duty to deliver the property to the real owner. McEntee v. New Jersey Steamboat Co., 4.5 N. Y. 34. Judgment affirmed, with costs. All concur. Judgment aflBrmed. BALDEY 0. PARKER. 19 BALDEY et al. v. PARKER. (2 Bani. & C. .'{".) King's Bi'iicli. Juiip 5, 182.'!. AHSunipHit (or Roods huIiI ami delivered. Pleu, (leneral iwHiie. At the triHl Iji'fore Ahlxitt, «'. .).,at tlie LoikIoii sittiriKH uUer Trinity term, IS22, tlie t'ollowinK uppeiired to be tlie ffictH of tiie fiine: Tlic pliiintiffd are linen-draperH, aiKi tlie dclendant camo to tlieir hIi(i|> anil tiar^^ained for variouM articleM. A separate price waH agreed np- OM for eacli, and no one article was of tlie vniiK? of £10. Some were mcaRured in his prewence; Home lie tuarlied with a pencil; others he assiHtcd in cutting from a larger bulk. He then desired an account of the whole to be sent to his house, and went away. A bill of parcels was accorJinjily made out and sent by a shopman. The amount of the noods was £70. The de- fendant looked at the account, and asked what discount would bo allowed for ready money, and was told £."1 per cent.; he re- plied that it was too little, and reqiiosted to see the person 01 whom lie boii.ilit llio goods (Ualdcy), as he could bargain with him respectinn the discount, and said that he ouf^lit to be illowed £J0 percent. The Koo<ls were afterwards sent to the defend- ant's h<iuse, and he refused to accept tiiein. The lord chief justice tho'isht that this was a contract for jjoods of more than the value of tlO within the meaning of the ITtli section of tht'statutc of frauds, and not within any of the exceptions there mentioned, and directed a nonsuit; but gave the plaintiffs leave to move to enter « verdict in their favor for £70. A rule haviny; accordingly been obtained for that purpose, Scarlett and E. Lawes now shewed cause. Denman and Piatt, contra. ABBOTT, C. J. We have given our opinion upon more than one occasion that the 2i) Car. 2, c. ^, is a highly beneficial and remedial statute. We are therefore bound so tocoiistrueit as to furthertheob- ject and intention of the legislature, which was the prevention of fraud. It appeared from the facts of this case that the defend- ant went into the plaintiff's shop and bar- gained for various articles. Some were severed from a larger bulk, and some he marked in order to s.-itisfy liimself that the same were afterwards sent home to him. The first question is whether this was one entire contract for the sale of all the goods. By holding that it was not, we should entirely defeat the oliject of the statute. For then persons iuteiiding to buy many articles at one time, amounting in the whole to a largo price, might with- draw the case from the oiieration of the statute by making a separate bargain for each articlo. Looking at the whole trans- action, I am of opinion that the parties must be considere<l to have made one en- tire contract for the whole ol the articles. The plaintiffs therefore cannot maintain this action unless they can shew that the case is within the exception of the 29 Car. 2, c. 3, § 17. Now the words of that e.\cep- tloD are peculiar, "except the buyer sbull accept part of the goods so sold, and acto- ally receive the same. " It would be diffi- cult to find words more di-.tiiictly denot- ing an actual transfer of the article from the seller, and an actual taking possession of it liy the buyer. If we held that such a transfer and acceptance were complete in this case, it would seem to follow as a necessary conseciiience that the vendee might maintain trover without paying tor the goods, and leave the vendor to this action for the price. Such a doctrine would be highly injurious to trade, and it is satisfactory to find tlint the law war- rants us in saying that this transaction had no such effect. BAYLEY, .1. The buyer cannot be con- sidered to have actually received tlie goods, when they have retrained from first to last in the possession of the seller. The plaintiffs are not assisted by the ex- ception in the 17th section of the statute of frauds. Then the (luestion is, whether there was a separate contract for each article. The 2!) Car. 2, c. :i. was passed to guard against frau<Is and pcijuries; and it must be collected from the 17th section that the legislature thought that a con- tract to the extent of £10 might be surti- cient to induce the parlies to it to bring tainted evidence into court. Now it is conceded lieri' that on the same day, and indeed at the same meeting, the defendant contracted with the plaintiffs for the pur- chase of goods to u much greater amount than £10. Mad the entire value been set upon the whole gooils t(>gethcr, there can- not lie a doubt of its being a contract for a greater amount than £10 within the nth section ol tlie statute; and 1 think that the circumstance of tt separate price being fixed upon each article makes no such difference as will take the case out of the operation of that law. It has liecn askeil what interval of time must elapse betv(-en the purchase of different articles in order to make the contract separate; and the case has been put of a purchaser leaving a shop aftermakiiig one purchase, and returning after an interval of live or ten minutes and making nnotlier. if the return to the slio]) were soon enough to warrant a supposition that the whole was intended to be one transaction, I should hold it one entire contract within the meaning of the statute. I am there- fore of opinion that this rule must be ilis- charged. HOLItOYD, J. I am of the same opin- ion. The intention of the statute was that certain reciuisites sliouhl be observed in all contracts for the sale of goods for the price of £10 and upwards. This was all one transaction though composed of different parts. At first it appears to have been a contract for goods of less value than £10, but in the course of the dealing it grew to a contract torn much larger amount. .At last therefore it was one entire contract within the meaning and iiiiscliief of the statute of frauds, it being the Intention of that statute that where the contrac-t, either at the com- I menccment or at the conclusion, amount- ed to orexceeded the valueul £10, it aliould 20 BALDEY V. PARKEH. not bind unless the requisitas there men- tioned were complied with. The dnnRer of false testimony is quite as great where the bargain is ultimately of the value of £10, as if it had lieen originally of that amount. It must therefore be considered as one contract within the meaning of the act. With respect to the exception in the 17th section, it may perhaps have been the Intention of tlie legislature to guard against mistake where the parties mean honestly as well as against wilful fraud ; auJ the things required to be done wrill have the effect of answering both those ends. The words are, "except the buyer shall accept part of tno goods so sold and actually receive the same, or give some- Thing in earnest to bind the bargain or in |)art of payment, or that some note or memorandum in writing of the said bar- gain be made and signed by the parties to bo charged by such contract, or their agents thereunto lawfully authorized." Each of those particulars either shews the bargain to be complete, or still further that it has been actually in part per- formed. The change of possession does not in ordinary cases take placa until the completion of the bargain; part payment also shews the completion of it; and in like manner a note or memorandum in writing signed by the parties plainly proves that they understood the terms up- on which they were dealing, and meant finally to bind themselves by the contract therein stated. In the present case there is nothing to shew that some further ar- rangement might not ren)uin unsettled after the price for each article had been agreed upon. There was neither note nor memorandum in writing; no part of the price was paid, nor was there any such changeof possession asthnt contemplated by the statute. Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession; and there- fore as long as the seller preserves his con- trol over the goods so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute. BEST, J. It was formerly considered that a delivery of the goods by the seller %vas sufficient to take a case out of the 17 th section of the statute of frauds; but it is now clearly settled that there must be an acceptance by the buyer as well as a delivery by the seller. Tlie statute enacts that, where the bargain is for something to the value of £10, itshall not bind, unless something unequivocal has been done to shew that the contract iscomplete. Noth- ing of that kind having been done in this case, if the dealing is to beconsideredasone entire transaction it is clear that the plain- tiffs cannot recover: whatever tliis might have been at the beginning, it was clearly at the close one bargain for the whole of the articles. The account was all made out together, and the conversation about discount was with reference to the whole account. It is therefore very distinguish- able from Emmerson v. Ileelis, 1! Taunt. SS, where a complete bargain was made ns to each article as soon as theauctioneer had signed his name to it. Rule discharged. BALDWIN V. WILLIAMS. 23 BALDWIN v. WaLLIAMS. (3 Mete. 3G5.) Supreme Judicial Court of Massachusetts. Nov. Term, 1841. Thia case was tried before Wilde, J., who made the following report of it: — This was an action of asHunipsit, and the (It'claration set fortli an agreement of the plaintiff that he would barsain, sell, asHJKn, transfer, and set over to the de- fendant, and indorse without recourse to him, the plaintiff, in any event, two notes of hand by him held, sif^necl hy S. J. Gard- ner; one dated April 24th, ls35, for the I)ayment of $l,.'j(»0; the other dated May .'jth, is;i(!, for the ()iiymeiit of $r>W); and both payable to the pbiintiff or order on the :id of April, lM:Ji), with interest from llu'ir dates. The declaration set forth an agreement by the defendant, in considera- tion of the plaintiff's agreement aforesaid, and in [layment for said liardner's said notes, to pay the plaintiff $1,0()() in cash, and to dive the plaintiff a post note, made by the Lafayette liank.lor J?1,0U0, and also a note signed by ,(. li. Kussell & Co. and indorsed by D. \V. Williams for $1,0(10. The i)lainliff at the trial proved an oral aRreement with the defendant as set forth in the declaration, and nn offer by tiie l>laintiff to comply with his part of said agreement, and a tender of said Gardner's said notes, indorsed by tlie plaintiff with- out recourse to him in any event, and a demand uixin the defendant to fulfil his part of said agreement, and the refusal of the defendant to do HO. But the plaintiff introduced no evidence tending to show that any thing iiassed between the i)ar- ties at the time of making the said agree- ment, or was given in earnest to bind the bargain. The judge advised a nonsuit upon this evidence, because the contract was not In writing nor proved by any note or mem- orandum in writing signed by the defend- ant or his agent, and nothing was received by the purchaser, nor uiven in earnest to bind the bargain. .\ nonsuit was accord- ingly entereil, which is to stand if in the opinion of the wliole court the agreement Bet forth in thedeclaration falls within the statute of frauds (Rev. Sts.,c. 74, § 4); otherwise, the nonsuit to betaken off, and a new trial granted. Clarke, for plaintiff. S. D. Parker, for defendant. WILDK, .1. Thia action is founded on an oral contract, and the question is, whether it is a contract of sale within the statute of frauds. The plaintiff's counsel contends in the first place that the contract is not a con- tract for the sale of the notes mentioned in the declaration, but a mere agreement for the exchange of them ; and in the sec- ond place that if the agreement is to be considered as a contract of sale, yet it is not a contract within that statute. As to the first point, the defendant's counsel contends that an agreement toe.x- cliauge notes is a mutual contract of sale. But it is not neccBsary to decide this qaes- tion, for the agreement of the defendant, as alleged In the declaraticjn, was to pay for the plaintiff's two notes tti.OOO in cash, in addition to two other notes: and that this was a contract of sale is, we think, very clear. The other question is more <Ioubtful. But the better o[)inlon seems tr> us to be, that this is a contract within the true meaning of the statute of frauds. It is certainly within the tnischief thereby in- tended to be prevented ; and the words of the statute, "goods" and "merchandise," are sufficiently comprehensive to include promissory notes of hantl. The word "goods" is a word of large signification: and so is the word "merchandise." ■* Merx est quic(|uid vendi i)otcst." In Tis<lale v. Harris, 20 Pick. 9, it was decided that a contract for the- sale of shares in a manufacturing corporation is a contract for the sale of goods or mer- chandise within the statute; and the rea- sons on which that decision was founded seen) fully to authorize a similar decision as to promissory notes of hand. A differ- ent decision has recently been made in England in Humble v. Mitchell. 3 Perry & Davison, 141 ; s. c. 11 Adolph. & Ellis, 207. In that case it was decided that a con- tract for the sule of sh.-ires in a joint-stock banking company was not within the statute of frauds. But it seems to ns that the reasoning in the case of Tisdale v. Harris is very cogent and satisfactory; and it is supportetl by several other cases. In Mills v. Gore, 20 Pick. I'.S.it was decided that a bill in equity might be maintained to compel the redelivery of a deed and a promissory note of hand, on the provision in the Itev. Sts. c. SI, § s, which gives the court jurisdiction in all suits to compel the redelivery of any goods or chattels whatsoever, taken and detained from the owner thereof, and secreted or withheld, so that the same cannot be replevied. And the same point was decided in Clapp V. Shephard, 2.'! Pick. 22S. In a former statute (St. 1S2:J, c. 140), there was a simi- lar provision which extended expressly to "any goods or chattels, deed, bond, note, bill, specialty, writing, or other personal properti'." And the learned commission- ers, in a note on the Hev. Sts.c. si, § S.say that the words "'goods or chattels' are supposed to comprehend the several par- ticulars immediately following them in St. 1823, c. 140, as well as many others that are not mentioned. " The word "chattels" is not contained in the provision of the statute of frauds; but personal chattels are moval)le guods, and BO far as these words may relate to the question under consideration they seem to have the same meaning. But however this may be, we think the pres- ent case cannot be distinguished in |)rinci- |)le from Tisdale V. Harris; and upon the authority of that case, taking into consid- eration again the reasons and ()rinciple8 on which it was decided, we are of opinion that the contract in question Is within the statute of frauds, and consequently that the motion to set aside tlie nonsuit must be overruled. BALLENTINE v. KOBINSON. 25 BALLKNTINE et al. v. ROBINSON et al. (4C Pa. St. 177.) Supreme Court of Pennsylvania. Nov. 2, 1863. AasumpHit by William C. Roliintion and others, doing l)u.sineH» as KohinHon, Douj;- las & .Millurs, a^'iiiist Nutlianiel liulleiitinu and (Jeor^^e Hutcliliison, partners tra<lln(; us HutdiiiiMon & Ballentine. Jud^iiifut for [iluintiffH, and defendants bring error. Affirmed. Robb & MacConnell, for plaintiffs in er- ror. Humiltun & Acbeson, for defendants in error. STRONG, .1.— The parties entered Into a contract by which it was stipulated that the plaintiffs should furnish the ma- terials and construct for the defendants a steam-engine of a described pattern, for which the defendants engaged to pay the sum of $.j.'!5 on its comi'letioii. The engine having been linished pursuant to the contract, and notice of its com- pletion having been given to the defend- ants, they refused to pay the stipulated price. Hence this suit, In wliicli the only question raised is, what is the correct measure of damages for such a breach of contract. That the plaintiffs had done all they were bound to do, that they had the engine ready for actual delivery, on payment of the sum agreed to be paid by the defendants, and that the defendants were under obligation to take It away and make payment, are established facts. It is now contended that the measure of damages recoverable is the difference be- tween the price contracted to lie paid for the engine and the market price at the time the contract was broken. Where a sale of goods has been made and they have been delivereil, it is plain the measure of damages for nonpayment is tlie stipulated price. About that there is no dilBculty. Doubts, however, have been entertained, where goods have been sold and not delivered in consequence of the refusal of the buyer to complete the contract. It has somelimeM been said the standard for measurement is the excess of the contract price over the market value. Yet where the subject of the sale is a spe- cltio article, where the contract has been so fur completed as to pass the property in the article to the vendee, the possession being retained only because the price is not paid, there seems to be no good rea- son why the vendor should not be permit- ted to recover the agreed value, lie has fully complied with all that he was under obligation to do. He has parted with his property, and given the full e(iuivalent for the sti()ulated price. His right to the property having passed to the vendee, his right to the price would appear to be consummate. It is true, if the sale be for cash, the vendor may treat the goods as his own and sell them, on failure '>f the vendee to pay, in which case he can claim only the difference between the price lor which he has sold, and the price prom- ised to be paid by the first vendee. That difference completes his compensation. But the resale Is only a mode of giving effect to his lien. It is not a rescission of the contract, so as to revest the property ' in the article sold in him, for if it were, he could not sue for the deficiency. The law does not compel him to resume the owner- ship of the property, and, of course, it ought not to take away his right to the price. The present is not strictly the case of a sale. The plaintiffs agreed to build the engine according to directions of the de- fendants, and to furnish the necessary materials for it. When it was completed the defendants had notice, and were Ijound to take it awaj' and pay the con- tract price ; but instcarl of taking It and paying the price, they requested the plain- tiffs to sell it. In such a case the right of proi>erty was clearly in them on notice of the completion of tlie article. The ma- terials of whicli it was composed may fairly be said t<j have been delivered when they were put into the engine. The ile- fendantsalone were in default. They ought not to be permitted to rom|)Cl the plain- tiffs to purchase from them. Retaining a lien on the engine for the price, the plain- tiffs were at liberty to sell It anew, or, at their election, to obtain full compensa- tion from the defendants for their breach of contract. There can bo no just reason why they should be compelled to accept the engine as part payment, wliich tliey virtually must do If they can recover only the difference between its market value and the sum the defendants agreed to pay. And why should they, without any default of their own, be suljjected to the risk and trouble of a resale, tor the de- fendants' benefit? Besides, it may well be, that the article manufactured accord- ing to order may have no market value, and would be worthless on the manufac- turers' hands. This engine was not made tor sale in the market. It was built ac- cording to instructions given by the de- fendants, and, it may lie presumed, for their peciliar use. The just rule, there- fore, plainly Is, in such a case, where the manufacturer ut an article ordered, has completed it, and given notice of its com- pletion, that he should be allowed to sue for the value, and recover, as its measure, the contract price. .\nd such is the doc- trine laid down in the better decisions. Thus it was decided In Bement v. Smith, ],") Wendell, 49:1, where the cases are re- viewed, and the rule is thus stated in 2 Parsons on Contracts 483, und in Sedg- wick on Damages HSl. The instruction given In the court be- low was therefore richt. The judgment Is affirmed. BARKER V. DINSMORE. 27 BARKER et al. v. DINS.MOUE. (72 Pa. St. 427.) Supreme Court of Pennsylvania. May 17, 1S7-. Replevin by John Diiisnnire auainst Wil- liam Barker, Jr., and JeHne b. Kil^ore, trading as VVilliam Ranker & Co. for cer- tain HuckH of wool. Judument lor plain- tiff.and defendantH brinR error. Allliuied. A man, represent ins hiniHelf to be con- nected with defendant (irni, bouKht from plaintiff, at the liitter's farm, the wool in queHtion.and K'tve liira ameniorandum to that effect on a hiiMineHH card of defend- ants, tellinf; him to come to defendants' office in the city to procure bin pay. 'i'he wool was shipper) by |)Inintiff to defend- ants, but on its arrival in the city posses- sion of it was procured by the person who had arrani;i'd ttie sale, and who in fact had no connection with defendants, and by him sold to defenilants, they paying liini what they considered the wool was worth. Before THO.MI^SON, C. J., READ. AG- NEVV, SHARSVVOOU. and WILLIAMS, .IJ. A. M. Brown and T. .M. Marshall, for I'laiiitiffs in error. M. W. Acheson ( with •A ho 111 was W. B. Rodgers), for defendant III error. WILLIAMS, J.— The verdict of the jury ' stabliKhes the fact that tlie t'Inintiff be- i>w did not sell the wool to the defend- Mits' vendor, as an individual, en his own II sponsibillty, but as a member or agent of the defendants' tirni, and upon their I redit. Nor was the wool deMvereil to liim by the plaintiff. It was delivei'ed to the railroad eoiiipan.v, to be carried to Pittsburg, and there delivered to defend- ants, to whom it waB consigned by the plaintiff. Under the contract of shipment the company had no right to deliver the wool to any person except the consignees; and their delivery of it to tlie defendants' vendor vested in him no property or riirht of poHsessionas against the plaintiff. The principle which underlies this case, nnil by which the rights ol the parties arc to be determined, is this: The sale of goods by one who has tnrtiously obtained their possession without the owner's consent, vests in the purchaser no title to them as against the owner. As a general rule no man can be divested of his (iroperty with- out his own consent and voluntary act. It is true that there are e.\ceptionH to the rule, as clearly defined and as well settled as the rule itself, but this case (bies not come within any of them. Here the de- fendants' vendor, as we have seen, ac- quired no right or title to the wool under his contract with the plaintiff, and he did not obtain from him its actual posses- sion. The railroad company had no au- thority, as the plaintiff's agent, to deliver the wool to him, and their delivery gave him no right or title to it whatever. Nor had he any apparent or implied authority from the plaintiff to sell or dispose of it. It is clear, then, that he could convey no title by its sale; an<l if so, the defendants could acquire no title by its purchase, though they purchaser! it fur a fair and valuable consideration, in the usual course of trade, without notice of the pi:iintiff'e ownershii), or of any suspicious circum- stances calculated to tiwaken inquiry or put them on their guanl. The c.ise is a hard one in any aspect of it. One of two innocent i)arties must suffer by the fraud and knavery of n swindler, who had no authority to act for eithei-. But the law is well settled that the owner cannot be dive-ited of his property without his own consent, unless he has placed it in the pos- session or custody of another anil given him an apparent or implied right to dis- pose of it. The case was tried on tliis principle, and as there Is no error appar- ent in the record, the judgment must be affirmed. Judgment allirined. BAItXAltD V. CAMPBELL. 2» BAIINAUD V. CAMI'BICLL,. (55 N. Y. 45C.) Court of Appeals of New York. Jan. 20, 1874. Appeal from order reverpinK a jixlKinoiit in fuvur of plaiiitiffij and K>'uutiiig u new trial. Heplevin of 1,370 bags of linseed. I)e- femlaiitM, in New York, piirclinHcd of the broker of one Jeffries, of BoHton, l.MM) baus of linseed on AiiKiiHt 21, lS(i:j.and sent him their notes in i)M,vment. Jeffries, by fraud, obtained 1,370 l)aKs on an order from plaintiffs on Aumist 2-ltli. Tlie lin- seed was delivered to liim, and Hliipi)ed to defendants. The bill of ladintcwas mailed to them on the 2.')tli. Defendants paid for the linseed by their notes on the 2l8t. Jeffries failed on the 27th. Janies C. Carter, for appellants. Ed- wards I'icrrepont, for respondents. ALIjEN, J. The only question involved in tile action la, w hether the plaintiffs and orlKiiial owners, or tlie defendants, the purchasers from .leffries, the fraudulent vendee of the plaintiffs, have the better title to tlie merchandise in controversy. That ns ai^ainst Jeffries, the rijrht of the plaintiffs to rescind the sale and reclaim the f-ooils, by reason of the fraud of the latter, is perfect, is conceded, and was so held upon the trial. Such right continues as against any one acquiring title under Jeffries, unless under well-recognized prin- ciples of law, and under the circumstances of this case .leffries could transfer a bett 'r title than lie had, or the plaintiffs b> their acts are estopped from asserting title as against a purciiaser from him. liut two questions oi fact were sulmiit- ted to the jury: 1. Whether the sale to .leffries was for cash or upon creilit ; anil, 2. If tor cash, whether payment was waived and the goods delivered so as, but for the fratld, to vest the property in Jeffries. The jury found, either that the sale was upon credit, or that the payment of the purchase-price, as n coudition precedent to the delivery of tlie property to and the vesting of the title in .leffries was waived, and that the delivery to him was absolute and unconditional; and the defendants had a verdict, under tlie instructions of the judge, that the eipiitalde rule applied, that when one of two innocent parties must suffer loss by reason of the fraud or deceit of another, the loss shall fall uiion him by whose act or omission the wrong- doer has been enabled to commit the fraud; and that the plaintiffs were in the position of a party who lets another have property unconditionally, and tliereby en- ables him to sell the same and receive the purchase-price from n third person; and that In such case the purchaser takes the title. In other words, the plaintiffs were held to be estopi)ed from claiming the goods from the defendants incase the jury found that there had been an uncondi- tional delivery by the plaintiffs to .leffries, notwithstanding !is the judge at the cir- cuit expressly declared, and ns the evi- dence showed, the defendants purchased the goods fr(jm a broker of Jeffries la New York on the 21st of August, and paid for them the same day by transmitting their notes to Jeffries at l.oston, who at once ueg(jtiated them; and Jeffries olitained neither the property nor any order for its delivery, or documentary eviileni.-e of title or of his purchase, until the 24th of the same month, three days after the trans- action was coiiHummated as between Jeffries and the defendants. That is, it was held ut the circuit that the subse- quently-acquired possession of Jeffries op- erated by relation to create an estoppel •IS of tilt! 21st of August, in favor of the defendants and against the plaintiffs; and the jury were in terms instructed that the defendants were (lurchasers in good faith for value, and acquired a title paramount to that of the plaintiffs, and were entitled to a verdict; and they liad n verdict and juilgment upon this view of their rights. That the defendants were purchasers in gcjod faith, that is, without notice or knowledge <if the fraud of Jeffries, or of the defects in his title, for a full consldera- ti(jn actually paid to Jeffries, is not dis- puted. Both plaintiffs and defendants .are alike inixjceiit of any dishonest or [fraudulent intent, ond one or the other must suffer loss by the frauds of one with I whom they dealt in good faitli, for legiti- mate purposes, and with honest intention. Both were alike the victims of the sniue fraudulent actor, unrl if one rather than the other of the parties has ilone any act en.-ibllng the fraud to be commit ted, and without which it could not have been per- petrated u|)on the other in the exercise of ordinary care and discretion, the loss should, within the rule before referred to, fall on that one of the parties aiding and abetting the fraud, or enabling it to be comn itted. But good faith, and a [lart- ing of value liy the one, will not ulone de- termine will) should have the loss, or fix the ownership of the property fraudulent- ly purchased from the one .-ind sold to the other. The general ruleis that a purchaser of property takes only such title as his seller has, and is authorized to transicr; that he accpiires precisely the interest whicli the seller owns, and no other or greater. "Nemo plus juris ad alium trnns- ferre potest quam ipse habet." Broom. Leg. Max. 452. Tlie general rule of law Is undoubted that no one can transfer a bet- ter title than ho himself possesses. "Nemo dat (|uod non haliet." I'er Willes, J., Whistler v. Forster, 14 C. B. (.V.S.) 24.S. To this rule there are however some ex- ceptions, and unless the defendants are witliin the exceptions they must abide by the title of Jeffries. One of the recognized exceiitlons applies to negotialile instruments only, and de- pends for its existence upon the law-mer- chant and the reasons of public policy U|)on which that branch of the law rests. To uinUe this exception available, the negotiable jiuper must be actually trans- ferred \iy Indoi-sement lu the usual form aud forvalue. Whistler v. Forster. supra ; Muller v. Fondir, (In this court, Decenmer 23. 1S73,) 5.-) N. Y. 32."); (a) Storv Prom. Notes, § 120. note 1, Calder v. Pilllngton, 15 Me. 3US; Southard v. Porter. 43 N. H. 30 BAUNAHD c. CAMTBELL. 379. Another exception is in tlie case of a tranHfei- l).v indorsement and delivery of a bill of ladiuK, wliicli is tlie synilxil of tlie property itself, to a l)ona fiile purchaser for value, Ijy a consignee to wliom the consignor and original owner i>f the goods has indorsed and delivered it. This exception is founded on the nature of the instrnuient, and the necessities of coni- ineree. The bill of lading, for the conven- ience of trade, has been allowed to nave effect at variance with the general rule of law. Hut this operation of a bill of lad- ing is confined to a case whei-e the person who transfers the right is liiniself in i>os- session of the hill of lading so as to be in a situation to transfer the iustruniont it- self, the symbol of the propei-ty tran.s- ferred. .leiikyns v. llsborne, 7 M.& U.G7.S: Akeruian v. llnniphery, 1 C. & F. 5:!. Bills of lading-differ essentially from bills of exchange and other commercial nego liable instruments; and even possession of a bill of lading, without the authority of the owner an<l vendor of the goods, or when obtained by fraud, will not authorize a transfer so as to defeat the title of the original owner, or aflA't his right to re- scind the sale and stop the goods in transit. While possession of a l)illof lading, or other document of a like nature may be evidence of title, and in soniecirciiirstances and for some purposes e(piivalent to actual pos- session of the goods, it does not constitute title, nor of itself affect the operatii>n of the general rule that property in chattels cannot be transferred except by one hav- ing the title or an authority from the true owner, (iurney v. Behrend, 3 Ellis & Black. 622; Dows v. Perrin, Ki N. Y. 32.5; see also Saltus v. Everett, 2i) Wend. 207 ; 32 Am. Dec. .'541 ; Brewer v. Peabody, i:^ N. Y. 121. .Jeffries had no bill of lading from the jilaintiffs, thevendors of the goods. or any document of like character transferable in the usual course of business, ami the trans- fer and delivery of which to a purchaser for value would have operated as a sym- bolical delivery of the goods, and been the equivalent of an actual delivery, so as to terminate the right of the plaintiffs to re- scind the sale and reclaim the goods. Another exception to the general rule exists in thecaseof a sale inmarket overt; but as we have no markets overt, and there are no sales, public or private, known to our law, which reliex'ethe buyer of merchandise from the rule of caveat emptor, as applied to the title, this excep- tion need not be further considered. The defendiints can only resist the claim of the plaintiffs to the merchandise by es- tal)lishing an equitable estopjiel, founded ujjon the acts of the plaintiffs, and in the application of the rule applied l>y the judge at the circuit, by which, as between two persons equally innocent, a loss resulting from the fraudulent acts of another shall rest upon liini by whose act or omission the fraud has been made possible. This rule, general in its terms, only operates to protect those who, in dealing with others, exercise ordinary caution and pru- dence, and who deal in the ordinary way and in the usual course of business and uiion the ordinary evidences of right and authority in those with whom they deal, and as against those who have volun- tarily confei'red upon others the usual evi- dences or indicia of owDershii)of property, or an apparent autliority to deal with and dispose of it. In such case, for ol)vi- ous reasons, the law raises an equitable estoppel, and as against the real owner, declares that the apparent title and au- tluuity which exists b.v his act or omis- sion siiall (luoad persons acting and part- ing with value upon the faith of it, stand for and be regarded as the real title and authority. It is not every parting with the possession of chattels or the documen- tar.v evidence of title that will enable the possessor to make a good title to one who may purchase from him. So far as such a parting with tlie possession is nec- essary in the business of life, or authorized by the custom of trade, the owner of the goods will not be affected by a sale by the one having the custody and manual possession. Dyer v. Pearson, 3 B. & C. 3.S; Newsom v. Thornton, G East, 17; Taylor V. Kymer, 3 Barn. & Adol. 32U; Ballard v. Burgett, -10 N.Y.314. But theowner must go farther, and do some act of a nature to mislead third persons as to the true posi- tion of the title. Pickering v. Busk, 15 East, 38. Two things must concur to create an estoppel by which an owner may be de- prived <jf his proi)erty, liy tlie act of a third person, without his assent, under the rule now considered. 1. The owner must clothe the person assuming to dis- pose of the projterty with the ajjparent title to, or authority to dispose of it; and, 2. The i>erson alleging the estoppel niu.st have acted and parted with value upon the faith of sucli apparent ownersliip or autliority, so that he will be the loser if the ap]iearances to whicli lie trusted are not real. In this respect it does n(jt differ from other estoppels in pais. Weaver v. Barden,49 N. Y. 2S(); McGoldrick v. Wil- lits, 52 id. 612; City Bank v. It., W. & O. H. Co., 44 id. ]3(>; Saltus v. Even tt, 20 Wend. 267; 32 Am. Dec. 541; Wooster v. Sherwood, 25 N. Y. 27s; Brower v. Pea- body, 13 id. 121. In the case before us every element of an estoppel is wanting, and no case was made for the application of the rule by which, under some circumstances, one, rather than the other two innocent per- sons, is made to bear the loss occasioned by the fraud of a third person. The defendants consummated their pur- chase from Jeffries, acting through his broker in New York, and paid for the mer- chandise by remitting, at his request, di- rectly to Jeffries on tlie 2Ist of August, at which time Jeffries had neither the posses- sion nor right of possession of the prop- erty, nor any documentary evidence of ti- tle or any indicia of ownership, or of do- minion over the property of any kind. The plaintiffs had done nothing to induce the defendants to put faitli in or give credit to the claim of Jeffries of the right to sell the property. The defendants then parted with the consideration for the pur- chase of the seed, not upon the apiiarent ownership of Jeffries, but upon his asser- tion of right of which the plaintiffs had no knowledge, and for which they are not BARNARD v. CAMPBELL. 31 responsible. Neither did tliedi-fendants at any time do or forbear to do any act in reliance upon llie uppai'ent ownerHliip of the projjerty by Jeffries, or iiiiliin-d by anv act or declaration of tlii' idaintiffH. In "Knights v. Wiffen, L. R., 5 Q. B.tJflD.the plaintiff was intiuced to rest satisfied un- der the l)eliel that he had acquired title to the property [)urcl)aHed, and so to alter his position, by al)stainlnK from proceed- iii^s to i-ecnver bacli the money which he had paid to his vendor, by the declaration of the defendant that it was all ri;rht, and his |)romiHe tliat wlien the furwardiiiu: note «liould lie received he would put the barle.v on the line. The defendants hei'e at no time had any declaration or state- ment of the i)lain tiffs upon wlilcli to rely, and were not led to act or forbear to art by any documentary evidence of title in Jeffries emanatinu from them. There is a manifest equity in holdiuR the owner of property estopped from nssertin;? title aw afiainst one wlio, for value actually paid, has purchased it from one having, by the voluntary act or negliRence of the owner, the apparent title with right of disposal, but with this limitation there is no hard- ship in bidding to the rule that the right of property in chattels cannot be trans- ferred unless on the ground of authority or title. Public policy requires that pur- chasers of property should be vigilant and c.iutious, at least to the extent of seeing that their vendors have some and'tho usual evidence of title, and if tliey are coru tent to rest upon their declarations they may not impose the loss, vk-hich is the re- sult of their own incautiousness or credu- lity, on another. The payment for or parting witli value for the goods by ths purchaser ir<jm the fraudulent vendee lays at the foundation of the estoppel, for if ho has parted with notliing, he cnn lose nothing by the retaliing of the goods by the original owner, and that payment must be occasioned by the acts or oraia sitms of such owner. It is the payment that creates the estoppel, and if that is not made in reliance on the acts of the owner, tlie latter is not and cannot, in the nature of things, be estopped. The order granting a new tral must he affirmed, and judgment absolute for the plaintiffs. All concur. BAUNAKD c. CAMI-liKJX. 33 BAKXAKD T. CAMPBELL. (58 N. Y. 73.) Court of Appcal-s of New York. June Term, 1S74. Motion for re-nrKuiucnt. J a nif 8 C. Carter, for motion. Edwards Pierrepont, opposed. ALLEN, J. The question considered by tliis court, and discu-ssed in tlio opinion delivere<l on Kivlnt; jiidKnient u|)on this appciil was tluir distinctly presented l)y tiie exceptions to the riilinf? and decisions of tlic jiid^e upon tlie trial, and as tliat was decisive and led to an alfirinance of the order (jrriintliiK a new trial and u final jiidf?nient for the plaintiffs, it was not deemed necessary, in assiKninK the reasons for the jndKiiient, to canvass particularly the argument, or review in detail the au- thorities cited li.v counsel upon a some- what different view of thecase. Theentire brief, and all the autliorities cited, were nevertheless, carefully examined and con- sidered ; and had the court adopted the views of the learned counsel for tlie ap- liellants, it is possil)le a way miuln liave licen found to sustain the defendants' ilaim to tlie property, notwithstHndinj; the pointed exceptions to jjropositions in the instruction.s to the jury, which were deemed erroneous. Tlie case lias l>een Mirain carefully examined, and upon the theory of the counsel for the appellants, and with the aid of his very able brief, sub- mitted upon the present motion, and the court sees no reason to interfere with the judgment already Riven. It is proper to sa.v that the unusual delay in passini; upon the present application has not been bei-ause of any intrinsic difliculties in tlie (juestioii [iresented, "ir an.v serious doubt as to the correctnesHof theformerdecision. lB(dated expressions nui.v be found in elementar.v treatises, as well as in judicial opinions, which itive color to theclnim of the defendants, to hold the propert.v In disiiute as against the plaintiffs, but these were not intended to and do not give the rule by which this and like case.s are con- trolled. They are all proper in the connec- tion in which they ;ire fouiiil and for the purposes for which they were used, and ought not to receive any other interpre- tation than such as was designed by the authors. It must be conceded that upon the delivery of the goods to .leffries by the plaintiffs, under tlie circunislances, the property passed to .leffries, and the fact that thedelivery was iuiluced by fraud di<l not render the contract void. It was merel.v voidable at the instance of the plaintiffs, who might elect to disallirm the contract anil reclnim the property. That is, the contract of sale was defeasible at tlie election of the plaintiffs, the ven- dors. If the election was seasonably made, and the goods reclaimed in proper time after the discovery of the fraud. The plaintiffs could lose the right by delay as against tin- wrongdoer, if in conseiiuence of such ilcla.v Ills iiosition should be rlianged, and they w<:uld havi- lust it ab- solutely if during the interval between tlie delivery of tlie goods, the vesting of this LAW .s.M.iis — :i defeasible title in the purchn.ser, Jeffries, and the dlsaffinnnnce of the sale by the plaintiffs, the goods had been sold to an inniicent thinl parly for a valuable con- Hi<leration. The superior ei)uity of a pur- chaser of property from one who has nc- (piired a title defeasible at the electii>n of the former owner and vendor, by reason of fraud, to that of such owner seeking to reclaim his projierty, is based upon the fact that acting upon the evidence of title which the owner has permitted the wrong-doer to assume and [lOHHess.he has been induced to part with value, and will be the loser because of thi- credit given to the apparent ownership if he is compelled to surrender the property. The mere pos- Hcssion by the party claiming to liol.l will not sustain his claim, but the circum- stances under and consideration upon which he liaH acquired tlie possession are also material. Were it otherwise, an as- signee for the benefit of creditors, or one who should take as collateral security for the payment of a [irecedent debt, would hold as against the original owner, which Is not claimed and is contrary to the whole current of authority. Several things must concur to bar the claim of the defrauded vendor. 1. He must have parted with possession of his projierty with intent to pass the title to the wrong- doer, thus giving liini the apparent right of disposal. If property is taken feloni- ously or without the consent of the owner the taker can make no title to it, even to an innocent purch.-iser with value, 2. A third |i!irt.v must have acnuired title from the wrong-doer without notice of the ile- fects in liis title or knowledge of circum- stances to put him to an inquiry as to the source of his title. And,:!. .Such third [larly iiiiist liave parted with value upon the faith of the apparent title of the wrong-doer, anil his right to dispose of the property. If any of these elements ore wanting the venilor sensonably pursu- ing his legal right nia.v have his property. That this formula very closely resembles that liy which an estoppel in pais is de- fined and limited is true, and this must necessarily be so, so long as the rights liased upon each have the same equitable foundation. The <lefendants parted with no value, incurred no liability, and in no res|iect changed their situation in the in- terval between the delivery of the mer- chandise by tlie plaintiffs to Jeffries, and their disnllirmancc of the contract, and reclaiming the goods. In other words, tlie.v di<l notliing in consequence of such delivery to Jeffries or based upon Ills title and possession, and arc in precisely the same situation as if the goods had never left the possession of the plaintiffs. They (larted with their notes and incurred obli- gations upon the faitli of the promise and agreement of Jeffries an<l upon his credit alone. It ispossilile that theclaimof tlie<lefend- ants to hold as liona tide purchasers for value is sustained liy Fenliy v. rritcliard, 1.' Snndf. l.')l. but this case is so at war witli principles recognized as well settled by this court in analogous cases, that it cannot lie regarded as well decided. The cases cited fioiu .Maine and Illinois (Lee v. BAKNAKI) V. CAMPBELL. Kimbull, ■!.-. Me. 173; Butters v. Haiisrli- woiit, 4U' III. l.S; X!) Am. Dee. 4f)I). treat the case as aiinloKoiis to a transfer of nesotiahle paper, and hold that a i)reccd- eiit debt is a valuable consideration for the transfer, and «ives the transferes a good title as against the former owner. This is in direct conflict with the uniform decisions in this State, from Bay v. Cod- dinjrton, 5 .Johns, ("h. .">4 ; 9 Ani. Dec. L'liS; aliirnied, L'O Johns. (".37, to Weaver v Barden, 49 N. Y. 286; afHrnied, Turner V. Treudway, 53 id. (!.')(). One other case from Maine cited by the counsel for the appellants (Titcomb v. Wood, ;is Mc. .">G1) recognizes the necessity of a valuable consideration, as that term is understood and used by the courts of this state as necessary to give tlie pur- chaser of property from a fraudulent ven- dor a superior equity and title to that of the former t)v\'ner, and Hnd such a consid- eration in the transfer of property before then stolen from the defendant. Thecourts Siiy: "Here the defendant being the owner of stolen property, with his right and title unimpaired by the felony, trans- ferred it to McClurefortheproperty in ques- tion, in part payment at least. This con- stituted a valuable consideration for his purchase, given at the time. Thus it ap- pears that he was a purchaser ot the gold watch, bona tide, for a valuable consider- ation, and without notice of the fraud by wliich his vendor acquired it. This gives him a superior equity and a better right, and enables him to hold the prop- erty against the defrauded vendor." Hut- ton V. Oruttwell, 1 El. & Bl. 1.5; and Mer- cer V. Peterson, L. K., 2 Exch. 304, relied upon in support of this application, pre- sented questions under the English Bank- rupt Acts, and merely decided that a trans- fer of effects, by the bankrupt, in perform- ance of a prior executory agreement, for which a full consideration had been paid at the time of the agreement, was not within the condemnation of the act or af- fected by the proceedings in bankruptcy. They do not bear upon the question be- fore us. In Olongh v. London, etc., R. Co., L. R., 7 Exch. 2G; I Eng. Kep. 14S, the question was whether the claim to dis- aihrm the sale of the goods was season- ably made by the defrauded vendor. The vendor had first sought to stop the goods in transitu, which was an act in affirmance of the sale; tiut the transit was ended be- fore notice reached the carrier. There was no act avoiding the contract on the ground ol fraud done by the vendor, until the plea in the action by Clough, who was found by the jury to be cognizant of, and a |)arty to the fraud in the purchase. No question of consideration or the valid- ity of any sale of the goods by the fraud- ulent purchaser was in the ease, or con- sidered by tlie court. Durbrow v. McDou- ald, .5 Bosw. 130; s. c, sub noni. Winne v. McDonald, 3!) N. Y. 233, wis clearly within th(' rule upon the interpretation given to the transaction by the courts. It was said by the superior court that Perry & (;o., the purchasers of the wheat, had the full possession of it in the precise manner that the contract between thetn and the plaintiffs contemplated, and that the pur- chase and possession of Perry were such as to enable him to confer upon a bona fide purchaser, a pledgee for value, a title valid as against the plaintiffs; and that the advance was made by the defend- ants after the delivery to Perry & Co. of the documentary evidence of title, and the wheat pledged as secuiity at the time of the advance. The evidence upon the record in this court, it would seem, left the precise time when some of the occur- rences took place in doubt, but tliat the specific wheat was pledged, at the time of the advance, was established, although possibly the muniments of title were not then delivered. The title ami possession had vested in Perry & Co. at the time of the pledge; and that fact clearly distin- guished that from the present case. Judge Bosworth, in Caldwell v. Bart- lett, 3 Duer, 341, and Keyser v. Harbeck, id. 373, recognizes the doctrine that the advance must be made or consideration parted with upon the faith of the title ot one in actual possession of the property, or the written evidence of title, to give an indefeasible title as against the true owner. All the authorities are direct and to the effect that no one but a bona tide purchaser, or pledgee for value— that is, one who gives value for or makes ad- vances upon goods obtaitied from the owner by fraud or fraudulent representa- tion — and tliat he who has paid value, or made advances, or incurred responsibili- ties upon the credit of them, can alone claim to hold them as against such owner. Root V. French, 13 Wend. .'')73; 2S Am. Dec. 482; Mowrey v. Walsh, 8 Cow. 23S; Hoffman v. Noble, C. Mete. 68; 39 Am. Dec. 711. There is no good reason or equity in placing the burden of a fraudulent sale upon a bona fide vendor rather than upon a bona fide purcha.ser from the fraudulent vendee, unless the purchaser has parted with his money, or some value, upon tlie credit ot possession or some evidence of title in the vendee, received from the orig- inal owner, and by means of which he has induced the purchaser to treat with him as owner. The motion for a re-argument must be denied. All concur, except JOHNSON, J., not sitting. BEACH'S APPEAL. 37 Appeal of BEACH. (20 All. Hep. 475, 58 Conn. 464.) Pi)prrmi> Court of Errors of Connecticut. Feb. 7, ISUO. .\pppal from Hiiperior court, Hartford county. , , ^ , The contract and note roforrcd to in the opinion are as follows: "This nicrno- randuni of iin agrceincnt made this :!d(la.v of March, lNS(i, between Georjje Cronip- ton, of the lirst part, and the Home Wool- en Co., CharlcH M. IJeach, treaKiirer, of the Hccond part. Wlierean, the waid Crompton of the lirst i)art asrees to deliver to the said parly of the second part certain ar- ticles of machinery, to-wit, thirty broad Crompton '1SS3' fancy looms (twenty- ei«ht of which are sinKlc-beani looms, and two are donhlc-beam looms,) and lixtures thereto beloiiKiiiK. amountiuj? to $12.- 450 CI), and the party of the second part agrees to jrive the party of the first part its promissory note dated tlie avcray;e Bhi[)pinK date of the looms, and payable eight months from its date, for ^12,450.09. It is hereby asreed by the said parties that the party of the second part shall be permitted to talie the saiil property into their possession, and the same to talie to and set up in the mill occupied by them in Beacon FaUs, asreeinK to keep the same in Kood order, and also to keep the same insured for the full cost of the same for thebenehtof the party of the first part, and to hold the said machinery as the property of the party of the first part un- til the above note or renewals thereof have V)een fully paid, according to the i tenor thereof, when the machinery above named shall be sold to and become the property of the party of the second part. And the party of the first part is hereby bound to sell'and relin<iuisli his claim to said propertv \ipon ijayment of the said note or renewals thereof, and does agree to consider the same as sokl and delivered when said note or renewals thereof are paid. And it is further agreed that upon default of the payment of the said note or renewals thereof when the same shall be- come due, as also in default of said ma- chinery being kept in good order and in- sured as above provided, the party of the first part shall have the right at any time to resume i)ossession of the machinery, and to enter the premises and remove the same as his own property. And, if any portion of said note or renewals thereof shall remain unpaid when possession shall be so taken by the party of the Hrst i)art or his authorized agent, then the amount which ninv have been paid shall be for the use of said machinery while in possession of the party of the second part, and said notes shairthen be canceled and given up. Witness the hands and seals of the parties aforesaid. Gi;or(ji; Cuo.mi'To.n. [l. s.] Chas. M. Bi^acu, Treasurer, [l. s.] " H. C. Uohiiison and L. 1\ Robinson, for ai>pellant. F. Cbamhi-rlin and E. 6'. Whjtt', for appellee. I.ooMis .7. The sole question forour de- termination is whether the promissory note described in the linding, dated Janu- ary 15, 18.^7, giveu by the Home W ooleu Mills Company, payable six nionthB after date, to Mary Crompton, administratrix of George Crompton, deceased, is a good and collectible note. The commissioners on the assigned estate of the maker, now an insolvent, allowed the claim in full, and their doings were aflirmed by the su- perior court upon an appeal by a creditor. Although numerous errors are assigned as reasons for the ai)peal to this court, yet the controlling question as it seems to us relates wholly to the consideration of the note, and the remedy of the plaintiff for default of payment. The note in suit is a renewal of the one mentioned in thcrcon- tract dated March 3. isw, given to George Crompton by the Home Woolen Company, pursuant tothe provisions of thecontract, and a determination of the questions rela- tive to the consideration and collectibility of the note will involve also the construc- tion of the contract. No question is made as to the valid- ity of the transaction. It belongs to the class of executory conditional sales so often sustained by the courts of this and other jurisdictions, even against attacli- ing creditors. But the cpiestion here is between the parties, and those who imme- diately represent them. If then, as Hoi.T, C. J., so forcibly said in Thorpe v. Thorpe, 1 Salk. 171, "every man's bargain ought to bo performed as he intended it," we cannot refrain from asking at the out- set why should not the absolute promise contained in this note be performed? Was it in its ino'ption a mere nwliini pactum. lacking the re(iuisites of a legal obligation to perform, or has there since been a fall- ' ure of the consideration? Unless it is all a mere waste of words, i)aper, and ink, a good consideration is found in the mutual obligations which the contract imposed upon the parties. Under it the Home Woolen Company had the possession, the right of possession, the riglit to use the propertv, until default, and the right to acquire 'the legal title by the payment of the note. This was a vested interest of which the vendee could not be deprived except after default. Moreover, it was an attachable interest under section t):.'0 of the General Statutes. The vendee or any of itsattaching creditors could compel the vendor to give a good title. In other ju- risdictions the doctrine is well established that such contracts vest an interest in the vendee which is cajiable of sale or mortgage bv him to a third person, so that the moment the vendee's title is per- fected it passes to such third person. Fosdick V. Schall, 99 U. S. 1.'35: Carpenter V Scott, 13 K. ]. 477; Day v. Bassett, l!!2 Mass. 445: Crompton v. I'ract, lOo Mass. ".").■)• Currier v. Knapp. 117 Mass. 3l'4; Chase V. Ingalls, V.'J Mass. 3s3; note to Miller v. Steen, 89 Amer. Dec. IL'S. The case at bar Is most remarkable in the fact that, while the appellant claims a want or failure of consideration for the note, he at the same time concedes that there has been no default in any of the vendor's ob- li"-ations mentioned in the contract, nor has possession of the looms bi^n taken bv the vendor or his representative, nor has there been any interruption or dis- turbance of the vendee's possession. But strangely enough the failure of cousidcra- as BEACH'S APPEAL. tion is prodicnted solely upon the default of the veiiilee to perform his own promise — the same party who sets up the defense! That such maybe the consequence of a party's own defaiilt, we concede as a pos- sibility, but only where it is so written in the contract, and such intent is manifest. And here counsel for the appellant say, in effect, that the decisions of this court in Hine v. Roberts, 48 Conn. L'07, and Loomis V. Bragg, 50 Conn. 228, where Cf)n- tracts said to be essentially the same as in thecaseat barvvere construed soaeto give the precise effect to the vendee's own de- fault, coupled with his act of returning the property, which we now characterize as so anomalous. But the appellant's argument as based on the cases cited overloul>s sev- eral most important and controlling dis- tinctions. In the first place, the court there was not called upon to give effect to the sole default, and the sole act of the vendees in returning the property after de- fault, for in both cases these acts of the ven- dees were coupled with the corresponding acts of the vendors in accepting and tak- ing back the property which they had conditionally sold. This of itself consti- tuted a failure of the consideration, and had the looms in this case when tendered been accepted and appropriated by the ven- dor, the vendee would be no longer liable for the purchase price. The gist of the de- cision in nine v. Roberts appears in the closing paragraph of tlie opinion: "Tiie purcha.se failed ; the title did not pass. The ])laintiff received the melodeon and the return of the organ in good condition, which is all he contracted for in that con- tingency, and the defendant forfeits all previous payments (in this case the melo- deon) which is all he agreed to forfeit. There was therefore an entirefailureof the consideration for the note. " But it is said that the reasoning of the court in this, and in the other case referred to, supports the right of the vendees to return the prop- erty upon their own default, irrespective of any assent on the part of the vendors arising from their acceptance of the prop- erty when returned. This is true, and nat- urally occasions some hesitatifjn as to the proper decision of this case. But the rea- soning referred to was based upon a con- struction of those contracts whereby it was expressly provided that the vendees' default of payment slKjuld work a forfeit- ure of their entire Interest in the property. In Hine v. Roberts the very words which the vendee used in his contract were: "If I fail to pay any of said rent when due, » » « all my rights herein shall thereupon expire and terminate;" which seems to justify the reasoning and conclu- sion of the court. In Loomis v. Bragg the same construction was given to the con- tract, although the language was less ex- plicit. In the opinion of thecourt, on page 231, it is said that the agreement provided forthe contingency of a default of payment by the vendee "by a forfeiture of all the de- fendant's rights under Che contract." In the case at bar, as it seems to us, no such construction can reasonably be given, for there is no express provision as in Hine v. Roberts, and none can be implied from the language used, as in Loomis v. Bragg, that the vendee can determine his interest in the property and revest it in the vendor bv his own default merely. The option to give such an effect to a default rests wholly in the vendor, and the vendee's rights continue until the option is exer- cised. The mere absence of any provision in the contract as to a return of the prop- erty by the vendee, while expressly confer- ring on the vendor the right to reclaim it, of itself affords ground for an implication against the existence of any such right, but in this case it is expressly stated to be the duty of the vendee"to hold the said machinery as the property of the party of the first part, until the above note or renewals thereof have been fully paid ac- cording to the tenor thereof." This case belongs to the class of which Appleton V. Library Corp. ,53 Conn. 8, is the type rather than to that of Hine v. Rob- erts and Loomis v. Bragg, and the lan- guage of the court in that case, in refer- ence to the claim of a right in the defend- ant to return books similarly bought, is equally applicable to this case. The court there say: "It is said that the plaintiffs had the right, at their option, to retake the property at any time if the defendants should fail to pay any installment for a period of thirty days after it became due; but this is a right which the plaintiffs had in case the defendants should break the contract by non-pa.ynient. It gives the defendants uo right to return the books." But it is suggested that the present case is like Hine v. Roberts and Loomis v. Bragg in that no remedy except the right to resume possession is given to the ven- dor, and that it is unlike Appleton v. Li- brary Corp., in that there is no absolute promise to pay for the looms, as there was to pay for the books in that case. While we concede that there is some plau- sible ground for these distinctions, upon further reflection we find them unsatisfac- tory. In the first two cases the payments stipulated to be made at frc(iuent inter- vals were called " rent, " and the agree- ments were called "leases," and although this court, taking into view the features of the entire transactions, called them "conditional sales" and not "leases," yet the use of these words by the parties cer- tainly has a legitimate bearing upon the construction of the agreements as to the point now under consideration, namely, whether the parties intended to give the vendors a remedy to recover the entire sum stipulated to be paid as a condition for vesting the title in the vendees. In both cases also we find most ample pro- visions for the protection of the vendors. In Hine v. Roberts a large advance pay- ment was made by delivery to the vendor of a nielodeon, worth nearly one-third the price of the organ. In Loomis v. Bragg the payment of a monthly rent was re- quired, many times larger than the inter- est upon the full price of the piano which was the subject of the sale. But in the case at bar the contract requires no ad- vance payment and no rent or install- ments are to be i)aid either at long or short intervals. The word "rent" does not (jccurin the writing, audits equivalent in idea only appears where it speaks of the consequences of a retaking of posses- sion by the vendor, and provides for the BEACH'S APPEAL. 30 cancellation of the notoH, in wlileh case any payments that may have bcon made 11 is Raid " shall be for the use of the ma- chinery while the vendee was in posses- sion." Even interest is not mentioned in the agreement, yet the finding shows that it was in fact paid in advance upon givins: the iiresent renewal note; and. upon the supposition that the entire note could be collected when due. the vendor had it in his power always to secure the prepay- ment of interest or any other security as a condition for granting a renewal of the note. But the first note that was given pursuant to the contract had the interest Included with the i)rincipnl, which was due at the end of eight months, so that, had the question tinder discussion then arisen, the appellant could have claimed, consistently with his present position, that not even the interest was recovera- ble, for its payment was only obligatory as part and ijarcel of the principal, which could not, he says. have been recoverecJ hy suit; but, if the interest could have bi'en or could l)e recovered apart from the prin- cipal, it would be a very inadequate pro- tection to the vendor for the risk and de- terioration fncident to the use of such ma- chinery by another. .\s matter of com- mon knowledge, we may safely assume that the propertj' in question, if subjected to only ordinary wear, would, if taken back by the vendor, ne<-essarily be greatly depreciated in its market value, for it would have to be sold again, if at all, as second-hand machinery, and the vendor must inevitably lose the whole difference between the value of new and of second- hand machinery, which in an investment of over ?12, 000, as in this case, would be too serious a matter to be lost sight of in the contemplation of the i)artie8. The ap- pellant's construction of the agreement woulil put upon the vendor all the risks and losses, (of which there are many be- sides those mentioned,) incident to the agreement and its subject-matter, and at the same time give to the vendee all pos- sible benefits, while exempting him from all obligations exci'pt such as he might be well i)leased to fulfill. It is incredible that a contract so one-sided, and a remedy so Inadequate for the vendor, should have been intended by the parties. Any con- struction leading to such results ought not to be accepted unless plainly required or necessarily to be inferred from the lan- guage of the contract. We think the con- tract in this case admits of a different and more reasonable construction. We have already seen that no option to return the property is given to tlie vendee merely upon his own default, which has an important bearing upon the qii("stions whether the parties have restricted the remedy of the vendor solely to a ret.-iking of the proper- ty, and whether there was any iiroinise by the vendee to pay the purchase price. AVe have also adverted to the provision that the vendee shall holil the property as that of the vendor until the note and its renewals have been fully paid, which indi- cates that actual payment was contem- plated; and we have in addition the note itself, which contains a direct promise, without condition or contingency, to pay the purchase price of the looms; and this note being provided for in the contract, and made part and p;ircel of it, ought to be read as if inserted in the body of the contract. All these considerations make it reasonable to construe the agreement as containing an absolute promise to pay for the property at the e.xpiration of the eiirht-months credit agreed upon. And this brings the case within the principle of Appleton v. Library Corp., where thiscourt said: "This contract is an alisolute one. The plaintiffs agreed to sell the books to the defendants for the sum of ninety dol- lars, to be paid in installments at certain specified times. The defer.dants agreed to pay that sum according to the terms of the contract. There is no conditional agreement here. It is true that the title to the goods did not pass, and could not pass, until the full sum of ninety dollars had been paid, but the promise to pay that sum was absolute. Whence, then, comes the defendants' right to return the books in full satisfaction and discharge of the contract, and thus leave a great part of the installments unpai<r?" Ami, speak- ing of the plaintiffs' right to receiver pos- session of the books, the court further says: "liut this is not their only remedy. The contract e.\i)ressly further provides that in case of such breach all the remain- ing unpaid installments shall immediately become due and payable. If they become due and payable in consequence of non- payment, of course a suit could be main- tained for their recovery." Anotherquestion involved in the reasons for the appeal, and very briefly referred to in the argument for the appellant, is whether the appellee, by bringing a suit on the note, and attaching the property of the vendee thereon, ami by refusing to accept the property when tendered back, and by presenting thenote to the commis- sioners as a claim against the estate of the vendee, thereby affirmed the sale, and waived her right to recover back the prop- erty. The counsel for the appellee insist- ed that this question was not properly be- fore this court, and declined to argue it. It is true this suit is not for the recovery of the machinery, but only for the recov- ery of the amount of the note. The ven- dee has not been disturbed in his possession of the property, and it is not certain that he will be. But the facts referred to as to the conduct of the appellee all appear on the record, and so faras they affect the right to recover the note now in question the matter is legitimately before the court. .■\nd, although our present dtx-ision must be confined to the claim on the note, yet the note and the ])roperty may have such relations as that the principle established as to the former may virtually determine the question as to the property, should it hereafter arise. The controlling question in the present case, as we have seen, re- lates Pimply to the consideration of the note. If. then, the action of the plaintiff, astound in thiscase. had the effect to affirm the sale, and pass the title of the property to the vendiH'. at the same time it must have prevented a failure of the considi-ra- tion of the note; and if thetitle did pass It follows also that the plaintiff cannot re- cover the property in any suit founded upon the contract. For these reasons we 40 REACH'S APPEAL. regret that the question was not fully ar- Cned. The case of IJailey v. Hervcy, 135 Mass. 172, was citefl, and, as it was based on a contract similar in effect to the one under consideration, it seems to be direct- ly in point. The action was brought by the conditional vendee ajAainst the ven- dors for takinj:; the property away, and the defendants attempted to justify under their contract after default of payment was made by the vendee. Ai.i.icx, J., in delivering the opinio7i of the court, said: " When the plaintiff discontinued his [lay- ments on account, what w;is the lep;nl posi- ticn of the defendants? If it be assumed that they mifjht at their option either re- claim the soods as their own property, without any obligation to account for the proceeds or value to the (ilaintiff, or that they mislit collect the price in full, it is plain that they were not entitled to do both. Theycouldnottre.it the transac- tion as a valid sale and an invalid one at the same time. If they reclaim their prop- erty, 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 aflirm it as a sale. Two inconsistent cour-ses being open to them, they must elect which they would pursue; and electing one they are debarred from the other. Reclaiming the goods would show anelection to fr.rego the right to recover 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 prop- erty by trustee process, entered their ac- tion in court, and he was defaulted." To accept this as good law would be to es- tablish a principle which would, upon the facts found, preclude the appellee from hereafterreclaiming the machinery In ques- tion. And while we feel impressed with the clear and cogent reasoning contained in the opinion cited, and are aware that it may receive further support from other decisions to the same effect, yet inasmuch as the point was not argued at all by the appellee, and only briefly lor the a[)pel- lant, and as its adojjtion would only fur- nish one independent additional reason for a conclusion already reached by a ma- jority of the court, it is deemed best on the whole to leave the question open for fur- ther consideration and decision after full argument. There was no error in the judgment comi)lained of. Andrews, C. J., and Pardee and Fe.\n, JJ., concurred. Carpenter, J., delivered a dissenting opinion. HECKEK V. irAI.LGAUTEN. 4.', BKCKEIi V. IIALL(JAUTE.\. (8C N. Y. 1C7.) Court of Appeals of New York. 1881. AiHion for convcrHion. Willielm & Boc- in'T. iiifrt'linntH In Berlin, (Jermnny, Hold to BouH & Stern, of the same place, cer- tain RoodH on credit, k'v'wk tlieui invoiced of the Hiune. The koo(Ih were Hhipped b.v direction of the purchfiHero to one Becker, the |)lnintiff, in Hrenien. Boas & Slern borrowed 3,0(10 niarkH of one GoldHteIn, a hanker In Berlin, on the security of the )j:oo(Ih and the hills of lading, directing J Becker to hold them snhject. to Goldstein's order, who directed Be<-ker to ship them to defendfintH, Hallgarfen & Co., of New York. (joldstein wrote defendants in- forming them of the shipment, and direct- ed them to deliver the goods to one L, Stern, of New York, on pa.vment by hira of the Goldstein loan andexpenscs. Beck- er shipped the goods on Angiist 4th to defi-ndanis, with bills of lading made out in his name as ship[)er. directing deliver.v of the goods to defendants. One bill of lading he mailed to defendants, directing delivery of the goods to E. Stern, as in- structed by <ii)ldstein. The dui)licnte bill of lading was forwarded to Boas & Stern, whosent it to (i<il(lstein, wlio forwai'ded it to defendants,-directing the same disposi- tion of the goods by them. Becker cabled defendants on August I'.ith, on behalf of the vendors, stoppingthegoods in transit, and they agreed to hold them for plain- tiff's account. Tlw vendors afterwards assigned to plaintiff their clniniH against the purchasers for an accepted draft and balance of account. Under the hiwr< of Germ.'iny, goods covered by bills of lading can be transferred only by written indorse- ment on the bills b^- the consignee. Those sent to defendant were not indorsed. Plaintiff tendiTed defendants theircharges, and demanded the goods. Samuel Hand, for appellants. Lewis •Sanders, for respondent. DANFOBTII, .1. Becker was at no time In the course of these transactions the agent or representative of the v<-ndors. Tntil and including the shipment of the goods he was the agent of Boas & .Stern, the vendees, or of (Jtildstein. He obeyed, as was i)roper, at the different stages of the affair, first one and then the other of these parties. If his special cliaracter censed with the shijiment, he neither en- tered the em|)loy of the vendors, nor did he act under any instruction received from them. The linding therefore thnt in be- half of the vendors he sto|iiied the goods is without evidence to support it. As- suming, in the next place (for the pur|tose only of thisdiscussion,) that by the assign- ment above sot out he tiecame vested with a vendor's right to stoit goods while on their way to an insolvent purcluiser, it is one which we think cannot be exercised in this case, for the reasons: First, that the transit was over l)efore the goods left (j'jrmany. They were sent by the vemlors to Becker, as the vendees' agent at Brem- , en. The shipment was preceded by and was in ronsei)uence of a reiiuest l)y B. & S. t(» the vcniiors "to send the boxes" to Becker "at our disposition." Therefore, on the LNtli of .July. Informing B-cker of the shipment to him, "at the reijuest of and for account of .Messrs. I'.. & .S. of Ber- lin," they write, wo have sent you part of the goods in question and "reiiuest you to carry out the further instruction of said ' parties concerning the same; " and In the ' next letter, communicating the shipment of the balance, they say, "and requestyou hereby to let .Messrs. B. & S. have the "fur- ther disposal thereof." It is obvious then that the impulse impressed upon thegoods by the vendors carried them c»nly to Brem- en. Some other action was necessary on the part of the vendees before they moved again. They at that p<jint transferred the goods to Giddsteln, and made them, in the hands of Becker, subject to Ills or- der. 'J"he trial court finds not only a "tak- ing of the goo<ls by him as security," but that Boas& Stern "directed Beckertohold and ship the goods according to Gold- stein's directions. " This was done. The bills of lading were issued in favor of strangers to the vendees, and who repre- sent a part.v having actual custody and the rif^ht of disposition. The shipment and the consignment by the vendors end- e<l at Bremen. ,\t that place new interests attached, in promtition of which thegoods Were sent forward. The only consign- ment by W. & B. waH to Becker at Brem- en. It has been held that the delivery to the vendee, which puts an end to the state of I)nssage, may be at a place where he means the goods to reninin until afresh destination is eomniiinicated to them by orders from himself. Valpv v. (iibsou, 4 C. B. S.'!7; Biggs v. Barry, 2 (urt. l'5!l; B«d- ton V. E. & Y. K. \V. Co.. L. B.. 1 t'. B. 4:5!). .'\lso Dixon V. Baldwen, 5 East, IV.'i; and this case is ai)proved In Covell v. Hitch- cock, 2:! Wend. Oil. In the case before us it i3 plain that they had reached the place for which thev were intended, umler the direction given by the vendors, and had come under the actual control of the ven- dees. I)ix(m V. Baldwen, supra, is com- mented upon in Harris v. Pratt, 17 N. Y. 21'.), anil distinguished from the rule thought applicalile to the facts of that case. There the suspense in trnnsiiorta- tlon was temporary, and to be resumed at a future time in the direction already given by the vendors. But in the case before us not only is the actu.il fact like that in Dixon v. Bald wen. but lithe de- tention at Bremen was originally Inteniled only to give the vendues an opportunity to determine by which of several routes or at wl.at time, as in Harris v. Pratt, the goods should goon, we have the ad- ditional vital circumstances beforeadvert- ed to of a complete possession and con- trol by the vendi-es and its transfer to a third party, who also took the actual possession anil control of the :rooils. and lias since retained them. Neither Harris V. Pratt nor any of the other cases cited by the apiiellani no to the extent of up- holding the vendor's lien In such a case. • Second. The trau.sactiou between (Sold- 44 BECKER 0. HALLGAETEN. Htoin niid tlie vendees was effectual to pass Ihu property to him and so deprive the vendors of the right of Btoppano if it otli- erwise existed. That right may always lie defeated by indorsing and delivering a bill of lading of the goods to a bona fide inilorseo for a valnable consideration, without notice of the facts on which the right of stoppage would otlierwi.se exist. This was hold in Lick barrow v. Mason, 2 T. U. (!o, and has since been deemed estab- lished. 11 iloes not impair theforce of this poisition that the money was in fact ad- vanced liefore the delivery of the bill of lad- ing. The goods were in the possession of (ioUlstein when he paid over the money. Tlie bill of lading nas promised and was part of tlie consideration on which the money was paid, but more than all he had the riglit, under theauthority given to him by B. & S., to take the bill of lading in anv form, and it was made out for his benefit. City Bk. v. H. Co., 44 N. Y. l;J6. Nor is it material, unless made so by the (ierman law (infra), thiit the bill of lad- ing was not indorsed. It was not neces- sarj' that it should be. Hallgarten & ('o. were Goldstein's agents, subject to his control, and in making the bill of lading in their names as consignees all waseffect- ed which the indorsement of a bill taken in the name of 1!. vt S. would have accora- |)lished. The cases cited bv the respond- ent (Meyerstein v. Barber, L. R., 2 C. P. 45; Short V. Simpson, 1 id. 255), show that a bill HO indorsed has the same effect, even if the ship containing the goods was at sea, as delivery of the goods themselves. Here there was a delivery of the goods to Goldstein, and the bill of lading followed the possession. Third. The German law, as set out in evidence, has no application to the ease in baud. It applies when the bill of lad- ing is taken in the name of the vendee or of some person through whom the party claiming its benefit must make title. Tlu' observations already made show that in our opinion this is not the plaintiff's po- sition. Nor are the defendants estopped from disputing the plaintiff's title. There is no finding of any fact upon which such doctrine can i-est; no change of position by the plaintiff: a promise at most by the defendants without consideration, in vio- lation of duty to their principals and in fraud of their rights. If it forms the foundation of any action, it cannot be one the effect of wliich is to deprive a third party of his property, or suliject the defend ant to a second action by the real owner of the goods. The right of stoppage, when it exists, depends upon eriuity, and that of the defendants, by virtue of their representative character, is superior in any view to the plaintiff's. If liable at all, it would be upon their assumpsit to keep the goods on hisaccount. But what dam- ages could the plaintiff show from the breach of an agreement to keep for him, or subject to his order, goods to which another person was entitled, and whose claim was as to liim exclusive? Some other grounds are urged by the respondent on which he claims the judg- ment may be sustained. They have been examined, and are deemed untenable. The reasons for this conclusion need not be stated, since however decided, they would be insufficient to overcome the appellants' objections which have been already de- clared well taksn. The judgment appealed from should l)e reversed and a new trial granted, with costs to abide the event. All concur except FOLGER, C. J., absent from argument. Judgment reversed. BEMENT V. SMITH. 47 BEMENT V. SMITH. (15 Wend. 493.) Supremo Court of New York. .Tuly Term, 1S36. Tills was an action of aHsumpsit, tried at tlie Seneca circuit in November, 183-1, before tlie Hon. Daniel MoHeiej', one of the circuit judges. In March, 1K34, the defendant employed the piuintiff, a carriuKo maker, to build a Kulky for hitn, to be worth ten dollarn more than a sulky made for a Mr. Put- nam ; for which he promiHod to pay ?S0, part in a note aKaiuHt one .loseph Bemeiit, a brother of the plaintiff, for the Hum of ten or eleven dollarH, and the residue in his own note, at hI.k or twelve montim, or in the notes of other persons as good as hi.s own. In .lune, 1834, the plaintiff tojk the sulky to the residence of tlie defend- ant, and told him that he delivered it to him, and demanded payment, in pursu- ance of tlie terms of the contract. The defendant denied having agreed to receive the carriage. Wliereupon the plnintiff told him he would leave it with a Mr. De Wolf, residing in the neighborhood : which he accordingly did, and in July, 1834, com- menced this suit. It was proved tliat the value of tlie sulky was $80, and that it was worth $10 more than Putnam's. The declaration contained threesperialcouiitH, Hubstantiaily alike, setting forth the con- tract, alleging performance on the part of the plaintiff, tiy a delivery of the sulky, and stating a refusal to perform, on the part of the defendant. The declaration also contained a general count, for work and lalior, and goods sold. The judge, after denying a motion for a nonsuit, made on the aHsunied grounds <jf variance between the declaration and proof, charged the jury that the tender of the carriage was substantially a fullilnient of the contract on the part of the plaintiff, and that ho was entitled to sustain his action for the price agreed upon between the parties. The defendant's counsel re- quested the judge to charge the jury that the measure of dnraages was not the value of the sulky, but only the expense of taking it to the residence of the defend- ant, delay, loss of sale, &c. The judge declined so to charge, and reiterated the instruction that the value of the article was the measure of damages. The jury found for the plaintiff, with !?.83.2G dam- ages. The defendant moved for a new trial. The cause was submitted on writ- ten arguments. O. H. Piatt and .1. F. Stevens, for plain- tiff. W. K. Smith, for defendant. By the court, SAVAGI^, Ch. ,1. The de- fendant presents no defcmce upon the mer- its. His defence is entirely ticlinical, and raises two questions: 1. Whetlier the tender of the sulky was equivalent to a ilelivery, and sustained the averment in the declaration that tlio sulky was deliver- ed ; and 2. Whether the rule of damages should be the value of the sulky, <ir the particular damages to be proveil, result- ing from the breach of the contract. There is no question raised here upon the [statute of frauds. The contract is there- fore admitted to be a valid one; and relat- ing to something not In 8(dido at the time j of the contract, tliere Is no question of its validity. The [ilaintiff agreed to make and deliver tile article in question at n partk-ulartime and place, and the defendant agreed to pay for It. on ilelivery, in a particular manner. The plaintiff made, and. as far as was ill liis power, delivered the sulky. He offered it to tlie defendant at the place and within the time agreed nixm. It was not the plaintiff's fault that the delivery was not complete, that was the fault of the defendant. There are many cases In whicli an offer to perform an executory contract is tantamount to a performance. This, I apprehend, is one of them. The case of Towers v. Osborne, 1 Strange, 506. was like this. The question here present- ed was not raised, but the defendant there sought to screen himself under the statute of frauds. The defendant bespoke a chariot, and when it was made, refused to take it; so far the cases are parallel. In an action for the value, it was objected that the contract was not binding, there being no note in writing, nor earnest, nor delivery. The objection was overruled. In that case the action was brought for the value, not for damages for the breach of contract. This case is like It In that particular; this action is brought tor the value, that is, for the price agreed on: and It Is shown tliat the sulky was of that value. The case of C'rookshank v. Bur- rell. 18 .lohns. R. 58, was an action in which the plaintiff declared against the defendant on a contract whereliy the plaintiff was to make the woodw!>rk of a wagon, for whicli the defendant was to pay in laiiitis. Tliedefemlant was to come for the wagon. The question was u|)oii the statute of frauds. Spencer, I'h. J., states what had been held in some of the English cases, Clayton v. Andrews. 4 Burr. -'1(11. and Cooper v. Elston, 7 T. H. 14, that a distinction existed bet ween a con- tract to sell goods then in e.iistence. and an agreement for a tiling not vet made. The latter is not a contract for the sale and purchase of goods, but a contract for work and labor merely. The case of C'rookshank v. Burrell is much like this, with this exception: there the purchaser was to send for the wagon : here the manufacturer was to take it to him. There it was held that the manufacturer was entitled to recover, on proving iliat he had made the wagon according to the contract: here it is proved that the sulky was made, and taken to the place of de- livery according to contract. Tliemeiits of the two cases are the same. It seems to be conceded that an aveniient of a ten- der of the sulky by tlio plaintiff, and a re- fusal of the defendant to receive It, would have been sulllcient; and if so.it seems rather twhnlcal to turn the plaintiff out of court, when he has proved all that would have been required of hini to sus- tain Ills action. The plaintiff, in his spe- cial counts, does not declare for the sale and delivery, but upon the special con- tract; and herein this case is distinguish- able from several cases cited on the part of 48 BEMENT V. SMITH. the ilefeiulnnt, and shows that It was not nuceasary to have declared for goods bar- gained and sold. It seems to nie, there- fore, that the judge was right in refusing the nonsuit, and in holding that tlie evi- dence showed sulistantially a fulfilment of the contract. The variance as to the amount of Joseph Bement's note, I think, is immaterial; but if otherwise, it may be amended. The alleged variance as to the price of the sulky is not sustained by the facts of the case. The only remaining question, therefore, is as to damages which the plaintiff was entitled to recover. It is true that the plaintiff does not recover directly as for goods sold; hut in the case of Towers v. Osborne the plaintiff recovered the value of the chariot, and in Crookshank v. Bur- rell the recovery was for the value of the wagon. The amount of damages which ought to be recovered was not the ques- tion before the court in either of those cases; but if the value of the article was not the true measure, we may infer that the point would have been raised. Upon principle, I may ask, what should be the ruleV A mechanic makes an article to order, and the customer refuses to receive it: is it not right and just that the me- chanic should be paid the price agreed up- on, and the customer left to dispose of the article as he may ? A contrary rule might be found a great embarrassment to trade. The mechanic or merchant, upon a valid contract of sale, may, after refusal to re- ceive, sell the article to another, and sue for the difference between the contract price and the actual sale. Sands and Crump V. Tavlor and Lovett, 5 Johns. K. 3i).5, 410, 411; Langfort v. Tiler, 1 Salkeld, 113,6 Modern, 1()2. In the first of these cases, the plaintiffs sold the defendants a cargo of wheat. The defendants received part, but refused to receive the remain- der. The plaintiffs tendered the remainder, and gave n<jtice that unless it was re- ceived and paid for, it would be eold at auction, and the defendants held respon- sinle for any deficiency In the amount of sales. It was held, upon this part of the case, that the subsequent sale of the resi- due was not a waiver of the contract, the vendor being at liberty to dispose of it bona fide, in consequence of the refusal of the purchaser to accept the wheat. Thiscase shows that where there has been a valid contract of sale, the vendor is en- titled to tlie full price, whether the vendee receive the goods or not. I cannot see why the same principle Is not applicable in this case. Here was a valid contract to make and deliver the sulky. The plain- tiff performed the contract on his part. Thedefendant refused to receive the sulky. The plaintiff might, upon notice, have sold the sulky at auction, and if it sold for less than f SO, the defendant must have paid the balance. The reason given bv Kent, t'h. 3.,h Johns. R. 411, is that it would be unreasonable to oblige him to let the article perish on his hands, and run the risk of the insolvency of the buy- er. But If after tender or notice, which- ever may be necessary, the vendor chooses to run that risk and permit the article to perish, or, as in this case, if he deposit it with a third person for the use of the vendee, he certainly must have a right to do so, and prosecute for the whole price. Suppose a tailor makes a garment, or a shoemaker a pair of shoes, to order, and perform.^ his part of the contract, ie he not entitled to the price of the article fur- nished? I think he is, and that the plain- tiff in this case was entitled to his verdict. The question upon the action being pre- maturely brought before the expiration of the credit which was to have been giv- en, cannot properly arise in this case, as the plaintiff recovers upon the special con- tract, and not upon a count for goods sold and delivered. New trial denied. BENEDICT V. S('II A KTILE. 51 BENEDICT V. SOHAKTTLE. (12 Ohio St. 515.) Snpreme Court of Ohio. Dec. Term, 1801. Error to the suporior court of Cincin- nati Stallo & M'Cook, for |)laiiitiff In error. Keblei' & Force, for defendant in error. GHOLSON, J. According to the deci- sion in House v. Elliott, (i Ohio St. Hep. 497, which applicB in ihiH cnse, we can not Inquire aw to the weight of evidence on wliiuli any linding of fact was made in the court below. The tlndinR must heauainst law. Assuming every fact which the evi- dence may tend to prove, In support of the finding and judgim'ut of the court below, <lo those facts fail to eHtaljIish the right of the plaintiff in the action to recover? We need not. therefore, say whether there wai Hutticient evidence toshowthat .Johti- 8on, to whom the goods were sold, was insolvent. There was, we think, evidence tending to show the insolvency of the ven- dee at the time of the sale of the goods, and that such insolvency was not known to the vendor. The question then arises, whether the vendor, on afterwani hear- ing of the insolvency, may exercise the right of stoppage In transitu, or, whether, as claimed by counsel for the plaintiff in error, the insolvency, to authorize a stop- page in transitM, must be evidenced by some positive overt act, the existence of which is not inferable from any testimony In the 1)111 of exceptions, and that such overt act must occur after the sale, and before the delivery of the goods? It is the rule of the mercantile law, that when) goods have been consigned, and are on transit to the vendee, the consignor can not vary the consignment, except In the case of Insolvency. It has been said, that "the mischief and inconvenience that would ensue on a contrary supposition, are extreme. The goods might be put on board, and might lie at the risk of tliecon- Bignee for two or three months; and if the conMignor could come and resume them at pleasure, it would place the consignee in a situation of great disad rantnge. that he sliould be exposed to the risk during such a length o( time, for an object whlcli miglit be eventually defeated, at any mo- ment, by tlie capricious or interesteil change of intention In the breast of the consignor. It would be to expose the con- signeo altogether to the mercy of the seller." The Constantia, 6 C. Koh. :i".'l- ;i27. In that case, the vendor had stopped and diverte<l the ilelivery of goods, and It was said, if the vendee " ha(l been an In- solvent person, it would have amounted to a complete and effective revendication of the goods. l?ut if the person to whom they are consigned is not Insolvent; if from misinformation or excess of caution, the vendor has exercised this privilege pre- maturely, he has assumed n riglit that did not belong to him, and the consignee will be entitled to the delivery of the goods, with an indemnilication for the exjienses that have been incurred. * * * It Is not an unlimited power that is vested In the consignor, to vary the consignment at his pleasure in all coses whatever. It is n privilege allowed to the seller, for the particular purpose of protecting him from the Insolvency of the consignee. Certainly It is not necessary that the person should be actually Insolvent at the time. If thn insolvency happen before the arrival, It would be sullicient to justify what has been done, and to entitle the flhl|)per to tli(! benefit of his own provisional caution. I5ut If the person is not insolvent, the ground is not laid on which alone such a privilege is founded." C. Hob. :)lMi. In the case of Wllmshurst v. Kowker, '2 M. & (i. 7!IJ, S12, It was said by Tinclnl, (". J : "The oi-dinary right of counterniamling the actu'il delivery of gooils shipped to a consignee, is llmiteil to the cases in which the bankruptcy or insolvency of the con- signee has taken place. 'I'he law as to this point is very clearly laid down by Lord Stowcll, in the case of The Constantia." This statement of the doctrine of stop- page in transitu, which Is supported by sucli high authorities, does not sustain the proposition, that a vendee. Insolvent at tlie time of the sale of goods, and still remaining insolvent, can object to their stoppage In transitu. He could only com- plain when his insolvency was known to thevendorat the timeof sale, and the con- tract was made in view of such, his condi- tion. The object In allowing the privilege to the vendor being his protf-ction against the insolvency of the vendee, such priv- ilege, unless waived by the vendor, ought properly to exten<l to cases of insolvency, whether existing at the time of sale, or occurring at any time belore theactual de- livery of the goods. A vendee who dis- putes the right of stoppage In transitu, must be prepareil to aver, as in the case of Wilnishnrst v. Howker, '.' M. & (J. 7'.t2, which was an action by a veixlee against a vendor for Improperly stopping the de- livery of goods, that he was neither bank- rupt nor insolvent. Independently of any circumstances to the contrary, the vendee might have the benelit of a presumption of ability to comply with his contract, and the burden of showing insolvency might be east on the vendor. It may be that this wouhl be sutJiclently shown by the proof of an overt act of insolvency, such us a stoppage of payment, tnough,iu fact, an actual insolvency, in the sense of not having means ade(iuate to the payment of debts, might not exist If the \enrlee, be- fore the stoppag-» in transitu, had, by his conduct In business, nffordecl the ordinary apparent evidences of insolvency, he ought not to complain of the preciutlonary measure taken by the vendor, though It should ttirn out that he was ultimately able to |>ay. Itnt. though no such evi- dences of insolvency should pre le the Htoppago in transitu, still, if the fact of insolvency existed the vendee ought not tocom()laln. This, at least, is clearly to be Inferred from the language of the au- : thority which has been cited, anil appears entiiely reason.'ible anil proper. Fair dealing will be better insured liy leaving to the vendor his privilege of stoppage In transitu, in all cases of Insolvency, wheth- er evidenced by the ordinary accompnny- i ing acts, or shown actually to e.vlst. The .'i2 BENEDICT 0. SCHAETTLE. riglits of a fair vendee will be Riifflciently protected by g'w'ing liim an indemnity when the lijil't of stoppage in transitu is exercised ui)on ruiuor or suspicion with- out any fDUndation in fact, and by depriv- inj? the vendor, in nil cases, of any chance of speculating upon the goods, by requir- ing them to 1)6 delivered or accounted for to tlie vendee, or his assignee, on the pay- ment or tender of the agreed price. Tliese views are sustained by the origin and nature of tlie doctrine of stoppage in transitu. It appears to have been derived from, or to be analogous to, the revendi- cation of the civil law. This has been thus defined : " Hevendication is the right of an unpaid vendor, upon the insolvency of the vendee, to reclaim, in specie, such part of the goods as remains in the hands of the vendee entire, and without having changed its quality." (In re Westzyn- thius, 2 Nev. & Man. 6,")0, note.) In Hell's Commentaries on the Laws of Scotland, cited in the same case, it is said: "The privilt-ge to stop goods in transitu, is a qualified extension in equity of that rule of mutual contract, by which, either party may withhold performance, on the other becoming unable to perform his part." It is stated, as a rule introduced into the common law, in modern times, founded on prlnci|)lesofe(iuitv, and borrowed from the foreign or continental law, that in case of the vendee's bankruptcy or insolvency, the vendor might stop and take bacli the goods in transitu, or before tlieycome into the hands of the vendee. Bell's Comm. bk. 2, pt. 2, c. 1, art. 3, cited, 2 Nev. & Man. 651, (io2, note; Mackreth v. Symmons, 15 Ves. 34.^. It is "nothing more than an extensinn of tlie right of lien, which, by the common law, the vendor has upon the goods for the price, originally allowed in equity, and subsequentl.v adopted as a rule of law." Rowlev v. liigelow, 12 I'ick. 307, 313; Atkins v. Colby, 20 N. H. 1,J4; Croat V. Hill, 4 Cray, 301. "A kind of equitable lien adopted b.v the law for the pur|)oses of substantial justice." Hodgson v. Loy, 7 T. R. 445. In the ease of McEwan v. Smith. 2 Ho. L. Cas. 30i), 32S, it was said, by Lord Campbell, that " the doctrine of stoppage in transitu is a most just and equitable one, and I would by no meaus strive to limit its operation." If the true principle of the right of stop- page in transitu be found in that certainly just rule of mutual contract, by which either party may withhold performance, on the other becoming unable to perform, on his part; if the foundation of the rule be a just lien on the goods for the price, until delivered, an equitat)le lien adopted for the purposes of substantial justice, then, it is the ability to perform the con- tract — to pay the price — wliich is the ma- terial consideration. If there be a want of ability, it can make no difference in justice or good sense, whether it was pro- duced by causes, or shown by acts, at a period before or after the contract of sale. Substantially, to tlie vendor who is about to complete delivery, and abandon or lose his proprietary lien, tlie question is, can the vendee perform the contract on his part; has he, from insolvency, become un- able to pay the price? If such be his con- dition, and the vendor has not precluded himself by some act of waiver, the general principles on the subject and justice require that he should be allowed to exeicise the right of stoppage in transitu. To sustain the contrary view and limit the riglit of stoppage in transitu, the case of Rogers v. Thomas, 20 Conn. 53, is relied on, in which it was decided, that to au- thorise the exercise of the right of stop- page in transitu, there must besomeovert act of insolvency, and tliat it must inter- vene bet ween the sale and tlie exercise of the right. The decision in the caseof Rog- ers v. Thomas, was not made on the au- thority of previous cases, but, in the ab- sence of such cases, upon the ground that the general definitions or statements of the doctrine of stoppage in transitu re- quired such a limit to tlie exercise of the right; and particular reference is made to the general statement of the doctrine in Smith's Mercantile Law,.547(Am. Ed. 077). The very first authority cited by .Mr. S'uith to sustain his statement of the doc- trine, is the case of VVilmshurst v. Bowker, and he quotes the remarks of Tindal, <'. J., as to the clearness with which the law on the point had been laid down by Lord Stowell in thecase of The Constantia. In- terpreting tlie statement of the doctrine, by Mr. Smith, in the light of the authori- ties he cites, and it is manifest that he never intended any such limit to the exer- cise of tlie right of stoppage in transitu. Nor do we think the terms in which the doctrine of stoppage in transitu is stated in many of the authorities, would justify the limit supposed to exist. It was said by Lord Kenvon, in Ellis v. Hunt, 3 T. R. 407, that "the doctrine of stopping goods in transitu is bottomed on the case of Snee v. Prescot, 1 Atk. 245, where Lord Hardwlcke established a very- wise rule, that the vendor might resume the possession of goods, consigned to the vendee, before delivery, in caseof thebank- riiptcy of the vendee." The doctrine is thus stated by Lord Hardwlcke. After referring to the rule, that an action against a carrier for loss of goods should be brought in the name of the consignee, he proceeds: "But suppose such goods are actually delivered to a carrier, to he delivered to A., and whiie the carrier is upon the road, and before actual delivery to A., by the carrier, the consignor hears A., his consignee, is likel.v to become bankrupt, or is actually one, and countermands the delivery, and gets them back in his own possession again, I am of opinion that no action of trover would lie for the assignees of A., because the goods, while they were in transitu, miglit be so countermanded." Snee v. Prescot, 1 Atk. 24S. In a case before cited it is said by Lord Campbell : " What isstoppagein transitu? It is this, that where a vendor of goods has to send them to a vendee, and has, for that purpose, parted from them to a car- rier, he may, upon hearing of the insol- vency of the vendee, while they remain in the hands of the carrier, and, before deliv- ery to the purchaser, stop their delivery." McEwan v. Smith, 2 Ho. L. Case, 32H. In the caseof Donath v. Broorahead, 7 BENEDICT V. .SCIIAETTLE. .3 Itarr, :501, 30."!, it in nail] : "Tlie riulit of a vendor, on the diHcovory of the liank- rtii)tfy or iiiHolvenoy of the party tu whom lie liaH wold hockIh on iTcdir. to I'c- tnl<e tiieni hefore actual or coniiilete de- livery, in tlie well-Hettled doctrine of both courtH of law and equity." lutliecaHeof Hays v. .Mouille, 14 Pa. St. 48, the judt^e, in hiw charue to the jury (and liiH viewH were exprcsHly adopted hy the court of error,) after stating that tlie innolvency of the vendee was the Kronnd- work of the plaintiff's claim, thu.s put the (juepitlon — Was the vendee "inMolvent when these noods were re|)levied li.v the plaintiffs? It is not necessary, to prove inscdvency, that he should have been de- clared a bankrupt or insolvent l>y a judi- cial tribunal, nor that he shoui<l have made an assignment of his property. If the fact exist, no matter how proved, if BUfficiently and satisfactcjrily proved, the la w re(iuires no more. " In that case the evidence tended to show tliat the vendee was insolvent when the goods were bought, and the ju:lge further said : "You have the testimony of I'.aker that Khodes was indebted some $tl(l,(l()0. and that his assets were but $!'(;, Odd, aM<l that his cred- itors were watching for these goods on the lino of transportation, and actually attached them before they reached Ohio, for det)ts which he was not able to pay." In the case of Stevens v. Wheeler, 27 Barb. li.")S, GUa, there is this statement of the rules on the subject of stoppage in transitu: "tiiat the vendor has a right to stop goods sold by him, when he dis- covers the vendee to be Insolvent, at any time while the goods are in transitu. That tlie transitus continues until the goods reach the place of destination, un- less sooner terminatccl l)y the act of the vendee. That a delivery to the vendee oJ the goods, or a part of them, or a deliver.v to his agent or to n liona tide purchaser from liim, terminates the right of the ven- dor of the goiids to stop them." Not only do the general statements of the doctrine fall short of sustaining the decision in Itogers v. Thomas, l)ut, in sev- eral cases, where the question was in- volved, it was differently decided. Such, we think, was the case of Hays v. .Mouille, 14 Pa. St. 4S, before noticed. There it is evident, the insolvency existed at tlie time of thesaleof the goods, and it was proved, not by any overt act, but by a compari- son of the amount of liabilities with Hie amount of assets. The decision in the case of Buckley v. Funiiss. l."i Wend. 1M7, appears to lie di- rectly opposed to that in Rogers v. Thom- as. In Huckley v. Kurnis-i. the point w;is made that the vendor, at the time of the sale, knew the circumstances of the ven- dee, who was then insolvent. It was sui<l liy nronson,,!.: "The sale was no doubt absolute, whether the pl.iintiff knew that Titus was insolvent or not; and so are most sales, where the vendor afterward exercises the right of stoppage In transitu. The right of the vendor to resume possession of goods sold on credit, In case of the insolvenc.v of the consignee, before they come to his hands, does not depend upon any condition, or otiicr pe- culiarity in the contract of sale, but pro- reeils on the ground of an equitable lien. Still, it may be. and prcdialily is true, that ii tim iilaintirr Hold the iron, with a full knowledgi- of tlie situation of the vendee, he could not afterward exercise the right of stoppage in transitu; but the argu- ment is not borne out by the facts." Tlie judge then proceeds to show liy a reference to III" facts, that although the vendee was insolvent at the time of the sale, it was not known to the vendor, who, therefore, had the right to retake the goods. This case was cited by eounsel, in Kogers v. Thomas, but was not noticed In the opin- ion of the court. There are other cases In wliich the de- cision did not turn on the question of In- solvency, the contest in thin class of cases having generally been as to the termina- tion of the transit; but where it appeara either directly or l\v strong inference, that the insolvency existed at the time of sale. Such n case is Higgs v. Hurry, 2 CurtlH, 2.59, in which it clearly appears that the insolvency existed at the time of sale; but the case was given to the jury on the ques- tion, simply, whether the transit hud end- ed, without any reference to the time of in- solvency. In the cases of Stubbs v. Lund, 7 Mass. 4.j3, and Ilsley v. Stubbs, !) Mass. G.'). what was regarded by the court as the sale of the goods, their shipment on order, was after the insolvency of the vendee, and yet the exercise of the right of stoppage in transitu was sustained. The point might have been made, and if sustiiined would have clianged the deci- sion in the case of Litt v. Cowle.v, I Holt. .'j:!S, :i Eng. Com. L., 13s, as is shown by Waite, J., ill his dissenting opinion in the case of Hogers V.Thomas. It may not be conclusive against the correctness of a legal iiroposition, that it was not pre- sented, wlien from the facts involved it might have been. But when this has oc- curred in a number of cases, where it is to be supposed that both counsel and court are well informed as to tlie rules of law. it is a reasonalile Inference that the point was not made because it was deemed un- teinible. We have not been able to And, and our attention has not been called liy counsel to an.v decision which sustains the restric- ti</n on the right of stoppage in transitu laid down in Kogers v. Thomas; but It has been adopted as a rule of law in sev- eral elementnr.v works. It appears to lie njiproved in 1 Parsons on Contracts, 47ti, 47S, but that approbation is omitted in the work of the same author on Mercan- tile Law, and withdrawn, and a grave doubt substituted, in liis more recent work on .Maritime Law. 1 Vol. .11!'.). We are satislied tliat the restriction can not lie maintained either on principle or autliority. In accordance with tlio views which have iieen expressi-d, the judgment of the superior court of ('inciniiati will be af- lirmed. Judgmeat ntllrmed. SUTLIFF. C. .I.,and PECK, niHNKER- HOFF, and SCOTT. JJ., concurred. BENNETT v. COOK. BENNETT v. COOK (6 S. E. Rep. 28, 28 S. 0. 353.) Supreme Court of South CaroUaa. April 3, 18S8. Appeal from coinraon pleas circuit court of Hampton county; HiulHon, Ju<1«p. Action liy William Hennutf. adiniiiintrn- tor, aKaiuHt Joe Cook, to obtain poHscH- elon or certain property claimed by de- fendant BH a uift from the inteHtate in his lifetime. JuilKment waw rendered in fa- vor of defendant, and plaintiff appeals. W. S. TillinKliaHt and ,lameH W. Moore, for appellant. Searson & Warren, for re- Rpondent. MctiOWAN, J. Jamen HuKhey, hecom- InK olfJ and infirm, and tindinj? himself alone, and without nny one of IiIh Inin)e- diate family to take care of liitii, Hold his little tract of land, and went t() live with the defendant, who had married IiIh adopted daughter, to whom he was at- tached. Upon the occasion of his removal he seems to liavo carried with him a horse, about (iO t)usliels of corn, a cun, a few ijleces of ol<l furniture, and some notes, amounting in value, as nlleued, to about $800. He was received and treated kindly by the defendant and his wife. They nursed him In his last illness, em- ployed an<l i)ai(l for what medical atten- tion he wanted; and in about six miinths thereafter he died intestate, leavinK his property in their possession. Soon after the death of tlie intestate, the i)laintiff, who had married a daughter of the de- ceased, applied for letters of administra- tion upon the estate, and, before the time had ela[)sed for obtaining full letters, he received some authority in the nature of letters ad colligendum bona to >;ather u]) the goods of the deceased, and sued the defendant for the aforesaid [)roperty. The defendant answered, claiming title to the property which remained l)y parol gift from the intestate In his lifetime, the Inducing cause or consiileration being the love and affection to his wife, the adoi)ted daughter of the deceased, and the services rendered the intestate in his old age and helpless condition liy thedefendantand his wife. It was referred to a referee to take the testimony, much of which consisted of the "declarations" of the intestate that he "had given," or "inten<led to give,'" the i)roperty to Uook and wife, and was taken subject to exception. It is all printed In the brief. The cause came on to be heard by Judge lluilson, who ruled that all the testimony of both the jilain- tlff and defenilant touching transactions andcommunications of the witnesses with the doceased must be stricken out, under section 400 of the Code; anil that all the testimony of other witnesses in behalf of the plaintiff as to declarations of the de- ceased in support of his title, and against the gift, must also be stricken out. The judge in his decree says, "after eliminat- ing from the case all this iiiccimpetent and irrelevant testimony, and aftci' consider- ing the other testimony. 1 lin<l that the great weight of the evidence is in favor of the title of the defendant and wife, and Is agaitist the claim of the plaintiff. • * • 1 find as matter of fact that the Intestate at the time of his death did not own the property in dispute, having giv- en the same to the defendant and his wife, and liencc the plaintiff cannot recover," — and dismissed the complaint. From this decree the plaintiff appeals upon excep- tiiins: "(1) ISecause It is respectfully sult- mitted that his honor erred in ruling that all the testimony of witnesses In liehaK of the plaintiff as to declarations of deceased in support of his title, and against the gift, must be stricken out, testiniony of like nature In support of the gift having been previously introduced liy defendant. (L'l Because his honor erred in llnding that the great weight of the evidence is in favor of the title of the defendant and wife, and is against the claim of the I)laintiff. (3) IJecause his honor erred In finding that this case is similar, in the character of the pjroof of the gilt, u> the case of Blake v. .Jones. Bailwy, i;(|. 142, it being respectfully submitted that there is no ijarallel between the two cases. (4) Because his honor erred in finding that the delivery was made as far as is usual under like circumstances, and that the de- fendant an<l wife had possession of the property sufTicient to amount to a deliv- ery. (5) Because his honor erred In find- ing that the iilnlntiff gave the borsd to defendant and wife for immediate use as their horse. (G) Because his honor erred in finding that the plalutiff had uo right to any of the property traced to defend- ant's possession, and named In the com- plaint. (7) Because his honor erred in finding that defendant had only onedollar and fifty cents in his possession of the money of the Intestate, and that he had of fered to turn over the same to plaintiff. (S) Because his honor erred in deciding that the intestate did not at the lime of his death own the property In dispute: that he had given the same to defenilant and wife, and adjudging that the complaint should bedismissed. " There are no rights of creditors in the case. The intestate seems to have been punctual in paying his debts, and the only c<mtest is l)etweeu the heirs at law and the delcndant. The general rule of evidence certainly is that declarationsareadmisslhle against the interest of the party, but not in his favor. "There Is, perhaps, no principle better settled than that when one has entered into a contract, made a gift, or done any other act l)y which he is bound, he cannot by any subseciuent act or dec- laration of his own avoid or discharge himself from it. if, then, the gift by tliu testatrix to the defendniifs wife was proved, her suliser|uent declarations wen>, upon general principles. inadmissUile, for the obvious reason that they were Irrele- vant. They were therefore properly le- jected. Cases do sometimes arise in wlHch proof of the gift is made up of repeatej declarations of the donor. running through several years ; where such decla- rations are brought In, by the party claiming under it, in support of doutttful evidence of the gift. In these and such like cases, sue!; declarations are admis- 56 BENNETT p. COOK. Hil)lf in I'oply to such evidence. The case of Sims V. Saunders, Harp. 374, is au illus- tration of this." M'Kane v. Bonner, 1 Bailey, IIG. It seems that in respect to alleKod parol sifts proof of declarations of the donor is only allowable in doubtful cases upon the question of i^ift or no gift, and the evidence on both sides consists of declarations of the allefred donor. The doctrine is clearly exceptional in charac- ter, and, as it trenches closely on forbid- den ground, it should not beaIlo«'ed to go l)eyond the necessity of the case, and then be received with great caution. "Where there has been plenary proof of the gift, subsequent declaration of the donor that a gift was not intended is inadmissible." M'Kane v. Bonner, supra. It seems that the circuit judge was entirely satisfied, "from the great weight of the evidence," tliat "plenary proof of the gift" had been made. And according to the well-estab- lished rule of this court that finding of fact will not be disturbed unless it is against the weight of the evidence which we have read and considered, we cannot say there was erroi of law in excluding the subse- quent declarations of the intestate tend- ing to controvert the gift previously made. But it is strongly urged upon us that there was no sufficient proof of gift per- fected by a delivery; that the whole evi- dence taken together showed, at the most, an intention to give at the death of the donor, which was testamentary in character and void, as being in conflict with the law as to wills. The question whether there was a delivery was also a question of fact which the circuit judge has decided. It is said, however, that his view of what, under such circumstances, would constitute a legal delivery was er- ror of law. There is no doubt that a parol gift of chattels cannot be made to take effect in futuro. To constitute a legal gift there must be an actual or con- structive delivery of possession so as to confer the right of enjoyment in prsesenti. The rule seems very plain, but there are so many kinds of personal property, and circumstances are so various, there is often no little difficulty in applying it properly. It has been settled that it is not necessary that there should be in all cases an actual manual delivery. The principle is stated thus: "Property in a chattel cannot be transferred by a parol gift without delivery ; but by delivery is not meant an actual manual delivery in all cases, but any circumstances amounting to a clear demonstration of the intention of the one to transfer, and of the other to accept, and which puts it info his power, I or gives him authority to take possession, isall tluit is necessary, and is afact that is left to the jury." Keid v.Colcock.l Nott& McC. .592; Banks v. Hattou, Id. 221; Blake V. .Tones, Bailey, Kq. 141. The latter case, as remarked by the circuit judge, "is very similar in the character of the proof" to this. In that case it was held that, " when a donor has repeatedly declared his inten- tion to give, his subsequent admissions that 'he had given,' are sufficient evidence of an actual delivery to complete the title of the donee vrhen it does not appear that the declarations were loose and playful, and particularly when the donor was un- der a moral obligation to make the gift. " Indeed, upon the i>oint of delivery, this case is stronger than that of Blake v. Jones, for there the slaves recovered by a daughter from the administrator of her father were never in the actual possession of the donee. The f.ither had said, "When you get a plantation, I will send them to you, and in the mean time I might as well pay you hire as any one else. " While liere the property, at the time of the death of the alleged donor, was already in the possession of the person claiming as donee. It may be said that this arose from the accidental circumstance that the intestate at the time of his death was liv- ing with the defendant; but it seems to us it is a circumstance entitled to some consideration, at least, in this* that at the time of the alleged gift there was no occa sion to make a visible transfer of the pos- session, (the usual evidence of such a gift,) for the defendant was already in posses- sion in a general sense. We see no reason to except the "cream horse" from the other property. It ap- peared from the testimony of Weekly, Searson, Shaffer, and others, that the intes- tate, three or four weeks before his death, said: "I have moved to Joe Cook's for sometime. I don't intend to live by ray- self any more. All I've got I have carried to Joe Cook's, and there is where I expect to stay until 1 die. And this horse I have given to Joe Cook on condition that, when I want to ride, he is my horse, and when I have no use for the horse, it's Joe Cook's, and all that I have." "Where the gift of a slave was absolute in its terms, and accompanied with delivery of pos- session, held that the reservation of a right ' to borrow ' under certain circum- stances, or to receive 'something like hire' if the donor should stand in need, was a condition subsequent, and did not inval- idate the gift although made by parol," etc. M'Kane v. Bonner, supra. The judgment of this court is that the judgment of the circuit court be affirmed. BENTALL v. BUUX. BENTAIJ, pt al. v. BlIKN. (3 Barn. & C. 423.) King's Bench, Michaelmas Term. Nov. 9, 1824. AsHunipsit foFKooils barKalnud and sold and c;()<)dH sold and delivered by D.ver and the l(aiikru()tH before their bankruptcy. TIiIh waa an action brought to recover £ri 148., the price of a hogshead of Sicilian wine sold to the defendant by the bank- rupts, they being copartners with the other plaintiff, Dyer, who resided in Sicily. At the trial before Abbott, C. J., at the London sittings after last Trinit.v term. It appeared that the bankrupts had, on the 15th of February, 1(S22, sold, in the name of and on account of the linn, to the defendant a hogshead of Sicilian wine, then lying In the London docks, at the price ol £1.'! 14s., and at the same time a delivery order and invoice were made out and sent to the defendant, signed by the Hrni. But there was no contract in writ- ing. On the nth of .June the defendant, on being applieil to for payment, said that the former order had been lost, and that the wine had not been transferred to him in proper time, and he had consequently lost the sale of it; that he had not been allowed to taste it. It was proved that a delivery order Is given where the wine is intended to be speedily removed, and that I the party receiving It may get tlie goods mentioned in the or<|pr upon producing It at the London docks anil paying the charges, which are always deducted from the price. Upon this evidence the lord chief justice was of opinion that the ac- ceptance of the delivery order by the ven- dee was not ei|uivalent to an actual ac- ceptance of the goods within the meaning of the statute of frauds; and he directed a nonsuit to be entered, with liberty to the plaintiffs to move to enter a verdict lor them for the price of the wine. Barnawall now moved accordingly. PER CURIAM. There could not have been any actual acceptance of the wine by the vendee until the dock company accept- ed the order for delivery, and thercl)y as- sented to hold the wine as the agents of the vendee. They held it originally as the agents of the vendors, and as long as they continued so to hold it the property was unchanged. It has been said that the London Dock Company were bound by law, when required, to hold the goods on account of the vendee. That may be true, and they might render themselves liable to an action for refusing so to do; but If they did wrongfully refuse to transfer the goods to the vendee, it Is clear that there could not then be any actual acceptance of them by him until he actually took pos- session of them. Rule refused. BIANCHI V. NASH. 61 BIANCHI T. NASU. (1 Meos. & W. 545.) Exchequer of Pleas, Trinity Terra, 18.3C. Debt for Roods Bold and delivered. Pleu, nunquani indebitatus. At the trial, before tiie under-sheriff ot Middlesex, it appeared that the plaintiff wuh h dealer in musical snuff-boxes; that tliedefendant applied to him to let (or lend) him a mu- sical snuff-box, and the plaintiff agreed to do HO, on the understanding that the de- fendant was to have It and pay for It if It were daraajied; and the sum ot SAi lOs. was to be taken as its value. The defend- ant received the snuff-box on this under- HtandinK; it was damaRcd while In his possession; and the plaintiff, in conse- quence, refused to receive it back, and hroucht this action for the price. The under-sheriff left it to the jury to say whether the agreement was. that, in the evenl of the box being damaged, it was to bj a sale: an<l they found that that was the agreement, and gave a verdict for the plaintiff, damages £3 10s. F. V. Lee obtained a rule nisi for a new trial, on the groaud that this was a mere bailment, which ought to have been de- clared on specially, and that there wan no evidence to support the count for goods Hold and delivered. Chandless ahowel cauBe. F. V. Lee. contra. Lord ABINOKR, C. H. 1 think there la no (luestion at all on the general principle applicable to this case; when goods are sold on condition, and the condition in IxTformed, the sale bei-oines alisolute. And there Is as little duubt on the evi- dence, that this was a conditional sale, and that the condition was performed. The defendant agrees to pay the price of the box for it, in case be damages it. PARKE, B. There was clearly evidence for the jury that this was a contract for a conditional sale; and it was a very rea- sonable contract. Then there is no doubt that the value was recoverable under the count for goods sold and delivered. As soon as the condition is performed, It l8 an absolute sale. The other barona con- curred. Kule discharged. 1 ' See Studdy v. Sanders, 5 B. & C. 628. BILL V. BAMENT. C3 BILL V. BAMENT. (9 Mees. & W. 36.) Eicheqner of Pleas, Mirhaelmas Term. Nov. 11. 184L AsBiimpslt for goods sold and delivered, and on an account stated. Plea, non ns- HumpHlt. At the trial before Lord AbinKer, C. 1!., at the London BlttlnRS after Trinity term, the followine faetH appeared: — The defendant ordered of one Harvey, who was an agent of the plaintiff under a del credere conimlKHion, n quantity of goodw, inelnd- ing twenty dozen hair-hruHhea and twelve dozen clothes-brushes, to he paid for on delivery at a stipulated price, but nn niein- oranduin In writing of the bargain was made at the time. On receiving notice from Harvey that the brushes had arrived at his warehouse, the defendant on the 'J2d of March last went there, and directed a boy whom he saw there to alter the mark " No. 1 " upon one of the packages to " No. 12, " and to send the whole of the goods to the St. Catharine's Docks. The next day an Invoice was delivered to the defendant, charging the brushes respectively at the rate of Ss. and 12s. each. The defendant objected to this price, alleging that by the contract, as he had understood it, the above were to he the prices of the brushes per dozen, and refused to pay for them. On the 24th of March the plaintiff com- menced the present action for the price. On the 27th the defendant at Harvey's re- quest wrote in Harvey's ledger, at the bottom of the page which contained the statement of the articles ordered by the defendant, nnd which page was headed "Bill & Co.," the following words: "Re- ceived the above, John Bnment." The rest of the goods were sent to and received by the defendant. It was objected for the defendant that there was no evidence of any contract in writing, or of any accept- ance of the brushes, sufficient to satisfy the 17th section of the statute of frauds. The lord chief haron reserved the point, and the plaintiff had a verdict for the amount claimed, leave being reserved to the defendant to move to enter a nonsuit. Erie having obtained a rule nisi accord- ingly, Thesiger and Martin now shewed cause. Erie (with whom was Whateley), contra. Lord ARINCER, C. B. If the question at the trial had turned altogether upon the acceptance, I should then have formed the same opinion as I do now. I[i order to make it such an acceptance as to satis- fy the statute, it sliouid appear that there was a delivery. Here Harvey was the plaintiff's agent, nnd sold for ready money; nnd he was not bound to deliver the goods until payment of the i)rice. Now all that takes place Is a direction by the defendant to alter the mark on the goods, and to send them to the docks; but the question Is, whether this was done under such circumstances, and Harvey stood in such a situation, as that he was bound to send them to the docks. The acceptance, to he effectual under the statute, should be such as to devest the property In the goods out of the seller. Here the defendant probably niennt to accept iheni, and to make Harvey his agent for shipping them. But can it be said that he was his agent to deliver at all events? I think clearly not. He was at liberty to say that he would not deliver to or ship for the defendant until the goods were paid for There Is nothing to shew that he contracted to hold them as the defendant's agent, or by implicallon to make him Ills agent. Therefore, for want of a delivery, there was no sutlicient acceptance of these goods. The rule will be ahcolute, but not for a nonsuit, as It appears that some goods were received by the defendant, but for a new trial on pay- ment of costs by the plaintiff. PARKE, B. I concur In thinking that there was no evidence to goto the jury to satisfy the statute of frauds. With regard to the point which has t>een made by .\Ir. Martin, that a memorandum in writing after action brought is sutlicient. It is certainly quite a new point ; but 1 am clearly of opinion that it is untenable. There must, in order to sustain the action, be a goodcotitract in existence at the time of action brought; and to make it a good contract under the statute there must be one of the three requisites therein men- tioned. I think therefore that a written memorandum, or part payment after ac- tion brought, is not sufficient to satisfy the statute. Then, to take the case out of the 17th section, there must he both de- livery and acceptance; and the (juestlon Is, whether they have been proved In the present case. I think they have not. I agree that there was evidence for the jury of acceptance, or rather of Intended ac- ceptance. Thedirection toranrk thegoods was evidence to go to the jury quo animo the defendant took possession of them: so also the receipt was some evidence of an acceptance. But there must also be a de- livery ; and to constitute that the posses- sion* must have been parted with by the owner so as to deprive him of the right of lien. Harvey miglit have agreed to hold the goods as the warehouseman of the ile- feudant, so as to deprive himself of the right to refuse to deliver them without payment of the price; but of that there was no proof. There was no evidence of actual marking of the goods, or that the order to mark was assented toby Harvey. I am of opialon therefore that there was no sutlicient proof of acceptance tosntlsfy the statute, and that the case falls within the 17th section. UURNEi', B.,nud ROLFK, B.. concurred. Rule absolute accordingly. BIRD 0. MUNROE. 65 BIRD et al. v. MUNROE. (CG Mo. 237.) Supreme Judicial Court of Maine. May 20, 1877. A. S. Rice and O. G. Hall, for plaintiflH. A. P. Gould and J. E. Moore, for dt'Iend- unt. PETERS, J. On Mnrcfi 2, lS74.at Roek- Ijiiid, in tliis stati", the (lefciidiint con- inicted verlially vvilli the pluintiffH for the |iiirfliu8e of a quantity of ice, to lie delivered, (by immediate Hhipujents,) to thedefendant in New Vorli. On March 10, ls74. or thereabouts, tbe defendant, l)y his want of readincHS to receive a portion of the ice as he had agreed to, temp'J- rarlly [)rovented the plaintiffs from per- forming the contract on theirpart accord- ing to the prei)nrations made bi' tlieni for the purpose. On March 24, 1S74, the i>ar- ties, tlien in New York, put their i)reviouB verbal contract into writing, ante dating It as an original contract made at Rock- lanil on .March 2, 1874. On the same day, (Marcli 24, 1 by consent of tiie defendant, the plaintiffs sold the same ice to another party, roserviag their claim against the defendant for the damages siistaine<l by them by the breach of the contract by the defendant on .March loth or about that time. This action was commenced on April 11, lN74, counting on the contract as made on March 2, and declaring for d;ini- nges sustained by tlie breach of contract on March 10, or thereabouts and prior to Alarch 24, 1S7-1. Several objections are set "up against the plaintiffs' right to recover. The Hist objection is, that in some i-e- Hpeets the allegations in the writ and the written proof do not concur. I'.iit we pass this poiat, as an imperfection in the writ may, either with or without terms, be corrected by amendment hereafter. Then it isdainied for thedefendant that, as matter of fact, the parties Intended to make a new ami original contract as of March 24, l)y their writing made on that day and ante-dated March 2, and that it was not their iturpose thereby to give ex- presKion and elticacy to any unwritten contract made by them before that time. Rut we think .'i jury would be well war- ranted in coming to a different coiiclusinn. Undoubtedly there are circumstances tending to throw some doubt upon the hlea thai both parties understood that a contract w;is fully entered into on March 2, ls74, but that doulit is much more than overcome wlien all the written and oral evidence is consiclere<l together. We think tlie writing inade on the 24th March, with the explanations as to Its origin. Is to be considered precisely as it the par- ties on that day had signed a paper dated of that date, certifying nnd adinitiing that they had on the 2d day of .March made a verbal contract and staling ia fXHct written terms just what such verbal contract w.-is. Pa roleviilence is proper to show the situation of the parties and the circumstances under which the contract was made. It explains but doi's not alter the terms of the contract. Tne delend- LAW SALES — 5 ont himself invokoH It to show that, ac- cording to his view, the paper Itearrf an eri'oneous date. .Such evi-leiice merely dis.diises in this case hucIi facti-as are part of the res ge^lie. lienjamin <in .Sales, g 213. Stoops V. .Smith, 100 .Mass. tj:j, CO ; and cases there cited. Then, the defendant nextcontends that, even if the writing signed by the particH was intendt-d by them to operate retro- actively as of the first named dale, as a matter of law, it cannot be permitted to have that effect and meet thi- reipiire- meats of the statute of frauds. The posi- tion of tlie defendant is, that all which took place between the i)artles before the 24tli of .March was of the nature (d nego- tiation and proposition only; and that tliere was no valid contract, hucIi as Is called for by the statute of Irauils, before th;it day; and that the action is not maintainable, because the breach of con- tract is alleged to have occurred before that time. The plaintiffs, on the other hand, contend that the real contract was made verbally on the 2d of March, and that the written instrument Is sutlicient proof to make the verbal contract a vallil one as of that date. (March 2.) although the written proof was not made out until twenty-two ilays after that time. Was the valid contract, therefore, made on March 2(1 or .March tlie 24th? The pcdnt raised is, whether. In view of the statute of frauds, the writing in this case shall lie considered as constituting the contract itself or at an.v rate un.v Substantial por- tion of it, or whether it may be legarded as merely the ne(!-;'ssnry legal evidence by means of which the prior unwritten con- tract may tic proved. In other words. Is the writing the contract, or only evi- dence of it; wp incline to the latter view. The peculiar wording of the statute pre- sents a strong argument for such a deter- ndnation. The section reads: "No con- tract for the sale of any goods, ware?, op merchandise, for thirty dollars or more, shall be valid, unless the purchaser ac cepts and receives iiart of tlie goods, or givi'ssomethiiig inearnest to Idnd the bar- gain, or in part payment thereof, or some note or memorandum thereof is made and signel by the party to l)e charged there- by, or his jigent. " In the first place, the statute does not go to all contracta of sain, but oidy to those where the price la over a certain sum. Then, the reiiuire- ment of the statute Is in the alternative. The contract neeil not be evidenced by writing at all, provided "the pnrclinser accepts anil receives a jinrt of the goods, or gives souKdhing in earnest to l)lnd the bargainor In part pay uieiit thereof. " II any one of ttiese ciivumslances will as effectually perfect the sale as a writing would, it is not easily seen how the writ- ing can actually coustiiiite the contract, merely because a writing hnpnens to ex- ist, it could not with any corivctnesa be said, thct anything given In earnest to bind a bargain was a substantial part of the bargain itself, or an.\ thing more than a particular mode of proof. Then, it is not the contract that is required to be la writlui;, but only "eume note or 66 BIRD c. MUITROE. memoranfluin thereof." This lanjiiinse Hupposcs that tliu verbal bnrKaiii iiuiy be first niiule, and u moniDraudum of itKiven afterwards. It also implies that no set and formal a;?reemeiit is called for. Chan- cellor Kent says "the instrument is lib- erally construed without regard to forms." The bricfcut possible forms of a bargain have been (Seemed sutficient in many cases. Certain important elements <>t a" completed contract may l)e omitted altoKcthcr. For instance, in this state, the consideration for the promise is not re(|uired to be expressed in writing. Gil- lifjlian V. Boardraan, 2'.) .Maine, 79. Again, it is provided that the note or mcmoran- duni is sufficient, if signed only by the per- son sought to be charged. One party may be held thereby and the other not be. There may be a mutuiility of contract but not of evidence or of remedy. Still, if the writing is to be regarded in all cases as constituting the contract, in many cases there would be but one contracting party. Another idea gives weight to the ar- gument for the position advocated by tlie plaintiffs; and that is, that such a construction of the statute upholds con tracts according to the intention of par- ties thereto, while it, at the same time, fully subserves all the purposes for which the statute was created. It must be borne in mind that verbal bargains for the sale of personal property are good at common law. Nor are they made illegal by the statute. Parties can execute them if they mutually i)lease to do so. The ob- ject of ( he statute is. to prevent perjury and fraud. Of course, perjury and fraud cannot be wholly prevented ; but, as said by Bigelow, J., (Marsh v. Hyde, 3 Gray, 331.) "a memorandum in writing will be as effectual against perjury, although signed subsequently to the making of a verbal contract, as if it had lieen executed at the moment when the parties consummated their agreement by word of mouth." We think it would be more so. A person would be likely to commit himself in writ- ing with more care and caution after time to take a second thought. The locus penitenticB remains to him. By uo means are we to be understood as saying that all written instruments will satisfy the statute, by having the effect to make the contracts described in tliein valid from their first verbal incep- tion. That must depend upon circum- stances. In many, and perhaps, most in- stances such a version of the transaction would not agree with the actual under- standing of the parties. In many cases, undoubtedly, the written instrument is per se the contract of the parties. In many cases, us for Instance, like the ante- dating of the deed in Egery v. Woodard, 56 Maine, 4.5, cited by the defendant, the contract, (by deed,) could not take effect before delivery; the law forbids it. So a will made by parol is absolutely void. But all these cl;isses of cases differ from the case before us. A distinction is attemi)ted to he set np between the meaning to be given to H. S. c. Ill, § 4, where it is provided that no unwritten contract for the sale of goods "shall be valid," and that to bo given to the several preceding sections where it provided that upon certain other kinds, of unwritten contracts "no action shall he maintained ;" the position taken l)eiiig that in the former case the contract is void, and in the other cases only voidal)le perhaps, or not enforceable by suit at law. But the distinction is without any essential difference, and is now so re- garded by authors generally and in most of the decided cases. All the sections re- ferred to rest upon precisely the same policy. Exactly the same object is aimed at in" all. The difierence of phraseology in the different sections of the original English statute, of which ours is a sul)- stantial copy, may perhaps he accounted for by the fact, as is generally conceded, that the authorship of the statute was the work of different hands. Although our statute (R. S. 1S71, § 4,) uses the words "no contract shall be valid, "our previous statutes used the phrase "shall be allowed to be good; " and the change was made when the statutes were revised in 1857, without any legislative intent to make an alteration in the sense of the sec- tion. (R. S. 1841, c. 136, § 4.) The two sets of imrases were undoubtedly deemed to be e(iuivalent expressions. The words of the original English section are, "shall not be allowed to he good," meaning, it is said, not goo<l for the purpose of sustain- ing an action thereon v/ithout written proof. Browne, St. Frauds, §§ 115,13(1. and notes to the sections; Benjamin's Sales, § 114; Townsend v. Hargraves, 118 Mass. 325; and cases there cited. There are few decisions that bear direct- ly upon the precise point which this case presents to us. Erom the nature of things, a state of facts involving the question would seldom exist. But we regard the case of Townsend v. Hargraves, above cited, as representing the principle very pointedly. It was there held that the statute of frauds affects the remedy only and not the validity of the contract; and that where there has been a completed oral contract of sale of goods, the accept- ance and receipt of part of the g<iods by the purchaser takes the case out of the statute, although such acceptance and re- ceipt are after the rest of the goods are destroyed by fire while in the hands of the seller or his agent. The date of the agreement rather than the date of the part acceptance was treated as the time when the contract was made; and the risk of the loss of the goods was cast upon the buyer. Vincent v. Germond, 11 Johns. 2S3, is to the same effect. We are not aware of any case where the ques- tion has been directly adjudicated ad- versely to these cases. Webster v. Zielly, 52 Barb. (N. Y.) 482, in the argument of the court, directly admits the same prin- ciple. The case of Leather (,'loth Co. v. Hieronimus, L. R., 10 Q. B. 141). seems also to he an authority directly in point. Thompson v. Alger, 12 Met. 42S, 435 and Marsh v. Hyde, 3 Gray, 331, relied on by defendant, do not, in their results, o[)xjose 1 the idea of the above cases, although there ^! BIRD t». MUNROE. fi7 niiiy be sonic expreHsion In theni incon- Histpnt tlierpwith. AltoKt-'tlicr iinotluT ()iu'Btion wuH lit'tore tlie court in tlielutter CUHIH. but there are a trreat many cases where, in coiiHtruInt? tlie statu fe of frauds, the force and eftect of the decisions po to sus- tain the vi(5\v A'e lake of tills <|uestloM, hy the very strongest iinplicatlon : Such as; that the statute does not apply where the contract has liecn executed on hotli Hides; Bucitnam v. Nash, 12 M nine. 474; — that no person can take udvanta;ceof the statute liut the i)arties to the contract, anil tlieir privies; Cowan v. Adams, 10 Maine, :j74; — that the meniorandum may be made by a broker: Hinckley v. Arey, 27 Maine, .'i()2; or by an auctioneer; Cleaves V. rosH,4 Maine, 1;— that a sale of personal property is valid when there has been a delivery and acceptance of part, nItliouKh the part be accepted several hours after the sale; Davis v. Afoorc, 13 Maine, 424 ; or several days after; Bush v. Holmes, Tj^ Maine, 417; or e»er so lonji after; Browne St. Frauds, § I{;J7, and cases there noted; — that a creditor, receiving payments from his debtor without any direction as to their application, may ap- ply them to a debt on which tlie statute of frauds does not allow an action to be maintained; Uaynes v. Nice, loii .Mass. 327; — tliat a contract made in France, and valid tliere without a writlii;;, could not be enforced in Knfrland without one. upon the ■tround that the statute related to the mode of procedure and not to tlio validitvtif thecontract; Leroi.x v. Brown, 12C. B. SOI ; but this ea.se has been ques- tioned somewhat ; — that a witness may be Kuilty of perjury who falsely swears to a fact which may not be competent evi- dence by the statute of frauils. liut which becomes material because not objected to by the party against whom it was offered and received; Howard v. Sexton, 4Coinst()cl<. I."i7; — that an afient wlioslji:is a memorandum need not have his author- It.v at the time the contract Is entered into. If his act is orally ratified after- wards; .Maclean v. Dunn, 4 Bin;;. 722; — that the identical aKreement need not be Higned, and that it issutticieiit if it is ac- knowledged by any other instniuieut duly signeil ; (jale v. Nixon, G Cow. t4."i: — that the recognition of the contract may be contained in a letter; or in several let- ters, if so connected by " written links" as to form su(iici.-ntevidence of the contract ; — that the letters may lie addresseil to a third pers(ui ; Browne St. Frauds. § :U('t; Fyson v. Kitton. .■!0 E. L. & Kq. :!74 ; tiili- Hon v. Holland, L. H. 1 C. I". 1 ;— that an ajient may write his own name instead of that of his principal If intending to bind his (irincipal by it; Williams v. Bacon. 2 Gray,. "1X7, 3!)^, and citations there; — that a proposal in writing, if accepted by the other party by parol, is a sullicient meiuo- randiini; Keu'ss v. I'icksley, L. U., 1 Fxc. 342; — that where one parly is bound li.v a note or memoranduni the other part.v niiiy lie hound if he admits the writing by another wrltinu; by liiin subseiiuently sinned; Dobell v. Hutchinson. 3 A. & K. 3rir>;— that the written contract may be rescinded by parol, although many deci- sions are opposed to this proposition; R'diardson v. (Jooper, 2.") .Maine, 4.'>0; — that equity will inter-fere to (irevent a party making the statute an Instrument of fraud; Ryan v. Dox, 34 N. Y. 307; Hae- snni v. Barrett, IID .Mass. 2o(>, 2.'.>S;— that a contract verlially made may bo mnin- taineil for certain purposes, notwit hstand- Ing the statute;— that a person who pays his money under it cannot recover it back if the other side is willinK to perform; and he can recover If perfornuince is re- fused ; Chapman v. Rich, (!:! .Maine, .jSM, and cases cited; — that n respondent In equity waives the statute as a defense unless set up in pica or answer; Adams V. Patrick, 30 Vt. ."di;;— that it must be specially pleaded in an action at law; .\Iiddlesex Co. v. Osgood, 4 (iray, 447; [..uwrence v. Chase, .'i4 Maine, r.H;;— that the ilefendant may waive the protection of the statute and admit veriial evidence and become bound by it; Browne St. Frauds, § 13.1. It ma.v be remarked, however, that In most courts a defendant may avail himself of a defense of the statute under the gen- eral issue. 'J'he different rule in .Massa- chusetts anil Maine, grew out of the prac- tice act In the one state and in the stat- ute requiring the tiling of specilications In the other. It is dear from the foregoing cases, as well as from many more that might be cited, that the statute does not forbid parol contracts, hut only precludes the bringing of actions to enforce them. As said ill Tliorntun v. Kempster, .'i Taunt. 7S(i, 7SS, "the statute of frauds throws a dilhculty in tlie way of the evidence." In a case already cited, ,Jervls, C. J., said, "the effect of the sectimi is not to avoid the contract, but to bar the remedy upon it, unless there be writing." See analo- gous case of Mc(.'Iellan v. McClellan, Gj Maine, 500. But the defendant contends that this course of reasoning would make a mem- orandum siifllcient If made after action brought, and that the authorities do not agree to tliat proposition. Tliere has been some judicial inclination to favor the doctrine to that extent even, and there may be some logic in it. Still the current of decision requires that tlie writing must exist before action brought. .\nil the reason for the requirement does not niili- tato against the idea that a nieiiioraiidum Is only evidence of the contract. There is no actiouablecontract before niemoran- diim obtained. The contract cannot he sued until it has lieen legally verilied by writing; until then there Is nocnu-ie of ac- tion, although there is a contract. The writing is a condition precedent to the right to sue. Willes, ,1.. perhaps correctly descrllies It in (jibson v. Holland, supra, when he says, "the meinorandiini Is In some wav to stand In the place of a con- tract." He adds: "Thecourts havecoii- siilered the in tentloii of the legislature to ")e of a mixed character; to prevent per- sons from liaviiigactions hroiight against them so long as no written evidence was existing when the action was Instituted." 68 BIED V. MUNROE. Browne, St. Frauds, § 338. Benjamin's 1 cept for the purpose of sastalninR an ac Suley,§l.i9. Fricker v. Thomlinson.l Mao & Gr. 772. Bradford v. Spyker, 32 Ala. 134. Bill V. Bament. 9 M. & W. 30. Pliil- brook V. Belknap, 6 Vt. 3S3. In the last case it is said, "strictly epeakins, the stat- ute does not make the contract void, ex- tion upon it, to enforce it. Action to stand for trial. APPLETON, C. J.. WALTON. DAN- FORTH, VIRGIN and LIBBEY, JJ., con- curred. JJI^llOl' r. >\1\IAA\(). BISHOP V. siiii.i.rn). (2 Barn. & Aid. :!-'!), n. (a).) Kind's Bench. Hilary Terra. 1819. Trover for iriiii. The iron whh to Vie ■delivered under >i conlraut tliut certain hillH oMtstiiiKliri;^ !it;innHt the )daintirf Hliiiidd lie liiken out <it circidation. Alter H piirt of the ii-on hiid lieen ilelivered, and no IjillH had licen taken out of circulation, the jilaintilf Htopped the lurllier delivery, and lirou>;ht trover for what had been deliveroil. Scarlett, for defendant, con- ten(h>d that trover would not lie, and triat the only reniotly for tne plaintiff was to hrin;: an action fur tlie brencli of the con- tract by the clefendant. Hut the ColItT held that thlH woh only it conditional de- livery, aiKl tlie condilion liein« broken, the plaintiff initilit brin;; trover. AIJ- ISOTT, C. J.. Hald he had left it to the jury to Hiiy, whether the delivery of the iron and tlie redelivery of the blllH, were to be contenipoiary, and that the jtirv found that fact in theaflinnativc; and BAYIJCY, .1., added, that if a tradeKinaii Hold };(iodH to be paid for on delivery, iitirl IiIh Hervant by nilHtake ilelivers tliein without meiv- Injr the inoiipy, he may, after riemund i.nd refunal to deliver or pay, brluK trover for hiH kouUb against the purchasur. BLOXAM t>. SANDERS. 73 BI-OXAM .( al. V. SANDERS et al. (4 B.irii. & C. 041.) Kins's Bpncli. Alifliaolmas Term. 1825. Triiver to receiver tlie value of a qiiunti- ty of liopH from the (Icfoiulnnts. Ac the trial bflore Abbott C. Jut the London HJlti'iKx, Jiftrr liiHt 'J'rinitv term, the jurv found a vcr.lii't for tlic plaintiffH, dainaKcH .tiOOU, MUbje<-t to the opinion of this court upon the following <'iihc: Tlie plaintiffs were assiKnees of .J. It. Sa.\b.v, a iianUrupt nixlcr a I'oinrnission of liankrnpt duly is- hu(mI aKainsl him on tlic .'>th .laiiunry isL'4. The aet of bankruptcy was committed on the ist November ISL'.'i, tlio bauivrupt hav- in>:: on I hat day surrendered hituself to prison, where lie lay more than tivo months. The defendants wore lioii fac- tors Hiid merchants in the boroufih of Southw.irk. I'reviims to his bankruptcv the bankrupt had been a dealer in hops, and on the 7th, Kith, and 2:!d .August pur- chased from the dpfendants the hops (anions; others) for which this acti<in was lii-ounht. BouKlit notes were ilelivereil in the tollowinK form: "Mr. .John liobert Sa.xby, of Sanders, I'arkes, and fo. T. M. Simmons, eijrht pockets at l.'i.'.s. stii Au- K'.ist lSL':t." I'art of thehops were weiirhed, anil an account of the wcijihts was deliv- ered to .Saxby by the ilefendants. The samples were jiiven to the liankrupt. anil bills of parcels were also deli rered to him in which he was made debtor for si.x differ- ent iiarcels of hojis, the amount of which was tr.'l'.t. The usual time of iiaymenl in the trade was the second Saturday siibse- (pient to a pun linse. I'iirt of the hojis belonged to the defendants, and part tiny sold as factors, but they sold all in their own names. It lieins the custom in ihe hop trade to do so. It was proved that liie b.inkrnpt had said more than once that the hops were to remain in the defendants' liaiiils till paid for, and that he said so when he was about buyiiiK one of the parcels of hops for whicli the action was broiifjlit. The banUrnpt did not pay for the hops, and on the (itii September ISL':! the defendants wrote to the bankrupt, and desired him to " lake notice, that un- less he iiaid for the liops they had sohl him, on or before Tuesday then next, the Ilefendants would proceed to res.'ll them, holdinfi liiai acconutalile for any loss which mitrht arise inconseipiencetliereof." liefore the bankruptcy the ilefendants did not sell any parcel of hops without the bankrupt's exiiross assent. After the no- tire already stated the defendants sold Home parcels of the hops, but in one in- Htance the liankrupt refused to allow the defendants to sell a parcel of ho(is to a Jiersou named by them at the price offered, and that p.ircel was nceorilinirly sold by the defendants, before Saxtiy's bank- ruptcy, to another person by Saxby's au- thority. On another occasion in the month of September the bankrupt had employed a broker to sell another parcel ot the ho|is. tint the defend.iuts refu.sed to deliver them without bciim paid for them. After the act of bankruptcy I he defend- ants sold hoiis of the bankrupt's to the amount of fC'.isO Ills. jd. The defendants delivered arconnt Hales of tli:; hopo ho sold by tliem atler the baiiKruptcy. 'I'he hopH were stated to be sold for Saxby, and he was chjir>red warehouse rent from the auth of AiiKiist, and also comniisslon on the sales. ISe.sides the hops purcliUHed from the ilefendantM, the bankrupt placed in their warehoiisf nineteen pockets of hopti for sale by them (as fartorn). of which lifteen pockets were sold on and after the l;ith of .lunuary 1n2I of the value of £77 I'Js. .'id., and of which four remained in their warehouse ot the time of the trial, which four were of the value? of £14, unil there were also unsold of the liops purchased from defendants seven ba^s, lifty-six pockets, of the value of Xi'd l:{s. (Id. 'I'here was a demand by |: la in lifts of these hops, and a tender of warehouse rent and charKoh, and a refusal on the part of the defendants lo deliver them, liefore action brounht. The jury found that the defend- ants did not rescind the sales made by them to the bankrupt. This case wu8 ar«ued ot the Bittings before lasfterin, by Evans, for the pIuintiffK. Abraham, contra. BAl'LEY, J.now delivered the judgment of the court. This wns on action of trover for certain quantities of hops Kold by the defendants to Saxby before liiH bankruptcy, and for certain other hops which Saxby liad pli-.ced In defendants' warehouses that defendants in their clinr- acterot factors miKht sell them for bis use, and the nuestion us to tliis latter parcel stands upon jierfeclly distinct urounds from the iinestion as to the others. Tills parcel consisted of nineteen pockets; de- fendants sold none of them until after Saxby's bankruptcy, and then they sold lifteen pockets, not for the use of the ns- siKiiees, but lo apply the proceeds, not for any debt due to them in their character of factors, but to discliarnc a claim tliey considered themselves as having upon Saxb.*' in reiiard to the other hops; and the other four poc'^ets they refused to de- liver to the assi;;neeH. It was candidly ad- mitted upon the arnunient, and was clear beyond all doubt, that the defendants were not warranted in applyins: the pro- ceeds of the lifteen pockets to the purpose to which Ihey attempted to apply them, and that they had no leiral ground for wilhholdli n tiie four pockets; and, there- fore, to the extent of these nineteen pock- ets, the value of which is C'.H Ills. ,'nl., we think it clear that tlie plaintiffs are enti- tled to recover. The other quantities were hops Saxb.v had barcained to buy of the defendants on different days in A'»- Kust l^^;.":!, nnd for which defendants had delivered hou):ht notes to Saxliv. The bought notes were in this form: ".Mr. .1. H. Saxby, of S.inders, I'arkes, and Co., T. .\I. Simnionds, ei;iht pockets at l.Vis., Sth .\umist 1^1.':!." i'art of the hops were weighed, and an account delivered to Saxby of the weiirhts, and samples were jrixeu" lo Saxby and Invoices delivered. The luiucht notes were silent as to the time for delivering the hops, and also as to the time for payin;; for them, but the usual tiinefor payini; for hop.s was proved 74 BLOXAM V. SANDEUS. to bp tlu> second Snturday iiftor tlic piir- clinse. It was also provoil that Saxlj.v liiicl said that the hops were to rernnin with the (lefendai)tH till they were palil for; hut us the adinissibllity of such evi- dciK-e was (luestioiiecl, and in our view of the case it is unnecessary to decide that point, 1 only mention it to dismiss it. ('['he learned judjie then stated the other facts set out in the special case, and then proceeded as follows.) Under these eir- cuni.stances the (luestion is, whether in respect of these hops the plaintiffs are en- titled to recover. It was ui-Kcd, on the part of the plaintiffs, that the saleof these hops vested the property in them in Sax- l)y ; that the hops were to be considered as sold iipoi: credit, and that ilefendanis hyd no lien therefore upon any of them tortile price; that if they ever had any lien, it was destroyed as to those they sold by the act of sale, and that the iilain- tiffs were entitled to recover the full value of what were sold, without maUins any deduction for the price which was unpaid. It is, therefore, material to consider whetlier the propert.v vested in Saxby to any and to what e.\tent; and what were the respective rights of Saxby and of the defendants. Where goods are sold and nothinjj is said as to the time of the de- livery, or the time of payment, and every thin;;' the seller has to do with them is complete, the property vests in the buyer, so as to subject him to the risk of any acci- dent which may happen to the u:oods,aMd the seller is liable to deliver them when- ever tliey are demanded uiioii payment of the price; but the buyer has no ri-^ht to have possession of the jioods till he pays the price. The buyer's riglit in respect of the price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his ori{;inal ownership and (louiiniou, and iiayment nr a tender of the price is a condition precedent on the buy er's part, atid until he makes such pay- ment or tender he has no ri^ht to the possession. If goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is im- mediately en titled to the jiossession, and the right of possession and the right of property vest at once in him ; but his right of possession is not absolute, it is liable to be defeated if he becomes insolvent before he obtains possession, Tooke v. Holling- worth, 5 T. K. 215. — Whether default in payment when the credit expires will de- stroy his right of possession, if he has not before that time obtained actual jiosses- sion, and put him in the same situation as if there had been no bargain for credit, it is not now necessary to inquire, because this is a case of insolvency, and in case of insolvency the point seems to be perfectly [clear, Hanson v. Meyer. (! East, G14. If the seller has dispatched the goods to the buyer, and insolvency oeurs, he has a right in virtue of his original ownership to stop them In transitu, .Mason v. Lickbar- row, 1 II. 131. 357.— Ellis v. Hunt, 3 T. R. 464.— Hodgson v. Loy, 7 T R. 440.— Inglis V. Usherwood, 1 East, 515. — Bohtlingk v. Inglis, 3 East, 3S1. Why? Because the property is vested in the buyer, so as to subject liiin to the risk of any accident; liut he has not an indefeasible right to the possession, and his insolvency, with- out payment of the price, defeats that right. And if this be tlie case after he has dispatched the goods, and whilst they are in transitu, a fui-tiori, is it when he has never parted with the goods, and when no transitus has tiegun. The bu.ver, or those who stand in his place, may still ob- tain the right of possession if they will pay or tender the price, or they may still act upon their right of property If any thing unwarrantable is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a spe- cial action against him for the injury they sustain by such wrongful sale, and recover damages to the extent of tha t injury ; tint they can maiutaiii no action in which right of property and right of possession are both recjuisite, unless tliev have both those rights. Gordon v. Harper, 7 T. R. 9. Trover is an action of that description, it reijiiires right of property and right of possession to support it. And this is an answer to theargiiment upon thecharge of warehouse rent, and the non-rescinding of the sale. If the defendants were forced to keep the hops in their warehouse longer than Saxby had aright to require them, they were entitled to charge him with that expense, but that charge gave him no better right of possession than he would have had if that charge had not been made. Indeed that charge was not made until after the bankruptci', and un- til the defendants insisted that the right of possession was transferred to their sec- ond vendee. Then as to the non-rescind- ing of the sale, what can be its effect? It is nothing more than insisting that tlio defendants will not release Saxby from the obligiition of his purchase, but it will give him no right beyond the right his purchase gave, and that is a right to have the possession on payment of the price. As that price has not been paid or ten- dered, we are of opinion that this acti<in, which is not an action for special damage by a wrongful sale, but an action of trover, cannot, as to those hops, be main- tained. The verdict must, therefore, be for the plaintiffs for the sum of £91. IDs. fid. only. Judgment for the plaintiffs. BOOTIIBY V. PL.VISTED. 77 BOOTUBY et al. v. PLAISTED. (51 N. H. 43C.) Supreme Judicial Court of New Hampshire. KooUiugham. Dec, 1871. AsHunipHit by JnnicH L. BoKthliy and another UKuinHt Siilricy <J. I'lainte(l tur KouiIk Hold and di-livercd. Tlie court or- dered a verdict for [ilaiiitiffH, wliicli de- fendant moved to KCt aHide. Judj^ment on verdict. A traveling agent for ))!nlntiffs, who were li(Hior dealerH in New Yorlc, called at defenilaiit'H place of bnsincHS in New HnniiiHliire, and showed him Hnniples of variouH liquorH. Defendant gave tlie eale.snian an order for some of these liq- uors, it Ijeing agreed tliat the purchaser need not accept them If they were not lil<p the snni[)leH shown liini. The licpiors were forwarded to defendant from New Yorii, and received and used by him; plaintiffs charging defendant for cartage in New York, and he paying the freight from New Yorl< to his place of business iu New Hampshire. Krinii and Butler, for plaintiffs. Hatch and i'age, for defendant. SAltUliNT, J. In all respects save one, this sale of liquor stands upon the same foundation as tlie numeroiis cases report- ed in ourstate. Tha t e.xception is tlie fact that the drfoadant, "after tlie liquors ar- rive<l at his store, might examine tiiem, ami if not according tosaniple iienced not aocepc the same. " But waiving that part of tlie contr.ict for the present, tliis case, aside from tliat, presents the same fea- tures of numerous other cases where there was a contract for tlie sale of liqiiurs niadein New Hampshire, but tliecompieted sale (completed by separating the liinKjrs from alargermass antl setting them apart for the defendant, ni'irliing and directing them, ancl tlien by delivery at the place agreed on) was in anotlier state. Tlie cliarue lor cartage is waived liy the plain- tiff; and the case finds that the defendant paid tlie freiclit from New York. Itanchor V. Warren, 33 N. II. 1S3: Smith & Lougce, \. .Smitli, 27 N. H. -44; Woolsey v. Bailev, 27 N. II. l!li); Gassett v. Godfrey. 2(1 N. H. 41.5; Garland v. Lane. 40 N. 11.248; But- ler V. Norliiumberland. .".0 .\. II. 3:1. But we cannot see tliat the additional provision as to acceptance is anything more tlian the law implies in every con- tract wiiere a sale is made liy sample or with warranty, except that in this case it was asireed that the defendant should de- cide for himself whether or not the goods were according to tlie sample; and he cer- tainly cannot lie heard to object that he himself was made the umpire, and lias by his own acts decided the case in favor of the plaintiffs. His accepting and using the goods la Rufflcient proof that they were considered to be according to sample; and if they were according to the sample, then he had no right or power under the contract to refuse to receive them. Wliat questions might have arisen had the d<'fendaiit in fact refused to receive ttiem, it is not important here to deter- mine. Here was a contract for n sale and delivery in New York of a certain descrip- tion of goods as iicr sample. If the pluiii- tiffs pi'rformed tlieir jmrt of tlie contract fully l)y <leliverlng at the time and place at'reed the article which they agreed to furnish, then it became at once the prop- erty of the defendant, and he would ordi- narily have no riglit to refuse to accept it. Onlinarliy it would be a question for tlie jury to settle, whetlier lln- gooils ile- livereil were acrcirdiim to coatract or like the sample. But in tliis case the parties agreed that tliat fact should be referred to the defendant, ami he has ilecided the case In favor of the plaintiff. Tlie defendant might refuse to nccejit If the article was not such as tlie plaintiffs had sold him. He was at liberty to re- fuse to receive an article which lie had not tiouglit or agreed to take. But tlieartlcle in tills case which was sold was delivered and was accepted, and we thitik the con- tract binds the defendant ironi the timo the goods were delivered. A case in point is Giiison v. Stevens, 8 How. (U. S.I 401, where there was a guar- antee that certain goods sold should bear inspiction. In that case the price had been paid and a bill of sale of llie ^oods taken, but no delivery of the iroods hail been made, they were left in the hands of the vendor. Taney. C. . I., in tlie opinion, says, — 'Tlie guarantee that the articles siiould pass inspection does not affect the character of tlie transartion, or convert it into an exicntory tontract. It Is iiotliing more that tlie usual warranty of the soundness and quality of the tiling sold, which is taken in every sale of personal property where tlie purchaser tloes not choose to take the risk upon liiniself. " 2 Kent's Com. 4S0; 1 Parsons on Con. 't'X\; 1 Smith's Lend. Cases 308; \'incent v. Oer- niorid, 11 .loiins. 2S3. As to the ipiestlons and answers In the plaintiff's deposition, they are clearly roni- petent as they staml. The witness states the matter as s<inietliiiii; witliln his own knowledge, and If so, the facts stated are all competent and propi>r. But it is urged that it must beiiiferrcd from the facts stat- ed in tlie case that the witness did not know tlie facts contained In tlie answers except by hearsay. But we think no such inference necessarily follows from the facts stated in tlie case. I'pon this point, how- ever, the case of Dickinson v. Loveil. 3."i N. H. '.», 17, and 18, is in point, and is entirely conclusive. Judgment on the verdict. BRABROOK v. BOSTON FIVE CENTS SAV. BANK. 79 BRABROOK v. BOSTON FIVE CENTS SAV. BANK. (104 Mass. 228.) Siipii'ino Judicial Court of Massachusetts. Suf- folli. March, 1S7U. Contract for money hml and rpoelved. Siihmittc'd on the followin;; nsrif'''! facts: On .July 10, ISC.O, I)avi(l KridwMcH, the fa- ther of tile plaintiff, then Kliza H. Kiiuwles, hut since inarriccl to (J.-oi-.;!' r.rahrciuk. Kave to John T. Din^lcy «:i(Hlil. to .lc|.iiHit with tlieilifindants. "If it wnuld he com- petent ti) piDve by parol eviilence, it is H^creed that DinKJey informed David Kiiowles tlial the l»y-law«of the ilefend- nnts did not allow so lar>re a deposit in tlie name of one peison, hnt tlint he conid deposit it in the names of liis children for himself. Therenpcjn DiriKley, liy tiie direc- tion of lia vid Knowlcs. deposited the same, in equal proportions, in t lie name of David Knowles, and his tl;ri-e childien, one of vv'honi was the iilainliff, took t herelrirfonr booivs from the defemlants. informed Da- vid KnowleH of wjiiit he had done, and showed him the hofiks. ami lie approved the same. The entry in the hook of the defendants, an<l in tlie pass-liooks. was ns fidlows: 'David Knowles, trustee for Eliza Knowles,' with tlie date and amount of deposit. The deposit remnined witli the di'fendants nnchanucd. e.\ce|)t that snms from time to time were ilrawn on account of interest, hy Dintcley, liy the direction of David Knowles, and p;iiil to him, so as to keep the wlude sum below SlIKin, until the death of David Knowles. DiiiKley was appointed exi'cntorof the will of David Knowles, and assnchclaiu'ed the funds in defendants' hands as lielonninH; to his estate. All four of the bank books renuiined in the|iossession of Dinu'ley until the dentil of his testa tor, and have since been in liis possession ns executor. The defendants' by-laws may be referred to if deemed material. If, upon tliesi- facts, tlie court should lie of opinion tliiit the plain- tiff is entitled to said liimls, judtruicnt is to lie filtered for the plaintiff for the amount in the defeniiants' hands; other- wise the iilaintiff is to Income nonsuit." H. C. Ilutchins, for plaintiff. J. P. Ilea- ly, for defendant. WELLS, J. The plaintiff shows no fluht to liold the money deposited with the defendant by David Knowles. It wis not money tlia t bel()ii;;ed to her oiiiriiuilly, an was the case in Farrelly v. Ladd, lil .\l- len. lL'7, and Hunnewell v. Lane. 11 Met. IChl. relied upon by the plain tiff's rotinsel. The money belontteil to David Knowles in Ills own rii;ht. He was not in fact trn~tce for Eliza Knowles, otherwise than liy the form of the deposit. He was nniler no previous obligation to pay the money lo her. or to hold it for her benelit. The voucher for the deposit, without the pro- ductlim of which, accordiim to the con- ditions under which It was made, it could not be withdrawn, was never delivered to her, but r^'lained exclusively In his own huiids. Wall V. Provident lustitutioii tor SavinKH, 3 Allen, 90. The whole trnnsnc- tion was his own voluntary act, to which she was in no way a parly or privy. There was no declaration made to her, or to be eommiinicateil to her, of any inten- tion that the money should lie hers. Even If the form of the deposit Is lo be lal<en bh conclusive proof of the existence of such un intention in his mind, the execution of that intent was not so far complete an to oiierate to pass the title. Knrtwledne of the nifl. on the part of the donee, at the time it is mnde, is not essential, it Is triit-, in order that It may take effect. If the net of transfer be complete on the part (jf the donor, subse(|uent ncreptance by the donee before revoc-ation will be sulHcient. Itiit tlicre must lie Himie act of delivery out of the possession <if the donor, for the purpose and with the intent that the title shall thereby pass. This principle Is cIIh- tinctlv recognized in the caxe of .Mincliin V. Merrill, J Kdw. Cli. :i:!.'t, cited by the plain tiff's counsel. In that case, as well ns in several others of those ctled, there was a complete delivery of the suliject of the Klft to a third part.v. In whose hands It was chardcd with the trust, the donor hnvin;i parted with the possession and control. In none of them Is there a denial of the principle above stated. In Howard V. Windham Connt.v .Saviims Bank, 41) Verm, rvi", the deposit was made directly to the credit of the inteiided donee, mak- ing it a completed jjift. 'I'he deposit hy Knowles was entered In his own name and to his own cre<lit. The lejral title, and rin'it to draw money ho deposited, re- mains with the depositor. There was no direction or niifhorit.v for the bank to|iay it to the plaintiff. The form of the depos- it does not imply such an intent; nor any obligation or riuht, on the part of the bank, HU to pay it over. The declara lion of trust is evidence that Knowles. the depositor, held the fiiiiil in some inaiiner for the benelit of the person named as cestui que trust. Rut it clld not, of itself, transfer to her the possession, nor the ri^ilit of iiossession ; nor constitute a lejrnl title i:i her. A deed, executed anil put on record by the Kraiitor. does not pass the title without some further act of deliver.v and acceptance. Maynard v. Mnynard, in -Mass. 4."ii'i. Samson v. Thornton. H Mel. l7.">. Rut if the urantor intend Ihat the grantee shall receive it from the reels- ter, or if tliere be a previous n(;reenient that the deed when niaileshall be so deliv- ered at tile reuistr.v, it will be effectunl aa a delivery. Shaw v. llayward, 7 Cush. 17(1. So if there be an actual trust, and an oblinalion to make the transfer for the security of that trust, the continued pos- session of the instrument by thepei-soii who executed it, lieinc also its proper cus- todian for the cestui <)ne trust, is consist- ent with an nssijrnment completed by de- livery ; and a le^al delivery to pass the titleWllI be inferred from very sli;;ht evi- dinee. Moore v. Haielton. 'J Allen. lltL'. r.ut there miist he delivery or some eqiilv. alent act with intent to pass the title. Chase V llrecd. .'i Cray. -14(1. When tlielii- slriiiiient is la fnlliliiienl of a le^al obliira- tioii. the Intent may lie inferred from that tart. Perhaps the same wo'ild bo true of 80 BRABROOK v. BOSTON FIVE CENTS SAV. BANK. a moral obligation, such as jjrovislon for wife or cliilil. Astreeii v. FlniiHftnn.a Edw. Oil. 27'). We prestimc the decision in Wit- Siel V. Cliapin. 3 Bradf. 3SG, cited by the plaintiff, was made upon some considera. tioiis of tliis nature. That decision recog- nizes tliat it is a question of intent. See also Gransiac v. Arden, 10 .lohns. 2!)3; (Joortrich v. Walker, 1 Johns. Cas. 251. Assuniin;^ in tliis case that tlie deposit and declaration of trust was a suflicient ajt of delivery to pass the title, if such were the intent, we think the facts agreed show clearly tliat such was not the intent of the depositor. On the contrary, it would ap- pear that it was the intention of Knowles to deijosit tlie whole money as his own; and that the form of deposit was adopted for the sole purpose of evadinj; a l)y-law of the bank and a provision of tlie stat- utes, limiting the amount that could be received from any one depositor to one thousand dollars. 1. The plaintiff contends that the writ- ten declaration of trust is conclusive, and ol>jects to the competency of evidence to prove the facts relied on in defence; first, becsiuse it violates the rule excluding pa- nd evidence to contradict or vary the terms of a written instrument. Itut that is a rule which applies to suite upon the instrument and between the parties to it. 1 (jreenl. Ev. § 279. The plain tiff is no par- ty to the contract between David Knowles and the defendant. !She could maintain no action upon it. If she can recover at all. it is because the nitmey l)elongsto lier, and the trust, being a mere naked trust for her benefit, is terminable at her pleas- ure. The contract of deposit is collateral to her title, which depends upon her rela- tions with David Knowles. As to her and her claim, whether upon the bank or up- on David Knowles, the contract is merely evidence by way of admission, subject to be controlled by any competent evidence 8S to the actual facts. In Mct'luskey v. Provident Institution for .Savings, 103 Mass. 300, a deposit in the plaintiff's own name was controlled by proof that the mrmey deposited belonged in fact to the estate of her deceased husband. 2. For similar reasons the plaintiff can- not sot up, as an estoppel against the de- fendant or against David Knowles. the by-law of the bank provi(Jing that "any depositor may designate, at the time of making the depo.sit, the period for which he is desirous that the same shall remain in the bank, and the person for whose benefit the same is made; anil snch depos- itor, and his legal representative, shall bo bound by such conditions, by him volun- tarily anne.ved to his deposit." She is a stranger to that contract. She does not claim under it as nis legal representative, but by a superior right, of vvhidi the con- tract is the evidence. There can be no es- toi)iJel where there is no mutuality or privity. 1 Greenl. Ev. §§ IfsU, 204, 211. Merrifield v. Parritt, 11 Cush. .TOO, 59S. .Sprague v. Oakes, 19 Pick. 4.5.5, 458. U orcester v. Green, 2 Pick. 425. Braintree V. Hiiigham, 17 Mass. 432. If. ui)on due presentation of the book, the money had been paid to her, this provision in the con- tract of deposit might have availed the bank as a defence against the depositor or his legal reiiresentatives. But it can have no force as an estoppel, except when so set up by the bank. 3. Neither can the plaintiff avail herself of the fact that the alleged purpose of Da- vid Knowles, in making the deposits in the form he did, was an evasion or viola- tion of law. Whatever effect any illegali- ty on the part of Knowles might have up- on his right to recover against the bank, it cannot operate to confer any title or le- gal ]-iglit upon the plaintiff. The effect of illegality is to create a disability to sue, or to derive any legal rightfroni the trans- action affected by it. The plaintiff's right to recover depends upon proof of an intent to make an absolute gift of this money to her. The defendant is not precluded from disproving that intent because the evidence b.y which it is to be disproved tends also to show an unlawful act or pur])ose in a transaction between tl)e de- fendant and David Knowles. We have not considered the technical question whether any action could be maintained between these parties, for money so deposited, because that ques- tion seemed to be waived bj' the submis- sion upon agreed facts, providing for a judgnientfor the plaintiff if the court shall 1)6 of opinion that she "is entitled to said funds. " Upon the facts stated, we are of opinion that she is not so entitled; and. accord- ing to the agreement, the plaintiff is to be- come nonsuit. BRADFORD v. MANLY. 83 BRADFORD v. MANLY. m Mass. 130.) Siipremp .Tiidifial Court of M'assarhiisotts. Suffolk. March Term. 181G. AaHUiapHiton dlvprH HpwinI counts, to recover the (Mfference in value bet weon two cuHkH of cloveH, aliened to be Hold by Huiiiple to tlie plaintiff, and the cloveH act- ually delivered in virlueof theHale. At the trial, which vvbh had on the general insue, before the chief ju.stlce, at the laHt Novem- ber term in thiw county, the plaintiff pro- ducefl a bill of parceln of (!02 poundH of cloven at one dollar fifty centB per pound, on which payment wan acknowleiljied by thR defendant to liave been received in the | plaintiff's note payable' in sixty days. He then |)ro(liiced a witness, who tCHtiticd that on the -Ith of .January, l!Sl4, the <lc- fendant I'linie to the plaintlff'H store, with u sample of cloveH in a paper, and asked the plaintiff if he wished to purchase .'■onie cloves. The witness examined the sam- ple, and found the doves to bo of the best quality of Cayennecloves; and the defend- ant said, at a subsequent time, that the sample he Hliowed was of fair cloves. On the same day that the|)urchase was made and the bill of parcels niven, the casks were removed to the plaintiff's store, the prICB being that of cloveH of the best (jual- ity. It was in evidence, that the sample was not taken from the casks sold, but from an open barrel, out of which those ciisks had been tilled, they not l)einj; before <iuile full: but the defendant did not know from whence the sample came. The market price of this article having fallen imme- diately after the sale, the plaintiff made no atlen)|)t to sell the cloves; and the casks were not opcnuil, until May, isl.'), when there bein;^ some ai)plication for the purchase of them, they were opened, and were found to contain a mi.xture of (Cayenne cloves and an inferior and dis- tinct H|)P(ies of the sjime article, the )j;rowth of the Kast Inilies, in the propoi-- tion of one-third of the latter, which was worth from a fitlh to a quarter less than the former. Whether the casks had been opened, or exposed, or mixed, while in possession of the plaintiff, were qucslinns duly HUb.nitted to the jury. liefore Insti- tuting this suit, and after the delect whk discovered, the plaintiff offered to return the cloves, but tlie offer was not accepted. The defendant objected to the ndmission of any evidence, other than the bill of parci'1.4, ( which was of cloves generally without <Iesii;natiny: the kind,) to prove tliat any distinct species or (luality of the article was sold. I'.ut the (dijectinn was overruled, and the jury were instructed that, althouu;!) no fraud was proved or .Hueiiested.anil no express warranty, other than what Tniy;ht be inferred from the ex- hibition of the sample, was proved: yet if they believed from the evidence, that the purchase was made upon the confidence that the whole quantity was represented by the sample: ami that it was the inten- tion of the di-fendant so to represent by exhibiting; the sample; anil that the ar- ticle, when sold and delivered, was nin-1 terially different In quality an<l value from that which was shown in tin.- sample; they (jUKht to find a verdict for the plain- tiff, and ansesH in damaKes the difference In value at the time of the sale. The jury returned a verdict for the plaintiff, hnv- loK found tlie facts Hi)eclally as abovp stateil, unil having also found that there WMH no fraud in the sale on the part of tlie defendant. The defendant exci'pted acainst the direction of the judRe, and moved for a new trial on that «round, and also on account of the admission of parol evidence to prove the contract. Uavis, .Sol. (Jen., and Thatcher, for plaintiff. Shaw, for defendant. PARKKIf, ('. .1., delivered the opinion of the court.— The first point taken by the defenilant's counsel is. that parol evidence was admitted, to ciintrol or explain the contract in writiu,;, which subsisted be- tween the parties. The objection goes upon the HUppoHltlon that a common liill of parcels, sjiven upon or after the purchase of uoodw, Ih evidence, and the only proper evidence of such a contract. I'.ut It is not so. The barcaln is usually made verbally, and without any intention that it shall be put in writing: and the bill of parcels is intended only to show that the uoods have been purchased and paid for. It is hcldom particular, or descriptive of the whole contract between the parties. Hut if it were not so, the jiaper Introiluced in thin case Is aniblt;u- ous with rcspi'ct to the sulijcct of the har- i;ain ; an<l the amldi^nity Ih talent, ho that parol evidence may be admitted to ex- plain it. li states only that ""J casks o( cloves" were purchased: leavini; it uncer- tain what kind of cloves, of which it ap- pears in the case that there are at least two kinds, diifeiiii;; mati'rially in (|uallly and value. We think this objection was properly overruled. We may then come to the principal ques- tion, viz. Whether theevldence in thecnuse proved a contract to sell cloveH of a iliflerent kind from those which were de- livei^d. Tlie defendant exhibiteil a Hom- pie, liy which the plaintiff |)urchaHed. .\niony: faircleal?rs there could lie no (|ueH- tion but the vendor intendeil to represent that the article sold was like the sample exhibited: and it would be to be lamented, if the law should refuse its aid t« tlip party, who hud been deceived In a pur- chase so made. The objection Is. that no action upon n warranty can be malntaineil. unlcHs the warranty Ih express; and that no t)ther action can be maintained, tinless there be a false allirmatlon resprctinir the quality of the article. If such were the law. It woulil very much embarrass the iqiera- tions of trade, which are frequently car- ried iiii to a lar^e amount by sampIcH of the articles bou;ilit and scdd. The authorities cited by the di'fendnnt's counsel have been carefully looked lnt<i; anil we think they do not militate with this decision: unless It be the case of the liezoar stone,' which we think would not ' Chandelor vs. lyopus, Cro. Jnc. -1, Dyer, 75. 84 BRADFORD o. MANI.T. now he received as law in England: cer- tainly not in our country. The vendor sold tlie stone as and for a bezoar stone, to one uiiae(iuainted witli siieli articles, and it turned out to be of inferior value The court held tlmt no action would lie; and some of the judges slated that even if the vendor had known that it was not a hezoar, and it had been so alleged, an action conld not l)p maintained with- out an express warranty.— The other case is that of Parkinson vs. Lee." There the hops sold were of the same kind and qual- ity as the sample: but there was an un- known deterioration by fermentation, caused by the arower of the hops, and not by the vendor. Hops being usually sold in pockets, and the quality ascer- tained by sample, it was held that the innocent vendor was not responsil)le to the vendee, for an unknown inherent de- fect, without an express warranty. That case does not militate with our opinion in the case at bar. The fair import of the exhibition of a sample is, that the article proposed to be sold is like that which is shown as a par- cel of the article- it is intended to save the purchaser the trouble of examining the whole quantity. It certainlj' means as much as this, "The thins 1 offer to sell is of the same kind, and essentially of the same quality, as the specimen I give you." 1 do not know that it would be going too far to say that it amounts to a declara- tion, that it is equally sound and good. But it is not necessary to go so far in the present case; and we are not disposed to question the correctness of the decision in Parkinson vs. Lee. It is expressly found by the jury in the case at bar, that tlie cloves delivered were different in kind from those wliich com- posed thesample, and inferior in value, not troni decay or exposure; but that there is a specific difference in the respective plants from which they are produced. Surely if a man were to exhibit to nie a parcel of hyson tea as a saniiile, to induce me to buy a chest, and I should pay him the price of hyson, and he should deliver me a chest of bohea or souchong; I might re- cover the difference in value. If he should refuse to do me justice, although he did not expressly warrant that the tea in the chest was the same as that in the sample. Indeed the exhibition of a sample must, in all fair rlealing, stand in lieu of a war- ranty or affirmation. It is a silent, sym- bolical warranty, perfectly understood by the parties, and adopted and used for the convenience of trade. The cases must be very strong, to estab- '2 East, 314. lish a principle so unjust, and so produc- tive of distrust and jealousy among traders, as that contended for by tlje de- fendant's counsel. For what purpose is the sample exhibited, unless it is intended as a representative of the thing to be sold? What would an honouralile mer- chant say if, when he took from a mass of sugar or coffee a small parcel, and of- fered to sell by it, the man who was deal- ing with him, should ask him it it was a fair sample, and call upon hira to warrant it so"' Mercantile honour would instantly take the alarm ; and if such questions should become necessary, there would be no need of that honour, which happily is now general and almost universally relied upon. That there is not an unknown atid invisible defect, owing to natural causes, or to previous management by some for- mer dealer, he may not be presumed to affirm when he shows the sample; and as to these particulars an express warranty may be required, consistently with confi- dence in the fair dealing of the vendor. But that the thing is the sanie.genericallj' and specifically, as that which he shows for it, he certainly undertakes, and If a different thing is deliv3red, he does not perform his contract, and must pay the difference, or receive the thing back and rescind the bargain, if it is offered him. A case similar to this in principle came before me two or three years ago at nisi prius. An advertisement appeared in the papers, which was published by a very re- spectable mercantile hou-ie, offering for sale good Caraccas cocoa. The plaintiff made a jiurchase of a considerable quan- tit^i, and shipped it to Spain; having ex- amined it at the store before lie purchased ; liut he did not know the difference be- tween Caraccas and other cocoa. In the market to which he shipped it, there was a considerable difference in value, in favor of the Caraccas. It was proved that the cocoa was of the growth of some other place, and that it was not worth so much in that market. I held that the advertise- ment was equal to an express warranty; and the jury gave damages accordingly. The defendants had eminent counsel, and they thought of saving the question; but afterwards abandoned it, and suffered judgment to go. Surely if a sample of Caraccas cocoa had been shown to the purchaser, and any other cocoa had been delivered to hiju, the case would not have been less strong. We are all decidedly of the opinion, that a sale by sample is tantamount to an ex- press warranty that the sample is a true representative of the kind. There must therefore be entered judgment according to the verdict. BRIDGFORD v. CROCKER. 87 EltrOGFORD V. CROCKER. (CO N. Y. 627.) Crmrt of Appeals of New York. Feb. 23, 1875. Action by Jnines Briflgford asninHt Leuiuel L. Crocker, ob survivor of tlie firm of L. Crocker & Co., to recover ilaniaKCH for the refuHal of one Pat (invin to receive certain cattle wbicli nl"i>>t>N claimed ho had purchased aa asent for said firm, and to recover also the amount of a check drawn hy said firm in favor of Gavin, and by him indorsed to i)laintiff, in payment lor certain other cattle delivered by plain- tiff to said Uavin, and received by him. Plaintiff held the cattle which Gavin had refnsed to receive until the folloning apriDK, when he sold tlieni at an advanced price, and defendant claims the benefit of such sale. There was a jiidjiment in favor of plaintiff, and defendant appeals. E. C. Sprague. for appellant. George Wadsworth, for respondent. GROVER, J. The questions raised upon this appeal by the c(>unsel for the appel- lant arise upon the defense sought to be made against his liability to the plaintiff as drawer of the check upon which the action was brought. This assiimes tliat a prima facie liability had been shown by the plaintiff. The case shows that the check in suit was one of a large number made by the tlrawers in the spring and summer of l.S(i7, amounting in all to J.'iO,- 00(1, payable to the order of Gavin, which during the spring and summer were de- livered by the drawers to Gavin, upon an agreement, as they claimed, that heshould use them in the west in the purchase of stock by him for the drawers, take such stock to and sell it in Chicago, and remit the proceeds to the drawers for the pay- ment of the checks, and that he sh<nilil re- ceive for his services in transacting the business a portion of the profits. Evi- dence was given showing that the check In suit was indorsed by Gavin to the plaintiff. In payment for cattle i)urchased of him, but the jiroof tended to, and, as the trial judge held, diil show, that the cattle were not i)urchased for the defend- ants pursuant to their agreement with Gavin, but for Gavin & Kelly. The judge held that this was a diversion of tlicclie^'k by Gavin from the purpose for wliii-h it was delivereii to him by the appellant, and that the latter was not liable unless he had assented to such use of the check by Gavin. The counsel for the respondent insists that, if the proof was insullicient to show such assent, still the recovery thereon should be sustained upon various other grounds suggested by him. I think It unnecessary to determine whether the plaintiff would hav been entitled to re- cover upon an.v of tliem, as the case was tried solely upon the theory, and the judge held, that the plaintiff could only recover by showing that the defemlant assented to the use made of the check by Gavin. It is impossible to see what further proof affecting the other questions now sought to be made by the respondent might have been given by the defendant had the rul- ing of the judge been otherwise. The only question as to the plaintiff's right to re- cover upon the check is, I think, whether the evidence was such as made the ques- tion whether the defendant assented to the use made by Gavin of the check one which should be determined by the jury, or whether the court should have dlrectefl a verdict thereon for the defendant upon this question. The proof of the plaintiff was circumstantial; that of the defend- ant direct; the latter consisting of the testimony of the defendant and (iavin that the forinef had never assented to or knew of any use made of any of the checks by Gavin, other than as provideil by the agreement. On the part of the |>laintiff it appeared that the defendant reposeil un- limited conHdence in Gavin ; that he deliv- ered to him this large amount of checks, and intrusted him to go int<j the western states, and operate with them in the pur- chase of cattle, sell the same, and with the proceeds pro vide for the payment of the checks; that (Javin, months before Indors- ing the check in uuestion to the plaintiO, used the checks of the defendant to pay for cattle purchased by him for himself and Kelly to a large amount : that the defend- ant knew that these checks were issued by Gavin from their presenttnent tothedraw- er for payment, some of which were paid, and others protested for noiipaynu-nt. al- though ultimately provided for by Uavin. This presented a question for the jury as to whether, after the lapse of months, the defendant had made inquiry and ascer- tained the purposes for which this large amount of checks had been used by Gavin. This testimony tends to show that he had not, but it is opposed to, strong proba- bility created by the circumstances. That a man should furnish to another $.'>0,000 of his checks to operate under such an agreement as is plain, should know that the checks, to a large amount, were being used, and that his credit was suffering by I)ermitting some of them to go to protest, and should not fur months make any in- quiry into the operations of his agent, or endeavor to ascertain whether the busi- ness was successful, is so improbable that I think a jury fully justified in not credit- ing It. It is obvious that the defendant, if he inquired, could have readily ascer- tained the purposes for which the checks had been used. I think the question of the assent of the defendant to the use of the checks by Gavin to pay for stock pur- chased by him for himself, or for himself and Kelly, was not only one for the deter- mination of the jury, but that the verdict that he did assent to such use was cor- rect. A man ought not to complain of a verdict tinding that he paid some atten- tion to his important interests, hoving every opportunity and indurement so to do. "although he may Insist that he did not. Cnder the remarkable conduct uf the defendant, as he claims It to have Itoon, the jury might have thought that there was some understanding between him and (iavin that the stork was to be pur- chased for the ilefendant in case money was made thereon, and in that event the checks given in payment therefor paid. 88 BRIDGFOUD v. CROCKER. but thatincase otlosstlie purchasesliould bo regarded as made for some one else, so as to erade payment of such checks. The rule of damages as to the cattle not taken by Gavin of the plaintiff, pnrsuant to the contract, was correct. That was that the plaintiff was entitled to recover upon the failure of Gavin to take and pay for the cattle, as required by his contract, the difference between the contract price and the then market value. The plaintiff had a right to tender the cattle, and sue Gavin for the price agreed to be paid, or he could, at his election, keep the cattle as his, and recoverhis damages forthebreach the difference between the contract price and then market value. Sedgw. Dam. (.5tli Ed.) 313, and cases cited in note 3. The plaintiff in the present case chose to adopt the latter course, and, in case the market fell subsequently. It was his loss; if It im- proved, it was his sain. The time at which the damages were to be fixed, when the vendor, as in the present case, chooses to retain the property, is that fixed for the performance of the contract. Dustan V. Andrew, 10 Sosw. 130. So far as it countenances any different rule in this re- spect, it was not well considered, and can- not be regarded as law. It matters not to the defendant what tlie plaintiff got U>r the cattle six months or any other time after the breach of the contract by Gavin to take and pay for them. It appears that cattle rose in the market after this. This was the good fortune of the plaintiff, of which the defendant cannot avail him- self. The Judgment appealed must be af- firmed. NOTE. The foregoing is JiidKe GROVEK'S opinion in full. The report in 60 N. Y. 627, gives only a memorandum of the decision. BROOKS V. POWERS. 91 BROOKS V. rOWKRS. (15 Mass. 244.) Supreme Judicial Court of Jfassachusetts. Worcester. Sept. Term, 1818. Replevin of a pnlr of oxen and other cattle, attached by the defcnilant, a con- Htalile, oil an oiJKiiial writ af;ainHt one Stephen Witt. The defenilatit pleaded property In Witt, Ira verned tlie property of lirooks, and avowed for a return. The plaintiff rei)lii'i] property in himself, u|)on whicli iHMUe waH joined. Upon the trial of thlH iHHue before Putnam, .J., it ajipeared In evidence that Wilt, durinj; the years ISIB and 1M17. lived on a farm owned by the plaintiff, who liad leased the Baino to Witt for tho.se years, n)akin^ a distinct leaHe for each year, coninieminti on the let i>f April. A few days before the at- tuchinent by the defendant, viz. on the 14th of April, 1S17, Witt f;avc to the plain- tiff a bill of sale of the cattle, and made n delivery of tliem on tlie farm, in payment of a part of the rent for the preceding year, and of tlie whole for the year then ensuing; except the sum of three dollars, for which Witt gave his nolo to the plain- tiff. Witt and the plaintiff then a^jreed, that Witt should have tlie oxen, t(» carry on the work of the farm that year, for which he was to support them free of ex- pensi' to the plaintiff : and it was further agreed that tlie ()laintiff miKht work the oxen, when Witt had no occasion to work them on the farm himself. It was further afcreedthat Witt sliould pasture the other cattle for the plaintiff, for which he was to pay the customary price. The cattle were in the possession lU' Witt, after the sale, in pursuance of saiil aKreement, un- til they were attached as afuresaid. It was likewise proved that Witt, at the time of the sale to the plaintiff, was the owner and in actual possession of the cattle, of a part of which he had been the owner, and In the continued poRsesfilon, for a louK time before tlie sale, and that the plaintiff had never had the property or possession therfof before the sale. The judue charged the jury, that If tiiey were satistie I that the cattle were sold anil <lc- livered in the manner and for the coiisid- eration Ktated, the circumstance of Witt'8 retainiiiK the posHCssion ot them, for the purpose <^f pasturing them, and of the plaintiff's [jermittint; him to use the oxen, would not be conclusive evidence of fraud, so as to avoid the sale an to creditors; but was one of the circumstances, which was proper to be submitteil to the jury, as tending to prove the sale fraudulent as to them; and that if. upon considering the whole evidence, they nliould believe the sale to have t-een bona tide and for a good consideration, and not marie with a view to defraud creditors, their verdict should be for the plaintiff. And a verdict being so returned, the defendant filed hia exceptions to the said opinion of the judge. Lincoln, for plaintiff. L. Bigelow. for defendant. BV THE COURT. It has been contend- ed in Miiscase, that the possession of the vendor of personal chattels, after the sale, is conclusive evidence in favour of credit- ors, that the sale was fraudulent; or ratlier that it is itself a fraud, liut we 'ire nil of opinion tliat, ultlioiigh it is gen- erally evidence of the strongest kind, it Is not conclusive. The vendee may, not- withstanding, upon proof that the sale was bona tide and for a valuable consid- eration; and that tlie possession of the vendor, after such sale, was in pursuance of some agreement not inconsistent with honesty in the transaction; hold under his purchase against creditors. .\nd so it has been ofleu decided in this court, as well as in Kngland. Judgment on the verdict. liltOWX r XOKTIICUTT. O:! BROWN et a1. v. NORTIICTTT. GOODMAN et al. v. NOKTIICI Tr. (13 I'lic. Hep. 485, 14 Or. 5-J'J.) Supreme Court of Oregon. Marcb, 1887. N. n. KniKht nn<l J. A. Stratton. for Bppellant. Win. M. Kninsej, for rc-M|>oii(J- ent.s. TIIAYKU, J. The ni.iin faetH of tlilH cnHi- iirc UH followrt: In .luiiuary. IsMt, certaii) piirticH, iiicliKlint; the rcsponilentH nnd iippcllant, litid wheat in ilil'ierent HinoiintH (in Htorauc in the warehouHo kept li.v onr S. Ilarkleroail. at (JervuiH, in Marlon county. The wheat had been re- ceived liy llarklerond an wari'houHenian, and WHH In nin.sH. On the twenty-Hccond <if January, isso, the appellant liaviiiK made arranyfcnicnts with .Mien & I,<'wiH, of Portland, to Kell to tlieni the wheat he had on depoHJt inHaul warehouse, ^ave an order to ilarkleroad t(> Hhjp it to hv.'k) nllen & I.,ewis. and at the Hanie time eon- traeted with Ilarkleroad to procure for him the neceHwary sacks in which to lilnce it for Hhipnienl. Ilarkleroad enj;aKe<l transportation of the railroad company for the wheat. 'I'here was a side track to his warehouse, and the company left some curs upon it to receive the wlie;it. Ilar- kleroad enK'JKed in sackiiiff and putting the wheat ulioard the.se cars. After he hud sacked up some l,:5:i.'i liushels, the greater jiart of which he hail put ahoard the said cars, he stopped sackin;;. an<l sent for apiiellant. who lived a few miles out in the country from (iervais. .\ppel- lanteamo to (jervais on the eveiiin^j of the thirtieth of saiil month of .lanu.'iry, and was then informed that there was not suliicient kvlieat on stora;;'e in said warehouse to pay all the depositors the amounts they had respectively stored with Ilarkleroad. A conference was had between Ilarkleroad ami the respomlents and appellant, which resulted in llarkle- road's maUiuf; a bill of sale to theuj of cer- tain effects, inchidind tlie wheat, and on tlie following day they (respondents and appellant) entered into a written agree- ment between themselves, of which the following is a copy: "Articles of agree- ment made and entered into by and be- tween N. Goodman, S. T. iNorthcult, and S. I'.rown, of .Marion county, state of Ore- gon, on this thirtv-tirst day of .laniiarv, 1H80, as follows, towit: Whereas, S. Harkleroad did, on the thirtieth day of January, l^SO, make i\ bill of sale and de- liver to the above-named parties to this agreement all his personal property, con- sisting it) part of wheat in the warehouse at (Jervais, and all other articles nieii- tloneil in said bill of sale, for the puriiose of said |)arties converting the same into money, and paying themselves pro rjita for the claitns the saiil parties liold ngaiiiHt said Ilarkleroad on account of having wheat stored in his ( llarkle- road's) warehouse in Gervais. Each one of said partles'claliu is as follows, to-wlt: J.Stevens, per S. Urown, 7i)J :!l-t;i) hush- els; S. T.Northcutt, 1,7L':! 2:!-(ilt bushels; N. Goodman, 7SS bushels: W. McKee, per S. Brown, 10 4'J-(iO bushels; and furlheragree that, as soon as flu- wheat above referred to is converted into money or divided, then the fuml arising from said wheat, as well as that of any other properly ho M(dd to us, shall be divided pro rata.as each claim liears to the whide amount claimed; and we further auree to convert all said property, real anil personal, into money, then a full and e(|ual diviHion pro rata to bu made, and all lnisinehH to be settled up as soon as the nature of the business will admit of, with as little loss to us as jiop- sible; ami it is further understood that the shriveled or spring wheat In said warehouse, turned over to us by said ilarkleroad, iloes not belong to the par- ties to this agreement.— only such as is left, if any, after the (larties who own the same have taken out their claims on said wheat. Witness, etc. N. Gooilman. S. T. .Northcutt. S. lirown." The respond- ents and appellant were the piincipnl owners of the wheat storeil. There were, however, three [inrties besides those named in said written agreenient who also had wheat stored with Ilarkleroad, viz.: John Wolford & Co., 117. liO bushels; .lames Broyles, "JS bushels; and Charles Harkhnrst, l(i(J..10 buslielH.— subject to the general deficiency. The following Is a copy of the bill of sale referred to in said agreement above set out, viz.: "Know all men by these presents, that I, Samuel Ilarkleroad, of Gervais. .Marion county, state of (Oregon, have this day solrl to N. Goodman, .S. T. Northcutt, and Samuel Urown, and delivered to tliem. all my right, tide, and interest in and to the fol- lowing describeil property, to-wit, for the consideration hereitiafter named: All the wheat in the warehouse which the said Ilarkleroad has been controllltig dur- ing the year 1S71I, and up to this date, known as the II Hewitts Co. warehouse, in (jervais, and also all sacks in said ware- house, or due him from different parties; also all book accounts, ami notes dnesnld Ilarkleroail for storage, etc.; 1 pair platform scales; 1 beam scale; 1 pair trucks; I scoop-shovel, and some belting; 1 tiay horse named John; 1 sorrel mare named Nell; 1 Ktna mower; some buck- wheat screenings, in said wareliouse; 1 set double harness; 1 sulky-plow; I Stand- ard organ, -for the consideration of the sum of $:!,.'illO. the receipt of which Is hen>- by acknowledged, hone in (iervn's, Ore- giin. this thirtieth dav of .lannarv, Is.si). S. Ilarkleroad. [L. S.]" After said bill of sale was executed, and the understand- ing had in reference to the closing out of the affair, the appellant became sollcllons about his arrangement with Allen & Lewis to sell them his wheat, which re- sulted in an agreement bet ween him and the respondents that he shoubl have n snlllcient part of it, at one dollar a bushel, to nil his contract with .\llen & Lewis. The tiusluess and assets of said Ilarkle- road were, on the said thirty-tlrst day of •lanuary, delivered over to r(>spomlent8 and appellant. The latter says in his tes- timony that " the next day — that Is. Sat- urday, the :tlst— the key of the warehouse was given to me. 1 went over to the warehouse for a few minutes, and came 1 buck to .Mr. Goodman's. " Then he went 94 BROWN V. NOKTHCUTT. and received the property; went by the warehouse; toUl the men tliat hud been working there for Ilarkleroad that he did not think lie could do any work in tlie wareliouse tliat day; went up to Ilarkle- roart' , and was busy until noon reeeivinfr tlie property ; thinks that was all that was done that day between Brosvn, Good- man, and liimself; thinks the agreement was drawn up and si;ined tliat day, and the next morning, Sunday, got eoiiio hands and went to work; the first work was to sew some sacks that were filled when he went in, and load a oar; did not (ill any wheat to load the car out of the bins; there was a car-load already filled ; that appellant received of said wheat, includ- ing that which was at the time aboard the cars, and that had been sacked and left in the warelioUKe, l,(iS7 bushels, which he delivered to Allen & Lewis upon his contract with them, and received the price thereof. There was a deficiency of wheat held by Harkleroad, at thetinie ap- pellant gave the order to ship his wheat to Allen & Lewis, and at the time Harkle- road began loading the cars, amounting to about one-third the quRutity that had been stored with him bj- ihe several par- ties before mentioned. The suit was brought to adjust the matter, and to compel the appellant to account for the 1,087 bushels at one dollar a bushel, the price he had agreed to pay therefor if the respondents would permit him to ship it upon his said contract; and I am not able to discover any sufficient reason wlij- he should not be required to.do so. It is true that the bill of sale and the W'ritten contract between the parties only specify the wheat in the warehouse; but it is evident, I think, that the parties in- tended them to include all the wheat Harkleroad had on hand, or that was in the cars, or that had been sacked. The written agreement shows that, and the testimony establishes it beyond any ques- tion. It is claimed u[)on the part of the apiiellant that all the wheat that had been placed in the cars prior to the time of the agreement between the parties, and all that had been sacked and left in the warehouse, belonged of right to appel- lant; that as soon as it was segregated from the mass of wheat it became his in severalty; and that he ilid not know at the time he signed the contract that the 1,333 bushels had been sacked, and the three cars loaded, and that he should, therefore, be entitled to claim that wheat notwithstanding he hail agreed to receive it, and pay to respondents a dollar a bushel therefor. K it were material, 1 do not think appellant could establish from the testimony ignorance or want of knowledge of that fact. Ht) had given the order to have his wheat sliiiiped : was at the warehouse on the morning of the day the contract was entered into; testified that three cars were then loaded ; went the next day, and began the completion of the shipment of the wheat; and on the second day of February thereafter, ac cording to the testimony of Mr. \V. T. Welch, book-keeper of the assignees, re- spondents and appellant, the amount of the wheat received by appellant, and shipped to Allen & Lewis, was charged up against appellant upon the books of the said assignees, under the direction of the last-named parties, and apparently with the full approval of all of them. He certainly had the fullest opportunity to ascertain before signing the said contract what Had been done by Harkleroad in coiiipliauce with his order. Hut what does it signify whether he knew it or not? There was n shortage of wheat in the warehouse liefore any was taken out to put aboard of said cars. There was only about two-thirds enough to pay the depositors, including the appel- lant, the amounts tlie.v had respectively stored there; and, the wheat not having been kept separate, the deficiency or loss, from whatever circumstance it may have occurred, if not occasioned by the fault of any of them, must fall in>on all in the proportion which the amount of wheat each had deposited bore to the whole amount deposited. This rule is based upon a maxim that all courts are bound to observe,— the maxim that equality is equity; aud it certainly could have no better foundation. The authorities pro- duced at the hearing by the respondents' counsel show that it has been recognized and approved by courts of the highest au- thority. See Ci'shing v. Hreed, 14 Allen, 3S0; Sexton v. Graham, .53 Iowa, 192, 193,4 N.W. Rep. 1090; Dows v. Erkstrone,3 Fed. Rep. 19. 20; Dole v. Olmstead, 3<) III. l.'iO. In Cushing V. Breed, supra, theeourt held that where sevei'al parties had stored vari- ous parcels of grain in an elevator, and it was put into <me mass according to usage to which they must have been deemed to have assented, they were tenants in com- mon of the grain, and that each was enti- tled to such a proportion as the quantity placed there liy him bore to the whole mass; and in Dole v. Olmstead, supra, the court held the same doctrine; and held, further, that, the grain being thus owned in common, the several owners were compelled to sustain any loss pro rata wliidi might occur by diminution, decay, or otherwise; and that, where the holder of a receipt had received the full quantity, or a larger proportion than his r.itable sliare, in view of the deficiency, he would be bound to account for such ex- cess received liy him according to his i)ru- portion of the loss. This is undoubtedly the correct rule, as it is founded upon com- mon justice. The result of the rule is simply this: A. puts wheat in a warehouse for storage. B., t'., and others severalli' have wheat there for the same purpose. It is all min- gled together with the presumed consent of all parties. They each necessarily own the several amounts of wheat they have there, but neither can identify his own. But it is in common, and if a loss occurs by casualty, or the warehouseman wrong- fully abstracts a part of the general lot, it must necessarily be borne b.v tliedepositors pro rata. But, to render A. liable to eon- tribute to the loss, it must occur after he stored his wheat. He would not be af- fected by any deficiency which occurred prior to his deiiosit of his vvlieat. Former deficiencies would have to be borne by BROWN V. NORTHCUTT. 95 15., C, and otherH who had wheat there when It (icciirred. A.'h iiiiiount of wheat would be tlio proportion it Ijoro to the whole amount actually in Btore when l)o placed his there, not to the uuKJutit it woulil lie with what 1$., C, anil othcrH had really put there. Now, when the up- pellatit Have the order to Uarkleroad to Hhip his wheat to Allen «X: Lewiw. he did not liaveonHtoraKc with him 1,7-i ii-fiO buHlielM. AsHUMiin« that the delieijiicy amounted to one-tliird of the whole niasH, he only had 1,14S and a fraction bUMheU there, and had no rl^ht whatever to take more than that from the warehouse. Any attempt upon IiIh part to take be- yond that <|uantUy was an attempt to take wheat which did not belonji to liiin, or to Uarkleroad, but which did belonj? to the rcHpondentM and the other deposi- torw. The diminution of the general l<it of wheat In the warehouse, one-third, has diminlHlied his (|uantity one-third also, and left liiiu only the owner of the nu:n- ber of liushels before mentiimed. His at- tempted Hhl|iment of his wheat, therefore, nave him no better Ktandin};; or iurther rijjhtM in the premises than the other de- positors enjoyed, althou}^!) it were sacked anil put ab.)ard of the cars, except this: He might, when he came to (iervais on the said thirtieth dav of .lanuary, have elected to take the l",14S bushels , but it was an advantage to him to acccept the assignment, as he thereby also aciiuiroil an interest in tlic scales, horses, and other proijerty included iti the bill of sale from Harkleroad. Some suggestion was made upon the argument that the law favored the vigi- lant in obtaining their rights. To a cer- tain extent tliat is correct. The law- looks with disfavor ujion a |)arty who sleeps upon his rights, but it certainly does not commend the vigilance of a party in his endeavors to deprive others of their rights. The vigilance that is exercised to get others' property from them may be tortious, and even criminal. 1 cannot see but that the respondents and appellant acted fairly and manly in their attempted adjustment of the matter. The respondents may have been odicious in having Harkle- road quit the shipment of the wheat for ai)i)ellant; but they had a right to be Their wheat was there also. A deficiency had occurred in the amount of wheat on hand. There was not enough left to pay all the depositors in full, and, if the apjiel- laiit were permitted to lake out the full amount he had placed in the warehouse, their loss would be greater. \\ was right, under the circumstances, that Harkleroad should desist from shipping the wheat until the affair could be arranged, and it could not have been arranged in any bet- ter or more honorable way than it was. The res[)ondents and appellant being the principal depositors of wheat, all that remained on liand, and all the other prop- erty Harkleroad had, was assigned to them, and they enteied into tlie written agreement to administer upt)n it. Kven if the uppelliint had obtained a legal ad- vantage In consequence of a part of the wheat having been sacked and delivered aboard the cars. It would have been the merest technical ailvantnge Imnglnnlde. and would huvx operated iuequilably and unjustly. I think a c<nirt should, in any case, require the clearest proof of fraud or Imposition before relieving a party from his contract In order that he rnluht profit by an unjust advantage the law may afford. I!ut, as before stated, the appellant held no advantage on account of the segregation of the wheat sackei from the mass. He had no right to ac- cejit or remove a kernel of It beyond his pro rata portion, and that was awarded to him In the adjustment by the tr-rms of the written agreement. The suit was brought to enforce that agreement, and for a final accounting between the iiarties to it. The able anrl experienced circuit judge has hi'ard the case, and 1 think has decided It correctly in the main. There Is a discrep- ancy in the account against the appel- lant arising out of charging him the full amount of storage on the wheat in con- troversy. This sum should have been de- ducted from the amount of appellant's wheat on storage on which his dividend Is declared. The decree will therefore be modified accordingly, and in other re- spects afflrnird ; costs of appeal tol)epaid out of the funds in the hands of assignees. LORD, C. .r., (concurring.) This is a case of bailment. Upon that hypothesis, where wheat of different owners has been deposited in a warehouse, and so inter- mingled that idetititicatlon of sei'.arate ownership is lost, the depositors of such wheat in mass are tenants in common. But the title of the depositors or the own- ership of such wheat has not been de- stroyed by the intermixture; the deposi- tors havesimply transferred the possession to the warehouseman, and he liolds it as their agent, and subject to their orders, tor a delivery of the possession. In such case, the wheat is a common fund out ol which each de|)ositop Is to be restored to his possession, or, so to Hi)eak. for the re- payment of each owner's wheat. Any owner or depositor, upon the payment <jf charges for storage, has a light to de- mand the redelivery of lils wheat, and to be restoreil to its possession. The segre- gation of the wheat from the bulk, and thedelivery of it to theowner forthei)uan- tity of wheat to which he is entitled, only puts him in possession of his own prop- erty. The effect of the segregaliim is to identify the wlieat for the purpose of de- livering possession of it to the owner. But the segregation of the wheat, l)y which its identity is restored to make it available for a delivery of pos.session to the owner, always proceeds upon the principle that the warehouseman Is in possession of the wheat, in mass, of such depositors, and from >vhlch. by segrega- tion, he identllies the wheat of an Individ- ual owner, and restores it to his posst-s- sion. His act Is but a partitioidng of the individual quantity from the mass with which It has been intermingled, and must, of necessity, operate upon the mass of which such Individual <)uantity consti- tutes a part. Hut, being a (lartofsucb mass, whatever affects or diminishes that mass win affect or diminish proportion- 96 BROWN 0. NORTHCUTT. ally all the parts of siich mass, and conse- quently such individual part or deposi- tor'squantity of such mass. When, there- fore, by reason of accident or otlicr caiine, there lias been a loss or diminution of the mass, it affects ratal)ly the quantities to which s'lch depositor is entitled of such mass, reduces the gross quantity of the wheat in the possession of tlie ware- houseman, and proportionally limits his power of restoring possession to them. His possession of the wheat in mass, be- ing for the depositors, is affected In the same degree as their ownership is by the loss or diminution. His possession is still of a mass, but of a diminished mass, and they are tenants in common of such diminished mass. His power to restore possession is measured by the quantity to which eacli depositor is entitled of such diminished mass; and tliis is the ground of division, whether the warehouseman is in possession, or tlie depositors have taken possession of such mass. 'J"he warehouseman cannot rightfully give, nor can any depositor rightful^- take, possession of any greater quantity than he is entitled to, based upon the masa affected by the loss or diminution. If the warehouseman should deliver to any de- positor a greater quantity than he would be entitled to, from such residue, although the proper quantity to which lie would have been entitled, if there had been no loss or diminution, it would be a wrong- ful taking, as well as a wrongful posses- sion, as against the other depositors, for the surplus over the quantity to which he would have a right of such residue. Analogous to the principle upon which equity acts, where several parties are en- titled to participate in a common fund, and awards a distribution upon the maxim that "equality is equity,'' it will treat such residue as a common fund, to be distributed in ratable proportions among the depositors entitled to partici- pate in it. Upon this principle, as dis- closed by the record, the decree can be sustained. So far as appears, all who have a right to participate in the distri- bution have been made i)arties. In such ease, the remedy in equity is uiore com- plete, and certainly would avoid a mul- tiplicity of suits. It acts upon the col- lective rights and liabilities of the parties, which is said to be a distinguishing fea- ture of the equity system, and awards its distribution upon the equitable princi- ples of the maxim cited. BROWNE V. UAUE. 99 DIIOWMC .-I al. V. HAKE et al. (3 Hurl. & N. 484.) Exchc(|iier of ricas, Trinity Term. June i-, 1808. (4 Hurl. & N. 822.) Kxchequer Cbanibor, Trinity Vacation. June 23, 18J!». Decliiriition. Tliut defendantH agreed with the pliiiiitiffM lo buy of then) a cer- tniii (|iiaiitit.v, to wit, ten toriH, of the IjOHt ri'liDeil inpu oil, to be hIi)|)|)1'(I free on hoard nt liotterdjiin in September, Is.j", ut £4!S l.')H. per ton; to be paiil f(jr, on de- livery to the defei.daiitH (jf the bills of lad- ing, by bill of exi-lianire to lie accepted by the defen<Iaiits payable three iiionth.s after date, and to be d<iled on the ilay of Hhip- nient of the Hald oil. .\nd althoiiiih with- in the month of Septeml)er, 1n,")7, the|ilain- tlffs -ihippcMl at Kotterdain a certain por- tion. In wit. live toMH, of the best rehned rape oil free on board u certain Hhip called the S(jiihie, and tli.? rcHidue thereof free on board a certain other ship, and deli vered to the defendants the res|)ectire bills of ladint.' o( the said oil dnly indorsed to the defendants; and altlion^h the plaintiffs performed all conditions precedent, and all things had been done an<l happened, and all time had elapsed, to entitle the plaintiffs to have the said oil paid for by bill of exchange as aforesaid, and to main- tain this action; yet the defendants n)ade default in iiayiiiK for the said portion of the said oil so shipi)ed on Ixjard the sni(; ship called the .Sophie, and in ncceptinK a hill of e.\chnnj;e for the same. There was also a count for goods barpained and sold, and >;oods sold and delivered. ricas to liist count. First, that defend- ants did not agree with plaintilfs as al- leged. Secondly, that the plaintiffs did not ship the sale! portion of the oil on hoard the sliip calleil the Sophie. Thirdly, that the plaintiffs did not deliver to the defendants the bill of lading of the said portion of oil shipped on board tlieSophie. duly indorsed to the defendants. Fourth- ly, that the plaintiffs were not ready and willing to deliver the said portion of oil Bhipped on board the .Sophie, or the bill of Indlngot the same oil. to thedefcndnnts, in accordance witli the terms of the said agree- ment. IMflhly. that the said agreement was for the sale of ten tons of oil gener- ally, and not of any specific or nsrertnined oil. That the said ship called the Sophie was a general ship, and was not a ship chartered by the defendants or in any way appointed or denoted by them. That the plaintiffs, when they shipped the said DortioTi of oil on boardthe Sophie, took from the master of that vessel a bill of lading of the said oil, making it deliver- able to the order of the pl.iintiffs or their assigns, and not otherwise. That liefore any delivery of the said oil to the defend- ants, and before any indorsement or de- livery of the s.-iid liill of l/iding, or of any bill of Ijiding (if the said oil. to the defend- ants, the said shiii called the Sophie, with the said oil on board, was totally lost, and the said oil then bei'ame and was Without any neglect or default of the de- fendants wholly lost and ilestroved. That the plaintiffs never, in tact, <lellvircrl or oft.-red to driiver, nor have tliev bei-n ready and willing lo deliver, the HuTd oil li> the defendants; nor have the pluintiffH ever delivered or offered fd deliver, or lieen ready and willing to delivi-r. the said liill of lading or any bill of lading of the naid oil to the defendants until after the said oil had been ho wholly lost ami destroyed as aforesaid. That when the plaintiffs delivered to the defendants the said bill of lading of the said oil as In the tirst count mentioned, the plaintiffs kin-w, and . the defendants did not know, that the said ship and the said oil had been so lost [and destroyed as nforesaiil. That the ; defendants have not derived any benelit or advantage whatever or any possildl- ity of benelit or nilvnntage under the said agreement, or received any consiiler- I ation or value whatever for ttie liability sought to be imposed on them in this ai-- tion by the plaintiffs. To second count, never indelited. Issues thereon. At the trial tiefore .Martin, B., at tliH Lonilon sittings after Hilary term, the following facts appeared. The plaintiffs were merchants at Hot teiilam, and the defendants merchants at Ilristol. On the j'Jth of.\pril, |s.">7. the defendants wrote the following letter to one (ioolden, a ' broker at I'ristol, who had before nego- I tinted i)urchases between the plaintiffH and the defendants:— " Messrs. Itrowni' & Co. may .send us 20 tons of best relined rape oil in September or October next, at or under 47s. free on board." (ioolden ac- cordingly communicated with the plain- tiffs, and tlie defendants afterwards wrote to them that they might go as high an 4Ss. (»n the Htli the defendants wrote to tlie plaintiffs .'ibout the pnichase of some black lead, and stated that they had rather that the plaintiffs wouhl coniiiiuni- cate with them, but that all their trans- actions in oil might go ou through Uool- den. .\fter some further correspondence between tho parties, a contract was made, through Ooolden, for the sale by the pl'iintiffs to the defendants of twenty tons of the best relined rape oil, ten tons "tobeshipped free on Itoard at Itotter- dnni, September, ls.'>7, at t4S l,")s. per ton, to be paid for, on delivi-ry to the deleiiil- ants of the bills of lading, by bill of ex- chniige to be accepted, liy the defendants, payable three months after date, and to be dated on the day of shipment of the oil : " the ten other tons were to be Khlppeil in OctoliiT on the same terms. Onthe:!(l September the defcnilants requested tlie plaintiffs to sen<l part of the oil by the tirst vessel from Itottenlam, which was the Sophie. t)ntlie7th September the plain- tiffs wrote to tiocddeii. who informeil the defendants on the '.1th, that live timsoftho oil woulil beshi(ipedon the fidlowing day. On till- sth September, the plaintiffs shlppeil on board the .Sophie, which was u general vessel trailing from Kotterdain to Bristol, live tons of the oil, and the mas- ter signed the following bill of Iniling: "Shipped In good ordi r and well condi- tioned by 'J'lios. Itrowne and .Son in and upon the good steamship called 'The Sophie," wherctif Is master, &c., and now 100 BROWNE V. IIAUE. Jyinp: in this port nnd bound [or liristol, tliirtoon casUs of oil, niarUed and num- bered as iu the margin, and tube delivered in the like Rood order and well condi- tioned at the nforewaid port of liristol (the act of God, the Queen's enemies, lire, machinery, Ijoilerw, Kteani, and all an(J every other danfiei's and accidents of the seas, i-ivers, and Ktcam navigation of what nature or kind soever excepted,) unto shippers' order or their assignw, he or they payinj; freight for the said goods 25fl. Ht. per' ton, Ur. VV., with lOs. prim;i<:e and averafie accustomed and dislmrse- nients as in the margin. In witness," &c. On the same day the plaintiffs endorsed the hill of lading as follows:— " Deliver the contents to the order of Messrs. .Ino. Hare & Co. Thos. Browne & Son." The plain- tiffs also made out an invoice as follows: — "Invoice of oil shipped on board 'The Sophie,' J. Van Isnapon.for Bristol, by or- der of Mr. S. (Joolden for account of Messis. .Tno. Hare & Co. there, 13 casks refd. Kape Oil, weighing nett 12'235 in Eng- land, ((( XAS ir>8. per ton. (fo. B.) £'2ti() os. Cd. Rotterdam, Sth Septr., lS.i7. Thos. i?rowno & Son." (Then followed a note of weights.) On the same day the plain- tiffs enclo.sed in a letter to (Joolden the bill of lading, invoice, and a bill of exchange drawn on the defendants in accordance with the contract. On the night of the fltli the Sophie was run down in the Bris- tol Channel, and the oil totally lost. The plaintiffs' letter of the Sth arrived at Bris- tol on the afternoon of the 10th, in due course of post, but after business hours. On the morning of the 11 tli, (Joolden left with the defendants the bill of lading, in- voice, and bill of exchange for tbeiraccept- nnce. At that time he knew of theloss of the Sophie. In about twfi hours the defend- ants returiKMl to (ionlden the documents which he left with theiu, on the ground that under thecircumtances, they werenot lialile tr) iiay for the oil. The other five tons arrived on the 2Sth of September, and were accepted and paid for by the defend- ants. The learned judge was of oi)iuion that under these circumstances the plaintiffs were entitled to recover; and the jury found a verdict for them, stating Ihat in their opinion, accordir.g to meirantile usage, the risk of the loss cf the oil was on the defendants. Leave was then re- served to the defendants to move to enter the verdict for them. Hugh Hill, in last Easter term, obtained a rule nisi accordingly, against which Butt and Prideaux showed cause in the same term, (May 6, 8.) Hugli Hill and Raymond, iu support of the rule. The learned judges having differed in opinion, tlie following judgments were de- livered. BRAMWKLL, B. I am of opinion that this rule should be made absolute. 1 will first consider the actual case independent of the pleadings. The plaintiffs agreed to sell to the defendants, and the defendants agreed to buy of the plaintiffs, a quantity of oil, the particular parcel not being as- certained. Iu addition to selling, tlie plaintiffs were to ship tbe oil free on board a vessel to take it from the plain- tiffs to the delendants. 'I'he defendants were to pay on delivery of the bills of lad- ing, by bills to be dated on tha day of shipment of the oil. Oil was shipped liy the plaintiffs to the extent ol aljout twentj' tons. Various bills of lailing in sets were signed: they were taken deliv- erable to the plaintiffs' order. One of a set, for about five tons, whs indorsed by then) specially to thedefendants (i. e. such an indorsement was written on it) and (endei-eil to the defendants, but before the ten<ler the ship and oil were lost and destroyed. The |)luintirfs, however, on the 7th September, wrote to (joolden to inform the defendants, which he did before the loss of the Sophie, that she would l)ring tive tons of relined lape oil for the defendants; but they did not identify or appropriate any [larticular oil, nor even intimate that it had been shipped, — i)rob- ably it had not been, as the bill of ex- change is dated the Sth. This contract is essentially a contract for the sujiply of unascertained chattels, and I think it is clear law that, under such a contract, the seller can have no right of action till the seller has done an act which, by the agree- ment between him and the buyer, is to vest the property in the buyer: as, by de- livery to him, (jr to a carrier for him, of goods corresponding with the writing, or till the seller has appropriated or of- fered to appropriate and supply to the buyer certain chattels which correspond with the contract. See Blackburn on Contract of Sale, pt. 2, c. 1. Have either of these things taken place here? I think not. An appro[)riation in the seller's own mind, a mere intent to ai)pr<jpriate,— a mutter which the seller can suppress or undo at pleasure, — will not sufiice. If he offers to appropriate particular articles, and the buyer without cause refuses them, a right of action for not accepting vests; but unless there is an appropriation of- fered, and accepted or reaised, there is no cause of action. I do not understand there is any doubt on the law: then it re- mains to examine the facts. I think it immaterial, but the Sophie was selected by the plaintiffs, not by the defendants. If she had been the defendants' ship, and the oil had l)een put on board it, as it mijiht have been delivererl to a wagon, that would have been a delivery to the de- fendants, assuming the oil corresponded with the contract. So the Sophie being as it were a carrier's ship, the oil might have been put on lioard, as a parcel to be carried by land may be given to a com- mon carrier, so as to vest the property in the consignee and be a delivery or not, according to the right of lien. So if, after the shipment, bills of lading had been taken in the defendant's name, or if taken in the plaintiffs' name they had been in- dorsed and delivered to the defendants while the goods were in existence, 1 think that would have been a compliance with the contract; because, even assuming the property is to be in the buyer from the time of shipment, and that the seller is the buyer's agent to ship, still I think he may BAercise that agency iu his own name. « BROWNE V. II.VUE. 101 and thnt it is no more necesHary lie Hhoiilil I plea in an answer. On tlio latter vl^ w, t.ikf tlie hill of liulluK in tlii- buyer's naiuo tlie ilellvery of tlie liill of lailiii^ must lie tlian it is tliat lie siioultl say at tlie ino- tak'^n to lie a delivery while tlir- oil wuh riiPiit of shipment, "These Hie the buy-r's capatile of appropriation, and then the UOdds, I ship on his acc-oiint. " liisiirha four! Ii (>lea meetH the ease, .\iiyhow the ease his tender of the hill of l,idiii)r, [irop- tiftli plea is proved, lor the allegation that cily itiilorsed to the buyer, may well he the plaintiffs knew the oil was lost, and taken to show he wa.s aetiiii; as the buy- the deleiidaiits ilid not, is iniiniiteriai,— of er's iiy;ent in the shipment, anil conse- roiirne If tha t plea is bad. it is not pruveO, (jiiently tliat he, in effect, shiiiped tlie ' as those alleviations Mre not. jjToo'is for him. liut if the seller had the This opinion is warranted liy the ou- ri^ht, as loni; as the troods were in exist-: thorltles. if no profierty vested In thodc- enee, to say that he had done nothing to fendants while the iroods were In esse. It vest the proiierty in the buyer, that he remained in the plaintiffs, and they iiiuHt never offered to apprcjprinte them, surely bear the loss. The following aiilhoritieH it was too late for him to do so after the show that no property die! vest: Turner L'oods were lost. Then liad he done any- v. 'J'lie Liverpool l>oi-ks;> Kliersliaw v. thin;; to vest tlie iiroperty. had lie ileliv- .Mnuniae.-' where there is the e.\presNion in ered, had ho offered to aiiprupriale this the judgment, " Though the nooils iiilnht oil while it was in existence? Ii so, when? ha ve been purchused with the intention At the moment of shipment ? flea riy not. | they should be delivered to ICIIersha w. Mow could it be? The ship was not the that intention was never exeruteil;" di fendants" ; the oil was put on board .Mitdiel v. ICde;-'' Van Casteel v. Hooker.* with no notice that it was for the di-feiid- No doubt in some of those cases the word ants; otlier oil was put with it; and it " intention " is nseil, but It iiieans " inten- WHS in tlie jiower of the plaintiffs to ap- tion indicated. " In the jnd;iiiieiit in Tur- (iropriate to the defendants such part, or ii'-r v. 'i'he Liverpool Docks it is saiil: no part, of the whole, as tliey pleased. "The question really is whether any anil The cases referred to helow clearly show what effect is to lie K'^'en to the terms of there was no delivery. Was it, then, the liill of lading;; for it by those terms when the [daintiffs took the liill of lad- they reserved to themselves the dominion iiii;? Clearly not. When they indorsed over the cot ton, it would not pasH to the it? I say, as dearly not, for there was assi;ine''s. And in this case It «as well iiotliiiiK to prevent their erasing that in- ar;iiied by Mr." Hay miind, that had the dorsement, or ilesfroyine; or siippressiiin | osition of the parlies been reversed the that bill of lading, and inilorsin;; another, defendants could not successfully have Then was the property so vested or ap- said, " You took the bill of ladin;; in your Iiropriated by the bill of lading so in- <iwn name, but you inte.ided it for lis." dorsed beiiitf sent to (lOiilden? That de- l!ut Wait v. Maker •''• seems to me in point, pends on whether liooldeii was in any and the reasoniii;; of Itaron I'arke decl- way tlie au'ent of the defendants, and sive. Nay, it is stronyrer t Irin the present otherwise tlie ease is as thoiiKli the sellers case, for there it is manifest LethbrldKB had tliemselves brouciit the bill of ladinR liad intended the barley for the defendant, to liristol: they retained their power and had tidd him so; liut liavint; done an over it as lonir as their airent held it. act which retained the [iroperty in hlni- Tlien I am of opinion (iooldeii was in no self, ami there lieiiiE no un(|ualilled ti-nrler, way defendants' aRcnf. It is said the it was held not to pass to the vendeeH. Sellers intended this oil lor the defendants. In conclusion, I say there was no delivery ! doubt it not; tint intention is iiiiiiia- of tlie jioods, because the only thinz that terial till it iiianifests itself in an act. If a could be called a delivery was the ship- man intends to buy, and says so to the meat, and that was none; for the same Intended seller, and he intends to sell, and reason there was no barjiain and sale. Ha.vs so to the iuteniled buyer, there is a which supposes the >;o.)ds areascertained; contract of sale; anil so there would be and there was. for the same reason, no if neither liad the intention. If there is a offer To supply tiy delivery on board, and contract of sale, and the seller intends to no offer subsequent. np|iroprii\te a particular chattel in fullill- tnent of it. and the luiycr inteiiils to ac- POLLOCK, C. B. I have to deliver the cept, anil accepts, the property vests in jud^iinent of my Brother MAKTIN. my Iliiii ; and so it would had there been no Urotlier CII.V.NMCLL, ami myself, such intention. If the buyer refuses, and Tie declaration contained several the chattel corresponds with the contract, counts. The first stated that the defeiid- the vendor has a risht of action, not be- ants agreed with the plaintiffs to bay of causeof his intention, but of his offer. An them ten tons of best relined rape oil to Intention not comiiiiinica ted to the buyer lie shipix'd free on board at Kotterilam in Is inima terial. Tellinp: it to an indifferent September. Is."!", at i.As l.'.s. per ton; to be person is no more than thou;;h he had paid for on delivery to defemlnnts of the noted it in his inemoraiiilum liook, which |ii|| nf ladinji. l>y bill to be accepted by de- ls no more than though it existed solely in fendants at tiiree montlis after date, to his own mind. be dated ou the day tif sliipnient of the oil. If the case is tried b.v the |)leadinirs. \ come to tlic same conclusion. Kither the , , „ . . ^,~ Dhipment was to bo for the defendants at ; i,'k "ih "O n the time of shipment, or it was to be ap-' » i'- '«« proprinted to them afterwariN. In the '" -^^ * L- "^S. former case the declaration iiiiis; Uv taken "- Kxeli. ts>l. to allege such a shipment, and the sccuoU ; "- Kxcb. 1. 102 BROWNE B. HAEE. The count cfjntained the nocossary aver- ments of iieiformtinco, and stated as a breach the iionacceptaiice of the hill. There were counts for goods bargained an<l sold nnd goods sold and delivered. The pleas denied liability, and there was a special plea which raised the same de- fence. At the trial at Guildhall before my Brother Martin, the facts proved were these: — The plaintiffs were merchants at Kotterdam and the defendants merchants «t Bristol, and tlirougli Mr. Goolden, a broker at IJristol, tliey had raafle the con- tract of sale in the terms stated in thetirst eount. On the Sth September, the plain- tiffs (having Ml the previous day advised that the sliif)niont would Ve made) shipped on board a steamer (a general ship I, trading between Rotterdam and Uiistol, live tons, parcel of the ten tons agreed to he sold by the contract, and re- ceived a bill of lading made out deliverable "To tiie shipper's order." On the same day they indorsed it sp-ecially to tlie de- fendants, and enclosed it and an invoice and a billof exchangedra wn in accordance with the contract to Mr. Gooltlen, to be delivered to the <iefeiidants and their ac- ceptance to the bill obtained. The letter arrived at Bristol on the afternoon of the 10th, in due course of post, liut after busi- ness hours. On the morning of the lltli Mr. Goolden took all the documents, viz., the bill of lading, the invoice, and the bill of e.xchauge, and delivered thera to one of the defendants. He then knew, and the fact was, that on the night of the Dtli the steunier iu which the oil was, was run down in tlie Bristol Channel and the oil totally lost. In about two hours the de- fendants returned the documents, and in- sisted that under the circumstances they were not bound to accept the bill or pay for the oil. 'J'he action was bought upon the 12tli December, and the jury found a verdict for the plaintiffs, and stated that in their opinion, aecordinjj to mercantile usage, the risk of the loss of the oil wa.s upon the defendants. My Brother Mar- tin gave leave to move to enter a verdict for them. A rule was obtained for this purpose, and it has been argued. The object!. in made on their behalf was that the oil was not delivered "free on board" within the true meaning of the contract, because the bill of lading was made out deliverable to " the shipper's order," and that therefore the plaintiffs had theciin- trol over the oil, and the contract for the carriage with themasterand owner of the steamer was made with them. Several cases were cited on behalf of the defend- ants. Wait V. Baker, Turner v. Liverpool Docks, Van ('asteel v. Booker, and some ■others. We think they are all clearly dis- tinguishable. ]f. atthe time the oil was snipped at Rotterdam, the plaintiffs had intended to continue their ownership, and had taken the bill of lading in the terms in which it was made for the purpose of continuing the ownership and exercising dominion •over the oil. they would in our opinion have broken their contract to ship the oil "free on board," and the jiroperty would not have passed to the defend-iuts; but if when they shipped the oil they intended to perform their contract and deliver it "free on board "for the defendants, wo think they did jierform it, and the prop- erty in the oil passed from tlieiii to the defendants. If, when the bill of lading was niade out, they of purpose and design had the oil made deliverable to "shipper's or- der" for an advantage and benefit to themselves, it would be a different cMse; but if they had no (diject in the in;ittcr,— and they clearly had none, for upon the same day they indorsed it specially to tl.e defendants, and transmitted it to Bristol, — we think it is exactly the same thing as if the bill of lading had originally beeu made out deliverable to the defendairts. It was said that so long an the bill of lading was in the hands of the plaintiffs or of their agent Mr. (jooldcn, they had the control over the oil, and no d<nibt they had to a certain extent, but they would have had precisely the same control whether the bill of lading was made out deliverable to the defendants or to the plaintiffs' order, and indorsed by them to the defendants. It is clear that it was iri- toncled by the contract that the plaintiffs shonld have this control, for the delivery of the bill of lading to and the acceptance by the defendants of the bill of exchange were to be contemporaneous acts, and the plaintiffs or their agent were not bound to deliver the bill of lading until they received the acceptance. In all the cases cited on behalf of the de- fendants the bills of lading were designed- ly and of purpose made out to shipper's order to prevent the iiroperty passing, and enable the vendor to retain the possession and control of the goods. This distin- guishes them from the present case. As to the contract in the bill of lading being originally made with the plaintiffs, we do not think it at all affects the terms as to the shipment "free on board," and espe- cially since the statute IS & 1".) Vict. c. 11], which transfers the contract of the bill of lading to the indorsees. In our opinion, therefore, the law coin- cides with the view taken liy the jury, and the plaintiffs are entitled to recover upon the special count. We also think they are entitled to recover ujion the count for goods sold and delivered, for u|)on the de- livery on board the general ship, we con- sider the property vested in the defend- ants, and that therefore this count is maintainable. It was said that the defendants could not insure tlie oil. This is not so in fact, for by a letter of the 7th, which was com- inunicaled to them on the 9th, they were informed that the shipment would take place on the following day ; but whether they had the opportunity to insure or not is immaterial to the present question, which depends upon the law as to con- tracts and the transfer of property to a vendee upon a sale. (4 Hurl. & N. 822.) This was an appeal against the decision of the court of exchequer in discharging a rule to set aside the verdict found for the plaintiffs and enter it for the defendants, BROWNE 0. nAUE. KW piiPHunnt to leave reserved at tlie trial. The plcjiiliiins and material fai-tn of the CHHC are fiilly Htatcrl In the report of tlie CHHe in tlic e'oiirt lielow. [li H. & X 4^4.) iJeforc i:itlJ:, UIM^IAMS, CltOWDKK, CI{(J.\IM'().\. WILLKS, and MILL. J.J. Hu.vinond arsncd fr)r the api.ellfuits | the (lefendaiitK) in lant Kaster vaeatinii. I'ri- dean.x, (lUitt with him,) for the |>laintiffH, (May \s.) I{uj'uuind, in re|ily. 'riie jiiiJKuient of the court was now de- livered liy EHIJC, J. In thin ease we are of opin- ion lliat the judgment of the court below ehould l)e allirmed. The contract was for tlio purchase of nnascert.iiued goods, and tlio quection has t)een, wlien tlie i)roperty i)asHeil. For the answer tlie contract must bo resorted to; and under tliat we think the property passed when tlie (roods were placed "free on board," in performance of the con- tract. In this class of cases the (inssint; of the property may depend, according to the contract, eitlier on mutual consent of both parties, or on tlie act of the vendor coiniiiunicated to the purchaser, or on the act of the vendor alone. Here it passed by the act of the vendor alone. If the bill of lading had inaile the K'Jods " to be delivered to tlie order of the consignee," the pahsing of the projierty would be clear. The bill of ladinu made them "to be delivered to the order of the consignor, " and he imiorsed it to the or- der of the consignee, and heiil it to IiIm agent for tlie couslgi Thus the real (inestlm lias been on the intiiitiun witli which the bill of Inding was taken in thJH form: whether the consignor shlppeil the goods in performance of Ills cont rar* to place them "free on iio.-ird." or for the pui'iiose of retaining a control over them and coiitiMiiing to be owner, contrar.v to the contract, as in the case of \'.'ull v. Maker," and, as is explained In Turner v. The Trustees of tlie Liverpool Docks" and Van Casteel v. Itooker.** The i|ueHtio'i Vvas one of fact, and must be taken to li.'ivebeen disposed of at the trial; the only (luestion before the court below or before us being, whether the mode of tak- ing the bill ot lading necessarily prevented the property from passing. In our opin- ion it (lid not. under the circumstances, and therefore the judgment must be af- lirnied. Judgment allirmed. ' 2 Exch. 1. '(5 Excli. 543. '2 Exch. Uai. BROWNFIRLD v. jnilNSOX. 10- mtOWN'riKLD ft al. r. JOHNSON' et ul. (IS Atl. Itcp. 54."5, 12S Pa. St. 254.) Siipri'inp Court of rcniisylvania. Oct. 7, 18S0. Error to court of common pleas, I'hiladel- pliia county. Ilflore (;i!t-:EN, Clakk, William.s, ilc- ('oi.LiM and Mjt( HELL, J.J M. Hampton Todd, for pluinlilTs in error. John W. Jolinaon, for defenJants in error. Ci.AitK, J. A complete understanding of tliR rul(,'.s of law governing this case involves a brief statement of tlie material facts: On the 2d day of Deceiid)er, 1«86, lirowulield & Co., the delendanls, gave an order to Law- rence Johnson & Co., to punliase for them in Brazil oU'J ba^s best quality of new Brazil nuts, of the first receipts, payment to be made in cisli on arrival, or by iji i-day note, etc., at the defendants' option, tlie pl.iinl iffs to cablei)rice at the time of shi|>ment. On the same day the plaintilTs replidl, stating that Bi-azil nuts were not bought by the b;ig, but by hectoli- tres, a measure which in past years averafjed from 100 to 120 pounds; tliat the nuts came in bulk in the steamer, and the defendants would have to furnish the bags on arrival in Xew York; and as "the outturn of the meas- ure is uncertain" they jiroposed to order 4.50 hectolitres, etc. To this the defendants re- ])lied by telephone: "C)ider 400 hectolitres, and buy only the very best nuts oltainable," The plaintiffs placed the order in the hands of their correspondents. La lioipie, Da Costa & Co., I'ara, Brazil, who undertook the pur- chase, and on the ytli of February following advised the plainlitTs of shipment per steamer I'ortueiice, upon lioard of which were nearly G.UUO heetolilres of Brazil nuts for other par- ties. Of tills shipment, and of the piice. no- tice Was on the same day given to the defend- ants. I'jwn the arrival of the i'ortueiice in New York, Lawrence Johnson & Co. handed to the defendants a delivery order for 4U0 hectolitres of Brazil nuts in bulk, in separate hold, on board the I'ortuence, with copy of original invoice, and the idaintiffs' bill, amounting to .'?3,441.18. The invoice was for :j12 hectolitres al 15,150 rtis each, and 8S hectolitres at 14,000 rc/.v each ; showing th.it tlio nuts had been orij^inally purihased in two spp.irate lots, and at different prices. The defendants, witli the delivery order in their posse.^sion, proceeded to New Vork, and went on board the I'oitueiice, where they found one consignment of nuts in tlie name of Hrowiilield & Co., but the plaintiff's store- keeper informed tliem that the 400 hectolitres in ipiestion were emluaced in a consignment of 582 hectolitres of Brazil nuts, in separate hold, in the name of the plaintiffs. The de- fendants thereupon refused to receive any poriion of these nuts as an execution of their order. The phiintilTs tendereil to the defend- ants the whole 582 liecto'.itres or 400 hectoli- tres thereof, at their option, at the invoiced prices; which tender, in either alternative, til" defendants declined to accept. The plain- tilTs afteiwartis tendered 4i)0 hectolitres at the aveiage pi ice, which the defendants also declined. Subsefjiieiitly the plilntifTs sepa- rated the 400 hectolitres from the lot, and notified the defendants of tli'ir weiglit, but the defendants absolutely declined to a'-cept the nuts on any of the sever.il propositions made by the plainlfTs. The .582 liedolitres were made np of tsvo lots, — one of ;)1"2 liec- tolitres, invoiced at 1.5.1.50 reis; the other of 270 heetolilres, invoiced at 14,0<iO /•et>; 88 heetolitres of the latter were invoiceil to tlio defendants, and the residue, being 182 liec- tolitres, to Lawrence Johnson & Co., for ac- count of La Itoijue, Da Costa & Co., who, it is said, according to the method of dealing in Brazil, in order to get 88 hectolitres to (ill the order, were obliged to buy a larger lot. That all parties acted in good faith is a fact found liy the jury, and the case turns upon the question wli<-ther the defendants' order was properly and legally executed. If the purchase had been of 400 hectolitres only, shipped in sejianite hoM, there could be no question as to the defendants' liability for the price. Wli:it, then, was the effect of placing the 182 liectoHtre^ in the same hold w ith the 400 invoiced to the defendanl.s? It may be con<e.led as a geneial riiie th.it, as between vendor and vendee, when it is sought to compel a party to pay for goods wli.cli he lias refused to accejit, there can be no recov- ery unless the order has been strictly and lit- erally fullilled. The buyer is entitled to re- fuse the whole of the goods tendered if they exceed the quantity agreed, and tlie vendor ' liaa no right to insist upon the buyer's ac- ■ ceptance of all, or upon the buyer's selecting out of a larger qii mtity delivenil. Benj. Sales. § lo:i'i. To tlie «:inie effect are the cases cited by the plaintiffs in error. With relereiice to quaiil.iy, iiowever, the rule is less rigid wheie goods are ordered fromacor- ' res|)ondent who is agent for buying them. (Ireland v. Livingston. L. U. 2 o'. B. '.fj; 36 , Law J. W. B.50; L. I{.5 II.L.:i'J5:) forthorelu- I tion of vendor and vendee which finally results ] is preceileil by the relation of piincipal and ' agent, anil the agent in such a transiiction is ' necessarily invested with some degree of dis- cietion in making the purchase. See, also, Johnston v. Kershaw, L. K. 2 Exch. 82, 'M Liw J. Exch. 44. and Jefferson v. Qnerner, :{0 Law l'. (.\. S.) ^^■l7. It must be conctnietl, however, that the piircliase and temler of 582 hectolitres, upon an order for 41H.), would in- ! volve a wider discretion than would be allow- able under the special fact.s of this ciLse, even as between principal and agent. In thiscase, I however, the plaintiff's cornspondent pur- 1 chased for and invoiced to the defendants 400 I hectolitres only. an. I that quantity was ten- dered. The remaining 182 hectolitres were not invoiced to the delendants. although the plaintiffs propose<l that the defcnilants might have them if they chose to take tlieiu. The 40<) heclolitres of nuts unquestionably liecame the pro|ierty of the defendants when pur- lOG BKOWNFIELD v. JOHNSON. chased in IJia/il. f'lr lliey were purchased up- on tlieir order. By force of that order the jihdntiffs became tlie dflVtidants' agent, with autliority to constitute an agent in I'ara for its execution; and the nuts were bouglit in virtue of tlie autliority tlius conferred. Tlio only question," therefore, would seem to be upon" the edVct of the shippiiisj of the whole lot of 582 hectolitres in one hold. It was shown that this was the usual meth- od of shipping, especially when the orders were small. There was no effort to es- tablish a custom of this kind, but simply to show that tills was Uie usual and ordinary metliod pursued in tlie shijiping traile. The defendants had a right to suppose tliese goods would be shipped in the usual manner, unless they directed otherwise, and that, altliough in- termingled with others in theforKard hold of the vessel for transportation, they would be separated at the phice of delivery. The nuts in question were of the same quality; they were bought at different prices, but the evi- dence is clear that they were of uniform qual- ity. The weight of American authority sup- ports the proposition that, when property is sold to be taken out of a specilic mass of uni- form quality, title will pass at once upon the making of the contract, if such appears to be the intent. Oil in a tank and grain in an el- evator may serve as illustrations of this rule. Where, however, the properly sold is part of a mass made up of units of unequal quality or value, such as cattle in a herd, selection is essential to the execution of the contract, and of course the rule cannot apply. Benj. Sales, 477-531, and cases there cited. The storage of oil in tanks and of grain in elevators, al- though not univeisal, is the usual and ordi- nary means employed by large dealers in those commodities; and, while no custom of that kind, technically speaking, could be es- tablished, the usage of the trade anfl general course of business in this country is well known. In view of the necessities which grow out of such usage the American courts have departed from the rule adhered to in England, and have recognized a rule for the delivery of this class of property more in con- formity with the commercial usages of the country. A distinction is made between those cases where the act of separation is burdensome and expensive, or involves se- lection, and tho-^ie where thearticle is uniform in bulk, and the act of sejiaration throws no additional burden on the buyer. In the lat- ter class of cases a tender of too much, from which the buyer is to take the proper quan- tity, is a good delivery. Id. 1030, note. See, also, Kimberly v. Patchin, 19 N. Y. 330; Hutchison v. Com., 82 Fa. St. 472; Wilkin- son V. Stewart, 85 Pa. St. 255; Bretz v. Diehl, 117 Pa. St. 589, 11 Atl.Rep. 893. The case at bar bears no analogy whatever to Stevenson v. Burgin, 49 Pa. St. 44, for all that is decided by that case is that, in a con- tract for a tixed quantity of merchandise to be delivered on board a vessel, the purchaser is not bound to accept and pay for a larger quan- tity. The principle has no application to the evidence in this case. The case at bar bears a closer analogy to Lockhart v. Bonsall, 77 Pa. St. 53. In that case a tender of 5,0tl0 barrels of oil was made by Lockhart to Bon- sall out of a bulk of 5,981 barrels, containe 1 in 118 bulk cars. As it was the duty of Bonsall to pump the oil from the cars into the tanks of the Anchor works, which had been designated as the place of delivery, it was held that Lockhart was not bound to set apart the precise quantity named in the contract before offering to deliver. So, here, the measuring of the nuts, and their removal from the ves- sel, was the work of the defendants, and as the article was uniform in bulk, selection was of no consequence, nor was the act in any sense burdensome or expensive; for, assum- ing that the whole bulk was to be measured, yet the expense attached to the whole, and each part-owner was liable to share it. We are of opinion that, when the nuts were delivered on board the Portuence at Para, the title to 400-582 of the bulk belonged to the defendants, and that upon the arrival of the vessel at New York the tender of the 582 hectolitres from which the defendants were invited to take their share was a good delivery. The judgment is affirmed. BUFFINGTOX v. GEHUI.SU. 109 TUIFIXOTOX ct nl. t. GERRISH et al. (15 Mass. 150.) Siipn^me Judicial Court of Massachusetts. Cunilicrlaud and 0.\ford. May Term, 1818. Keplevlii for two pipcH of brandy and HiHidr.v otlit'i- iirtic'IcH of nicrcliaudi/.c'. The dcl'eiidantH i)li';idiMl propert.v in oneEzekit-l WiilUcr, travcrHintr the property of the plainliffH, and iHmie wan joined on tlic traveise. A t tlii> trial of thin issue hctore Wilde J. at tlie last October term In this comity, it waH admitted liy the plaintiffs, that the articles in (luestion weie solil hy them to Walker, and that his notes for the stipulated price were received by them, Iiayalilein two and four months from the date: hnt thev contended that the sale \v(is void, on the ground of fraud and do- eeplhtn piactised upon t hem liy Walker. | It was in eviilence lliat Walker was an in- hahitant of rorlland, and In April INK! applied to tlie plaintiffs, merchants in Uos- ton, ti> whom he was a stranser, for the piinliase of Roods; and that he represent- ed himself ns a merchant enKa^cd lar^el.v in Imsiriess, huvinj:: one store in Portland and anotlier In the conntry. and of iin- doulited aliility to pay.— The plaintiffs tlicn wislied for the recoinmendntion of some i>ne known to them, and Walker re- ferred them to a .\Ir. McLellan.n merchant in lio.ston, for information: of whom, however, for some reason which did not appear, the plaintiffs made no in(iiiiry: Imt conlidinf; in the representations made b.v Walker, completi'd the sale, and deliv- ered the good.s. Whereupon Wal!;er im- mediately transported them to Portland, where tliey were attached liy the defend- ants, lieiiiK deputy-sheriffs of this county, at the suit <jf diver.s creditors of Walker, to whom he had been indel)ted for several years. The plaintiffs then proved that the representatiniis made liy Walker were falseand frnndiilcn t : that he had no store In Portland, althoiish he had one there a ntiiJilierof years aso but soon failed, and had since b("en wholly witliout visilile Iiroperty or credit, and deepl.v involved in debt. The plaintiffs lindinK that they had been imposed upon by Walker, pursued him to Portland, where they found the KoodH in queHtlon, wlilch lind been nt- tacheil by thedefendants, ns above stated ; wherenpon they c menceil this suit. The indue instructed the jury that. If they HJiould be of oiiiidon, that the sale of the Roods was effected by the fraudulent inlH- representations and (h'eeption of Walker. It would be Hullicient to rentier the sole void; and that it niiulit be avoided by the plaintiffs, notwilliKtandiiiR the ntfaeh- ments of the bona lidecieditors of Walker, without notice of the fraud : ami the jury returned t;ieir verdict for the plaintiffs ac- cordingly. If the said ilirectioiM to the jury were, in the opinion of the whole court, Hubstantlaily correct, ju<lcment Was to be rendered upon the verdict; otherwise the plaintiffn were to heeoine nonsuit. Mellen and Todd, for defendants. Lour- fellow, for plaintiffs. PER CURIAM. ItlsnotneresHaryinthlH case to conHlder. whether the property could be reclaimed by the plaintiffs, out of the hands of a bona tide purchaser, Ik- nor.'int of the fraud, by which Walker ob- tained possession. As the possession of the Roods by Walker, with the appear- ance of ownership, was witli the con«ent of the plaintiffs, it is probable such sale would be held good. The case here is very different. The plaintiffs endeavour to recover their mor- chandlze, as soon ns the fraud practised upon them is discovered. It never had become the property of Walker, and the riKht of the plaintiffs to reclaim it nRainst him is indisputable. He had done no act, by which any of his creditors had been deceived with respect to tliis property; for their debts all existed before he acquired the possession. They claim title to it aa his, not ns their property : yet they can- not, under the circumstances proved, and the fact of fraud found by the jury, estalj- lish it as Ills. They are in the san)e condi- tion, as to tlieir debts, they were In before the commission of the fraud; and they ouRht not to reap t|ie fruits of it, no credit haviiiR been Riven on account ol this property. Judgment on the verdict. BLLWIXKLE v. CRAMER. Ill lUI.WIXKLF, Pt al. v. CRAMER et al. (3 S. K. Koi.. 770, 27 S. C. 370.) SiiiMi'inc ('i)iiii iif Siiiitli Caruliim. Oct. 14, 18,S7. A|p|M'iil fi'Din roinii'cxi plonH circuit court, Cluirii'Mtiiii CKiiiit.v; KerHJiinv, .JudK'". llii.vrii'A; I'ii'kcii, fin- appclluiit. Siiiious & (Jiijiiicliiiaiiii, u|i|ioHi>(l. Mc(i(>WAN, J. Thin woh nil action iiU'ii'int the (l( feiidnutH Cramer tk lUohnic for :(pl,l:is.7(l, (hiiuimcH Kustaincil upon a lot of Klicllcd com in HactcH piircliiisfd from tlicni l>.\ tiic plaintiffs on .May IT, l^^-J. 'I'lii' lollow inK writing "aH otlciod as tliu written contract of the partie.s: ••.May ITIIi. Solil II. lluUvinkle & Co.— 5,ii!i(l I'.u. mixed HHci<ed corn (a TIJ^c. 1.(100 •• ■• •■ •• •• so;^. ".Sclioont-rMliipmcnt, payable on arrival. No wliarfaije. [Sij^iiedJ "Cramer & lUolime." At tlie time Hie purcliawe waH made, the corn was not in tliecily; hot Kooii after, nhout tlie laKt uf May or lii'Mt of .lune, the well ooner May Williams reaidied Charles- ton with tlie corn. I'poii its arrival in tlie liarhor, the plaintiffs were notilied of the fact. Ml'. Il.iesloop, one of the plain- tiffs, went down to the vessel. and.MndiiiH ahont l.'iO sackH out, examined the corn in two or three of them, and found that "it Hcemed ^^ood." (In .lune 4th, before all the corn wan out of the vessel, the de- fcnilants presented their acc(»nnt for the corn, ilfJ. 400. J.'i. The odd cents were paiil, and the plaintiffs (jave their note as fol- lows: ••!iP4,400. ( li;irl.'stoii. S. ('., .lune 4, 1SK4. Forty days after dati'. we [promise to jiay to tlie order of Cramer & lilohme fortyf.Mir hundred dollars at any city liaiik. Valiiereceived. Due ,Iuly I'.t-'J:,'. II. liulwinkle i Co." Indorsed as follows: " I'ay A. lieipiest, without recourse. Cramer & lilohme. A. I!i quest. " Writ- ten across the f.ice: " I'aiil July L'ii. IssJ." .\ few (lays alter the note was yiven. in removing the corn it was discovered that some of the sacks were dam.iued. Imiue- (liate notice was niven to the difendants. hut as they refused to correct the matter, or to have anythiiif;- to do with it, the corn was ••surveyfMl ' by two KenHenien at the re(iiieHt of the "Merchants' E.\- cliaiiue," and 1.470 s;icks were found to contain corn in "a damp, Idue-eyed, and musty condition." This damaged corn was sold at auction, .-iiid bronyrht less than tlie price of >;oo(l corn of the sanie kind by $l.l:',S.70. In the mean time iind before the note fell due, the defendants trnnsferred it, niid, as the defense of un- soundness of Hie corn could not lie made to it in the hands of an innocent holder before due. the plaintiffs paid it, and lirou^lit this action for the (lama;;eH sus- tained. The caiisecanie on for trial befote .Tudce Kersliiiw and a jury. A witness, one of the defendants, was asked whelher they (the (Ipfendants) contracted in their indi- vidual capacity, or in what capacity. The plaintiffs objected to the (|uestion: clainiiiiy; that parol testiiiKiny could not be uffered to alter the written contract. The judK<! admitted the parol evidence. Haying: "I do not regard this paper, which is a mere memorandum of contract taken down at the time, as iirecludiii); testimony as to the conversation between the [larties, w liieh nii;;lit in any way throw liuht on the contract they were making. If there (larties knew from any source, at the time that the paper was made, tliat they were actually dealin;^ with the de- fendants as agents. I think it can lie shown as part of tlie res };-estie," etc. The testimony beiiiK admitted, the jury, un- der the charge of the jud^e, found for the defendants. The plaintiffs appeal upon the ftdlowiiiK e.\ce|)tions : "(1) 'I'hat his honor commit- ted error in ruling tiiat the paper or con- tract sued on >vas a mere memorandum of contract, and did not preclude testi- mony as to con versa I ions between the parties which mi(;:lit in any way throw liflht on the contract, or the nature of the contract, they were iimKiim, and that if the plaintiffs knew from any source, at the time that pafier was made, that they were dealing with the defendants as ORerits, it coiilil be shown as part (jf the res Kcsta'. (L'l Recause his honor ruled that If, in this cp.se. there was a clear un- derstandiiif; between the parties that de- fendants were acting as a;;en ts. such un- derstanding was not e.\clu(le(l by that paper. (;ti liecause his honor admitted parol evidence on behalf of defendants, after olijiction thereto, as to eonversa- tions between the parties tending to throw liKlit on tlie contract, or nature of the contract, they were makini;. (4) Be- cause hishouorailmitled pand testimony, on behalf of defendants, leiidint; to show that defendants were dealing; as amenta, and not as principals, in siKniiiK the writ- ten contract sued on by plaintiffs, (.t) Ijecause his honor admitted parol testi- mony, on behalf of defendants, tendiii}; to show in what character defeiidnnts were conlraetint;, whelher as au'enls or prin- cipals, when they si-rned the contrac-t <»r writinj; sued on. and put in evidence by plaintiffs, .(i) liecause hi.-) honor erred iu instrnctinir tlie jury as follows: "if the jury Iind that the defendants, or either of t hem, sitjMed the written contract offered in evidence by the plaintiffs, they are per- sonally bound by said contract . unless it was (listinctly understood byliotli par. ties that the defend/ints were not to be personally liable lor defects in the article purchased.'" We ay;ree with the circuit judRe that in this stale, as to personal property, the rule of law is that •'sound price rei|uireM sound property," and the contract for the corn must be read as if these words were added, •■(•orii warranted to be sound." A part of Hie corn turned out to lie " un- sound," and it would seem that the plain- tiffs are entitled to redress on the war- r;inty. unless they, in some way, waived tlieir riylits. Soiiietliinj; was said in the case about the pbiiii tills liavini; accepted tiiecorn tor tlieiii-iclves after an examiia- tioii : but. as there is no reference to tl at subject in tiie exeepi ions, the matter, of course, is not no^- before us. .\s we understand it. tlic sole nuestion 11-2 BUI.WIXKLK V. CRAMER. in the (.'ose is as to who is lial)k', — whi't'ier the (IcfL'iidaiits, who solil tin; corn, signed the a;;i-e(Miieiit. anil took the iiotiM.f plain- tiff.s, and realized upon it in tlieir own name, had the i-i«ht, at tlie trial, to intro- du<'e parol tesliniony tending to show that they were not aetiiiK n.s principals, but «H afients of Itoljert Turner & Son, of Baltiinore, and, the cojitract of plaintiffs liuvins l)een made with Turner & Son tlii'oui^li tlieni, they are not liable Individ- nally. The «iucsti<>n as to the aduiissibil- ily of the evidenee, seems to have l)een etinsidered in two nsiiects: First, wheth- er the paper offered as the aRreenient was such a eoiitraet in writinfi ay to l)e within the rule whicli excludes parol testimony; and. if so, second, whethi.'r the judse erred in cliar}iin« the jury " that the defendants were not lialile if it was distinctly under- stood liy lioth parties that the defendants were not to ho personally lial)le for defects in the article sold. " All the authorities a^ree that, as a jjen- eral and most indexible rule of evidence, "whenever written instruments are ap- pointed, either by the I'equirements oi the la w, or by the co'upact of parties, to be the <lepi)8itories and nu inorial.-> of truth, any other evidence is e.xcUuled from being used. either as a substitute forsuch instru- ments, or to contradict or alter them. This is a matter both of principle and jiol- icy." Starkie, Ev. ()4S. This seems very plain, but the application of the rule is not always free from ditiiculty. In the in- finite combination of circumstances, eases arise which seem exceptions, but, when clearly examined, are found not to fall within the princii)le. As, tor exani|;le. It may happei. that the written instrument does not puiport to cover the whole field of contract, and is not intended to be the "de()ository " of the whole agreement, but only one liranch of it. In such case, the whole contract may be proved by [)arol, without tinichins the principle ; the object being, not to add to or alter the written instrum(>nt, but to show the whole agree- ment, of which the writing is only a part. Kaphan v. Ryan, IG S. f. ;!G(). is an exam- ple of this class, where the court were "not called on to give ccmstrnction to the note and int)rtgage, but to determine, from tlie evidence, for what purpose they (as executed) were to l)e used, "etc. Here, the writing covers the whole field ; stating who are the parties, and what the consid- eration and the iirice, in condensed form, but with exhaustive particularity. Some- times the "written instrument" does not state specifically the consideration; as where a note says, generally, "for value received." There is a class of such cases where the consideration maybe inquired into; and in that way matter may get in by parid " which does not necessarily lend to change the terms of the note, al- though, by showing the true considera- tion upon which it was given, it may con- trol the recovery upon the note." See Mc- Grath v. liarnes, i;! S. C. :f:!2, where the court reviewed our cases upon the sul)ject, and the former chief justice. Willaid. en- deavored (o reconcile them on the distinc- tion here indicated. In that case it was held that "when an executor gave his ])roiiiissory note for the jiaynient (i money, which was expressed to lie tin' amount due by his testator's estate for medical Kervice.s rendered, most of which during last illness, parol evideueeof a con- temporaneous agreement that the note was to be paid only upon a certain cfindi- tion (that the probate judge would piiss the account) is incompetent." In the case before us, there cannot be the slightest doubt that the consideration was as stilt- ed in the instrument. There is no doubt that a mere receipt, although in writing, may be explained by parol; lint that goes on the ground that a receipt does not necessarily import a c<)ntract. As was stated in the case of Heath v. Steele, !) S. Ci 92 : " In itself a receipt does not express the terms of any contract or writing of the minds of the Darties between whom it Iiasses. but merely evidences, by wa^' of admission, the fact stated in it." See Moffatt V.Hardin, 22S. C.9; 1 Greenl. S ao5. But, assuming that this case does not come within any of the seeming excep- tions above indicated, it is urged that the Iiaper was too informal and ex parte to amount to a contract, but inust be con- sidered as a "mere memorandum of a con- tract." and therefore not such "a written instrument" as to come within the rule as to the exclusion of parol evidenee. Most assuredly', a simple bill of iiarcels is not a contract, for the very good reason that it lacks theessential element of agreement, lieing only the statement of a fact, — a menioranduiii ; "a note to help the mem- ory;" as, for instance, the In 11 for the price of the corn rendered in this case was a mere memorandum. But a contract is a promise from one to another, either made in fact, or created by the law, to do, or to refrain from doing, some lawful thing. Bish. Cont. § 1. There is no particular form retinired; the only requirement being that it must contain the contract of the parties, and be definite and free fi'om am- biguity. We can well understand how. in the hurry of business, parties would sub- stitute condensed forms for regularly drawn out covenantsor agreements. The defendants were offering corn for sale, to come by a vessel ; the plaintiffs agreed to purchase a lot, and the defendants com- mitted the agreement to writing thus: "May 17. Sold to H. Bulwinkk> & Co., « • ► corn," etc. "Schooner shipiuent. payable on arrival. [Signed] Cramer & lUohnie." Why was that not a complete contract? It is said the plaintiffs did not sign it. The whole case shows that it was not ex parte, but expressed the con- tract of both parties. We think it is not unusual, in a certain class of agreeiuents, to be signed only by one party; as in the case of an ordinary note, tlie terras of which are binding upon both parties. Suppose the defendants had offered the corn for sale at iiublic auction, and, upon a lot being nurcliased by the plaintiffs at a certain price, the defendants had made upnn their sale-book the seme entry pre- ciselyas theyrnade In this case. " Sold, etc., to Bulwiukle & Co.," would they not be BULWINKLE v. CRAMER 113 liahle upon It ns their contract? The rc- hriircli of the pliiintiffn' attorney enabled liim to fiirni.sh the court with references to hcvcral cuMBH, vvhicli Beein to conclude thiH. In Meyer v. Everth, 4 Camp. 22, the ac- licinwuB on a contract In these words' ■•'id ho^Bheads of Ilambro's Bu^ar loaves • It l.'joH., free on Ixiard of a I'ritJHh ship. Aiceptuiine a t 70 days." Lord Ellenbor- iii];,'h held that it was a contract, and re- iijsud to adtnit i)ai'ol testimony tending to show tnat, when the Bujinr was pur- chased, a sample was exhibited, sayinK : "When the sale note is silent as to the sample, I cannot permit it to be incorpr)- rated into the cimtract. This would aujount to an admission of parol evidence to contradict a written document," etc. In Powell V. Eilmunds, 12 East, 10, the ac- tion was on a sale note in these words: "April, ]S(l(i. I a^ree to become the pur- chaser of lot the first (timber trees) at £700, and acree to fulfill the conditions of Hale. [Signed] A. Edmunds." At the trial an effort was made to show, b^- parol testimony, a warrant as toijuantity by the auctioneer, but the evidence was rejected; the court snyinn: "There is no doubt that the parol evidence was prop- erly rejected. The purchaser ought to have had it reduced into writing at the time, if the representation then made as to the quantity swayed him to bid for the lot. If the parol testimfjny were admissi- ble in tills case, I know of no instance where a party may not, by parol testi- mony, sujieradd any term to a written agreement, which would be setting aside all written contracts, and rendering them of no effect," etc. In Smith v. Jeffries, l.i Mees. & W. .OliO, the terms were: "I here- by agree to sell Mr. Smith, of Tanner Hill, Deptford, si.xty toii.s of Ware potatoes, at £5 per ton, and for whicli lie has giveri me a hill for £2."iO for three months, and is to give £.'iO cash on Friilny next. [Signed] Samuel Jeffries. " It appeared that in the neighbcrliood tliree qualities of potatoes were linown as "Wares," and the effort was to show, by parol, that tlie contract was for a particularkind of Wares. Held, "that the evidenceought not to have been received; it went to vary and limit the contract between the parties." In Greases V. Asiilln, :'. Camp. 42(1, the words were: "Sold to John (ireases 50 quarters of oats, at 458. fid. per quarter, out of 175 quarters. [Signed] I. Stevenson, for I. Ashlin." The flefendant attempted to prove that his agent Stevenson had verbally made it a condition of sale that the plaintiff should take away the oats imme<liately, and had abated Gd. per (luarter of the i)rice orig- inally offered, in expectation of his agreeing to do so. Tlie court held that "it was not competent co the dcfemlant to give such evidence, ns it materially varied the contract, whidi had been reduced into writing." In each of the two last cases cited, tlie paper was signed only by one of the contracting parties, and the action was lirought by the partv who liad not signed it. Sec, also, iMcClanagghnn v. Hlnes, 2 Strob. 122,and Gibson v. Watts, 1 McCord, Eq. 490. We think the paper proved in this case, LAW SALES— 8 was a contract in writing of both parties, witiiin the rule as to the exclusion of parol evidence. liut it is insisted that, while this may be so as to what may be called the terms of the paper,— the quality of the article, con- sideration, time of payment, ete., — yet |)arol testimony was aiimissihle tending to sliow that the defendants Cramer & Blohine, in selling the corn, committing the agreement to writing, taking the note, and realizing upon it in their own name, were acting, not as the papers represent- ed, but as agents of a house in Baltimore, and that the plaintiffs contracted with said house, through Cramer & Blohme aa tlieir agents. Is not the signature to a contract in writing, showing who made it, and in what ciiaracter, a part, and a very important part, of that contract? We are unable to see any good reason why this part should not be protected from alteration or addition, as well as an3- other part of the contract In writing. It seems to us tliat, when the delendimts signed the contract in their own names, that became a part of it. and could not be altered by parol, so as to add to tlie signa- ture, "as agents of Koijert Turner & Son, of Baltimore." "A person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes the contract in his own name. • * • If an agent selling goods as bought of him, (tlie agent,) he would be personally liable for a failure to deliver the goods." Storv, Ag. 2G9. See, also. Id. § 219; Benj. Sales, §219; Higginsv. .Senior, S Mees. & W. 834; Nush v. Towne, 5 Wall. 703; and Jones v. Littleilaie, 6 Adol. & E. 48(j, in which last case cited Lord Chief Justice Dennian said: "There is no dr>ubt that evidence is admissible, on behalf of oneof thecontrncting parties, to show tliat the other was agent only, tliough contracting in liis own name, and so fix the real principal; but it is clear that, if the agent contracts in such a form as to make himself personally responsible, he cannot afterwards, whether his prin- cipal were or were not known at the time of the contract, relieve himself from that responsibility. In this case there is no contract signed by the sellers, so as to satisfy the statute of frauds, until the in- voice, l)y which the defendants represent themselves to be the sellers; and we think they are conclusively bound t)y that rep- resentation. Their oliject in so represent- ing was, as appeared by the evidence of custom, to secure the passing of the money through tlieir hands, and to prevent its being paid to their [irincipals; but in so doing they have made themselves re- sponsible," etc. In the case from Wallace, Mr. Justice Clifford said: "Parol evidence can never be admitted for the purpose of exonerat- ing an agent who has entered Into a writ- ten contract in wliicli he appears as prin- cipal, even though he shouhl propose to sliow, if allowed, that he disclosed his agency, and mentioned the name of his principal, at the time tlie contract was ex- ecuted. Where a simple contract otlier than a bill or note is made by an agent. 114 BULWINKLE v. CRAMER. the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissi- ble, although the contract is in writing, to sliow tliat the pei'son named in tlie con- tract was an agent, and that lie was act- ing for Ills principal. 'Such evidence,' says Baron Parke, 'does not deny that the crintract binds those whom on its face it purports to bind, but shows that it also binds another;' and that principle has been fully adopted by this court, "—citing numerous authorities. The judgment of this court is that the judgment of the circuit court be reversed, and the cause remanded to the circuit court for a new trial. SIMPSON, U. J., and McIVER. J., con- cur. I BUNN V. MARKIIAM. 117 BUNN et al. y. MARKIIAM et al. 1 7 Taunt. 224.) Court of Common Pleas, Michaelmas Term, 181G. This was an action of trover, lirouulit to recover from tlie (lefen<lantK. who were the executorH of Sir Jervane Clifton, Hart. UecenHed, certain Inrlia IjondH, hanl< nt)tps, guineas, an iron chest, and the Ijoxbh and envelopes in which tlicse securities and money liad been contained. The canne was tried at (Juildliallat the HittinKS after Trinity term, ISKi, l)efore Gibhs C. .1. The evidence was, that Sir Jervase Clifton, beinK of an advanced age, and conlined to his bed, and having l)y liis will, dated in ]S14, beqneatlied all his cash, notes, and India bonds to his e.\ecutors, to be sold and invested in trust for his daughter, the wife of the defendant Markbaiu, and lier children, on iMth March, thinking; himself near his end. sent for his solicitor, the defendant Jamson, to make a codicil to his will, whose partner Let-son attended him, and prepared a codicil, by which the testator gave the plaintiff, Mary Bnnn, otherwise Clifton, (who had for more than thirty years eohabite<l with him, and was the mother of the other plain- tiff,) ClMioo, and to his and her dauKhter, the plaintiff Rebecca Clifton, the like sum of £2000. While the solicitor was in the house, the testator thking some keys from a basket which he always kept by his bed- side, delivered them to .lohn Runn Clifton, (his son by the one, and the brotlierof the other plaintiff,) Leesou, and a tenant named Sandby, in whom he reposed jrreat confidence, and directed them to ffo to an iron chest in which he kept his valuables, (ixed in the wall of another room in his house, and to brin^ from it whatever property they found there. They brou«lit three parcels, and laid them on his bed, one of which contained three India bonds, value £1500, and bank notes tojiether of the value of £2225, another contained £1100 in bank notes, and the other con- tained 47'.t (guineas, tlie value of the whole being £;!S2!). The testator, on beinff in- formed that the amount was about CITO short of £4000, said it should be made up to £fOOO even money, and directed for the plaintiffs, £2000 for each ; but the comple- ment was never in fact added. On the box which contained the £2225 .Mr. Runn Clifton had before, on the 7th of March, by the testator'sdirection, written "For Mrs. and Miss Clifton £.")04." The other two parcels, Mr. Runn Clifton, by his father's direction, on the present occasion sealed up and wrote on them the words, " For .Mrs. and Miss (;iifton. ' The testator charged Mr. Clifton, that after his decease he should deliver these to his mother and sister, the plaintiffs. Mr. Clifton, by his father's direction, replaced this property in the iron chest, locked it, and brought back the keys, which Leeson, by the tes- tator's direction, sealed up in a paper parcel, and wrote thereon, "To be deliv- ered to Mr. Jamson after Sir Jervase Clifton's decease." The keys were then again put into the basket" by the testa- tor's bed-si<le. The plaintiffs were not then in the house, but upon .Mrs. Clifton's arrival some days after, the testator in- trusted to her the keys of the iron chest, and told her that the contents were to be her's and her daughter's, and charged her to keep the keys; and many times after- wards, particularly on 27th .\prll, on th«j occasion of his making a further codicil, he declared, that the money in the iron chest was f<ir the plaintiffs. After this time, the testator frequently e.xpressed anxiety respecting the keys 'of the iron chest, and required them to be shown him, and on learning that they had been ob- tained from .Mr.s. Clifton by his eldest son, he expressed great displeasure, and caused the keys to be replaced in the bas- ket of keys which was always kept in his bed-room. The parcels, and the i)roperty therein, continued in the same state until after the testator's decease, which hap- pened a year afterwards. Gibl)s C. J. left to the consideration of the jury the prob- ability that the intended £4000 of which the testator had spoken, was the same sum designated by the codicil of 21tli March; and also the question, whether the testator meant to make this an absolute gift to the i)laintiffs, or only provisional, upon the probability that he might not survive long enough to com|)lete the cod- icil. The jury found that this was not the £4000 designated by the codicil, and that tlie testator intended it as an absolute and not a provisional gift. His lordship reserved tlie point, whether there had been in this instance such a sudicient de- livery of the property, as was necessary to constitute a donatio mortis causa. Best and Rlosset Herjts. showed cause. Shefiherd, Solicitor-General, and Coi)ley Serjt., who were to have sufjported the rule, were relieved by the court. GIBRS C. J The two grounds on which the present application is made, have a different object in view. Tlie one is, that the jury did not draw a correct conclu- sion from the facts submitted to them: the other is. to enter a nonsuit, on the ground that the facts, taking them to be proved, do not make out the title of the plaintiffs. The lirst question stands prin- cipally on the evidence of Mr. Runn Clif- ton. If his memory has not failed him. the venlict is certainly right, and his credit and character stand unimpeached. 1 say this, in justice to a young man whose character is his best possession. As to the other points, it is agreed on all hands, that a <lonMtio mortis causa cannot exist, without a delivery. The facts of this case are. tliat the property was taken out of a chest of the testator, looked over liy him. and sealed up in three different parcels: being so sealed, he de- clares that it is Intended for the witness's mother and sister, and directs that It shall be given to them after his decease; there is no other delivery but that: it is replaced in the chest, and the keys are re- delivered to the testator, or liy hira to Iiersons whom he always nominates as his servants for that effect, and he expresses 118 BUKN B. MARKHAM. a contiDual anxiety about the custody of the keys. The question is, wliether tliis be a sufiiciont delivery to make a dona- tio mortis caunn ; and we are clear that it is not. It is argued by the counsel for the plaintiffs, that there needs not to l)e a continuing possession in the donee: but that the donor may resume the posses- sion without determining the gift. There is no case which decides that tlie donor may resume the possession, and tlie dona- tio continue. Smith v. Smitli, 2Str. 9.5:"), is a very confused case. Where the master died, it does not apjiear: inasmuch as it is stated that the master delivered tlie keys of his rooms to his servants when he went out of town, probably he died in the country, and tlien the delivery of the keys last made to his servant, would lie a continuing of possession up to liis de- cease. But all the cases agree, that if the donor resumes the possession, it ends the sift. Lord Hardwicke expressly so holds in Ward v. Turner, where it suited the purpose of the counsel to argue, 2 Vez. Sr. 433, that if the donor, after making a com- plete delivery, receives back the article, the donation remains perfect. Lord Hardwicke immediately denied that prop- osition, and held, that if the possession of the donee do not continue, the gift is at an end. Seeing, therefore, that it is in the power of the donor at any time to revoke the donation before liis death, and that there must be a continuing possession of the donee after the deli very to tlie time of the donor's death: seeing too, liere, that there is neither a delivery, nor a continu- ing possession, we are of opinion that no interest in this property iiassed to Mrs. and Miss Clifton under the supposed de- livery to the son for the use of liis mother and sister; and that therefore a nonsuit must be entered. DALLAS J. I am of the same opinion. The facts of tlie case denote an intention only: there is an indorsement of the names of the mother and daughter on tlie paper; but they denote the testator's in- tention only. The property is disposed in a chest belonging to the testator; he retains tlie key ; lie docs not even deliver it to the persons for whom tlie contents were intended. If he had chosen to take out the bank-notes tlie next day, and dispo.se of them to another, it was competent for him so to do. The donor, therefore, never divested biniseli of the possession for a moment, and therefore this is not a dona- tio mortis causa. PARK J. concurred. Both by the civil and by the English law. In this kind of donatio there must be an act of delivery. Even in that strongest case of Smith v. Smith, Lord Hardwicke C. .J. held that there must be an act of delivery, to con- stitute a gift: here is not only no evi- dence of a delivery, but the evidence is against a delivery; for the testator states that it was to be delivered at a future time; in addition to this, tlie donor gets the keys, and is offended if any otlier gets the keys: neither is there a continuing possession, wliich is necessary. BUnilDUGHJ. The son had no au- thority whatever to deliver over these ar- ticles into the hands of his mother, and if he had no such authority, it was not a donatio mortis causa. In Burn's Ecclesi- astical Law, all the cases are collected: they all indicate, that there must be a de- livery either to the donee himself, or to some one else for the donee's use: here is no such delivery, and therefore a nonsuit must be entered. Rule absolute. BUTLER V. BUTLER. 121 BUTLER V. BUTLEU. (77 N. Y. 472.) Court of Appeals of New York. June 3, 1S79. Appeal from a judgment, general tei-iii, third department, allirmin); a judKiiient in plaintiff's favor enterud upon tlie re- port of a referee. George W. Miller, for appellant. Samuel Hand, for reKpondent. DANFOKTH, J. The plaintiff submitted a propohition in writing to the defendant, and it was in like manner accepted. By It (lie plaintiff said: "1 propose to fur- nish yon, for your hotel in Luzerne, N. Y., one of Butler's (ias Generators end Hold- ers. • • • Tlie holder to beof suthcient capacity to contain fifteen hundred cubic feet of gas. To furnish all pijjcs to con- nect the generator with the holder, and the holder with the main |)ipe leading to the hotel ; all weights and chains, sheaves and pulleys to sujjport and balance the holder. All labor for putting up and set- ting the retorts, and banging the holder, an<l connecting the pipes as before men- tioned, and a sufficient air-mixing meter, for the sum of $1,500. You (the defendant) are to furnish the tank and bouse for holder and generator, and gallows frame for support of holder, to pay the freight f»n the machine from New York, and board one mechanic while putting up and connecting as above, exclusive of the cost of the machine, and furnish one man to help rivet the gas-meter. I guarantee • * • that the machine shall be put up in the best and most workmanlike manner and all ready to make gas by June 7, if your part of the work does not delay us. Payments to be $500 cash when the works are on that ground, $.")00 in one bond, due September 25, 1H72, and $5(10 in one bond, due September 25, lS7i!, with Inter- est. " The plaintiff in his complaint alleges that he "delivered the gas-works to the defendant at Luzerne in accordance with the contract ; " avers a constant readiness on his part " to set the same up and make the connectiona in accordance with the agreement," but says, "the defendant has never i)ermitted him to do so," and for breach, that the defendant, "e.xcept to pay freight charges on said gas-works, has wholly failed to perform the agree- ment on his part , and has not paid the sum of fl,500, and for that sum, with in- terest, he demands judgment." Upon the trial the referee found la ac- cordance with the complaint, and among other tilings, "that the plaintiff delivered the gas-works to the defendant at Lu- zerne; that the extra e.sponse which the plaintiff would have incurred to set the same up and make the connections is $100;" and deducting that from the eon- tract-price finds that the plaintiff is enti- tled to recover the balance, and directs judgment therefor with interest from the Ist of July, 1.S71. The defendant "Xcepted to these tiiidings, and the exceptions. I think, are well taken. Thecoii tract is sin- gle and entire. If performed by the plain- tiff he would be entitled to recover the full sum of $1,.500, part in cash, part In bonds. He was not to furnish niaterluls and per- form labor upon them for the defendant, but from his own materials and ljy his own labor furnish to tlie defendant, prop- erly aflixed to his premiHcs, a completed machine of a particular kind, "all ready to make gas." It is not pretended that this hoR been done; on the contrary, the defendant has not permitted him to do it— and as the coiilriict-price is not divisible, there Is no ground on whicli a recovery can be had for any part of it. Inchbald v. Westei-a, etc., 17 C. B. (S. S.) 7:i;i; Planche v. (.■olliurn. S Bing. l-I. Nor is it in aiij- sense true that the gas-works have been delivered to the defendant. (,'ertain materials, among others sheet and other kinds of iron, in iiuiidles and rolls, castings, grates, rings, retort covers, and "one machine bottom," which, when properly arranged and joined together, may compose a machine, were delivered by the plaintiff to a common carrier, who received them at ' owner's risk." Tl'.ey were marked B. C. B., or B. C. B. for B C. Butler, Luzerne, N. Y., and the defendant paid the freight uiion them. Even these things did not thereby become his property; the freight was paid in ex- ecution of the contract, but the goods re- mained the goods of the jilaintiff. If lost during trans|)ortatlon, or if destroyed after reacliiug the place of destination, the plaintiff would have to hear the loss. He could change their destination, and ninke such use of them as he saw tit. His cred- itors could take them in execution (.At- kinson V. Bell, S B. & C. 277), for the de- fendant was to have, not these articles, as separate parts or members from which by the application of skill and labor a machine couhl be constructed, but a com- plete thing, placed u|)on his own prem- ises, of the re(|Uired capacity and ready for use; and until that was furnished the property in the«e chattels did not pass from the plaintiff, .\tkinson v. Hell. S H. & C. 277; Johnson v. Hunt, 11 Wend. 1:!7; Tripp V. Armitage. 4 M. & W. GltS; .An- drew V. Dieterich, 14 Wend. ;15; Andrews v. Durant, 11 N. Y. 35; 02 Am. Dec. ,55; Ward V. Shaw, 7 Wend. 404; Decker v. Furniss. 14 N. Y. fill; Clark v. Bulmer, 11 M. &W.243. Doubtless the plaintiff may in tills, as in other cases where the per- formanceof a contract has been prevented by the act or omission of the other party, recover what lie has lost thereby. If any thing, or the damages sustuined. if any. llosnier v. Wilson. 7 Mich. 2i)4; 74 Am. Dec. 71(). Such a case however was not presented to the referee, nor was it sug- gested by the pleadings. The plalntlft neither claimed nor proved damages aria- iiig from the breach of the contract, nor from being prevented from performing It. On the contrary the cause of action was treated by the plaintiff and referee and by the court below as one where property bargained for had been delivered and title Vested in the purchaser, and for which therefore the pluiutlff, within wcU-sel tle<l rules of law. might maintain the action and recover the purchase-price. .And such 122 BUTLER V. BUTLER. is the contention of the learned counsel for the respondent upon this appeal. There is however nothin/r in the evidence to warrant that view of the case, or per- mit the application of such rule of law. The judgment should be reversed and a new trial granted, with costs to abide the event. All concur. .ludgraent reversed. BUTLI-:U V. THOMSON. 125 BUTUOK T. THOMSON et al. (92 U. S. 412.) Supreme Court of the United States. Oct. Term, 1875. Krror to the circuit court of the TTnltcd States for tlic soutlu-rn district of New Yorli. Mr. William M. Evarts for the plaintiff in error. Mr. E. U. Owen, contra. Mr. Justice HUNT (ielivered the opinion of the court. The plaintiff alleged that on theolcvrnth day of July, ISCT, he barnained and Hold to the defendantH a quantity of iron thereafter to arrive, at prices named, and that the defendants agreed to accept the same, and pay the purchase-money there- for; that the iron arriveil in due time, and was tendered to the defendants, who re- fused to receive and pay for tlie same; and that the pUintiff afterwards sold the same at a loss of .f'j..")hil, which sum he re- quires the defendants to make j;ood to him. The defendants interposed a general denial. Upon the trial, the case came down to this: The plaintiff emi)l<)yed certain brokers of the city of New York to make sale for him of the expected iron. The brokers made sale of the same to the de- fendants at 12% cents per pound in gold, cash. The following memorandum of sale was made l)y the brokers; viz. : — "New York. July 10, 1807. Sold for Messrs. Butler & Co., Boston, to Messr.s. A. A. Thomson & Co., New York, seven hundred and five (7'J5) packs first-quality Russia sheet-iron, to arrive at New York, at twelve and three-quarters {\'2%) cents per i)ound, gold, cash, actual tare. Iron duo ai)ont Sept. 1, '67. White & Ilazzard, Ilrokers." The defendants contend, that, under the statute of frauds of the state of New York, this contract is not obligatory up- on them. The judge before whom the cause was tried at the circuit concurred in this view, and ordered judgment for the defendants. It is from this judgment that the present review is taken. The provision of the statute of New York upon which the question arises (2 K. S. p. 186, sect. :i) is in these words: — "Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless (l)a note or meniorandum of such contract be made in writing, and lie sui)scrilied by the parties to be charged thereby ; or (2) unless the buyer shall ac- cept and receive part of such goods, or the evidences, or some of them, of such things in action; or (Ij) unless the bn.ver sliall at the time pay some part of the purchase-money." The eighth section of the same title pro- vides that "every instrument required by any of the provisions of this title to be subscribed l)y any party may be sub- scribed bythelawful agent of such party." There is no pretense that any of the goods were accepted and received, or that any part of the purchaHe-nioney was paid. The (luestlon arises upon the first branch of the statute, that a memorandum of the contract shall be made In writing, and be subscribed by the parties to be charged thereby. The defendants ilo not contend that there Is not a sulllclent subscription to tlie contract. White & Uazzard, who signed the instrument, are proverl to have been the authorized agents of the plain- tiff to sell, and of the defendants to buy ; and their signature. It Is conceded, is the signature lioth of the defendants and of the plaintiff. The objection is to the sufficiency of the contract itself. The written memoran- dum recites that Butler & Co. had sold tlie iron to the delendants at a prlro named; but It Is said there Is no recital that the defendants had bought the iron. There is a contract of sale. It is argued, but not a contract of (lurchase. As we understand the argument, It is an attack upon the contract, not only that it is not in compliance with the statute of frauds, but that it is void upon common- law princli)lcs. The evidence required by the statute to avoid frauds and perjuries — to wit, a written agreement — is iiresent. Such as it is, the contract is snillclently established, and possesses the evidence of Its e:(lbtence required Ity the statute of frauds. The contention would be the same if the articles sold had not been of the price named in the statute; to wit, the sum of fifty dollars. Let us examine the argiynent. Black- stone's definition of a sale Is "a transmu- tation of property from one man to another in consideration of some price." 2 HI. 44C. Kent's is, "a contract for the transfer of property from one person to atiotlier." 2 Ivont, (!1.".. Bigelow, C. J., defines it in these words: "Competent p.nrtics to en- ter into a contract, an agreement to sell, the mutual assent of the parties to the subject-matter of the sale, and the price to be paid therefor." Gardner v. Latie, 12 Allen, 3!), 4:). A learned author says, "If any one of the Ingredients be wanting, there Is no sale." .\tkiuson on Sales, 5. Benjamin on Sales, p. 1, note, and p. 2, says, "To constitute a valid sale, tliere must be (1) parties competent to con- tract; (2) mutual assent; (3) a thing, the absolute or general proi)erty in which Is transferred from the seller to the buyer; (4) a price in money, paid or promised." How. then, can there be a sale of seven hundred and five packs of iron, uidess there be a purchase of it? How can there be a seller, unless there lie likewise a pur- chaser. These authorities recpdre the ex- istence of both. The essential Idea of a sale is that of an agreement or meeting of minds bv which a title passes from one, and vests in another. \ man cannot sell his chattel by a iierfccted sale, and still remain its owner. There may be an offer to sell, subject to acceptance, which would bind the partv offering, ami not the other partv until acceptance. The same may be said of an optional purchase upim a BUlliclcnt consideration. Tliere Is also a 126 BUTLER V. THOMSON". class of cases under tlio statute of frauds where it is Iielfl that tlie party who has Binned the contract may be held charge aide upon it, and the other party, who lias not furnished that evidence against himself, will not be thus cliarKcable. Uni- lateral contracts have been the subject of much discussion, which we do not propose here to repeat. In Thornton v. Kemp- ster, 5 Taunt. 7S8, it is said, — "("oiitraets may exist, which, by reason of the statute of frauds, could be enforced by one party, although they could not be enforced by the other party. The statute of frauds in that respect throws a diffi- culty in the way of the evidence. Tlie ob- jection does not interfere with the sub- stance of the contract, and it is the negli- gence of the other party that he did not take care to obtain and preserve admissi- ble evidence to enable himself also to en- force it." The statute of 29 Car. 11., c. 3, on which this decision is based, that "no contract for the sale of goods, wares, and mer- chandise, for the price of £10 sterling or upwards, shall be allowed to be good ex- cept the buyer," &c., is in legal effect the same as that of the statute of New York already cited. See Justice v. Lang, 42 N. v. 4y3,that such is the effect of the statute of J^ew York. The case before us does not fall witlin this class. There the contract is signed by one party only ; here both have signed the paper; and, if a contract is created, it is a mutual one. Both are liable, or neither. Under these authorities, it seems clear that there can be no sale unless there is a purchase, as there can be no purchase un- less there be a sale. When, therefore, the parties mutually certify and declare in writing that Butler & Co. have sold a cer- tain amount of iron to Thomson & Co. at a price named, there is included therein a certificate and declaration that Thomson & Oo. have bought the iron at that price. In Newell v. Badford, L. R. 3 C. P. 52, the memorandum was in these words: " Mr. H., 32 sacks culasses at 3ys., 2S() lbs., to wait orders;" signed," John Williams." It was objected that it was impossible to tell from this memorandum which party was the buyer, and which was the seller. Parol proof of the situation of the parties was received, and that Williams was the defendant's agent, and made the entry in the plaintiff's books. In answer to the objection the court say, "The plaintiff was a baker, who would require the flour, and the defendant a person who was in the habit of selling it;" and the plaintiff recovered. It may be noticed, also, that the memorandum in tliat case was so formal as to contain no words either of purchaseor 8ale(" Mr. H.,32 sacks culasses at 39s., 2SIJ lbs., to wait orders"); but it was held to create a good contract upon the parol evidence mentioned. The subject of bought and sold notes was elaborately discussed in the case of JSivew- right V. Archibald, 6 Eng. L. & Eq. 286; s. c. 17 Q. B. 103; Benj. on Sales, p. 224. sect. 290. There was a discrepancy in that case between the bought and sold notes. The sold note was for a sale to the defend- ant of ".500 tons Messrs. Uunlop, Wilson, & Co. 's pig-iron." The bought note was for "500 tons of Scotch pig-iron." The diversity between the bought and sold notes was held to avoid the contract. It was held that the subject of the contract was not agreed upon between the parties. It appeared there, and the circumstance is commented on by Mr. Justice Patteson, that the practice is to deliver the bought note to the buyer, and the sold note to the seller. He says, " Each of them, in the language used, purports to be a represen- tation by the brokerto the person to whom it is delivered, of what he, the broker, has done as agent for that person. Surely the bought note delivered to the buyer cannot be said to be the memorandum of the contract signed by the buyer's agent, in order lliat he miiiht be bound thereby; for then it would have been delivered to the seller, not to the buyer, and vice versa as to the sold note." The argument on which the decision be- low, of the case we are considering, was based, is that the contract of sale is dis- tinct from the contract of purchase; that, to charge the purchaser, the suit should be brought upon the bought note; and that the purchaser c.nu only be held where his agent has signed and delivered to the other party a bought note,— that is, an instrument expressing that he has bought and will pay for the articles specified. Mr. Justice Patteson answers this by the statement that the bought note is always delivered to the buyer, and the sold note to the seller. The plaintiff here has the signature of both parties, and the coun- terpart delivered to him, and on which he brings his suit, is, according to Mr. Jus- tice Patteson, the proper one for that pur- pose, — that is, the sold note. We do not discover in Justice v. Lang, reported in 42 N. Y. 493, and again in 52 N. Y. 323, any thing that coiitlicts with tlie views we have expressed, or that gives material aid in deciding the points we have discussed. The memorandum in question, express- ing that the iron had bef»n sold, imported necessarily that it had been bought. The contract was signed by the agent of both parties, the buyer and the seller, and in our opinion was a perfect contract, ob- ligatory upon both tlie parties thereto. Judgment reversed, and cause remand- ed for a new trial. CAMPBELL PRINTING PUESS CO. o. THORP. 129 CAMPBELL PIUNTIXG-PRESS CO. v. THORP et al. (3G Fed. Rep. 414.) Circuit Court, E. U. Michigan. Oct. IC, 18SS. At Law. On exceptiona to referee's re- port. Tlie tacts fullv appear in the following statement l)y BROWN, J.: Plaintiff atrrced to sell to the defonrlDnts certain [Jrinting-prensoH, rollers, ami other property connected with a i)rinting estab- lishnient. and (guarantied that the pre.nses shonid lie "free from defective material or workmanship, and should do their work satisfactorily " The referee, to whom the case was referred, found that neither of the three presses was satisfactory to de- fenilants; nor did they do their work rea- 8onat)ly well, yet he found as a conclu- sion of law that the plaintiff was entitled to recover the whole aj^reed price, less a small sum, conceded as a set-off, upon the theory that it was the duty of tjie defend- ants to reject the presses if they were not satisfied with thera.and that, ha vinj; kept them, there was no method of estiniatinu the loss they KufferiMJ by reason of their dissatisfacliiin ; in other words, tliat the value of a press that should work to their satisfaction was not capable of pecuniary estimation. Charles A. Kent, for plaintiff. W. L. Carpenter, for defendants. Before .T.XCK.SON, Circuit Judge, and BROWN, District Judge. BROWN, J., (after stating the facts as above.) The correctness of the referee's ruling depends largely upon the proper construction of the guai.-inly that the l)rtss"s should he Iri'C from defects of niateriiil or workmanshi|i, and should do their work satisf.ictoiily. There is no doubt of llie general proposition that where one party agrees to do i'. piece of work to the satisfaction of another, the excellence of whiL-h work is wholly or in part a nintler of taste, such, for instance, as a portrait, a photograph or liust, a suit of clot lies, a musical instrument, or a piece of furniture, the buyer may reject it without assigning .'iny reason for his dis- satisfaclion. In such ease the law cannot relieve against the folly of the vendor, by incjuiring whether the dissatisfaction of the vendee was based upon reasonable grouiMis or not. It is even doul)tful whetlier it can ini|uire into the good faith of the vendee's deci^'ion. Brown v Fos- ter. 11;! .Mass. Mti: McCarren v .McNnlty, 7 Cray, l:!!); Gibson v. Cranage,*) .\lii-h. 40; Hoffman v. Gallaher. (i Daly. 4l'; Za- leski V. Clark, 4t Conn. 21s; McChire v. Rriggs. .is Vt. Si>. 2 Atl. Rep. ."is:!. The true doctrine is e.xpi'csscd in McCarren v. .Mc- Nulty. 7 Cray. l:!'.). 14): "It may be that the plaintiff was injudicious or indiscreet in undertaking to labor and furnish niatp- rials for a cotnp4-nsation, the layment of which was made depc^ndent up<in a contin- gency so hazardous or doubtful as the ap- proval or satisfaction of a jiarly [larticu- larly in intere-t. But of that he was the sole judge. Against the consc<|uence8 re- LAW SALKS — 9 iBiilting from his own bargain the law can afford him no relief. Having voiuntarilv assumed the obligations and risk of the contract, his legal rights are to be aHcer- tuiiied anil determined solely according to its [irovisions. " other cases extend th» same floctrine to contracts fur the per- formance of labor, or tor the support of another to his satisfaction. In such case the employer may be wholly dlssatlBlied with the character of the service rendered, or the beneliciary made exceedingly un- comfortable by his surroundings, without in either case being able to assign what the law would recognize as o sullicieut reason for bis dissatisfaction. It inakeu him, however, the sole judge ol the rea- sonableness of his ijwn discontent. Tay- lor v. Brewer. 1 .\Iaule & !S. -.".Itt; Rossitcr V. Cooper. T.\ Vt. :>22; Tvler v. Ames, 6 Lnns. 2M); Hpring v. Clock Co.. 24 Hun. 17.'i; Hart v Hart. 22 liarb. COr,; Ellis v. Mortimer, 1 Bos. & P N. It. 2.'i7 \\ hether these words shonhl receive the same construction where the suitablenesH of the article furnished invidves no ques- tion of taste or personal feeling, but sim- ply one of mechanical fitness tcj do a cer- tain work, or accomplish a certain )iur- pose, admits of some doubt. The author- ities are not entirely httrniimious, but the decided weight of authority is in favor of the construction given to it by the ref- eree. So far as this state is concerned, two decisions seem to [lut the matter en- tirely at rest. In Machine Co. v. .Smith. ')() Mich. ."i(i5, 1.5 X. \V. Rep. '.mm;, it was held that where the vendor of a harvesting- machine gave a warranty that the con- tract of purchase should l)eof no effect un- less the machine worked to the buyer's satisfaction, it was held the purchaser had reserved the absolute right to reject the machine, and that his reasons for dt)- ing so could not he investigated. .\ still stronger easels that of Manufacturing Co. V. Ellis. (;s Mich. 101. :).-. N. W. Rep. h41. The agreement was that a certain grain- binder shoiil<l do good work and "give satisfaction." It was held that, unless the defendant was satislieil with the ma- chine, although it did go id work, he was not bound to purchase. See. also. Piatt V. Rroderick, 70 .Mich. .".77. :Js N. \V. Refi. .579. In the case of Machine Co. v. Ches- rown. :y.^ .Minn. :!2, 21 N. W. Rep. sm\. plain- tiff guarantied to furnish defendant n cord-binder guarantied to work satisfac- torily. It was held taat in c<ise, upon reasonable trial, it did not work satisfac- torily, it was unnecessary lor the defend- ant "to return it to iilaintiff. but it was sullicient for him. withiti a reasonable time, to notify plaintiff, in substance, that it did not work satisfactorily. and that he declined to accept it. The same ruling was made with regard ton steam-boat, in Gray v. Itailroad Co., 11 Hun. 70; with re- gard to a machine for generating gas. In .Viken v. Hyile. !•'.• Mass. 1.^:1; with regard to a fanning mill, in Goodrich v.VanNort- wlck.4:t Ill.44.'i; and with regard to a pas- senger elevator, ill SIngerly v. Thayer, los Pa. St. 2'.tl. 2 .Ml. Rep. '-'in. In this latter case a large number of aulhorilies Bre cited liy counsel and court to the sniuo effect. The New York cases at llrst lilusU i^n CAMl'lJKLL I'lMXTING I'liESS (^O. v TIIOKP would Kueiii to lay tiowii a tlifferent rule, but wlicn enrefully i!xnniined the difforence is more apparent than real. The earliest case is that of Folliard v. Wallace, L' Johns. 3!t.i, in vsiiieh one covenanted that in case the title to a lot of land conveyed to him should prove jjood and sufficient in law, that lie woiilil pay to a third par- ty, three months after he should be well satisfied that the title was undisputed and Kood against all other claims. It was held that tlie award of certain com- missioners on the title in favor of the cov- •Miantor ou^'ht to satisfj' him, and that it \VMS not euoush for the defendant to al- lege that he was not satisfied with the ti- tle without some good reason lieing as- signed for his dissatisfaction, and that he was not to judge for himself, but tliat the law would determine when he ought to be satisfied. Chancellor Kent, who de- livered the opinion, observed that "if the defendant were left at liberty to judge for himself when he were satisfied, it would totally destroy the obligation, and the agreement would be absolutelj' void." In City of Brooklyn v. Kailway Co., 47 N. Y 475, an action was urought upon a cov- enant in which the defendant agreed to keep the pavement of certain streets in thorough reiiair within the traclis, etc., un- der the dirtction of such competent au- thority as the common council might des- ignate. The court held that, if the pave- ment were kept in tliorough repair, it was sutlicient though it was kept up without dirfction from the competent authority designated by the common council. "That which the law shall sa.y a contract- ing party ouj^ht in reason to be satis- fied with, that the lau will say he is sat- isfied with." A like ruling was made in Miesell v. Insurance Co.. 70 N. Y. 11.5, with reference to the certificate of a physician in a life insurance case; and, finallv, in Boiler Co. v. Garden, 101 N. Y. .'W, 4 N. E. Rep. 740, the parties entered into a contract by which plaintiff agreed to alter certain boilers belonging to defendants, for which the defendants agreed to pay the stipu- lated price "as soon as they are satisfied the l)oilers as changed are a success. " in an action to rfcover the contract price, the defendants claimed the nuestion as to whether the work was a success was one alone for them to determine. This was held to be untenable, and that a simple allegation of dissatisfaction without a good reason therefor was no defense. The prior cases were quoted as settling the law in that state. None of these cases, however, related to the sale of man- ufactured articles. In none of them was there an oijportunit.v for a rescission, and re8ti>ring the parties to their statu quo. The last caseparticularly is much like that of Iron Co. v. Best, 14 Mo. .\pp. .")(«, hereafter cited, and is subject to the same criticism. Notwithstanding the cases in New York, and admitting all that is claimed for them, the weiglit of aiitliority as well as of reason iiiclines us to the opinion that the parties must stand to their contract as they have made it, and if the vendor lias agreed to furnisli an article that shall tie satisfactory to the vendee, he consti- tutes the latter the sole arbiter of his own satisfaction. It is entirely well settled that if the acceptance of a machine is made dependent u[)on the approval of an engineer, or if a pavement is to be laid to the satisfaction of a street commissioner, or if lumber is to lie scaled by an inspect- or, the decision of such agent, in the ab- sence of fraud, bad faith, or clear error, is conclusive. We know of no reason of pub- lic polic.v which prevents parties from con- tractine that the decision of one or the other sliall be conclusive. In th? case of chattel mortgages the rule is entirely well settled that, if the mortgage provides that mortgagee may take possession whenever he deems his security unsafe, the mortgagor thereby submits himself to the judgment of the mortgagee on the question of security, and the latter is not bound to prove circumstances justifying his action. Certain cases, however, estab- lish a reasonalile modification of this rule, to the effect that the dissatisfaction must be real, and not feigned, and that the vendee is not at liber'y to say he is dissatisfied when in reality he is not ; in other words, that his discontent must be genuine. Manufacturing Co. v. Brush, 43 Vt. r>L'S; Daggett v. .lohnson, 49 Vt. 345; iMcClure v. Briggs, .")S Vt. S2, L'Atl. Rep. .5S3. The same cases, however, hold that, while the vendee is bound to act honestly, it is not enough to show that he ought to have been satisfied, and that his dis- cont'.'iit was without good reason. See, also, Lynn v. Railroad Co., (iO Md. 404; Railroad Co. v. Brvdon, 05 Md. 1!)S, (ill, 3 Atl. Rep. 30(i, and 'J Atl. Rep. U'G. In Manufacturing Co. v. Cliico, 24 Fed. Rep. S93, it was held that where, under a con- tract, a fire-engine was to be made and delivered which should be satisfactory to the purchaser, it must in fact be satisfac- tory to him, or he is not bound to take it ; but that, where the purchaser was in fact satisfied, but fraudulentl.v, and in bad faith, declared that he was not satisfied, the contract had been full.v performed by the vendor, and the purchaser was bound to accept the article. This I regaril as an accurate summary of the whole law upon the subject. Somedoubt is thrown upon this case by the stipulation that tlie presses shall work satisfactorily, without stating the person to whom they shall be satisfacto- ry. We think, however, that there can be but one interpretation fairly given to these words. When, in common language, we speak of making a thing satisfactory, we mean it shall be satisfactory to the person to whom we furnish it. It would be nonsense to say that it should be sati.s- factory to the vendor. It would be in- definite to say that it should besatisfac- tor.v toa third person, without designating the i)ersou. it can only be inteiide<l that it shall besatisfactory to the person whois himself interested in itssatisfactory ojiera- tion,and that is thevendee. This was the view taken of similar words in Taylor v. Brewer, 1 Maule & S. 290; Machine Co. v. Chesrown, 33 Minn. 32, 21 N. W. Rep. S46; and in Gingerly v. Thayer. 10»-Pa. .St. 291, 2 Atl. Rep. 230. The case of Iron Co. v. Best, 14 Mo. App. 503, is clearly distin- CAMPBELL PRIXTIXG-PRESS CO.'c. THORP. i:Jl (iiiiHhnble from the ciiHes last cited. In tliiH case (iefeiidfuit agreed to build an air- furnace in plaintiff's wareliouse. acconl- iuK to a plan to be furnished by himself. The furnace thuH l)ecanie attached to the freehold of the plaintiff, and was incapa- ble of Be vera nee. It was a structure into which the plaintiff had put all the mate- rials and the (iefcndnnt had |)ut all the lat)or. Defendant could not take away the materials, because tliey were not only attached to plaintiff's freehold, but actu- ally beloDKed to him. His labor was none, and couh] not be recalled. To per- mit the plaintiff, under such circum- stances, to refuse to pay, if in fact the fur- nace worked reasonably well, and at the Hanie time to retain the fruits of defend- ant's labor, would have been an unwar- rantal)le extension of the doctrine applied to machines or articles of manufacture which can be rejected. The court very properly hehl that the covenant was sat- isfied if the furnace worked reasonably well. Conceding, then, that the i)1nintiff was bound to furnish presses that should Work satisfactorily to the defendants, it is very evident that they were not satis- fied with their operation, and that they hud reasonable f^rounds for their dissatis- faction, as the referee linds that the presses neither worked to their Butisfac- j tion, nor reas.mubly well. This undoubt- ledlysave them the power to reject the I machines. Instead, of dolni: this, how- ever, they kejit them, and now seek to re- coup their damnKes by reason of their fail- ure to work as thev ought to. Had the I covenant been that the presses should work well, weshoiihl have no doubt that ' the defendants niiirht have recoupeil such damages, and that the referee would have found them ca|)able of estimation. These ; damages woulil linve been the illfference in value between presses which would work reasonably well and those wtilch were actually furnished I!iit in attempt- ing to apply the same rul<' in the prt-sent case, we encounter a formidable dithculty I from the impossibility of li.xing the value of machines which shall work to the sat- isfaction of the ilefendants. It will not do to say that such value Is to be gauged by that of a machine which shall work reu- sonalily well, because such a press might not have been satisfactory to the vendee, or he might have been content with one which would not have workeil to the sat- isfaction of exjierts in the business. We think that, having elected to retain the presses, they are bound to pay the full I)rice for them. The exceptions to the re- feree's report will tliiTefore be overruled, and judgment entered upon bi8 finding. u^ CAKDIXF.LL o. BEWETT. 1:3:} CARDIXBr.L T. BEXXKTT ct al. (52 Cal. 47C.) Sniircine Court of California. Oct. Terra, 187". Action l).v John A. Cardinoll OKain.st CharlpH A. lipnnctt and aiiotlipr, to recover a horse or its value. From a jiiilj;ment for plaintiff defendantK appeal. Keverwed. One Carpenter, the owner of the horse, flKreed with iilaintiff to Kive it to him on a date named, in e.xehansu for a Ijuf^f^y and $•.'.'>(), plaintiff payiuji one dollar at tlie time the afiTeement was made. There- after Carpenter Hold the horse to defend- ant Bennett, and could not deliver it to plaintiff wijen called on to do so. Tilden & WilHon.fornppellant. ThomoH V. O'Brien, tor respondent. BY THK COUItT. Plaintiff had no [>rop('rt.v, either Kffiieral or H|ierial, in the lioTHe "Chief Crowley" at the time of the alleged conversion, or when thin action was commenced. The transaction did not amount to a sale on credit from Car- penter to Cardinell, hut a C(jntract wiiere- hy it was agreed that the latter slionli] acquire the property on the performance of certain conditions promised liy liini to be performed. Judgment and order reversed and case remanded. CAUI.KINS r. IIKIJ.MAX. i:J5 CAULKI.VS V. IIKI.I.MAN (47 N. Y. 440.) Court of Appeals of New York. 1872. Action to recover for winea and canks sold. Stephen K. Williams, for appellant. E. G. Latham, for respondents. RAPALU), J. The instruptions to the jury as to tjie IcRol effect of the delivery of the wine at IJIood'H Stution in conform- ity with the terniH of tlie verbal contract of sale were clearly erroneous. No act of tlie vendor alone, in performance of a con- tract of sale void liy the statute oi fruuds, can Kive validit.v to such a contract. Where a valid contract of sale is made in writing a delivery i)ursuant to such contract at the place agreed uiK)n for de- livery, or a shipment (jf the Koods in con- forn.ity with the terms of tiin contract, will pasH the title to the vendee without any receii)t or acceptance of the >?oods hy him. Hut if the contract is oral, and no part of the price i.s paid by the vendee, there must be not onl.v a delivery of the Roods by the vendor, but a receipt and nc- ce[)tance of them by the vendee to pass the title or make the vendee liable for the price; and this accei)tance must be V(diin- tary and unconditional. Kven the receipt of the y;ou(ls, without an acceptance, is nt)t KuHicient. Some act or conduct on the |)art of the vendee, or his authorized agent, manifestiufi an intention to accept the goods as a performance of the con- tract, and to appropriate them, is re- quired to supply the place of a written contract. This dJKtiiictioti seems to have been overlooked in the charge. The learned judge instructe<l the jury, as a matter of law, that if the.v were satisfied that the wine or any portion of it was actually delivered in pursuance of the verlial contract, that circumstance was sufticient to take the contract out of the statute of frauds, and the contract was a valid one, and might be enforced notwith- standing it was not in writing. The at- tention of the jury was directed to the in- quiry whether the plaintiffs had faithfully performed their part of the contr.ict rather than to theaction of thedefeinlnnt, and the juilge proceeded to state that if the wine was delivered to tliee.\press com- pany at lUood's Station in good ord'M-, in nierchau table condition, and corresponded in quality and all substantial and mate- rial respects with the saujples. then he in- structed the jury as a matter of law. that if they found the contract as dordon tes- tilied with respect to the place of delivery, that was a complete delivery under the contract, and passed the title from the plaintiffs to the defendant, and the plain- tiffs were entitled to recover the contract price of the wines. The plaintiff's counsel suggests in the statement of facts appended to his points, that (Jordou was the agent of the defend- ant, to accept the g'lods at l!lood"s .Sta- tion, liut this statement is not borueiuit hy the evidence: (>ordon was the agent of the plaintiffs for the sale of the goods; it was incumbent upon them to make the shipment. All that (iordon testllies to is that the delendant rciiuesteil him to make the best bargain he could for the freight. He does not claim that he had any au- thority to accept tbegcMids for the defend- ant. According to the defendant's testimony Gordon clearly had no such authority, nor did the defendant designate any con- veyance, and the judge submitted no ques- tion to the jury as to the authority either of (iordon or the express company to ac- cept the goods. On the contrary, he re- peated that if when the wine was deliv- ered at lUood's Station it was in good order and corresi)onded with the saajples. the plaintiffs Would be entitled to a verdict for the contract price. U(K)n the ground that the parties by the ointract i assum- ing it to be as claimed by the plaintiffs), fixed upon that station as the jilace of de- livery; "tliat it was true that the defend- ant was not there to receive it. and had no agent at Blood's Station to receive It, and had no opportunity to inspect It there; but that that was a contingency he had not seen, and which lie might liave guarded against in the contract. " It is evident that the li'arncd judgt- ap- I)lied to this rase the rule as to delivery , which wotiiil t)e appliciilile to a valid, written contract of sale, but which is In- applicalile when the contract Is void by the statute of frauds. The effect of the delivery of goods at a railway station, to lie forwarded to the vendee iii pursuance of the terms of a verlial ccmtract of sale, was ver.v full.v dis- cussed in the case of Norman v riilllips, 14 .Mees. & Wels. 277, and a verdict for the plaintiff foun<led upon such a ilelivery, and upon the additional fact that the ven- dor sent an invoice to the vendee, whicll he retained for sevcial weeks, was set aside. Tlie Knglish authorities on the 8ul)ject are revieweii in that case, and tlie American anil Knglish authorities liearing ujion the same question are also relerreil to in tlie late cases of Kodgers v. I'hillips, 40 N. Y. .")19, and Cross v. O'Donnell. 44 id. (Itil ; 4 .Vm. Uep. 7l'1. The latter case ia cited liy the counsel for the plaintiffs as an authority for the proposition tliat a de- livery toa designated carrier is sullicienc to take the case out of the statute; but it does not so ilecide. It holds only that the receipt anil acceptance need not be simultaneous, but tliat they may takc^ place at different times, and that after the purchaser had himself inspected and ac- cepted the goods, purchased the delivery of tlicin by his direction to a designated carrier was n good delivery, and tlie car- rier was the agent of tlie purchaser to re- crive them. No question however arlsett in file present casi' as to a dell very to a designated carrier, as tlie evidence in re- spect totheagieed nioile of delivery is con- flicting, and no (luesiion of acceptance by the carrier as agent for the defendant was submitted to the jury. The jinlge submlttcfl to the jury two (luestious, to which ho reciuired specitlc answers. Ist. Was the wine delivereil at the rail- road station at the time agreed upon by 13G CAULKINS V. IIELLMAX. the parties, and wns it tlicn in all rewpects in S'xiil order, and like tlie samples exhih- ited by tlie plaintiff to tliedeiundantV and, 2(1. Was the wine accepted by tlie de- Jendant after it readied liis place of busi- iioss in New York? The jnry nnswered both of these ques- tions "in tlie allirniative, and it is now <:laiiiied that the answer to the second question renders immaterial any error the judse may have coniniitted in respect to the effect of the delivfrv at the station. it is (lifHcult to H/id any evidence justify- ing lliesiiliniission to thejury of the second <]iiestion; luit no excepticn was taken to «uch submission. The motion foranonsuit would have raised tiiat point, were it not for the fact that there was evidence to go to the jury on the claim of .ff)!' for barrels, and tills precluded a nonsuit. We think however that theerror in the cliarue may have misled thejury in passing; upon thesec- <)n<l question ; at allevents,it isnot impos- sible that it should 'lavedone so. Having lieeu instructed that upon the fact as they found it in respect to the agreement for a <lelivery at Blood's Station, the title to the goods had passed to the defendant liefore the receipt of theinat New York, and that their verdict must lie for the iilain- titfs. they may have examined thequestion of his acceptance of them at New Y'ork with less scrutiny than they would have exercised had they been informed tliat the result of the case depended upon their find- ing on that question. And the construc- tion of the defendant's acts and language may, iu some degree, have been influenced lij' theconsideration that when the winear- rived in New York the title had, according to the theory on which the case was sub- mitted to them, passed to the defendant, and lie had ncj right to reject the wines. Furthermore, we think the judge erred in excluding the evidence of the contents of the telegram which thedefenrtant attempt- ed to send to the pUiintiffs immediately niion the receipt of the wine. If, as was offeied to he shown, it stated that he de- clined to accept the wine, it was material as part of the res gestre. A bona fide attempt, immediately on the receipt and examination of the wine, to communicate such a message, was an act on his part explaining and qualifying his conduct in receiving the wine into liis store ami al- lowing it to remain there. And even though the message never reached the plaintiffs, it bore upon the question of ac- ceptance by the defendant. The oltjec- tion to the evidence of the contents of the telegram was not placed <>■,] the ground of omission to produce the original, and the judge in his charge instructed the jury that the attempt to .send this telegram did not affect the plaintiffs' rights, tor the reason that it was not shown to have been received by them, and this was ex- cepted to. In Norman v. Phillips, 14 .Mees. & Wels. 277, the defendant was allowed to prove that on being informed by the railway clerk that the goods were lying for him at the station, he said he would not take tbem, and stress was laid upon the fact. Yet this statement to the clerk was not communicated to the plaintiff. Evidence of an attempt to send a message to them to the same effect, though un- successful, would have lieeii no more ob- iectioual)le than the declaration to the clerk. The acts of the defendant at the time of the receijit of tlie goods, and his bona fide alteui])t to comnuinicate to the . plaintiffs his rejection of tnem were I think j material and competent to rebut any pre- ; sumption of an acceptance arising from I their retention by liim. j The judge was requested to instruct the i jury that the true meaning of the defend- j ant's letter of March 31 was a refusal to I accept the wine under tlie contract. A j careful examination of that letter satis- fies us that the defendant was entitled to have the jui-y thus instructed. The letter clearly shows that the defendant did not accejit or appropriate the wines. After cotnplaining in strong language of their quality and condition, and of the time and manner of their shipment, he says to the iilaintiffs, "what can be done now with the wine after it suffered so much, and shows itself of such a poor qualit> '? I don't know myself and am awaiting your advice and opinion." He conclu<les by expressing his regret that their first direct transaction should have turned out so unsatisfactory, and by stating that he cannot be the sufferer by it, and he awaits their <lisposition. 'J'liis language clearly indicates an in- tention to throw upon the plaintiffs the responsibility of directing what should be done with the wine, and is inconsistent witii any acceptance or appropriation of it by the writer. For these reasons the judgment should be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed. CHAN'DELOU v. LOPUS. 139 CriANDELOR v. LOPUS. (2 Cro. Jac. 2.) Exchoiiuor Chamber, Easter Term. Action upon tlie coBe: Whereas the dc- feixliint beirm a frf'ilHniith, and havinjr skill in jewels and iirecioua stones, had a stone, which he aftirnied to Lopus to he a lipznr-stone, and sold it to him f'lr one hunilred pounds; uhi revers. it was not a bezar-Htone. The defenilant pU'ade<l not guilt.v, and verdict was niven and judR- raent entered for the plaintiff in the kinfi'K bench. But error was tliereof brought in theex- chequer chamber; because tlie declaration contains not matter sufficient to charKe the defendant, viz. that he warranted it to be n bezar-stone or tliat he knew that it was not a bezar-stone; for it may lie that he himself was ignorant whether it were a bezar-stone or not. And all the justices and barons le.xcept A.NDEHSON) held, tliat for this cause it was error. For the bare aliirmation that It was a bezar- stone, without warrnntinu it to he ho, is no cause of action. .\iid although he knew it to be no bcznr-stoiic. it Is not ma- terial. For everyone, in selling his wares, will allirni that his wares are good, or the horse which he sells is sound : yet if he does not warrant them to be so," it Is no cause of action. And the warrantyouglit to be made at the same time as the sale. Fitz. Nat. Brev, y4. c. & its, b; h lien. 7, pi. 41; U Hen. ti, pi. ->:i; 12 Hen. 4, pi. 1; 42 Ass.S; 7 Hen. 4. pi. I."). Wherefore. foras- much as no warranty is allegeil, they held the declaration to belli. .V.NDEHSON to the contrary ; for the deceit in selling It as a bezar, whereas it was not so. Is cause of action. Hut notwithstanding it was ad- judged to be no cause, and the judgment was 16 versed. Il CHAPMAN V. MUKcn. 141 CIIArMAN V. MLUCII. (1!) Johns. 290.) Supreme Cmirt of New York. Jan. Torm, 1S2-J. In oiTor tdthe court or common plens of Wnsliiiititdii county. Cliapnian L-rouKht tin ii('ti<)ii of a.-<siinip8it auniiist Mnroli in the coiiit Ik'Iow, The liecluration stated, that the (It'iciidant, on the l.st of Dwem- 1(.M-, ISls. in ccjnKiileration that theiilain- tiff would ilcliver to the dcicmlant, a cer- tain horse of the plaintiff (jf j^reat value, in exchange for a certain liorse of the dc- fentlant. the defemlant undertook and promised, that tlie liorse of the defendant was then and there sound, &!•. ; lliat the |)laintiff. confidinj;' in tlie said promise of the defendant, delivered to jjim the said horse of the plaintiff, in cxcliMUge for the defendant's liorse, &c. Yet tlie defendant, &c. fraudulently, &c. diti not perforin or regard his said promise, &e., for tliat the horse of the defendant was not sound, liut, on the contrary, was unsound, and had a certain disease, called the yellow wafer, of which lie afterwards, to wit, on the liil day of Deceinlier, Isls, died, wiiere- liy, &v. The defendant pleaded the gen- eral issue, and on the trial of the cause, the pl;iintiff offered to prove, that the parties exchanged horses; that the plain- tiff let the defendant have a horse worth 1(10 dollai <, in consideration of which tlie defendant let the plaintiff have another horse, which the defendant, at the tiine, representeil to be sound ; that the horse of the ilefendant, so delivered to liim in exchange, was not sound, hut that he had the disease, called the yellow water,whicli rendered him useless and of no value, and that he died th(? next day. The evidence So offered was utijected to by the defend- ant's counsel, and rejected by the court, on the ground, that this being an action of assumpsit founded on a warranty of the soundness of the horse, the plaintiff, in order to entitle himself to n recovery, was bound to prove an express warran- ty, and that the testimony offered by the plaintiff did not amount to such a war- ranty. A hill of exce[)tions was taUen to I the opinion of the riiirl, on which the I writ of error was brought. The case waH submitted to the court without argu- ment, on a statement of the points and authorities. I i SPENCER, C.J. , flelivTed the opinion j of the court. In the various cases which have been cited.it apiiears. atiiindaiitly, ! that when the action is founded on a wa'r- j ranty of the soundness of a chattel sold, la warranty must be proved; but it no I where appears, tiiat it is necessary that the vender should use the express words, that he warranted the soundness. If n man should say, on the sale of a horse, " 1 pi-oaiise you the horse is souii<l,"it is ilillicult to conceive, that this is not a warranty, an<l an express one too. Peake (on Evid. 'J2s) says, "in an aition on u : wavranty, the plaintiff must prove the sale and warranty." "In general, (he says,) a!iy representation made by the defendant of the stale of the thing sold, at the time of the sale, will amount to a ■ warranty." lie adils, "but where the de- I fendant refers to any document, or to hlH belief oiily, in such cases no action is main- tainable, without proof, that he knew he was ivpresenting a falsehood." In every action on a warranty, it must be shown that there was an express and direct affirmation of the (piality and c<mditionof the thing sold, as contradistinguished from opinion, >.^c., and when that is made out, it would be an anomaly to rcjiilre that the word warrant should be used. Any words of eijuivalent im|)ort, showing the intention of the parties, that there should be a warranty, will sullice. In tlic present case, the plaintiff offered to prove what, under the circumstances, might be an express warranty; and that was for the consideration of the jury, un- der the advice of the court. Seixas v. Woods, 2 Caines, iifi. Pasley v. Freeman. 3 Terisi Rep. 57. ("ramer v. C'-adshuw. lu Johns. Rep. 4S4. The judgment must be reversed, and a venire de novo awarded to the court be- low. Judgment reversed. CLARK 0. DRAPER. 14;i CLARK V. DRAPKK. (19 N. H. 419.) Superior Court of Judicature of New Hamp- shire. Hillsiiorough. .Tuly Term, 1849. Trover by one (.'lark iigaiiiHt Aarson Draper for a pair of oxen. A verillct was taken by oonHent for plaintiff, on which juilRiiient was to be entered, or the ver- dict was to be set aside and judjiinent en- tered for defendant, as the opinion of the court should be upon the whole case. \'erdict set aside, and judgment for de- fendant. Plaintiff piirchaned the o.xen in suit of defendant for .5(1(1. giving his note for that amount, and defendant agreeiiiK to keep the oxen for plaintiff until the following Saturday. .\t the sanu! time deiendant gave to plaintiff some l)rass knobs, which he said the o.Nen wore on their horiis. .Subse<iuently plaintiff sent for the oxen, and defendant refused to give them up without receiving the money for them, whereupon this action was instituted. Pierce, for plaintiff. Sawyer, for defend- ant. WOODS, .1. This is an action of trover, and the i)laiiitiff, in order to maintain it, raust hnveeither a B[)ecial or general prop- erty in the thing demanded, together with the right of immediate possession. The jjroperty may be absolutely his, yet an- other may liave had such a right to the possession of it when the demand was made and the action brought, tlijit the plaintiff could not, against the will of such person, lawfully have taken it into his Dossession, and cannot, therefore, main- tain the present action, founded, as it is, upon the assuniiition that his right to possess the chattels has been violated by the defendant. It appears that in the month of Septem- ber, 1.S47, the |)laintiff bought the oxen of the defendant for sixty dollars, who agfeed to keep them till the following .Saturday tor the plaintiff, at his re- ♦luest. .No money or other thing was paid for the oxen, and no credit was stip- ulated for. Now that transaction consti- tuteil a sale of the chattels from the de- fendant to the plaintiff, who thereii()on became the owner of them. .V loss or de- struction of them, or any damage hap- pening to them afterwards, would have l)een the less or detriment of the pur- chaser and not o( the seller, ami the claim of the hitter for the price would have been in no wise affected l>i' such an oc- currence. 1 Inst. iM, -i. I'.ut notwithstanding such change of propei-ty or ownership, the vendor h;id a right to retain the oxen till the price was paid. This lien ol the vendor upon the goods sold for the payment of the purchase m(mey, has been universally recognized at common law. and its prin- ciples somewhat extensively di.icassed in the cases. It will be sutiicient to cite one or two of them. .\ hop merchant sold to B. on diverse davK in .\ugust. various parcels of hops. Part of them were weighed and an ac- count of the weights, together with sam- ples, deliverer] to the purchaser. The usual time of payment with the trarle was the second Saturday subsequent to the sale. B. did not pay for the hops at the usual time, whereupon A. gave notice that unless they were |)nid for bvaiertain day they would be re-sohl. The hops were not paid for, and A. re-sold a part, with the consent of 15., who afterwards became a bankrupt, and then A. Rold the remainder of the hops without the i-onsent of 1!. or his assicnees. .\ccount of the hops so sold was delivered to B., in which he was charged warehouse rent froni the ;JUtli of .August. The assignees of B. de- manded the hops of .\., anil tendered the <diavges of warehouse rent, \-c., and on the refusal of A. to deliver them, bri>iight trover. Jt was holden that the assignecfl could not maintain the action, because the party must have for that imrpose. not only a right of property but a right of possession; and that although a ven<lee of goods !u-i)uires a right of profierty by the contract of sale, yet he does not ac- (piire a right of i)o3scssion to the goods until he ijavs or tenders the price. Blox- am V. Sanders, 4 B. & C. 'J41, 10 Kng. C. L. Rep. SGs. Nor as between the original vendor and vendee is the lien of the former <livested by his giving to the vendee a delivery or- der for the goods sold, but remaining in the vendor's warehouse rent free, al- though it appeared that by the usage of trade in Liverpool, where the |i;irtles dealt, goods sold while in warehouse are delivered by the vendor's handing to the vendef^ a delivery order, and that the holder of such order may obtain credit with a purchaser, as having possession of the goods. Townlev v. Crump, 4 Ad. iVc El. :,s. To the same effect is the case of Tooke V. Hollinsworth, 5 Term Rep. I'lo. The doctrine is fully established in this state bv the case of Williams v. Moore. ,"> N. 11. Rep. 2:!.'i. That there was no actual ilelivery In this case, so as to destroy the lien of the defendant for the price, is clear. Ami the delivery of a part as and for the whole, or a symbolical or constructive delivery, if sutiicient for such an effect, is not made out by the delivery of the brass knobs that hail been worn upon the horns of the oxen. They were not delivered with the intention of thereby makini; a tradi- tion of the oxen, which is the essence of a symbolical delivery. Miit the casps plainly show that the li^n is preserved upon "all and every parcel of the goods sold which actually remain in the hands of the vendor. .Nor can the giving of the note for the price, payable on demand. In any view, be conslilerfd as a payment of the price. The doctrine on this head was fully con- sidered and settled in .laffrey v. Cornish. 10 N. 11. Rep. ,">()■>, where it was held that a promissory note given for the amount of a partv's taxes, was not a paymeut ot the taxes" for the purpose <if gaining a set- tlement. The taking of a note Is in no case the i)aynieiit .>f a debt, unless there be a special agreement to that effect. CLAUK V. DRAPER. The preficnt is a stI•<)ll^ and clear case for the apiilication of that aoctrino; and dis- tinct proof tha't the party talung the note intended thereby to part with his lien upon the property, wonid be reciuired. Tlie conclusion, therefore, is, that tlie present action cannot, upon tlie evidence reported, he maintained; that the verdict must be set aside, and there must be Judgment for the defendant. CLARK 0. FEY. 14; CLARK et al. t. FEY. (24 N. E. Rep. 70.'?, 121 N. Y. 470.) Court of Appeals of New York. June 3, 1800. Appeal from supremecourt, general term, first (U'partnicnt. Action by Clarence II. Clark a^aiiiKt John Fey for daniaKOH alleged to have been caused by defendant's failure to ac- cept goods (iron "T" rails) sold him by plaintiff by a written contract of sale. A judgment dismissing the complaint was alfirmed b3' the general term, and plaintiff appeals. Troixiwcll Ch'velariil, for a[)pellants. Jdliii JC. r.irsons and Albert G. McIlotmU], for respondent. FiNCU, J. It is not disputed that the rails which were finally tendered to the vendee, and then sold for his account and risk, producing a dcticieucy below thecon- tract price, which deficiency forms the subject of the action, were not the rails which the vendee bought and the vendor sold. By the original written contract, tliose rails were to be 500 tons, shippecl "from the other side, January or Febru- ary or March, seller's option." It is the settled rule that, in a case like the present, the date of the sliipment is a material ele- ment in the identification of the i)roperf v. Hill V. Blake, 97 N. Y. 216; Tol)ias v. J.iss- berger, 10.") N. Y. 404, 12 N. E. Rep. 1.3. It was not 500 tons of rails generally that were the sul)iect of the contract, but a specific quantity, 8hippe<l 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. It is clear, therefore, that the tender finally made was not of the property specified in the contract, and left no liability upon the vendee resulting from his refusal to accept, unless there is BoMiething else about the case. 'I'here is something else about the case upcm which 11 e vendors rel.v as eutitling them to a recovery; and that is an al- leged parol modification of the original contract which made the final tender an<l the sale founded upon it sufficient. A con- versation relative to the existing agree- ment took place between the vendee and .Mr. Post, rei)resenting the vendors, on or about the 20th day of .\pril. That was within the permitted time of delivery. The seller might have shipped during the last days of March by sail instead of by steam, and so had an average of from 35 to 45 days for the arrival. The conversa- tion, us detailed by Mr. Post, was thus stated : " Mr. Fey came in, and said that, in eonse<iuence of the price of old rails fall- ing from ;|f45 a ton to practically f 2:! a ton, it was a very dilhcult thinii; for him to take those rails; that he could not sell them now to anybody, and wanted me to be as easy with him as 1 could, and want- ed me to carry the rails, and give him eome rails latjr. I told him, on personal considerations. — I had known him for a long time,— that 1 would do everything I could to accommodate hiui. 1 said I would carry the rails for him, anrl nive him some rails a little further on i[i plare of them, and perhaps the [irice would Ki-t better." It is evident that this convirHa- tion on the part of .\fr. Fey was basnl up- on the assumption that the contract rails had arrived, and were ready tor delivery, and had bi'en duly tendered. Indeed, Mr. Postwas asked, "In that conversation, at that time, did yoti say anything about your rea<liness to deliver the iron that he had bought of you'.'" and answered," Per- haps I should ha ve said earlier that that was the basis of having informed him we were ready to do it, and wanting him to pay for it was the reason he wanted us to make it easy for him." Mr. Post was fur- ther asked. "You did make such an offer to him at that time'.'" and rejilied in the affirmative. And thus the basis of this hew negotiation was an nnderstaiiding on both sides that the contract rails had arrived, were ready for delivery, and that payment was due. I5y tlie contract, the purchase price was payable in part upon delivery to the vendee of "order on ves- sels, " and balance "on handing weigh- master's return." No such order or return was tendered in .\pril, and the facts leave it doubtful whether thesellers in the month of .\i)ril were in |)ossession of or could have tendered either. I?tit assuming that they coulil have made delivery in the mode prescribed by the contract, and that they were excused from the formal tender of the papers by the act of Fey, it is yet ap- parent that one of two things followed dependent upon the construction of the parol agreement. That is somewhat am- biguous in its terms, but itcould have had only one of two meanings. It must be construed as an agreement, either tliat the plaintiffs, having set aiiart and tendered the contract rails which had arrived, and payment f<jr which was due, would "car- ry them "for the account, and at the risk of Fey, for an indetinite l)Ut reasonable perioii, or that the sale of the contract rails shoulii be mutually abandoned, and instead thereof the sellers should be per- mitted to deliver, and the buyer would ficcept. other and different rails from those specified in the written contract. 1 do not see how, upon either construction, the plaintiffs could recover. They did not "carry " the contract rails. At the conversation in April, none had been set apart and identified as the prop- erty of Fey under the contract, even if we concede tliat such separation and identifi- cation was within tlie then power of the sellers. They had not set apart rails for Fey as his, and as being carried for hira. It "was not until some time in June that TM tons of rails were set apart as the property of Fey. and that was done upon the reiiiiirement of parties interested with the vendors, who "insisted upon it that Mr. Fey should take those rails so as to make tiim pay the storage."- It is plain that up to that tinu- no specific rails had been set apart oridentitied as thecontract lu-opertv of Fey upon which he was liable for storage. But the sellers did not carry ti,,. I rt mils. II lliey even in any manner separated oridentitied them, they sold them toother parlies; for Mr. Post 148 CLARK V. FET. says that lie told Fey in June. " Wc were going to Hetnsiflf five hnndrcrt tonsof rails for liini, and he «aid that was all rip;lit." Tlie 500 tons thus set a])art in tlie month of June, to be carried lor Fey, and npon which, therefore, he was to pay titorage, were rails not shipjied in the contract months, or not shown to have been so shipped. When ultimately sold, it ap- pears from the bills of lading that some were shipped on the Ivanhoe at Antwerp, April 9, ISSO; some by the Apotheke Deis- ingat Amsterdam, April 2S,1>5!S0; andsome by the Sara Caiuo, whose date of sailing from the other side is unproved. And it was these rails which the vendee was called upon to accept, and which were sold for his account on his refusal. So that the sellers did not carry for Fey the con- tract rails, and tender them for final ac- ceptance. The other view of the April conversa- tion dispenses with such tender of con- tract rails, and permits the carrying and offer of any old rails shipped trt)m the other side, irrespective of the date of ship- ment. But that is a new contract, and not a modification of the old one. It substitutes for the sale of the contract iron a new sale of different iron, which never before had been the subject of a con- tract. It was not merely a change uf the date of delivery and the time of payment, but of the very subject-matter of the con- tract,— of the thing sold on the one hand, and ijurchased on the other. It touchecl and altered the consideration and sub- stance of the agreement, instead of merely modifying the terms and manner of per- formance. The old contract was not to be performed at all. The isroperty which it stipulated about was not to be sold by one party or bought by the other, but in- stead thereof, and in place of the iron to which it related, a new contract for the sale and purchase of different iron entire- ly. That new contract was by parol, and void under the statute of frauds; and so neither view of the new agreement will enable the plaintiffs to recover. The old contract was rescinded; the new one re- mained wholly executory on both sides. We discover no ground upon which the judgment can be deemed erroneous, and it should be affirmed, with costs. All con- cur. \ OLARKSOX V. STEVENS. 151 CLARK SON et al. v. STEVENS et al. (1 Sup. Ct. Rep. 200, IOC U. S. 505.) Supreme Court of the United States. Nov. 27, 1882. In error to the court ot i-hancery of the etate of New Jersey. Wiilter L. Clarkfion and Frederick W. Stevens, for plaintiffs in error. John P. StoiUton, Atty. (ien., and Leon Abbett, for (iefeiidaiits in err(jr. MATTHR\V.S, .T. The controversy in tlii.s case uriwee between the plaintiffs in error, whoare, with others, heirs at law of Robert L. Stevens, tleceased,and the state of New Jersey, and involves the title to an uncompleted ship-of-war known as the Stevens battery. The claim of the plaintiffs in error is Jonnded on a resolution of congress ap- proved July 17,1S(;2, (12 .St.OL'S,) asfollows: "A resolution relensinf; to the heirs at law of Hobert L. Stevens, deceased, all theriuht, title, and interest of the I'nited States in and to Stevens Imttery. Uesolved, by the senate and house of representatives of the United States of America, in congress as- sembled, that all the right, title, and in- terest of the United States in and to .Ste- vens battery be, and the same hereby are, released and conveyed to the heirs at law of the said l{ol)ert L. Stevens, or their legal representatives." Itobert L. Stevens died in 1S.50, having his domicile in New Jersey, and by his will constituted his brother, E<) win .^.Stevens, who was one of his heirs at law, and whom he appointed one of his executors, his sole residuary devisee and legatee. Conceiving himself to be the owner of the unfinished vessel, of which he had been In possession since the death of his broth- er, and claiming as his residuar.v legatee, Kdwin A. Stevens, who died August 7, IMls, directed, by his will, his executors to complete it on his general plan, at a cost not exceeding ?l,000,00u, and then to offer it to the state of New Jer.sey as a present. The executors, after having exiiended t'.i]'.t.91.'..4!) upon the ves.sel, foiiml that they could not linish it for the amount of nioiie.v to wliicli they were limited, and discontinuecl the work. In the mean time the state of New Jersey had accepted the be(iuest,and theconsent of congress there- to was given in the following resolution, niiproved .Inly 1, ISTO: "A resolution giv- ing the consent of congress to the recep- tion of a certain beciuest by the state of New Jersey under the will of the late Ed- win A. Stevens. Whereue, Edwin A. Ste- vens, who was in his life-time the owner of the ship known as the Stevens battery, originally commenced under contract for the United States government, and upon the building of which large suras of money were spent l)y his brother and himself, did, by his last will and testament, (the United States having ijreviously relinquished all rlaims to saiil shij),) leave the same to be finished by his executors, at an expense not exceeding the sum of $1,000,000, aD<l when finished to be offered to the state of New .Jersey as a present, to be l)y her re- ceived and diaposed of aa the said state shall deem proper; and whereas, doubts have been suggesterl as to the right <if the said state to accept the said be(|ueMt with- out the consent of congress, under the prohibition of the tenth section ol the first article of the constitution of the United States; therefore, resolved, bv the senate and house u{ representa lives of the I'nited States of .\merica, in congress assemiiled, that the consent of congress is hereby given that the stateof .New Jersey shall re- ceive and dispose of the said ship accord- ing to the terms and conditions of said beipiest. " A bill in e<)uity was flied In the chancery cr)urt of New Jersey by the executors of Ed win A. Stevens, asking for a construc- tion of the will in certain particulars, in- cluding theijiiestions arising upon this be- : quest to the state. The attorney general appeared on behalf of the state, an<l filed Ian information by way of cross-bill, to i which the heirs at law of Uoliert L. .Ste- vens Here ma<le parties, as claiming an adverse title. A final deci-ce was made, establishing the title of the state, which was affirmed on appeal by the court of : errors and ap[)eals. To reverse that de- i cree the present writ of error was l)rought, the question presented being one, whieh. as it arises under a law of the United States, and the decision thereon ol the i state eourt being in lienial of the title : claimed under the authority thereof, falls j within the jurisdiction of this court. I To determine the pro()er construction and legal effect of the resolution of con- gress ol July 17, Isfiy, it becomes necess.-iry to trace from its origin the history of the I .Stevens batter.v. 1 Hy the act of congress of April 14, 1S4:J, "authorizing the constructiim of a war- steamer for harbor defense, " it is enaeted : " that the secretary of the navy t)e and he is hereby authorized to enter into con- j tract with Robert L. Stevens for the con- struction of a war-steamer, sliot and shell proof, to be built principally of iron, upon I the plan of the said Stevens: provided I the whole cost, including the hull, aruia- Inient, engines, boiler, «nd equipment. In all respects complete for service, shall not exceed the average cost of tlie steamers I Missouri an<l Mississippi;" and $L'.'>0,()00 ! was thereby ai)i)ropriated towards carry- ing the lawinto effect. ."> St. at Large, 472. I In pursuance of this law, the secretary j of the navy entered Felirunry 10.1843, into a contract with Hobert L. .Stevens for the construction of a war-steamer for har- bor defense, which recited Ids proposal, describing the vessel, and containing cer- tain specifications as to its construction, with a covenant on his part that he would faithfully build ami construrt the steamer conformably to the plan submit tei!, and complete tlie same within two years, pro- vided congress shor.lil make the further aiipriqiriations ne<-essary tor the purpose within a reasonable period. ! According to the plan proposed the war- steamer was to lie shot and shell proof against the artillery then in use on board vessels-of-wnr, vie.. Ironi IS-pounders to fi4poiinders: to h" propflled by sub- meraed machinery, called Stevens' circular shells; to have greater S|.eed than any o' 152 CLARKSON V. STEVENS. our steam vcsselsof- war thon l)uilt; the whole engine to be out of the way of Hliot trinii any ressel of an enemy; and with otiier specUk'ations as to the character of the material and the dimensionis and rela- tions of the parts, whicli are important to lie noticed only so far as to show tliat the proposed vessel was to he constructed up- on a plan original and novel, and with the expectation Of results not previously Qhtained in any naval construction. The secretary of the navy and Stevens entered, November 14, IS44, into an ex- Ijlauatory contract, which recited that the stipulations of the former had been found to be too loose and indefinite as to the details of its execution, and that the parties considering tliemselves hound by so much thereof as related to the dimen- sions, power, ability to resist shot and shell, and other qualities and arrange- ments of tlie vessel, and the amount to lie paid therefor, entered into further stipu- lations modifying and explaining the same. The time for tl)e completion and delivery of tlie vessel was extended two years from the date of the new contract. Many additional specifications as to the details of construction were inserted. It was agreed that If the cost oi making any models or jiatterus used in the construc- tion sliould be included in bills paid by the United States in the course of the work or at its completion, they should become the I)rnperty of the United States. It was also agreed that the secretary of the navy suould ai)poiut some person, whom Stevens should admit within his establishment for building said vessel, whose duti' it should be to receive and re- ceipt for, on account of the navy depart- m;!nt, all materials delivered therein for constructing said steamer; which mate- rials, when so received and receipted for, should be distinctly marked with the let- ters U. S. and should become the property of and belong to the Uniteil States ; and it should be his further duty to certify all accounts, presented and certified by Ste- vens, for materials and labor, which should form the evidence on which pay- ment should be made; but the authority of such inspecting officer, it was under- stood, should not extend to a right to judge of the quality or fitness of the ma- terials or workmanship, l>ut merely as to the cost thereof; "it being understood," the contract proceeds, " that the quality and fitness thereof, with otiier matters concerning the performance of the con- tract, are to be inspected and determined in the manner hereinafter provided for." It was tlierenpon further stipulated that, liefore the final payment for tlie said war-steair.er should be made, a certificate should be rendered to the navy depart- ment that in lier construction, armament, and equipment, all the provisions of the contract had been fully performed by Ste- vens, which certificate should be given and signed by persons appointed to examine the vessel.— one by Stevens, one by the secretary of the navy, and. in case of disa- greement, a third by the other two,— the decision of the majority to be conclusive. It was also agreed that Stevens, in lieu of other security for the faithful performance of the contract on hia part, should make to the United States a mortgage, which should be a first lien on all the lan<l, docks, wharves, slips, and all their appurtenances belonging to and embraced within the es- tablishment at Hoboken, New Jersey, at which tlie war-steamer was to be con- structed, with ample power to enter upon and sell the same in case of failure on his ](art to fulfill the contract, or so mucti thereof as should be necessary to complete any deficiencies on his part. The secretary of the navy agreed to pay, as the price of the said war-steamer when fully completed and delivered at the navy- yard at Brooklyn, in conformity with the contract, the sura of $."JS().717.84, the sup- posed mean cost of the steamers Missouri and Mississippi, or any additional sum that might afterv\ards be ascertained as prop- erly included in that cost, to be indorsed on the contract "as the price whicli is to be paid for the said war-steamer when fully completed, delivered, and accepted." Payments were to be made, from time to time, upon bills certified by Stevens and the agent of the United States, for not less than .f.T.OhO each, and approved by the navy department, until the sum of .f.iOO.OOO should have been paid: at which time, it was stipulated, that an ex- amination should be had of the war- steamer, by persons to be appointed, as before agreed, for final examination, and if a majority of them should certify their opinion that the vessel could be fully com- pleted according to contract for the re- maining balance which might tlien be due, then payments of further bills in full should continue, not exceeding the full j amount of the whole agreed price; but otiierwise the examiners were reipiired to certify the amount which, in their opinion, would lie required to comiilete the steam- er, when the secretary of the navy was authorized to withhold from future pay- ments such deductions as might be neces- sary to meet the probable excess of cost. It was further provided that when Ste- vens should have fully completed the said war-steamer, and she should have been duly delivered to and received by the agent of the United States, according to the terms of the contract, the full amount of the price remaining unpaid and to become due when she should be fully completed and accepted, was required to lie paid and the mortgage security canceled and re- turned. In pursuance of his contract to that effect, Stevens executed and delivered a mortgage on the premises therein de- scribed, being the basin, dock, shops, etc., wherein tlie war-steamer was to be con- structed, conditioned to be void in case he full.v performed his contract in relation thereto, with a power of entry and sale, on the part of the mortgagee, in case de- fault should be made in the completion and delivery of the said war-steamer at the expiration of four years from that date, according to theconditions and stii>- ulations of the contract, and out of the Iiroceeds of such sale to retain any dues that might have accrued by reason of the failure to [lerform tliecontract,or so much thereof as should be necessary to complete CLARKSOX V. STEVEXS. 1- any fU'iii'iciicics on the part of the eaid Hteveiis. The time for ihe perfoiiiiancfl of the con- tract was hy a Htibseqiient aureeinent ex- tt'iided for four vearn from September ij, 1S4S. Finm .January 5, lS4r>, to December H, 1855. tliere was jiaid out hy the navy de- partnient onarcount ol the vessel $.'.1)0, (100. Koliert L. .Stevens had, in addition, e.\- pemied in its construetioii, of l)is own lueanH, ijli:!,.'.;'.). The act of AuRnst 16, lS.")r,. (11 St. at Larj^e, 4lS, ) contains an approiiriation "fur Stevens war-steamer, $M).7]T.!<5, " l)einyr the lemaindcr of the contract price, but no [Kirtion ni this was ever paid. Jn tl.'e mean time Edwin A. Stevens tirolj possession of the work upon the death of liis Urotlier, as executor and residuary legatee, and expended tliei'eon, prior to Septemlier 5, l-<.57, of his own immey, the sum of $.S'.).lSr).a7. Notliiufr furtlier hppears to have been done until the passage of the act of April 17. lMi2. (V2 St. at Larse, 3S0,) makiuR- an additional appropriation for the naval service for the year cndiiis: .lOne MO, IMili. Tl)e second section is as follows: "And be itfni thercnacted, that the sum of §7s:(,L'!)-J. beiiiK the amount necessary to Vie provid- ed, as estiniated by a boai'd appninte I for that purpose, to pay for and hnish the Stevens battery, now partially construct- ed at Hi>b(d\en, New Jersey, be and the same is heivby appropriated out of any money not otherwise appropriated for the immediate construction of said bat- tery: i)rovi(l('(l, that in the contract for the completion of said vessel it shall be stipulated I hut no part of the money claimed by I^ilwin A.Stevens to have been heietolore expended l)y him upon said ves- sel sli.ill lie refunded until the amount of said claim shall be established to thesatis- faction of the secretary of the navy, ami the |)ay ment of the said sum shall be con- tingent upon the success of said ves.sel as an iion-chid, seji-jjoinjr war-steamer, t<i be determined by the president, and sncli coiilr.'ict shall stijndato the lime within which the vessel shall I.e completed: pro- vided, nevertheless, that said money shall not lie expended unle.-s the secretary of the navy is <if opininn that the same will secure to the public service an etticient ste;im-!iattery." The board, whose estimate is adopted in this act, was one appointed by the sec- retary of the navy, under the autliorit.v of o joint resolnlion of couRiess, apiirovvd July l'4, iMll, wliose re[)ort was curnmnni- cated to the house of representatives in a letter of the secretary of the navy to the speaker, dated .Fanuary 2, iMil'. Ex. Hoc. No. U:!, H. It. ;{7th Congress. 2d Sesp. I'p- on the ipiestion of the ex|)edieney of coni- pletinn tiie vessel, the board specif.v six Jniportant particulars, as amon»; "the man.v novel characteristics which she would possess, "in which she differed from ordinary war-vessels, and conclude hy eayiui; : "We cannot recommend the ex- lienditnre id in-portant sums of money up- on projects of more than donbtful success when |iut into practical execution; and therefore we do not deem it expedient to complete this vessel upon the plan pro- posed." The report had previously stated "that the orii;inal projectiir of t lie vessel was the late Kiiheri 1^. Stevens. Ks<|., de- ceased, and that his brother. Kdwin A. Stevens, Es(|., « ho tniw proposes to com- plete it, has materially chanKeil the plitus from what appears to have been oriKlnal- ly inteniled." No part of the sum approftriated by the act of .\pril 17, Iscj. was applied to the purpose of completinj; the battery. The secretary of tlie navy declined to do no, Ui the exercise of the discretion contiileil to him in the l.ist clause of the section, for reasons set forth in his letter to the speaker of the house o( representatives, dated May L'7, 1N02, in which he stateH that he had taken the opinion of a com- mission of exjierts, who hail reported that " the vessel, if completed on the plans of Mr. Stevens, will not make an etllcicnt steam-battery," and therefore that he did not feel authorized to make the expend- iture unless congress should so direct. ("onKress thereupon passed the joint res- olution, approved July 17. iM'i-'. on which the fdaintiifs in error found their claim. Nothing appears to have been done towards res-iniin;: work on the vessel, from the date of the last previous exiiend- ilnre in ls.")7, until the death of Kilwln A. Stevens, on -A uf^ust 7, iMiS, "lining which time it remained in his possession, i.nd control. His will contained the followiiiK provision: "1 empower n!.v executors to apply not exceedinsj the sum of .<1, 000, 000 to finish, on m.v Kcnerjil plans, as near as may he, in the discretion of m.v said exec- utors, the batter.v known as 'he Stevens biitter.v. and for the accomplishment of the said object I (rive to them the use of the dock and yards and basin heretofore api'ropri.'ited to the said battery, and all the material provided for said battery. When said battery shall be linished. 1 di- rect m.v executors to offer the same to the state of New Jersey as a jiresent, to be disposed of as the said state shall deem proper; and if not accpted l)y the said stale, I direct my executors to sell the same, and the proceeds thereof shall fall into the residue of my estate." In execution of this authority the esee- ut<>rs. prior to February L'7. 1n7:I, exi)cnd- ed ?'.)1'.I,'J1.'>.4".». of which $l'7.:!0<.l.7'.> was re- ceived from the sale nf old material. The legislature of New Jersey, on .Mandi '21, 1S71, had authorized the ap|iointment of commissioners w ith power to sell the battery, and, in pursuance of that an- thorltv. the vessel, r.evfr havinj; lieen Jin- ished.was sold for the sum ol $7.'i.(MlO. The contention of the idaintiffs In error is that the title to the unhnlsheil vessel passed, as the work proiiressed. to the L'idted .States, anil became vested, fo- jjether with the riuht to enforce the con- tract for its conipleliin. and the swnrity of the mortcaiie. as aj;ainst the estate of Kobert I-. Stevens, in his heirs at law. by force of the joint resolution of .Inly 17. iMJl'. In supiiiirt of the proimsitlon that by the biiildinii cimtract the title to the un- htiislied ship vested, as the work prii- ;rresse,l, in tlie rniled States, couiisi I relv upon the rule of cimstnu-lion ai.nounced 15i CLARKSOTSr -v. STEVENS. bv Lord Tenterden in Woods v. Russell, .-) r.arii. & Aid. 042, and followed by the Kiinlisli cases of ClarUe v. Spence, 4 Adol. & K. 4-l.S; Carrnthers v. Paine, a King. 270; Laidler v. JJnrlinson, 2 Mees. & W. (i02; Wood V. Bell, .5 El. & Bl. 3.')."), aflirmed in the cxcheqner ehauiber, G El. & Bl. 35.j; McBairi v. Wallace, L. K. G App. Cas. oS9; and the Amercan canes of Moody v. Brown, 34 Me. 107; Butterworth v. Mc- Kinley, n Humph. 20!); Sandford v. Wig- gins Ferry Co.. 27 Ind. 522; Scudder v. Calais Steamboat Co., 1 Cliff. 370. This concluKion was assented to in the present case by the chancellor, who pro- ceeded to a final decree, however, against the i)laintiff8 in error, on the ground that the title of tlie United States passed by the resolution of .July 17, 1SG2, not to the heirs at law of Kobert L. Stevens for their own benefit, but to or for the benefit of Edwin A. Stevens, the residuary legatee. The court of errors and apjieals while atfirming his decree, took a different view, and decided that the title of the ship never vested in the United States as owner, fol- lowing itsown previousdecision in Elliott V. Edwards, 35 N. .1. Law, 2(i5; S. 0. 3G N. J. Law, 449; the New Yorkcaseof Andrews V. Durant, 11 N. Y. 35, and supported by the decision in Williams v. Jackman, 10 Gray, 514, in which the rule is stated by Bigelow, C. J., as follows: ''Under a con- tract for supplying labor and materials and making a chattel, no property passes to the ven(lee till the chattel is completed and delivered, or ready to be delivered. This is a general rule of law. It must prevail in all cases, unless a contrary in- tent is expressed or clearly implied from the terms iif the contract." The rule first introduced in Woods v. Russell, 5 Barn. & Aid. 942, as interpreted by the English courts, according to Clark V. Si)ence, 4 Adol. & E. 44S, is "founded on the notion that provision for the pay- ment, regulated by particular stages of the work, is made in the contract with a view to give the purchaser tlie security of certain portions of the work for the money he is to pay, and is equivalent to an express provision that on pa^'ment of the first installment tlie general property in so much of the vessel as is then con- structed shall vest in the purchaser." This dictum from Woods v. Itussell, ac- cording to Benj. Sales, 246, (2d Ed.,) was deliberately adopted as a rule of construc- tion by which, in similar shipbuilding con- tracts, the parties are held to have, by implication, evinced an intention that the property shall pass, notwithstanding the general rule to the contrary, and adds; "The law thus established has remained unshaken to the present time." Neverthelp.ss, in Wood v. Bell, 5 El. & Bl. 791, Lord Campbell, C. J., said: " When a man contracts with another to make any article for him for a given price, the gen- eral rule is, in the ab.>-ence of all circum- stances from which a contrary conclusion may be inferred, that no property passes in the chattel until it be completed and ready for delivery. On the ottier hand, where a bargain ismadefor thepiirchaseof an existing ascertained chattel, the gen- eral rule, in the same absence of op[)osiiig circumstances, is that the property passes immediately to the vendee; that is, that there is at once ^^ complete bargain and sale. But these general rulesare both and ec|iially founded on thepresumed intention of the parties. If. in the lirst, there are attendant circumstances from which the intention may be inferred that the prop- erty shall pass in the incomplete and growing chattel as the manufacture of it proceeds, or even in ascertained matt*, rials from which it is to be carried to per- fection, that intention will lie effectuated; and, equally in the latter.if it appear that theparties intended to posti)onethe trans- fer of the proper!}' till the payment of the price oi the performance of any other con- Ulition, such intention will be upheld in Ithecourts of law." "This principle," he added, "we believe to l)e well settled;" and referring to the eases of Woods v. i Russell, Clark v. Spence, Laidler v. Bur- llinson,and others cited in argument, he I remarked that "previous decisions, there, [fore, are mainly useful as serving to guide ' our judgment in estimating the weight of I circumstances as evidence of intention;" and concluded by saying: "Still it must I be remembered, after all, that what we I have to determine is a question of fact, ! namely, what, upon a careful considera- I tion of all the circumstances, we believe to have been the contract into which the ' partie.s have entered." It is, perhaps, worthy of remark that this passage from the judgment of Lord Campbell has by the editors of .\bb. Merch. Shijis & Seamen, 4, been incorporated into the text of that treatise. The courts of this country have not adopted any arbitrary rule of construc- tion as controlling such agreements, but consider the question of intent, open in every case, to be determined upon the terms of the contract, and the circum- stances attending the transaction, (1 Pars. Shipp. & Adm. 03;) and such seems to us to be the true principle. Accordingly, we are of opinion that the fact that advances were made out of the purchase money, according to the con- tract, for the cost of the work as it pro- gressed, and that the government was authorized to i-e(juire the presence of an agent to join in certifying to theaecounts, are not conclusive evidence of an intent that the projierty in the ship should vest in the United States prior to final delivery. Indeed, in reference to the latter circum- stance, it is noticeable, as indicating a con- trary intentirin, that the authority of the ins|)ecting officer was expressly limited, so that it should not extend to a right to judge of the quality and fitness of the ma- terials or workmanship; sudi matters, and all others concerning the performance of the contract, being reserved for deter- mination after the completion of the work, as a condition of acceptance and final payment. .Much stress is laid, in argument, upon that provision of the contract which re- (|uired all iDaterials received at the yard for use in constructing the steamer, to l)e dintinctlv marked witli the letters U. S,, and declare<l that they should become the property of and belong to the United CLAEKSON V. STEVENS. 155 StatoH. But it does not follow, because the inntorials provided for tliat use were ilec'hired to be tlio proi)ertj' of tlie United StiitcH, It was intciuied that they should remain ko after becoming part of the Htructuro. Such a precaution miKht well liavL' been sujiKested, as a security againHt a (livorHion o( the niaterialH to any unau- lliorizcd iiKc, or to preserve them to the United StaleH, in case, l)y reaHon of the failure of the work or from any other cauHe, they Hhould not be used in the ve.ssel. Indeed, an is remarked by the learned iiid^e who delivered the opinion of tlie court of errors and appeals in this case, the exiiress <ieclaration that defined the property In the unused iiiate- riala, seems to exclude the implication sought to be raised as to the proi)erty in the unfinished ship; for the inference is obvious, from the |)articularity of such a provision, that the larger interest would n(jt lie left to more intendment. There are two other provisions of the contract, which seem to us conclusive of the question, and, in a sense, adverse to the construction of the plaintiffs in error. The first of these is that wliich requires Stevens, in lieu of other security, for his faithful performance of the contract, lo ex- ecute and deliver a niortgase on nil the land, docks, wharves, slips, and all their appurtenances belon^iUH; to and em- braced within the estalilishment at IIo- boken. New Jersey, at which the war- steamer was to be constructed, with power to the United States to enter upon and sell the same In case of his failure to fnllill his part of the contract, or so much thereof as should be necessary to complete any deficiencies on his part. The taking of this security, as an in- demnity to the United States, assumes the anticipated ijossibillty thai the failure misht be total, so that the vessel, when offered for delivery, miffht be altoj^ether rejected. And it does not detract from the force of this conclusion, that the al- ternative provides for completing de(icie;i- cics, if they sliould prove to be remedia- ble; for, in that case, the United Stales, at its option, niijilit accept the vessel, thus bocomins invested with the title, and make (j;ood its deficiencies out of this se- curity. The other feature of the contract, which corroborates this view, is that which provides that final paymentfor thesteam- er shall be made only upon the certificate of examiners, to be appointed for that purpose, that in her construction, arma- ment and equipment, all the provisions of the contract have l)een fully performed and completed, which requires that the steamer shall be fully completed and de- livered at the nnvy-yar<l at Brooklyn, ami fixes the gross amount which is to lie paid for it when fully completed, delivered, and aecepted. The fact that advances are to be made in the mean time is expressly slated to be in consideration of the se- curity to be given by Stevens for the faith- ful performance of his contract, and that compensation for his time and services must be wholly deferred until the final completing and delivery of the vessel. It is thus apparent, as we think, from these stipulations, that the vessel was In all respects to be at therisk of the builder, until, upon its completion, the Unliel States should accept it, upon iinal exam- ination and cerliHcate. as conforming in every particular with the requirements of the contract, an<l answering the descrip- tion and warranty of an eHiclent steam- battery for harbor defense, shot and shell proof. And looking at the situation of the par- tics and theobjects they must have had. In view, all doubt is removed as to their in- tention. Stevens was an ardent and san- guine inventor, who hail convinced him- self that his unique design of a naval structure was practical)le and of great value, and that, it adopted, it would prove to be of immense pul)lic utility, lie sue- eeeded also in persuading the government to make the experiment and give him the op[)ortunity of realizing his theories. But it was understood to be merely an experi- ment, and evidently, by the navy depart- ment, naturally conservative ami inclined to adhere with some tenacity to Its own traditions, regarded, at best, as of very doubtlul success. The steamer when built was toconstitntea part of thenavaiestab- I is h meat of the United States, fan It be sup- posed that this was to take place except upon condition that, after completion and suflicient examination, it shotild be found fit for the service? This Is the view, as it seems to us, which congress by its legisla- tion, and tlie navy department in all its dealings with the subject, constantlj* en- tertaiiieil and acted upon, and which both Robert L. Stevens and his brother, Kclwin .\. Stevens, did not hesitate to accept; the latter not shrinking from n further invest- ment of .$1,0(10, (lOD in an enterprise which he still cherished wit.li conlideiice of ulti- mate success, after it had become to al- most every one else a demonstrated fail- ure, and after the government, for whom it waa originally intended, hod refused to it all further subsidies. We liiid, therefore, that on July 17. ISti:?, the date of the joint resolution of con gress, under which the plaintiffs in error make tlieir claim, the l-nited States had no title to the Stevens battery: but that the property in it had continued in Rob- ert L. .Stevens until his death, and passed by Ills will to Edwin A. Stevens, as resid- uary legatee. It follows that it (lid not pass to the heirs at law of Robert L. Ste- vens by virtue of the joint resolution. It is urged, in argument, that, if the right to the vessel Itself diii not pass, then the joint resolution must be construeil as a transfer to the heirs of Robert B. Ste- vens of the right of action of the United States to recover against his estate dam- ages for his nonperformance of his con- tract, together with the securities, by wuvof mortgageand lien, it held asindem- nity. We see no ground for a construc- tion that leads to so remarkalile a result. The plain meaning of the resolutitin is lim- ited toa relinquishuient on the part of the United States of any interest it might be supposed to have in the vessel. In which the heirs of Robert B. Stevens are men- tioned, probably, because it was with him that the builUiujj contract was made; 156 CLARKSON V. STEVENS. ami if it could operate at all as a release, would be to them, for tlie benefit of those who, by law, hail become his successors in the title; and that release would neces- sarily convey with it, as an Incidwnt, an extin^rnlahnient of the obligation of the contract for constructicjn, and all the se- curities taken for its iierformanee. It was, in effect, and was doubtlesM inteiuleil as, a <)eclara tion on the part of the United States, for the benefit of ivhom it mifiht concern, of its entire abaniliininen t of all further connection with the battery and the contract for its construction. The subsequent assent on the part of conjcress to its acceptance by the state of New .Jer- sey, as a bequest from Edwin A. Stevens, while it conld not operate to affect any rights vested in the interval, is, at least, a legislative interpreta tio!) of its i)revious release. This resolution ex[)ressly recites that Edwin A. Stevens was the owner of the battery in bis life-time, and is scarcely more explicit in the recoKuition of his lilla than was the conduct of all tlie parties, including- the present i)laintiffs in error. We are of opinion, for the reasons stat- ed, that there is no error in the decree coniplained of, and it is accordingly af- firmed. CODDIXGTON v. GODDARD. ir,9 C0DUI.\'(;T0N' ot n\. V. GODDAUD. {IG Gray. 4:5G.) Supreme Judicial Court of Massachusetta. Nov., ISGO. Action of contract to recover (InmnucM f(jr n(jt ilclivcriiiR tno hiinclred tlioUHJind poiinils of copper alleged to liave hccn Kolil by tlie ileremlant to tlit- pliiinliff. Trlnl and vcrdirt for tlic pi'.iintlff bifort Alerrick, J., who rei)orted tlii' case to the full court, in Hubstance aH folloWM: — CharlcM (."antcrl)ur.v, called as a witness fur the [ilaiMtiffs. te.-itilied that he was a raerclumdise broker; that on the lit h of Ucceiiiber, is.'iG, acting under iiistniitioiiK contained in a telegraphic dcsiialc!) from tlie iilaintiffs, raerchaiitH in New York, which ne receivid between two and three o'clock in the afternoon, he called at the defendant's place of business in I'oston, and iK.t findiii}; him there, followed hini to his house, where he had an interview with him, and staled lohnn the plaintiff's offer to bay three hundred thousand pounds of copiier, at twenty-four and a quarter cents per pound, on a credit of nine months, with satisfactory pajier, and deliverable on board a vessel in Itoston bound for New York, the seller to pay trelKht to New Y'ork, and the buy?r to pay the ir)siirance; that the defendant asked if tlie steamer, which had that day arrived in New Y'ork, brouKl't intelligence of any advance in the |)rice of copper in Europe; to which the broker replietl, " None that I know of;" and the defend- ant, after a moment's hesitation, said that he would sell to the plaintiffs two luindred thousand pounds of copper on the terms proijosed. reserviny; the riy:lit to aild one hundred thousand <;n the next day if he should then elect to do so; that the broker nr«ed him to sell the whole of the three hundred thousand pounds then, eayiufi that the purchase was made for exportation, and would take that ((nan- tity out of this market; but tliedefendant 8uid he would not do differently from what he had proposed; and the broker then said, " Well, if that is the ultimatum, if is a sale, " and, returninj; to his oltice, communicated to the plaintiffs by tele- graph what he had done, informing them that he should write the particulars by the n^xt mail ; which he did ; and made a memorandum in his books of the trans- action, accordin.a; to his usual custom. This memorandum was on a i)aKe of a book headed, "Boston. December, IS.'ji;." and was in the foUowinK terms:— "9tli. W. \V. (Joddard to T. U. Coddinu- ton & Co. 'JUO.IIOO pounils Chill pifj coi)per, 24)^ a i) mos. from delivei'y, f. o. I), iiacket here for N. Y'., seller paying freight, and buyer paying insurance to N. Y. To be !•(> per cent pure copi)er, and paper satis- factory to seller. " The broker testified that in this inemo- rnnduni the fijiures denoting the iiuantity were written in peiicil. in order to facili- tate alteration in case the defendant Should, as he had a right to do, elect to deliver a larger nuantity. No sale note (M- letter relating to the sale or entry was sent bv tlie broker to the ilefenilant. The plaintiffs admitted that, before send- ing their telegr,.phi<- despatth to the broker on the '.»th of I>i'cemlier. tliey had receive 1 intelligence by the stea r, which arrived that morning in New York, of an ailvanceof a penny a pound in the price (if copper In i;urope; il.atthis intel- ligence would have been of material im- portance to the defendant i;i determining whetlier to sell uiion the ti'rnis proposed: and that if it had been known to him he Would not have agreeil to sell his cojiper upon those terms; an<l that they <lld nor comiiuiiiirate it to tliedefendant or to the bi-oler until after the completion of the bargain. Tlie defendant conceded that the brokei', at the time of his interview with liiiii, was ignorant of the arrival in New York of intelligence of tin advance in the price of copper; and diil not contend that the broker h;id any fraudulent de- sign or pur|)(ise in making the entry in bin books, or fraudulently oa.it teil in the en- try any of the terms of the bargain agrec<l upon. Itut th(> defe.'idant ilid contend that by reason of the broker's answer that no such irilelligence had arrived to his knowledge, and of the omission of the plaintiffs to communicate that intelligence to the deffiidant, the bargain made by him with the broker as the agent of the tilaintiffs was not binding upon him. .\nd thlH objection was reserved for the determination of the full court, the par- ties agreeing that if for this reason the ac- tion could not be maintained, the veicliet shoulil be set aside ;uiil a nonsuit entered. The defendant, being called as a wit- ness, tcstilled tha t in his interview with the broker he said that he wiiuld sell to the plaintiffs two hundred thonsanil pounds of copiier in case no intelligence had been received by the steamer of any advance in the price of the article in Ku- rope, reserving the right to add one hun- dred thousand pounds thenextday on the same terms at his option. And he con- tended that, if there was any verlial con- tract f'lr the sale of two hundre.l thou- sand pounds ol copper, it was U|ion thiH condition, and upon the further condition that the copper, if s'>ld an<I delivered, should be exported liy the plaintiffs, and therefore the plaintiffs could not recover. Tliedefendant also contended that the entry in the broker's bonks was not a suf- ficieut meniorandum in writing to take the case out of the statute of frauds ; be- cause no authority was shown in the broker to sign the niemornnduni in bis behalf or in behalf of the |ilaintlffs; be- cau.se it was not intended liy the broker, w hen he maile it, as a complete and llnal statement of the bargain maile; because it did not state all the material lernis of the bargain; because it was not signed as required by the statute; and because the broker was not authorized by tliede- fendant to tnake thebargain soentered by liim. Hut the judge ruled tha t if ' anterbury was a inerchaiidise broker, and that was liiiDWu to the parties, and tlicy were dealing with him in tills trnnsacllon In his caiiacitv of broker, and made a con- tract through him lor the piirchnse nnd sale of two liundrcd thousand pounds of 160 CODDINGTON ». GODDARD. copper, tliis gave liini authority to bind tliein l)()tli by mnkiiij; a meniorandum of the contrnct iti writing;, and siKiiinp; it in their behalf respectively ; that the inenio- raiicliini In his i)()ok was snfTicietit in form Id l)iuil the parties, if he had authority to make and sitrn it for tliem: that if lie dill, in fact, make the entry in his book as and for a complnte note or memorandum of tlie contract of sale made by the par- ties throMRh him, such memorandjm was conclusive evidence of the terms of thecon- tract, and was to be considered and treat- ed in all respects as it it was a written contract signed by the parties themselves; that it was in its terms a |)erfectand com- plete statement of a contract, and ca- l)al)le of a clearand intelligible exposition, and therefore parol evidence was inad- missible to contradict or vary tl'.e terms of it; and that even if the defendant did in his verbal contrnct with (Janterbnry make the sale upon siRdi conditions as he cimtended, he could not avail himself of either of those conditions, because they were not contained or expressed in the memorandum. To these rulings the de- fendant alleged exceptions. f. A. Welch and E. Bangs, for plaintiffs. C. li. Goodrich and O. G. Peabody, for de- fendant. BIGELOW, C. J. Wecan see nothing in the facts disclosed nt the trial, which shows an.v misrepresentation or conceal- ment in procuring the assent of the- de- fendant to the contract of sale set out in tlie declaration. Assuming the rule of law to be, as stated by the counsel for the de- fendant, that a contract, made by an agent in liehalf of a vendee, his princii)al, into which the vendor was induced to en- ter liy a representation, which was false within the knowledge of the [)rincipal. but not so within that of the agent, would be void on the ground of fraud, we do not think the evidence brings the case at bar within this principle. The broker did not make any representation or state- ment in behalf of the plaintiffs or as their agetit. He was not asked concerning their knowledge of any fact or circum- stance bearing on the contract which he was endeavoring to negotiate with the defendant, it is true that he was inter- rogated concerning a material fact, but the question was addressed to him indi- vidually and sought to draw out onl,v his own personal knowledge, and not that of his [irincipals upon the subject to which it related. Clearly it was so understood Ije- tween the parties. The answer given to it, which the defendant received at the time as satisfaetory, was expressly con- fined to the broker's own individual in- f(}rniation, and did not either afhrm or ('[i^uy anyfact a1)solutely,or import, either directly or by imi)lication, any knowledge of it on the part of the plaintiffs. This answer was strictly true, and did not tend in any degree to deceive or mislead the defendant. It is not a case, therefore, where an agetit made any absolute repre- sentation of a material fact which he he- lieved to be true, though it was in fact falseand known to be so liy his [irincipals. 8uch would have been the aspect of the case, if he had stated to tlie defendant, In answer to his inquiry, that the steamer which had that day arrived in New York had brought no intelligence of any ad- vance in copner. Then the cases in which the authority of Cornfoot v. Fowke, 6 .M. & \V. 358, has been questioned and denied, would have been applicable. Fuller v. Wilson, 2 (jale & Da v. 4U0, 3 <Jale & Da v. r)7(), 3 Ad. & El N. S. 5S, 68, lOOi); Fitzsim- mons V. .Toslin, 21 Verm. 129. But. as the case stands, upon the proof there was no affirmation or denial by the agent of the existence of this fact or even of the know I- edgeof bis principals concerning it. There w-as nothing more than a statement that no such fact was known to him. This is admitted to have ijeen true; clearly then there was no misrepresentation or con- cealment by which the contract can be avoided. There can be no doubt that the broker, if he acted as the agent of both [larties in completing the contract of sale, was empowered to do all that was neces- sary to make the bargain valid and bind- ing in law. For this purpose he had au- thority to make the requisite memoran- dum to satisfy the statute of frauds. IJev. Hts. c. 74. § 4. It is not denied that this memorandum may well be made in the liook of a broker. Indeed, such entry may be resorted to as the original evidence of the contract, even when btiught and sold notes of the bargain, differing from each other, have been delivered to the parties. Sievewright v. Archibald, 17 Ad. & EI. N. S. 102, 10!». But it is objected that themtmorandura made by the broker in the present case was insufficient to take thecase out of the operation of the statute, because it does not show who were the vendor and ven- dee of the merchandise. This would be a fatal objection if it was well founded; for although a memorandum of this nature may lie very brief, it must nevertheless show with reasonable certaint.v 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 plaintiffs. It is susceptible of no other in- terpretation. It is alsoobjected thatthemeniorandum is deficient, because it does not state the amount tor which insurance was to be pro- cured, nor for whose benefit, and because it contains no stipulation concerning the modeor place in which the assaying of the copper was to be had, in order to ascertain its purity. The answer to these otijec- tions is that the meniorandum states with accuracy the terms of the contraet as tes- tified to by the broker, and that there was no proof at the trial that there was any agreement made concerning the ])articc- lars of the bargain which are now alleged to be omitted. Nor does it affect the validity of the mem- orandum, that the broker did not incluile in it the stipulation made by the defend- CODDINGTOX v. GODDARD. 161 ant, that lie should have the right to adil to the Hale one hundred thousand pounds of copper the next day. This was a wholly sc|)arate and independent agreement, which in no way affecteil tho sale actually made, and which could not be properly en- tered in the book of the broker, uiilesH it had ripened into a hale by the election of the defendant on the next day to sell tlic additional quantity to the plaintiffs. lint he made no such election, anil there was therefoi-e no contract as to that porticju of the copper of which the broker was em- powered to make a memoranilum. The remaining: objection to the suffi- ciency of the entry in the book as a mem- orandum within the statute is that it was not duly sisned by the broker or the par- ties. We know of no case in w!;ich it has been held that the signature of the name of the ajient throUKh whom the contract is netiotiated should appearin the writing- It is sufficient if the names of the parties to be charjieil are properly inserted, either by themselves or by some persons duly authorized to authenticate the document. Brokers and auctioneers are deemed to be the afteuts of both parties, and by virtue of their employment stand insuch relati(ji) to their principals that they can sign the names of the partie.« to a contract of sale effected through their agency. .Such au- thority is implied from the necessity of the case; because without it they could not complete a contract 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 memoran- dum. It is sudicient if the names of the principals are inserted in such form and nianner as to indicate that it is theii' con- tract, by which one agrees to sell and the other to buy the goods or merchandise s|)pci(ied, upon the terms therein e.\- jiresscd. It is the substance, and not the form, of the memorandum, which the law regards. Thegreat imrposeof 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 jiroof. Penniman v. Hartshorn, l.*? Mass.iST, Hawkins v. t'hace, 11) Pick. ,")()2. .^0.) ; Fessenden v. Mussey, 11 ("ush. 127; Morton v. Dean. 13 Met.;!S.".; Salmon Falls Manuf. t'o. v. GoddarJ, 1-J How. UC. The only other exception taken to the ruling of the court i)resents a question of some dilticulty. To understand it, it is necessary to recur to the positions as- sumed by the respective parties at the trial. Theplaintiffs contended and offered evidence to show that the sale was an ab- solute one. and was made upon the terms set oat in the written m>>morandum. The defendant, on the other hand, insisted and endeavcred t(j prove that the contract of sale was a conditional one, and was not to take effect, if intellignuce had been re- ceived by the steamer of an advance in the ]irice of copper, nor unless the plaintiffs shoulil agree to export it. If the sale and delivery were completed. In this state of the case, one of the points urged by the defenilant was that the broker had no au- thority to bind him by the memorandum which was offered in evidence. Among LAW SALES — 11 ' the instructions given to the jury, they were t<dd that if the defendant dill, in liiK verbal contract entered into with Canter- bury, make the sale un the conditloim above stated, he coulil not avail himself of cither of tlu-m, because they were not contained in the written uiemorandnm made by the broker. This instructloD was strictly accurate as applied to the contract, if it was madi- by the authorized agent of both the pai ties. liut upon tlie^ issue whether the broker was authorized to sign the memorandum (tfft-rerl in proof as the agent of the defendanr. it shuts, him out from the benclit of testimony which has a direct and material bearing. Upon the facts as they appear in the re port of the case, the broker was not the general agent of the defendant. He had no authority to bind him, except such as was derived from the verbal contract into which he entered for the sale of the coi»- per. He was in the strictest sense a spe- cial agent for a special and single object, and could not bind the defendant beyond the limits conferred by the precise terms of the agreement to which he assented. He was his agent <mly to sign a memo- randum which contained the whole con- tract, with the terms and conilitions an- nexed to it b.v him. A broker. Iron. th<» v(fvy nature of his emplo3-ment, has only a limited authority, wlien it appears, as it does in the present case, that he had nt> relation to a party, otlicr than what it* derived from a single contract of sale. When he applies to a vendor to negotiat«» n sale, he is not his agent. He does not become so until the vendor enters into the agreement of sale. It is from this agree- ment that he derives his authority, and it must necessarily be limited by its terms ar.d conilitions. He is then the special agent of the vendor to act in conformit.v with the contract to which his principal has agreed, but no further, and he cannot be regarded jishis agent, unless hecomplies with the terms of his s|)ecial authority n» derived from the contract. In short, n bi-oker is authorized to sign only that contract into which the vendor has en- tered, not another and different contract. If he omits to include in the inemoraiKhnn special exceptions and conditions to the bargain, he signs a contract which he lian no authority to make, and the party rely- ing upon it must fail, biH-aiise it is shown that the broker was not the agent of the vendor lo sign that contract. It would seem to follow as a necessary consequence that evidence of the verbal agreement into which the defendant entered lor the sale ! of the copper was competent anil material on the question of the ex tent of his author- ity to bind the defendant. Nor does the admission of this evidence for this purpose at all contravene tlie rule that parol proof is incompetent to vary or contrid a written contract. It Is offered for a wlio'ly different purpose. It bears solely on a preliminary Inquiry. The object is not to explain fir alter a con- tract, but to show that no contract wan ever entered into, because the person who executed it had no nuthority to make it. The authority of an agent may always l>e shown by parol; but the contracts into 1G2 CODDINGTON v. GODDARD. which lie enters within the scope of his au- thority, wlien reiln'.'ed to writing, can be proved only by tlie writiiiy; itself. The necessity of adtnittliig evidence of the verbal contract entered into with a broker, in cases where his authority is <lrawn in question, is quite obvious. If Buch proof were incompetent, a broker who had entered into nesrotiHtions with a person niiKlit make a memorandnni of a contract wholly different from that which he was authorized to sign, 'uid thereby effectually preclude all proof that no such contract' was ever nijide. .Mien V. Pink, 4 M. & W.144; Pitts v. Beckett, ];i M. & W. 743, 750. New trial granted. COE V. TOUGH. 105 COR T. TOUOn. (22 N. E. Rep. 550, IIG N. Y. 273.) Court of Appeals of New York, Second Divi- sion. Oct. 8, 18S9. Apjieal from supreme court, general terra, tliinl dcpaitment, entereil upon an ordt-r made June :iO, 1886, wliicli allirmed a judg- ment in favor of the defendant, entered up- on a verdict. Tliis action was replevin, brought to re- cover tlie possession of personal property to wliich tlie plainlilT claims to have taken title, by purchase from the defendant, by virtue of the following written memoranda, to-wit: "III DsoN, N. v., Feby. ISlh. 1885. "Mr. E. Frank Coe,bouglit of William Tough, 2!i Thomas horsc-rakcs, $21 $ ■ltV3 2 Thomas hay tedders, 40 HO 12 Titror horse-rakes, 31 2.")3 1 KiuvcU leather top phaeton T.') 1 Babcock leather top phaeton 120 1 two seat standing top En?, spring watron 90 2 Columbus leather top side-bar buggies, 117..->0 2.^5 1 Broekvvay end-spring leather top buggy.. S5 1 Uroekway side-spring open buggy 49 1 Waterloo end-spring rubber-top buggy... 72 $1,.520 10 tons E. Frank Coe's phosphate, 2S 2S0 $1,S00 "The above goods are in my warerooms No. 22 Columbia St., Varick street, at store- room of Hudson Agricultural Society, and are well insured. "Hudson, N. Y. Feby. 18, 1885. "E. Frank Coe — Dear Sir: In order to liquidate and secure you in the payment of your account as now due, I will propose to do as follows: Bill of sale of goods inclosed tl,.')20 10 tons E. Frank Coe's phosphate 'ZSO Cash or customer's note in a few days .500 Customer's notes or cash '220 $2,500 "Balance your account to date, .'?1,975. "Yours, truly, Wsi. Tul'uh." It appears that defendant was indebted to the plaintiff .■?2,000. That on February 18, 188-''), the collecting agent of the latter went Id the defendant's place to collect the debt, or obtain security for its payment. That the defendant proposed to sell to tlie plaintilT, and the agent offered to purchase property on account of the debt. Thereupon the de- fendant drew the tirst-mentioned paper, and handed it to the agent, who then sugge.sted that the defendant .also give him a note to the pl.iinlill, slating what hud transpired between them. The defendant wrote and subscribed the other pajicr, wliieh was put in the en- velojie in which the other had been placed. The defendant on this occasion paid lo the agent .■?J.">, to apply on the debt, thus reducing it to .^l.gTS. The agent, having advised the plaintiff what he had done, returned to the defendant's place on the 21st of February, taking with him a draft clialtel mortgage, which the plaintiff had caused to be drawn, and informed the defendant that if he pre- ferred he might execute it. But the defend- ant declined to do that. .\nd thereupon the agent requested a delivery of the property, to which the defendant assented, and promised to furnish a room on tlie premises in wliich it might be placed, and gave him the key to it. 'J he agent said that was s.itislactory. The defendant said he would not have tiine to do it that time; and it was then under- stood that the agent would come again on Monday, the 24th, when the goods would be separated aiul received by liim. For reason of which the defendant was advised on Alon- day, the agent did not go that day, but did the next day, when the defendant refused to deliver the property. The property was taken upon the requisition in this action, and de- livered by the sheriff to the plaintiff. The trial court directed a verdict for the defend- ant. Henri/ D. HoMikiss, for appellant. H. E. Andrews and L. F. Lonyleij, for respondents. Bradley, J., (after stating tlte farts as above.) The (irst question presented is whether there was a v.alid contract made for the sale of the jiroperty by the defendant to plaintiff, and, if so, the fuitlier question will arise whether it was an executed one, so as to pass the title to the plaintiff, or was execu- tory merely. As no jiart of the property was delivered to or received by the plaintiff, and none of the purcha.se money paid, as reijuired by the statute of frauds, the sale was void, unless a note or memorandum of the contract was made in^vriting, and sidiscribcd bv the defendant. 2 Kev. St. p. 13l), § ;S. The form of the memorandum as drawn was, "K. Frank Coe bought of William Tough," fol- lowed by a list of the articles of i)ri>perty in question, with pricesaddrd. This paper was not at the end of it subscribed by the defend- ant, so that, standing alone, whatever view may be taken of its terms, it was not effect- ual'as a contract of sale. .lames v. Patten, 6 N. Y. 9. But it is contended that the note or letter written on the same occasion by the defendant, subscribed by him, and addressed to the plaintilT, may be taken in connection with the last-mentioned memorandum, and the signature to the one treated assubscril)ed to both, each constituting part of the saiuo instrument. To permit this to be done, so as to relieve it from the operation of the stat- ute, the two papers must have been so phy- sically united, or such reference made by one of them to the other, th.it they may be con- strued together as one instrument without the aid of oral evidence. Baptist Church v. Bigelow, 10 Wend. '28; Wright v. Weeks. 25 X. Y. 15;i: Drake v. Seaman, '.17 N. Y. '230. affirming 27 IIun,G3; Stone v. Browning, 63 X. Y. 508. The two papers by their date purport to have been raadi- at the same time; thcv are in the haudwritingof thedefendant; 166 COE c. TOUGH. relate to the same subject; and tlie refeience to the paper designated as a "bill of sale" in the one embraces m (igiires certain amounts corresponding with those intheother. They sufficiently releri(Hl to the same transaction to permit them to be construed together, and to be given such effect as they were entitled to. Tallraan v. Franklin. 14 N. Y. 584; Peabcxlv v. Sjievers, 56 N. Y. 230; Peck v. Vandeniark, 9'J'n. Y. 29, 1 N. E. Rep. 41. The more difficult qufstiim arises upon the consideration of the construction and effect which may be given to those papers. It has been lield that a memorandum, in the form of that here designated as a bill of sale, with payment receipted, did not constitute a con- tract of sale, so as to exclude parol evidence of warranty, but was a mere receipt. Filkins V. \Vhyland,24 X. Y. 338. M'hile presump- tively, at least, a receipted bill in that form will not have the character of a contract of sale, the effect, when no receipt is added, may be otherwise. Then it may be such a con- tract, or the written evidence of it, within the intention of the parties, and entitled to such effect. Terry v. Wheeler, 25 N. Y. 520; Bonesteel v. Flack, 41 Barb. 435. That paper, standing alone, not being subscribed by the defendant, had no validity, and in connec- tion with the other it must be treated as re- ferred to for the purpose indicated by the terms of the latter, by which the defendant says that, "in order to liquidate and secure you [plaintiff] in the payment of your ac- count as now due, I will propose to do as fol- lows: Bill of sale inclosed, SI, 520;" and then adds another item of property, with two items of cash or notes to make up the amount of .92,520; and, after stating tlie bal- ance of the plaintiff's account at;ifl,'J75, sub- scribes bis name. In aid of the construction of the instrument, reference may be bad to the extrinsic circumstances attending the transaction between the defendant and the plaintiff's agent. The latter called upon the defendant to obtain payment, or security for its payment, of the debt due his principal from the defendant. The interview resulted in an offer of the defendant to sell, and of the agent to purchase, some personal prop- erty, on account of the debt; and, for the purpose of doing so, the bill of sale, so called, was drawn by the defendant, and lianded to the agent unsigned. Tlje note or letter ad- dressed to the plaintiff was written upon the suggestion of the agent that the defendant put on paper a statement to be taken to the plaintiff of what had transpired between them. The amount of the prices designated for the articles of property, with that of the proposed cash or notes, was purposely made to exceed the debt, with a view to enable the plaintiff to realize from it tlie full amount of his account against the defendant. It is not important whether the purpose of the con- templated sale was to pay or secure the pay- ment of the debt. The apparent design, as indicated by the oral evidence of the trans- action, was a sale and uurchase, and the so- called "bill of sale" was drawn, delivered, and received for that purpose. That was not accomplished by it. It is, however, con- tended that the paper afterwards written, ad- dressed to the plaintiff, and signed by the de- fendant, was effectual to give to the former the effect of a bill of sale subscribed by the defendant; and that it was not embraced within the executory character of the propo- sition expressed in the other, but that only the payment or delivery of the cash or notes there mentioned was dependent upon the future action of the defendant. The inten- tion of parties to a written instrument must be derived from it, although its construction may be aided by the light of extrinsic circum- stances. When this alleged bill of sale was handed to the plaintiff's agent, it was inef- fectual for any purpose, whatever may have been the design of tlie parties. It does not appear that the other paper was then in con- templation, and its effect must be ascertained from its terms as they may be construed. In its relation to the former, it may be as- sumed that reference was made to the articles of property there mentioned. Biit it is diffi- cult to distinguish the application of the offer or proposition of the defendant to any one from any other portion of the means men- tioned for the payment or security of the debt. It was to "liquidate and secure" it as stated. The defendant proposed to do what he had not alnady done in that respect, lie had neither transferred any of the personal property or notes, and had made no contract to that effect. They altogether came within the purpose expressed, and his proposition or promise to accomplish it was in form execu- tory. If the paper called a "bill of sale" bad been independently valid, a different view may have been taken upon construction of the writings. It would therefore seem that the sui)port of the plaintiffs claim of title re- quires the conclusion that the offer or prom- ise of the defendant to sell to him the proji- erty was or became effectual for that [lur- pose. It is a rule, as relates to personal property, that when, by a valid agreement, one party unconditionally agrees to sell to an- other, who agrees to purchase, and nothing remains to be done to complete the sale, the contract will be treated as an executed one, and title will pass, although no delivery or payment is made. Olyphant v. Baker, 5 Denio, 379; Terry v. Wheeler, 25 N. Y. 520. In the present case the proposition or piomise of the defendant to sell the property was by its terms and import made with a view to a subsequent acceptance by the plaintiff. There canwot, therefore, be said to have been any concurrent undertaking on the part of the latter to purchase. This proposition, when made, seems to have had no considera- tion for its support. It was a mere offer of a debtor to sell goods to his creditor in pay- ment or security of the debt due the latter, founded upon no new consideration, but rest- ing solely in the purpose, so manifested, of the debtor to oav the debt or secure its uav- COE V. TOUGFI. le- nient in tliat mannor. Tlio conclusion would seciii, foi- tliat reason, to follow tliat a siibse- <|iipnt acceptance would not be effectual to ( re.ite a valid contract of sale between the liailies. Cooke v. Oxley, 3 Terin K. 053; IJuinet V. IJisco, 4 Johns. 235; Railroad Co. V. IJrinckeihoff, 21 Wend. 139: Railroad Co. V. Dane, 43 N. Y. 240; Plaidv-Road Co. v. Snediker, 18 Harb. 317. In that respect this case differs from those determined in ]i\irrell V. Root, 40 X. Y. 49tJ; Justice v. Lang, 42 N. Y. 493, ,52 X. Y. 323; M;ison v. Decker. 72 N. Y. 595. In those cases the offers and promises of the defendants had the support of consideration, arisiiif; out of mutualily of agreement or produced in some other m. inner. If these views are correct, there was no valid contract made bv the defeudant for the sale of the property in quesii.in to the pl.iintilT, to support his claim of title. The jud'iment should be alliriiied. All concur, except rAUKKit, J., not siltirifj. I CO.MEIi c. CUXNIXGIIAM. 169 » COMER T. CUXXIXGHAM. (77 X. Y. 391.) Court of Appeals of New York. 1879. Ee()lt'vin for forty-five bales of cotton, hrouKlit by {ilaintiff jih HurviviiiK member of tlic firm of UatcH & ('omer, coiiimiK«ion nuiTliiiiitH at Savannah, (la. It was originally brought af^aiiiht James B. Cun- ninifiiaiM. of the firm of .hiinei-- H.CunnitiK- liam & Co. Ciinninirliam haviiiR died, his admiiiistratri.x was snbstituted. The fuetH appear in the opinion. Judgment for defendant. ICrastiis ("oolc, for a[)()ellant. I'.enjaniin G. HileliinKs. f<'r resjiondent. RAI'ALLO, .J. Tile forty-five bales of cotton claimed by the plaintiff in this ac- tion w ere part of a lot of sixty bales which were mi tlie ISth of .November, ls70. sliip- ped from Savannah, (!cor(;ia, to the firm of James B. (■\iiiniii;iham & Co. of New York, by F, S. Williams, a business cor- respondent of that firm, who was in the habit of shippiiiir cotton to tlioni and drnwiiiK against it for advances thereon. A bill of lading of the cotton on lioaril the steamer .San Salvador, with a Hi;;lit draft attached thereto, drawn by Wil- liams upon Cunniiiuliam & Co., f-ir $4,.">l)0, payable to the order of Bryan & Hunter of Savannah, and indnrscd l)y them, were presented to Ciiiiniii«liam i^ Co., at Xew Vork, by the agents of Bryan & Hunter, on the L'lst of Xoveinber, ]S7(), and Cun- ningham & Co. thereupon paid the draft and received the bill of ladint; in the usual course of business. The payment of the draft was made as an advance upon the cotton on the faith of the bill of ladins;. In the bill of ladiny; Williams was named as the shipperof tlu- ciitton. It was deliv- erable to order and the liill of lading: was dul.v indorsed. Cunniny:hani & Co.liiid no knowledge of any claim t'f an.v person on the cotton, and upon the uncontrovcrted evidence the.v stand in the position of bona fide purchaser.^ of the cotton, or lenders thereon in Kood faith. The defend- ant is the representative of Cunningliam & Co. Cunnint:ham & Co. obtained possession of the :-otton under the bill of l;idin>; anil put it in store, where it remained until the 25 th of .Vovember. when the forty-five I )ales in question were re|)levied in this action by Bates & Comer of Savannah. Th(> grounds uixin which they claim to beentitled to take the cotton are. that the sixty lialcs shipped by Williams as above st.Mteil were part of a lot of one hundred and seventeen linles sold by the firm of Bates & Comer (of whom the iilain- tiff is survivor) to Williams, at Savannah, in November, 1^70, for cash. 'I'lie price of the whole lot was lS;x.ri7r) 'JO. The plaintiff testified that the one hundred and seven- teen bales were delivered to Wjlli.inis on the IStli of November. 1n7(I. and that on the next day, Saturda.v the Bitli, Williams gave to plaintiff two checks on Bryan & Hunter; (me for $r.,OlJ(», which was paid, ami one for $"J,ri7t>.20, which was not pai<l. It appears that the sixty bales shipiied to Cunninshani & Co. were on the ISth of November delivered by the sellerH by di- rection of Williams, at the compresH. ticInR the place where cotton was pressed by the steamers, preparatoiy to shipment, and that they were on the same day laden on board the steamer and the bill of ladliiR before mentioned was issued to WilliaraH. He thereu[)on drew the .«4,."j0() draft on CnnninKham& Co.,aad |iresente<l theHume withtlie bill of ladinu to Bryan & Hunter, who discounted the draft, and nfjainst the proceeds of this discount and other moneys in their hands, Williams drew the before-mentioneil checks on Brvnn & Hunter for $(;,()00 and ^^.(niKi'n in favor of the plaintiff's firm, for the pur|iose of pay- ing for tlio one hundred and seventeen bales, and plaintiff's firm <in the next day cdlpcted the ?(;,(ll)0 check as before stated. Will ia m s testifies that the check for ?2.<;:(i. 20 was dated some days ahead, and also that he informed plaintiff of the shipment at the time, but ;is these facts are contro- verted they are not taken into considera- tion. Xo condition apiiears to have lieen at- tached by the parties t<i the ilelivery of Ihecotton on thelMhof November, "nor is it alleged that Williams obtained pos- session (jf it by means of any fraud. It was voluntarily and absolutely delivered by the vendors in the usual course of busi- ness, jind no (|iiestion would arise as to the title of Williams or of Cunningham Ac Co., tint for a statute of the state of (icorgla. upon which the plaintiff relies to maintain tliis action. This statute provides that "cotton, rlco and other products sold by planters an<l commission merchants on cash sale slinll not be considered as the [iroperty of the buyer, or the ownership given up, until the same shall be fully pai<l for, although it may have been delivered into the pos- session of the buyer." It Is not claimed on the i>art of the plaintiff that this statute has any force, ex proprio viuore. in this state, but the claim maile is, that this statute lieing the law of the state where the parties resided and the [iroperty was, and »vhere the con- tract was niaile and to lie perlormed, it entered into the terms of the contract, .•ind became a part of It, to the same ex- tent as If its essential provisions had been written into it. .Assuming this )iosition to t>e correct, the iiuestiuiis arise, first, what w;is the nature and eilect of the <lealing bet ween the vendors and Williams, , 'is construed by including the provisions of this statute as part of the contract, and secondly, what are the rights of a bona tide purchaser from WilliMUis. The plaintiff contends that the effect of incorporating the statute into the con- tract was to make the sale to Williams a conditional sale: lint I a|iprehend that this is not an accurate view. The sale was a present, alisolule sale; not execu- torvnor depending upon any contingency. The (diligation of tlie buyer to pay wa.'^ absidute, and the property was at his risk. If it had been dcstr.pyeil or lost on the voyage, his obligation to pay would not have lieen dlsi-hurgod, notwithstand- ing that as between him anil his vendors 170 COMER V. CUNNINGHAM. tlie title liad not pnssed. The statute <lid not i)iirj>()rt to .iffeet any of these rights, or lo iittach !iny condition to tlie con- tract of sale. It simply nia<le the delivery conditional, anil if written into the con- tract would affect nothing hut the deliv- ei-y. The property in tliat case stood in precisely the same c<indition after its de- livery to Williams at Savannah as if the transaction had taken place in this state, and tlie vendor on a cash .*ale had ex- pressly attached to the delivery a condi- tion that the title should not pass until payment of the price. iSnch transactions aix' of common occurrence in this state, and the rights of the vendor and vendee and of bona tide (turchasers from the ven- dee are well settled by the adjudications of our courts. Wliere ^ooils are sold to be paid for in cash or by notes on delivery, if delivery is made without demand of the notes or cash the presumption is that the condition is waived, and a complete title vests in the i)urchaser; but this presump- tion may be rebutted by proof of acts or declarations and circumstances showins an intention that the delivery shall not be Considered complete until pei-formanee of the condition, and the question of inten- tion is one of fact. But after actual deliv- erj', although as between the parties to the sale such delivery be conditional, a bona fide ijurchaser from the vendee ob- tains a i)erfect title (Smith v. I^ynes, 5 N. ■¥.41; Fleeman v. McKean, 2.") Barb. 474; Beavers v. Lane, li Duer, 238), though a voluntary assignee of the purchaser does not. llaegerty v. Palmer, 6 .lohna. Ch. 43S. The statute of Georgia having no operation here as law, its only effect can be to place the parties in the same posi- tion as if it had been stipulated at the time of the delivery to Williams that such delivery sh(>uld be conditional ui)on pay- ment, and we must apply to the case the law o( this state whicli protects a bona fide purchaser from one to whom goods have been conditionally delivered, against theclaiinsof the original vendor. Uawls V. Ueshler, 3 Keyes, .")72, is very much in point. Deshler sold a <4uantity of corn to Gritfin and gave him an order on the ele- vator to deliver the corn to liim "subject to my order till paid for." This delivery was clearly conditional. The Georgia statute was actually incorporated into the contract, and neither Griffin nor his execution creditor or voluntary assignee could have resisted successfully a claim of the vendor to retake it. Yet this court held that (Jriffin havine shipped the corn and drawn against it, the drawees having paid the draft on the faith of the bill of lading, were protected as bona fide pur- chasers, and also under the factor's act. In Wait V. Green, 315 N.Y 55(i,the vendor of a horse delivered it and took from the purchaser a note, at foot of which was a memorandum signed by the vendee: "Given for one bay horse. The said Mrs. Comins (the vendor) holds the said hoise as her property iintil the above note is paid." This court held that a bona fide purchaser from the vendee obtained a good titlj. This case is supposed to be in conflict with Herring v. Hoppock. 15 N. Y. 409; Ballard v. Burgett, 40 id. 314, and Austin V. Dye, 4() id. 500. If the transac- tion is to be regarded as a conditional sale, the case is in conflict with the two last cited cases in 40 and 4G N. Y , l)ut it can well be treated as a case only of condi- tional delivery, lu Ballard v. Burgett it was held that where the sale was condi- tional, no title passed to the vendee, be- cause there was no sale until the condi- tion was perfoiined, and the so-called ven- dee was a mere bailee with a contract for a future sale. That the property while in his hands was at the risk of the vendor, and tlie so-called vendee was not liable for the price. Tliat he had no title to the property and could convey none, even to a l)ona tide purchaser; that there was no sale, and he had a mere possession, and that the Hnding of the referee that the agreement was that the property was to remain the pro|)erty of the plaintiff till the $]f>0 were paid, was incompatible with the Hnding of a sale, and the true con- struction of the contract was that the oxen were delivered under an agreement that when the party receiving thenishould pay .flso, the party delivering them would sell the o.xen. Wait v. Green was distin- guished, and it was held that under the circumstances of that case if the horse had died before payment of the note such death would have been no defense to the note, and that was a conclusive circum- stance showing that the condition ex- pressed in the note was a mere security for the price. Whereas in the case at bar had the oxen died no action could have been maintained for the purchase-money. The cases holding that where there is a sale and a conditional delivery a bona fide purchaser from the vendee acijuiresa good title discharged of the lien for tlie pur- chase-money are cited, but they are not attempted to be overruled nor are they questioned. In Austin v. Dye, 40 N. Y. 500, the principle of this decision is clearly stated, and is, that one having [lossession of personal property as bailee, with an ex- ecutory and c<inditional agreement for its purchase, the condition not havinj; lieen performed, can give no title to a pur- chaser though the latteracts in good faith anil [larts with value without notice of the want of title. In that case the alleged vendee was to [lay hire for the oxen until he should pay a specified sum in a speci- fied manner in lumber, and then he was to become the owner. Until then there was no sale, and they were at the risk of the bailor, who received hire for their use. The sale was executory as that in 15allard v, Burgett was construed to be. In Her- ring V. Hopiiock, 15 N. Y.409, and Strong V. Taylor, 2 Hill, 32G, the question of the rights of a bona fide jiurchaser did not ariseand it is thereforeimniaterial to con- sider whether those were eases of condi- tion.! 1 sale or conditional delivery. In the present case it cannot be pretended that the sale was executory or condi- tional. It was an absolute unconditional sale, and the greater part of the |iurchase- money, much more than sulliclent to cover the price of the bales received by the de- fendant's firm, hail actually been paid. There is no feature, favorable to the plain- tiff, by which it can be distinguished from COMER V. CUNNINf;irAM. 171 Smith V. Lynes, 5 N. Y. 41, and the cases llitTi; referred to, and that cane and KawlH V. IH'Hlilcr, ;> KeyeH, ')72. I'HtaliliHli that a conilitiuti tliiit the title Khali not iiawn un- til puymeiit, when attache!! to a delivery upon an actual completed contract of Hale, is available only as aKaiiiKt the ven- dee and i)ersons claiming? under him, other than liona fide purchasers witliout notice. This view renders it unnecessarj- to ex- amine that hranch of the defense which rests upon the factor's act. The case fulls literally within the provisions of the act, hut it has been said in numerous cnseB that the first section of the act applies only when the slii|iment hiis been madi- witii the consent of the owner. In the name of another person. There is no adjudicated case which rests nixm that proposition, and it may lie an open tiuestion whether under the circumstances of the present case the statute wotdd not be a |)rotec- tion. but as theKniund already discussed la sullicient to decide the case time will not lie consumed in that in<|uiry. The judgment should be allirmed. All concur. .ludKi'ient aflirmcd. I, 11 COMMERCIAL NAT. BAXK v. GILLETTE. 173 CO.M.MEKCIAL NAT. BANK LETT13. GIL- (90 Ind. 2l!8.) Supreme Court of Indiana. May Term, 188.3. J. M. Vonfleet, for appellant. J. H. Baker and J. A. S. Mitchell, for appellee. ELLIOTT, J. The Elkhart Car Com- |)uiiy. by a written contract, wold to the appellant .')!() car wheels, conHtitutiiiK a part of 1,100 wheels; at the time of the Bale tiie wheels were in one common masH, and there was no BCi)aration iior any doK- il^nation of the wheels sold to the appel- lant; after the execution of the contract tlio entire lot of wheels was seized upon executions issued at the suit of api)ellee, and this action was brou>;ht for the pos- session of tliose solil. The contention of appellee is that ap- pellant acquired no title, because the arti- cles sold were not designated or separated from tlieconinion lot of which they formed a fiart, and this contention prevailed in the court below. There is much strife in the American cases upon this (|uestion, but none in the English. The weiKht of the former is, per- haps, with the theory of appeiliuit, but the text-writers are, so far as we have ex- amined, all with the English decisions. Our own cases are in harmony with the loiif; estal)lished rule of the common law. In the case of Brickev V. Huf?lies,4 lnd.l-)(i, the Kufilish rule was approved and en- forceil. In Murphy v. Stale, 1 Ind.I'ilG. the court said: "To render a sale of ^loods valid, the specific, individual K""ds imisl be attreed on by the parties. It is not enouj^h * * » that they are to betaken from some specified larger stock, because there still remains somethinj;; to be done to designate the portion sold, which por- tion, before the sale can be completed, must be separated from the mass." This doctrine found approval In 8cott v. Kinji, 12 Ind. 20.i, and there are other eases rec- ojjniziiiK it as the correct one, amons; them Moflit v. (Jreen, !) Ind.lDS; Indian- apolis, etc., 15. W. Co. V. Masuire, G2 Ind. 14(1; liertelson v. Bower. SI Ind..')12; Lester V. East. 4!) Ind. .5NS, vide opinion, p. 5i)4. The rule which our court has adopted is upheld by the .American cases of Hutchin- son V. Hunter, 7 Pa. St. 14U; Haldeman v. Duncan, .51 Pa. St.fiC; Fuller v. Bean, :!4 N. H. 2S)0; Ockington v. Kitchev, 41 N. H. 270; Morrison v. Woodley, S4 III. r.i2; Woods v. Mc(jee, 7 Ohio, 4(17; McLauchlin V. Piatti, 27 Cal. 4(13; Courtiitrht v. Leon- ard, 11 Iowa, 32; Ropes v. Lane, 9 Allen, .')02; Fersuson v. Northern Bank, 14 Bush, !V)5 (2!) Am. R. 41S.) In MIchiKan, the rule seems not to be definitely settled, liut in a late case it was said: "To the elab- orate argument made fi>r the defence to show that there can be neither a sale nor a pIed}>eot prrjperty without In some man- ner specially distiii;^uishing it, we fully as- sent, and we have no purpose to qualifj'or weaken the authority of Anderson v. Brenneman,44Mich. 10s." MerchantH'.etc, Bank v, Hibbard, 4S Mich, lis, UN. \V. Rep. S:i4; S. C, 42 Am. R. 4(m. The civil law rule is the same as that of the common la w, anrl our great lawyers have given it unhesitating approval. 2 Kent, Com. 639; Story Sales, section 2'JO. The American cases which have departed from the long settled nde. are built on the cases of KImberly v. Patchin, III N. V. :j:iO. and Pleasants v. Pendleton, Rand. 473, and these cases proceed upon the theory that commercial interests demand a niorl- Ificatitui of the rule. In our judgment, commercial interests are best promoted by a rigid adherence to the rule which the sages of the law have so long and so strongly approved. The rule secures real transactions and actual sales, ami thus checks the wild si)irit <)f speculation. It' prevents, in no small measure, the making of mere wagering cojitracts; it puts busi- ness on a stable basis, and makes it essen- tial that there should be real, and not sham, transfers of property; it makes ti- tles secure, protects creditors and pur- chasers and represses fraud. If it were granted that the rule does somewhat In- terfere with the freedom of business trans- fers, still the good it produces far out- weighs this inconvenience. But we do not believe it iloes interfere with actual busi- ness transfers, for common experience In- forms us that real sales are seldom, if ever, m;ide without a siiecidc designation of the thing bought. The rule may inter- fere with dealcis in "margins," makers of "corners," and framers of "options," and to athrm that it docs do this is to give it no faint praise. In i)rincli)le the rule is sound, and in practical operation salutary. The efforts made by the courts that have departed fmin It to inakeexceptlons, to mannfacturedistinctions and point out differences in order to escape disastrous consequences, afford strong evidence of the wisdom of the rule. The line of deci- sions in someof thestates, wherea depart- ure has been taken, is a devious and tor- tuous one, and this Is to be expected when once sound principle is turned from and newi-ules sought anti adopted which have no support in funilnmental princlplfs. We have no disposition tt) deiiart from the rule which has so long prevailed in this state and elsewhere. .ludgment atHrmed. Petition for rehearing overruled. 1 COMMOXWEALTir c. FLEMING. 175 COMMOXWEALTn v. FLEMING. as Atl. Rep. 622, 130 Pa. St. 138.) Supreme Court of Ponnsylvnniii. Nov. 4, 1S.S0. Error to court of quarter sessions, Mercer county. The i)l;iintiff In error, Joseph Fleming, be- ing a wholesale liquor dealer, licen.sed and carrying on business in Allegheny county, gold and sent from his place of business, C. (). J)., to Mercer county, where he had no li- cense, liquors ordereil by persons in the latter county. For this he was, at the court of quarter sessions of Mercer county, indicted, tried, convicted, and sentenced for selling liquor therein without a license. He now brings error. JJefore 1'ax.son, C. J., Sterrktt, Gkeen, Clakk, Williams, McCollum and Mitch- ell, JJ. Geori/e Shiran, Jr., and William S. Pier, for plaintifT in error. O W. M'liride, Dist. Atty., J. A. Straiiahitn, and IS. H. Miller, for the Commonwealth. Gkeen, J. In the case of Garbracht v. Com., 96 Pa. St. 441), which was an indict- ment for selling liquor without license, we held that "the place of sale is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who, for the purposes of de- livery, represents him. " In that ease the or- der for the liquor was solicited and obtained by the defemlant in the county of Mercer, but was sent to his principal, wlio was a liquor dealer in the county of Erie. The order was executed by the princii)al, who, in the county of Erie, at iiis place of business, separated or set apart from his general stock the liijuor ordered, and delivered it to a common carrier to be forwarded to its destination in Mercer county. AV'e decided that this was no viola- tion of the law proliibiling sales without li- cense, although neither the defendant, who was a traveling agent, nor his principal held any license for the sale of liquor in Mercer county. This decision was not changed in the least u])on a subs6c|uent trial of the same defendant on a different state of facts, as re- ported in 1 Penny. 47L In the case now un- der consideration the liquor vas sold upon orders sent by mail by the purchasers, living in Mercer county, to the defendant, who is a wholisale liipior dealer in Allegheny county. The goods were set apart at the defendanfs place of business in Allegheny county, and were there delivered to a common carrier, consigned to tlie purchaser at liis address in Mercer county, and by the carrier transported to Mercer county, and there delivered to the purchaser, who paid the expense of trans- portation. Upon these facts alone, the de- cision of this court in the Case of Garbracht, supra, is directly and distinctly applicable, and recpiires us to reverse the judgment of the court below, unless there are other facts in the case which distinguish it from that of Garbracht. It is claimed, and it was so held by the court below, that, because the goods were marked "C. O. I).," the sale was not complete until the delivery was iiunle; and as that took place in Mercer county, where t lie defendant's license was inoperative, he was witlioiit li- cense as to such sales, and became subject to the penalty of the criminal law. The argu- ment by which this conclusion w:i3 reached was simply that the payment of the price was a condition precedent to the delivery, and hence there was no delivery until payment, and no title j)assed until delivery. The legal and criminal inference was, the sale was made in .Mercer, and not in Allegheny. This rea- soning ignores certain facts which require consideration. The orders were sent by the purchasers, in Mercer, by mail to the seller, in Allet;heny, and in the orders the purchas- ers requested the defendant to send the goods C. O. I). The well-known meaning of such an order is that the i)riceof the goods is to be collected by the carrier at the time of the de- livery. The purchaser, for his own conven- ience, requests the seller to send him the goods, with authority in the carrier to receive the money for them. This method of pay- ment is the choice of the purchaser, under such an order; and it is beyond question that, so far as the puichaser is concerned, the car- rier is his agent for the receipt and transmis- sion of the money. If the seller accedes to such a request by the purchaser, he certainly authorizes the purchaser to pay the money to the carrier, and the purchaser is relieved of all liabilities to the seller for the price of the goods if he paj's the price to the carrier. The liability for the price is transferred from the seller to the carrier; and whether the ciurier receives the price or not, at the time of deliv- ery, he is liable to the seller for the price if he does deliver. Substantially, therefore, if the delivery is made by the carrier, and he chooses to give credit to tiie puichaser for the pay- ment of the price, the transaction is complete, so far as the seller is concerned, ami the pur- chaser may hold the goods. Of course, if the seller were himself delivering the goods in parcels upon condition that on delivery of the last parcel the price of the whole should be paid, it would be a fraud on the seller if the purchaser, after getting all the parcels, should refuse to perform the condition upon which he obt:iined them, and in such circumstances the seller wouUI be entitled to recover the goods. This was the case in Henderson v. Laiick, 21 Pa. St. 3.V.). The court helow, in that case, expressly charged that if the seller relied on the promise of the purchaser to pay, and delivered the goods absolutely, the right to the property was changed, although the conditions were never performed: but if ho relied, not on the promise, but on actual pay- ment at the delivery of the last load, he might reclaim the goods if tlie money was not ]iaid. The case at bar is entirely dilTerent. So fur 176 COMMONWEALTH v. FLEMING. as the seller is concerned, be is satisfied to take the responsibility of the carrier for the price, in place of that of the seller. He au- thorizes the purchaser absolutely to pay the price to the carrier; and, if he does so, un- donbteilly the piircluiser is relieved of all re- sponsibility for the price, whether the carrier ever pays it to the seller or not. lint the car- rier is also authorized to deliver the goods. If he does so, and receives the price, lie is of course liable for it to the seller. But he is equally liable for the price if he chooses to de- liver the goods without receiving the price. It cannot be questioned that the purchaser would be liable also; but, as he had received the goods from one who was authorized to de- liver them, his right to hold them even as against the seller is undoubted. In other words, the direction enil)odied in the letters "C. O.I).," placed upon a package committed to a carrier, is an order to the carrier to col- lect the money for the package at the time of its delivery. It is a part of the undertaking of the carrier with the consignor, a violation of which imposes upon the carrier the obliga- tion to pay the price of the article delivered, to the consignor. We have been referred to no authority, and have been unable to discov- er any, for the proposition that in such a case, after actual, absolute delivery to the purchas- er by the carrier without payment of the price, the seller could reclaim the goods from the purchaser as upon violation of a condition precedent. If, now, we pause to consider the actual contract relation between the seller and pur- chaser, where the purchaser orders the goods to be sent to him C. O. B., the matter be- comes still more clear. Upon such an order, if it is accepted by the seller, it becomes the duty of the seller to deliver the goods to the carrier, with instruction to the carrier to col- lect the price at the time of delivery to the jiurchaser. In such a case it is the duty of the purchaser to receive the goods from the carrier, and, at the time of receiving them, to pay the price to the carrier. This is the whole of the contract, so far as the seller and the purchaser are concerned. It is at once apparent that when the seller has delivered , the goods to the carrier, with the instruc- ! tion to collect the price on delivery to the purchaser, he has performed his whole duty underthecontract; he has nothing more to do. I If the purchaser fail to perform his part of ( the contract, the seller's right of action is coinpUtp; and he may recover the price of the goods from the purcliaser, where the pur- chaser takes, or refuses to take, the goods , from the carrier. Hence it follows that the passage of the title to the purchaser is not essential to the legal completeness of the con- tract of sale. It is, in fact, no more than the ordinary case of a contract of sale, wherein the seller tenders delivery at the time and place of delivery agreed upon, but the pur- chaser refuses p.rlormauce. In such case it is peifectly familiar law that the i)urchaser is legally iialjle to pay the price of the goods ' although, in point of fact, he has never had them. The order to jiay on delivery is merely a superadded term of the conti'tict; but it is a term to be perlormed by the pur- chaser, and has no other effect upon the con- tract than any other term affecting the factum of delivery. It must be performed ' by the purchaser. Just as the obligation tore- ' ceive the goods at a particular time or a par- ticular place. Its non-performance is a breach by the purchaser, and not by the seller, and therefore cannot affect the right of the seller to regard the contract of sale as complete, and completely performed on his part, without any regard to the question whetln-r the title to the goods has passed to the purchaser as upon an aitual reception of the goods by him. If this be so, the case of the commonwealth falls to the ground, even upon the most critical ' consideration of the contract between the jiar- ties, regarded as a contract for civil purposes only. The duties which lie intermediate be- tween those of the seller and those of the purchaser are those only which pertain to, and are to be performed by, the carrier. These, as we have before seen, are the ordi- nary duties of carriage and delivery, with the additional duty of receiving the price from the purchaser, and transmitting it to the seller. Tlie only decided case to which we have been referred which presents the ef- fect of an order C. O. D. to a carrier is Hig- gins V. Murray, 73 N. Y. 252. There the defendant enii)lo3'ed the plaintiff to manu- facture for him a set of circus tents. When they were finished, the plaintiff shijiped them to the defendant C. O. 1)., and they were de- stroyed by fire on the route. It was held that the defendant, who was the purchaser, should bear the loss; that the plaintiff had a lien on the tents for the value ot his labor and ma- terials, and his retaining his lien by shipping them C. O. D. was not inconsistent with, and did not affect, his right to enforce the de- fendant's liability. In the course of the Opinion, Chief .Tustico Church said: "Sup- pose, in this case, that the defendant had re- fused to accept a delivery of the tent, his lia- bility would have been the same, although the title was not in him. The plaintiff had a lien upon the article for the value of his labor and materials, which was good as long as he retained possession. * * * Retain- ing the lien was not inconsistent with his right to enforce the liability for which this action was brought. That liability was com- pl'te when the request to ship was made by the defendant, and was not affected by com- plying with the request, nor by retaining the lien the same as when the request was made. As the article was shipped at the request of, and for the benelitof, tlie defendant, (assum- ing that it was done in accordance with tlie directions,) it follows that it was at his risk, and could not impair the right of the plain- tiff to recover for tlie amount due him upon the performance ot his contract. * * * As before stated, the point as to who had the title is not decisive. It may be admitted COMMONWEALTU c. FLEMING. 177 tli:it the plaintiff retained the title as secu- rity for the debt, and yet the defendant was liable for the debt in a proper personal ac- tion." It seenis to us this reasoning is per- fectly sound. Practically, it was ruled that the effect of the order C. O. D. was simply the retention of the seller's lien, and that such retention of lien is not inconsistent with a right of recovery for the price of the article, thoiiiih, in point of fact, it is not de- livered to tlio purchaser. In other words, the literal state of the title is not decisive of the question of liability of the purchaser, and he may be compelled to pay for the article, though he never received it into his actual possession. The cliief justice propounds the very question suggested, heretofore, of a re- fus;d by the purchaser to accept the article, and holds that his liability would be the same, though the title was not in him. In Ilutcliinson on Carriers, at section 389, the writer thus states the position and duty of the carrier: "The carrier who accepts the goods with such instructions [C. O. D.] un- dertal<es that they shall not be delivered un- less the condition of payment be complied with, and becomes the agent of the shipper of the goods to receive such payment, lie therefore undertakes, in addition to his duties as carrier, to collect for the consignor the price of Ins goods." And again, in section 39U: "W'luni the goods are so received, the carrier is held to a strict compliance with such insti uctions; and, if tlie goods are de- livered without an exaction from the con- signee of the amount which the carrier is in- structed to collect, he becomes liable to Ihe consignor for it." This is certainly a correct statement of the position and liability of the carrier, lie becomes sulijcct to an added duty. — that of collection; and, if he fails to perform it, he is liable to the seller for the price of tlio goods. We have searched in vain for any text-writer's statement, or any decision, to the effect that in such case no title passes to the purchaser. AVe feel W'ell assured none such can be found. But, if this be so, the whole theory that the title does not pass if the money is not paid falls, and the true legal status of the parties re- sults that the seller has a remedy for the price of his gooils again.-t the carrier. In other words, an order from a seller to a car- rier to collect on delivery, accepted by the carrier, creates a contract between the seller and the carrier, for a breach of wliich by the carrier the seller may recover the price from him. So far as the seller and purchaser are concerned, the latter is liable, whether he takes the goods from the carrier or not, and the order itself is a mere jirovision for the retention of the seller's lien. While, if the goods are not delivered to the purchaser by the carrier, the title does not pass, that cir- cumstance does nut affect the character of the transaction as a sale; and the right of the seller to recover the price from the purch;iser, if he refuse to take them, is as complete as if he had taken them, and not paid for them. LAW SAI.hS— U Thus far we have regarded thr^ transactions between the parties in its aspect as a civil contract only; but, when viewed in its as- pect as the source of a criminal prosecution, the transaction becomes much more clear of doubt. It is manifest that, when the pur- chaser ordered the goods to be sent to hira C. O. D., he constituted the carrier his agent, both to receive the goods from the seller, and to transmit the price to the seller. When, therefore, the goods were delivered to the carrier at Pittsburgh for the purpose of trans- portation, the duty of the seller w:ia per- formed, as we h;ive already seen, so far as he and the purchaser were concerned, and as between them the transaction was complete. The duty of transpartation devolved upon the carrier, and for this he was, in one sense, the agent of the seller, as well as of the pur- chaser; but, as it was to be at the expense of the purchaser, the delivery to the cjirrier was a delivery to the purchaser; and this was ruled In Garbracht's Case. The injunc- tion to the carrier to collect the money on de- livery imposed an additional duty on the car- rier, which the carrier was, of course, bound to discharge. This arrangement was a mat- ter of convenience, both to the purchaser and the seller, relative to the payment and trans- mission of the price; butthatisall. Tocon- vert this entirely innocent and purely civil convention, resperting the mode of collect- ing the price of the goods, into a crime, is, in our judgment, a grave perversion of the criminal law, to which we cannot assent. As a matter of course, there is an utter absence of any criminal intent in the case. The de- fendant had a license. The sale was made at his place of business, and both the sale and delivery were completed within the ter- ritory covered by the license. If, now, a criminal character is to be given to the trans- action, it must be done by means of a tech- nical inference that the title did not pass un- til the money was paid; and thus that the place of sale, which in point of fact was in Allegheny county, was changed to Mercer county, where no sale was made. Even granting that, in order to conserve the ven- dor's lien, such a technical inference would be justilied for the purpo.ses of a civil con- tract, it l>y no means follows that the plain facts of the case must bo clothed with a crim- inal consequence on that account. So far as the criminal law is concerned, it is only an actual sale without license that is prohibit- ed. 15ut there was no such sale, because all the essential facts which constitute)! the sain transpired in Allegheny county, where the defendant's license was operative. The car- rier, being the agent of the purch-aser to re- ceive the goods, does receive them from the seller in Allegheny county, and the delivery to him for the purpose <if transport.it ion was a delivery to the jiurchaser. This is the le- gal, and'certainlv the eouiraon, understand- ing of a sale. The statute, being criminal, must be strictly construed; and only those acts which are plainly within its meaning. 178 COMMONWEALTH v. FLEMING. according to the common understanding of men, can be reg.'xrded as proliibiteil criminal acts. We ciinnot consider, tlierefdre, tliat a mere undertaking on the part of the carrier to collect tlie price of the goods at the time of his delivery to the purchaser, though the payment of the price be a condition of the delivery, can sullice to convert the seller's delivery to the carrier for transportation and collection into a crime. We therefore hold that the sales made by the defendant upon orders, C. O. D., received from the purchasers were not in violation of the criminal statute against sales without license, and the con- viction and sentence in the court below must be set aside. The judgment of tlie court of quarter sessions is reversed, and the defend- ant is discharged from his recognizance up- on this indictment. Williams, J., delivered a dissenting opin- ion. COMMONWEALTH p. MIM.F.R. 181 COMMO>m'EAI/rH, to Use of ALLE- GHENY COL'NTY et al., v. MILLER. (18 Atl. Rep. 938, 131 Pa. St. 118.) Supreme Court of Pennsylvania. Jan. 6, ISOO. Appeal from court of common pleas, .\lle- glieny county. Before Pa.xson, C. J , Steriiktt, Giief.n, Clauk. Williams, McCollum and Mitch- ell, .JJ. John S. Ferguson, for appellant. John Rebmnn, Jr., and William Yost, for the Com- uionwealtli. Clahk, .T. The defendant is the proprie- tor of a restaurant in the city of Pittsburgh. Ills business consists, in part, in furnishing meals to transient and regular patrons, who pay for the same daily or by the meal, accord- ing to the ordinary usage in that business. From the facts set forth in the case stated it appears that on the 31st of .January, 1889, William McKay and (Jeorge Spence called at this restaurant and ordered meals, which were served to them in the usual manner. Among other food furnished by the defemlant on this occasion was a small nuantity of what ap- peared to be butter, but which in fact was oleomargarine, an article of manufacture and sale which is prohibited by the act of May 21, 1885, P. L. 22, entitled "An act for the protec- tion of the public health, and to prevent adul- teration of dairy products, and fraud in the sale thereof." P. L. 22. It is admitted that this oleomargarine was furnished for food, as an imitation of butler, and that it was design- ed to take the place of butter in the meals thus served. McKay and Spence, having partaken of the food served to them, paid each 50 cents for their meals, "including said small dish of oleomargarine," which, however, for some reason they did not eat, but carried the same away, pnsumably for examination. This suit is brought to recover the penalty pro- vided in the third section of the act, for the manufacture or sale of the prohibited article, and the single question for our determination is whether or not, under the facts stated, there was a sale of the oleomargarine, with- in the meaning of the act referred to. The l)urpose of the art is expressed in the title. It is to prevent the aiulteration of dairy products, and fraud in the sale thereof, and to protect tlie public health. It is plain that the exact legislative intent was to pre- vent the sale, and thereby prevent tlie use of these adulterations and admixtures as arti- cles of food. It was the use, as food, and the frauds perpetrated upon the public in the sale, which was the mischief to be remedied: and the statute, of course, must be construed with reference to the old law, the mischief, and the remedy. That the food furnished to McKay and Spence, or so much of it as they saw lit to appropriate, was sold to them, can- not be reiisonably questioned. When it was set before them, it wiis theirs to all intents and purposes, to eat all, or a part, as they chose, subject only to the renlaiiraterir't right to receive the price, which it is admit- ted 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 purport and meaning of the statute. It is certain that the oleomargarine comptosed a part of the meal, the price of which wus paid, and was embraced in the transaction as an integral part thereof. If an unlicensed keej)- er of a restaurant may set before his guests a bottle of wine or other intoxicating liquor, charging a regular price for the same, with other articles of food furnished, with liljerty to take much or little of the liquor as the guest may choose, or, failing to drink it with his meal, permit him to lake 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 liq- uor 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 pre- vent, and which it characterizes as a crime, viz., furnishing intoxicating liquors at a price which is jiaid. So, in this citse, the oleomargarine was furnislied 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 separately, but with oth- er articles, for a gros.s 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 injuri- ous, it would seem to be especially wilhin the spirit of the act to prohibit public cater- ers from selling them to their guests as part of an ordinary meal. Penal statutes are to be strictly construed, hut both the letter and the spirit "of the act of 1885 cover this c»ise, and we think the judgment was properly entered. Judgment aihrmed. Paxson, C. J., (dissenting.) I am unwill- ing to be held responsible for this judgment, and therefore dissent. I am opposed to ex- tending iienal laws beyond their plain and obvious meaning. I am of opinion that the act of 21st May, 1885. (P. L. 22,) prohibiting the sale of the article of food known as "oleo- margarine," was intended to apply only to dealers, or persons engaged in the sale there- of in the line of their business. When the legislature 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 oleomargarine, but also its use as an article j of food, or in the preparation of foo<l, by pro- prietors of eating-houses, restaurants, and hotels, it was ea.sy to have said so in express I terms. As the act stands, there is nothing I to warn the defendant that lie violated it by I placing oleomargarine on his table as an ar- 182 COMMOXWEALTH v. MILLER. tide of food. I am unable to see how the legal or the 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, Sales, § 1; Creveling v. Wood, 95 Pa. St. 152. 1 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 individuals referred to entered the defendant'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 miglit have partaken of it, but they did not. When they left they carried the oleomargarine 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 hini, but, after lilling his stomach, he may not also hll his pockets, and carry away the food he can- not eat. This I understand to be the rule as applicable to hotels and eating-houses in this country, and if there is anything in tliis case to take it out of its operation it does not ap- pear in the case stated. The illustration of the bottle of wine, referred to in the opinion of the court, does not appear to me a happy one. Surely, if the proprietor of a hotel places a bottle of wine before his guests, who do 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 olf the table furniture. It is quite pos- sible, under our construction of the act of 1885, (see Powell v. Com., 114 Pa. St. 265, 7 Atl. Rep. 913,) the legislature may have the power to prohibit the use of oleomargarine as an article of food in hotels and eating- houses, and punish a landlord who places it before his guests; but this has not yet been done, and I would not extend a highly penal law by implication. COX.VEK c. IIKNDKUSON. 185 CONXKU V. IIKNl)i:i!S(1.\. (15 Mass. 31!).( Supromc Jiulieial Court of Massachusells. Es- sex. Nov. Term, 1818. TliiH was ail action of the cawe in as- 8iinii)»<it. allciritifi Uiat the ilefeiidant iin- <lert(i<)l< to Kell ami (h'liver to the pliMiitiff piKhty-iiine caskH of lime of kih>i\ quality ; but in fact ilelivered liim eiuh ty -iiiiie cawks of lime of littU! value, not tnerdiantable. There wb!^ a Heconii count much like the fifHt; and a third count for iiioney had and received. Trial on t!ie seneral issue, before I'utnam .I.at the Hittinii.s here after the lUKt November term.— The plaintiff I)i-oduccd the ilefendaiit's hill of paiceln of Hil caskti of lime to the i)laintil'f at lOs. amountins to US dollars aii centsi. It was proved that thecasUs were branded byone I). .lenks, .)r.,an inspector of lime, and there was satisfactory evidence that the contents of the casks were of no value, beinu: a mixture of sand and stones, and wholly unlit for use as lime. It was admitted by the plaintiff, that lie had sold and cl)ar;j;ed to his customers about thirty casks, which had not been paid for, except two which were sold and paid for at two dollars per cask, the plaintiff and his customers then suppos- inK the casks to contain good lime. There was no eviilence of a speci.-il war- ranty of the defendant that the lime was gooii: nor any evidence that he knew it was bad. The defendant was master of a roastins vessel, and had received the casks of one U. Sevey at Thoniastown, to cari'y ou freight to Boston and to sed on Sevey's account. 1 1 did not api)ear ho w ever that the defendant disclosed his prin- cipal to the plaintiff: nor had this latter returned the casks, which he hail not sold as aforesaid. The judKe instructed the jury, that if from tiie evidence they believed the de- fendant had not practised Jiny frauil. they must (ind a verdict for him upon the two first counts; because the delivery of the casks with the inspector's brand, together with a l)ill of the same, did not amount to a warinnty of the contents, of which the defendiiiil iiii(;ht beiKnorant: — that to charKe him upon those counts, they must Hnd fraud or warranty on his part. l!ut that in respect to the count for money had and received, it was recoveralile, where the money had been received by the defcndaiit by mistake, or where the con- sideration hnd failed, allhouirli no fraud had been practised by him: and if llipy should lielieve. from the evidence, that the plaintiff intended to l)uy, and the defend- ant to sell, Ml casks of lime, and not S9 casks witlioiit lime: and that the casks, which ho delivered did not contain linip but stones and stuff of no value; that the consideration of the contract had failtd, although the defendant had no bad inten- tions; and the plaintiff nii>;ht receiver the money he had paid upon the coiilrnct, and considi r It as rescinded, notwith- staiidiiij.'- he had not redelivered the casks before he brought his action, he heiiiK ac- countalile to the defendant for the same. The jury unmd a verdict for the defend- ant upon the two first counts, nn<l for the plaintiff upon the money count; r)n the iironiid abose stated by the jud;;e. .\n<\ if upon the fads, the plaintiff was enti- tled, in the opinion of tliei'ourt. to recover upon either of the counts, judgment was to be entered upon the verdict: olherwlse it was to be set aside, and the plaintiff to b"conie nonsuit. L'ummings, for plaintiff. Phinney, for defendant. PKU CURIAM. The evidence reported will not maintain the action on either o( the two first counts. There was no ex- press warranty respectinj; the quality of the article.— Neither can the plaintiff re- cover on his count for money had ami re- ceiveil. If he woulil have rescindeil the contract, and so have entitled himself to a return of the money paid; it was neces- sary that he put the defendant in thesame situation he was in before the delivery of the article. This w;is settled in the case of Kiinliall vs. Cnnniimham. 4 .Maws. M'J, and nltlioii«h the iirineipal subject of the contract in the present case may lie pre- sumed, from the evidence reported, to have been absolutely of no value, and so the returning of it would have been lint an idle act; yet the casks were of some value, and should have been restored, if the ])laintiff would treat the sale as a nullity, and dem.-ind iiis money, as paid without consideration. We think, however, that an action may be framed, in which the plaintiff may re- cover, on the evidence reported. He may tlierefore file a new declaration, on which atrial may be had: but he cannot have his costs arising prior to the present time. COOKE V. MILLAKD. 1«7 COOKE V. MILLARD. (Co X. Y. 352.) Commission of Appeals of Kew York. 1875. Action to recover thepriceof certain lum- ber hoIiI and tlelivereiJ. Tlie rfferee found that pinintiffij were copartners and vvliole- Hale lumber rnercliantH. and proiirictors of a |)laninun)ill, at Whiteliall, .\. Y., and defendants were partners and luiiilier nier- cliantH. at New llanilmrKli, on the Hud- son. Tlie course of husinesH is, tliat the lunilier is sliipped from Wliiteliall l>ycanal to Troy, and thenco to New liainhur^^li by the Hudson river. t)n tlie .">tl) day of Sept., INC."), the defendants desiring to pur- chase certain kind-iof luinlier, were sliown by the plaintiff the lurnher tlieii in tlx'ir yard at Whiteliall. This was of the de- sired quality, l)Ut needed to liedressed and cut into tlio different sizes which fliey wished. There was much more lumlier in the yard shown to the defendants than was requisite lor their pur[)08es. The de- fendants thereupon orally gave to the plaintiffs an or<ler for certain quantities and sizes of lumber, at specified prices, atuounting in the whole to $'.tlS.L'2. A meniurandum of the order so agreed to was made l)y the plaintiffs, but was not subscribed b.v any one. No particular lumber was selected or set apart to till the order, nor was any part of it tlien in condition to be ac''epte<l or delivered. The defendants told the plaintiffs that Percival, a forwarder at Whitehall, would send a boat to take the lumber, when no- tified that it was ready to be delivered. Percival, duriuE the same season, and prior to Sept. ."). had taken up a boat for the defendants, and shipped a part of a load of lumber from the plaiiitiffK' dock, making up the residue from his own yard. He had frequently shijiped lumber for the defendants. By the course of trade, a bout could not be obtained to carr.v a part of a load of lumber from Whiteiiall to New Hamburgh, except for the [irice of a full load. To avoid paying such full price, arrangements had to be made to fill out the load. The defendants knew of this when they made the ordvr of .Sept. .">. The order oidy amounted to one-half a boat-load. I'ercival then had a pile of lumber (seventeen thousand six hundred and seven ty-one feet of culls) to ship to the defendants, which was no part of the lumlter to be dressed by plaintiffs. The lumber ordered on .Sept..') was to be taken from the lots examined by the defendants, and the lumber dressed and piled on the plaintiffs' dock, was all taken from the lumber shown. After the oral order de- fendants went into the lumberyard with the plaintiffs' foreman. .Martin, and point- ed out to him someof the i)iles from wl'.ich they desired the lumber to lie manufac- tured, and directed plaintiffs to put the lumber, when ready, on plaintiffs' d<n'k and to notify Percival; and told plaintiffs that when this was done. I'ercival, who was also a luuil>er dealer, would take up a boat and ship the lumber, and make out the load from his yard. Subseciuently, I the l.")th of .Sept., the lumber linvine; bi-en prepareil and dressed, aciording to the I oral agreement, it was piled u|Mni the dock of the plaintiffs nt Whitehull, along the front of the planing-inill, and was, on the Kith of that month, n.eaHun-d by j rilainliffs, and was in all respects readyfoV delivery by them, according to the oral I agreement. The plaintiffs, on the snine day, gave notice to Percival that the lumber was ready for delivery, and re<|iiested him to send a boat and take it away. Percival had not been notilied that he was to ship the lumlier, and paid no attention to tlie notice given him by pluintirfs. On the , other hand, the plaintiffsdid not ascertain j that Percival did not know of the arninge- nient. which the defendants hud tulil them they would make with I'ercival nsto ship- ping the lumber, until after the H re here- inafter mentioned. On the ne\t day. Sun- day, the lumlier being still on the dock, art it was at the time I'ercival was mititied, wasc<inHumed by an accidental Hre. with the planing-mill and much other property'. Judgment far defemlant. .Martin \V. Cooke, for appellaots. Thompson & Weeks, for respondents. DWIGIIT, C. No exceptions were taken in this cause, except to the conclusions of law derived by the referee frnni the tacts astound in the report. There are tint two questions to be considereil : One Is, whether the contract is within the statute of frauds ; the other is, if it be lield that it is within the statute, were the acts, done by the [larties, sulticient to I'ouiply with it's terms, so as to make the contract en- forceable in a court of justice? In order to determine whether the con- tract is within the statute, it is ini|iortnnt briefly to state the exact acts which the Iilaintiffs were to perform. The contract was plaiul.v executory In its nature. There were no specific articles upon which tli" minds of the liuy«'r and seller met, so that it could be ailirmed that a title passed at the time of the con- tract. The seller was to select fniiii the mass of lumber in his yard, certain por- tioi^s that would comply with the buyer's iinler. The purposes of the parties could not even be accomplished by the process o( se'ection. The lumber must be put in n condition to answer the order. It must lie dresse<l and cut into required sizes. The contract called for distinct parcels of surface pine boards, clapboardn and matched ceiling. I'art of the lumber was surfaced, and a portion of it still in the rough. The clapboanls were ma-Mifac- tured from stuff one and a (iiiariei-inrh thick. It had to be split, surfaced and rabbeted. The or<ler for the various items was a single one, there being tifteen thou- sand four hundied anil forty-one feet of the surface pine, ten thousand one hun- dred and forty-four feet of clapbiinrds, andeight thousand feet of inatchetl ceiling. The surface boards and the ceiling were In existence, ami only needed die.sslng to comply with the onler. Whether the clapboards can be ileeiucd to have been in 188 COOKE V. MILLARD. <>xistonce may iie more doubtful. It a part of the order is within tlic Htatiite of frjinds. anil a portion of it witlioiit it, tlie whole transaction I'.iust he deemed to be within it, aw an entire contraet cannot, in thi.s ease, be divided or apportioned. Coulee V. 'I'oniliH, 2 Annt. 420; Cliater v. Beckett, 7 T. K. L'Ol ; Mechelen v. Wallace, 7 A. & E. 4'.); Thonian v. Williams, lu B. & C. ()(i4; Looniis v. NewhaM. lo IMcU. l.")l. I thinlv it clear that the contract was in its nature entire. It was in evidence that the intention was to liuy enough, in con- nection with what Percival had on hand, to make up a bout-load. This coulil only be acconi|)lished b3' usiny; the entire amount of the or<ler. Acc<jrdinKly even if the contract for the clapboards was not a sale, it cannot be separated from the rest of the order, and the eases above cited are applicable. The question is thus reduced to the fol- lowing proposition: Is a contract w hich is, in forni, one of sale of lumber then in existence for a fixed price, where the seller aerees to put it into a state ni fitness to fill the order of the p\irchaser, his work being included in the price, in fact a con- tract for work and labor and not one of sale, and accordingly not within the stat- ute of frauds? The New York statute is made applica- ble to the "'sale of any goods, chattels or things in action," for the price of .foO or more. The words "goods and chattels" are, literally taken, probably more com- prehensive than the expressions in the English statute, "goods, wares and mer- chanrlise." It will be assumed however in this discussion, that they are etjuiva- lent. There are at least three distinct views as to the nisaning of the words in the statute. These may be called, for the sake of convenience, the English, the Mas- Haehusetts and the New York rules, as representing the deci.sionsin the respective courts. The English rule lays especial stress up- on the ))oint, whether the articles bar- gained for can be regarded as goods capa- ble of sale by the professed seller at the time of delivery, without any reference to the imjuiry whether they were in existence at the time of the contract or not. If a manufacturer is to produce an article whicii at the time of the ileli\ery could be the subject of sale liy him, the case is within the statute of frauils. The rule excludes all cases where work is done up- on the goods of another, or even materials supidied or added to the goods of an- other. Thus if a cari'iageniaker should repair my carriage, both furnishing labor an<l supplying materials, it would be a contract for work and labor, as the whole] result of his efforts would not produce a chattel which could be the sniiject of sale by him. If on the other hand, by the con- tract he lays out work or materials, or both, so as to produce a chattel vrhich he could sell to me, the contr;ict is within the statute. This conclusion has been reached onl,y after great discussion and much fluc- tuation of opinion, hut must now be re- garded as settled. The leading case upon this point is Lee v.tJriflin, 1 Best & Smith, 27l!; Benj. Sales, 77. The action was thei'e brought by a dentist to recover £21 sterl- ing for two sets of artificial teeth, made for a deceased lady of whose estate the defendant was executor. The court held this to be the sale of a chattel within the statute of frauds. Blackburn, J., stated the principle of the decision in a clear ipaniier: " If the contract be such that it will result in the sale (jf a chattel, then it constitutes a sale, but if the work and labor l)e bestowed in such a manner as ] that the result would not be any thing I which could propti'ly be said to be the ■ subject of sale, the action is for work and ; labor." The Massachusetts rule, as applicable to goods lufinufactured or modified after the I bargain for them is made, mainly regard.s [ the point whether the products can, at the ! time stipulateii for delivery, be regarded as "goods, wares and merchandise," in the sense of being generally marketable commodities made by the manufacturer. In that respect it agrees with the English rule. The test is not the non-existence of the commodity at the time of the bar- gain. It is ratlier whether the manufac- turer produces the article in the general course of his business or as the result of a special order. Goddard v. Biiiney, II.t Mass. 4.")(), 1.") .\m. Kep. 112. In this very recent case, the result of their decisions is stated in the following terms: "A eon- tract 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. " Under this rule it was held in (iardner v. Joy. 9 .Mete. 177, that a contract to buy a certain number of boxes of candles at a fixed price per pound, which the vendor said he would manufacture and deliver in about three months, was held to be a contract of sale. On the other hand in Goddard v. Binney, supra, the contract with a carriage manu- facturer was that he should make a buggy for the person ordering it, that the color of the lini:ig should lie drab, and the outside seat of cane, and have on it the monogram and initials of the partj' for whom it was made. This was held not to be a contract of sale within the statute. See also Mixer v. Howartli, 21 Pick. 20.i, H2 Am. Dec. 256; Lamb v. Crafts, 12 Mete. :i.j-!, .Spencer v. Cone, 1 id. 2S3. The New Y'ork rule is still different. It is held here by a long course of decisions that an agreeement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer. is notacontract of sale. The New Y'ork rule lays stress on the word "sale." There must be a sale at the time the contract is made. The latest COOKK V. MIIJ.AI!!). ISO iiiifl most antlioritative expression of the ' diffipiilt to draw tl.c line, luiil to tllKcover rule i.-i I'oiiml in a recent ciise in this court, wlictlier the cliatlelH ure in cxiMt»'ncc or Parsons v. hoiickH. 4s N. Y. 17, l'.», h Am. not. Thi- miiihh of tlie ciiHeH will iiowi-ver IJcp. ■")I7. IMie ciintrnHt between I'arsons readily lje cUiHsifieil. If, on fiirther diHciiH- V. Lom-ks, in this state, on the one hand, sion, the rule in Lee v. (irillin should he and I^ce v. (irillin, supra, in EuKland. on found most desirulile nria|iplicalile to lioth the otlier, is I ha t in the former case the kindsof transactions, a proper case will be word sale refers to the time of enieriuK liresented for the consideration of tlie lej;;- into the contr'act, while in the latter, ref- j islature. erence is had to the time of delivery, as | The view that this case Is one of sale Is eonteiuplu ted liy ihe parties. If at tha t ; suhtain''d hy Smith v. I'enti.il It. Co., 4 time it is a clialtel it is enouirli, aceordinu Keyes, iso, and l>y Downs v. I'.oss, 'SA to the ICuKlish rule. Other cases in this | Wend. '.'70 state atfreein;; with l'ar>ons v. I.oucksi In tlie lirst of these cases there was a are CiooUshank v. Ilnrrell, IS Johns. ,")S, contract for the sale and delivery of a ".(Am.Uec. Is7; Sew'all v. Fitch, S Cow. rjuantity of wood, to he cut from trees 21."); Kohertson v. Vauirlin, .t Sandf. 1; standing on the plaintiff's land. The Parker v Schenck, 'JS llarh. 3s. These court held that it could not he treated as cases are based on certain (d.'i decisions in n.i a;;re"Miient for work and liih Kn^land, siicli as Towers v. Osl Strariir*, .')0<), and Clayton v. .\ such existence maybe arKueil fri ni the sidered that the case of Towers v <)s- fact tliat matter is iniiestructible. " So in l)orne, 1 Strange, ,i(Mi, whore an agreement Sewall V. Fitch, supra, the nails which for tlie manufacture of a chariot was were the subject of the contract were not contract for work and labor, was extre *!.»» _i, ,. ....» I...*- I... 1... ..^n.i» ;*, ; fc. .,.. t^ .,•.., .,...1 ...,..» ».. I. ,.,.:,.. I .. then wroufilit out, but were to be made in itsnature, and wasnot to becarried any and <lelivei'ed at a future day. further. ra«e '.'CO. The eases of (iarbutt Nothing of this kind is found in the pres- 1 v. Watson. T) U. \- .\ld. (il:i, and Smith v. ent case. The lumber, with the possible | Surnian, '.» li. & C. .'jUI. were cited with ap- e.xception of the claplioards, was all in ! proval. In Oarbult v Watson a sale of existence; wlien tin; contract was made. ' tlour by a miller was held within the stnt- It only nceiled to be pici)anMl for the pur- ute, althou;;li not ground when the bar- chaser — dressed and put in a condilion to uain was ma<le. fill his order. The court ac( ordincly is In Downs v. Hoss there was a contract uhIi- he nil HIS oroei . i iie couri tici t»ruiii;iiy i.s iii i/owiis \. i\ifn» iiii-tt- « tin ti (.miiiu not hampered in the disposition of this for Ihesaleof seven hundred and titty liuf cause by authority, but may proceed upon <'ls of wlieat, two hundred and fifty of t principle. (|uantity beinc: in a granary, and the res- Were tliis snliject now open to full dis- idiie untlireshed, but which the vendor cussion upon principle, no more cohvimi- a;ireed to >ret ready and deliver. The lent and easily understood ru'e coulil be court held the contract to be within the adopted than tliat enunciated in Lee v. statute ot frauds, notwithstanding Unit • irillin. 1 1 is at once so iiliilosophical and the act of threshing was to be done by so readily comprehensiliie, that it is a i the vendor. Tin- rule that jroveriied the matter of surprise tliat it should liaye court was tliat if the thiny; sold exist at been lirst .■innouiued at so late a stn^e in I the time in solido. the mere fact that thediKcussioiiof tlie statute. It is too late | somethin;? remains to be done to |>iit it In to adopt it in full in this state. So far as a marketalile condition will not take the authoritative dicisioiis have Kone, they contract out o( the opiration of the stiit- inust be respected, eyen at the expense of ute. I'ase -7-. This proposition is In sound principle. The court however in marked coal cast to the view expressed hy view of tlie present state of tlie la w, (owen, .1. in a dissenlinu opinion. His should plant itself, so far as it is not pre- theory was that where the at tide which eluded from doinsi so bv aiitiioritv. upon forms the sul jcct of sah' is understood some dearlviiitelliirible ground, and Intro- by the parties to be defective in any par- due no more nice and periilexiny: distinc- ticubir which dem.iuds the llnishbiK' labor tioiis 1 think that tlie true rule to be I of the vendor in onler to satisfy the bar- upplied ill this state, is that when the i snin. it is a contract for work and labor, chattel is in existence,so as not to be Kov- and not of sale. The two theories ( where erned by Parsons v. LoucUs. supra, the; the goods existat the time of sale; have contract should bo deemed to lie one of nowhere been more tersely and ilistinctl.v sale, even though it may have been or- stated than in the eoiillicting opinions -if dered from a seller who i:, to do some Itroasoii and Co wen. .1.1 .. in this case. See work upon it to adapt it to the use.s of also Courtright v. Stewart, 11) llarh. -I,.... the purchaser. Such a rule makes iiut a The fallacy in the proposition of ( owen, single distimtinn, and that is tietweenex- .1., is in a.-*sumiiig that there is any " """rK isting and non-existing chattels. There and labor" .loa- for the vendee. Al tlie will still be border cases wlieie it will be work and labor is done on the vendor b 190 COOKK V. MILLARD. property to put it in a condition to eniililo him to Hell it. His compen.sjitioii for it i^ found in tlie [iriop of the s'(>o(l.-( sold. It is a jujjKle of words to i-;ill tills "a mixed coiitriiet of sale and work and laijor. " When tliesooilj^ le.ive the vendor's hands and ijass over to the venilee the.v pass as cliattels under an exeeuted contract of sale. While an.v thin}; remained to be done the contract was executory Tliere is al)nndaiue of authori'y for nuiintainiiifr that a contract in its origin executory may. by tlie performance of acts under its terms, l)y one of the parties, become in the end executed. Kohde v. Thwaites, 6 B. I'i ('. 3.SS; Benj. Sales, chap. 5, and cases cited. Thecase of Donovan v. Willson, 2(i Barb. 13S, and Parker v. Schenck, 28 id. 3S, are to l)e ui)held as falliutt within the principle of Parsons v. Loucks, supra. Both of these cases concerned aiticles not in exist- ence, but to be produced bv the manufac- turer; in the one ease beer was to be man- ufactured, an<l in the other a brass pump. S(i in Passaic Mannf. Co. v. Hoffman, 3 iJaly. J!l."i, the contract was for the man- ufacture and delivery of fifty warps. Noi\e of these were in existence when the order was received. Wtiile the case ap- pears to fall within the rule of Parsons v. Loucks, the eminent judfjre who wrote an elaborate opinion expressiuji tlie views of the court would seem t(j rely upon the Massachusetts rule rather than our own AVhatever view miRlit be entertained of the soundnessof that distinction it is now too late to adopt it here, and the case cannot be sustained on that Krouml The only case in our rei)orts appearing to stand in the way of the conclusion ar- rived at in this cause is Mead v. Case, 33 Barb. 202. The court in that case recog- nized the distinction herein upheld. The only doubt about the case is whether the court correctly applied the rule to the facts. These were that several pieces of marble put together in the form of a mon- ument Were standing in the yard of a marble-cutter. That person agreed with a Iniyer to polish, letter and finish the article as a monument, and to dispose of it for an entire price — .1f20l). The court held that there was no monument in ex- istence at the time of the bargain. There were i)ieces of stone in the similitude of a monument, and that was all. It is unnecessary to quarrel with this case. If unsound, it is only a case of a misapplication of an established rule. H sound, it is a so-called "border case," showing the refinements which are likely to arise in applying to various transac- tions the rule adopted in Sewall v Fitch, and kindred cases. It is pro[)er however to say that the notion that such an ar- rangement of marble t>laced in a cenieter.v over a grave cannot be regarded iis a monument, in the absence of an inscrip- tir)n, seeuis highly strained. Then there could liot be a memorial chui-ch without an inscription. Then it could not have been said of Sir Christopher Wren, in his relation to one of his great architectural productions, "Si qua;ris monuiuentum,cir- curaspice." It would seem to be enough if the monument reminds the passer-b.y of him whom it is intended tocomraemorate, and this might be by tradition, inscrip- tions on adjoining or neighboring objects, or otherwise. In the view of these principles, the de- fendants had the right to set up the stat- ute of frauds. I think that this was so even as to the clap loards. Although not strictly in existence as claiiboards. they i fall within the rule in Smith v. Central I!. (Jo. They were no uiore new jtrod- ncts than was the wood in that case. There was simply to be gone thi-ough with a process of dividing and adapting existing materials to the plaintiffs' use. It would be ditfictilt to distinguish be- tween splitting planks into clapboards, and trees into wood. \o especial skill is required, as all the work is done by ma- chinery in general use, and readily man- aged by any producers of ordinary intelli- gence. The case bears no resemblance to that of Parsons v. Loucks, where the pro- duct was to he created from materials in no respect existing in the form of paper. The cases would have been more analo- gous had tlie contract in that case been to divide large sheets of paper into small ones, or to make packages of envelopes from existing paper. In Gllnian v Hill, 3G N H. 311, it was held that a contract for sheep pelts to be taken from sheep was a contract for things in existence, and a sale. The next inquiry is, whether there have been sufficient acts doneon the part of the buyers to comply with the statute. In order to properly solve this question, it is necessary to look more closely into the nature of the contract. As has been al- ready suggested, the contract w;!s in its origin executory. It called for selection on the jjart of the sellers from a mass of materials. At the time of the bargain there was no sale. There was at most onl.v an agreement to sell. The plaintiffs however lay much stress on the f.ict that after the oral bargain and after the de- fendants had inspected the lumber, they gave directions, also oral, to the plaintiffs to place the lumber after it had been made ready fordelivery upon the dock and togive notice to Percival. They urge that the subsequent compliani'e with these di- rections by the plaintiffs satisfy- the terms of the statute. It will be observed that all of these di- rections were given while the contract was still wholly executory, and before any act of selection had been performed by the plaintiffs. It will thus be necessary to consider whether these directions are sufficient to turn the executory contract of sale into an executed one, independent of the statute of frauds, and afterward to inquire whether there was any sufficient evidence of "acceptance and receipt" of the goods to take the case out of the stat- ute. These questions are quite distinct in their nature and governed by different considerations: (1.) If the contract had been for goods less than $'>0 in value, or for more than that amount, and ordered by the defendants in writing, it would still have been executory in its nature, and COOKE V. MILLARD. 191 would have i)aRHe(l no specific goods. It would liuve been an agreement to sell and not a sale. The case would not have fallen within such authorities as Oofoot V. Bennett, 2 N. Y. L'.')S, and Kiniherlv v. Patchin. li) id. 330, T.j Am. Dec. 334. Since the goods could not have been Identified at all, except by the act of the seller in se- lecting such as would comply with the or- der, nor could the purpcjses of the contract have been jjerforuied exce|)t by the labor of the plaintiffs in adapting the goods to the d'-feiidants' use, tlie case falls within a I'ule laid down by .Mr. ISIackburn in his work on sales (pp. I.'jl, 1,'5'J) : " Wlioi'e, by the agreement, the vendor is to do any thing to the gooils f(jr the purpose of put- ting them into that state in which the purchaser is to be bound to accept tlieiu, or as it is some times worded, into a de- liverable state, the ])erformance of these things shall, in the absence of circumstan- ces indicating a contrary intention, be taken to be a condition precedent to the vesting of the oropertv." Acraman v. Morrice, SC. B. 44U; (Jillett v. Hill, 2 (;. * SI. 531); Campbell v. .Mersey Docks, 14 C. B. (N. S.) 412. Proceeding on the view that this was an e.'cecutory contract, it might still pass into the class of executed sales tiy acts "of subsequent appropriation." In other words, if the subseciuent acts of the seller, combined with evidence of intention on the part of the buyer, show that specific articles have been set apart in performance of the contract, there may be an executed sale and the property in Hie goods may pass to the purchaser. Blackburn Sales, 12s; Benj. .Sales, chap. 5; Fragano v. Long, 4 B. &C. 21!); Kohde v. Thwaite8,r) id. 3^s; Aldridge v. Johnson, 7 E. & B. SSo; Cal- cutta, etc., Company V. Ue Matfos, 33 L. J. HI. B.) 214. in Exch. Cham. This doctrine requires the asseut of both parties, though it is held that it is not necessary that such assent should be given by the buyer subsequently to the appropriation liy the vendor. It is enough that the minds of both pjirtics acted upon the subject and assented to the selection. The vendor may he vested with an implied authority by tlie vendee to make the selection and thus to vest the title in him. Browne v. flare, 3 H. & N. 4S4; S. C., 4 id. .^22. This doctrine would be applicable to existing cha ttels where a mere selection from a mass of the same kind was re(]uisite On the other hand, if the goods are to be manufactured according to an onler, it would seem that the mind of the purchaser after the manu- facture was complete, should act upon the quostion whether the goods had com- plied with the contract. See Mucklow v. Mangles,! Taunt. 31S: Bisho|) v. Craw- shay, 3 B. & C. 415; Atkinson v. Bell, 8 id. 277. Tills point may be illustrated by the case ()f a sale by sample, where the seller agrees to select from a mass of products certain items rorrespondlui' with the sam- ple, and forward them to a purchaser. The net of selection by the vendor will not pass the title, fur the plain and satisfac- tory reason, that the purchaser has still remaining a ri^lit to detern.ine whether the selected goods correspond with the 'sample. Jenner v. Smith, L. R., 4 C. P. 270. In this case the plaintiff et a fair, orally contracted to sell to the defendant . two pockets of hops, and alscj two other ] pockets to correspcmd with a sample, which were lying In a warehouse in Lon- don, and which he was to forward. On his return to London, he selected two out I of three pockets which he had there, and j directed them to be marked to " wait the , buyer's order. '' The buyer did no act to I show his acceptance of the gooils. The court held that th'' appropriation waR neither originally authorized nor subse- quently assented to l)y the buyer, and that the property did not pans by" the con- tract. Brett. .1., put in a strong form the objection to the view that the buyer could have impliedly assented to the appropri- ation by the seller. It was urged, he s.iid, "that there was evidence that by agree- ' meat between the |)arties, the purchaser gave authority to the sellor to select two pockets for him. If he did so, he gave up ills power to object to the weighing and to the goods not corresponding with the sample; for he could not give sucli au- thority and reserve his right to object, and indeed it has not been contended that he gave up thiise rights. That seems to me to be conclusive to show that the de- fendant never gave the plaintiff authority to make the selection so as to bind him. Under the circumstances therefore it is im- possible to say that the property passed." Page 'Jix. Toe same general principle was : maintained in Kein v. Tupi>er. ."«2 N. Y. 5.")0, where it was held that the act of the 1 vendor putting the goods in a state to be delivered did not pass the title, so long as the acceptance of the vendee, provided for under the terms of the contract, had not : been ol)tnined. The result is, that if this sale, executory as it was in its nature, had not fallen I within the statute of frauds, tlii're would have been no sulHcient appropriation liy the vendor to pass the title. The trans- action, so far as it went, was even at com- mon law an agreement to sell and not an j actual sale. (2.) But even if it be assumed that this ' would have l)een an executed contract of sale in its own nature, without reference to the statute of frauds, was there "an acceptance and a receipt" of the goods, or a part of them, t)y the buyer, so as to satisfy the statute'* The acceptance and receipt are both nec- essary. The contract is not valiil unless the buyer does l)oth. These are two dis- tinct tilings. There may be an actual re- ceipt without an acceptance, and an ac- ceptance without a receipt. The receipt of the goods is the act of taking posses sion of them. When theseller gives to the buyerthe actual control of the goods, ami ' the buyer accepts such control, he has actually received them. Such a receipt Is I often an evidence of an acceptance, but it is not the same thing. Indeed the receli>t by the liuyer may be. and often is, tor the express i)urpose of seeing whether lie will accept or not. Blackb. Sales, 106; see Brand v. Koch t, 3 Keyes, 40'J; Stone v. Browning, 51 N. Y. 211. 192 COOKK 0. MI]>LAUD. There are some dicta, of various judges, cited by tlie pJMintiffs to the effect tliat ac- ceptance and receipt are eiinivalcDt. Per ('roiupton. J., and Cock!.Mirn, Ch. B., in fastle V. Sworder. G H. & N. 8.T.'; perErle, C. .1., in ilarrin v. Wallis, (i E. & B. 720. Tliese remarks cannot be regarded as of any wei^jlit, being contrary to tlie decided current of autliority. Indeed a late and approved writer says: "It may l)e con- fidently assumed however that Ihe con- struction which attributes distinct mean- ing to the two expressions, ' acceptance' and 'actual receipt,' is now too (irmly set- tled to 1)6 treated as an open question, and this is plainly to be inferred Irom the opinious delivered in Smith v. Hudson," 6B. & S. 4315; Benj. Sales. It cannot be conceded that there was any acceptance in tlie present case by rea- son of tlie acts and words occurring be- tween the parties after tlie parol contract and before the goods were prepared for delivery. There could be no acceptance without the assent of the Olivers to the articles in their changed condition, and as adapted to their use. 11 the case had been one of specific goods to be selected from a mass without any preparation to be made, and nothing to be done by the ven- dor but merely to select, the matter would have presented a ver.v different aspect. This distinction is well pointed out liy Willes, .1., in Bog Lead Mill. Co. v. Mon- tague, 10 C. B. (N. S.) 4S1. In this case the question turned upon the meaning of the word "acceptance," in anotherstatute, but the court iiroceeded on the analogies sup- posed to be derived from the construc- tion of the same word -in the statute of frauds. The question was as to wliat was necessH.'-y to constitute au"acce])t- anee" of shares in a mining company, un- der 1!) and 'JO Victoria, chap. 47. The court having likened the case to that of a sale of chattels, said; "It may be that in the case of a contract for the purchase of unascertained property to answer a par- ticular description, no acceptance can be properly said to take iilace before the pur- chaser has had an opportunity of rejec- tion. In such a case, the offer to purchase is sjbject not only to the assent or dis- sent of the seller, but also to the condition that the property to be delivered by him shall answer the stipulated description. A right of inspection to ascertain whether such condition has been complied with is in the contemplation of both parties to such a contract; and no complete and final acceptance, so as irrevocably to vest the [iroperty in the buyer, can take place before lie has exercised or waived that right. In order to constitute such a final and coiniiletc acceptance, the assent of the buyer should follow, not iirecede, that of the seller. But where the contract is for a specific, ascertained chattel, the rea- soning is altogether different. Equally, wiiere tlieoffer to sell and deliver has been first made by tlie seller and afterwards assented to by the buyer, and where the offer to buy and accept has lieen first made b.v the buyer and afterward assent- ed to by the seller, the contract is com- plete by the assent of both parties, and it is acontract the expression of which lesti- Hes that the seller has agreed to sell and deliver, and the buyer to buj' and accept the chai tel. " Pages 4s9, 490. This view is confirmed by Maberley v. f^heppr.rd, 10 Bing. U',). That was an ac- tion for goods sold and delivered, and it was proven that the defendant ordered a wagon to be made for him by the plain- tiff, and, during the progress of the woik, furnished the iron work and sent it to the plaintiff, and sent a man to help the plain- tiff in fitting the iron to the wagon, and bought a lilt and sent it to the plaintiff to lie put on the wagon. It was insisted, on these facts, that the defendants had exercised such a dominion over the goods sold as amounted to an acceptance. The court, per Tindal, Ch. .1., held that the plaintiff had been rightly nonsuited, be- cause the acts (jf the defendant had not been done after the wagon was finshed and capable of delivery, but merely while it was in progress, bo that it still re- mained in the plaintiff's .vard for further worK until it was finished. The court added: "If the wagon had been completed an<l ready for delivery and the defendant had then sent a workman of his own to perforin any additional work upon it, such conduct on the part of the defendant might have amounted to an acceptance." See also Benj. Sales, chap. 4, and cases cited. The iilaintiffs, in the case at bar, rely much upon the decision in Morton v. Tib- bett, l.'i .\(l. & El. (N. S.) 4-.'S. Tliey main- tain tliat this case clearly establishes that there may be an acceptance and receipt of goods by a purchaser, within the statute of frauds, although he has had no oppor- tunit.v of examining them, and although he has done nothing to preclude hiniself from objecting that they do not corre- spond with the contract. The expressions in Morton v. Tibbett are not to be pressed any further than the facts of the case require. The buyerof wh2at by sample had sent a carrier to a place named in a verbal contract between him anu the seller on August 2.5. The wheat was received on board of oneof the carrier's lighters for conveyance by canal to Wisiieach, where it arrived on the 2Sth. In the mean time it had been resold by the buyer, by the same sample, and was re- turned by the second jiurchaser because found to be cf short weight. T'he defend- ant then wrote to the iilaintiff on thcyotli, also rejecting it for short weight. An ac- tion vvas broiigijt for goods bargained and sold. I'here was a verdict for plain- tiff, witli leave to move for a non.-iuit. The question for the appellate court was, whether there vvas any evidence that the defendant had accepted and received the goods so as to render him lialile as buyer. The court held that the acceptance under the statute was not an act subsequent to the receipt of the goods, but must precede, or at least be contemporaneous with it ; and that there might be an acceptance to .satisfy the statute, though the purciiaser might on other grounds disaffirm the con- tract. Morton v. Tibbett decides no more than COOKE c. MILLARD. 193 this, viz., that there may be n foiiilitiunal acceptance. It is ;is if the piiicliu.ser had Haiii: " 1 take tliesu Koo'ln on llie Hiippo- Hilioii that tlie.vcoiniily with llio con tract. I am not hound to decide tliat |)oint at lliis moment. If, on examination, tliey do not correspond witli the naniple, I Hhali Mtill return tlieni under my common-law ritilit, «rowinf? out of the very nature of tl)e contract, to declare it void, liecause our minds never met on its Hul)jcct matter — non in haec foedera veni." It is not nec- essary to decide whether this distinction is Honnd. It is enuuKli to say tliat it is intelliKiljIe. The case, in no respect, de- cides that there can be an acceptance un- der the statute of frauds witlHJut a clear and distinct intent, or that unfinished arti- cles can be presumed to be accepted before they are finished. The act of acceptance was clear and unequivocal. There was a distinct case of intermcddlin;; with the j?oo(lH in the e.xercise of an act of owner- Bhip -a fact entirely wnntinfj; in the case at bar. The proof of acceptance was the act of resale l)efore examination. Tlie point of the decision is, that this was such un exercise of dominion over the ^oods as is inconsistent with a continuance of the rij^hts of property in the vendor, and there- fore evidence to justify a jury in lindin^ acceptance as well as actual receipt l)y the buyer. Hunt v. Ilecht, S Exch. ,S14. Even when interpreted in this way, Mor- ton V. Tibbett cannot be regarded as ab- solutely settled law in England. See Coombs V. Bristol & Exetar Hy. Co., 3 H. & N. .510; Castle v. Sw order, ti id. 82S. The court of queen's beach recognizes It, while the court of exche(iuer has not re- ceived it with favor. I^ater cases distinct- ly hold that the acceptance must take place after an opportunity by the vendee to exercise an option, or after the <loing of some act waiving it. Bra m well, 1$., said in Coombs v. Bri.stol & Exeter Ki'. Co.: "The cases est.'iblisli that there can be no acceptance wl.ere there can be no opportunity for rejecting." All the ca.ses were reviewed in Smith v. Hudson, G Best & Smith, 4:J1, A. D. Iscr), wh.'re Hunt v. Ueclit was approved. The two last cited cases disclose a principle applicable to the case at l)ar. In Hunt V. Hccht the defendant went to the pl.-untiff's warehouse and there in- spected a heap of ox bones, mixed with others inferior in quality. The defeiwlant verbally agieed to purchase those of the better (juality, which were to be separat- ed from the rest, and ordered them to be sent to his wharlinger. The bags were received oh the !Uh. and examined next day by the defendant, anil he at once re- fused to accept them. There was liehl to be no acceptance. Thec.-ise was put u|)on the ground that no acceptance was possi- ble till after separation, and there was no pretense of an acceptance after that time. Martin, B., said tliat an acceptance, to satisfy the statute, must be Hoiiiething more than a mere receipt. It means some act done after the vendee has exercised oi' had the means of exercising his right of rejection. In Smith v. Hudson, supra, barley was LAW SALES— n sold on November 3, 1803, bv sample, by an oral contract. On the 7th it was taken by the seller to a railway station, where he had delivered grain to tl:e purchaHer on several prior dealings, and where it was his custom to receive it from other sellers. The barley was left nt the freight- house of the railway, consigned to the or- der of the purchaser. It was the custom of the trade for the buyer to compare the sample with the bulk as delivered, and U the examination was not satisfactory, to reject it. This right continued in the pres- ent case, notwithstanding the delivery of the grain to the railway company. Ou the 'Jtli the purchaser became bankrupt, and on the 11th the seller notified the sta- tion-master not to deliver the barlev to the purchaser or his assignees. The court held that there was no acceptance sutli- cient to stitisfy the statute. The most that could besiiid was. that the delivery to the company, considered as an agent of tlie buyer, was a recei|it. It could not be claimed that it was an acceptance, the carrier having no implied autliority to accept. The buyer had a right to see whether the bulk was according to tlieHam- ple, and until he had exercised that right there WHS no acceptance. Opinion of Cock- burn, Ch. .I*J4li: see also Caulkins v. hell- man, 47 N. Y. 4411, 7 Am. l{ep. 4G1 ; Halt- erline v. Kice, (>2 Barb. .V.K!, Edwards r. (Jrand Trunk Ky. Co., 4S Me. 379; S. C, 54 id. 111. The case at bar only differs from these cases in the immaterial fact that the de- fendants, after the verbal contract was made, gave verbal directions as to the disposition which should be made of the goods after they were put into a condition ready for delivery. All that subsei|uenlly imssed between them was mere words, and had not the sliglitest tendency t«» show a waiver of the right to examine the goods to see if they corresponded with the contract. Whatever effect these words might have had in indicating an accept- ance, if the goods hud been specific and as- certained at the time of the ilirectious (see Cusack v. Uobinson, 1 Best & Smith, IVJ), they were witliout signilicance under the circumstances, as the meeting of the minds of the parties upon thesubject to be settled was necessary. Sheiiherd v. l'ressey,3;.' N. H. 5(. In this case the effect of subse- (lucnt engagements by the buyer was passed upon as to their tendency to show a receipt of the goods by him. The court said; " .Asmere words constituting a part of the original contract do not constitute an acceptance, so we are of opinion that mere words after words used, looking to the future, to acts afterward done by the bu.ver toward carrying out the contract, do not constitute an acceptance or prove the actual receii)t required by the stat- ute." The case was stronger than that uniier discussion, as the goods were spe- cific and fully set apart for tlte purchaser at the time iif the subsequent conversa- tions. No distinction is [lerceived bet ween f'ture acts to be done by the liuyer aud by the seller, as lioth equally derive their force from the buyer's assent. I see uo rea.son in the case at bar to hold 194 COOKE V. MILLARD. that the Jefeiiilants received the goods, indepenik'iit of tlie matter of ncceptant'e. There was no evidence that Peroival be- came tlieir ajie'it for this purpose. The most that can be KHid is tliat'tlicy prom- ised tlie plaintiffs that they would make Percival their af^eiit. Tliis promise being: -oral and connected with the sale, is not binding'. They did not in fact communi- oate with him nor did he assvime any do- minion or control over the property. The proir.issor.v reprcseiitations of tlie plain- tiffs are clearly within the rule in Shep- herd v. Pressey, supra. The whole case falls within the doctrine in Shindlerv. Houston,! N. Y. "JGl ; 40 Am. Dec. :!](j, there beins no suHicieiit act of the pn''tie8 amountinR to tran.-*fer of the possession of the lumber to the buyer and acceptance by him. The jndifment of the court below should bo attirnied. All cr ncur. JudHineut affirmed. COON V. SPAULDING. 197 COON T. SPAULDING et al. (10 X. W. Rep. 1S3, 4T Mich. 1C2.) Supn-iue Court of Michigan. Oct. 26, 1S81. Krror to Wayne. F. A. Baker, for jiluintiff in prror. S. R. Harris and Henry M. Cheever, for defend- untH in error j MAHSTON, C. .J. As stated in the brief of counsel for plaintiff in error, the main question in this case is, whether the plain- tiffs lielow, defendants in error, went to (;oon's to i)ress the hay contracted for witliiii n reasonable time after the con- tract was made. The following is the written contract sued upim. "Dearborn,' Mich., Septenil)er '-'.j, IS7!). Received from Spanlding & liofjers $50 to apply on the pnrchase of hay, estimated at 100 tons ] more or less, to be delivered at Fisher's ; station, at $10 jter ton, ineludinK board) for men and teams, fuel for engine and nien to i)itcli the hay to the press. Hay | to be paid for as delivered, and to be de- 1 liverei in a reasonable time after being ! pressed. .f."iO. .Joseph Coon." November I'J, IsT'.), .Spauldinn & Rogers were at Mr. j Coon's place ready to press the hay, but Mr. Coon declined to let them have it. It will be noticed that the contract is silent as to who sliall i)ress the hay and also as to when it shall be iiressed, and assuming that Spanlding & Rogers were to press the hay whether they were ready and offered to do it within a reasonable time will dei)end niion the admissil)ility and weight to be given certain oral testi- mony offered by them. The plaintiffs below offered evidence, viz., the testimonj- of Rogers one of the plaintiffs, tending to show, that they were ready to commence jiressing the hay at the time tlie contract was entered into, but tliat Mr. Coon was not ready and re- • piested them to wait for three weeks until he could get certain fall work done. The plaintiffs also introduced a letterpress copy of a letter mailed November 10th to the defendant properly aildressed postage prei)oid, with tlieir card In the envelope, and a rec|uest to return in five days if not called for, but which was not returned, which letter was as follows: "Wayne, Mich., November 10. 1S7!). .loseph Coon, ICsq., Dearborn, Mich. — Dear Sir ■ Wehave been waiting to hear from you about hay, and let us know when it will be con- venient to press your hay. We are now pressing and loading at Plymouth, and expect to finish the present job this week, and shall then be prepared to come to your place next, reaching there some time next week. Moping tliis will prove satis- factory we remain yours truly. SpauUling & Rogers." To this they received no re- ply. There was no further or other com- munication between them, until they went to press the hay November 2L'il as already stated. And first was this evidence ad- missible'? Counsel for plaintiff in error Insists it was not for two reasons: viz.: that the conversation about wailingthree weeks until Mr. Coon should get his fall work done, took place at Ihe time tlie contract was enlercd into, having lieen talked over immediately before and after the contract was signeil. and that It was therefore merged in the written agree- ment. And the contract being one which the statute of frauds re()uired to be In writing, could not be modified by a subse- quent pared agreement. The" position taken l)y counsel for plaintiff in error us to the time the conversation took idace i» undoubtedly correct. On crosH-examina- tion Mr. Rogers testified that "before the conti'act was signed he and .Mr. ( oon had talked about the timethe plaintiffs should come to |)ress the hay, that Mr. Coon said he should be busy for three weeks, and they coidil have the hay any time after that, which the witness unih'rstooil meant a reasonable time after three weeks; that no time was fixed within which the plaintiff should come, tiuestion. That is then- was no time agreed upon'/ .Vnswer. No. sir; but the last thing I said to him was 'if you get ready before we do let us know.'" This witness further testified that he did not see .Mr. Coon from tlie day the con- tract was signed until the day he moved the machine there and demanded the hay, November 22d ; and that all he ilid in the mean time was to write the letter of No- vember lOtli above given. The case therefore seems to come clearly within the decision in Strange v. Wilson, 17 Mich. 342, and the reasoning in that case njjplies witli full force here. The sub- stance of all the testimony is set forth in the bill of exceptions, and we are unal)le to find any testimony fairly tending to show that there was any sultsequent oral modification of the contract even admit- ting such to have been admissible. It was therefore 4.") days after the contract was made before the letter of Noveml)er 10th was written s])ecifving that the following week the jtlaintiffs would be ready to proceed with the work on their part. The oral evidence being admissilile the de- lay was greater than in the ordinary course of business could fairly have been required, or nn<lerstood by the parties to enable the plaintiffs to enter upon the work. It exceeded any possible time re- quired by reason or necessity, and consid- ering the time of year, and that the de- fendant had to draw and deliver the hay at a place named after it was pressed. It is not to be presutned that so longa delay was contemplated. Phamix Ins. Co. v. Allen, 11 Mich. olO: Druse v. Wheeler, 2ti Mich. li).'>. 22 Mich. 441. The juelgment must be reversed with costs and a new trial ordered. GRAAES and COOLEY, JJ., concurred. CAMPBELL, J. I agree in the conclu- sion that there shoulil he a new trial, and I also agree in the construction of the con- tract when taken by ltself,thnt Is explain- ed by the chief justice. But I think there was evidence of subsequent dealings suHl- cient to make the question of reasonable time proper to go to the jury. COPLAY IROX CO. v. POPE. 199 COPLAY IRON CO., Limited, v. POPE et al. (15 N. E. Rep. 33o, 108 N. Y. 2.32.) Court of Appeals of New York. Jan. 17, 18SS. Appeul from general term, court of com- inon pleas, city aiuJ county of New York, entered upon an order made A|)ril 20, ISNj, wliici) attirined a judgment in favor of plaintiff, entered upon a verdict. Tlieotherfacts fully appearin thefoUow- ins Btatcmeut by KAKL, .7.: TliiH action was brouulit to recover the price of .'jOO tons of pin-iron huIU and deliv- ered by the plaintiff to tlie defendants. In their answer, by way of counter-claim, the defendants aile|j;e that they aie deal- ers in iron, and are not enjraKed as nian- iifacliirers or consumers thereof; that on or about the ei;;lith day of December, 1S7!), the plaintiff sold aiid aprreed to de- liver to them '.t(Ml tons of No. 1 extra foniKlry pi^-iron of the Coplay Iron Com- pany, I^imited, make, at the price of $27 per ton , that it aureed to deliver and sliip the iron on board the cars at its furnace as and when ordered by tin,' defendants; that they itnid it the full price of the iron ; that No. 1 e.xtra was a ^rade of pig-iron of certain well-known quality in the mar- ket; that they purchased the iron to sell again to their customers, which was well known to the plaintiff; that, relying up- on plaintiff's promiseand agreement, they sold to E. P. Allis &. Co., one of their cus- tomers in Milwaukee, "idll ton.s of the iron at and for the agreed price of $->i per ton, to be delivered lit the furnace of the Cop- lay Iron Comjjany, Limited, and forwhich E. P. Allis & Co. fully paid them; that they ordered the plaintiff to ship the iron, and thereupon it made a shipment of iron uptm the contiact which it claiiDcd and pretended was No. 1 e.xtra iron, which in fact was not No. 1 extra iron, but a graile of iron of inferior ([uality, and of less value, than No. 1 extra iron, or the quality it agreed to deliver, and it delivered to them therefor a liill of lading, in which the same was described as No. 1 extra iron; that they sold the iron to their cus- tomers as No. 1 extra iron; that they did not examine the iron, and had no oppor- tunity to examine the same; that they relied upon the promise and agreement and bills of lading, and .')(I0 tnns of the iron wer« forwarded to their customer.s with- out examining the same; that on or about the thirty-tirst day of July, ISNO. as soon as the iron arrived at Milwaukee, and they had inspected the same, E. P. Allis & Co. notified these defen<lnnt8 that the .")U0 tons of iron sold and delivered by these defendants to them was not No. 1 extra iron, but was of a iinnliiy or grade greatly inferior thereto, and entirely unlit for use as N<). 1 extra iron, and they re- fused to accept the iron, and demanded of these defendants the return of the pur- chase price paid by them therefor, with in- terest, and the cost of transi)orting the same from the furnace of the Coplay Iron Company, Limited, to Milwaidiee, and storage expenses; that these defendants forthwith duly notified the iilaintiff of the inferior ((utility of the iron, and the claim made by these defendants' customers, and requested plaintiff to examine the Iron, and notined it that they would hold it responsible f<ir all damages they might sustain by riason of its failure to deliver the iron rei|uired by the contract; that the iron so delivered, or agreed to be de- livered, by the plaintiff to defendants, was not No. 1 extra ir<jn, but iron of « quality greatly inferior thereto, and not of the standard or quality of No. 1 extra iron, and wholly urisuitfible for use In de- fendants' customers' business; that It was not No. 1 extra Coplay iron; that de- tentlants' customers refused to accept, anil have not accejited, the iron, and it re- mains siil)ject to the plaintiff's order, and these defendants have not accepteil tho same; that defendants have sustained damages by reason of the inlerior quality of the iron, ami the breach of the plain- tiff's agreement as to the qiinlity thereof, and its refusal to deliver the iron i.-ur- cliased of it, and of its refusal to return the money so received, defendants demand- ed that the complaint he dismissed, and tluit they have juilgment for the amoont of tlirii- damages. Thecasewa.s brought to trial, anrl a jury- was impanele<l to try the same, ('ounsel for the plairitiff then moveil the court for judiiment upon the gr<»unds—" First, that there is ncj defense set up to the cause of action set forth in the c<>mplaint ; second, that the facts set up by way of counter- claim are not only iiot sufhcicnt to cmisti- tute a cause of action, but show athrma- tively that there is no liability whatever on the part of this plaintiff to the defend- ants." The defendants conceded that the plaintiff's claim set forth in its complaint was admitt(Ml by the answer, anil they then offered to |>ri)ve the counter-claim set op in the answer. Plaintiff's counsel admitted, fur the jiurposcs of his motion, that all the allegations in the answer were proved. The court thereupon directed a verdict for the plaintiff, to which direction defendants' counsel excepted. \Vm. W. Niles, for appellants. Chas. B. Alexander and George A. Strong, for re- spondent. EARL, J., (after stating the facts.) We must assume that the sale of iron allegeci in the Cefendants' coniiter-claim was an executory sale, as that is the fair and just inference from the facts alleged. The plaiutii'f was a manufacturer of iron, and the contract of sale was made on the eighth day of December, isT'.i. It covered 9110 tons of iron, and it was to be delivered in the future, as and when the defemlants ordered it to make delivery. There is no allegation that the plaintiff, at the time of this sale, had the iilentical !HI(I tons of iron on hand, or that that quantity was sepa- rated from other iron. It woidd bo against all e.\|)erience, and certainly against the usual course of business, to sui)|)Ose that the maiiufjieturer had the iron on hand, and that upon its purchase by the liefeinlants it was separated and set apart and stored (or them. It is rea- sonable to suppnse-and as all the facts wen' submitted ti> thecourt. neither party asking to have them submitted to thi> 200 COPLAY IRON CO. v. POPE. jury, the court Iind tlie right to flraw the inference — Ihat the inui was to be there- after maiuifiictiirec!, weiffhed, designated, and delivered, and thus this wa.s an exec- utory contract of sale. In sueli a case, tliefact of payment has very little signifi- cancv. It is sometimes a controlling fact to sliow that the sale was not executory, and was completely executed. It is al- ways evidence upon that (jnestion, hnt in a case like tliis is not iinpoitant. The price of property purcliased may lie paid, and yet the contract of sale in every sense be executory Treating this, then, as an executory con- tract of sale, the defemlants are not In a po.sition to con!|''ain of the quality of the iron, because they never offered to return it, and never gave tlie plaintiff notice or opportunity to take it back. They must therefore becondusively presumed to have acquiesced in the quality of the iron. Hargons v. Stone, 5 N. V. 73; Heed v. Randall. 29 N. Y. 3.')S; McCorniick v. Sar- son,4r) N. Y. 2C5; Dutchess Co. v. Harding, 49 N. Y. 323; Manufacturing Co. v. Allen, 53 N. Y. .515. Here there was n(» collateral warranty or agreenient as to the quality of the iron. The representation as to the kind and quality of iron was part of the con tract of sale itself, descriptive simply of till' article to be delivered in the future; and clearly, within the cases cited, an acceptance of the property by the defend- ants, without any offer to return the same at any time, deprives them of any right to make complaint of its inferior quality. Till' judgment should he afhrmed, with costs. All concur, except ANDREWS, J., not vo ting. CIJAWCOUH, EX PAKTE. 203 Ex parte CRAW'COUR. In re ROBERTSON. (9 Ch. Div. 419.) Court of Appeal. June 27, 1878. This was an appeal from a decision of Mr. HeKibtror Ilazlitt, acting as cliief juilRC in banlvruptcy. t)n the L"Jth of November, 1S77, an aRree- meiit in writing was entered into liotwem \V. A. ItohertHon.a trader, of tlie one pnrt, and l.ewin Crawc(iur& Co., ii|)l)i)lKter('rs, of the othi-r port, wliieh contained tlie fol- lowing provinions: — (1.) "That Le win CrawcouriS: Co. thereby let to UobertHon, and he tliereliy hired of them, tlie sevcrnl articles of fiirnlture and effects tielongingto tlieni nientioncd in the Hcheiiule tlitreto,and which were ailmitted by l!ot)ertson to be of tlie value of £<13 4s. 10(1., adding thereto ij per cent, on the said value less the amount of first instalment. (2.) "The said articles of furniture and effects are hired by W. A. Ilol)ert8nn upon the following terms and conditions: — (:i.) " \V. A. Robertson is to |)ay to Lew- inCrawcour & Co. the sum of £10 on the signing heieof, £5 on the 4th of .lanuary next, and .t.j on the 4th day of each suc- ceeding calendar month during the con tinuance of tliis airreement, and is also on the signing hereof to deposit with Lewin Crawcour & Co. |ironiissory notes for the total amount of the instalments to be paid hereunder, such promissory notes be- ing given as collateral security, and entire- ly without prejudice to the title of Lewin Crawcour & Co. in or to the said furniture and effects, and of all rights reserved to them by this agreement, and subject to this 8tii)nlation, that, in case of the goods being seized and removed by Lewin Craw- cour & Co. under clause 5, the whole of Buch promissory notes, or so many of them as shall then be current, shall after Buch seizure and removal l)e given up on demand to \V. A. Robertson, and shall from and after such seizure and removal become alisolutely void. (4.) " \V..V. Robertson is to keep thereat of the premises in which t!)e said furniture and effects arc placed regularly and punc- tually paid, and not to part with posses- sion of, remove, or otherwise deal \>ith the said goods, or any part thereof, nor to part with the possession of, or assign his interest in, tin? liouse or premises wherein the said goods may be, without the con- sent in writing of I..ewiu Crawcour & Co. being first obtained. (.').) "In the event ofnon-payment of any of the above notes on the days upon which tliey respectively become d\ip, or ol the bread) of any of the conditions herein expressed to be performed by W. A. Rol)- ertson, or in case the said furniture and effects, or any jiart tliereof shiill be seized or taken in execution nnd"r any process of any court either of law or of equity, Lewin Crawcour & ('o. may by llieni- Belves, or others, tiieir servants or agents, enter into any liouse or place where the said articles of furniture or any of tliem shall then be, and seize, remove, and re- take possession of tlie same, as iu their first ami foriner esl.-ite, notwithstanding any paynients made liy W. A. Ibiliertsou, and Rol)ertHon shall be barn-d from com- mencing or maintaining any action o( trespass or otiierwise l>y reason of such taking [lossfssion as aforesaid, or of the temporary (lossession of the premises wherein the said goods may be. for such time as may be reasonaldy occupied In snch removal, or for the recovery of uny part of the moneys paid under lliis agree- ment, wldch, upon such default or breach as aforesaid, it is hereby agreeil are to be absolutely forfeited to Lewin Crawcour & Co. ((!.)" I'pon payment by W. .\. Robert- son to l^ewin Crawcour & Co. of the full sum of £<■>."> 178. lOd. by tlie InstalmentH aforesaid tlie agreement shall be dei-med completed, and shall thenceforth close and determine, and the said fiirniturp and effects shall become and be the pr<iperty of \V. .\. Robertson; but until the whole of the sqid sum sliall have been paid the said articles of furniture and effects shtill re- main tlie sole and absolute i>roperty of Lewin Crawcour & Co., and are only let on hire to \V. A. Robertson, who hereby agrees to taUe all proper cure of the same during the hiring, and, in case of damage by tire or otherwise, W. A. Robertson will bear the loss or risk." Tlie articles mentioned in the schedule to the agreement consisted of ordinary household furniture. .Soon after the exe- cution of the agreement they vs-ere deliv- ered at Robertson's private residence. t)n the ilth of January, 1n7s, Robertson filed a li(|Uidation petition, iindei which a trus- tee was appointed, who, on the L'fith of February, took possession of the furniture comprised in the agreement of the -J'.itli of November. Ifs77, which was still in oelit- or's house, and remained in possession of it until the lUth of March, 1n7S. when Lew- in Crawcour & Co. took possession of it. Tlie instalments of rent due in lebrunry and .March had not been paid. On the L'Jnd of .March the trustee olitaincd from the court of bankruptcy an injunction re- straining Lewin Crawcour & Co. from re- moving the furniture, and the injunction was coiitiiiued from time to time. On the 30tli of .March the trustee gave notice of an application to the court for an order declaring tiiat the furniture formed part of the property of the debtor divisilde among Ins cieditors. and belonged to the trustee. This application was heard on the L'4tll of .May, ls7.s. On behalf of the trustee it was contended that the hiring ! agreement was void as against him. be- cause it laid not been registered under the Inlls of sale act, ls.')4; and, iiiiireover. that he was entitled to the furniture as beinar, at the conimencenii'iit of the li'iuiilatinn. in the order and ilisposiiion of the debtor, with the consent of the true owners. On the latter point a number of atlidnvits were filed by Lewin Crawcour & Co. to Iirove that there is a notorious custom of I letting furniture upon tiTiiis similar to those of the agreement of the Ltitli of No- vember, 1^77, and it was saiil that this custom excluded the operation of the ro- [luted ownership clause. These ntlldavlts were answered liy a nniuber of allidavits 204 CliAWCOUn, EX PARTE. filpd on belinlf of the triistoo, which denied the cxisteiu'f, or at any rate tlienotoiiety, of any such rustoiu. Tlie voj-istrar held that the agreement oiiglit to have been rcKistered as a l)i!l of sale, and tliat, hy reason of its non-registration, it was void neaaainst the trustee; and on tliis ground, without going into tlie question of order and disposition, he made the oriler asked for, granting a perpetual injunction to restrain Lewin C'rawcr.ur & Co. from in- terfering with the furniture. Lewin Craw- eour & Co. appealed. AVinsIow, Q. C, and Finlay Knight, for appellants, i'ate Lee, for trustee. JESSEL, M. R. :— I cannot concur in the ground of the registrar's decision. Whether it can lie supported on other grounds will be a matter for discussion at a future time. The registrar rested the title of th3 trustee simply on this, that the agreement w us a hill of sale, and that it was void as against the trustee because it was not registered. It appears to me that the agreement was not a bill of sale by Robertson, who is the person by whom a bill of sale must have been executed if it is to be hit by the bills of sale act. Rob- ertson never had any projjerty in the goods. Crawcour & Co., to whom they originally belonged, agreed to let them on hire to Robertson at a rent to be paid by instalments, with this further provi- sion, that, until all the inst/ilnipnts had been paid, the property should remain in ■Crawcour & Co., ;nul that, if any instal- ment should not be paid when it became due, they should be at liberty to retake possession of tlieir own goods, and the in- stalments already paid should be forfeited to them. That does not make the docu- ment a bill of sale e,\ecuted by Robertson, or a license given by hfm to take posses- sion of jiersonal chattels as security for a debt. It is sim|)ly one of the tirnis of the letting for hire and conditional sale of the goods l)y Crawcour & Co. to him. When the liquidation petition was filed, some instalments of the rent being over- due, Crawcour & Co. attempted to take possession c»f their goods. It appears lo me that they were entitled to do so, and tliat there was no reason for granting the injunction. JAMES, L.J. : — I am of the same opin- ion. BRETT, L. J.:— It is said that this agreenientcontains a licenseby Robertson to Crawcour & Co. to take possession of his goods, and that it therefore amounts to a bill of sale within sect. 7 of the bills of sale act. The only way, however, in which Robertson could have any interest in the goods or arj' right to deal with theai was liy virtue of the agreement it- self. It is said that the agreement passed the property in the goods to Robertson, and that by it he at the same time mort- gaged the goods to Crawcour & Co., and gave them a license to seize them. The sole question therefore is, whether the property in the goods passed to Robert- son. In my opinion the property did not pass by the agreement. To hold that it did would be clearly contrary to the ex- pressed intention of the parties. Nor do I think that the property passed by the de- livery of the goods, which was made in accordance with the agreement. In my opinion the property could not pass until all the instalments had been paid, and that has not been done yet. The api)tal was allowed, with costs fixed at S.'M, and the case was referred back to the registrar to try the question of reputed ownership. CROFOOT V. BEXNETT 307 CROFOOT V. BENNETT. (2 N. T. 258.) Court of Appe.ils of New York. Dec. Term, 18-lS. Sylvester Crofoot eiied Bennett in the supreme court in trespass for taking n quantity of brick. On the trial lieforo Willard, J., at tljc Wasliinf^ton circuit in 1S47, it appeare<l tliat Hiirace Crofciot, on tliu :i(l of September, 1S4(;, in consideration of 11 previous indehtedness to and a iii'W advance by tlie defendant, transferred to liiiii tiy writing; all the brick in two kilns previously burnt in Crofoot's yard, sup- posed to be forty-tive thousand, and for- ty-three thousand to l)e taken out of a new kiln which lie was then puttiii;; up. It was stated in the writing tliat the de- fendant had paid for the brick, and that they were to be Kood merchantable brick. On the next day the defendant went to the yard for the purpose of having all the brick delivered to him, and on that occa- sion the lirick already burnt, as well as those unburnt. were pointed out tr) thede- fendant by Horace Crofoot, and thedcfend- ant took possession of the preiuise.s where the lirick were and gave directions about them; but none of thosis in the unburnt kiln were counted out or marked, or set apart from the residue. Horace Crofoot agreed with tlie defendant to burn the unlinished kiln, which he accordingly did. On the (itii of October following Horace Crofoot executed to the [ilaintiff, who was his brother, a bill of sale of all the bricks in such new kiln. On the Sth of the s;nne month the defendant opened tlie Uiln and took therefrom and carried away the (|iiantity wl'ich had been purchased by him out of that kiln, and for that taking the iilaintiff brought this action. .Justice Willard held that these facts made out a good delivery to the defendant on the :.'d and .'!d days of September of the bricks in (lUCBtlon; that as against him the plnin- tiff had no title, and that the defense was made out. The defendant had a verdict, which the supreme court refused to set aside on bill of exceptions, and the ])lain- tiff, after judgment in tlie defendant's favor, appealed to this court. A.T.Wilson, for appellant. J. Parr}', for respondent. STUONU, .1. It is said in the opinion of the supreme court, that the title to the unburnt brick passed to the defendant on the :!(! of September, before they had been separated from the mass in the new kiln, or burnt. In this I taiiik they were wrong, ('hancellor Kent says that when the goods sold are mingled with others, they must be ascertained, designated and separated from the mass, before the prop- erty can pass. It is a fundamental prin- ciple pervading everywhere the doctrine of sales of chattels, that if goods be sold while mingled with others, by number, weight or measuie, the sale is ineompU-te. and the title continues with the seller, until the bargained property be separate<l and identitied. (J Kent's Com. •)9(>.) These rules are fully supported by the authori- ties cited by the chancellor. The reason Is, that the sale cannot apply to any ar- ticle until it is clearly di-^ignated, and Its Identity thus ascertaiaerl. In the case un- der consideration, it couM not be said with certainty that any particular brick belonged to the defendant until they had been separated from the mass. If some of those in an unfinished state had been sjjoiled in the burning, or had been stolen, they could not have bci'ii consid- ered as the [iroperty of the defendant, and the loss would not have fallen upon him. But if the good.-, s(dd are clearly iilenti- lied, then, althou;jli it may be necessary to number, weigh or measure them, in order to ascert;iiii what would be the Iiricc of tlie whole at a rate agreed niion lietwecn the parties, the title will pass. If a Hock of sheep is sold at so much the head, and it is agreed that they shall be counted after the sale In order" to deter- mine the PI. tire jirice of the whole, the sale is valid and complete. Hut if a given number out of the whtde are sold, no title is acquired by the (lurchaser until they are separated, and their identity thus ascertained ami determined. The distinc- tion in all these cases do(>s not depend so much upon what is to be done, as upon the oliject which is to be effected 1-y it. If that is specification, the property is not changed; if it is merely to ascertain the total value at designated rates, the change of title is effected. In this case, the judge who tried the cause did not deride directly that the defendanr hail aciiuired a title to the bricks which lie took before they had been separated. The (juestion was, however, distinctly raised by the plaiiitifl's counsel, and was in effect decided against him. Although the judge erred in that, thejudg- nieiit will not, therefore, be reversed if in Icfjal intcndnieat the error eoulii not in any m;iiiner have prejudiced the plaintiff. It conhl not have had that effect if the plaintiff must still have failed in the suit hid the point been decided in his favor. If the counsel for the plaintiff hail in- sisted that the question of delivery of the brick should have been suliniitted to the jury as one of fact, there was enough in the evidence to have called upon the judge to adopt that course; l)iit this position was not taken liy the counsel; on the contrary, he called upon the jiiilge to de- cide it as a (iiiestion of law. upon facts which were not controverted, and,assui>-.- ing those (acts to lie true, the juilne de- cided that point correctly. The delivery was not simply of the specilic bricks eviiitually taken by the plaintiff, but of the whole with the privilege of selection. The formal delivery of theyard must have been designed by the parties to carry with It the iiossession of the bricks, or it would have been a mere Idle ceremony. The defendant then took possession of tlie whole, and gave directions atiout burning those which were yet in an naliiiished state. It made no difference that such directions were given to one who had an in'erest in a portion of them, and had previously owned the whole. If one sel|i an article, and delivers it. the delivery would be none the less effectual because the vendor happened to be employed to 20^ CROrOOT V. BENNETT. perform somo auditional work upon it, ovon at luH own expense. Anil surely, fIoorl>? UMiy be delivereil by ono to another having an interest in them, althougli the prior possessor may not tJiU't with all bis title to the whole. Uiuler these circum- stances, trespass would not lie at the suit of the vendor, or bis subsequent vendee. Tlie goods being in the possession of an- otlier, the vendee took his title with an implied, if not a positive, notice of the rights of the possessor, to which the in- terest acquired by him was subordinate. In order to maintain tresi)ass, it is nec- essary that the plaintiff sliould have tlie actual possession of the proi)erty, or, an absolute title to it, which gives the right of possession. In this case, while the ac- tual possession was in the defendant, it does not appear that any possession what- ever bad been delivered to the plaintiff; neither had he the absolute property in any of the brick until the defendant had exercised his right of selection. The de- fendant had. therefore, made out a full defense to the plaintiffs action, as was correctly decided by the jud«e; and al- though he may have placed the decision on different and possibly insutlicient grounds, yet, as the judgment was right, it should not be disturbed. JEVVETT, C. J., and BKONSON, J., dis- sented. CROSS V. pi; riCRs. :ii CROSS et al. v. TETERS. : (1 Greenl. 370.) Supreme .Tudiciul Court of Maine. Nov. Terra, 1821. Replevin for n ])ipe of l)riin(ly and divert olhiT Koods. Tlie defendant pleaded that the piiiperty of the Kiiod» \va» in one \\illiiini I'lirker, 1 ruverwin« the pi<i[)erly cif the pl.Miiitiff, on which traverse JHsne wiiH taken. 1 1 wnH admitted at the trial of thiH i.«sne tliat the | roperl y of the^oodH WBH orijrinnllv in the plaintiff, anil so eon- tiiuied nnless altered liy a sale to Parker; tliey havinfi lieen attaelied as his |)r()perty liy the defendant, who was a depnty sher- iff, by virtne of writs in liiH liundH at the sviit of (JnHtavuH Hului and of Benajtnin T. Chase. To prove the debt of Ilolin & Chase the defendant railed Parker as a n itness. who was ohjei-teil to hy the plaintiff's eonnsel as Ix'inK interested, and also as having coiniiiitted a fraud in obtainini; tlieKoods improperly from the plaintiffs for the express purpose of ha vinjr them attached at the suit of Holm and Cltase. Rut the jndfie who presided at the trial of the cause admitted liiiu to testify, it appear- ing that he had not paid the plaintiffs for tlie property. Parker testified that on the tenth or eleventh day of March last he called a: the plaintiff's store, and ])urchased tlie irooils replevied on a credit of four months, wliich he took away on the eleventh of March. Kivin-; no note, and rereivins no l)ill of lliem at that time, thon^rh one of the ]ilaintiffs was present at the dell very, hut too liusy to write one, or to receive u note. He said that the plaintiffs and two other niercliants offered him other coods on credit, which he declineil purchasing; and that lie stopiied payment on the same eleventh day of .March. On liiH cross examination he testified that he had fjiven sundry notes to the <"uml)erland P>ank and to the P)nnk of Portland, amounting to .'Sl'.KM.n.'), a note to John \Villi;ims for ^'.UKI, an<l another to Benjamin T. Chase for $:tl.'i. all of which were indorsed liy Holm, hut none of them were payalile on the 11th .March. He further testified, and it was proved liy other witnesses, that on the day and two days preceding his failure he went to eight different stores in the same town and pur- chased sundry articles of merchandize, all on credit, and for wliicli he was still in- debted; l>uf which he said he inirchased with no oilier view than to trade upon as usual, and that he did not know that Holm knew of these purchases. It was proved that Parker had all sai<l goods carried to his slio|) on the lOtli and Hth i days of March; that (Ui the aftern<ion of j the 11 til which was Saturday, at the ur- gent reipiest of Holm, to which he made some olijections. he gave n note to saiil ! Holm for #Jsl.-).70. this heing the amount, ' as ascertained liy a hasty estimation, ' which Holm had indorsed for him on the i notes aforesaid, none of which were then ! payable; — that at the same time he took up the note he had given to H. T. Clinsel for 5:515, which was indorsed by Holm, ami was not payable, giving inHtead of it his own note, without on indorser, and pay- able on demand ;- that he took no dln- charce, or bond of indemnity from Holm; —that Holm & Chase, the same afternoon, on obtaining said notes payable on de- mand, immediately sued out writs bgainst Parker, and attaihed the whole profierty in his possession, of which the gooris re- plevied were a part ;— that after <'hnse had given up the note indorseil by Holm, and taken Parker's own note in Its stead, lie said to Holm that his own attachment ought to be laid on the gooils first, be- cause he had thus exonerateil lilin from his liability as indorser, to whi<-li Holm assented ; — and that Parker had lieen trans.-icting business at <i loss liefore this time, anil on one occasion appeared dls- turlieil when n person entered his shop after the goods were removed thither, and found him offering tea under its value. The counsel tor the plaintiffs hereupon conteniled, Ist that here was sufiicieiit evi- dence of a conspiracy bet ween Holm and Parker to [irocure the goods for the ex- press purp()Seot their alt acliment by H(dm, for wliicli cause the contract of sale was void, as being n frau<l on the creditors, aiid they might well reclaim the goods: — L'd that if the jury were not sntislled of the '•cir.spiracy, yet If they believed from the evidence that Park-', when he bar- gaineil for anil received the goods, well knew that he was insolvent, antl meant not honestly to pay according to the terms of tlie Cfintract. and thereby Ini- po.st-i! on the plaintiffs, the contract was void for that imposition. Put the judge instructed the jury that though at the time of making the pur- chases from the plaintiffs and others it ap- peared that Parker was insolvent, yet his insolvency, unattended by any mlsrepre- Hentations or falsehood in obtaining the credit, would not render the sale void; and that unless they believed that he ob- taineil such credit with a fraudulent In- tent and secret agreement or undcrstauil- ing wit!) Holm that the gooils should be attached by him to secure his debt, the plaintiffs could not maintain tlie action; but th.it if they believed that the goods were purchased with such Intention and understanding, their verdict ought to be for the plaintiffs. The jury tliereupon re- turned a verdict for the plaintiffs, which was to be set .-islde and a new trial grant- ed if the judge's instructions were errone- ous, or if Parker was improperly admitted as a witness. Todd, for plaintiffs. E. Whitman, for defendant. Longfellow, In reply. MEF-LEN, C. .T. afterwards delivered the opinion of the court, as follows: Two i|uestions are presented for consid- eration; one. as to the admission of Parker as a witness;— the other ns to the opinion deliv.re.l by the presiding justice to the jury. As to the first i|uestlon, the objection seems unfounded —The case finds tbiit the goods the witness purchased have not been liaid for:— He therelorestnnds entire- 212 CROSS 0. FETERS. ly indifferent. He is liable to tlie plaintiffs for tlie pi-ioe of tlie rooiIw, if tliey do not succeed in this action: and will remain liable to Holm if they do succeed. Let this cause be decided either way, one of the witnesses debts must be cancelled an<l the other will I'cniain due and unpaid. To this poiut may be cited the case of Bean r. Bean, 12 Mass. 20. Tlie objection as to interest, therefore fails. But it is urjjed that be is inadmissible on the ground of bis connection with the alleged fraud. In the case in 4 Mass. '!)2, ( Bliss v. Thomi)- soii,) cited by the plaintiffs' counsel, such an (jbjection is considered as of no im- portance. As to the other point reserved, tlie pre- siding justice instructed the jury that un- less they should be satisfied that the goods reiilevied were purchased by Parker pursuant to some secret agreement or un- derstanding between him and Holm, so that they might be attached by Holm for bis indemnity, they ought to tind in fa- vour of the defendant. It is now neces- sary to examine and determine whether that instruction was correct. If not, the verdict must be set aside and a new trial granted. As it appears by the report of the case that no arts or devices were prac- ticed, nor any false representations or pre- tences whatever were made by Parker at the time of imrchasing the goods on credit, or at any other tiir.e by means of which lie obtained the credit ; and as the jury ha ve found that there was no such c(jncert or secret agreement or understanding be- tween Parker and Holm; and as it does not appear that Parker knew, at the time, that he was insolvent, though in fact he was so; the simiiie inquiry is this: " If a man doing business as a trader and in good credit (tliough insolveut at the time, but not aware of that fact) obtains goods oil credit in the town where he lives and is known, without practising any artifice or making any false representations or pre- tences, or in fact any representatioiis or liretences at all; — and removes these goods to his own store openly : Can such vender, upon learning the insolvency and circumstances of the purchaser, reclaim the goods in the possession of the pur- chaser or maintain replevin for them against the attaching officer, on the prin- ciple of his legal right to rescind the bar- gain?" — This seems a clear and fair state- ment of the question. If in the present case the plaintiffs had a right to rescind the contract of sale, it must be on the ground of fraud on the part of Piirker the purchaser ; an<l th<iugh in many instances contracts maj' he avoided by reason of the fraudulent con- duct of one of the parties: and the party attempted to be charged may for that cause be excused from the periormance of his contract ;— yet in eases of the kind un- der consideration, where a vender claims the right of rescinding a contract of sale which has been carried into effect and ex- ecuted on his part by a delivery of the ar- ticles s(dd, it would seem that bis right to rescind must be founded on such a fraud on the part of the vendee as would render him liable to an indictuient; or if not, would at least subject him to an action of [deceit: or In other words, that a vender has not a legal right to rescind a contract of sale and reclaim the goods sold, unless j such fraud was practised in making the I contract, that if the vender did not rescind , it, he would recover damages against the ] vendee for the injury sustained liy that j fraud. — But without advancing any ilirect opinion as to the correctness of this priii- cii;le, it anjiears to us to be clear that it would require as much proof of fraud and false representation to maintain an action against a vendee in the aliove circumstan- ces, as an action against a third person, by wliose fraudulent and false representa- I tioiifi tlie vender was induced to give : credit to the vendee. — Artifice, misrepresen- i tation, falsehood and fraud constitute the j foundation of all such prosecutions. I It may not be useless to e.xainine tlie I subject in l)oth points of view. j In the case we have stated, would an in- i dictment lie against the |iurcliaser'.' i 1. Cheating, at common law, was an in- i dictable offence; but to constitute the of- i fence two things were necessary. First, ; the act must be of such a nature as to I affect the public. Secondly, it must be j such against which common prudence could not have guarded. 1 Ha«k.P. C. i ch. 71. Kex V. Wheatly, 2 Burr. 112."). 2. The statute of 33 Hen. S,ch. 1, made it • an offence to obtain money, goods, etc. by a false token. Though this statute in some respects altered tlie common law, it did not affect those cases against which common prudence would be a sufficient securitv. 3. The statute of 30 Geo. 2, c!l. 1, goes still further and makes it an indictable offence to olitain money, goods, etc. upon a false pretence. Before this last statute was enacted it was not an offence to oli- tain money, goods, etc. by a false pretence, unless false tokens were used. See .\noii.. :G Mod. ]0.">. Queen v. Macarty, Id. 3(11. > Queen v. Orliell. Id. 42. Queen v. Dixon, : Id. 61. King v. City of Chester, .5 Mod. 11. i Queen v. (Jrantbaiu, 11 Mod. 222. Reg. v. j Jones, 2 Ld. Rayin. 1013. ! This statute was never in force in Mas- sachusetts, as we are informed by Par- sons C. J. in the case of Commoinvealtli v. Warren, (i Mass. 72. But the Stat. 1S15, ch. i:3i), contains similar provisions, and Ihere- I fore those decisions which %ve meet with [ in the English books upon the Stat. (ieo. t 2, are applicable to the statute of Ifilii. In the case of Young in error v. Rex, 3 D. & K. us. it is decided that to bring a case i %vithin llie act of Cieo. 2, there must be false [ireteiices or stories, and misrepresen- tations, deceiving and intended to deceive the person with whom the offender is dealing, and fraudulently contrived for I tliat purpose. — Buller J. says, "Barely asking another for a sum of money, is not Isutticient: but soraepretence must lie used, I and this pretence must fce false, and the [intent is necessary to constitute the I crime." — The case of Rex v. Lara, 6 D.«S; E. j 505, sliews the nature of those false tokens I and pretences which are necessary to suyi- port an indictment. — Lara pretended that he wished to purchase certain lottery tickets tea large ainount. He did so, and paid for them by a draft on a certain CROSS V. PETKK* 213 bunker with wliora he said he had fundH, i thoiiK>> nt the time ho Iviww he hud siut.— Tlie court (k-cided tliiit tlic indictment foidd ni't l)e maintained. Lei. Ken.von observed that Larii used notliiiiK hat lii« own UHHertion tt) tjain credit. — "tliat lie Kut down and drew a cliecl< on a lianker; hut it would lie ridifuious to call that a falHe tolcen:— that it left hin credit just where it was before. What tlie dci'ciidnnt dill was lii;;hl.v rei>reliensiideand immoral; hut as he used no false tokens to aetoni- plisli his designs, judgment must bear- rested." Hawk. B. l,ch.71, sect. 2. says that "the deceitful receiving money from one man to anotlier's useupona false ))re;ence of liavinn' a msssa^e and order to that purpose, is not punishable Ijy criminal jiros- ecution, because it is accconipaaicd by no manner of artful contrivance; but wholly depends on a l)are. naked lie." The above-cited else of ('<»mmon wealth '. Warren was decided before the act of Inssachusetts for the punishment of leats v,-ai passed. Had it been in .orce at the time of tlie trial, Warren would probably have been convicted, as he used several false ijretences to obtain eredit l)y means of wliicli his fraud was successful. The case further shews that if another person had been connected with him in tlie fraud, the offence woulci have anioiinted to a conspiracy without any fnls;- pretences; and ini;:lit have been charged and punished as such. — This dis- tinction it is of importance to notice, as it ma.v have a bearing on tlie main (piestion reserved in this cause ; and fortliat reason it may under this head be also remarl-.eil that where two or more conspire to do an iiiila Willi act.tir a lawful act for an nii- hiwful piii|iose, it is a crime; nml the ^ii^t of the conspiracy is the unlawful confed- eracy. Coiiimon wealth v. .Iu<ld iV ;il. 1' Mass. . "51'!). Commonwealth v. Tibbetts & al. 2 Mass. ."):!•;. (Jur ne.\t iiuiuiry is whether, in the case stated, an action of deceit, or an action on the case in nature of deceit, would lie for dnmnne.-^ occasioned by the fraud. — Oar law books must answer the oueslion. Some of the cases relatinji to tliis point are founded upon an alleged fraud and de- ceit on the part of the vender: others on the part of the vendee. — 'I'liose which are grounded upon an express warranty do not come within thernntreof our present view. In .Medina v. StouKliton 1 Ld. Raym. .')!):!, it is settled that pcsscssion is a warranty oi the implied kind, that the goods belong to the seller; for possession is a colour of title, and an action lies upon a bare allirinntion of the possessor that the goods are his own. Itoberts on frauds .'iL';!.— " .\n action npoii the ease lies fora de- ceit when a man does an.v deceit to tlie damage of anoth)>r. Com. Dig. .\ction on tlie case lor deceit A.l." " Kraud with- out damage or damage without irauil gives no cause of action — both must eon- cur." Baily v. .Merrell, :! Bulst. !».-.. l!oh- erts .")2:i. "No action lies against a man for his declaring that a cert.ain person would have given him a certain sum for his farm ; though no such offer was ever maile.— It is a mere ground of estimation with which no prudent man should be nat- Istied;" — but a declaration of the fact that the rent was so much, when it wan not, whereby a purchaser is deceived, will support an action. See lioherts ."i2:i, and the cases there cited. .Many other cases or false or fraudulent representations on the part of the vender might he stated, shew- iiig the principles on which actions for de- ceit maybe maintained against them :— but these are sufficient. It is much more to our present purpose to e.xaiiiiiie thuHe cases in which actions have been support- ed against venilees or receivers of mone.v, tor fraud anil deceit on their part, and the facts necessary to support such actions. In the case of ISullington v. (Jerrish, 15 .Mass. l.'iC. Walker was guilty of gross fraud, and stated a series of falsehoods well calculated to gain him credit, by In- spiring coatidence in his responsibility; — and by means of this fraud and false pre- tence, he succeeded In obtaining credit to a large nnionnt. In Badger v. I'hliiiiey, l.'> Mass. :5.")H. Band, the minor, obtained credit by falsely allirming that he was of full age: and this atlirmaliDn was point- edly made, too. in reply to the iiii|uiries of Badger. Putnam. .1. in giving the opin- ion of till- court says. " the goods were de- livered to the plaiiilin Kand because he undertook to pay for them anddtclared he was of full age. The basis of this con- tract has failed from the fault it not the fraud of the infant: and the fraud which induced the contract, furnishes the ground for the impeachment of it. Thus in the case of Butliiigton v. (ierrisl-. where one purchased goods on credit by means of false representations, it was holden the vender had not parted with his iiroperty. but might maintain replevin against the at tacliiag ollicer." In the case before mentioned of Com. v. W.Miren. the court observed that the man defiauded should s ek his remedy by a> tion. In that instance falsi- and fraudu- lent representations had been made. In till! ini|iortant case of I'asley v. Kreeman, :! 1). & E. ")1, Buller ,J. observes, "The fraud is that the defendant procured the plain- tiff to sell gooils on credit to one whom they would not otherwise have trusieil. by "asserting that which they knew to lie false. Here then is the frauil and the means by which it was coinmitted : — the assertion alone is not sullicient: b.it the plaintiff must go on and (irove that it was false and that the defendant knew it to be so." The action of Basley v. Kree- man was maintained ii|ion the principle that the defendant had been guilty of that fraud and misrepresentation to induce tlie plaintiff to sell goods on credit lo Kalch. which would have mainiained the action against I'aii li if he had hiinseif biH'ii gniltv of the fraud and falsehood.— Buller ,). concludes with observing that "If a man will wickdily asiert that which ho knows to be false and thereby draw his neighbor into a heavy loss he is liable In damages." .\shliuist .l.in delivering his opinion savs " In order to make it action- able it must be averred that t!ie defend- ant intendiui.' to dec-iveand defraud the plaintiffs, did d.reilfiilly enconrnge and persuade them to do the act and for that 214 CROSS V. PETERS. purpose made the falseafflrmation.in con- He(|iience of which tlie.v did act." "If A. Keiul his Mervant to liuy a house, who buys it and pays for it, and the seller affirms to A. that he was not paid, whereby A. pays him ; an action lies. So if a man affirm himself to he of full age, when he is an infant, and thereby procure money to be lent on mortfiase." See ('om. Dip;, action on the case for deceit A. 10. and the authorities there cited; also I?ean v. I!ean, 12 Mass. 20. Numerous other instances of similar imposition and falsehood minht be collected and stated; but it is not necessary, as they are all founded on the same principle, viz. that the money, goods or credit had been ob- tained by means of false and fraudulent assertions of the defendant. We have not been able to find a siiiRleinstance in which an action of this kind has been supported, except where the party charged had suc- ceeded in his plan by false assertions and fraudulent misrepresentations. lii3Chitty on Pleading are a number of forms of dec- larations in actions of deceit — one for sell- ing goods as and for a larger quantity than there was ; — one for selling a piece of land as contaitiing more acres than it did contain; — one for misrepresenting the value or profits of a certain trade; — one lor representing himself as authorized by a third person to do a certain act or re- ceive a certain sum of money; and one for personating the plaintiff In each of these forms there is a strong averment that the defendant made a diiect, false and fraud- ulent rejiresentation of facts, with an in- tent to accomplish his object and defraud the plaintiff; and that by means thereof he had succeeded. We have thus taken a brief review of some of the general principles of law ap- plicable to indictments for frauds and de- ceits, anil to actions on the case brought by the party injured against him who commits the fraud ; whether he is the ven- dee of the goods or his artful and fraudu- lent friend. It a[)pears by the precedents to which we have alluded, that in case for a fraudulent purchase or obtainment of money, the declaration must contain an allegation that the plaintiff was imposed upon by artifice and false declarations — calculated and intended to deceive; and in .'ill the cases which we have cited, the piosecution on civil action wiis maintained or defeated, according as tlie proof aj) peared on trial touching the false and fraudulent represents tions alleged to have been mude by theparty charged : heknow- ing them to be false and deceptive. — Judg- ing, then, from legal fctrnis and ilecdded cases, it seems to l)e settled that deceptive assurances and false representations fraudulently made are essential to thesup- port of an inilictmr'ut or civil action for a fraud committed in the manner above supposed; and of course, tliat such proof is equally necessary to the sui)port of an action of replevin by the vender who claims the riglit of rescinding the sale he has made on the ground of fraud in the vendee. Let us for a moment look at the facts in the case at bar. — Parker, it turns out, was insolvent when he purchased the goods, but there is no proof that he was apprized of thefact;— he bought thegoods on credit in usual form, refusing the offer of further credit from the plaintiffs :— he made no professions or promises; — no rep- resentations or assertions; practised no other art thRii ol)taining the credit with- out disclosing hisinsolvency ; a fact, which it does not appear that he himself km-w. These facts are essentially different from those appearing in the cases we have col- lected and stated; in which it is declared not only that there must have been asser- tions and represencations made— but I they must also have been false: and to I complete the proof the defendant must have known them to be false. Under these circumstances we are not aware of any legal principles on which an indict- ment could be sustained or an action for deceit against Parker; and we do not per- ceive how it is competent for the plaintiffs to rescind the contract they have made and reclaim the goods in this action, un- less upon the ground of concealment, which has been also urged by the counsel for the plaintiffs, and which we will pres- ently consider. —As the jury have decided that no secret understanding existed l)e- tween Parker and Holm of a fraudulent nature relating to this property, we do not see why the rule of law is not appli- cable in this instance, melior est conditio defendentis. The plaintiffs may have l)ecn guilty of negligence or want of due care; but as it regards the question before the court the defendant and he whom he rep- resents seem not liable even to that imi)u- tation. But is is contended by the counsel for the plaintiffs that a vender may rescind a contract of sale on account of fraud in the vendee by concealment of the truth as well as by false assertions and misrepre- sentations; that the consequences are the same and of course the la w is the same. Before answering this argument, it is nat- ural to inquire wherein this concealment consisted. — It is stated by the counsel for the i)laintiff that it was the duty of Parker, as an honest man, to have dis- closed his insolvency to the plaintiffs at the time he ajiplied to purchase the prop- erty The first reply to be given, is, that it does not appear in tlie case that he knew he was insolvent. — He might he sus- picious of it, and he might not be; on that point we have no information. It d( es not appear, then, that he concealed any facts which he was liound to disclose. — If the principles of law respecting this part of the canse were to be carried to the same extent t)y the court .-is they have been in the argument of the counsel, all conlidence in dealing woidd be destroyed, and perfect confusion, as to the title of personal property, would be the conse- (uience. — The vendee would never feel safe in purchasing, nor any other person safe in purchaslcg of him, lest the creditor should afterwards discover that the ven- dee, when he [)uichased, was actually in- solvent, and that those who afterwards bought of him knew of the insohency; and then should come forivard, with a sweeping claim of the property he had sold, on the principle of rescinding the sale for a fraudulent concenlmeut.— But sup- CROSS 0. PETERS. 215 posine; thnt Parker did know of his own insolvency nt the time of Ills contract: wo are perfectly Ha ti.sliod tliat tlie Hale iH not void on tlie Ki'onnd of fiaud becauKelie did not discloKe tlie fact. It is true, the fraudulent concealment by the veniler of a secret defect in an article Hold by liini, wholly unknown to the ven- dee, may be the foundation of an action for daiiiji>j;eH by him HKHinst tlie vender, and perhaps authorize ilio vendee to re- scind the contract on discovery of the fraud; because the law implies a warranty that the Koods or articles sold are of a merchantable <]uality. liilb. Evid. 1S7. Roberts U'£i. IJut we apprehend no case can be found by whicli it has been settled that the law implies anything like a war- ranty on the part of a purchaser that he is a man of property, and sound as to his pecuniary concerns. — In tlie commerce and intercourse of mankind, such an implica- tion was never un<lerstood to exist. It is also true that in the case of policies of assurance tlie concealment of the truth Is nearly allied to misrepresentation. If the fact be material, it uvoids tlie policy. But it is not on the ground of fraud in the concealment that the contract is void ; be- cause if tlie concealment be the effect of accident or mistake, net;lif;ence or inad- vertence, It is equally fatal to the policy as if it were intentional and fraudulent. — See Marshal, 347, and cases there cited. But it will be difficult to find a case where a policy was declared void, because the assured, when the policy was effected, was insolvent and yet concealed that fact:— still the reasoning of the plaintiffs' counsel seems to leail to the conclusion that the [lolicy would In such a case be void b'jcause the assured was insolvent and unable to pay the note he ha<l Riven for the premium.— We apprehend no Cfinclu- sion can be drawn from these principles of ttielawof insurance unfavourable to those on which we place the decision of this cause. We have before stated that there miKht be a conspiracy between two or more to obtain goods or money from another without any false pretences, etc. and which would he punishable as a crime. In reference to this principle of law the jury were instructed that if they believed such conspiracy or secret urrangement existed between Parker and Holm, though I there were no false pretences or rejiresen- tations, they ought to find a verdict for the plaintiffs, but not otherwise. It is to be lamented. If the plaintiffs have lost tlieir property by reposing confidence where it was not deserved; but this If not a circumstance for our consideration in the decision of the cause. On the whole, after much thought and the most careful examination, we are sat- isfied with the correctness of the liistnic- tions which were given to the jury; that the motion for a new trial must be over- ruled, and that there be an entry of judg- ment according to the verdict. CUNNIXGIIAM 0. ASHBUOOK. .'17 CUNNINGHAM v. ASHBROOK et al. (20 Mo. 553.) Siiprciui: Court of Missouri. March Term, 1855. Acti(jn Ity one Cunningliani UKiinRt AHlibrook and otIierH for the price of eer- tulii lioKN. .Ju(l;j;iueut of Doiisuit, and plaintiff liriiiurH error. At tli(! friiil, lipfore a jury, it appeared tliat defendants were onKaKi'd iu slui)t;li- terinn ami packing liogH for tlieniHelveM, and al.so sImukIi terinK f(jr other i)ackerH. Tlie.v had an arrauKeinent with one .\lc- .MliHter and one W hitaker, wlio were pufkers, that eueh should have one-third of all the hoRH KlaUKhtered hy them, de- fendants attendiim tt» the huyiog and the slauKhterine:, for the sale of the offal. I'laintiff'n Iio-^h were l>ou;^ht liy a [lernon who honyrht hoK« for defendnnts, and oceaHionally for the other two |)a<'kers, and who leHtitied that in Ijuyini; these liojiH he did not know wlio would take then). The lions were taken todefendants' slaughter hou.-'e, and There killed, and de- fendants notified plaintiff to call next day at the paekinji liouHe of McAllister, who would take the hotrs, to see them weiuhed and set his pay. That night, however, the Hianghter house and the liogB were de- stroyed hy fire. It was in evidence that it was customary for licjgs to Le weighed at the packing house, in the presence of the seller, who then received his [lay, and one witness testified that by custom the seller's ownership continued till the hogs were weighed. The lower court gave the following instruction: "If the hogs were sold liy net weight, to lie ascertaineil by weighing the lio^s after they were slaugh- tered and clcaiied. and not to be paid for until so weighed, and the hogs wei-e de. stroyed by an accidental fire before they were weighed, then the loss falls upon the seller, unless he shows that the parties In- tended the sale to lie absolute and com- plete before the weighing. Clover iSt Kichardson, (with whom was 0. C. Woods,) for plaintiff in error. J. A, Kasson, for defendants in error. LKONAHl), .J. The only things essen- tial to a valid sale of personal property at couunon law were, a proper subject, a price, and the consent of the contracting parties, and when these concurred, the sale was complete, and the title jinssed withoiil anything more. (2 Black. I'oni. 447; i!l<ixam v. Sanders. 4 liarn. & (."res. 'J41.) The term sale, however, in its lar- gest sense, may include every agreement for the transferring of ownership, whether immeiliate or to lie completed afterwards, and goods, in reference to the disposition of them by sale, may be consiilered as ex- isting separately and ready for immediate delivery, or as a part (>f a larg"r mass from which tliey ninst be separated hy counting, weighing or measuring, or as goods to be hereafter procured and sup- plied to the buyer, or to be manufactured for his use. (ioods of the tirst sort are the only jiroper subjects of a common law sale, which is strictly a transaction oper- ating as a present transfer of ownership, ami does not include executory contractH for the future sale and delivery of personal property, although there are some ap|>ur- eutly anomalous eases In our books in which transactions in reference to g(iod8 to be separated from a mass seem to have heeu treated, where there had been a con- structive deli very, as valid sales, producing a present change of property. The general rule, however. Is otherwise, and all the different soits of goods to which we have referred, except the tirst. are. under our law, the proper sulijects only of executory agreements — contractu for the future sale and delivery of them. The Iloman law, however. It Is said, dealt differently with this suliject. In that system of jurisprudence (Hell on Con- tract of Sale, 'J, ) "a sale was not an im- mediate transmutation of property, liiit a contract of mutual and personal engage- ments for the transference of the thing on the one hand and the payment of the price on the other, without regard to the time of performance on either part, that being left to be regulated by the agreement of the parties, the seller being liound to de- liver the thing in jiroperty to the buyer at the time agreed on, ami the buyer to pay the price iu the manner settled between them. The distinction was carefully cili- served bet ween the direct right of prop- erty (jus in re) conferred liy delivery, and the indirect right (jus ad rem) to demand of the seller delivery of the thing sold. There tlius arose out of the contract the donlilc relation of delitor ami creditor, as to llie thing sold and the price to lie paid for it. Corresponding with these rela- tions, two actions were given, both |ier- sonal and direct; one for the thing sold, the other for the price due. 'I'he claim for the price being alisolute on delivery or tender of tlie thing and the demand for the thing conditional, iirovided it had not in the meantime perished without fault of the seller. " Thus, it is seen, a Homan sale was applicable to all the possible circum- stances in whicli goods to lie transferred coulil be found, end the respective engage- ments of buyer and seller ( under such a transactinn,) were specifically enforceil l>y the appropriate actions. Although at common law consent alone wassullicient to constitute a valid sale, the statute of fraud has now intcrveneil and other formalities, ore prescribed, which must be observed or what was be- fore a valid transfer of property is now of no validity. Thest.-itute, lieginning wliere the common law stopped, reipilies some one of these solemnities to lie adde<l to the transaction before it shall be considered as complete, so as to effect a change of ownership; and tlie matter here relied up- on, as the statute evidence of the comii'.e- tion of the contract, was the change of possession. This provision of tin- statute implies it is saiil a delivery nf the tliina sold on the part of the debtor, and an ac- ceptance of it liy the luiyer, with an inten- tion on the one side to part with, ami on the other to accept the ownership of it ; and it is not enough that the mere nat ural, actual, curporenl possession sliould 218 CUNNINGHAM v. ASHBIIOOK. be chunsed, but there must be a chanire of the civil possession, wlik'li is a holding of the thing with the design of keeping it <is owner; and this brings us to an exam- ination of the instruction complained of, and which resulted in non-suiting the plaintiff. The proof given shows (or. at least, conduces to show, which, for the present purpose, is the same thing,) that the thing sold had been delivered in point of fact to the bu.ver, and the true question in the cause, (indeed the only one that could be raised,) was, whether this cliange of actual possession was also a change of the civil possession; or in other words, whether the hogs were delivered and re- ceived by the parties respectivel.v, with the intention of changing the ownership. If the facts were so, tlie sale was perfect, the title passed, and the loss fell upon the new owner. It is to be remarked that this is the sale of a specitii- commodity, the whole drove, and not of a part, to be ascertained by counting out the required number, and therefore, the title passed as soon as the bargain was completed by the delivery. It was not a transaction in relation to the sale of part of a mass, which could not take effect as a present sale, immedi- ately changing the property, until the sep- aration was iictually made; and it is pos- sible some confusion may have arisen liere by not dearl.v distingui^ihing between the sale of a specific commodity, clearly sep- arated and distinguished from all others, as a specific drove of stock, and of an in- definite commodity, as a hundred barrels of corn out of the party's crib, or a liun- dred mules out of his drove, when the seller is bound to separate and identify the particular part sold, l)efore it can pass in property to the purchaser. Nor is there any objection to the valid- ity of this transjiction as a present sale, growing out of the supposed uncertainty as to the price. Although there is no sale until the price is settled between the par- ties, .vet it is settled, within the meaning of this rule, when the terms of it are so fixed thut the sum to be paid cnu be ascer- tained without further reference to the parties themselves; and, indeed, by the common law, the price is fixed within this rule, even when it appears that parties have agreed that it shall be the reasona- ble wcjrth of the thing sold, leaving it to the tribunals to ascertain the Jimouiit, if they cannot agree upon it themselves. (Bell on Sales, IS-20; Acebal v. Levy, 10 Bing. 3.S2.) This, then, was a present agreement be- tween these parties for the sale of a spe- citiccommodityfor a price settled between then), so as to be capable of future ascer- tainment, without further reference to themselves, and we repeat, immediately passed the title to the buyer, if the cere- mony of delivery required by the statute of frauds was complied with, and there having been a delivery in fact, the whole question was, as before remarked, with what intention that delivery was made, whether merely that the hogs might be weighed, neither party being bound in the meantime by what had passed between them, or as the formal completion of the bargain to bind the parties and vest the ownership in the purchaser. We Clime now to an examination of the instruction complained of, the substance of which is, that If the hogs were sold by net weight, to be ascertained by weigh- ing after they were slaughtered and cleaned, then the presumption that the sale was completed by the delivery is met and repelled, and the loss falls on the plaintiff, as owner, unless he shows that the parties intended the sale to be com- plete upon the delivery. The jury would, no (loul)t, have so understood the direc- tion, when they came to appl.v it to the case, and such, too, we suppose, was the meaning of the court ; but we do not con- cur in this view of tlie law. Certainly, this circumstance was jiroper for the jury up- on the question of the intention of the parties in changing the actual possession, and might have afforded a very proper topic of comment to counsel, in arguing the question of fact before them; but we do not think anj^ well considered case has gone the length of declaring that it changed the strong natural presumption to be derived from the actual delivery of the property, and imposed upon the other party tlie necessity of showing that "the parties intended the sale to be absolute and complete before the weighing," and we feel well assured that there is no prin- ciple upon which this position can be maintained. We find it fre(iuently repeat- ed in the books, that when anything re- mains to be done by tlie seller, such as counting, weighing or measuring, the title does not pass; and thi9 is certainly cor- rect, when this operation is necessary in order to se|)arate the goods from a larger mass, of wiiich they are a part; but that is not this case, and we think that by keeping the distinction between a specific and an indefinite commodity in view, most of the cases upon this subject can be ex- plained, and their apparent conflict recon- ciled. It is also certainly true that, in de- termining the question as to th(( purpose of the parties in changing the actual pos- session, the fact that the price is to be sul)sequently ascertained by reference to the net weight, and then paid, is proper to go to the jury; but possession is so much of the essence of property, as it is that alone which enables us to enjoy a thing as pro[)crty, and the natural con- nection between property and po.-isessiou, es|)ecially in movables, is so strong, that the presumption arising from a change of actual possession, that it was intended also as a change of the property, is not, in our view, overcome, as a matter of law, by the fact here relied upon, that the thing bargained for was to be paid for by weight, to be ascertained after the deliv- ery. Weshall content ourselves by a reference to a few cases whidi we consider directly in point, in support of the position we have taken. Scott v. Wells, (6 Watts & Serg. 8G8,) was a case of the sale of a raft of lumber at twelve dollars per thousand feet, to be ascertained by measui-ement. There had been a delivery, and the raft being lost by a freshet, the question was, CUXXIXGIIAM V. ASIinilOOK. •il!) wlictlicr thn property [)asHeil so aH to cast the lowH upiin the buyer. The court lie- low instructed tliejury that " [jarfieH muy tnake a Hale of koocIh ho as to i>aHH the property by the actual delivery thereof, without (irnt fixing the quantity upon which the price is to be computed," and the Hupienie court approved of the direc- tion, .luiliic (iibson remurkiiiii. "that a Kale in imperf(ct only when it in left o|ien for the addition of terniH iieceH-<ary to complete it, or where it is defective in come indispensable ingredient, which cannot be supplied from extrinsic sources. I'ut wiien possession is delivered pursuant to a contract w hich contains no provision for additional terms, the parties evince, in a way, not to be mistaken, that they sup- pose the liart;ain to be consummated. " Macomber v. I'arker, (ll! Pick. ]N'.', ) was a sale of a (luaiitity of brick in a kiln at a certain rate per thousand, to be aHcer- tained by counting;, and the court, in de- liverinu its opinion, says: "it is true the bricks were to be counted, but that was to be done lo enable the parties to come to a settlement of their accounts, and not lor the purpose of completing the sale. TakiuK the whole of Iluntin^'H testimony together, this we think is the reasonalile Inference to be drawn from it. If the bricks had been actually delivered, there could have been no question that the sale would have l)cen coni|)lete, notwithstand- ing the bricks were to be afterwards counted. The fieneral princi|)lo is, that when an operation of weight, measure- ment, counting or the like, remains to lie Iierformed in order to ascertain the price, the quantity or the particular conimodit.v to be delivernd, and to put it in a deliver- able state, the contract is incornplcte, un- til such operation is performed. (Ilrown on Sales, -14.) Hut where the goods or coniiuodities are actuall.v delivered, that shows the intent of the parties to com- plete the sale b.v the delivery, and the weixhins, or measurinp; or couutiuK after- wards would not be considered as iiny part of the contract of sale, but would be taken to refer to the udjustmenr of the liaul settleiriCnt as to the price. The sale woulil be as ct)mplete as a sale upon credit l)ef(ire the actual payment of the l)rice. .N'othiiijj can be found in any of the numerous cases on this point, which militates a^iainst this j)osition." The remaiks of the same court in Kiddle V. Varnum, (20 I'ick. 2s:J-i,) to whic-h we have been referred by the counsel for the respoudeiitH are not intemled to conflict with what hail been previously determined, but expressly allirin that decision. It is true the court say that "the party aflirminK the sale must sntlMfy the jury that it was intended to be an absolute transfer, and all that remained to be done was merely for the purpose of ascerlain- lUK the price- of the articles sold at the sjleaKreed upon." .\nd of this there can lie no doubt, l)ut yet th<i t is a not tier for (he jury, and it is not intiinateil in this case that when there is an actual delivery, the jury cannot lie alloweil to Infer such Intention without some additional evi- dence. These questions Renerally arise when the thin;; Hold has perisheil, and the con- test is uiion whom the loss shall fall, and it may not be improper here to rem-irk that, not withstandiiiK the marked differ- ence between a Itoman and common law sale, in other [larticulars, when a loss oc- curs, it falls upon the same person uniler either system. I'nij?r our law, the maxim is that the owner liears the loss, a rule. It would seem, of universal a|iplira(ion, res lierit domitio. Pad'-r the Koman law, the debtor of a speciHc tliiim was not answer- able for its loss, when it iierished In his han<lH without fault, and when there had been a purchase of a specillc commodity, ulthouixh the [)roperty was not clianued U[itil delivery, the seller, by the bargnln, became (lel)tor to the b'lyer of the partic- ular thing liought. ami st) not liable if it perished without fault. We repeat what we have liefore said. It is a question for the jury. If the delivery were tor the purpoi;e of passing the prop- erty, it had that effect although the price was t<i be afterwards iiscertained and paid according to net weight, and there is no rule of law that, under such circum- stances, the presumption arising from the delivery is met and repdied. and that other evidence becomes necessary in or- der to make out a pritna facie case of n present sale. The seller has a right, not- withstanding the bargain, to retain his property till he is paiil, unless lie ngrtH's to allovv the p'Tchaser a credit (the bar- gain fiir an immediate transfer of prop- erty implying a present payment of the price,) anil hence, when there Is no under- standing as to the time of payment other than wliat is implieil In the postponement of it until the i)nanlity of the thing sold is a.scertained in the manner Indicated In the contract, this circumstance is certainly en- titled to consideration with the jury, in determining the character of the delivery, which, if Inteaded to pass the thing in property, deprives the seller i>t his security upon it for the price. at Ihesametlme that it throws upon the buyer the future risk. The judgment is reversed, and the cause remanded. CUSACK V. ROBIXSON. 221 CL'SACK et al. v. ROKINSON. (1 Best & S. LfJO.) (Jihcirs Hciicli, Trinity Tcriii. May 2."., ISf.l. Dpcliirallon tnr Koods Bold anil dcliv- t'ri'd.atid Koodx liiirKulnccI uiidKuld. I'lea, never indebted. At the trial before lilack- biirii. J., at the Liverpool win ler uHHizeM in iNOd, it appeared that the defendant, who was a London merchant, on the LMth Oc- tolier. IMIO, at Liverpool called on the plaintiffs, who are importers of Canadian prodnee. and Haid he wanted to liuy from 150 to I'Ul) 111 UiiiH of Canadian hatter. He then went with one of the plaintiffs to their cellar, where he was Rliewn n lot of I'll! (irkins of butter, "e.\ liidieniian, " lie- loPKin^ to the plaintiffs, which he then had the opportnnity of inspecting, and in fMic he did open and inspect six of the fir- kins in that lot. After that e.samination, thi'.v went to another cell;ir to see other liutter, which however ilid not salt the defendant. At a later period of the same (lay (he plaintiffs and the defendant made a verbal agreement by which the defend- ant agreed to biiv that K|)ecilic lot of !.")(; firkins at 77s. per cwt. When the jirice had been agreed on. the defeniljint took a card o!i which Ids name and aildress in London were written, "Mdnnind Itnbin- Hon, 1 Welliimton Street. London I'.ridKe, London," and wrote on it " l.'iCilirkins but- ter to be delivered at Kenninjt's Wharf, Tooley Street." He nave this to the plain- tiffs, and at tlie same time saiil that Ids asents Messrs. Clihborn, at Liverpool, woidd Kive directions how the couds were to be forwarded to Kenninjj's Wharf. The ])laintiffs by Cliliborn's directions deliv- ered the l)iitter to Pickford"ri carts to be forwarded to the ilofendant at Fenninu's Wharf. The plaintiffs sent an invoice dated the -.'.jth October, IscO, to the ad- dress on the defendant's card. They re- ceived in answer a letter purporliny; to come from a clerk in the defend an fsotlice, acknowledKiUK the leceipt of the invoice, and statiiiK that on tliedeiendant's relnrn he would no doubt attend to it. There was no evidence that the writerof this let- ter had any authority to sisii a memoran- dum of a contract. On the".'7th October the plaintiffs in J>iverpo(d received a telejiram Irom the defendant in London, in effect assert ins that the butters had lieen sold b.v the plaintiffs subject to a warrant.v that was equal to a sample, but that they were not ei|ual to sample, and therefore would be returned. The plaintiffs replied b.v telegram that there was no such war- ranty, and they must be kept. \ clerk at FenninH:'s Wharf ))roved that .Messrs. Fenninsfs stnreil noods for their custom- ers, and had a but ter warehouse : that the • lefeuilant hn<l used the warehouse for fif- teen .years, and was in the habit of keepini; his butters there till hes.dil them. On the L'tUh Oct(d)er I'ickford A: Co. had delivered a part of the l.'iC lirkins in (luestion at the warelutuse, and delivered tlie residue on the morninu of the l^th October. The witness could not say whether an.v one eaine to inspect them or not. but he proved that they were delivered up by Kenidng to I'icUford iV- Co. under a delivery orderlioiu I the defendant dated l.'7th October. Th* 1 defendant's counsel ailndtted that it iniiHt I be taken that the sale was not subject to any warranty; liut ol.j(cted that the j price of tlie Koods exceeded £10. nnil that I there was nothiiiu proved to satisfy the ■ reiiuisitions of the statute of frauds. The ■ verdict was entered tor the plaintlfTs for t:4-J0 Ids. Id., with leave to the defendant to move to enter a nonsuit. It tin re was no evidence proper to be lett to the jurv either of a memorandum of the contract or of an ueceptanee and actual receipt of the goods. I In Hilary term. IstJl, Kdward James ob- ' tallied a rule nisi. Mellish and Cjunin shewed cause. Mil ward, in support of the rule. BLACK BFRN, J. (After fully stntlnj: tlie facts Ills lordship proceeded.) It was not contended that there was any sulli- cieiiL memorandum in writiuK in the pres- ent case; but it was conteiideil tliat there was sulRcient evidence Hint the defendant had accepted the woods sold and actually received the same; and on cousiderution we ;ire of that opinion. The words of the statute are express that tliere must be an acceptance of Hie {foods or part of them, as well as an actu- al receipt; and the authorities are ver,- nuiuerous to shew tlin t both these reigui- sites must e.\ist. or else the stntiito Is not satisfied. In the recent case <if Mcholsoii V. liower.i wlii.-h was cited lor the de- fendant. 141 (|uarters of wheat were sent b.v a railway, addressed to the vendees, 'i'hcy arrived at thi-ir destination, and were there wan-housed by the railway eompan.v under circumstances that initflit have lieen held to put an end to tlie un- paid venilor's riirhts. I'.ut the contract was not orijrinally a sale ofspecillc wheat, and the vendees had never agreed to take those particulari|uartersof wheat: on the coiitrnr.v it was shewn to lie usual, before acce|)tiiiK wheat thus warehoused, to compare a sample of the wheat »vith tlie sample by which it was sidd , and it ap- peared that the venilees, knowini; tliat they were ill embarrassed circuiiistances. purposel.v abstained from acceptiim the goods; and eacli of the judges mentions th'it fact us the ground of their decision. In .Meredith v. .Meigli- the uoods, which were not specilied in tlieori;;iiial c<iiitract, had been selected by the viMidor ami put on lioard ship by the directions of the ven- dee, so that they were in the hands of a carrier to convey them from the vendor to the veiiilee it was there held, in con- formii.v with Hanson v. .Vrmitage,-' that the carrier, th-iiiirh named by the vondeo, hail no ;iuthority to accept the soods. .\iid in this we (julte aiiree; for though (he selection of the i;oods by the viMidor. anil putting them in transit, would but for the statute have been a siitllcient deliv- ery (o vest the property in the vendiH>. it coulil not be said that (lie selection by the vendor, or the receipt by the carrier, was '1 E. & E. 172. "2 E. & B. au. '5 B. & Al.l. 5o7, 222 CUSACK V. ROBINSOX. fln aecei)tance oi those particular goofls hy tlip vendee. In BaUloy v. Parker,* which was inucii relied on i).v Mr. Milward in arf;iiing in support of this rule, the sround of the de- cision was that pointed out l).v Holroyd, J., who says (p. 44): "Upon a sale of specific goods for a specific price. Iiy part- ing with the possession the seller parts witli his lien. The statute contemplates such a parting with the pussession ; and therefore as long as the seller preserves his control over the goods so as to retain his lien, he prevents the venilee from ac- cepting and reieiving them as his own within the meaning of the statute." The principle here laid down is, that there can- not be an actual receipt by the vendee so long as the goods continue in the posses- sion of the seller as nii])aid vendor so as to preserve his lien ; and it has been re- peatedly recognized. But though the goods remain in the personal possession of the vendor, yet if it is agreed between the vendor and the vendee thattheposses- sion shall thenceforth l)e kept, not as ven- dor, but as bailee for the purchaser, the right of lien is gone, and then there is a sufficient receipt to satisfy the statute. Marvin v. Wallis.s Beaumont v. Bren- geri.B In both of these cases the specific chattel sold was ascertained, and there appear to have been acts indicating ac- ceptance subsequent to tlie agreement which changed the nature of the posses- sion. In the present case there was ample evi- <lence that the goods when placed in Fen- ning's Wharf were put n])der the control of the defendant to await his further di- rections, so MS to put an end to any right of the plaintiffs as utipnid vendors, as much as the change in the nature of the possession did in the cases cited. There was also sufficient evidence that the de- fendant had at Liverpool selected these specific 15(i firkins of butter as those which he then agreed to take as his property as the goods sold, and that he directed those specific firkins to be sent to London. This was certainly evidence of an accejitance ; and the onl.v remainingquestiou is, wheth- er it is necessary that the acceptance should follow or be contemporaneous with the receipt, or whether an acceptance before the receipt is not sufficient. In Saunders v. Topp,'' whi(di is the case in which the facts approach nearest to the present case, the defendant bad, accord- ing to the finding of the jury, agreed to ' 2 B. & C. 37. > 6 E. & B. 726. "5 C. B. 301. '4 Exch. 390. buy from the plaintiff forty-five couple of sheep, which the defendant, the pur- chaser, had himself selected, and tlie plain- tiff had by his directions put them in the defendiinl's field. Had the case stopped there, it would have been identical with the piesent. But there was in addition some evidence that the defendant, after seeing them in the field, counted them, and said it was all light ; and as this was some evidence of an acceptance after the receipt, it became unnecessary to decide whether the acceptance under the statute must follow the delivery, Parke, B., from the report of his observations during the argument, seems to have attached much im[)ortance to the selection of particular sheep by the defendant; but in his judg- ment he abstains from deciding i>n that ground, though certainly not expressing any opinion that the acceptance must be subseiinent to the delivery. The other thri'c barons — .\lderson, Rolfe, and Piatt — express an inclination of opinion that it is necessary under the statute that the'ac- cfptance should be subsequent to or con- temporaneous with the receipt; but they expressly abstain from deciding on that ground. In the elabijrate judgment of Lord Campbell in Morton v. Tibbett,^ in which the nature of an accejitjince and actual receipt sufficient t<j satisfy the statute is fully expcunded, he says (p. 434) : "The acceptance is to be something which is to precede or at any rate to be conteni- I)oraneous with the actual receipt of the goods, and is not to be a subsequent act after the goods have been actually re- ceived, weighed, measured, or examined. The intention of the legislature seems to have been that the contract should not be good unless partially executed; and it is partially executed if, after the vendee has finally agreed on the sjjecific articles which he is to take under the contract, the ven- dor by the vendee's directions parts with the possession, and puts them under the control of the vendee, so as to put a com- plete end to all the rights r)f the unpaid vendor as such. VA'e think therefore that there is nothing in the nature of the en- actment to imply an intention, which the legislature has certainly not in terms ex- pres.sed, that an acceptance prior to the receipt will not suffice. There is no deci- sion putting this construction on the statute, and we do not think we ought so to construe it. We are therefore of opinion that there was evidence in this case to satisfy the statute, and that the rule must be dis- charged. Rule discharged. ' 15 Q. B. 428. GUSHING V. BKEED. 225^ GUSHING et al. v. BREED et al. (14 Allen, 37G.) Supreme Judicial Court of Massachusetts. Jan. Term. 1807. Contract to recover the prlceof SOObuah- eJHofontH Rold and delivered. The nn- Hwer admitted the sale and delivery of 10.5 Inisliels, and offered judKinent for the price thereof, and denied the residue. It ap- ))t'ared that the i)laintiff8 wereownerH of n car^o of oatH, wliien. on being vvei;;hed. was found to contain G,OU.J bushels, and was stored in the Merchants' (Jrain Kle- vntor in lioston, which belonged to per- sons whose business it was to receive, elevate, store, weiuli, and deliver K''ai>i- The plaintiffs thereafter agreed to sell to the defendants .")00 bushels thereof, and de- livered to them the following order upon the i)roprietor8 of the elevator, dated June 2;i, lMi4: " I'lease deliver Breed & Co.. or order, .'lOO bushels of black oats from cariro, per schooner Seven Brothers, storage commencing, to the person or persons in whose favour this order is drawn, .Inne L".), 1SG4." This order was l)rcsented on J nne U'5, 1><(')-}. and accepted in the usual manner. 'I'he order was en- tei-ed in the booUs. and on the same day 10.') bushels of the oats were delivered to defendants, and before ,Iuly a. lS(i4, the whole cargo had been sold and delivered (in<l removed from the elevator, except 1,L'74 bushels, w!)icli included the 30.") bush- els agreed to be sold to the defendants. On tiie .")tli of July a lire occurred, which rendered the oats which remained in the elevator nearly worthless. It was the general usage of dealers in grain in Bos- ton to ()lace large ijuantities of grain in elevators, where the same remained until sold, by orders given to the purchaser, and after such sale it was removed from the elevator or kept therein, at the elec- tion of the purchaser, .\lter the accept- ance of such order by the proprietors of the elevator, the grain covered thereby was treated by them as tho i)roperty of the puchaser; the vendor had no further control over it, but the proprietors held the same subject to th^- order of the i)ur- chnser. received orders from him in the same manner as fioni the original vendor, or weigheil it out to him as he required, they guaranteeing to ileliver out the full number of bushels weighed into the ele- vator, charging him with storage. Differ- ent cargoes of the same (juality, belong- ing to different owners, were sometimes mingled in the bins, (.rain so bought was paiil for without regard to whether or not it had been separated and removed from the elevator, and all damage to grain so sold, from internal causes occur- ring after the delivery of the order, was borne by the purchaser. All the aliove usages were known to the defendants, but they objected to the evidence to prove the same. The judge ruled that there was no such change of title to the grain, except as to the 10.") bushels actually renioveil by the defendants from the elevator, .-is to make the defendants liable, and fouml that the plaintiffs were only entitled to re- cover the price agreed for the 10."> bushels, i..\\v .s.\i.i-:d — 15 with interest. The plalDtlffs alleged ex- ceptions. W. Gaston and W. A. Field, for plain- tiffs. C. B. Goodrich and I. J. Austin, for defendants. CHAPMAN, J. The use of elevators for the storage of grain has introduced some now methods of dealing, but the rights of parties who adopt these methods must be determined by the principles of the com- mon law. The proprietors of the ele- vator are the agents of the various par- ties for whom they act. When several parties have stored various parcels of grain in the elevator, and it is put into one mass, according to a usage to which they must be deemed to have assented, they are tenants in common of the grain. j Each is entitled to such a proportion ai* the (|uantity placed there by him bears to I the whole mass. When one of them hcIIh a certain number of bushels, it is a sale of property owned by him in common. It is not necessary to take it away in order to complete the purchase. If the ven<lor gives an order on the agents to deliver it to the vendee, and the agents accept the order, and agree with the vendei' to store the property for him. and give him a I receipt therefor, the delivery is thereby 'complete, and the projierty belongs to the I ■vendee. The venilor has nothing more to do to complete the sale, nor has he any I further dominion over the property. The I agent holds it as the property of the ven- I dee, owned by him in common witli the [Other grain in the elevator. It Is elemen- tary law that a te'uint in common of per- sonal property in the hands of an agent may sell the whole or any part of his inter- est in the property by the method alpovc stated, or by any other niethoil equivalent toit. Actual separation and tnkingnwny are not necessary to (M)mplete the sale. As to tlie property sold, the agent acts for a new principal, and holds his |)roperty for him. Tlie law is the same, whether the proprietors are numerous or the ven- dor and vendee are owners of the whole. If the vendee resells the whole or a part of what he has purchased, his venilee may, by the same course of dealing, become also a tenant in common as to the part which he has bought. I This is not like the class of sales where the vendor retains the possession. li.fauBP there is somethini; further for him to do. ' such as measuring, or weighing, or mark- ing, as in Scudder v. Worcester. II CuMb.-l'S: 1 nor like the ca.se of Weld v. Cutler. 2 tJray. VX>, where the whole of a pile o: coal wnt# delivered to the vendee in onler that he might make the separation. But the property is in the hands of an agent: and , the same person who was the agent of the i vendor to keep, becomes the agent o( the vendee to keep: and the possession of the ' agent be<on;es the possession of the prin- cipal. Hatch V. Bayley, 12 Cush. 27. and cases cited. The tenancy In common re- ! suits from the method of storage which has been agrec.l upon, and supersedes the necessity of measuring, weighing, or sep- aratingthe part sold. No delivery Is necessary to a tenant la 226 CnSIIING 0. BHKKD. common. Beaumont v. Crane, 14 Mass. 400. Upon these principles, the plaiiitiff.s are entitled to recover the amount dne them ior the property thus sold and delivered to the defendants. The damage occa- sioned to tlii.s property hy the fire must he borne Ity tlie defendants, as owners of the proi)erty. Exceptions sustained. I DAVIS V. RUSSELL. 229 DAVIS V. RUSSELL et al. (52 Cal. Gil.) Snnii'Mio ('ourt of (California. .Tan. Term, 1S7S. B.vcra & Elliot and Hewpll & Turner, for iippolluiits. Terry, MoKinne & Terry, IJiidil \- Suu, ami F. T. lialdwin, for re- n[> lent. l!Y THE COl'I'.T. Davi.s Ix'inR the owner of a lot of wheat, deposited it in the warehouse of Kiisseli, tool; a ware- iiouse receipt for it in the nsuul form. an<l tliereafter indorsed the same in blank and delivered it to liarney. Barney trans- ferred the receipt to the Bank ot Stockton, and the hank transferred it to a i)erHon not a party to the action, and the wheat was afterward delivered liy Knwsell to the licdder of the receipt. Tlie hank was noti- lied hy Davis that he had not sold the wheat to Barney, luit the witnesses do not aurce whether the notice was l)ef<>re or after the hank transferred the receipt. Before the wheat was delivered to the Irolder of the warehouse receipt, Davis ina<le a demand upon KtiRsell for a deliv- ery of the wlieat, hut Russell refuseil ho to <!o unless the receipt was returned to him. Davis claims tliat Barney was only his a;ient for the sale of the wheat, and that he — Barnej' — transferred the receipt to the bank as security for an antecedent debt due from him to tlie bank. The <lefend- ants claim tliat Barney purchased the wheat from Davis, tliat iie transferred the receipt to the bank not only as security for an antecedent debt, but also for fur- ther advances, which were afterward made, and that the transfer hy the bank was prior to the time wlien it was notified tliat Davis had not sold tlie wheat to Barne.v. The jury found for the plaintiff. The court was recinested by the defend- ants to Kive the foUowinjr instruction: "The possession of theinstrumeut in writ- ins; produced in evidence, dated Aujjust iNtli, INT."), and called n warehouse receipt, coverint; this wheat in controversy, to- jsether with the plaintiff's indorsement thereon, is of itself iiresumptive evidence of tlie ownership of the grain, l>y the per- son liaviiist such possession of such receipt so indoised;" liut the court refused to (jive the instruction, and cave the follow- ing instructions at the plaintiff's re<)uest: " li the jury believe from the evidence that the plaintiff did not sell tlie wheat in con- troversy to liarney, but nuthorized him to sell the same at a fixed price for cash, to be paid on or before delixery, then the Indorsement and delivery of the warehouse receipt did not vest Barney with the title of said property, or cleprive plaintiff of his title and riH;ht to the jiossession of the wheal;" also, that "the Instrument in writiiiK called a warehouse receipt is not a contract for the payment of money or personal property, and cannot be trans- ferred by indorsement, like a necotiahle promissory note." Other instructions were civen embodying the same legal prop- OHltii)n. There was evidence Introduced by the defendnnts tending to nhow that Barney had purchased the wheat from the plaintiff, and that the warehouse re<-elpt, indorsed in Idank by the |)lalntiff, had been transferred to the Bank of Stockton, and by the hunk transferred to a pei-son not a party to the action, before the bank was notified by llm plaintiff that he had not sold the wheat to Barney; and the <lefendants were entitled to have iiistrur- tions given to the jury which would state the effect of such transfers of the ware- house receipt. The foregoing Instruction, requested by the defendants, expresses very fairly tin- law in that regard. It was held In many cases in the English courts that an assign- ment of su^ha receipt does not amount to a constructive delivery of the goods until the warehouseman is notified Ihereol, and agrees to hold the goods for the ossignee. (Benjamin on Sales, sec. M.'i. I No sub- stantial reason is offered for giving to the assignment of such an instrument an effect differing materially from that of an assign- ment of a bill of lading. In Ilorr v. Barker, (SCnl. 013) a warehouse receipt was re- garded as standing on the same footing as a bill of lading; and it was held that a transfer of sucli receipt opiTnted as a transfer of the title to the g.iods. The doctrine of that case has not been ques- tioned, so far as we are aware, li.v the courts of this state. If an nssiguinent of the receipt will transfer the title to the goods, it must necessarily follow that the liossession of the receipt. Indorsed in blank, is presumptive evidence of the own- ershi|) of the goods by the holder of the receipt. The defendants were entitlecl to an instruction which would give them the benefit of that presumptive evidence; although, as between the plaintiff and Barney, and thosedaiming \iiider Barney, with notice that he was only Hie agent of plaintiff, (if such was the fact) the plain- tiff remained the owner of the wheat. The court also instructed the jury that "if you believe from all the?vi(ience in this case that Davis did sell the wheat in ques- tion to Barney, your verdict will be for the defendants. • • • If, however, you find that there was no sale of this wheat, and that there was a demand and lefusnl of it by the party, then it is your duty to find a Verdict for the plaintiff for a return of the wheat or its value." This Instruc- tion entirely Ignores any rights which any of the defendants may have acquired, in reliance upon thi> aiipari'Ut ownership or authority of the holder of the ware- house receipt, and in that respwt Is erro- neous. It is provided hy the Civil Code, see. L".*!!!, that "one who has allowed an- other to assume the apparent ownership of property, for the purpose of making anv transfer of it. cannot setup his own title to defeat a pledge of the property maile by the other to a pledgee who n-- ceived the property In good faith, in the ordinary course of business, and for value." The evidence seems to leave no room for doubt that the Bank of Stockton received the warehouse rereii>t from Barney In gooil faith, and In the ordinary course of business; and upon the author- ity of Payne v. Bensley. iS Cal. 'XO) Rohlo- 230 DAVIS V. RUSSELL. Hon V. Sniitli, (14 Col. 94) N'.i^^lec v. Ly- man, (14 Cal. 4o0) and Frey v. Clifford, (44 (;al. S.'io) it raust be lield that the pre- existins debt of Barney to the bank con- Btitnted a valuable consideration within the meaning of that section. If the evi- dence brings tlie case within that section, neitlier the Bank of Stockton nor Russell would be liable to the pluintiff in this ac- tion. .ludnment and order rever.sed, and cause remanded for a new trial. DENNY V. WILLIAMS. 233 DEXXY V. WILLIAMS. (5 Allen. 1.) Supreme Jiidif-ial Court of >Ias.-<!irhusett8. Worcester. Oct. Term, 18C2. Contract to recover the price of about V'j.OUU pouuds of wool. The declaration contained six counts, three of which net forth an executory contract for tlie pur- chase of the wool, and three were for wool Hf)ld and delivered. The anwwer Het up in defence, amouKHt other thitiK'f, the Htatute of fraudH. At the trial th° plain- tiff proved that the defen<lant agreed to purchase the wool of his hrokers, in New York, anil introduced in r-viilence the hrnUers' note uf the contract, which the jud^e ruled was in.-:utlicii'nt to take the caK(^ out of the statute. The plaintiff then introduced evidence to show a de- livery and acceptance of a portion of the wool, sutlicient to satisfy the statute. The defendant requested the court to rule that, in order to entitle the plaintiff to a verdict, he must prove that there had lieen a ilelivery of the jiroperty sold to the defendant, and an acceptance of it l>y him, and that there was no evidence to warrant the jury in findin;i either a deliv- ery or an acceptance. He also contended that, assuuiinic the testimony offered hy the plaintiff to l)e true, the case ou^l't to be withdrawn from the jury, and a ver- dict directed tor the defendant, or tlint the jury should be instructed that the defend- ant wan entitled to n verdict, on the ground that the evidence was not sutH- cieut to prove such a delivery and accept- ance of the wool, or any i)art thereof, as to make him responsible upon the con- tract. 'I'hejudjre jjave the jury instruc- tions requii'iuK them to find a delivery and acceptance of a portion of the wool, in order to warrant them in ^ivin;; a verdi<'t for the plaintiff, and defining what would be a sulficient delivery and acceptance for this purpose. The jury returned a verdict for tlie plaintiff, with duiiiaKea in the sum ol ^l(),t):i'.).7I, and the delendant alleged ex- ceptions. P. C. Bacon & F, H. Dewey, for plaintiff. I). Foster. (T. L. Nelson with him,) for defendant. CHAP.MAN, J. The rulinp; of the judge, that there was no sufficient nienuirandnra in writing of the contract, made it neces- sary foi' tlie plaintiff to prove either an e.\- ecuted ouitract, by sale and delivery, or a delivery and acceptance of a [lart of the property, no as to satisfy the statute of frauds, and supply the lack of a sullicient memoranduu). As tlie contract was made in the city of New Vork, and was to be performed there, the la ws of the state of New York must govern us in respect to its construc- tion and ()erformance. In Sliimller v. Houston, I Coinst. L'til. the court of ap- peals say that, to constitute a delivery and acceptance of goods, such as ine stat- ute of frauds rc'iuires, s<»iiiething more than mere words is necessary. .Siiper- adde-J to the language of the contract, there must be some act of the parties amounting to a transfer ol the posses- Bion. and an acce[)lance thereof by the buyer; and the case of cunilirous nrticlcH is not an exceiition to this rule. The case is fully discnsseil, and the authorltifH are cited, irnder our statute.it is alKo held that the acceptance must be proved by some clear anil 'ini.-quivocal act. Snow V. Warner, in .Met. l.H!. Weighing and measuring are not always necessary tt> constitute a <lelivery and transfer of property, even when it is sold by weight or measure; but in cases where the prop- erty to be sold is in a state ready for ile- livery, and the payment of in(<ney or glv- intf security therefor is not a condition precedent to the transfer, it may well be the understanding of the parties that the sale is [lerfccted ; and the interest passes immediately to the vendee, although the weight or measure of the articles sold re- mains to be ascertained. Such a case pre- sents a question of the intention of the parties to the contract. IJidille v. Var- niirn, L'O Pick. INO. It is nls<j settled that a contract may be one and entire In Its origin, and yet. looking to the performance of different things at different times. It may be divisible in its operation. Knight V. New ICngland Worsted Co., 'J Cash. 1.7L If the performance is several, and the con- tract divisible, an action will lie on each default. Badger v. Titcoml). 1.'. I'irk. 4ii!t. The case is to be examined in the IlKht of these principles. The |)laintiff offered evidence tending, as he contended, to [irove a delivery and ac- ceptance, sufficient to satisfy the statute. After the evidence on both sides was Id, the defenilnnt'scounsel requested thecourt to rule that there was no evidence to war- rant the jury in finding either a deliveri' or an acceptance. The court declineil to give this instruction, but left it to the jury to decide, under instructions that ar« reported, whether there were a ileliver.v and acceptance or not. The exception to this ruling brings the whole evidence he- fore this court; and the principal point argued here is, whether there was such evidence as ought to have been submitted to the jiirv. The question whether the jury have found a verdict for the plaintiff aiiainst the weight of thecvidence is not before us. That (luestion could not he raised In any way except by a motion for a new trial. If there was any evidence which it was proper to submit to a jury, the judge was right in submitting it to them, and the exception must be overruled. It Is only in a very limited class of cases lliat such a question can be brought to this court by exceptions. They are cases where the evidence is iiisullicimt in law to support a verdict. Commonwealth v. Packard, .') Gray. KlI. Chase v. Breed, lb. AW. Conimonwenlth v. Merrill. 14 Gray, 417. Policy V. Lenox Iron Works. 4 Allen, :j-".t. In such cases, a refusal of the judge to instruct the jury that the evi.lence l« In- sutnclent is a good ground of exception. It is not necessary that there sliouhl be absolulelv no evidence. The rule, as stat- ed In Browne on the St. of I'rBuds. c. 1."). §:!J1. is sustained by the authorities cited : 234 DEXNV V. WILLIAMS. "Whether tliere has lieen a fU'livery and acceptance sullkient to Katisfy the stat- ute of frauds Is a mixed fiuestion of law and fact. But it is for the court to with- hold the facts from the jury, when they are not such as can afford any sronnd for findiuK an acceptance; and this in- cludes cases where, tliouf^h the court might admit that there was a scintilla of evidence tending to sliow an acceptance, they would still feel bound to set aside a verdict finding an acceptance upon that evidence." What this scintilla is, needs to Restated a little more definitely ; other- wise it may be understood to include all cases where, on a motion for a new trial, a verdict would be set aside, as against the weight of the evidence. It would be impossible to draw a line theoretically, because evidence in its very nature varies from the weakest to the strongest, by im- perceptible degrees. But the practical line of distinction is, that if the evidence is such that the court would set aside any number of verdicts rendered upon it, to- ties quoties, then the cause should be taken from the jury, by instructing them to find a verdict for the defendant. On the other liand, if the evidence is such that, though one or tv\'o verdicts ren- dered upon it would be set aside on mo- tion, yet a second or third verdict would be suffered to stand, the cause should not be taken from the jury, but should be sub- mitted to them under instructions. This rule throws upon the court a duty which may sometimes be very delicate; but it seems to be the only practicable rule which the nature of the case admits. It appears by the report in this case, that in the summer of IS.JT the plaintiff purchased a ()uantity of wool at Chicago, and sent it at various times to Pettibone & Co. of New York, wool brokers, whom he had made his agents to receive, store, grade and prepare it for sale, and also to sell it; their rates of compensation being stipulated. In the month of .August, after two hundred and eighty-one bales of the wool had been received, and about one hundred bales which had been pur- chased were on their way and expected to arrive, the defendant called on Pettibone & Co., and made some examination of the wool on hand, and some inquiries about the whole; but made no contract. But, as the conversation at this time seems to have been referred to subsequently in mak- ing tlie bargain, it may be well to state it, as represented in the twentj--fifth answer of Pettibone's deposition. Tliis witness was the person with whom the plaintiff dealt. He says, "Mr. Williams came to our place in New York, and the conversa- tion turned on the subject of wool, as usual, to my best recollection. I think I told him I had a lot of wool to sell, as usual. We went up stairs and there the wool lay opened. My impression is, he asked me what I asked for that wool. I answered ' Fifty-two and a half cents, six months.' I think lieasked, ' What paper? ' I think I answered, • Krastus Williams's, if I could get it.' I don't rec(dlect what fol- lowed. The conversation became general about the wool, its quality and condi- ' tion, and where it came from. Then I think he asked me if fifty cents, six months, ' would buy it. I answered, 1 think, if I could get the offer, 1 would submit it to the owner." The defendant called again on the 5th of September. The most particular state- ment of tlie conversation on that day is contained in the tenth answer, which was I excluded l)y tlie court. It is as follows: "Mr. Williams remarked that he might want some portions of the wool for his son, or Winslow, I forget which words he used. I think he mentioned number two, but am not certain. (The witness (had already stated that the wool had I been gradeil, and described the grades.) I tliink that was it; that he would advise I us on his return home. The rest he should I want sold; iis to sell for him ; that was j the substance of it. There miu;ht have been some other things, I don't recollect." In his thirteenth answer he says, "I think ! ihesubstanceof theconversation was this: that I offered him the wool for fifty cents, six months, his notes, and hesaid he would take it; or he offered me his notes, fifty cents, six months, and I took it." In his thirtieth answer he says, "I told Mr. Wil- ! liams I thought there were aboutonehun- dred bales to arrive of this same lot. The wool that was to arrive was to equal in grade and condition the wool already 1 opened, agreeing that the wool should average as number one grade." In his thirty-first answer he says, "Tare actual, or three pounds to the bag. Bags to lie charged at fifty cents apiece." In the thirty-second answer, "Don't recollect as to unwashed wool; presume it was one j third off for wool unwashed. That was our custom. " The thirty-fifth cross-inter- ; i-ogatory is, "Will you s\vear Mr. W'il- I liams ever did agree that his notes should bear date before lie had examined and ac- cepted the whole wool'.'" .\nswer, "I won't swear to anything. No, 1 don't suppose he (lid. I have uo idea about it. " To the forty-third cross-interrogatory he says, he agreed on the HtU of September ] that the whole lot of wool, both on hand and to arrive, should average number one of the grade that he divided it into. In his eighteenth answer he says: "The question arose, how long can this wool ' remain here free of expense to the buyer, to Mr. Williams, for instance. I think I stated, until the first of October: after that, he was to assume the expense of the wool. The substance was, that if a man I came in and wanted to buy the wool, I should have taken him up, and sold him I the wool as Mr. Williams's wool. That I was the way 1 understood it." His twen- ty-first answer states that "he wanted we should sell it if we could." I The statements of Mr. Pettibone are fragmentary, and his memory seems to be very defective. His deposition is quite long; but the foregoing extracts are all that need be made from it. On the 7th of September a sale note was made by a member of the firm and sent to the defendant. It was supposed to be sufficient to bind the bargain; but proved I to be defective. On the 11th of September DEXNY o. WILLIAMS. 235 tlie (Ipfendant called anrl inquired if nil the wool had arrived, and Hiiid he did nf)t wiHh to Kive liiH nctes till ;ill tlie wool had arrived. Pettiljone then added to hiH memorandum of the snle on IiIh hookH, "The notes to he dated when all the wool iH e.xumined and ready to deliver. H. A. v." On the Ha me day, the defendant said to Snyder, a menilier of the firn), after Kome (■onvernati«jn alioiit the wool, ".My Han would like one or two of the ^radeH to work in his mill, and 1 Hhall want that jiart to beshippcd to him ; and the rest I kIuiII want you to sell for nie. 1 will let you know which of tlie grades my Mon will want, and shall look to you to sec that the wool that is eoming Ih eijunl to what is here. " The witness an- swered, " We will do so." Tliis was after the defendant hacl received the sale note, j Tlie corresponilcnce of the parties has j been iiroduced. .None of the letters of! Mr. Williams contains anything tendint; | to cstaldish tlic plaintiff's case. A letter of Denny to I'ettil)one of Septeniljer l.'ith. Is sijjraifieant : "The wool is in your lofts; | is all right and ready to deliver; and be- fore that can be delivered, the balance will be reacly, and if it is not, he certainly will not be obliged to pay for it l)efore he re- ceives it." It api)ears from this that the plnntiff did not then understand that any of the wool liad then been delivered ; or that the notes were to be given till the whole was delivered. A letter of Fetti- bone & Co. of Seiitember Ihth says, " We cannot get the paper f.<r the wool until we Ret all the wool in. We want to get the wool in order ami weiglied up as soon as possible to do it." On the 1 1th of Sep- tember they write, "He will claim a delay ! in the date of the notes, as he says the ! wool is not in a condition to deliver, i What Is the matter, and why this delay?" [ On the 12111 of .September they write, " We | are as an.\ious as yourself to get the sale ; to Williams settlecl. The only delay will be in thearrival of tlieoneliundred bales." Septetnl)er I'lst, they write, "We are now packing anil getting it in shape to weigh, and get in order to settle. We hope the balance will lie along this week, or that we shall know where it is." These let- ters admit that none of the wool had then been di'livered, and Indicate that it could not lie, till the remaining one hun- dred bales should arrive and be grndeil and weighed. The residue did not arrive until Septem- lier L*,"Jth. and proved to be niiifty-aeven bales. On the LTitli of September the de- fendant wrote to Fettibone & Co., declin- ing to take the wool, and assigning the delay an a reason. The wool wag not all graded and weighed till October 2<)th. All this testimony, as well as the testi- mony not cited, concurs in showing that the execution of the contract was to be entire. The defendant wished the whole to be graded and weighed, ho that he could decide, before making any sales, what portion to forward to his si.n : and also ascertain whether the <|uality of the whole conformed to the contract; and the amount for which he was to give hlH notes. There is no intimation in the coo- versation or the letters (hat the delivery was to be in Heparaie parceU or at differ- ent times, or that thecontract was In any respect divisible. And as to the agency of l'ettiboiie& Co. theconverHatiiin stated docs not show that they were to be tlie de- fendant's agents to accept the wool. They were the agents of the iilaintiff as to the sale and delivery, and acted exclusively for him. The agency for the iletendant. which was spoken of, related to the dis- posal of the wool after the delivery of It to the defendant and the acceptance by him. It could not havi- been a present agency to fell ; because the defendant had not then determined what part he would desire to sell. He had first to consult his son. And before Fettibone & Co. could sell the wool as his agents, they would ni'ed instructions as to the terms of sale. There wpre no instructions on this sub- ject. It appears, therefore, that up to the time when the defendant re(>iidiated the contract on the I'Cth of Sciitember, It stood merel.v in parol, without ai.y act of delivery or acceptance, either actual or constructive. The defendant would haveliad no right. b3- the terms of the contract, to take pos- session of any part of the wool, or sell any part, against the consent of the plain- tiff; and there is no evidence that the plaintiff had in any communication with the defendant waived his rights in this re- spect, or that the defendant desired him to tlo so. The property remnineil un- clituiged. And as the contract was in- valid by the statute of frauds, for want of a sutticient writing, and for want of a de- livery and acceptance to satisfy the stat- ute, instead of a writing, we think the jury should have been instructed to find a verdict f<ir the defendant, on the ground that the evidence was insultlcient In law to sustain a venlict for the plaintiff. There iloes not seem to us to lie even a scintilla of evidence to pri>ve any act ot di'livery or acceptance. Exceptions sus- tained. DEVOE 0. BRANDT. 287 DEVOE T. BRA>rDT. (53 N. Y. 4C2.) , Court of Appeals of New York. Sept. 30, 1873. Appeal from order settlnn uHlde n ver- dict lor plaintiff, nnd grantirifi a new trial. Action to rccovtr kooiI.h frniiduleiitly imrcliOML'il by defendant, Uuortje SuniuelH, of i»laintiff. A. R. Dvett, for appellants. C. Bain- l)rl(lge iSinitli, for respondent. Pr:CKHAM,.T. Replevin in the del inet for certain {■oods of the value of over $('AH), frulidulontly |>nicliaHed, aH iw aliened hy defendant Samuels, of the plaintiff, with intent to cheat plaintiff out of their value. They \vere Hulise(iiiently found in the poH- scHHion of the defendant IJfaiidt. The de- fendant Satiiueln made (lefault; lirandt answered, denying tlie complaint, and HettInK up amonc other thiiiijH, that he liou^lit tile '.■•oodH at a piitilic auction thereof as the yooda of Samuels. Tiiei-ase was tried at the New York cir- cuit. It appeared in proof, that in March, isi;.'), Brandt commenced an action a^aitiHt thiH .Samuels for goods sold nnd delivered to hint in lS(i;i and 18(14, chiefly in ISC:!. That Samuels i)ut in no answer, Ijut no jud;;nient was perfectted until the 7th of November, I.SIKJ, and tlien for .'$4,078. :!4 damaKes and ccjsts; and execution issued thereon on the same day to the sheriff of New York, wliicli was returned on the 10th of Decemlier, Isoo, satisfied to .If:.',. 712.77, and nulla bona as 1o the residue. It was shown tliat Samuels had been in the habit of pui-chasinfj;Koods of tlie plain- tiff, to a limited extent, prior to this sale. That this .-falo was made, and tlie larger part of the «()ods delivered on the LV)th of ()ctol)er, iNtii;, a portion on the aiitli of <)c- tol)er, and tlie remainder on the 8th of November following. That Samuels, at tlie time of tlie purchase hy him, said nothing;; as to his circumstances, or as to the suit then pendint; aii;aliist liim in favor of lirandt. in which the rinht to enter up judgment had lieen then rUie over a yejir and a half; evidence was also siven of the replevin papers in this case, and of an un- dertaking ftiven by the defendants for a return of tlie property replevined, before it had lipcn clelivered to plaintiff. The defendants offered iioevidence. The jury found for the plaintiff. The ireneral term, in the first district, granted a new trial. It is clear that there was siifliclent evi deuce to j^o to the jury upon the <]uestion whether this was a fraudulent pui-chase by Samuels. Here wasabuudant evidence for their consideration that this punhase was made with a view of cheating; the plaintiff, nnd that be never intended to pay for the goods. He concealed ironi the plaintiff a fact (the right of Brandt to en- ter U|) hisjuilgment for:$4,000l, whidi he knew to be most material, and he well knew that if plaintiff had been a ware of that fact lie never would have made the sale. There is Kood ground for inferring, from the facts proved, that he iuteiided to com- mit a fraud In this purchnse, nnd he delib- erately proceeded to Its conHunin.ntlon. Such a fraud maybe as easily I'dnMummnt- •-'d by a suppression of the truth as by the suggestion of a falsehood. The law U guilty of no Buch absurdity as to re(|ulro a f:ilse alhrniatlon as the only IiiihIs on which to prove a fraud among iiierehuntH. It is not necessary f>r usual for iiK-reliantH to iiKiuire of their frustomers as to Ihelr pecuniary conrlitiun at each sale. The fact to be proved is that the punloiNe tvas made with intent to delrnud. .\ny evl- ilence that will satisfy a jury of that fact, that affords reasonable proof of suili a pur- pose makes a case for a jury. 'I'h.it evi- dence maybe positive or eircuiiistanlial, and as various as the proof of any other fact. 'J'lie proof here is abundant : obviously defendant Samuels was then wli(dly In- solvent. The deficiency on the execution showed him able to pay only about lifty per cent, of these two debts. He pur- chased when he knew the gooils would or might be all sei/.ed and consumeil upon this execution. In fact a portion of these goods was delivered after the e.xwution was issued. It would seem as if he bought in order to subject the goods to that ex- ecuMon; and he offers no explanation. Nichols v. Michael, 2:1 N. Y. I'lU, •.•74;S0 Am. Dec. '.'."i!); Hennequin v. Naylor, 24 N. Y. i:!!); Karl of Bristol v. Wilsmore. 1 Barn. & ("ress. ,^14. We may assume then that these goods were fraudulently pur- chased. No title then jiMssed, and the ven- dor can retake them from any one but a bona tide purchaser. Is Brandt such a purchaser? The goods are found In his possession, and it rests with him to show that he is a bona lide purehaser thereof. He shows nothing. He alleges in his an- siver that he lunight them at public auc- tion, as the goods of Samuels. But he gives no proof of that; and It would not aid him if he did, unless he showeil lh;it he imid v:iliie for them. But assume that Braiiilt seized these goods upon his exei-u- tioii and purchased them at a sale there- on, he dill not thereby bi-come a bona lide purchaser. In this case, upon several grounda: First. Tlie facts dls?losed show that there was enough, to put him upon ini|uiry as to the frauil of Samuels, even if he could otherwise beoire a bona li le purchaser (I)urell V. Haley. 1 Paige, 402, a case much like tiie one at bar); Second. Because the plaintiff in tlie execution made no ad- vances thereat. It was not lu-cessary. to avoid such sale, that the execution cred- itor knew of the fraudulent purchase (.\hIi V. I'utnam, I Hill, :i(rj; Root v. Ireiich, IS Wend. ,')70; 2S Am. l)cc. 4^2; Cary v. Ho- tailing, 1 Hill, .■til;. -17 .\in. l)e<-. ::2:t; .\t- woodv. Dearborn. 1 .Mien, 48;!; 70.\ni.l)ec. 7.",.'.; Mortiey V. Walsh, s fow. 2:is; .Acker V. t'anipiielk 2:1 Wend. :v72; Karl of Bristol V. Wilsmore. su| ral ; Third. IWca use such jiropcrtv.Ko fraudulently |iurcliased. Is not the subji-ct of levy and sale by a sheriff. Replevin in the ccplt will lie then-fore at the suit of the defrauded vendor. Seo same authorities. It is only necessary toile<lile In this case (hat Brandt, the exi-culion creditor, doe» 238 DEVOE V. BRANDT. not become a Ixiiia fide purcluiser by boy- iriK K'xi'ls at a sale thereon which were fraudulently purchased by the defendant in that execution. That proceeding gave him no better title tlian a mere delivery would from the fraudulent vendee. He advanced nothinfr, and he lost notliinp; by the proceedinj;. Tlie sale on the execution did not contain the tiist element to con- stitute this defendant a bona fide purchas- er. The execution was returned unsatis- fied in part. No lien was therefore relin- quished, and the amount realized from a strauser's property would bo stricken from the execution on application to the court. The charge of the court was there- fore riKht. The order of the general term granting a new trial should be reversed and judg- ment ordered upou the verdict for the plaintiff. All concur. DEXTER 0. XOIITOX. 241 DKXTER V. NORTON et al. (47 N. Y. 62.) Court of Appeals of New York. 1S71. Action for (Jamnges for breach of a con- tract to sell and deliver cotton. 'J'iic o))inion states tlic facts. JuilRnient tor defendant disniis.siug tne coniphiiiit. James C. Carter, tor appoiiant. Win. \V. McFariane, for respondents. CHOHCH, C. J. Tiie contract was for tlie sale and delivery of specilic articles t)f personal property. Eacli l)alc' scjld was desi;;nated liy a particnlar niark, and there is nothing in the case to show tliat these marks were used merely to dlstin- guish the general kind or (luality of the article, l)nt they seem to have Ijeeii used to descril)e the particular bales of cotton then in possession of the defeutiant. Nor docs it appear that there were othei- hales of cotton in the market of the same kind, and marked in the same way. The plain- tiff would not liavR l)een oldigcd to ac- cept any other cotton than tlie hales spec- ified in the houcrht note. Tlie contract was executory, and vari- ous tilings remained to he done to the one hundred and sixty-one Ijales in question by the sellers licfore delivery. The title therefore did not pass to tlie vendee, but remained in the vendor, .loyce v. Adams, 8N. Y. 291. This action was lirought liy the pur- chaser against the vendor to recover dam- ages for the nun-delivery of the cotton, and the important and only (juestion in the case is, whether upon an agreement for the sale and delivery of specitic articles of ])erHoual [iroperty, under circuinstaiices where the title to the property does not vest in the vendee, au<', the property is de- stroyed by an accidental fire before deliv- er.v without tlie fault of the seller, the lat- ter is liable upon the contract for dam- ages sustiiincd by the purchaser. The general rule on this subject iR well establi-hed that where the performance of a tluty or charge created by law is pre- vented by inevitable accident ivithout the fault of the party iie will l)c excused, but when' a person alisolutely contracts to do a certain thing not impossible or unlaw- ful at the time, he will not be excuseci from the obligati(pns of the ccjiitract un- less the performance is made uidawful, or is preventeii by tlie other party. Neither inevitntile accident nor even those events denominated acts of God will excuse liim. and the reason given Is, that he might have provided against them by his co'itract. Paradinc v. .Taiie. Alevn, 27: llannouv v. Ilingliam. 12 .V. Y. yj, 02 Am. l>ec. 142; Tompkins v. Dud- ley, 2.") N. Y. 272, S2 Am. Dec. 34!». But there are a variety of cases where the courts have implied a condition to tlie contract itself, the effect of which was to relieve the party when the performance had without his fault, het-oine impossible; and the aiiparent confusion in the author- ities has grown out of the dirtieulty in de- termining in a given case whether the im- LAW SA1.^S — IG plication of a condilion should be npidled or not. anil also in some cases in placing the decision upon a wrong bui-ls. The re- lief afforded to the party in the cascH re- ferred to is not baseil upon exceptions to the general rule, but upon the con«trur- tion of the contract. For instance, in the case of an absolute promise to marry, the death of either (larty disdiarges tlie contract, liecauxe It is inferred or presumed that thi' contract was inudu upon the condition that botU parties should live. So of u eontract made by a painter to paint a picture, or an author to conipose- a work, or an apprentice to serve liln ina«- ter a specified numlior of years, or in any contract for personal services dependent upon the life of the individual making It. the contract Is discharged upon the death of the party, in accordance with the con- dition of continued existence, raised by implication. Cutter v. I'owell, 2 .Smith Lead. Cas. 50. The same rule has been laiil down as to property : " As if .\. agrees to sell and deliver his horse Eclipse to 15. on a fixed future day, and the horse die in the interval, the obligation is at an end." Ili'iij. Sales, 424. In replevin for n horse and jndgnient of retorno haliendo, the death of the horse was liehl a good plea in an action upon tlie bond. Carpenter v. Sti'vens, 12 Wend. ."iS!). In Taylor v. Caldwell. :! Best & Smith. S3(;, .\. agreed with It. to give him the use of a music hall oa specified days, for the purpose of liohliiig conci-rts. and before tlie time arrived tlie build- ing was aeciilerilally liiirned ; Held, that lioth p.irlies were dischargecl from the contract. liiackliurn, .1., at the close of his opinion, lays down the rule as fol- lows: "The principle seems to us to be. that ill contracts in which the per- formance (lepenils on the continued exist- ence of a given person or tiling, a conili- tion is implied that the Impossibility of performance, arising from the perishing of the jierson or thing, sliiill excuse the performance." .\nd the reason given for the rule is. "because from the nature of the contract, it is apparent that the par- ties contracted on the basis of the contin- ued existence of the particular person or chattel." In School District v. Dauchy, 2.'> Conn. ,130, (is Am. Dec. ;S71, tlie (lefemlnnt had agreed to liuiM a scliool-lioi.se by the 1st of .May, and Had it nearly c pleted mi the 27th of April, when It was struck liy lightning and liurned ; and it was licl.l that he w,is liable in damages fortlie non- performance of the cot^tract. Hut tlip court, while enforcing that general rule in a case of evident hardship, recognlien tli4> rule of an implied condilion In case of the destruction of the spirilic subject-mnt- ter of thee intract; and this Is the rule of the civil law. I'othler Cont. Sale, art. 4, $l,p. ."1. We were referred to no author- itv against this rule. Itilt the learned counsel b)r the appellant, in his very able and forcible arLrunient, insisted that the general rule should be applied in this case. While it is dillicult to trace a clear ills- tiuction between thiscaseiunl iliose wliere 242 DEXTER V. NORTON. no condition lias been implied, the tend- ency of the authorities, so far as they go, recognize such a distinction, and it is based upon the presumption tliat the par- ties contemplated the continued existence ■of the subject-matter of the contract. The circumstances of this case are favor- able to the plaintiff. The property was raercliandise sold in the market. The de- fendant could, and from the usual course of business we may infer did, protect him- self by insurance; but in establishing rules of lial)ility in commercial transac- tions, it is far more imixirtant that they should be uniform and certain than it is to work out equity in a given case. There is no hardship in placing the parties (especially the buyer) in the position they were in before the contract was •nade. The buyer can only lose the prof- its of the purrhuse; the seller may luse the whole contract price, and if his'liabil- ity for non-delivery should be established, the enhanced value of the property. After considerable reflection, 1 am of the opinion that the rule here indicated of an implied i-ondition in case of the destruc- tion of the proijerty bargained without fault of the party, will operate to carry out theintention of the parties under most circumstances, and will be more jrist than the contrary rule. The buyer can of course always protect himself against the effect of the implied condition, by a pro- vision in the contract that the property shall be at the risk of the seller. Ijpon the grounds upon which this rule is based of an implied condition, it can make no difference whether the property was destroyed by an inevitable accident or by an act of God, the condition being that the property shall continue to e.xist. If we were creating an exception to the general rule of liability, there would be force in the considerations urged upon the argument, to limit the exception to cases where the property was destroyed by the act of God. upon grounds of public policy, but they are not material in adopting a rule for the construction of the contract so as to imply a condition that the property was to continue in existence. It can make no difference how it was destroyed, so long as the party was not in any" degree in fault. The minds of the p.-irties are presumed to have contemplated the pos- sible destruction of the property, and not the manner of its destruction; and the supposed temptation and facility of the seller to destroy the property himself can- not legitimately operate to affect the prin- ciple involved. The judgment must be afflrraed. ALI>EN, GROVER, and RAPALLO,.!.!., concur; PECKHAM and FOLGER, JJ.. dissent. Judgment affirmed. DOANE V. DUNHAM. 245 DOANE et al. v. DUNHAM. (79 III. 131.) Supreme Court of Illinois. Sept. Term, 1875. .AHSiimpsit by John H. Dunlinn) agiiiiiHt Joliii \V. Donne nnd others for certain Hiimir Hold ami delivered. From a judg- ment for plaintiff, defendants n|)[)eal. He- versed. I'laintiff, a commisHion mercliant, had on hand a lot of Mollar & Martin's pow- dered KUKar.and one of his emplo.vescalled on defendants, wholesale groeers, and sold them L'O barrels of sneh sUKur, at V.'j]{ rents per pound. No time was H[)eeiMed for the delivery of the suKar, but from the course of business it wouhl seem to lie at the option of the buyer, to ho exercised within a reasonable time. No si)ecitic barrels were set apart at the time of the sale, but (lel'endantH, two days later, sent to plaintiff's store for the sugar, and 20 barrels were delivered. It was l<ept by de- fendants without any examination for L'G days, when it was found to be of an un- nicrcliantalile quality. It appeared orig- inally to have been powdered sugar, of .Mollar & Martin's make, but waseaked so hard as to be useless as powdered sugar, and not worth the price paid for any pur- pose. Defendants' offer to return it was refused. Hugh A. White and Sidney Smith, for appellants. Hnwes & La wrenre, for ap- pellee. WALKEH, J. This case was previous- ly before this court, and is reported in 0.1 III. .")12. The facts presented by this record do not vary materially from those stated in the opinion, as reported, except there seems to be u conflict of evidence on the liist trial as to the length of time the sugar was retained by appellants before it was examined, found to be different from that intended to be purchased, nnd the notice to lake it hack. When the case was formerly before us, it was hchi that this was an executory contract, and after the sugar wasrecelveil appellants were entitled to a reasonable time within which to make an examina- lion, and to give notice to remove the sugar; and that whether the notice was , given in apt time was a question to be determineil by the jury, in the light of all 1 the attending circumstances, and, of! course, with proper instructions from the court. I .Vppellce having again recovered a judg- nienl lor the supposed value of the sugar, aiipi'llants again bring the rccoi'd to this court, and seek a reversal, upon the grounds that the court below gaveini-. proper instructions on behalf of appellee, I and refused to give proper ones asked by j ap[)ellantH. " j An examination of those given, of which i com|)laint is made, fails to disclose error. ' They inform the jury that there should have been an examination of the sugar, and a notice to take It back, within a rea- ' sonnlile time, considering all the circum-, stances. This is, no doubt, true, as a le- gal proposition, b^ven iiniler clear nnd Ba I isfactory evidence that it wasthegeu-| pral and uniform usaKO for the kind of goods in (juestion never to be examined until the wh(de«ale m. rchaat sold to his customer, the proposition is correct. If sucli was the usage, ami both partiesdenlt with reference to It, then it would, accord- ing to such usage, be within a reasonnldo time to exandne it when offered for sale by appellants. lint the rule, no doubt, has the limit that it must be so ofrered in due course of tratle. A person whoshould buy as speculation, or with the intention of holrling it forsali'ata distant period of time, coulil not claim Its benefits. It could oidy be applieii in cases fulling with- in the general course of trade. The court below refused to Instrnct for ni)pellaiits, that: "If tlie jury believe, from the eviilence, that it is not the custom among wholeHale <lealers in Chicago, engaged iti business as defendanls were, to examine sugnrofthe kind and quality sold by plaintiff to the defendanls, upon receiving the same In store, or upon sale of the same to custom- ers, and that it was not customary for such sugar to be examined until opened by dealers to sell from to customers, nnd that the sugar « as damaged w Ih'u It was delivered, and not of the quality sold them, the jury are to take into considera- tion all of these facts and things In deter- mining whether defendants gave plaintiff notice, within a reasonable time, to take back said sugar; and If they find there- from that they did, then they must llnd for the defi-ndants. " If such was the uniform custom, under- stood and a( ted ujion by the trade In Chi- cago, then it is but a fair preHumption thai tlie parlies acted upon it, and should be governed by it. There was sutlicient evidence upon which to base the Instruc- tion, nnd it should have been given. Appellants asked, but tliecourt refused to give, this instruction : "II the jury believe, from the evidence, that, accoriiing to the well established usage and custom of trade among whole- sale dealers in standard powdiTtd sugar in (.'hicago, the same is sold and handled In original packages, an<l no examinatluo is made as to i|u;ility or condition tlier^ of upon [)urchase or sale thereof, nnd that tlie plaintiff was familiar with said usage and custom, ami had longbcen in thehub- it of hanilling and dealing in salil sugar in Chicago, and that the sugars in ques- tiou were nut examined by either parties when taken from plaintiff's store; anil If the jury also believe, from the evidence, that said sugar was caked when so taken from plaintiff's store, and not in the con- dition contemplatetl by either plaintiff or defendants, and that the defendants dealt with said sugars pursuant to said usage and custom, and that as soon as they found out that said sugar was damaged thev oftereil to return the same, nnd noti- fied said plaintiff to take same away, and thot the plaintiff m-i-'lected so to do, and that the same was destroyed by lire n hllo being so held by defendants, subject to the <irder of said plaintiff, then they must tiixl for the defendants." In this, we think, the court erred. It has been fre<iuenlly held by thlscourt. 246 DOANE V. DUNHAM. K. ho ,r,.nPinl that I nresumntion, then it was manifest error to enter into and f""^'-' « P""^' "J '„ ,"" instrnctions the judsraeut of the court the contract relates. Aud if such be the Judsment leveiseu. DONALDSON o. FAUWELL. 249 DONALDSON V. FAIIWELT. et al. (93 U. S. &"!1.) Supreme Court of the United States. Oct. Term. 1S7G. Error to the ciri-uit court of the Dnited StutBH for the eaHteri) district of Wim-on- Rin. lOmaiiuf'l Mann, a merchant ntRlrhficlO. UiM., lileil. May 21, ISTJ, his petition in hankniptcy. 1-ie was duly niljiid^te,] n bankrupt the (Itli day of .June, ami the plaititllT waw. on the list day of ,Iuly, ap- pointed \i\» assicnee. in the month of April of that year the deleiidante sold, at Cliicntco, ti) Nlann, on credit, merchan<liise, amounting in value to .1f.'i,(lilO. The last of the invoices bears date the 17th of that month. Ilia son was the a^cnt in muUint; the pureliase, and diret toil the f-oods to lie shipped to .Milwauliee, to lie liaided from tliere to Kiclilield. He knew that his father was then, and for two or three .vears before had been, insolvent, and tes- tified that at the time of the purchase he did not e.xpcct that his father would pay lor the ttoods; that he did not expect to pay for them himself; ami that his ob- ject in having tliein sent to .Milwaukee was to plare thi'in in the hands of one Schram. in order that they should he there (lisposed of, an<l tlie pfoceeds p:iid to some creditors of his father, who had sold him produce and advanced liini money. 'J'he troods were shipped to " E. .Mann, Mil- waukee," and, on their arrival, sent to Suliram'H store. Mann was reiiuted to be solvent. The defendants hail tio notice of his insolvency until the last days of May. In .lune they took possession olthe^ioods, with the exception of §1IM( in value, in the store of .Mann, at Iticlitield. and, after formally ilemaiulint; them of the assi;;me. shipped them to Chiciigo. This action is l)rou(;lit by the asnignees to recover thc value of them. The court save the jury a flf'iieral charKe, to the f(dlowinK parts of which the plaintiff excepted: "The sale made by the defendants jiassed the title in the property to the liankrupt. Iiut It passed a defeasil)le title; that is to say, it could b(> rendered inoperative at the In- stance of the vendors. Farwell & (,'o. If the bankrupt retained the iimperty at the time of the lilirifj of the petition in bank- ruptcy, the title passed to the assij;nee; and, as we think, the weight of authority is it passed as a defeasible, and not as an absolute, title, with the rlflit still on the part of the viiiilors to reclaim the prop- erty, provlrled it was ilone within a rea- Konnble lime alter the sale, and after knowledi;e <if thi^ fraud which had been perpetrated." There was a verdict for the tIefendantH. .JudKnient havint; been ren- dered tliere<in, the asslKuee sued out this writ of error. W. V. Lynde, for pluiutiff in error. .Mr. E. Mariner, contra. Mr. Justice DAVLS delivered the opinion of the c<iurt. The instructions present the <ineHtlonH of law arising upon the facts which iIiIh controversy involves. The iloctrlne In now esl.iblishcd by a preponderunce of authority, that n party not intending to pay, who, as in tills instance. Induces the owner to sell hliniioodsoD credit by fraud- ulently concealinn his Insolvency and liiH intent not to pay lor them, is uuilty of a fraud which entitles the vend<ir,lfno Inno' cent third party has ai'(|uired an intrrest in tliLMii, to disallirni the contract and re- cover the goods. I'vrd v. Jliill. L" Keyes, <)17: .lohnson v. Monell, Id. r,.V.; Notde v. .■\ilams. 7 Taunt, ."ill; Kllliy v. Wilson, Hyan A: .Moody. I7S; llristol v. Wilsmore. 1 Itarn. & Cress. .'lU; Stewart v. ICinerson, .'il' .N. II. .'iOI ; Itenjaniiii on Sales, s(rt. 440, note of the .American editor, and tases there citi'd. Mere the vendors exercised the right of rescission shortly after the sale in ques- tion, and as soon as they obtaineil kn<iwl- edge of the fraud. If. therelon-. this con- troversy were betwi'en .Mann and them, it is dear that he would not bo entitled to recover. The ahsignment relates back to theconi- inencement of the prcu-eedings In bank- ruptcy, and vests, tiy operatiiui of law, In the assignee the property of the bankrupt, with certain spccilied exceptions, a It In mgh the same be then attaclieil. It also dis- solves an> attachment made within four UKinths next preceding thccommencenient of the proceedings. If there bo no such lii'lis. and the property has not been con- veved in fraud of creditors, he has no greater interest in or b.ttir title to It than the Imnkrupt. Only the defeasllde title of the latter to the goods In contro- versv passed to the assignee, and It waH determined by a prompt diHalllrmaiice ot the contract. Judgment alllrmed. DORIl 0. riSIlKli, 251 DORR T. FISHER. (1 Ciish. 271.) Supreme Judicial Court of Massachusetts. Suffolk and Naatucket. March Term, 1848. This wa8 an action to recover the price of two tul)M of hutter. The iilaiiitiff liavinjr been allowed, aKuiiiHt oliji-clioii on the part of the (lefendant, to prove hi.>i claim an a hook account, the defendant then introduced evidence that in November, lM-45, lie offered several kegM of liutter to the defendant f(jr sale. On examining the butter, (two or three keuH only,) the de- fendant told the i)lnintiff that he was un- able to decide whether it was sjood or not, but that he wanted it of a lirst-rate quality. The plaintiff then said that he called the butter first-rate, and the defccid- unt replied that, if it was good, the plain- tiff might leave him two tubs. The two tubs were left at the defendant's store, where they remained for about a week, when the plaintiff came to the store, and some conversation ensued relative to the butter. The plaintiff was there again some time afterwards and reiiuested that the liutter should be put into the cellar. The principal question was as to th'jqual- ity of the butter, and the eviilence upon this point was conflicting. The defendant contended that the butter was sold under a warranty that it was of the best (piali- ty, and that Ihe burden of proof was on tiie plaintiff to prove tliat it was of such a (piality. Judge instructed the jury that if the butter were sold with a warranty as to (piality, or with a representation aniountiug to a warriinty, the burden of proof was on the defendant to show that it was not e(|ual to th-; warranty or rep- resentation. 'I'lie jury returned a verdict against the defendant, who thereupon filed exceptions, T. Willey, for plaintiff. T. Went worth, lor defendant. SII.WV. C. J. Tills cause lins been ar- gued. i)u the part of tlie defendjuit. as if tile suit were brought upon an open, un- executed contract for the purchase of goods; whereas tlie declaration is in In- debitatus assumpsit for goods sold and delivered. To maintain thiiJ action, it is not necessary to set out the contract of sale, with its conditions and limitations; it is enough to prove an agreement for a sale of the goods, at a fixed price in mon- ey. <ir witliout a price, (in which case, the law imjilies an agreement to pay so much as they are worth.; and an actual deliv- ery, ivhereby a debt arises. A delivery by the vendor implies an acceptance by the vendee. An offer, by the vendor, not ac- cejited by tlie vendee, may lie a good tender, and a good [lerformance on ills part, but It Is not a delivery. If there are conditions annexed to the agreement of sale, respecting tlie quality, or other clr- cuiustances, wliich are not complied with by the vendor, the vendee should ilecline to acce|it the goods; but, it he does accept them, the acceptance is a waiver. And. 8o, In an indebitatus assumpsit, for goods sold and delivered, the plaintiff must prove a delivery, or he will fall In the action. And this is not conliticd to the case of an implied assumpsit, on a quantum valebut; if the sale be made by an express contract, not under seal, and the goods an- actually delivered, it Is siifliclent to allege that the defendant is indebted to the plaintiff for gooils sold and delivered, and the law lin- [ilies a promise to pay. .No matter, there- fore, what may have been tbe terniH and conditions, under which goods are sold anil delivered; If notiiing remiiln but the obligation to pay for them, this Is a debt, the existence of which Hupports theallega- lion (jf being indebted, and supersedes the necessity of setting out specially sucb terms and conditions. " Where goods have been sold and actu- ally delivered to the delendant, though un- der a special agreement. It is in general sullicient to declare on the indebitatus count, provided the contract were to pay in money, and the credit be expired." 1 ("hit. I'lead. :',:!S. This is not a mere technical rule of pleading, but a sound rule of law and jus- tice, growing out of the nature of a sale. Were it otherwise, and were the plaintiff, after a delivery cjf goods on a contract of sale, bound to prove the terms and condi- tions of such sale, and to prove allirma- tively that he liati complied with those conditions, on his part, the result would lie. that the vemh'e, having accepted the goods, as and for the goods ronti acted for, and without offering to return them, or giving notice to the vendor, to come and take them back, might hold ami re- tain the goods, without [iiiying any thing for them. The vendor could not recover them liack in an acthm. because he has de- livered them to the vendee, in pursuance of a contract, as his own. It is asked, then, has the venilee no rem- edy against the vemlor, after clelivery, i( the vendee fails to clerive the beiietits. ex- pected and stipulated for on the sale? Certainly not. If he has been deceived, as to the title. <iuality, or character of the thing purchased, he may rescind the con- tract, restore or tender back the goods, and recover back the purchase money; or he may be secnreil by a warranty on the sale. The law the sale of personal property, implies a warran'y of good title, so that" if the vendee be deprived of his purchase by a paramount title, he has a remedy on his warranty. Or he may take an express warranty, as to the (|uality, c<indition. value, age, origin, or other rlr- cuir.stances respecting the thingsolil. Hut a warranty is a separate, Indepeiiileiit. c<illateral stipulation, on the part of the vemlor. with the vendee. for which the sale is the con.sideratlon. for the existence or truth of some fact , relating to the thing sold. It is not strictly a condition, for it neither suspends nor deleats tlie com- pletion of the sale, the vesting of the thing sold in the vemlee, nor the right to the puichase money in the vendor. Ami. not- withstanding such warranty, or any breach of it, the vendi-o m«y hold the goods, and have a remedy for hl8 tlain- ages bv action. Ilut.to avoid cin-iity of action, a war- ranty may be treated as a condition suli- 252 DORK V. FISHER. sequent, at the election of the vendee, wlio l may, upon a hreacli thereof, rescinJ tlie I contract, and recover hack the amount i of his purchase money, as in case of fraud. But, if lie does this, he must tirst return | the property sold, or do every thing in his j power requisite to a complete restoration \ of the property to the vendor, and, with-j out this, he cannot recover. Conner v. 1 Hen<lprson, 1.5 Mass. 319; Kimball v. C!un- ninftham, 4 Mass. .502; Perley v. Balch, 23 Pick. 283. Such a restoration of tliegoods, and of all other benefits derived from the sale, is a ilirect condition, wifhout a com- pliance with which, the verulee cannot re- scind the contract, and recover l)a<-k the money or other property, paid or delivered on the contract. But his other remedy is by an action ou the warranty, or contract of the vendor, on which, if there be a breach, he will re- cover damages to the amount of the loss sustained l)y the breach, whatever that may be. If it bo a warranty of the quali- ty of goods, and the breach alleged is, that the goods delivered were inferior to the goods stipulated for, the damage will or- dinarily be the difference in value between the one and the other. Such an action affirms instead of disaffirming theeontract of sale, leaves the property in the vendee, and gives damages for the breach of such separate, collateral contract of warranty. This remedy is so familiar, that it scarce- ly requires to be sujiporfed and explained by authorities. But it naturally requires an action to be brousrht by the vendee against the vendor, whicli, if the vendor Is at the same time suing for the price, is a cross action. But the general tendency of modern judicial <lecisions has been, to avoid circu- ity and multiplicity of actions, by allow- ing matters gr(>wing out of the same transaction to be given in evidence bj- way of defence, instead of requiring a cross ac- tion, when it can be done without a viola- tion of principle, or great inconvenience in practice. And it has lately been decided, in this court, after consideration and upon a re- view of the authorities, that, when a cross action will lie for a deceit in the sale of a chattel, the deceit may be given in evidence in reduction of the damages, in a suit for the purchase money Harrington v. Stratton, 22 Pick. 510. And the princi- ples, which govern that ease, are precise- ly applicable to the casa, where a cross ac- tion will lie to recover damages on a breachof warranty on a sale, and thesame may be given in evidence, and a like amount deducted from the purchase mon- ey, in assessing damages in a suit by the vendor for the price. Poulton v. Latti- more, i> B. & Cr. 250; Perley v. Dalch, 23 Pick. 283. It appears by the report in the present case, that these are thepriucipleson which the trial of ihe action proceeded. The plaintiff must first have [iroved a sale and delivery of the two tubs of butter. Some objection was made to the jilaintiff's ac- count book; but it was not alluded to in the argument. Indeed, the other proof tends to show, that the defendant agreed to take the two tubs of butter, and direct- ed the plaintiff to leave them at his store, which the plaintiff did the same day. No offer was made afterwards to return the butter. No notice was given to the de- fendant to take it away. This was evi- dence, from which a jury might well infer a sale and delivery. The only way, then, in which the defendant could avail himself of proof of warranty of iiuality, and a breach of it, was in obtaining a reduction of damagfcs, b.\ way of set-off, in nature of a cross action, and as a sul)stitute cherefor. Had the defendant brought his action, it is quite clear, that the burden of proof would have been on him to prove such warranty and breach, and the dam-' aire sustained by it. The burden was on him ill thesame manner, when heresorted to this line of defence, as a substitute for a cross action. We are of opinion, there- fore, that the direction of the judge was strictly correct, that if the article was sold to the defendant with a warranty as to its quality, or with a representation amounting to a warranty, the burden of proof was on the defendant, to show that it was not e(iual to the warranty. Exceptions overruled and judgment on the verdict. DOWS 0. XATIOXAL EXCIIA\f;i: I5AXK. DOWS et al. v. NATIONAL KXCH. BANK OF MILWAUKEE. (91 U. S. 618.) Supreme Court of the United States. Oct Term. 1S75. Error to the circuit court of tlie L'nited StatCB for the soutliurii dintrlct of New Yorli. Action of trover hy the Xationnl Kx- chanire littak of Miln-iiul<ee for the nlleK<'<I conversion by Dowh & Co. of 22,:!41 l)u.'ili- elH of wiieut. Tlic wlieat waH iiurciia.sed In .Milwauliee, Wis., hy McLaren .V; Co., in tlie mouth of Sci)tenil)er. IsCp'J. upon onlerw from .Siiiitli & Co. of f)swe;co, N. Y., wlio requested that till! rlraftH on' ac- count tliereof l)e drawn on tlieni thniUfili tlio MercliantH' lianli of Watertown, N. Y. McLaren & Co. paid for the wheat, nnil Hliii)ped it on tiiree vesselH. the "Kate Kelly," "Grenada, " and "Corwican," and received from the captains of said ves.sels triplicate bills of lading in tlie name of Mc- Laren & Co. as shippers, to the account of \V. (i. Filch, cashier, care .Merchants' linnk, Watertown, N. Y. McLaren & Co. presented drafts drawn on .Smith & Co., with the ori^final hills of lading attached thereto, to theNalional ExchanRel!aid< of .Milwaukee. which discounted them, placin>r the proceeds to the credit of McLaren & Co. Its casliier wrote a special indorse- ment on each hill of lading. The indorse- ment on that of tlie "Grenada" was as follows: — "t)n paytnent of two drafts drawn by McLaren & Co. on .Smith & Co., Oswego, N. \'.. to my order, dated Sept. l.'i, ISC.il,— one draft at thirty days' date for Sis,(l(io, and the other at forty-live days' date for SfN.DiiO. botli drafts heing payable at the Merchants' Hank, Watertown, N. Y., —you will surrender the within-mentioned" wheat to Smith * Co. or order. Should drafts above mentioned not be promptly l)aid, hold the wheat for mv account, without recourse. W. <i. Fitch, Cashier' Milwaukee. V.n\\ September. ISUO, To Merchants' Bank, Watertown, N. Y." Similar indorsements, except as the anioiinls and dates of the drafts, were niade on the bills of lading of the " Kate Kelly "and the "Corsican." .McLaren & Co. insured the cargoes from .Milwaukee to Oswego, and transferred the insurance eertilicates to the bank. After making the indorsements on the bills of lading, the cashier enclosed the drafts, bills of lading, and eertilicates of insurance, to the .Merchants' liank, Watertown, N. Y'.. with the following letter as to the " Kate Kelly:" "Sept. 2. To Cashier Merchants' Itank, Vyatertown, N. Y.:— I hund you for collec- tion and remittance to .Mercantile Na- tional Hank, .New York, for my credit,— McLiiren & Co., on Smith & Co.. OswoKO .$1,080 SI exg. McLan-n & Co., Oct. .". 7..'iOO 00 " _ ■' " Oct. -20 7,.^00 m '• B. L srhr. "Kate Kelly." 8,727 bushels Auibor Mil. wheat. B. L. schr. "Kato Kelly." .->.r>27 20/GO bush- els No. 1, Amber Mil. wheat, consicnod lo ' your l.nnk for my apcv.nnt. and to bo held by ilrnft.s" ""^^ '° ^^ payment of the above Insure<l North-Western Nat. Ihh. Co... $.-(i«iO Nat. Ins. Co., Boston .'.'. runt)) Aetna Ins. Co.. Hartf.,nl .Soikj lit'l'ulilic Ihh. Co ""jooo Security Ing. Co ...!.'." '■{.(MX} "I consign this wheat to vou, to be held a8 per indorsed bill of lading, and sur- render only on iiayment of the draftH drawn against it, hohling yon responHlhle for the same in caseof non-payment of the drafts. Will you receive consignments in this way, charging reas.inablv lor the sjine? Yours truly, W. G. Fitch. Cash- ier. On the sixth of Seiitetnher. 1S»1«. ,T F Moffatt, cashier of the .Merchants" Hank acknowledged tlie receipt of the letter and' Its enclosures. On the sth of that month I- itch addressed niiolher letter, as fol- lows: — "To Merchants' I$nnk of Watertown N. Y.:— In my letter of the 2d. I renuested you to state In your letter whether you would hold all wheat I consl:;n to vou strictly for my account, holding y'our bank responsible for the sale keepini; of the properly for this bank, airl h<duiiig such firoperty subject to mv orders in all cases where the drafts made against It are not paid. Your reply of the Uth In- stant does not answer my eiKiuirv. Will you please write me by return ninil. ile- tining your positi<in? We have adopted the invariable rule, to in no Instance con- sign riroperty only on condition Muit the consignee acknowledges himself respon- sible for it, until instructed to hand over to a third party. Very respectfully, W. G. Fitch. Cashier." Moffatt wrote on the 11th: "In reply to yours of the 2d instant. I would say that we will receive, until fur- ther notice, such consignments ns ytiu clio<ise to send us, hobling us responsible for the grain in case of non-pnymeiit of drafts, and shall charge % per cent, com- missions for so doing. "On the 1:1th he acknowledged the receirit of Fitch's letter of the Sth. and said: "I believe your en- (luiry was answered in mine of the lllh instant." .Similar letters were written to the casliier of the .Mendiants' Itank, en- closing the flrafts, bills of lailing. anti cer- tificates of insurance, of the cargoes «if the "Grenada" and "Corsican." The cashier of the Merchants' Itank. upon receipt of the drafts and bill of lading of the "Kate Kelly." wrote three btters. — one to Smith & Co.. dated Watertown, N. Y'., Sept. (i. IsC.'.t. as follows:— "Please find enclo.sed for ncreptance, and return the frdlowing: to wit: — Mclxireu & Co., on your st. ?4.0SO 81 and vig. Oct. ."i 7..".oo 00 " Oct. 20.. . 7.,">O0 00 " "Also inspection cerllHcate. " Another bearing the same date, ns fol- lows: — "Proprietors of Corn Exchange Eleva- tor, Oswego. N. Y.:— Please find enclosed an order for cargo schooner Knte Kelly ' for S.72r busliels of .Amber Milwaukee wheat, and .">..'>27 20 (id bushels No. 1 .\iDber Milwaukee wheat, to be delivered to you; 256 DOWS V. NATIONAL EXCHANGE BANK. and y<ui will please hold the same subject to, and deliver tlie grain only on payment of, the following drafts ; to wit : — McLaren & Co., on Smith & Co., St $4,080 81 and exg. McLaren & Co., Oct. 5 7.500 00 Oct. 20 7,500 00 And the third, of the same date, as fol- io w.s:— ".Merchants' Bank, Watertown, N. Y., Sept. (i, 1N6!). Rotiert Hayes, Esq., Mas- ter schr. 'Kate Kelly,' Oswego, N. Y: — Please deliver to the Corn E,\change Ele- vator, Oswego. N. Y., .your cargo, 8,727 bushels of Amber Milwaukee wheat, and 5..i27 211/00 bushels of No. 1 Amber Milwau- kee wheat, consigned to us by W'.G. Fitch, Es().. cashier." Similar letters were written as to the cargoes of tlie"Grenada" and "Corsioan," e.xcept that, in the case of the "Uorsican" the letter enclosing the order to the mas- ter of that vessel to deliver hei- cargo was addressed to ".Smith & ('o.. Proprietors Corn E.\change Elevator. " Suittli & Co., on receipt of the letters, paid each of the sight drafts, and returned the time drafts, accepted, to the Merchant.s" Bank, with- out objection. Thesight drafts vr ere paid, and the time drafts accepted, several days befoie the arrival of the cargoes at Os- wego. Mcl/aren& Co. forwarded to Smith & Co. invoices of the purcliases, with statement of account for disbursements and comniissiofis. The invoice of the "Kate Kelly" is headed, "Account pur- chase of 14,250 20/()0 bushels of wheat, bought for account, and b.v order of .Smith & Co., Oswego, N. Y., through .Mc- Laren & Co." Th(>se of the "Grenada" and of the "Corsican" differ only in the number of bushels. No bills of lading were sent to Smith & Co. The "Kate Kelly" arrived in Oswego Sept. Ifi, ISW). Her cargo was discharged into the Corn Ex- change Elevator anil a bill of lading, dated Sept. IS, 1S6'.), signed by G. A. Ben- nett, was delivered to Smith «& Co. The wheat was shipped by canal boat and arrived in New York October !). ISG'J. Smith & Co. paid the time draft of $7,.'.()U, drawn at thirty days. The time draft of .f7,.'>i)0, drawn at forty five days, was un- paid at the date of this shipment. The "(iienaila" arrived on the twenty-fourth day of September, 1S60. Her cargo was shipped by canal l)oat by Smith & Co., and a bill of lading of that date, signed liy G. A. Bennett, was delivered to them. This canal boat arrived in New York, Oct. 27, ISI".'.). The two time drafts drawn on the cargo of the "Grenada" were unpaid at the date of this ship- ment. The "Corsican" arrived on the Sth October, ISdO; and on thesame day Smith & Co. ship[)ed by the canal boats. These canal Ijoats arrived in New York on the 4th November, ISdO. The tlmo drafts drawn on the cargo of the "Corsican" were not paid at the time of these ship- ments. The drawees of the drafts were the proprietors of the Corn Exchange Ele- vator. The captains of the vessels, on their arrival at Oswego, called at the of- fice of the Corn K.xchange Elevator and received from Smith & Co., before deliver- ing their cai-goos, the orders in the letters of the cashier of the Merchants' Bank to the "Pnjprietors Corn Exchange Ele- vator," and to "Smith & Co., Proprietors Corn Exchange Elevator". The latter paid the freight on the cargoes, and re- ceipted therefor on the back of the bills of lading retained by the captains. The shipments by Smith & Co. were maile with- out the knowledge or consent of the of- ficers of the Merchants' Bank. There was no mixture in the elevator of the cargoes of the "Kate Kelly", "(Jrenada", or "Cor- sican". Smith & Co., on receiving the canal boat bills of lading, sent thesame witli drafts attached, through banks in New York city, to Dows & Co., defend- ants. They paid the drafts, and received the bills of lading. All of the time drafts drawn by McLaren & Co. (m Smith & Co. (except the thirty day draft on the cargo of the "Kate Kelly"), being unpaid, were, with the original bills of lulling and cer- tificates of insurance, returned by the Merchants' Bank to the Milwaukee Bank. The iatter having been advised in October that the wheat had liecn shipped by Smith & Co., Wilham P. McLaren, a mem- ber of the firm of McLaren & Co., went to Oswego to look after it. He was there from about the 2(lth to the 2.")th of that month, and, on examination, found no wheat in the elevator. Having ascer- tained on ll'.e 22d that portions of the (car- goes had been shipped to Dows & Co., a telegram was sent to and received by them on that day, notifying them that the wheat shipped was the property of the National Exchange Bank of Milwau- kee. Thefollowing day, i)arties interested in the wheat called on Dows & Co., who agreed, that, if no attempt was made to stop the wheat on the canal, it shoidil, on its arrival in New York, be kept sepa- rate; that the Milwaukee Bank should be notified of its arrival; and that th?y (Dows & Co.) would identify it as the wheat coming out of the said canal boats, and would require proof of the identity of the wheat in the canal boats at Oswego. On the arrival of the wheat, a formal demand in writing therefor was made on Dows & Co. b.v the Milwaukee bank. They refused to deliver it unless they were reimbursed the amount of their advances to Smith & ("o. and freight and charges, and unless the Milwaukee bank would take careof an ordergiven bySn)ith & Co. to Norris WInslow on them for any margins in their hands due Smith & Co. The jnrv found a verdict in favor of the plaintiff f;)r $31,111.51. Mr. C. Van Santvoord for plaintiffs in error. Mr. H. M. Finch for defendant in error. Mr. Justice STRONG delivered the opin- ion of the court. The verdict of tlie jury having estab- lished that the wheat came to the pos- session of the defendants below (now plaintiffs in error), and that there was a conversion, there is reall.v no controversy respectinir any other fact in this case than whether the ownership of the plaintiffs had been divested before the conversion. I DOWS 0. NATIONAL EXCHANGE BANK. 257 Tlie evklencp Iicaiing upon thu transiniH- siuii of the title whs cotitaiiKMl iiiiiinly in written inHtruinentH, the Ipk'iI effect of which was for the court; iind, so far as there was ekMileiice outside of tliese instru- ments, it was either uncontradicted, or it had MO licarint; upon tlie construction to he uiven to tlieni. We liave, therefore, on- ly to iiKiuire to wlioin the vvlieat helonge'l wluMi it catne to tlie hands of llie defenil- ants, aiKl vvlien they refused to surrender it at tlie demand of tht! plaintiff. It is not open to (inestion that .McLaren & Co., havin;.; piircluised it at .Milwaukee and paid for it 'vith their own money, he- came its owners. Thoiiuli they ha(i re- ceived orders from Smith & Co. to huj wheat for them, and to ship it, they had not been supplicil with funds for the pur pose, nor hail tliey assumed to contract with those from whom they purchased on behalf <if their correspondents. Tlic.v were uniler no obligation to ;{ive up their title or the possessitm on any terms othei' than such as they might ilictate. If, after their purchase, they had sold the wheat to any iierson living in .Mil waukee or else- where, other than .Smith & Co., no doubt their vendee would ha ve succeeded to the ownership. Nothing in any agenc.v for Smith & Co. would have prevented it. Tliis we do not understan<l to be contro- verted. Having, then, aci|iiired the abso- lute ownership, .McLaren & Co. had the complete i)ower of disposition : ami there is no pretence that they dii'ectly trans- mitted tlieii- ownership to Smith .V: Co. They doubtless expecteil that tirm to be- come purchasers from tliem. They bought from their vendors with that expectation. Accordingly, they ilrew drafts for the Iirice; but they never agreed to deliver the wheat to the drawees, unless upon the condition that the drafts should be ac- cepted and )iaid. They shipped it: but they did not consign it to Smith ic Co., and they sent to that finii no bills of lad- ing: on the contrary, they consiirned the wheat to the cashier of the .Milwaukee bnnk, and handed over to that bank the bills of lailiag as a security for the drafts drawn against it,— drafts which the bank inircliased. It is true, they sent invoices. Tilat, however, is of no signllicanoe by it- self, 'i'he iiiisition taken on behalf of the defendants, that the transmission of the invoices |)assed the property in the wheat without tile acceptance and payment of the drafts dr.iwn against it, is utterly iin- terialile. .An invoice is not n bill of sale, nor is it eviilence of a wale. It is a mere detailed statement of the nature, (jiianti- ty, anil cost or price of the thingsinvoiced. and it is as ap|iropriate to a bailment as it is to a s;ile. It does not of itself neces- sarily indicate to whom the things are sent, or even that they have been sent at all. Hence, standing alone, It is never re- garded as evidence of title. It seems un- necessary to refer to authorities to sus- tain this positiun. Heference may, how- ever, be made to Sheidierd v. Harrison, Law I{e[). ."> H. L. llti. and Xewcomb v. l?o8ton & Lowell U. U. Co., ll."> Mass. T-M. In these and in many other cases it has been regarded as of no import- ance that an invoice was sent by tlie LAW SALES— 1 1 shipper to the drawee of the drafts drawn against the shipment, even when the goods were described as bought and shipped on account of and at Hie risk of the lira wee. It follows that McLaren & Co. remained the owners of the wheat, notwithstand- ing their transmission of the Invoices to Smith it Co. .\s owners, then, they had a right to transfer it to the plaintiff as a security for the accepta nee nnd payment of their ilralts diawn against It." ThlH they did by taking bills of biding delivera- ble t(i the cashier of the [ila in tiff, and hanil- ing them over with Ihe drafts when the latter were discounteil. These lulls of lad- ing unexpliilaed are aiinost conclusive proof of an intention to reserve to the shipper the jus disponenili. and prevent the property in the wheat from iiassing to the drawees of the drafts. Such in the rule of interpretation as stated In Ilenja- min on Sales, :;iir,: and in support of it he cites numerous authorities, to only one of wliiih we make special reference, — .leak, yns v. Brown, 14 (.y H. 4!Mi. There it ap- peared that the plaintiff was a conindH- siou merchant, living in London, and em- ploying Klingender & (Jo. as his agents at New Orleans. The agents iiurchased for the plaintiff a cargo of corn, payingfor it with their own money. They then drew upon him at thirty days' slcht, stat- ing in the body of the drafts that they were to be placed to the account of the corn. These drafts the.v sold, handing over to the purchaser with them the bills of lading, which were made di liverable to the order of Klingender & Co.. I he agents : and they sent invoices and a letter of ad- vice to the plaintiff, informini: him that the cargo was bought and shipped on his account. On this state of facts, the court ruled that the propert.v did not pass to the plaintiff : that the taking of a bill of lading by Klingender & Co., deliveratile to their own order, was nearly conclusive evidence that they did not intend to pass the property in the corn: and that, by in- dorsing the liills of lading to the liuyer of the bills of exchange, they had conveyed to him a special property in the cargo, so that the plaintiffs riirht to the corn could notarise until the bills of exchange wen* paid by him. That such Is the letral effect of a bill of lading taken deliveralde to the shipper's own Older, that It Is inconsist- ent with an intention to pass the owner- ship of the cargo to the person on whose account it may have been puivhased. even when the shipment has been mttde in Ihe vessel of the drawee of the drafts against the cargo, has been repeatedly decided. Turner v. The Trustees of the Liverpool Hocks, fi Kxch,,">4:!: Schotsmansv. Kail way- Co., LawUeii., 2 Ch. .\p. :!:ii".: Kllershaw v. Magaiac, (i Kxch. 'uO. In the present case the wheat was not shipped on the vessels of Smith & Co.. and thelillls otiadlng stip- ulated for deliveries to the cashier of the Milwaukee bank. Wlien, therefori". the drafts against the wheat were discounted bv that bank, and tne bills of lading were hjinded over with the drafts as se»-iirlty. the bank became the owner of the «heat, and had a complete right to maintain It until payment. The ownership ot Mc- 258 DOWS V. NATIONAL EXCHANGE BANK. Ijaren & Co. was transmitted to it, and it succeeded to tlieir jiower of (lisposition. That the bank never eon.sented to |)art with its ownersliip thus acquired, so Ions as the drafts it had (iiscounted remained unpaid, is rendered certain by the uncon- tradicted written evidence. It .■lent the drafts, with tlie Ijills of lading attaclied, to the Merchants' Baid<, Watertown, accom- panied with tlietnost positive instructions, toy letter and by indorsement on the bills, to hold the wheat until the drafts were paid; and when, sulisequently, the Mer- ■chants' Bank sent orders to the masters •of the carryins vessels to deliver it to tlie "Corn KxclianKe Elevator, Oswes(^, N. Y.,"' they accompanied the orders witli letters to Smith & C'o.. the proprietors of the ele- vator, containing clear instructions to hold the arain, and "deliver" it only on payment of the drafts. To these instruc- tions Smith & Co. made no objection. Now, as it is certain that whether the property in the wheat passed to Smith & ,<Jo. or not depends upon the answer which .must be «iven to the question whether it Avas intended by McLaren & Co., or by the Milwaukee bunk, their successors in ownership, that it should pass before pay- ment of the drafts, where can there be any room for donl)t? What is there upon wliich to l)ase an inference that it was in- tended Smith & Co. should become Imme- diate owners of the wheat, and be clotl)ed with a right to dispose of it at once? Such an inference is forbidden, as we have already said, by the bills of lading made deliverable to vV. G. Fitch, cashier of the Milwaukee bank; and it is inadmissible, in view of the e.xpress orders given by that bank to their special agents, the Mer- ■ohants' Bank at Watertown, directing them to li(dd the wheatsubjectto tlie pay- ment of the drafts drawn against it. No intent to vest immediate ownership in the drawees of the drafts can be implied in the face of these express arrangements and positive orders to the contrary. It is true that Smith & Co. were ti'e proprietors of the Corn Exchange Elevator, and that the wheat was handed over to the "cus- tody of the elevator" at the direction of the Merchants' Bank; but it cannot he claimed that that was a delivery to the drawees under and in pursuance of their contract to purchase. The .Merchants' Bank, having been only special agents of the owners, had no power to make such « delivery as would divest the ownership of their i)rincipals. Stollenwerck et al. v. Thacher, 11,T Mass. 124. And they made '.no attempt to divest that ownership. They guardedly retained the jus d:s|)oneii- '<Ji. Concurrently with their directions that the %vheat should be delivered to the ■elevator, in the very orders for the deliv- ery, they stated that the cargoes were for the account of W. G. Fitch, cashier, and were to be held subject to their order. By accompanying letters to the proprie- tors of the elevator, they stated that the cargoes were delivered to them "to be held subject to and delivered only on payment of the drafts drawn by .McLaren .SrCo." All this contemplated a subsequent deliv- ery, — a delivery after the receipt of the grain in the elevator, and when the drafts should be paid. It negatives directly the possibility that the delivery into the ele- vator was intended as a conaunimation of the purchase, or as giving title to the purchasers. It was a clear case of bail- ment, utterly inconsistent with the idea of ownership in the bailees. A man cannot hold as bailee for himself. By the act of accepting goods in bailment, he acknowl- edges a right or title in the bailor. When, therefore, as was said in the court below, "the proprietors of the Corn Exchange El- evator, or Smith & Co., received the wheat under the Instructions of the Merchants' Bank, they received it with the knowledge that the delivery to them was not abso- lute; that it was not |ilaced in their hanils as owners, and that they were not thereby to acquire title." They were in- foruieil that the holdei-s of the tlrafts, and bills of lading, had no intention to let go their ownei-sliip so long as the drafts re- mained unpaid. The possession they had, therefore, was not their possession. It be- longed to their bailors; and they wei-e mere warelK)Usemen, and not vendees. We agree, that where a bill of lading has been taken containing a stipulation that the goods shipped shall be delivered to the order of the shipi)er, or to some person designated by him other than the one on whose account they have been shipped, the inference that it was not in- tencied the property in the goods should pass, except by subsequent order of the person holding the bill, may be rei)utted. though it is held to be almost conclusi\e: and we agree, that where there are cir- cumstances pointing both ways, some in- dicating an intent to pass the ownership immediately, notwithstanding the bill of lading, in other words, where th^re is any thing to rebut the effect of the bill, it be- comes a question for the jury, whetlier the property has passed. Such was the case of Ogg v. Shuter, 10 Law Rep. C. P. 1,59. There the ordinary effect of a bill of lading deli vera l)le to the shipper's order was held to be rebutted by the court sitting with power to draw inferences of fact. Tlie delivery to the carrier was "free on board." and the bill of lading was sent to the consignor's aLjent. The goods were also delivered into the purchaser's bags, and there was a part payment. But in this case there are no circumstances to re- but the intent to retain ownership exhib- ited in the liills of lading, and confirmed throughout bv the indorsements on the bills, tind by the written instructions to Mold the wheat till payment of the drafts. Nothing in the "vidence received or offered tended to show any other intent. Hence there was no necessity of submitting to the jury the question, whether there was a change of ownership. That would have been an invitation to find a fact of which there was noevidence. Theeircumstances as relied upon by the plaintiffs in error, as tending to show tliat the property vested in Smith <&, Co., cannot have thesig- niticance attributed to them. It is certainly immaterial tbatthe wheat was consigned to W. G. Fitch, cashier, care of the Merchants' Bank, Watertown, and that it was thus consigned at the re- quest of Smith & Co., made to McLaren & DOWS V. NATIONAL EXCHANGE BANK. 259 €0. llacl It bf>en consigneil rlirectlj- to ' that bnuk, and had there heen no reserva- tiori of the jus (lispoiiendi acconiijanyinj; the cotiHignmcnt. the case mit^ht have been different. Thtn au intent to deliver to the purchaserH niisht pt)Hisil)l.v liave been prcHumel; bnt, as tlie caBe waw. no I room was left for such a presuiniition. I Tlie e.xpress direction to hold the wheat for the payment of the drafts, and to de- liver it only on [)aymcnt, removes the possibility of any preKiinie<l intent to de- liver it while the drafts remained unpaid. ' A shipment on the purchaser's own vessel Is ordinarily held to [jass the projierty to the purchaser but not so if the bill of lad- inK exhibits a con ti-ary intent. — if there- by the .shipper reserves to liitiiseif or to his assigns the dominion over the goculs ship])ed. Turner v. The Trustees of the Liverpool DocUs, supra. There are many such decisions. A stronir caKc may be found in the court of ()ueen'H bench, derid- ed in 1S40. It is Mitehel v. ICile. 11 Ad. & K. sss. A Jamaica planter, beins the owner of sugars, and imlelited to the defendant, residing in London, for more than their value, shipped them iit.Iamaica, on the 4th of April, on 11 ship belonging to the defendant which was in the habit of cati-yinK supplies to .laniaica to the owner «)f the sugars, and others, and taking back consifrniiients from him and , others. On the same day he took a l)ilL of lading by which the goods were stipu- lated to be delivered to the defen<lant at Lontlon, he paying freiglit. Two days aft<'rwards (April (i) the sliipper made an I indorsement on the bill that the sugars | were to be delivered to the ilefendant only j on condition of his giving security for cer- | tain payments, but otherwise to the plain- i tiff's agent. He also drew drafts on the j f'efendant. At the same time he indorsed the bill of lading, and delivered it to the plaintiff, to whom lie was indebted. The l)ill was never in the defendant's hands. The sugars arrived in London; and tin- defendant paid the drafts drawn by the shipper, but did not com|)ly with the con- ditions of the indorsement cf .\pril r>. On this state of facts, it w;is held by thecourt that the plaintiff was entitled to the su- gars; that the shipiier had not parted with the |)r«)perty by delivering it on board the defendant's ship, employed as it was. nor by accepting tlie liill of lading as drawn on the 4tli of April ; and that he was en t it led to change the destination of the sugars till he had delivered them or the bill. In the case now in hand, there never was an instant, after the iinrcliase of the wheat by .McLaren & <'o., when there was not an express reservation of the right to '• withhold the delivery from Smith & Co., and also an avowed purpose to withhold it until the 'Iraftsshould bepaid. Consent to consign the wheat to \V. (!. I'itch, cashier, careof .Nierrhants' Flank, amounts, therefore, to no evidence of consent that it should pass into the control and owner- ship of til" purchasers. It has been argued on behalf of the plain- tiffs in error that the corres(iondence be- tween .Smith & Co. and .\;rl.,nren & Co. shows that the wheat was wanted by the former to supply their immediate need; and that, therefore, it was a legitlmnte In- ference that both parties to the corres- pondence intended an immediate delivery. If this were so, it was still In the power of the vendors to change the destination of the property until delivt-ry was actual- ly, or at least symlioliciilly, made; and that the intention, if any ever existed, was never carried out, thebills of bHling prove. It may be that .Smith & Co. ex- pected to secure early possession of the wheat by ol>taiiiing discounts from the U'atertown t)ank, and then by taking up the drafts. If so, it would arciiint for their lerjuest that the drafts and bills of lading might be si'nt through that bank; but that has no tendency to show an as- sent by either .McLaren & Co. or the .Mil- waukee bank to an unconilitionaldeliv^ry of the proiiertv before pavmenc of the drafts. Nor does the fact that any engagement to liidd themselves responsible for the safe keeping of the wheat for the plaintiff, and subject to its orders until the drnlttt drawn against it sliould be paid, was ex- acted from the Watertown bank, have any tendency to prove such an assent. This was an additional protection to tlie continued ownership of the plaintiff; and the words of the engagement plainly neg- ative any cimsent to a divestiture of that ownershi[). Without referenee, therefore, to the tes- tiniony of .McLaren, — which was. In snii- stance, that, before the shipments, the agent of .Smith & Co. wa.s inlormed, that wliile the shipping linn would agree to send their time drafts through any bank he might designate, anil consign the prop- erty to an}' responsllde bank .Smith & Co. might designate, they would adhere to their jxisitive business rule In such cases, ard on no account consent that any prop- erty so shipped sliould pass out of the control of the banks in whose care It had been placed until all drafts made against it had been paid, — without reference to this, we think it clear th;it the ownershipof the wheat. for the conversion of whi<-h the de- fendants were sued, never vested in Smith & Co.. never passed out of the plaintiff. This is a conclusion iicessarily dr»wn from the written and uncontradicted evi- dence; and tliere is nothing in any evi- dence received, or offered by the defendants and overruled by thecourt, which hasany tendency to resist the conclusion. It Im unnecessary, therefore, to examine in de- tail the nnnieroiis assignnn-nts of error In the admission and rejection of e\ idcnce. None of the rulings have injured the de- fendants. If, then, the Kxchange Hank of Mil- waukee was the owner of the wheat when Smith & Co undertook t<. ship it to the defendants, and when the defendants ri'ceived it and converted it to their use. the right of the bunk to n^cover In this action is incnnfrovertllde. Smith & Co. were incapable of divesting that own- ership The defendants could nc<inlr«» no title, or even lien, from n tortious poR- sessor. However innoi-ent they may have been (and they were undoiilitedly Inno- cent of any attempt to do wrongl. they could not obtain ownership of the wheat 260 DOWS V. NATIONAL EXCHANGE BANK. from any otlier than tlie owner. The owner of personal property cannot be di- vested of liis ownership witiiout Ilia con- Bent, except by process of law. It is not clainicij, and it conld not be, tliat the de- fendants wore deceived or misled by any act of the plaintiff. They are the victims of a gross frand perpetrated by Smith & Co.; and, however unfortnnate their case may be, tliey cannot be relieved by cast- iuff the loss upon the plaintiff, who is at least equally innocent with themselves, and who has used the extremest precau- tion to protect its title. It is sufficient to add, that, in our opin- ion, there is no just reason for complaint against the instruction jj;iven by the cir- cuit judj^e to the jury, and his rulings up- on the sul)ject of damages and interest. Judgment affirmed. I I DRAKE, EX PARTE. 263 Ex parte DKAlvli.. In re W AUK. (5 Cli. Uiv. S(iO.) Court of Aiipeal. May 10, 1877. This was un jippeal fnim a declBJou of Mr. KeKiNtrar P«p.VK, Hitting aH chief juilnf in itankruptr-y. Ill Martli, Int.'), JaiiiPM Ware, a earner anil eaiiiiiiii, liirpd a urey ni.nre of Haiiiel Drake. He iiculeeted to return the mare when reiiiiiieil by iJrakf to do no, and in May, INTO. Drake coiiiiiieneed an action in th(! exchei|iier division auninst Wore for the recovery of the inare. The iieiiuii was trieil on the Jiid of Deeeailier, ^s~i^,, when a verdict wa.s found for the plaintiff for ilid. the value of the mare, such amount to lie reiliiced to Is. if the mare was re- turned t«; the plaintiff on the Itli of De- eeinher, and tJ."i d.-iniam w for the wronuful detention. And the jud^e dirccteil jiidfj;. ment for £^^>, and the costs of the action. Tlie defendaat iliil not return the lUiirc, anil on the lith of Decenilier, the plaintifl's Holicitor's bill of costs wa.s taxed at £71) 10s. 2d. .\t an earlier hinir on the same day Ware had filed a liquidation petition, and notice of the petition was niven to the plaintiff's solicitor by Ware's scdicitor when they attended the taxation. On thesaine day Drakesi;rned judtimeat in the action for il.").") lus. I.M., and issued and lixlsed with the sheriff of .Middlesex a writ of li. fa. on the judsimcnt. On the 7th of December the sheriff levied on the Koods of Ware, not including the mare. .\n or- der was .ifterwards tn;ide by tlie court of lankiiiptcy restrainin;;' the iiroeeediims miller the execution, ami the shi'riff with- drew. The first meeting of the creditors was held on the .'ilh of .lanuary. IsTT. when Drake tendered a proof. Ills iillidavit stated the veidict in the action, the sij^n- iuK of j;iiluinent, the t;ixntion of theeosts, and that the mare had not been delivered tu him, nor the £S.">, or the amount of the taxed costs paid to him. The atlidavit went on to state that Ware was i\lso, at the date of the institution of the liipiida- tion iiroiMedin^-s. and still was. indebted to him in the sum of 'J Jii4 for hire of the mare from the li.'.th of March, ls:."i, to the 2nd of December, 1S7(;, for which sum he had not received any satisfaction or se- curity Me further said that he luid not received any satisfaction or security for the amount recovered liy liim under the judgment, except so far as the same was secured by the goods levied upon by the sheriff. This proof was objected to by the debtor, on the uround, as to the i;L'ri4, that an action was pending in the com- mon ideis division by the debtor agjiinst Drake, in which Drake had set up a coun- ter-claim for tldO for hire of the mare, upon which issue had been joined, and as to the costs claimed, oil the ground that the judgment was not iirodiiced. This ob- jection was marked on the proof and Rigiicd by the chairman at the meeting. Drake voted at the meeting. Tlie firoof was afterwards idijeeteil to by the trus- tee in the lii|uiilatioii, as to the Cl'i'.l. on the ground that no contract for hire was ever entered into by the debtor. On the lOlh of .lanuary. IsTT, Drake applied ti> the court in the lli|niilation for an order that the trustee should deliver to lilm the goods which had been seized by the sher- iff, or that he should, out of tiie lirHt aH- setH belonging to the estate of Ware u liieh should come to liiit liandH, pav to Drake the tl.'..'. 10m. 2d. due lo liim under the judgment, with interest until pay- ment. This motion was by con.-ient turned into a special case. I'pon the hearing of the case on the l:ith of Kebruary. the reg- i.-trar decided that Draktf was'not ent'- tled to any relief. .\t this time Drake did not know where the mare was. Itut oit the ]:'.tli of .March he accidentally iliHC'iv- ered her in the po.ssession of the debtor, whose servant was driving her. The debtor was, with the periiilssion of the trustee, using her in his busiiiesi4. Drake- thereupon Instructed the sheriff to seize the mare under the writ of II. fa., and the' sheriff on the same day forcibly removed her from the ilebtor's possession. On the 14tli of .March the trustee iditaiiied in the court of liaakriiptcy an interim injunction restr.'iiiiing theshcriff and Drake from sell- ing the mare, and on the 27thof .March the registrar made this injunction pirin-tual. ami ordered that the iiiiire should he forthwith delivered up to the trustee. Drake appealed. D. Ivingsford. for appellant. K. C. Wil- lis, for trustee. .IKS.SEL. M. It.:— The lirst ipn-sthiii which we have to decide is one which Ik simple enough to state— i.i whom was the property in this grey mare at the time when she was taken possession of by tht- sheriff.' The property was originally in Drake. She had been hired fiom him by Ware, the liiiuidatiiig debtor. The hiring was put an end to: the delitor was re- (juested by Drake to return her. and he failed to do so. The action of detinue was brought by Drake, and he reeovereil jiKlgmeut in the ordinary lorin. .\fter that the idaintiff issued execution on bin judgment, but the execution was defeated by the prior act of bankruptcy wiilcli overrode it. so that the plalnliff got nuth- iiig by his execulii>n. .\fter the liling of the liiiuidation petition he took in what has been called a proof for the judgment debt and the costs of the action. Some time after this he accidentally saw the mare in the possession of the debtor'H servant, and he directed thesherift's olllrer to seize her under tlie old writ. Thli» was not a prope;- mode of proceeding. The trustee then obtained from the regis- trar the order for an injunction, and for the delivery of the mare to him : ami from thiit order the appeal is brouu'hl. Tlie first iiiiestion is. ill whom was the prop- erty in the iiiare when she was seiieil by the sheriff's oltlcer .' 1 am of opinion ihnt. after the decision in Driiisiuead v. Harri- son", we are luiund to hold that the pro|>- erty was never divested from Drake, lie had the property unless something which he did under thejudgm,?nt divested it Iron* ' Law Kep. 7 C. V. 547. 264 DRAKE, EX PARTE. liira. It is clear tliat tlio iuclfrmenl itself (11(1 not divest the property. Did the ex- ♦'ciition divest it? I'pon that (jnestion tlie authority of Briiisuiead v. Harrison is distinctly in point. It shews that the <>xecntlon does not divest the ))ro])erty unless there is satisfaction of the jndf;;- nient. There are several ways in v\ liich an e.xecution miK'ht produce nothiuK. One way would be if the amount produced hy the sale of the ^oods seized did not cover tlie expenses of the sale. Another way would he if, as li;ippened in the present case, there was a prior act of bankruptcy which nullified the execution. The judg- ments in Brinsmecid v. Harrison-, and especially that of Mr. Justice Willes, sliew that the theory of the judsment in an ac- tion of detinue is that it is a kind of invol- untary sale of the phiintiff's s;ooiis to the defendant. The plaintiff wants to net his goods back, and the court fiives him the next best thins, that is, the value <jf the Koods. If he does not get that value, then he does not lose his property in the goods. On the appeal to the exchequer cliamber, in Brinsniead v. Harrison, the only two judges who expressed any opin- ion on the point confirmed the view of Mr. .luslice Willis. Mr. .lustice Blackburn said:^ "1 observe that the court of com- mon ideas, in their judgment upon the de- murrer to the new assignment, which is uot now before us, held that by the re- covery in thefirst action without satisfac- tion the property in the chattel did not pass. I should be inclined to agree to this, but it is unnecessary to oxjiress an opinion upon it." And Mr. .lustice Lush said:! "The judges who decided those American cases seem to have thought that, by holding that recovery against one of two wrongdoers was a bar to an action .-igainst the other, they would be deciding that the property in the chattel passed by the recovery; but 1 do not think that by any means follows; and, as at i)resent advised, I am i)repared to adhere to the judgment of the court be- low upon both points." Therefore one judge entirely agreed w'ith Mr. .Justice Willes, and the other was inclined to agree with him. Under these circumstances we must consider it established that the pr(jperty in the mare remained in the plaintiff Drake. That being so, he had a right to obtain possession of his pro|ierty either by taking it peaceably or b.v means of proper legal process. As I understand the provisions of sect. 78 of the common law procedure act, 18.i4, the i>laiutiff (as- suming that there had been no liciuidntion petition), if the value of the mare had not t)een paid to him under the judgment, and if he could have found out where the mare was, might have applied to a judge at chambers for an order that the defendant should deliver her to him. The liquida- tion petition prevented him from doing that, but the pf>wer of the judge at cbam- bors became then vested in the court of bankruptcy, which could do complete ' L,.Tsv Kep. 6 C. P. .584. ' Law Rep. 7 C. P. 554. 'Law Rep. 7 C. P. 555. justice in the matter. The plaintiff Drake, therefore, if he had applir'il to the court of bankruptcy, miglit have obtained an order for the delivery of the mare to him. But it is said that he cannot do this now, because he is bound by the proof whicn he miidc in the liquidation. If that means an_vthmg it means this, that the plaintiff has deliberately elected to take his chance of a dividend in the liquidation in substi- tution for his right to recover possession of his mare. It would be very extraor- dinary if he had done this, but of course it is possible that he may have done it, and we must examine what he actually did in order to see whether he has really made this election. He has done nothing be- yond bringing in a in-oof. The proof has not been fornially admitted by the trus- tee, though, on the other hand, it has not been rejected. But, before a reasonable time had elapsed after the proof was taken in, the plaintiff made a claim to be paid in full the whole amount of his juilg- ment. that is, he made a tlaim for the full value of the chattel. This was a proceed- ing wholly inconsistent with the notion that he had finally elected to take the dividend instead of the mare, and I am of opinion that he had made no such elec- tion. The result is that the order of the I'egistrar must be discliarged, and we must now make the order which he ought to have made, that is, that the mare be delivered to or retained by the ai)[)ollant. But, inasmuch as his proceedings in di- recting the sheriff to seize the mare were not such as can be viewed with approba- tion by the court, the proper order as to costs will be that there be no costs on either side, either of the hearing before the registrar or of the appeal. .TAMES, L. .1. : — lam of the same opin- ion. I think it is not the business of any court of justice to find facilities for en- abling one man to steal another man's property. That is really what we are asked to do by the respondent. The ap- pellant desired to get his mare back. He brought his action of detinue, and he ob- tained a judgment, the effect of which was that the defendant was to pay the value of the mare or give her up. The trustee seems to think that because th.e defend- aot has become bankrupt, he can keep the value and not give up the animal. It is impossible to hold that that can be right, and I am very glad to find that we have the authority of the courts of com- mon pleas and exchequer charaberfor say- ing that such is not the state of the la w of England. I agree also with the mas- ter of the rolls that in the present case there has been no election by the appel- lant tu take a dividend in lieu of his judg- ment. A man does not elect himself out of his propeity in this sort of vray. I agree also that the sheriff ought not to have been put in motion to take the mare away from the trustee, who, rightly or wrongly, had got possession of her. But for this imiiroper act the appellant will be sufficiently punished by losing all hiscosts. BAGGALLAY, L. J., concurred. 1 DUUKY V. YOUNG. 207 DmiHY et al. v. YOUNG. 1 Tlio Htiitiitc wns pasKPfl to prcvrnt (58 Mil .540) Ifriiiiil priu-tictMl through tlio liiHtrutiii'ii- t'llit.v <if perjury. It wuh pnsHcil to pri-- Cxjiirt of Appciils of Maryland- July 12, 1R.S'J. vi-iit tlic ili>reni|nnt tniin HiirU'riiit; Iuhh, . ^, , ,„.,,. ,, ,, ,. . ^ "l><"' the piiriil teHtliiionv of cllliiT n iiiT- Actionl.yWiII.nm I H. V oung aRa.nHt j„r,.„ „, ,„i',,„;,^„ wltneH«. Hpo,.kin« of a iMlwm-.IT. >r.jr.v \\.li..m H. .JameH. .Ir., l,ar^.„i,. ,|iff,,,.nt from the on.. iV, fart aii.l .Sa.nn.-I M. Uankta lor l.rrach o con- „„„„, ^ „„„,^. ,i„. .|,.fcnilant onlv hal.l- tract to ocliver li«y<}»U, plaint, f. !• ro.n „.l...ii a note or .nei.ioran.lu.u of the l.ar- a jiKlKnient for pla.nt.tt, dolendantH ap- „„i„ ^i^,,,^.,, , hi,,,^^,, ^aM pro.luccl ot Mr,1"r1,''-^w vVv'- .;Vm."vinv^'*''''''l " l""'""-^'! from tl... .lefen.lanfH own m-vMi'ip Z^^^''^^' "OBINSON, and c.iKto.l.v, It Kuanln a«ain«t the miHchief lU ILIlll-., J.). that the statute waHpahMcd lo prevent. Orli-ndo V. Bump, for appellants. 1$. jiiHt as well uh if produced from tliecuM- Iloward Hainan and Kd;;ar H. Ganw, for tody of the plaintiff. The ilaintiff Im tlie appellee. one liUely to Huffer liy leaving the evidence of liirt l)ar}{ain in the liandH of the ilefcnd- STONK, J. One of the qne.stionH pre- ant— not the >lefendant liiinHelf. Kcnted for uur coiiHidera (ion in this caHc The Hiatiite of fraiidH Ih an KukIIxIi xtat- i8, whether tlie"noteor iiie.i.draiidiiin in ute, and in the aliHence of any exprcHH ad- vvritinu" .•(■(luired by the seventeenth sec- judication of our own court, we naturally tion of the .statute of frauds, must he de- look lo the lOn^ilish courts as the hist ex- livei'ed to the other party thereto. It iH pounilcrs ol their own slatnte, and K"tlier appai'ent from the evidence that the note from them the principlert which Hhuuld or nieinorandum in writing rtlied on in Kuide uh In construing it. this case, was niade by the bookkoepi-r of In the case of (iilison vs. Ilollaml, 1 the appellant.^ by the direclion of one (jf I>aw Keports, ('. I'., 1, the only note or them, ami by the bookkeeper placeil in mi'inorandiini of the liaruuiii wan a letter their safe, amon;r other papers, \yhere addressed by the defendant to his own it remained from the 27th of Autcust, aKent; the court decided that to lie HUlfl- ISM, the <lay on which it was written, cient, and ICrle.t". J.,in deliverinu hiH opln- until It was pro.luced in court, at the ion. said: trial of the case in February, Iss-.'. There "liiit the obji^-tion relied on is, that the iH no evidence that this note was ever note or nieinorandum of that I'ontract, seen liy the appi'llee, or even its exist- was a note passim; bet wei'ii the defendant, ence known to him until the trial; and the party Hoii;;h; to be rhariied. and hin it certainly neve.' was deliveicd to him, own ajrent, and not bet ween the one Con- or went out of the possession of the ap- tractiiiK party and the other. " pellanls, nnlil proiluccil in court. It is "Tl bject of the statute of fraurls, stroniily insisted by the appellants that was the p.-eventinn of perjury i.i theset- the statute is not ;;ra " ilied without a ile- tin;; up of coiitraels by parol evidence, live.'y of this note o.- nieinorandum. It which is easily fabricated. With thin must be borne in mind that the statute of view, it reiiuires the contract to be proved, friuKls was nut enacted for cases where by the production of some note or memo- tlie parties have signed a written co-i- randuni in wrilini:. Now.a note or ineiii- tract ; for in these ca.ses, the common law orandum iseipially corroborative, whetlier affords (piite a suUicientKUJiranteeiitjainst it passes lietwcen the parties to the con- frauds ami perjuries, as is provided by the tract themselves, or between one of them statute. The intent of the statute was to and his own a;;eiit. Indeed, one would prevent the enforcement of parol con- incline to think that a statement made liy tracts, unless the defcmlant could be the party to his own a>;ent, w<iuld lie the shown to have executed the alleged con- more satisfactory evidence of the two." tract by partial performance, or unless his In .lohnson vs. DodKHon, U Me<'son & HiKiiati.n" to s<iine writtc.i note or memo- | Welsby, n.'i:!, the defemlant niaile the note randuni of the bargain— not to the bar- I of tlie sale in his own book, and ^ot ihe Kiiiii itself, could be shown. aK'ent of the plaintiff to siun It, and the The existence of the note or memiiran- ilefeiidant retained the book in Ills own dum pri'supposes an antecedent contract possession. by parol, of which the writinj; is u note It was held by the court, that the note or memorandum. lienjamin on Sales, or memoraiKlum was siilllcient, and the M'c. L'OS. 1 plaintiff recovered. .No notice appears to Now the statute itself is entirely silent have been taken by the court Intheiropin- on the (luestion of tlie delivery of the ion. of the fact that theincnioranduni had note or memorandum of the bar:;aln. not been ilclivered. but had In en retainetl and its literal re(|uiremen ta are fullilled p<)ssessloii uf by th- defendant. Itiit in by till' existence of the note or inenionin- the aiKument of I he case, counsel of de- dnm of the bargain, simned by the party fendant said. "Sup|)ose the defendant tobechai-Ked thereby. The statute itself had simply made a nieinorandum in his ileals exclusively witii the existence and own book, that mi such a day the plain- not with the c.islodv of the paper. i tiffsold toliiin; would thai b.-HUllhient . If tlie noii-<leliverv of the note, does not To which Parke. .1., replieil. " If he meant violate the letter of the statute, would it it to be a inemoraiidum of a c.intract be- violate its spirit and be liable to any of tweeii the parlies, it would.' the mischiefs whidi the statute was made From these authorities, ami the reasons to prevent? I upon w hicli they w.r- d.ci.bul, we are of 268 DRURY V. YOUNG. opinion, that flelivery is not essential to the vali(Jity of the note or menKJi-andinn of sale. The next question which arises is, wheth- er th9 note or inemoranduni in this cose, is signed by th.e defendant? The note is in these words: " Office of Drury, Ijnms & Ksniiin, Wholesale and Retail Grocers, and Dealers in Flour, Feed and Fertilizers, Cor. Gay and High streets. E. T. Drury, \V. H. Ijams, Jr., S. M. Ranlun, .Ir. Bal- timore, Aug. 2rtli, ISSI. Sold W. H. H. Young & Co., L',.5()0 cans, say ■'■),01)0 doz. C. C. C. tomatoes, (a) SI. 10 p'r do^.c^sh; cars at Phila. Depot, Balto., Md. .5,000 dozen, @S1.10c., $."5,500.00." It ap|)ears that all the words, precedinK the words, " Haiti- moi'e, .August L'7th, 1S81," were jirlnted, and that the printed part, was a letter head, and the written portion under the heailing. The names of the defendants being in print, and at the beginning of tlie note, the question is, whether it is a suffi- cient signing? It is entirely immaterial in what part of the instrument the name of tlie party to be charged appears, it it is put tl)ere by him, or by his authorit.y. Higdon vs. Thomas, 1 H. & G., l.")2. This decision of our court settles the question that the place of the signa- ture in the raenioranduni is immaterial, and the English cases are equallj' em- phatic, that the name may as wtll be printed as written, if tlie printed name is adopted by the party to be charged. In Schneider vs. Norris, 2 Maule & Sel- wyn, 2S(i, Lord Ellenborough de-ided, that the appropriation and recognition of a printed name was sufficient. It is therefore a sufficient signing, if the name he in print, and in any part of the instrument, provided that tlie name is recogiiized and appropriated by the party to be his. The note or memorandum in this case upon its face, contains all the necessary terms of a complete bargain. The names of the vendors and pur- chasers, the quantity and quality of the goods contracted for, the price at wliiih they were sold, and the terms of sale, and the place of delivery, are all clearly ex- pres-ed therein, and make a sufficiently good memorandum required by the stat- ute. If the above mentioned memorandum was insufficient of itself, the following letter addressed by defendants to plaintiff, and which sufficiently refers in its terms to the former note or memorandum, would certainly he sufficient when taken in connection with it, to take this case out of the statute: "Office of Drury, Ijanis & Rankin, Wholesale and Retail (Grocers, and Dealers in Flour, Feed and Fertilizers, Cor. Gav and High Streets. F. T. Drurv. W. H. Ijams, Jr., S. M. Rankin, Jr. Ba'l- timore, Aug. 20th, ISSl. Mess. W. H. H. Young & Co.: (Jents: — We regret to say, it is impossible for the Chase's Canning Co. to furnish tlie 2500 eases, 3 C tomatoes purchased of u.-? on 27tli inst., (n) 1.10 per dozen. Nor do we think it possible to fill order this season, as tlie fruit cannot be procured. Hoping this ma.v be entirely satisfactory. We are very respectfully, Drury. Ijams & Rankin." There Is no dispute as to the signature of the defend- ants to this letter, or that it was ad- dressed to tlie plaintiff, and without the aid of any parol evidence it can easily be con- nected with the memorandum of 27th Au- gust, 1S81. That the letter refers to the same bar- gain or sale that the niemorandum does, is sufficiently shown upon the fi:ce of it, as it mentions the same sort of goods, the same quantity and price, and refers to the same date. The two iiapers can then be connected with sufficient certainty, without the aid of any extrinsic evidence, and together make a, niemorandum, meeting the re- quirements of the statute, even if themem- orandum of sale itself were insufficient. We have then a sufficient note or mem- orandum of a bargain, provided the jury were satisfied that an antecedent parol bargain, substantially agreeing with the said note or meniorandum, had been made between [ilaintiff and defendants. Whether such antecedent parol bargain had been made or not, was for the jury to decide, and it was also for the jury to de- termine the question, whether the printed names were adopted and appropriated by the defendants as theirs, as well as the fact of the memorandum being the act of their authorized agent. There are eighteen prayers in the rec- ord, many of them with shades of differ- ence, so nice, tliat it is difficult for any one, except the drawer, to see in what the difference consists. The first, sixth, seventh, twelfth, thirteenth and fourteenth prayers of the defendiints relate to the insufficiency of the niemorandum, considered in itself, and from what we have already said, were properly rejected. The fifteenth prayer of the defendants as to a variance between the oral bargain and the memorandum was substantially covered by the eighteenth and nineteenth prayers, which were granted, and its re- fusal is therefore no ground of reversal. The second prayer of the defendants was properl.v refused. The issue in this case was whether there was a contract upon which the plaintiff and defendants had agreed, but there is no issue involving the fact of negotiations only, and the with- drawal of the defendants from such nego- tiations, and the terms of the prayer were calculated to mislead the jury. The ob-ections of the defendants to the testimony offered in the second bill of ex- ceptions ought to have been sustained; but as it does not appear what evidence the parties asked gave, if any, the error does not furnish sufficient ground for re- versal. The ev'ilence objected to in the defend- ants' third bill of exceptions, was admis- sible. In a mercantile transaction, where the terms of a written iuHtrument are tech- nical or equivocal on its face, oral evi- dence is admissible to explain the cora- morcial usage. Williams vs. Woods & Bridges, 16 Md., 220. The question presented by the defend- ants' first bill of exceptions has been ar- 1 DRURY V. YOUXG. 269- Kii?(l by his counsel with great force niid iiliility, l)i>tli iipon THfiHon iiiiil iiutliority. W'l' imist, however, ilorline to express an ophiioD upon the Hiiljject-niattor (»f that exce|)tioii, for the very olivioiis roiiscjii that no decision that we conld now niaUc, ujion the (luestion presented in the excep- tion, could have any effect upon this case. Tlie ()\iestion presented by tlie first ex- ception was whetlier theconrt below were wairanted in orderini; the production of tlie paper mentioned therein, against tlie protest anil objection of the ilcfendants. But tiiey did produce tlie paper. It may tie that the defendants are rii^lit in tlieir hypothesis, and that the court below were in error in cirderini; its production, and that it lias properly n<i place in tliis record. But it is in this rec- ord, and we liave no power to eliminate It therefrom. 'J'lie plaintiff has already received the benefit from the production of the paper, ' and we know of no way in which we can now deprive liim of that benefit. We would be nnulde, by u reverHal of this judgment and sending the case back for trial, to place the defendants in (ho same situation that they were liefore they pro<liiced the paper. Ity their own act they have rendered that iniposHilile. For the puriiose of this case, the paper Is no loiiKer a private [laper, liut is in the pos- session of the court and jury, and haH been duly delivi-red to tlieiii liy the defeml- ants, and in their possesHion. for all the purposes of this suit, it must now remain. It was at the option of the defendants to have refui-ed to produce the paper at the trial, and tal\e the risk of a juiltinient by default, if the court below slioulil have de- termined to render one ai;aii!Ht them, and upon an appeal from such judgment the (luestion would have been properly be- fore UH. Judgment allirmed. DUSTAN V. McAXDHEW. 271 DUSTAN V. M.ANDRKW. C'diiimission of Appuuls of New York. Dec. 28, 1870. Action for breach of c(<iitrarl. On Auk. :.M, lNG(t, J. S. & W. Urown, of the city of New Yorl<. executed on a^reenieiit witli tlie phiiiitlff aH followH: "In conHidern- tioii of tlie sum of one dollar, the receipt of wliich is hei'chy acknowledged, we have Kold thin ilay to Mr. Jolin K. UuHtan, of tlii.s city, 101), 000 pounds of first sort west- ern or eastern hops as we may select; growth of ls()0; deliverable in tlie city of .New York, at our tjption, durliiji the months of t)ctoljer or November, l^'io. at seventeen cents per pound, subject to Mr. J. S. Brown's Inspection, or other mu- tually satisfactory. Terms, cash on ilellv- ery. Mr. Dustan's name to be made satis- factory either by indorsement or l)y Ji ile- posit of *2,r)00 by bolh [larties. J. .S. & \V. lirown. " (^n Sept. 7, the plaintiff sold this con- tract to the defendants, by an instrument as follows: "In consideration of the sum of one dollar, the receipt of which is here- by acknowled^red, I have this day sold to .\lc.\ndrew & Wnnn the contract of .1. .S. & W. lirown.datedLMth AuKUst, IMIo.for loo.- 000 pounds first sort hops, western or eastern, grow th of Im;o; upon condition that the said Mc.\ndrew i: Warm fullill the conditions of said contract to the said .). S. i*i W. Brown, and i>ay to me, in ad- <lition, on delivery of the hops, ten and one-hnir cents per pound. .lolin K. Dus- tnn. New York, September?, Is(i0." On Nov. 2s. J. S. & W.Itrown notiliedthe plainlirr by letter, that they would de- liver the hops pursuant to contract on tlie :iOth of that month : and plaintiff im- mediately, on the same day. notllied the defendants of that fact, inclo.-iinj^ to them the letter of .1. .S. & W. Brown; ;ind on the same day the said J. .s. & W.Brown wrote a similar letter to the defendants. These notices actually came to the hands of the defendants on the morninfx of the liOth. Prior to Nov. ;!0, .John S. Brown had inspected the liops and put his braml upon them, and certihed that they were Hucli hops us the contract called for. On Nov. :il) .1. .S vV: W. Brown were ready and willinf; to deliver the hoiis, and the defenil- ants were reiiuested to take them, anil they declined on the sole ground as they claimed, that they had not had an oppor- tunity to examine them and inspect their (piality, and because Messrs. Brown had refused to let an inspector whom they sent, inspect the hops. On Dec. L'4 the plaintiff took the hops from Messrs. Brown and paid for tliem, and on the same ilny wrote the followins letter to defendants: "New York. Decem- ber '.Mth. lsc,((. .Messrs. .McAndrew \- Wanii: (iputlenien.— The mo.iiiio pounds iKips mentioned in contract of.). S. \- W. Brown with me, of 24Hi .\ufrust, IstiO. and In contract of yourselves with me of 7th September, ISOO, ni-e now at the store No, 4 Bridge street, awaiting the fullillment hy you of the terms of your contract, and I hereby teri<hT to you the said hopH, and demand from you the payment of the sum nf $'.'7,500. the amriiint of swi-h contrart price. Unless you comply with I he terms of said contract, on or before the 'JiJth day of December, Instant, I v,i\\ proceed to well the same on your uccou'it and hold you for any deficiency. Your obedient serv- ant. .John F. Dustan. " Defendants still declined to take the hops, and then on Dec. Lfi plaintiff placed them in the han<ls of a hop broker, who sold them for twenty cents per pound. The plaintiff also gave evidence that on Nov. :!0 anil on Dec. M twenty cents per pound was the fair market value of the hops; and the defendants j;ave evidence that en both of these days the market value wa-! some cents higher. Tlierewas also evidence showini; that hops had a downward tendency in market all through the month of December. It was shown that the ho|is in all respects answered the contract, .lud^ment for plaintiff. William A. Bench, for appellants. John N. Whiting, for respondent. E.\RL, C. The contract rei)uired that the hops should be in>*pected hy J. S. Brown, or some other inspector satisfuc- toi-y to both parties. In case .J. S. Brown could not or sliould not inspect them for any reason, then they were to be inspect- ed by some other person mutually satis- factory. Neither party had the right to demand any other inspector, unless Brown neglected or refused to Inspect. It is doubtless unusiiul to insert a stipula- tion in contracts that the vendor shall inspect the goods sold. But where par- ties agree to this they must he bound by their contract, and it must he construed the same as if some other (lerson hod been chosen inspector. It is claimed <m the part of the respond- ent, and was held l>y the court below. that the inspection provided for was In- tended simply lor the convenience of the vendors, to enable them to perform their contract, and that It merely furnished prima facie evidence that the hops an- swered the contract, and that the inspec- tion was not conclusive upon the parties. I cannot assent to this. The contract was for the sale and purcnase ot hops of n certain description, and the objin-t of the inspection was to determine for the hen- etit of both parties whether they answered that description. Tntil the vendors de- livered the hops with the inspection, the vendee was not obliged to pay. and when so delivered, the venilors were entitled to the purchase-price. The inspiH-tion wan thus as much foi- the convenience and ben- efit of one party as the other. Its pur- pose, like simllai provisions in a variety of contracts, was to prevent dispute and litiLMition at and after performance. Hut if the inspection was merely for tlie con- venience of the veiiilurs. then they could dispensewith it, and compel thevendeesto take the hops without any Inspection whatever. And if It was merely priinn facie evidence of the i|uallty of the hops, then it was an Idle ceremony, because not being binding, the vendee could still dis- 272 DUSTAN V. McANDREW. I)ute the quality of the hops, refuse to take them, and show, if he could, when sued for not tukuiff them, that tliey did not answer vhe requirements of tlie contract ; and thus the plain iiurpose for wliich the provision was inserted in the contract would 1)6 entirely defeated. The inspection could l)e assailed for fraud, or bad faitli in making; it, and per- haps witliin tlie case of McMahon v. New York & Erie H. Co., 20 N. Y. 4()3, l)ecau.se made without notice to the vendee. The inspection here was made without notice; but it is not necessary to determine whether this renders it invalid, as no such defense was intimated in the answer or upon the trial. By the purchase of the contract the de- fendants were substituted, as to its per- formance, in the jjlace of the vendee there- in named, and were bound to do all that he had atcreed to do or was bound in law to do. When notified that the hops were ready for delivery they declined to take them, upon the sole ground that they had not had an opportunity to examine or in- spect them ; and tliey claimed that tliey had sent one Smith to inspect them, and that he had been declined p(!rmission to inspect them. Thare was no proof how- ever that they ever tried to examine or in- spect the hoi)s, or that the vendors ever refused to permit them to examine or in- spect them. They sent Sinitli to inspect tliem, and he went to one of the several storehouses where some of the hops were stored, and he says he was there refused an opportunity to inspect them by Mr. A. A. Brown. But there is no proof that he was in any way connected with the vendor, or that he had any agency or au- thority whatever from tiiem. There was no proof that defendants ever tried with the vendors to at;ree upon any otiier in- spector, or tliat they ever asked the ven- dors to have the liops inspected by any other inspector, and they made no com- plaint at any time that they were in- spected without notice to them. The point thiit they should have had notice of the inspection was not taken in the niotion for a nonsuit, nor in any of the re- quests to the court to charge tlie jury. If tlie point liad been taken in the answer or on the trial, the plaintiff might perhaps liave shown tliat notice was given by the vendors, or thit it was waived. Hence we must hold, upon the case as ])resented to us, that there was no default on the part of the plaintiff or the vendors, and tliat the defendants were in default in not taking and paying for tiie liops. Tlie only other (juestion to be considered is, whether the court erred in the rule of damages adopted in ordering the verdict. The court decided tliat the plaintiff was entitled to recover the difference between the contract price and the price obtained by tlie plaintiff upon tlie resale of tlie hops, and refused, upon the request of the defendants, to sulimit to the jury tliecjues- tion as to tlie market value of the hops on or about the 30th day of November. The vendor of personal property in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methodsto indemnify himself. (1) Heinay store or retain the property for the ven- dee, and sue him for the entire purchase- price; (2) He may sell the property, act- ing as tlie agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) He may keep the property as his own, and recover the difference between the market price at the time and place of delivery and the con- tract price. 2 Para. Cont. 484; Sedgw. Dam. 282; Lewis v. Greider, -JO Barb. «06: Pollen V. Le Roy, 30 N. Y. .549. In this case the plaintiff chose and the court ap- plied the second ruleabove mentioned. In such case the vendor is treated as the agent of the vendee to make the sale, and all that is required of him is that lie should act with reasonable cure and diligence, and in good faith. He should make the sale without unnecessary delay, but he must be the judge as to the time and place of sale, provided he act in good faith and with reasonable care and diligence. Here it is conceded that the sale was fairly made; it was made in the city of New- York, in less than one month from the time the defendants refused to take the hops. It was not claimed on the trial that the delay was unreasonable, and we can find nothing in the case to authorize us to hold that it was unjustifiable. We are therefore of the opinion that the court did not err as to the rule of damages. The judgment should therefore be af- firmed, with costs. For attirmance: LOTT, C. C. ; EARL and HUNT, CC. (jR.\Y, C, dissented on the ground that the delay in selling was too great. LEONARD, C.,did not vote. Judgment affirmed, with costs. 1 EASTER V. ALLEN. 275 EASTER et al. v. ALLEN. (8 Allen, 7.) Supreme Judicial Court of Massaohnsotts. Essex. Jan., 1804. Replevin. At the trial the plnintiffH in- troiluct'd evidence tlint the goods were ob- tained from them by N. Allen without payment, and by fraud and fuUe prcteiiKeB. For the jiurpose of Khowlng fraud, they offered ovideiiee to hIiow that two days after the transaction AWcu went into a store in I'.oston to purchase goods, and informed the salesman that he liacl taken n lease of a store, and was goi'iK into bus- iness, and nave the name of I). F. Dodsxe, as a reference; and they offered to show what DodHO said in reply to incjuiries made of hiui by tlie salesman. It was not contended that the answers of Dodjrewere a i>art of the pretenses under which the plaintiff's {::oods were obtained, or that they were false; and the judRO rejected the evidence. The i)laintiffs also offeicd to sliow that, in a subseiiuent interview with the same salesman, .Mien introduced to him one .J. T. Dodue, as a dealer in tluiil lamps on Tremont Row, in Boston; and that the salesman inquired at Tremont Row, an<l founil that said Dodge was not u dealer in fluid lamps there. This evi- dence was rejected. One of the plaintiffs testified as a wit- nes.s, and the defendant offered to show, by cross-examination of him, that five days liefore the trial he made a com|)lajnt against N. Allen for obtaining the goods by false pretenses, and that the warrant which issued thereon was served on the morning of the trial, l)y arresting Allen. This evidence wa.s objected to, but tl;e judge admitted it to show bias or inter- est, thereby affecting the credibility of the witness. The judge instructed the jury that, it be- ing agieed that the goods came into the possession of the defenilant by a transac- tion wliich had the form of a sale, the burden was on the idaintiffs to show, by ii |)reponderanco of testimony, not only that the goods were obtained by said N. Allen by false pretenses, but that the de- fenilant was not an innocent |)urchaser. The jury returned a verdict for tlie de- fendant, and the plaintiffs alleged excep- tions. G. E. Betton, for plaintiffs. S. B.Ives, Jr., (H. G. Johnson with hiin.) for defend- ant. .MKRRICK, J. It appears from the bill of exceptions to have been satlnfactorily proved or admitted tliat the goods re- plevied were formerly own<;d by the plain- tiffs, and were sold liy them to N. .Vllen. lie afterwards sold and delivered them to defendant, who claims title tliereto only under and by force of that sale to him. The plaintiffs alleged that the saleby them to N.Allen was induced, and that he ob- tained possession of the goods, by fraud and by false and fraudulent pretenses. It such was the fact, they may nndoul)tedly rescind and avoid their contract of sale, and may maintain this action against the defendant, unless he was n purchaser iu good faith, for value paid and without notice of fraud. Iloffnian v. .Noble, (i Met. G8. Rowley v. BIgelow, IL' I'ick. :JU7. The plaintiffs, haviiii; produced evidence upon the trial tending to show the alleged fraud, jtskeil the court to instruct the jury that if .\. Allen obtained the goods from them liy fraud and false pretenseB. the burden of proof was upon the defendant to show th;it tie bought tlicra in eood faith and for value paid. But the court declined to accede to this reiiuest.and rules that thelinnlen of i)roof was on the plaintiff to show by a prepon- derance of evidence, not only that the goods were obtained by N. .Mien by false pretenses, l)ut also that the (Kfendant was not an innocent purchaser; and the jury were accordingly instructed to that effect. This ruliuir was erroneous. It was sulli- cient in the first instance for the plaintiffs to i)rove that they were the owners of the goods, and that their title thereto was never divested by any lawful con- tract liiniling up<»n tliem. They had, therefore, if such were the fact, an un- doubted right to reclaiui and recover the goods from any [)erson who •hail not pur- chased them in good faith and for value paid. This is an exception of which the defendant might avail himself. But, to establish the validity of his title aci|uircd under the sale tn .N. .Mien, it is incumbent on him to show that he was a purchaser in fact, and i)aid value for the goods. I'roof to this effect will establish his right, unless it be further siinwn by the plain- tiffs that, at the time of his purchase, he hail kiiow'ledge of the fraud. In resjiect to proujissnry notes, it has bien repeatedly determined that if they have been fraudidently obtained from tne maker, or fraudulently put into circula- tion, in un action thereon by an indorsee, the burden of |)roof, after such fraud has been established, is on him to show that he became possessed of them in good faith, liy a purchase and payment of value. .Sis- termans v. Field, !) (irav, :!."!1. Kstalirook V. Boyle. 1 Allen, 41-'. Tucker v. Morrill, lb. n-2s. Smith v. lOdgeworth, :{ Allen. 'SXi. The reason of the rule is apiilical>le with greater force to the case of chattels ob- tained by fraud; and thereforea purchaser from a "fraudulent grantee, who had no just title, ought to be reiiuired to prove a fact necessarily in his own knowledge. If such fact occiirred, that lie paid value for the goods which he purchased. Tliis rule, in its application to chattels, was dis- tinctly recognized and alllrnied in thecnso of I'ringlo V. I'hillips, .'> Sandf. l.">7. And so in the cases of Hoffman v. .N"ol)le and Rowley v. Bigelow, ubi sur>ra, the subse- (|neni "purchaser was allowed to maintain his title upon showing alllrmatlvely on his part that lie paid value for the chat- tels transferred to him by a fraudulent vendee. The same rule has been observed and practically enforced in reference to real estate. Somes v. Brewer, - i'it*. 1S4. Green v. Tanner, s Met. 411. The further rulings of the court, to whicli exception was taken by tlie plain- tiffs, were unobjei-tionalile. The testi- mony offered as to what was s.il.l by D. P. Uodge, und what answers, were rt- 27f. EASTER 0. ALLEN. turned to the plaintiffs to their inquiries niiide in Tremont Row, was, iniiicr the circiiiiistanccs stntecl, inatlinissilile. It was an offer of proof, not of vvhat was said by any party to tlio suit, as to any of the matters involved in its issue, but by strangers wlio had uo connection witli or interest in it, and therefore was obviously incompetent. The evidence which \Nas admitted in relation to tlie conduct of the plaintiffs in reference to the attendance cf N. Allen as a witness on tlie trial was competent, as having some tendency to show an effort on their part to suppress tlie introduction of material evidence in the case, and thus to obtain an unfair and unjust advantage. Such conduct might well create a doubt whether their allega- tion as to any fraud committed by Allen' was well founded. The exceptions, therefore, as to the re- jection and admissibility of evidence must be overruled; but they are sustained as to '.he ruling of the court upon the subject of the burden oi i)roof. Exceptions sustained. I 4 EDGERTON v. HODGE. 279 KDGRRTON T. IIODGIO. ' ducting freiiilit nnil comnilHsion, then I (41 Vt CTi!) linil <liie (lip pliiinfiff $411.1)1. If the cnr- rt'iit price in llii- country, jiiiid by pur- Suijrcmo Courl of VcriiKmi. Kiillaiid. Jan. I t'li'iHccH and Hcnt by tlicmto market, 1h to Tcnii, 18U'J. '"^ t'"? '•"''••. tlicn 1 lind due the plaiiitlH the Kuni of if:w,.:\2. " AHSunipsit, whicli was referred to a ref- " Doisef. .hily IhI. lsr>4. Mr. EilRcrton • eree, who reported: "That on the 30th .Sir:— According to our talk vcMterdiiy voii day of .liine, lst)4, tlie parties made an bou«lit my checHe for the hcason. I Khali aKiecment liy parol, by wliich the defend- Htand to it, Imt Hhall want von to pay ine ant agreed to well t(j tlio plaintiff what ] fifty dollai-H to bind it. I Hpone there Ih new milk cheewe he then had on hand, and notliin^ holding unUss there Ih money iinKold.amountiii}; to il7.')lbH..and the now i)aid. I do not wiMJi von to think 1 w l«h milk cheese ho Khould make thereafter to lly from Icttiri},' you liavc it ho that it is duriiiK llie sca.son, and the plaintiff agreed sure. I will pav you Interest on the to |)ay thedelendant thereforat the rateof nioney until the fact cheese Ik ilellvered. fifteen and a half cents per pound, and Yours in haste. J. U. C Hodge, per A. II." ei'ery twenty days thereafter agreed to "I'awlet, Jidy 2, Im;4. Mr. lloilge: call at the defendant's house in Dorset, Dear Sir:— I enclose von fifty dollars to select such cheese as would be fit for apply on your dairy o"f cheese "as you pro- market, attend its weight there, and pay |)osed. Yours, truly, S. Kdgerton." the defendant for the cheese so selected! The court at the March term, IM'.S, Pier, and weighed, anil then the defendant was point, (". .]., presiding, rendereil judgment to (ieliver the same to the plaiiiliff a t the on tlic leport that tlie plaintiff recover of railroad depot in Manchester. The day the defendant the smaller sum reported after the al)ove agreement was made, tlie by the referee, and for his costs, to which defendant, by his son, Albert Hodge, wrote the defendant excepted, and sent by mail a letter to th" plaintiff (a copy of which is annexed, dated Jnlv 1, ^ I''iy<'tte Potter, for plaintirf. Edgerton IWM.) depositing the same at the post « iNieholson and J. B. Bromley, for do- oflice in lOast Rupert, and directed to the ''^"''""'• plaintiff at I'awlet, and received by him | by mail on the same day. The ne.\i day, WILSON, J. The parol agreement, en- after the return mail from I'av. let to 1 tered into by the parties, J une ;!Otli, being East IJiipert had gone out, it being on for the sale of goods, wares ai.d mer- Satiirday, tlie plaintiff enclosed in a letter, chandise for the price of forty dollars and directed t<» the defeiulant, at Kast Rupert, more, is within the statute of fraii.ls. nod and left it in the jiost oflice at I'awlet, to inoperative, unless taken out of the stat- bo carriecl by mail to the defendant, the iite by the suiiseijuent acts of the parties, sum of lifty dollars. (A copy of plaintiff's It is claimeil by the iilaiiitiff that the de- letter is hereunto annexed, and the envel- feiidanfs letter under date of .Inly 1st, ojie enclosing the lifty dollars Is post- : an<l the depositing of tli.^ plaintiff's lei- niarUed ' I'awlet. .Inly 1.') This letter of ter with the lifty dollars In the postollice the plaintiff was, on the sth day of .lul.v, on the L'd of that month, constitute a pay- INCil, handed to th" said .Mbert Hodge, by meat of part of the purchase money wlth- tlie postmaster of Kast Rupert, anil it in the miaiiing of the statute. It will be was on the same day carried by him to nbserved that when those letters were the ilefi'iidant, opened by the said Albert, , written, no binding agreement had been tlie til ty dollars refused to be received by concluded. The defenilant, in his letter of the defendant, and the letter of the plain- .lul.v 1st, says: "Accoriliiig to our talk tiff, with the lifty dollars, and tiie envelope yestei'd'iy, ;. on bought my cheese tor the enclosing them, were, by mail, returned to season. I shall stand to it, but shall want the plaintiff, with no comniunicalioii ac- lifly dollars to bind it." By that letter conipanying tliem from the defenilant. the plaintiff was notitied that he could The [ilaintiff received the so enclosed make tlie Ijargain binding upon himself wiapper, money and letter, on the'.tlhof as well as the defendant, by paying to .luly, IS(;4, and kept the same lifty dollars the defendant the sum demanded lor tliat for six months thereafter. A daily mail purpose. Tlie plaintiff on li.e ".'il do.v of is carried bet ween the postollices of Paw- July enclosed lifty dollars in a letter, di- let and Kast Rupert, a distance of six reeled to the defendant and deposited it miles. On the L'Oth day of July, lS(i4, the in the postotlice. whicli letti-r was dellv- plaintiff sent word to the defenilant to ered to the defendant on the Siii of that deliver what cheese he had lit lor market , miinth. lie did not accept the money, to the depot in .Manchester. The defend- but rcturni-d it to the plaintiff. It Is ant replied to the messenger that lie !iad clear that the act of depositing the letter no cheese for the plaintiff. Xo other com- and the money in the postotlice was not niuni:'atioii ever tO()k place between the a payment to the defendant. His letter parties in regard to the cheese after the did not direct the money to be sent by return of the money as .'ibove stated until mail: it contains nolhiiig that would In- tliis suit was brought. The defendant dicate that the defenilant expected the sold all his cheese to other parties, mak- plaintiff would reply liy letter, or ncci-pt ing his Hrst sale on the L'Cth dav of Jnlv, the proposition by de|iositing the money iMiJ. If the court shall be of opinion that In the postolMce: and the fact that the from the foregoing facts the iilaintiff is en- I defendant by letter offered to allow the titled to recover, and that the rule of plaintiff to perfci t the agreement, by pay- rlamages should be the .New York market lug part of the purchase money, diil not price for cheese for the season of 1>>(U, de- 1 authorize or invite the plaintiff to send 280 EDGERTON v. HODGE. the ninnpy by ninil, or make the mail the defendant's carrier of the money. The lan- Suuge of the defendant's letter iti: "I shall want you to pay me tifty dollars to l)ind it," that is, to make it a valid contract. The money, when deposited in the post- office, belonsred to the plaintiff; It bo- longed to the plaintiff while being car- ried by mail to the defendant, and it would continue the property of the plain- tiff unless aecei)ted by the defendant. The plaintiff took the ri.sk not only of the safe conveyance of the money to the defend- ant, but also as to the willingness of the defendant to accept it. The defendant's letter, not constituting snch a note or memorandum of the agreement as the statute required, left it optional with the defendant to accept or refuse part pay- ment when offerei] to him, the same as if the defendant had sent to the plaintiff a verbal communication of the same import as the defendant's letter. A point is made by counsel as to whether the money vi-as conveyed and delivered or offered to the defendant, within a rensonaltle time after his letter was received by the plaintiff, but it seems to us that the time the money was offered is not material. We think, even if the plaintiff had gone immediately after receiving tlie de[?ndant'8 letter, and offered and tendered to him the fifty dol- lars, the defendant would have been un- <ler no legal oliligation to accept it. The mere offer of the defendant to receive the money would not estop him from refusing to accept it ; but in order to take the case out of the operation of the statute, it re- quired the agreement or consent of both parries, as to payment by the plaintiff and acceptance of it by thedefendant. Up- on the facts of this case, we think the rights of the parties rest upon and are to be determined by the verbal agreement en- tered into by them on the :iOthofJune, and that their subsequent attempts to make that agreement a valid contract can not aid the plaintiff. The statute provides that "no contract for the sale of any goods, wares or merchandise, for the price of forty dollars or more, snail be val- id, unless the purchaser shall accept and receive part of the goods so sold, or shall give something in earnest to bind the bargaiti, or in part payment, or unless some note ormemorandum of the bargain be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully author- ized." The very language of the statute above quoted implies that in whichever way the parties verbally agree or propose that contract for the sale of goods, wares or merchandise, for the price of 5^40 or more, shall be made exempt from the statute of frauds, whether it be by the purchaser ac- cepting and receiving part of the goods so sold, bj' giving something in earnest to bind the bargain, or in part payment, or by making a note or memorandum of the bargain, it must be done, if done at all, by the consent of both parties. It is obvious that it would require the consent of the purchaser to accept and receive part of the goods, and he could not receive them unless by consent of the seller; the pur- chaser could not give something in earnest to bind the bargain, or in part payment, unless the seller accept and receive it; nor could a note or memorandum of the bar- gain be made and signed unless by the consent of the party to be charged there- by. A valid contract is an agreement or covenant between two or more persons, in which each party binds himself to do or forbear some act ; and each acquires a right to what the other promises; but if the parties, in making a contract like the pi'esent one. oujit to do what the statute requires to be done to niaUe a valid con- tract, it would require the consent of both parties to supply the thing omitted. Sup- pose it had been one stipulation of the verbal agreement on the 3Uth of .June that the plaintiff should give and the defend- ant receive something in earnest to bind the bargain, and in pursuanceof such stip- ulation the plaintiff had then offered to give or pay the amount so stipulated, and the defendant had refused to receive it, saying that he preferred not to receive any money until lie had delivered the whole or part of the pi'operty, or had re- fused to accept the money so offered, or do any other act to bind the bargain, with- out giving any reason for such refusal, it would be evident that he did not intend to make a binding contract. But the fact that he had made such verbal agreement to receive something or to do some other act to bind the bargain, and that the plaintiff was ready and offered to comply on his part, would not take the agreement out of the statute. A verbal stipulation to give and to receive something In ear- nest to bind the bargain or in part pay- ment, or a verbal promise to make a note or memorandum In writing necessary to exempt the agreement from the operation of the statute, is as much within the stat- ute of frauds as is the agreement or con- tract taken as a whole; and a note or memorandum in relation to giving some- thing in earnest to bind the l)argain, or in part payment, which is insufficient of itself to take the contract out of the statute, is alsoinsuflicieot to make thecontract bind- ing upon either party. The judgment of the county court is re- versed and judgment for the defendant for his costs. mJ EICHHOLZ V. BAlJINISTER. 28:$ KTfllllOLZ V. BANNISTKR. 117 C. B. [N. S.] 70S.) Common Tlias, Micliaolmas Term, 28 Victoria. Nov. 17, ISUl. This w;iH an action for inonc.v pn.vnble l)y tluMleffiiilniil to the pliiitiliff forinonc.v received l)V the (lefciiiluiit fur the use of the plaintiff, for money paid by the plain- tiff for tlie (lefeiidant at hlH reciiiOHt, and foi' money found to lie due from thedefetid- anl to tile plaintiff on uccountH staled : Claim, »:i'.l. I'lea, never inilebted, where- upon iHKue was joined. The cjinse waH tried in the court of rec- (11 cl (or the trial of civil actions within the citv of Manchester, hefore the deputy re- corder, when the fads which appeared in eviilence were as follows:— The plaintiff WHS a coniiniHsioii-anent at Manchester. Thedefendant wnsa job-warehouseman in the same place. On the isth of Ai>ril last, the iilainliff went to the defendanfs ware- house, and there saw, amon};st other goods which the defendant had just iinr- chased, 17 pieces of prints, which heoffered to buv of him at .">y,d. a yard. After some discussion, the defendant nKreed to sell them, and u'ave the plaintiff an invoice in thefollowinn form, the wlioleof whichwas printed, with the exception of the luirls in italics: — "21, Chorlton Street, Portland Street, "Manchentor. April 18th, lS(i4. " Mr. I-Jichholz '• Itought of R. Bannister, Job-Ware- hoiiseniaii. • Prints, Kents, Grey FnBtians.etc. Job and Perfect Yarns in IlanUs, Cops, and Bundles. "17 pieces o/prfa(s, 52 yds at 5J^ d. 19 " IK per cent, for cash "£1S U 0" The plaintiff paid for the soods before he left the warehouse, ami the defendant sent them by a porter to the plaintilf's place of business. The plaintiff sold the lot a few days afterwards for Xl'.l l">s. net. The gooils were snbseiiuently returned to the plaintiff, they havinR been reco^ruizetl as K'>"<ls which had been stolen from the premises of one Krauss. The j^oods were taken possession of by the police, and the thief, one Asiiinall, was tried at the gen- eral (luarter sessions of I he peace holden in and for the city of Manehister on the '.)tli of Mav last, and convicted, and sen- tenceil to pen.il servitude for four years. On the part of the defendant, it was ob- jecleil that there was no case to fi<> to the jury, inasmuch as there is no implieil warranlv of title on the sale of (roods. Kor thi' plaintiff it was insisted that he was entitled to recover, the money hiivins; been (laid upon a consideration which had wholly failed. The learned judge directed a verdict to be entered for the plaintiff for the amount c;aiined, reserving leave to the defendant to move to set aside the yer<lict and en ter a nonsuit or a verdict for the defend- ant, if the court should be of opinion that the plaintiff w;is not entitled to recover. Holker. on a former day in this term, ob- tained a rule nisi acconlingly. C. rollock now shewed cause. ERLi:, C. .1. I am of opinion that this rule should be ilischarged. 'I'lie plaintiff brintis his action to recover l>ack m<<ney which he paid (or g Is bought by liliu intheshop.of the ilefeinlant. which were afterwards liiwinlly claimed from him by a third person, the true owner, from whom they had been stolen. The plaintiff now claims to recover back the money as hav- ing been paiil by him uiion a c<insidera- tion which has failed. Tin- jury at the trial friund a verdict for the plaintiff, under the ilirection of the learned judge who presided: and a rule has been obtained on behalf of the defendant to set aside that verdict and to enter a nonsuit, on the ground tliat it is part of the common law of Kngland that the vendor of goods by the ini-re contract of sale does not war- rant his title to the goods he sells, that thebuyer takes them at his peril, and that the rule caveat emptfjr applies. The case has been remarkably well argued i-n both sides; and the court are much indebteil to the learned counsel for the able assistance they liave rendered to them. The result I have arrived at, is, that the plaintiff Is entitled to retain his verdiit. I consliler it to be clear upon the ancient authorities, tiiiit, if tlie vendor of a chattel by word or conduct gives the iiurchaser to under- stand that he is the owner, that tacit representation forms part of the contract, and tliat, if he is not the owner, his con- tract is broken. So is the law lalil down in the veiy elaborate judgment of I'arke, B., in Morley v. Attenborongh, a Kxch. 500, .'il:!, where that learned judge puts the ease upon which I ground my judgment. A difference is taken in some of the cases tietwecn a warranty and a condition:' but that is foreign to the present Inrpiiry. In iMorlev v. Attenborongh, :! Kxch. .'d:!, I'arke, B.. says: "We ilo not sn|i|>o=«e that there wouUl be any doubt, if the arti- cles are bought in a shop professedly cnr- rieil on for the sale of u<iods. that the shopkeeper must be considered as war- ranting that those who purchase will have 'I good title to keeii the goods purchased. In such a case the vendor sells "as his own,' and that is what is ecpiivalent to n warranty of title." No doubt, if a shi^p- keeper in words or by his comhict alhrms at thetimeof the sale that he is tiieotvner of the -oods, sue!) allirmatiou becomes part of the contract, and. if it turns out that he is not the owner, so that the goods are lost to the l>nver. the price wliicli he has received may be recovered back i ventured to throw out some re- marks in the course of the argument upon the doctrine relied on by Mr. Holker, wlilch ! he answered by ass.'rfion alter assertion 1 ciimiug no doubt from judges of great au- i thorltv in the law, to the effect that upon la sale"<if goods there is no inipbed war- ranty of title. The passage citc.l fr.iin N()y"certainly puts the proposition in a manner that must shock the nnderstaiid- ingotanv ordinary person, lint I takcthe : nrincipleintended to be illustrated t.i bo this— 1 am in possession ol a horse or other chattel: I neither Blllrm or deii.v that I am the owner: It you choose to S«. ' S.H- Baniiermiiu v. White. 10 C. B. (N. S.) 284 EICHHOLZ V. BANNISTER. take it aw it is, withodt more, cavent emptor: you liave no ruiiircly, tlioutrli it Mliould turn out tliat I liave no title. Wlierc tliat is the wliole of tlio transae- tiou, it may he Tliat there is no warranty of mle. Sucii seems to have been the principle on whii'li Morley v. Attenhor- oush was (leciilecl. The i)a wnhrol^er, when he sells an unredeemed pled>;e, vir- tually says, — I have under the [irovisions of the statute- a right to sell. If you choose to buy the article, it is at your own peril. So, in the case of the sale liy the sheriff of Koods seized under a fi. fa.. — Chapman v. Speller, 14 Q. B. 621. The fact of the sale taking place under such circum- stances is notice to buyers that the sheriff has no knowledge (.f the title to thegoods; and the buyers consequently buy at their own peril. Many contracts of sale tacitly express thesame sort of disclaimerol war- ranty. In this sense It is that I under- stand the decision of this court in Hall v. Conder, 2 C. B. (N S.) 22. There, the plaintiff merely professed to sell the pat- ent-right such as be had it, and the court held that the contract might still be en- forced, though the patent was ultimately defeated on the ground of want of nov- elty. The thing which was the subject of the contract there was not matter, it was rather in the nature of nrnd. These are some of the cases where the conduct of the seller expresses at the time of the contract that he merely contracts to sell sucna title as he himself has in the thing. But, in al- most ail the transactions of sale in com- mon life, the seller by the very airt of selling holds out to thebuyerthat he is theowner of the article he offers for sale. The sale of a chattel is the sti'iingest act of domin- ion that is incidental to ownership. A purchaser under ordinar.v circumstances would naturally be led to the conclusion, that, b.v offering an article for sale, the seller alfirms that he has title to sell, and that the buyer may enjoy that for wliich he parts with his money Such a case falls within the doctrine stated bj' Black- stone, and is so recognised by Littlertale, J., in Early v. Garrett,!) B. & t'. 9iS,4 M. & R. 687, and by Parke, B., in Morley v. At- tenborough, 3 Exch. .518. I think justice and sound sense require us to limit the doctrine so often repeated, that there is no implied warranty of title on the sale of a ciiattel. I cannot but take notice, that, after all the research of two very learned counsel, the only semblance of authority for this doctrine from the time of Noy anci Lord Coke consists of mere dicta. These dicta, it is true, appear to have been adopted by several learned judges, amongst others by my excellent Brotlier Williams, whose words are almost obliga- tory on me. But I cannot find a single in- stance in which it has been more than a repetition of barren sounds, never result- ing in the fruit of a judgment. This very much tends tu show the wisdom of Lord Campbell's remark in Sinis v. Marryat, 17 Q. B. 291. thai the rule is beset with so many exceptions that they well nigh eat it up. It is to be hoped that the notion 39 & 40 Geo. III. c. 99, § 17. whicli has so long prevailed will now pass away, and that no further impediment will be placed in the way of a buyer re- covering back money which he has parted with ui)on a consideration which has failed. BYI ES, J. I also am of opinion that this rule should be discharged. It has been said over and over again that there is no implied warranty of title on the mere sale of a chattel. But it is certainly, as my Lord has observed, barren ground; not a single judgment has been given up- on it. In every cause, there has been, subject to one single exception, either <lec- laration or conduct. Chancellor Kent, 2 ('om. 47H, says: "In every sale of a chat- tel, if the possession be at the time in an- other, and there be no covenant or war- ranty of title, the rule of caveat emptor applies, and the party buys at his peril;" for which he cites the dicta of Lord Holt in Medina v. Stoughton, 1 Salk. 210, 1 Ld. Kavm. .59;^, and of Buller, J., in Paslev v Freeman, 3 T. R. 57,58. "But," he goes on, "if the seller has possession of the arti- cle, and he sells it as his own, and not as agent for another, and for a fair price, he is understood tn warrant the title." Thus the law stands that, if there be declara- tion or conduct or warranty whereby the buyer is induced to believe tnat the seller has title to the goods he professes to sell, an action lies for a breach. There can sel- dom be a sale of goods where one of these circumstances is not present. I think Lord Campbell was right when lie ob- served that the exceptitjns ha I well nigh eaten up the rule. KEATING,.!. I am of the same opin- ion. Whether it be an exception to the rule or a part of the general rule, 1 think we do not controvert any decided case or dictum when we assert, that, under cir- cumstances like those of the present cose, the seller of goods warrants that he has title. These goods were bought in the (Jefendant's shop in the ordinary course of business. He gives an invoice with them, which represents that he is selling them as vendor in the ordinary course. 1 think the case falls within that put by Parke, B., in Morley v. Attenborough, 3 Esoh. .">13, of a sale in a shop, which he treats as a circumstance which beyond all doubt gives rise to a warranty of owner- ship. I was somewhat pressed by Mr. Holker's question whether there is more j>ffirmance of title in the case of a sale in a sho]) than in a sale elsewhere. It may be that the distinction is very fine in cer- tfiin cases. If a man professes to sell without any qualification out of a sho|), it is not easy to see why that should not have the same operation as a sale in the shop. It is not necessary, however, to de- cide that question now. Here, the sale took place in a t)ublic shop, in the ordi- nary way of business, and ever.v circum- stance concurs to bring the case is'ithin the distinction put by Parke, B.,iu Morley v. Attenborough. Rule discharged. f1 it El.LIS V. ANDREWS. 287 Bfll^LIS T. ANDREWS. (56 N. Y. 83.) Conrt of Appeals of New York. Feb. 21, 1S74. Action for franfl. The complaint al- leged that "snid (lefendantH fraudulently stated in 8ul)8tanco to said plaintiff that the stock of the C<jnKresH and ICiii- pire Si)rinK Company was worth at K-ust eigtity percent ui)on the par value there- oi, which Htutenietit sahl plaintiff then and there lii'licved to he true; and rely- ing tluTi'iipon yjiirchawed from the Haid de- fendants f J.'i.ddO (jf said stock, and palil tlierefiir f JO.OOli in cash, or its equivalent ; whereas, in truth and In fact, the said stock was not then worth over forty per cent, and which fact was then well known to said defendants, whereby the said plain- tiff sustained damafieH," etc. Judgment for defendant. Vj. F. Bullard, for appellant. Esck Cowcn, for respondents. GROVEU, .7. The Code, section 148, in effect provides, that the objections to the jurisdiction of the court, and that the complaint does not state facts su<Iicient to constitute a cause of action, are not waived by a failure to interpose them by demurrer or answer. The latter objec- tion therefore was properly raised by the respondents upon the trial. lu an acticjn to recover damages claimed to have lieen sustained by the fraudulent representa- tions of the defendants the complaint must set out the representations relied upon. (Jray v. Palmer, 2 Uobt. 5(J0. This case was allirmed by this court, as a|>- pear.-< from the indcK in 41 New York, (!:i(>, where it is erroneously said to have been reported in 2 Barbour. The court having dismissed the coraiilaint upon the groutid that It did not contain facts sufficient to constitute a cause of action, the only iinestlon is, whether it did contain such facts. The complaint is very brief, and in substance avers (hat thedefcndants fraud- ulently stated to the plaintiff that the stock of the Congress and Kmpire .Spring ('ompuny was worth at least eighty per cent upon the par value thereof; which statement the iilnlntiff btdieved to be true, and relying thereupon, puichased from the defendants $L'."),iiOO of said stock, and paid therefor :fiM),n()0 in cash; whereas the stock was not then, in fact, worth over forty per cent,' which fact was then well known to the defendants; whereby the plaintiff sustained damage, etc. The as- sert ion by the defendants that the stock was worth eighty percent of Its par value cannot I think be regarded as the expres- sion of an opinion as to its value, for the reason that It is averreil that it was frauilnlently made, and that they then knew that it was not worth more than forty i)cr cent. I think it mirst be re- garded as a false statement of the value, maile for thei)nrpose of olitaliiinga higher prlei> for the stock than ihey knew it was worth. The question then Is. whether such n statement so mndi- by the vendor of property, while negotiating the sale, gives the purchaser who has contracted, relying thereon, a cause of action for the deceit. This precise (juestion arose in Murvey v. Young, Yolvurton, 21. In the time of Qneen Elizabeth. In that cose the plaintiff alleged that the defendant OH- sured him that a certain term of years which he proposed to sell to him was worth CI.'JO. when in fact it was worth but tHH); and after verdict for the plaintiff in an ac- tion for the deceit, the judgment was ar- rested upon the ground that It was the lilaintiff's folly to give credit to such bh- sertion. This case was recognized uh soutid law in Ekins v. Tresham. 1 I.ev. 102; although it was held in the latter case that an action would lie for a fraud- ulent representatjon by the vendor that the premises were leased at a greater than the actual rent. The distinction Is obvious. Upon the (|uestion of value the purchaser must rely u()on his own judg- ment ; and it is his folly to rely upon the representation of the vetnlor in that re- spect; but in ri'gard to any extrinsic fact affecting the quality or vjilne of the sub- ject xf the contract, he may rely u|'on the asBurnnces of the vendor, and if he does so rely and the assurances are fraudu- lently maile to induce him to make the contract, he may have an action for the injury sustained. The doctrine thus net- tled has rarely since been (|uestioned : which accounts for the very few cases found in the books discussing the point. In Van Epps v. Harrison, ."> Hill. (>:i; 40 .\m. Dec. :!14, It is statecl as umlouhted law that an action will not lie by a pur- chaser against a venilor upon false and fraudulent statements (tf the value of the property sobi, made while negotiating tlie sale. This was concurred in by the entire court. I'.ronson, .1., was of opin- ion that the action would not lie upon a false and fraudulent statement so made, as to the prlc which the ven<lor had paid for the properly, but the majurily of the court held that an action would lie lor the latter. The eases bearing upon the ques- tion were cited anil commented upon by Bronson, .1., .Mnd a repetition is unneces- sary. Had the complaint stated that de- feuilants. upon the sale, made false and fraudulent stat<>mentH tii the plaintiff In relation to the property owned hy the corporation, its business, pecuniary con- dition, the price at which its stock was selling In the market, or any other fact affecting its value, with intent to deceive an<l defraud her, that she in reliance there- on had tnaile the purchase and been there- by injured, It woidd have shown a good cause of action. Hubbell v. .Meigs, M S. Y. 4SII. .\s to such matters a purchaser has a right to rely upon the statements of the vendor but not upon his mere statements of the value. .Vs to the lat- ter he must rely upon his own judgment, and if not suHiciently informed, must seek further Information. The complaint in this case falls to show a cause of action, and was therefore right- ly dismissed. The judgment must be af- firmed, with costs. RAPAELO, .lOlI.NSON and FOEGER. .1.1. , concur; (TirUCH. C .?., atid AN- DREWS, J., dissent ; AlvLKN, .r., absent. ELLI.s V. HUNT. 289 KI.I.IS (t nl, V. HUNT et al. I cnHCH aro foiindcil. There have iii<Ui"(| I-: T.-rin It 404* I '""'" cfiHCH, wli^ri- nlcc (lUtinctionH liuve lipcii t.ikfii on tlif fnct. wliclher thc'KooijH Court of King's Bt-nch. Micluiclinas Ti-riii. , '"•'i'' "i" I'-'i'' "ol H'>1 into the iiimeHHinn o( ITS!). till; venilce; lint llic.v till [irofeHH to >;•> ou the ^rmiiid or the ^tooiIm lieiiiK in fninMitu, Trover for a quantity of flk-H. At the vv hen they were Ktopi.eil. Ah to the iiecoH- triul I'.efore Lord Ken.voti, at WeHtiiiinKter, sity of llie kooiIh eoniin^ t(» tlie "coriio- a verillet was tal<eii for the [ilalntirfs, siih- ral toueh" of the liiiiil<rn|it ; ttiat Im niere- ji'Ct to tlie opinion of the court on tlie fol- l.v a fi;^ni ative e.\|ireHHion, and hnH never lowing ease. On the Illst of Octotier, liss, heen literally adhered to. Tor there may Moore, tlic liMntirii|)t. onlered the Kood.s lie an actual delivery (jf tlie ({oodH, with- in (luestion from tlie iilaiiitiffs, who are out the bankrupt's neelnK them ; an a de- nianufMCliirerH at Shellield ; and on the livery of the key of the venrlor's ware- 14 til of .\'o vein her folio w in j; they were sent house to the iiu re ha Her. In order to decide liy Itoyle's vva}j:Kon, directed to the hank- this ciiHe, it is inaterial to attend to the rupt in KniiLind; the wa^Koii lieiiiK over- dales ; on the L'4I h of Xovemlier the pro- loiKled, the cask was taken (Hit at Stam- visional assignment was made to \Velln, ford, in itK w:iy to town, and |iut into the who on the same day demanded the ;;oui]h defciidant Hunt's wafi;;dn, which liiduuht in (juestion of the defendant Hunt, and it to the Castle and I'alcon inn, in l^on- put Imk mark on the cask. Now it is said don, on the L'-d of .Vovetnlier 17ns. The that this sliouM have been d<ine hy the Iilaintiff's drew a bill on the bankrupt for bankrupt himself: but by the assiKn'ment part of the value of the uoods, \iliich bill he was strippeil of ail his property, which was never paid. The cask and files were, was then vested in tlie provisional as- on their arrival in town, immediately at- si^nee. Therefore, if a corporal touch taclied li.v -Messrs. Kenton and Company, were necessary to defeat the ri;;lit of the creditors of the bankrupt, by iirocess of vend<irs, It took place here. It is true foreiun attachment issued out of the may- that the provisional assicneedid not alter or's court of London ; the cask remained the situation of the j;oods ; lint they were at the inn, charj^cd with such attachment, then arrived at the end of their dcRtined HO far as the same could cliar;;e il. On journe.v, and deposited in a place where the l.'itli of November a doc()uot was they would have remained till tlie bank- struck ay:ainst .Moore; and on the IStli a rupt could have carrieil tlieiii to a ware- coniiiiission of bankrupt issued utcainst house of his own. All this happened on liiiii, on which he was declared a bank- the -4th of November ; and it was not un- rupt, and the other defendants were til the :.NIli of that month ilia t the vendor chosen his nssijiiiees. On the -4th of No- W! ote to countermand the delivery of the vember a provisional assitrninent was e.\- jioodH; but that was too late; for the ecuted by the commissioners to .John Koods were no longer In transitu, they Wells, a inessenner under the coiiiir.isKion, were then in the possession of the pnrt.v who on the suiiie day demanded the yooils to whom they were coasifcned, or of those in iiiicstion Iniiii the delendant Hunt the who represented him. In rases of this earlier, and iiiit his mark upon the cask, sort we cannot but feel for the situation but (lid not take the Roods away. On of the mamifacturer : but it issuch as they the I'stli of November tlie plain tiffsWroto are necessarily subject to from their mode a letter to the aiieiit of Itoyle's wajjfjon, of dealinfj: however the severity of the directiiiK him. in case the Roods were not case cannot induce us to break thruURh delivereil, t<i keep them in his warehouse, the rule of la w. as they had heard that Moore was be- come a bankrupt. Onthel.lth of Decern- ASHIirF^ST, .1.— TheleaniuK of my mind her the pliiintilfs demanded the cask and would be in favour of the plaintiff; but files of Molt, the master of the Castle the la w will not allow him to tie in a het- aiid Falcon, and offered to pay the car- ter situation than the rest of the bank- riajie and to indeiiiiiify him. wliich .\Iott rupt's creditors. The general rule is that refused; and upon the attachnieiU beiiiR the consignor has a riuht to stop the withdrawn, he delivered up the k<. oils to jjoods, if he can, before they Ret Into the the defendants, the assiRnecH, of whom actual possession of thebankiupt. Hut they have since been demanded: but they here, before the plaintiffs thouRht ofcoun- have refused to deliver them up. " teriiiandiiiR the Roods in (iiiestion, the ... , , , . ..„ ,, , , . , , provisional nssiRiiee, who th<u stood In Wood, for plaintiffs, llaldwin, for de- the place of the bankrupt, had actually icnilanttj. taken possession of them, and put his mark on tlioni. Lord KENYON, C. .1. — If any case had been decided to the extent of the plaintiffs UrLLKlL— I am not ilisposed to dlH- BrRument, niiinely, that bankruptcy is of turh or to lessen the authority of any of itself a couiiteriiiand, the plaintiffs here the cases tluit have lieeii decidrd on this would be entitled to recover: but that subject: but no' f them could justify the has never yet beer, decided. The doctrine vendor in this case in taking back the of stopping Rooils in transitu is bottomed Roods. In the former ca.ses th-' line has on the case of .Snee v. I'rescot, 1 .\ tk. l'4s, been precisely drawn: ami they nil turn where Lord Hardwicke estiilillshed a very on the ((uestion, whether or not there had wise rule, that the vendor iiiiRht resume been an actual delivery to the bankrupt, the possession of Roods consiRiied to the It is of the utmost iui|;ortaiice to adhere vendee before delivery, in case of the bank- to that line; for If we break throuRh It, ruptcy of the vendee: on this all the other j we shall endauRer the autbuiUy ol the L.\W SALl-i5 — 19 290 ELLIS V. HUNT. cases that have lieen already decided, and shall fritter away the rule entirely. Jn one of the cases cited Lord Manslield took the distinction between an actual, and a constructive, delivery to the vendee. There may be cases where, as between the buyer and seller, if no bankruptcy or in- solvency haiipen.the jiouds are considered in the poKsfssion of the buyer, the instant they Ro out of the possession of tlin ven- dor; as if A. order Roods from B. to be sent by a particular carrier at his own risk, the delivery to the carrier is a deliv- ery to the vendee to every other purpose, but still, if he beconie a bankrupt before the carrier actually deliver them to him, I should hold that the vendor rui«:lit seize them; because that is only a constructive delivery to the vendee: but an actual de- livep.v is necessary to devest the venilor'.s right to sto])pinR the Roods in transitu. It is fdear that bankruptcy itself does not fjut an end to the contract; and if not, the rijrlit of the vendor to seize goods in transitu is founded only on equitable principles. It is a riRht, with which he is indulRed on principles of justice, originally established in courts of e(juity, and since adopted in L'ourts of law. But in order to avail himself of it he must stop the ^oods before they get into the actual possession of the vendee. But in this case there is the strongest evidence of the consignee's taking actual possession of the goods of his assignee putting his mark on them. It was said by the plaintiff's counsel that the carrier would have been liable in an action by the vendor: but he would not have been liable in thecharacterof carrier, for the goods had got to the enil of tbeir destined journey; but he would have been liable only as a warehouse-keeper, in re- spect of tne recoiupence wnich he was to receive for warehouse-room. But the in- stant the provisional assignee put his mark on the goods, the warehouse-man became the agent or servant to the bankrupt. GROSE, J.— The general rule is perfectly clear that the consignor may seize the goods in transitu, in case of the insol- vency of the consignee, before they actually reach him. Tlie question tliei-efore here is whether, on the facts of this case, the goods were or were not in transitu when the plaintiffs wrote to countermand the delivery of them. Now it is s'tateil as a fact that before this letter arrived the pro- visional assignee had put his mark upon the cask ; and this distinguishes it from the cases cited. When the goods were marked, they were delivered to the con- signee as far as the circumstances of the case would permit; the assignee could not then take them away, because they were at this time under an attachment. After the mark was put on them, they were no longer in transitu; and consequently the plaintiff's rightto seize them wasdevested. Postea to the defendants. EMPIRE STATE TYPE FOUNDING CO. v. GKANT. 293 IMIPIRK STATK TYPE FOUNDING CO. v. GKANT, Sheriff. (21 N. E. Rep. 49, 114 N. Y. 40.) (^ourt of Appeals of New York, Second Divi- sion. March 26, 1889. Appeal from supreme court, general term, Fir.st department. Action by the Empire State Type Foundry Company against Ilugli J. Grant, slierirt of the city and county of New York. Judg- ment was given for defendant, and plaintiff appeals. Qeorye W. Ulephens, for appellant. Cuck- ran &• Clark, for respondent. Pai:ki;k,J. In March, 188G, the plnintiff, by its president, agreed to sell to one (iuy Trenielling two printing-presses, with the necessary shafting, together with a quantity of tyjjo and other printers' supplies, for the sum of .SI, 100. 'J.J, payment to be made as fol- lows: .5500 to be paid in cash, and a chattel moilgage, embracing all the property sold, to be given by Trenielling forthe balance. The plaiiitilT at once commenced to put up the shafting, set the presses, and deliver the type and other materials. When the work was about half done the clerk of the plainlilf was sent to Trenielling to collect the cash agreed to be paid. Trenielling paid S2.W, and the plaintilf went on with the work of putting the presses in working order, transferring the type and other materials, in which work the plaiutilT waseugai^ed between 1.5 and 10 days. Iiiimrdiately aftei- the materials had been put in and work coini)leted, the president of tho lilaintiff went to the oflice of Trenielling to receive the jiayment agreed upon, and there learned that Trenielling had absconded. On the same day, or the day following, tho de- fendant, as slierilT of the city and county of New York, under and by virtue of a warrant of attachment regularly issued against tho piO|)erty of Tieinelling, levied upon the ef- fects in question. Tlie plaiiitill thereupon commenced this action to recover possession of the property. At the close of the plain- tiff's case, the defendant moved the court to direct a verdict for the defendant. The plaiu- tilT asked that the case be submitted to the jury. The court denied the plaintiff's re- quest, and directed a verdict for the defend- ant, the plaintiff duly excepting. We think that the facts jiroven did not warrant tho trial court in holding as a matter of law that the title to the property had passed from plain- tiff to Tremelling, and therefore the disposi- tion made of tho case was error. It is too well settled to require the citation of author- ity, that, where a sale of personal property is made upon condition that the stipulated price shall be paid upon ilelivery, title does not pass until payment made, unless tho vendor waive the condition. Under such a contract, deliv- ery and payment are simultaneous or concur- rent acts by the seller and buyer, and although the articles may have been actually delivered into the possession of the vendee, the delivery is held to bo conditional, and not absolute, provided the vendor has not, by subse<|uent act, waived the condition of payment. If, then, the agreement between tho plaintiff and Trenielling had jirovided in express terms that payment be made on delivery, (no proof liaving been offered tending to show u sub- sequent waiver of such condition,) it would have been the duty of the court to hold as a matter of law that the title to the chattels still remained in the plaintiff. The agreement, however, did not provide in express terms that payment should be madeon delivery. Neitherdid it provide that payment and delivery should not be concur- rent. The rule in such case is that the in- tent of the parties must control. If it can be inferred from the acts of the parties and the circumstances surrounding the transac- tion that it was the intent that delivery and payment should be concurrent acts, the title will be deemed to have remained in the vendor until the condition of payment is complied with. 1 lienj. S:iles. (Amer. Kd.) g :{:50, and notes; Leven v. Smith, 1 Denio, 571; Ham- mett V. Einneman, 48 N. Y. SKU; Smith v. Lvnes, 5 N. Y. 41; Parker v. Baxter, 80 N. Y". 580: Russell v. .Minor, 22 Wend. O.V.t. The question of intent is one of fact, not of law. It is for the jury, not the court, to pa.ss upon. Hall V. Stevens, 40 Ilun, 578; Ilam- luett V. Einneman, 48 N. Y. -i'M. It appears that the defendant stipulated to pay for the materials sold, .?500 in cash, and give a chat- tel mortgage on all of the projieity for the balance; that while the materials were being delivered the plaintilf demanded and received ,$250 on account of the cash payment; th,at, immediately after the plaintilf had performed Ills part of the contract, its president went toTreiiielling's ollicelo receive payment, and found that he had absconded, and that the next day the plaintiff's president asserted to the attaching creditor that he had not parted with the possession of the goods. These facts, together with all the circumstances surrounding the transaction, under the au- thorities cited, should have been submitted to the jury under proper instruetions, to en- able them to determine whether the title jiassed to Tremelling or remained in the plain- tiff. It is suggested in one of the opinions of the court below that Tremelling had acquired an interest to the extent of .•?250 in the prop- erty which wiis subject to sale untler the at- tachment. We do not concur in that view. If it be determined that the title to the prop- erty remains in the plaintiff, the case falls within the established rule that where a vendor of chattels, when the period of per- formance arrives, is ready and oiTers to [ht- foriu on his part, and the purchaser neglects and refuses to perform for any rejison, he cannot recover back the partial payuienU he hiis made. Monroe v. Reynolds, 47 liarb. 574; Ilumeston v. Cherry, 2'3IIun, 141. The judgment of the general term and of the cir- cuit should be reversed, and a new trial or- dered: nosts to abide the event. All concur. f FAIUBAXK CA\XIN(; CO. p. METZGEIi. •-•95 FAIIIHANK CANNING CO. v. METZGER et al. (M N. E. Rep. .372, lis N. Y. 260.) Court of Appeals of New York, Second Division. Jan. 14, 1800. AtM'*""' from juflfcnicnt of tlie Rcnpral torin n( Hie Hii|ireiiie court in the foiirtli jiiiliciiil (Icpiirlii^i'iit.entercil ii|ion an order iiiiKle .laniiiir.v 11, )s.s7. wliioli olfirnicd a jiiil^iiient in favor of plaintiff enternil upon tti" report of n referee. Tills action waw brought to recover the eoiiirael price oi a car-l.oad of dressed hecf. The answer averred, hy way of counter- claiiii, .-i w;irr;nit.v thai tlie iite;il y'Miiild lie clean, well dreHsoil, nnd in first-class con- dition, not heatcil liciore liciiiK killed, and .•I lire.-icli tlierc'of liy nason of which de- fendant sustained damase. The following: facts appeared : The plain- tiff is ucorporationenjiagcd in buying and slaunliteriiij;- cattle, and selling fresh dressed beef, in (.'hicaso. The defendants are copirlners, enfj;aited in wholesaling; and relailiiiK meat. In Fel)ruiiry.lNs:i,lhe I)l,iintiff, by letter, solicited thedcfendants to purchase from it what dressed beef they re(iuired. It resulted in a contract, made entirely b.v corresiiondence, for meat to be wholesaled from the car hy defendants' a}jent,from Dunkirk toEluiiia. theportion remaining unsold when the car should reach Eliiiira to lie retailed liy the defend- ants. The defendants ordered, at different times, four car-loads of fresh beef, and pur- s:i;int to their af^reement, on rceeiiit of the bill for the second and third car-lojids, and before the arrival of the goods, paid the pl.ninliff therefor l)y a draft on New York. The referee found as facts That the iil:iiii- tiff was to deliver the beef on board the cars at Cliici^'o, which was a delivery to the defendanls. ;ind the same then an<l there became the property of the defend- ants; that liy theay,reement made between the pjirties the plaintiff represented and aj^reed lo furnish the defendants lieef that had not been heated before beina: killed; that should be thoroushly chilled before beiii}? loaded on the cars; that it should be in first-class condition in every respect, mill merchantable: that a portion of the meat furnished, iiichulinu- all of the fourth car-load, had been heated before beinu; killed, and w-as not in first-class condiHon ormerchaut.'iblewhen shipped at Chicaiio; that as to the fourth car-load the "defend- ants did all the.v could todispose of it, nnd save what the.v could from it. after the car had beenoiiened several times on differ- ent ila.vs between Dunkirk and Elniira; and, liiiilin^c they could not use it, they shipped liacU to tlieplaintiff iL'.'.l'.H pounds, and nolilied plainliif by wire of the same, and i)l;iiiitiff immediatel.v wired back that they would not receive it. whereupon the defendants ordered the same back to El- niira." The referee found, as a matti-rof law, that there was no warranty, and di- rected !\ jiHliriiient to be entered in favorof tlieplaintiff for thscontroct price. Further fnrls appear in the opinion. (I'libricI L. Smith, for appellant. Ilonry a. liviliiflil. for respoinl. 111. PARKKn, J., (after Nt.-itlirj: the fncts aa tihnvo.) In the abseac" of a warranty as to quality anil a breach, the di'feiidant'B claim for damafreH could not have sur- vived the use of the property : for in siich case vendees are bound to rescind the con- tract, and return, or offer to return, the goods. If they omit to do so. they will lie ci,nelusively presumed to have aeijuiesced in llieir (piality. Iron Co. v. I'ope, Ids N. Y. T.-2, V, N. E. Hep. X',:,. Then'fore, if the referee was right in hidding that there was no warranty as to <iuality. eollaterid to the contract of sale, we nerd not inipiire further, as the judgment must be aflinned. The referee has fotind the fai-ts. and this court may properly review his legal con- clusion as to whether they amiiiinted to a warranty. ".\ warranty is an express or implied statement of something which a pai-ty undertakes shall be a jijirt of a contract, and, though part of the con- tract, collateral to the expressed objert of it." 2.Sehouler, Pers. Prop. CJd Ed.) § >^21. All contracts of sale with warranty, therefore, must cont:iin two independent stipulations: /'7r.vf, an agreeim-nt ft>r the tr.iiisfcr of title and possession from the vendor to the vendee; secornJ. a further agreement that the suliject of the sale has certaiiKiualilies nnd conditions. It is not necessary that in the collateral agre<'ment theword " w;irranty " shotdd beused. No particular phra.seology is reipiisite to con- stitute a warranty. " It must be n re|irc- sentation which the vendi-e relies on. and which is understood by the parties as an absolute assertion, and not the expression of an oiiinion." Society v. Lawrence, 4 Cow. 440. It is noc necessary that the vendor should have intended the represen- tation to constitute a warranty. If the wilting cont.'iins that which amounts to a warranty, the vendor will not be permit- ted to say that he did not inteiul what liis language clearly and explicitly di-elart>s. Hawkins v. Peinberton, rd N. Y. l!»s. In that casethedefend.-ints purchased at auc- tion an article, relying upon the repn-sen- tation of the auctioneer that it Wiis " blue vitriol." It was in fact "Salzburger vit- riol," an article much less valuable. In an action brought against the pundiaser. the trial court directed a verdict for the plain- tiff. This was held to beerror. becaii.se the representation at the sale aiiiouiited to a warranty. .Judge E.Mti.. in di'livering the opinion of the court, after colljiting and di.scussing the authorities upon the sub- ject of warranty, said : "The mon- rtrcnt cases hold that a positive atlirmatlon, un- derstood and relied upon us such by the vendee, is an express warranty." In Keiii V. Friedman. 17 Wkly. Dig. 4sl. .ludge LK.\it.\i;ii in his opinion says: "Tlu>ivcan he no diff -rence between an executory con- tract to .sell and deliver goods of such nnd such a (piality and an executory contract to sell and deliver goods which the vetulor warrants to be of such and such a quality. The former is as much a warr.'inty Jisllu" lat- ter." The court of appeals subsequently allirmed the judgment of thegeiu-nil term, (lul N. Y. (llti, 3 N. E. Kep. IKLV l In White v. Miller. 71 N. Y. Us. frequently r(>fern«d to as the" llristol Cabbage Seed Case," the 296 FAIKBANK CANNING CO. v. METZGER. court say : " Tbo case of Hawkins v. Pem- bevton, 51 N. Y. lO.S, adopts, as the law in this state, the doctrine upon tliis subject now prevailing elsewliere, tliat <i sale of a chattel by a. particular description is a ^varranty that the article sold is of a kin<l specified." .So, too, a sale liy sample im- ports a warranty that the (lualit.v of the goods shall beequal in every res])ecjt to the sample. Brigg v. Hilton, 99 N. Y. 517, 3 N. E. Kep. 51, and cases cited. No w, in the case before us, the defendants undertook to purchaseof the plaintiff fi-esh dressed beef, to be wholesaled in part, and the T'esidue retailed to their customers. The}' endeavored to procure good beef. Not only did they contract for beef that was clean, well cIicsm'iI. in first-class con- dition in every respect, and merchantable, and that was thoroughly chilled before be- ing loaded on the cars, but, further, that they should not be given beef that had been heated before being killed. When, therefore, the ])laintilf idaced in a suitable car beet well drcs.sed au<l clean, and of the general descrijition given in defendants' order, it had made a delivery of the mer- chandise sold, and. by the terms of the ccjn- traet, was entitled to be paid as soon as the bill should reach defendants, and be- fore the arrival of the beef made an exam- ination by defendants possible. But there was another collateral engagement, and yet forming a part of the contract, which the plaintiff had not performed, — an en- gagement of much consequence to the de- fendants and their customers, because it affected the quality of the meat. Upon its performance or non-performance depended whether it should be wholesome as an ar- ticle of food. It was of such a character that defendants were obliged to rely solely upon the representation of the plaintiff in resi)ect thereto. The plaintiff orits agents selected from their stock the cattle to be .slaughtered. No one else knew, or could know, whether they were heated and fever- ish. In.ipection immediately after placing the beef in the car would not determine it. That collateral engagement consisted of a representation and ay,i-ccmi'iittliat plaintiff would deliver to the dcfend.-uits beef from cattle that had not been heated before be- ing slaughtered. Such representation and agreement amounted to an express war- ranty. The referee found, as a fact, " that the meat had been heated before being killed;" therefore therewasa breach of the warranty, and the defendants are entitled to recover their damages by way of coun- ter-claim, unless such right n)ust Ijedeemed to have been subsequently waived. It is not necessary for the dis[)osition of this case to decide, and therefore it is not decided, whether a warranty is implied, in all cases of a sale of fresh dressed meat, by the party slaughtering the animals, that they were not heated before being killed; and, as some of my associates are averse to any expression whatever upon that question at this time, what is said must be regarded as an individual view, rather than that of the court. My atten- tion has not been called to a decision in this state covering that iirecise question. It was determined in Divine v. McCormick, .50 Barb. 116, that, in the sale of a heifer for immediate coiisiiiiiiition, a warranty that she is not dise.iseil ,ind unfit for food is implied. That decision is well founded in principle, and is in accordance with a sound public polic.y, which demands that the doctrine of caveat emptor shall be still further encroached upon, rather than that the public health shall be endangered. I see no reason for applying the rule to one who slaughters and sells to his customers for immediate consumption, and deny- ing its ai)plication to one who slaughters and sells to another to be retailed by him. In each case, it is "fresh meat intended for immediate consumption. The rule is well settled, by the courts of last resort in many of the states, that a vendor of an article, manufactured by him for a jiarticular purpose. imiiliedly warrants it jigainst all such defects as arise from his unskilUulness eitlu-r in selecting the mate- rials, or in putting them together and adapting them to the required purpose. See cases cited in IS .\1I). Law J. 3l'4. One who prepares meat for the wholesale market may be said to come within that rule; because he purchases the cattle, de- termines whether they are healthy and in proper condition for food, and upon his skill in dressing and preparing the meat for transportation a long distance its quality and condition, as an article of diet for the consumer, largelj' depends. In two of the states at least, it is held that, where per- ishable goods are sold to be shipped to a distant market, a warranty is implied that they are properly i)acked and fit for shipment, but not that they will continue sound for any particularor delinite i)eriod. Mann v. Everston, 'A'l Ind. 355; Leoi^old v. Van Kirk, 27 Wis. 152. The respondent insists that the act of de- fendants' agent in selling some 00 quarters of beef, before thecar reached IClmira, when the defendants, aftei- making a personal examination, imuicdiately shi])ped that which remained unsold to the plaintiff, con- stituted a waiver of their claim for dam- ages. It is undoubtedly the rule that in cases of executoi-y contracts, for the sale and delivery of pc;i-sonal property, if thear- ticle furnished fails to conform to the agree- ment, the vendee's right to recover dam- ages does not survive an acceptance of the property, after opportunity to ascertain the defect, unless notice has been given to the vendor, or the vendee offers to return the property. Reed v. Randall, 29 N. Y. 3.58; Beck v. Sheldon, 48 N. Y.3(i5; Iron Co. V. Pope, IDS N. Y. 232, 15 N. E. Rep. 3.35. But, when there is an express warranty, it is unimportant whether thesale be regard- ed as executory or in prwseu ti, for it is no \v well settled that the same rights and rem- edies attach to an express warranty in an executory as in a present sale. Day v. Pool, 52 N. Y. 41(5; Parks v. Axe Co., ,54 N. Y. rm-. Dounce v. Dow, 57 N. Y. 16; Brigg V. Hilton, 99 N. Y. 517, 3 N. E. Rep. .51. In such cases, the right to recover damages for the breach of the warranty survives an acceptance, the vendee beingunder no obli- gation to return the goods. Indeed, his right to return them, upon discovery of the •x-cach. is questioned in Day v. Pool, su- FAIRBANK CANNING CO. v. METZOER. 297 pra. And Judge Dam-oktm in Hrigg v. Hilton, supra, after a careful review of the leading autlioritieH upon the (juention, Htalos the rule aw follows: " Where there is an express warranty, it is, If untrue, at once broken, and the vendor becomes lia- ble in damages, but tlie purchaser cannot, for that reason, either refuse to accept the goods or return them." It follows, from the views expressed, that the judgment should be reversed. All concur, except I'OLLKTT, C. J., not sitting. ll FARLEY c. LINCOLN. 290 FARLEY et al. v. LINC(JLN. (51 N. H. 577.) Supreme Judicial Court of New Hampshire. Merrimacli. June, 1872. I Replevin l)y Farley, AiiiHdcn & Co.. iiier- ! chnntH of BoHton, tt) rec()vercertuiiij;oo(lH [ ill the poMschKloii of Joliii U. Liiieoln. i PlaintiffK cluimrd thai the fjooilH were friiutlulciitly purchaKed of them im April is, ISTO, liy one A. 15. Suiiliorii, a mer- chant ill Siincook, N. 11., on a credit of ;ii) days, and that on account of hucIi fraud they were entitled to leclaim the ^oodH an<i declare the ti-anwaction void. On ' Aprd 1'7, 1^7(1, Sanborn nwide an anKi^'i- nient uniler the innolvent act to defend- ant, wlio, tof;ether with Sanhorn, on de- 1 inand, refused to deliver the j^oodw. Tappan & Mu}<ridj;e, for plaintiffs. MarHhall & Chase, for defendant. LAOD, J. SupixJiiinjj tlie fuctH to he as i claimed by the plaintiffs, we think they j mi^ht maintain trespass or replevin against Sanborn for the floods, notwith- 1 standiii)? he came to the possession of them in the first place bj' means of a fruud- iilenthale. And this stands well enough, upon tlie (ground lliat there ne\erwasany real contract of sale bet ween the jjarties by which the plaintiffs were bound. San- born acquiied no rights in the property Ijy the form of a sale which was }i;one thriMmh with, and hence Ins first as well as every sulisequent net of dominion over it amounted ton trespass, if the defendant elected so to treat it. .\(i serious question is made by the de- feiulanl's counsel but this would be so; and it is admitted furtlier, that, upon a demand and refusal, the plaintiffs nii^ht maintain trover or detinue for tlic Koods anainst this defendant. lint it Is insisted I tiiat.inasimicli as it does not api)ear that! the defendant was a party to Sanliorn'sj fraud, or had knowledjie of it, his taking by assi(<:nnien t from Sanliorn cannot be rcKai'ded as wronnful, althontth .Sanliorn had no title, and therefore that the pres- 1 ent action will not lie aj^ainst him. 'I'liis is the importatit ((uestion in the case, anil if it were to be decided upon authority [ alone, it woulil undoubtedly present con- 1 sider.ible didiculties. See Barrett v. War- 1 ren. 'i Mill, :riil. and Stanley v. (jaylord. 1 Cusli. .'):!(■>. In these two cases the author- ilii's on l)oth sides of the question are col- lected, and the whole subject very ably discussed. The New York court came out one way, holding that tri'spass would not lie ajjainst a person who comes to the possession of Koods by delivery, and with out fault on his part, e. fi.. an innocent bailee of the wrongdoer, Cowen, J., ilis- EtentiiiK: while the Massachusetts court held exactly the contrary, Wilde, J., dis- BenliiiK. To maintain trespass or replevin, there must be a wrongful taking; and the ques- tion is, whether tlie taking by the defend- ant here was wroiiRful in a legal sense, as ngaiiiKt the plaintiffs. At the time of the assignment the plaintiffs were the ab- solute general owners, nn<l were entitled to the Immediate possession of thegoodn. The assignment passed no title, and con- ferred no riilit Ufion the defendiint In re- spect to the goods as ngaiiiHt the plain- tiffs, for the obvious reason tliiit S'inliorn had no riglit <ir title in them as against the plaintiffs which he could confir upon any liody. This being so. the lirst act of possession e.\ercised liy theili'fendant over them was inconsistent with an<l in deroga- tion of the iilainliff'sright. .Misolu'eown- I'l-ship draws possession after it. If, then, the defeiidiint's act in taking thi- (losses- sion was an interference with the pl:iln- tiffs' right of actual possession growing out of theirownership. It was in legaleffect a ilisturbance of their constructive posses- sion. The defendant's act in assuming domin- ion over the property was none the loss an invasion of the plaintiffs' right, and none the less a trespass, bernusehedid not intend a wrong, or know that he was committing one. An encroachment ti|ion a legal right must constitute u legal wrong; and it is familiar law, tli:it inten- tion is of no account In a civil action brought by one man to recover damage for a wrongful inteiference with his pr<q)- erty liy another. The lawgivis the plain- tiff compensation for the injury he hassus- tained. whether the defendant intended such injury or not. Lideed. a large pro- portion of trespasses, especially to land, are doulitless conimitted tlirough inad- vertence or mistake, without wrongful In- tent, and without knowledge on the part of tile wrong doer that he has over- stepped his right. How does this case differ in princifde from that of a person who, under a mis- take as to the location of the lioundaries of his land, encloses a piece of adjoini.ig land of which the real owner has never hud actual possession, and cultivates it in the mistaken belief that it Is his own? One act is undoubtedly as free from the taint of moral wrong as tlie otiier. In both alike there is only a disturbance of a possessiiui iiurely constructive. The on- ly distinction is, that in one case the sul>- ject is land while in the other it is a chat- tel ; ami I do not si-e that this makes any more differenie tli<iii if the properly inter- fered with wi-re in one ca.se a cow, while in the other it was a horse. In Stanlev v. Cavlonl. bef<ire cited, the case of Hyde v. .Noble, i:! N. H. -I'.M, isquot- ed as an authority fully sustaining the doctrine there laid down, llyile v. .N'olde was trover by the owner of a cargo of lumber against Nolile and another, who had bought and taken the delivery <if n portion of it from the plaintiffs l)ailr«> while tr:ms|iorting it under a contract from Ilallowell and (Jardiner in Maine to Wevmoutli in Massachusetts. In deliver- iiig the opinion of the court, Parker, ('. J.. K„yK._"The purchase by the defenilants, taking possession as they appear to h'lve done, and holding it as their own proper- ty, was a conversion. They received the p'ossession from one who had no nuthor- itv to deliver it to them, under a sale which purported to vest the j.ropcrty In them: and thev. bv the purchase, under- took to control it as their own property. 300 FARLEY V. LINCOLN. This was an assumption of power over it, infonsistent with the rights of the plain- tiff. Purchasing the property from one who had no right to sell, and holding it to their own use, is a direct act of conver- sion, without an.v demand an<l refusal: their posses.sion was unlawful in its incep- tion, by reason of the want of authority in Keiiniston to make the transfer. It is only where a party obtains the posse.s- Bion lawfully, that it is neee.ssary to show a demand and refusal." The same thing in substance lias been said in several other cases in this state. Doty v. Hawl<ins, (5 -N. H.247; Lovejoy v. Jones, 30 N. H., at p. ]()9; Cooper V. Newman, 4o N. H. 33!*, and authorities cited. The facts stated in Hyde v. Noble show thatthere was a demand and refusal before tlie commencement of the suit; but tliat case has been constantly referred to, as well in this state as in other jurisdictions, to the point broadly laid down in the opinion of Chief Justice Parker, that trover without a demand liesin favorof theownerof achat- tel against one who has come to the i>os- session of it by purchase from one having no right to sell; and it would doubtless be a surprise to the profession to learn that such is not the law here. We think it is the law, and that it rests upon rea- sons quite satisfactory and sound. Par- sons V. Webb, S Greenl. 38; Galvin v. Bacon, 2 Fairf. 30; Stanley v. Gaylord, 1 Cusb. 536; — and see the able and instruct- ive dissenting opinion of (owen, J., in Harrett V. Warren, 3 Hill, at p. 3.".1. But it is very obvious that there was no con- version in the case of Hyde v. Noble, un- less the original taking was a conversion ;. and that taking was not a conversion un- less it was wrongful. If, therefore, it was not wrongful, a demand and refusal would have been necessary before trover could be maintained. But " whenever the tak- ing of goods is wrongful, trespass, replev- in, and trover without a demand are con- current lemedies for the owner, if he has the right of immediate possession." Met- calf, J., in Stanley v. (iaylord, at p. ,=)4(!, citing Wilkinson on Replevin, 2; Paugburu V. Patridge, 7 Johns. 143; 1 Chit. PI. 176; IWilbraham v. Snow, 2 Wms. Saund. 47k, I note. That being so, the doctrineof Hyde i V. Noble is decisiveof thepresontcase; for, 'according to that case, trover without a 'demand would lie here, and therefore the 'plaintiffs might bring eitherof the concur- j rent I'emedies, trespass or replevin, at I their election. ! It is undoubtedly settled that, inasmuch I as a fraudulent sale is voidable only, the vendor cannot set it aside to the injury of third persons whoha venindeexpeuditures under it, on the supposition that it is I binding. And so a purchaser for value, ! without notice from the fraudulent ven I dee, will acquire a got»d title. Grout v. Hill, 4 Gray, 369; Trull v. Bigelow, 16 Mass. 406; Bufflngton v. Gerrish, 15 Mass. I.i6; Wliite V. Garden. 10 C. B. 91"): Root I V. French, 13 Wend. 570; Mowrey v. Walsh, |8Cow. 2:3S. But no such question arises I here. The defendant was not a purchaser, 1 and hud made no expenditures under the fraudulent sale. At the utmost, his rights in respect to the property could not be larger than those of an attaching or judg- ment creditor. And the cases allare, that such creditor acquires no title that will hold against the true owner, the vendor. Load v. Green, 15 M. & W. 216; Bristol v. Wilsmore,! B.& C. 514; Van Cleef v. Fleet, 15 Johns. 147; Alowrev v. Walsh, S Cow. 23S; Root V. French, 13 Wend. 575; Buf- flngton v. Gerrish, 15 Mass. 156. "An as- signee takes the thing assigned, subject to all the equity to which theoriginal par- ty was subject.'' Ld. Manf field, in Pea- cock V. Rhodes, 2 Dougl. ()36. We have not thought it necessary to go into a minute and extended discussion of the question raised in this case. The au- thorities to which reference has been made furnish an ample and exhaustive review of the whole subject, and all the authori- ties. From a careful examination, we are brought to the conclusion that the taking by the defendant was in the eye of the law wrongful, and a disturbance of the plain- tiffs' constructive possession; and, there- fore, that, upon the facts claimed, the ac- tion may be tuaintained. Case discharged. FARMERS' PHOSPHATE CO. v. GILL. 803 FARMERS' PnOSPHATE CO. v. GILL. (10 Atl. Rep. 214, 09 Md. r..37.) Court of Appcal-s of .Maryland. Dec. 14, 1SS8. Afipoal from superior court of Balti- moip city. Action of trover by the Formers' PIioh- phate C'cjnipuny oRuinst John Gill, iih- Hifinee of SymiMKton Bros. & Co. .Iiiili>- ment for defendant, unil plaintiff appeals. liefore MILLKK, IRVING, BltYAN, and MeSUKRRY, .IJ. Fielder C. Slinglutf, for appellant. Wm. A. I'isher and D. K. Este Fisher, for ap- pellee. MILLKU, J. On the 4th of June, 18S7, the Hrni of Symington IJroH. & Co., of 15altimore, manufuctiirern of fertilizeris, made an assignment of all their property | to .Mr. John Gill for the lieiielit of then- oreditors; and the (iiiestion in this case is whether a cargo of South Carolina river Htock phosiihate passed to the assignee, under this aHsiirnmeiit. The (inestion is j raised l)y an action of trover brought by , the Farmers' Phosphate Company, the j vendor of the Symingtons, against Mr. ; Gill, their assignee, for the conversion of i this property. The facts essential to be | stated, and about which there seems to I be no dispute, are as follows: TIk- con-; tract of sale, made in Baltimore on the! l.")tli of February, lss7, by Mr. Cottninn, who was the broker for l)oth vendor and vendees, is in these terms: "Sold to Mess. Symington Bros. & Co., for account of Farmers' Phosphate Co., a cargo of about live (500) hundred tons undried river rock phosphate, delivered along-side buyer's vessel at Dale's creek at $i.')() i)er ton 1!,L'40 Ins.; for delivery latter part this month or 1st t)f March, ISs". Hock guar- antied (U) per cent, bone phos. of lime on dry basis. Should rock run below (10 i)er cent., proiinrtionate allowance to be made. Hock to lie weighed here as landeil, by sworn weigher, at seller's- expense. Payal)Ie by note to buyer's order at four (4) months from date of bill of lading, adding interest, or cash on arrival here. .L II. Cottman." The Symingtons then, on the 12th of March. ISsT, chartered a vessel to bring this cirgo from Dale's creek, Coosaw river, S. C, to Baltimore, the charterers paying freight, etc. The vessel arrived at Dale's creek the latter part of April, and completed the lading of lier cargo on or l)cf<>re the 7th of May. On this last-mentioned day the master made out a bill of lading, whereby he ac- knowledged the receipt of the cargo from the Farmers' Phosphate Company, to be ilelivered at Baltimore " unto Symington Brothers and Co., or to their assigns." This the master delivered to the phos- phate company, who indorsed it, " De- liver to the order of J. 11. Cottman," (the broker who effected the sale.) and he in- dorsed it "Deliver to the ordM- of .Syming- ton Brothers and Co.." and deH-'cred it to them on the 14th of May, one wtxk after it« date. It also ajtpears that the Sym- ingtons insured the cargo for their own henetit. The vessel arrived at Baltimore on the 24th of May, and immediately commenceil discharging her cargo at the wharf of the Symingtons, they having paid the freigiit thereon. As tlie dis- charge |)roceedeil the rock was wiiglied, and there was also an analysis of it made by a chemist, which showed that it was above the standard (i.xed by the contract. The discharge was comi)leted on the 'Mnt of .May, and on tlie sai!ie day Cottman made and sent to the Symingtons a bill for the phosphate. >iot receiving any re- plj' for several days, he telephoned there on the morning of the day on which they had executed their assignment, to know whether they were going to pay for the cargo in cash or by note, and received a reply that they liad sometiiing to say to him on the subject. lie immediately w-ent to their ollici-. ami was surprised to learn the}' had made an assignment. He then asked them to give him their note for the cargo, l.'ut they declined to do this, as they did not thiidi it \V()uld be right for thi-m to do so alter they had asr>igned their property for the benelit of all their creditors. Subseiiuently, on the Dtli of June, the [)hosphate company, by their counsel, made demand on .Mr. Gill, the assignee, for the iiroperty, and on the fol- lowing day the .Symingtons wrote an<l mailed a letter to the con:pany, inclosing their note for the cargo, made out in ac- cordance with the terms of the contract of sale; but the company, declining to re- ceive this note, returned it to the assignee, and l)rought this action of trover. Upon thcs(- facts the i|ucBtion is, was the title to this propei-ty vested in the Symingtons when they executed tlieir ussignnicnt.or wasit still in the phosphate company, the vendor? The (picstion is an interesting one, and has been exceed- ingly well argued. On the part of the ap- pellant company it is contended that by the terms of the contract the sale is con- ditional, anil that no title vested in the liuyers Ijecause the condition of paying by note or in cash hail not been complied with or waived. On the other hand, coun- sel for the appellee deny that such is the proper construction or effect of the con- tract, and contend thot the title passed by delivery of the cargo on board the buy- ers' vesselnt Dale's creek, and. if not by such delivery alone, it clearly did wlien accompanied or followed by insurance for the liuvers' lienefit. and transmission to them of the bill of lading. We think the law is well settled that where a l)uycr purchases or orlers a specllic (|uantlty of goods to be shipped to him from a distant place, and the seller segregates and ap- propriates to the contract the specilied quantity bv delivering them ti. a vessel designated by the buyer, or, in the ab- sence of such designation, to a common earlier, the mere fact that the conlroct contains a stipulation that they arc to bo paid for liv note or in cash on arrival, does not iireveat the title from passing, or nake either payment or arrival a con- dition iirecedent thereto. In such case tho goods become the property of the vendtv, and are at his risk from the time they are put on board the vessel. .Magruder v. Gage, :i:! Md. :144 ; .-\ppleman v. Michael. 43 Md. 2sl ; Dultou V. Solomonsou, 3 Uos. ik 304 FARMERS' PHOSPHATE CO. v. GILL. V. 584; Fragano v.LonK,4 Barn. & C. 219; [ Alexander v. Garriner. 1 Bins- N. C. 671. In the case last cited tliorc was a stipu- lation in the contract tliut the goods were to be paid lor "by a l)ill at two months I'/oni the date of landing." The goods' were shipped from Sliyo, in Ireland, to | London, and while in transit were lost or damaged by aliipwreck. In an action by the vendor against the vendee for goods bargained and sold, this term of the contract was relied on by the defend- ant ; but Tindal, C. J., said " the object of thatstipulation was merely to fix the time ; of payment, and not to make tlie landing. a condition precedent," and added that for that point it is enough to refer to the decision in Fragano v. Long. In this view all the other judges concurred. If, therefore, there was no other stipu-j lation in the contract, the case would be! free from difficulty. But tliere are two other clauses introduced for the purpose of ascertaining the exact amount to be l)aid by the vendees. The first stipulates that the cargo shall be weighed in order to find out tlie number of tons to be paid for at the stipulated price, and the sec- ond requires its quality to lie ascertained. As to the latter provision it must be no- ticed that it gives the vendees no right to reject the rock if it did not come up to the prescribed standard, but simply secures to them a proportionate abatement in the price if it fell below it. What, then, is the effect of these stipulations on the transfer i>l title? This presents the only real difficulty in the case. Where the agieenient is for the sale of goods, and also for the performance of other things, it becomes important to ascertain wheth- er the performance of any of these things is meaiit to precede the vesting of title or not. This is a question of the construc- tion of the agreement, and it may often happen that the parties have expressed their intention in a manner tliat leaves no room for doubt. When, ht)wever, they have not done so in express terms, the in- tention must be collected from the whole agreement, and for this purpose (asstated liy Lord Blackburn in the recent edition of his book on Sales) the English courts have, since the beginning of the present centuri', adopted two rules of construc- tion, both derived from the civil law. The first is that, where by the agreement the vendor is to do anything to the goods for the purpose of imtting them into that state in which the purchaser is to be bound to accept them, or, as it is some- times worded, into a "deliverable" state, the performance of those things shall (in the absence of circumstances indicating a contrary intention) be taken to be a con- dition precedent to the vesting of the prop- erty. The second is that where any thing remains to be done to the gcods for tlie purpose of ascertaining the price, as by weighing, mensuring, or testing the goods where the price is to deiiend on the quan- tity or quality of the goods, the perform- ance of these things also shall bo a condi- tion precedent to the transfer of the prop- erty, although the individual goods be as- certained, and they are in a state in which they ought to be accepted. The learned author approves the first rule, but sug- gests that the second was hastily adopted from the civil la «, without adverting to the great distinction made by the civil- ians iietween a sale for a certain price in money and an exchange foranything else; a distinction which is not recognized by the English law. He remarks that in gen- eral, weighing, etc., must, from the nature of things, be intended to he done before the buyer takes possession of the goods, but that is (juite a different thing from in- tending it to be done before the vesting of the property; and he intimates very strongly that in his judgment this second rule has no foundation in reason. 2 Blackb. Sales, (2d Eng. Ed.) 127, 12S. The view thus taken by Lord Blackburn is supported by the very vigorous opinion of Cockbnrn, C. J., in Martineau v. Kiteh- ing, L. R. 7 Q. B. 449, in which he declared he would not give way to a rule which appeared to him to militate against prin- ciple and to be inconsistent with common sense and convenience; and he insisted that if you can gather from the whole cir- cumstances of the transaction that the buyer and seller intended that the prop- erty should i)a.ss and the price should be afterwards ascertained by measuring or weighing, there was nothing in principle, in common sense, or practical conveni- ence to prevent that intention from hav- ing effect. The other judges did not dis- sent, l)ut thought the case before them could he decided on other terms of the con- tract, without determining whether there was any inexorable rule of law that the property will not pass where the price or amount to be paid remains to be ascer- tained by weight or measurement. In this country Mr. Newmark, in his recent work (;n Sales of Personal Prop- erty, after stating the English rule, sub- jects it to the qualification th;\t it applies incases where there is no evidence tending to show the intention of the parties to make an absolute and com[)lete sale with- out perform.ance of the acts of weighitig or 7neasuriag. Newm. Sales, § 74. We have also American decisions, by courts of the highest authority, which h<jld broadly that the performance of these acts, where provided for in the contract, is not essential to the transfer of title. Such, as we understand it, is thedecisicm of the supreme court in Leonard v. Davis, 1 Black, 47(i. In that case there was a sale l)y written contract of a large quan- tity of pine logs lying in and near a boom, which it was supposed would makeabout 1,444,000 feet of luml)or in board measure. The contract specified one price per thou- sand for those logs that wereafloat in the boom, and another for those on the bank and in the marsh near the boom. It was also a part of the contract that the logs should be counted, measured, and scaled bj' the boom master. The suit was by the vendors against the vendees upon this contract for the purchase money of all the logs. The court below instructed the jury that the contract was executory, and that the title did not pass until the logs had been measured; but the supreme court reversed this ruling, and held that it was a sale without condition, that the FARMEUS' PHOSPUATE CO. v. GILL. SOS inensurement was simply to ascertaiu the jimomit to l)e i)Oi(l by the vendeeB, and that llie tiUc to tlic Iorh pastiPd to tlicm aH HOOK HH the foil trni't was HiKiied and there had been a Hyniboliial delivery there- iiiidiT. Af-ain, in Hatch v. Oil Co., 100 t;. S. II!.'), the same court reiterated tlie doc- trine that, where it appears that there haH been a complete delivery of the prop- erty in accordance with the terniH of Male, the title pawHCH, althouuih there remains .something to be done in order to ascer- taiii the total value of the i;o(jdH at the ratospecitied in the contract. To the same effect are the New York cases of Crofoot v. liennett, 2 N. Y. 2.'>.S, and liurrows v.Whit- aUer, 71 N. Y. I'D'.t. But takint? the rule with 4he <iualilicationK stated in New- mark on Sales, we lind in this case abun- dant evidence to show that it was the in- tention of the parties that the title should pass before the Kf'ods had been weighed and tested in ISaltimore. The buyers chartered a vessel to hrinj; the cargo from South Carolina to Baltimore, insured it for their own benefit, and became re- sponsible for the freight. But, what is tnore important, and more significant, as indicating the intention of the vendor compan.v, they had a bill of lading made out l)y the master as soon as the vessel was loaded at Dale's creek, stating on its face that the cargo was to be delivered to the vendees or to their assigns, and procured the same to be delivered to the Symingtons within a week from its date. .Now, it may be true that the transmis- sion of a bill of lading maj' not in all cases be absolutely conclusive of title jis be- tween vendor and vendee, or consignor and consignee, yet the implication is al- most irresistible that the motive of tlic vendor, when the bill is taken in tlie name of the vendee, is to vest title in the latter, free from all conditions. Key v. Cotes- worth, 7 Kxch. ."ill.'), and note. Ab a gen- eral rule a bill of ladingupcratesa transfer LAW SALPS — 20 of the property to the party In wliose favor It is drawn, and to whom It Is de- livered. Citation of authority on this point is unnecessary. It the vemlors In this case had wisheil to prevent the prop- erty from passing, and to retain the right to deal with It after shipment and while in transitu, they should by the liill of lad- ing have made the cargo deliverable to their own order, and have forwarded the same to an agent of their own. with di- rections to retain it until the cargo had l)een finally delivered, weighed, tested, and paid for in Baltimore. Kx parte Banner, 2 Ch. Div. 2hh. But this they did not do, and all the circumstances of the transaction show it was the Intention of both parties to have the cargo become the property and be at the risk of the vendees from the moment it was put on board the carrying vessel. In fact it was for the manifest interest of the vendors that this should be the case, for If the cargo had been lost by shi|)wreck of the vessel they could have made the vendees responsible therefor In an action for goods bargained and sold, and there would have been no insuperable dilficulty In the way of their recovery. Upon the whole case, therefore, our opinion is that this cargo became the property of the Symingtons from the time it was delivered on board their vessel at Dale's creek, and conse- quently iiassed under their deed of assign- ment. The case is unlike that of a sale "for cash on deliverv," considered in Pow- ell V. Bradlce, '.) Gill & .1. 220, and we think it is also distinguishable in material facts and circumstances from that of Whitney V. Eaton, I.") (irny, 225, so much relied on by counsel for the appellant. It follows, therefore, from the undisputed facts of the case that this action cannot be main- tained, and consequently there has been no ruling prejudicial totheappellant made by the court below in its action upon the prayers. .Judgment afFirmed. FIELDER V. ST.VHKIX. 807 FIELDER T. STAUKIN. (1 n. Bl. 17.) (Court of Common Pleas, Trinity Term, 17S8.) This WHS an aotion on the warranty of a niare, " tliiit mIir wbh huuhcJ, guiet, and free from vice and bleinisli." I'lea, nDii-UKouuip^it, on wliicb isHue wnH joined. — TliecanHe enme on to be tried at the last asslzeH at Tlictford, before Mr. Justiee .'\HhluirHr, and a verdict found for the plain- tiff. It appeared on the tiial, from the learned juil^e's report, that the plaintiff had bouHfht the mare in qucHtion of the ilcfendant at Winnel fair, in the month of .\Lircli, 17S7, for :io f>uinoaN, and that the defendant warranted her sound, and free irom vice and blen)i8h. — Soon after the wale, the plnlntiff discovered that she waH unsound and vicious (a), but i;ept her three months alter this discovery, duriii}; wliich time he nave her physic and used other means to cure her. At the end of the tliree months he sold her, but she was soon returned to him as unsound. .Mter she was so returned, the plaintiff kept her till the month of October 17n7, and tlien sent her back to thedefenilant asunsound, wlio refuseil to receive lier. On her way back to the plaintiff's stable, the mare died, and i,n her beinj; opened, it was the opinion of the farriers who examined her, that she had l)een unsound a full twelve- month before her death. It also appeared that the plaintiff and defendant had been often in company to<;ether durinK the in- terval between the month of March, when the mare was sold to the plaintiff, ami October, when he sent her liack to the defendant; but it did not appear that the plaintiff had ever in that time accjuainted the defendant with the circumstances of her bejnir unsound. The jury found a ver- dict for the plaintiff with 30 guineas duni- ages. .\dair, Serjt. shewed cause. Le Blanc, Serjt., in support of the rule. Lord LOUUIIBOIiOUOH— Where there is an express warranty, the warrantor un- ilertakes that It is truc.-tt the tinieof mak- ing it. If a horse which is warranted sound at the time of sale, be proved to have been at that time unsound, it is not necessary that he should lie returned to Hie seller. No length of time elapsed after the sale, will alter the natiin- of a ron- tract originally false. Neither Is notice nw-essary to be given. Though the not giving notice will be a strorg presump- tion against the buyer, that the liorse at the time of the sale had not the ficfect complained of, and will make the proof on his part much more dlltlcult. The l)nr- galn is complete, and if it be fraudulent on the part of the seller, he will l>e liable to the buyer ia damages, without either a return or notice. If on account of a horse warranted sounil, the buyer should sell him again at a loss, an action might per- ha|)s be maintained against tlie original seller, to recover thedlfference of the price. In the |)resent case it afipears from the evidence of the farriers whr) saw the more opened, that she must have been unsound at the time of the sale to the plaintiff. fiOI'LI), J.— of the same opinion, re- membered many cases of express war- ranty, where a return was not held to be necessary. HEATH, .1.— If this bad been an Bction for money had and received to the plain- tiff's u.-ie. an Immediate return of the mare would have lieen necessary; but as it is brought on the express warranty, there was no necessity for a return to make the defendant liable. WIL.so.X, ,1. — of the same opinion, rec- ollected a cause tried before .Mr. .lustlce liuller at nisi prius. where the defendant had sold the plaintiff a pair of coach horses and warranted them to be six years old. which were In reality only lour years old. It was cuntendeil that the plaintirr ought to have returned the horses; but .\Ir. J ustice I'.nller held that the action on the warranty might be sup- |)orted without a return.' .As to part of the evideiice being contrary to the verdict, the jnr.v have a right to use their discre- tion either in believing or disbelieving any part of the testimony of witnesses. Uule discharged. ' See Towers v. Barrett, Term Rep. B. R. vol. i. p. i:{(>. [and Bucbanau t. I'ornsbaw, vol. 2, p. 745.1 i FIRST XAT. HANK v. CKOCKER. :m FIRST NAT. BANK OF CAIUO v. CROCKER et al. (Ill Mass. 1G3.) Supreme Judicial Court of Massachusetts. Suf- folk. Nov. I«7:i. Tort {iKiiiiiKt ('r<)ci<L'r, Smith & Co. for the convt'i'rtioii of 100 harrolH of (lour. It Jicpi''""'"!' <'" tlio trial tlint .A y era & Co., i)f Cairo, llliiioiH, had dealt with defetid- aiit coiiiiiiiriHicjii iiiercliaiits in HoKtoD for Home .M'arn, Hhipiiiiij; tliciii fl(/iir on coti- KiKiiment, for Halo in l'<jHtoii. and liavint; fitiopen Kt'iii'ralconHijinincnt a'count with tht'iii. Avers iV: Co., on .VuKii-it L':!, !.S70, 1 (•onsl>;n((l to them Home Hour, and drew on j tlieni forinorethan itH value, writing them that they woulil make it all ritcht in the tie.xt Hhipment. The defeTidantH paid the draft, which left Ayers \- Co. iiidelited to defendants for about f l,.')ll(). On August LM, 1S70, AyerM& Co. shipped the 100 barrels of (lour in diKputc to Boston, taking a hill of lading "consigned to Hhii)per'H order liostou, Mass.." but on which wuh writ- i ten "St. Louis Mills and Blackburn. For! < rocker, .Smith ifc Co., Boston, MaHs."j They then drew on defendants with bill of I lading attaclied, and discounted the draft, j which defendants refused to accept, and I it was returned to defendantH with thej bill of lading. When the Hour arrived in i Boston, September \2, ISTO, it was ac- companied liy a way t)ill, on which, under "Consignees," was written "(Jrocker, Smith & Co., Boston;" and tlie Hour was received b.v them and sold, and applied to the account of Ayers & Co. Septeml)er 14, 1S70, Ayers & Co. drew a draft on account of tlie 100 barrels of Hour on (Joodwin, Locke & Co. of Boston, in favour of plain- tiffs, and attached to it the lull of lading. Thedraft was accepted an<l paid when due. The bill of lading was endorsed iu blank when delivered by Ayers •& Co., lint when forwarded b.v plaintiffs the words "Deliver within-nanied Hour to (Jood win, I..orke & Company, or oi'der," were written over the endorsement of Ayers & Co. .A.Churchill & J.E.Hudson, for plain- tiffs. A. A. Ilanney, for defendantH. AMICS, J, It is manifest that the flour was not i)laced in the hands of these de- fendants (or the purpose of securing an existing debt, or inilenmifying them for any advances that they had made. It was not consigned to them in order that it might be sold, and the proteeds curried to the credit of Ayers & Company in gen- eral a<'':ount current. It is true that the consignors knew that they had over- ilrawn their accniinr, and that tliey had expressly promJKed to "make it all right" at the next Hhijiment. I'.ul that was an executory contract. The proposed cor- rection stoi>d wholl.v in agreement. A general promise to make the matter right was not of itself sullicient to vest in tlie defendants a title as absolute owners, even of the goods forwarded at the next shipment, unless the circumstances in- dicated, or at least wert> consiscenf with, Huch an intention on the part of the ship- pers. But in this case, tlie consignment and the draft constituted one transac- tion. The bill of lading and the draft came together; a]id the flefcndnntH under- stood that the Hour was si-nt tu them, subject to a claim of f.jOO io fa vor uf the holder of the draft. They were to receive it ui)on the trust that tliey wore to pay that amount out of the proi-eeds. The meaning of the transaction on the part of the shippers was that the defendants were to receive it for that purpt.se and upon that underHtanding oidy. It was as if they had said, " You may take this flour and sell it on our account, (irovliled you will accept this draft." A 1)111 of lad- ing indorsed Is only prima facie evidence I f ownership, and is open to explanation I'ratt V. Parkman, iM Pick. 4'.'. This hill of lading was provisional, and was not Intended to vest the property in the de- fendants, or to authorize their takini; possession of it, except upon the condi- tion of their acceptani-e of thedraft. Al- ItTi v. Williams, li* I'ick. -".I7. The act of the defendants, therefore. In taking |)OsseHHion of the Hour was whtdly unauthorized, and gave them neither valid title nor la wful possession. .Mien v. Williams, ubi supra. In proceeding aft- erwards tc sell it as if it were their own. and appropriating the proceeds, they were guilty of a wrongfid ((inversion. .\ carrier may be a mere bailee for the con- signor; anil where by the terms of the hill of lading the goods are to ho delivered to the consignor's order, the carrier is his agi'iit, and not the consignee's. Moakes V. .Nicolson, l'.» C. B. (N. S.| IttO. Baker v. Fuller, i;l Pick. ;!1S. Merchants' .National Bank v. Bangs, lOl! Mass. 'JOl. On the re- fusal of the consignee to receive the goods upon the terms ami for the purposes for which they were sent, he cantiot take them for anv other purpose. Shepherd v. Harrison, L. K. .1 II. L. IIG. De Wolf v. (iardner, ]2 Cash. I'.l. 2:t. Allen v. Wil linms, 12 Pick. 207. The title to the Hour therefore remained in the shiiiper, whidly I unaffected by the consignment. Kven In I the case of a contract of sale, the fact of ; making the bill of biding <lcliverable to i the order of the vendor, when not rebnt- I ted by evidence to the contrary is decisive , to show his intention to preserve the jus- (lisponenili, and to prevent tlie property from passing to the vendee. Wait v. Baker, 2 Kxch. 1. \>\n Casteel v. Booker, Ih.CpOl. The case of a mereconsignment to an agent would he of course still stronger. 1 I'pon the refusal of the defendants to ac<ept the C4iiisignmcni upon the terms prop>ised, wliicli refusal was suHlclenlly mnnifesteil by the protest of the drafi and j the return of the bill of lading, the owners I of the Hour, .\yers \ Company, had a riglit i to seek a ni'W consignee, and to make I another attempt to obtain an advance ' by n draft t<i be chargeil against theprop- erty. .\u arrangement was accordingly made with thi- plaintiffs, who discounted tlieirdiiift of ?lail u|iou the security of the same bill of hiding that had been sent to the deleiulanis and returneil liy them. If this bill of lading was delivered to the I pl'iintiffs. indorsed in Idank by Ayers & [Company, (and there Is testimony to that I effect,) tiie transactiiin wouhl operate as i u transfer of their title in the flour to the 310 FIRST NAT. BANK v. CROCKER. plaintiffs, if suoh were the intention of the parties. Ah the property was at that time in Boston, it was of course incapable of aetiial ilclivery at (.'airo, and tlie delivery of tlie evidence of title, with the Indorse- ment upon tlie hill of lading, was all that could be done for the transfer of the prop- erty from tlie general owner to the new purchaser; but it would be effectual for that purpose. Conard v. Atlantic Ins. Co., 1 Pet. :W(i, 44.'). Gibson v. .Steven.«, 8 How. :1S4. Brvans v. Nix. 4 M. & W. 775, 791. Low V. i)e Wolf, S Pick. 101. (Jord- ner V. Howland, 2 Pick. .')!)!). Stanton v. .Small, ;> Sandf. 2.30. Pratt v. Parkman, 24 I'ick. 42. In Gibson v. Stevens, the court say, per Taney, C. .!.: "This rule applies to every case where the thing sold is, froni its character or situation at the time, ;n(!apal)le of actual delivery." To the extent of their advance of money upon the draft, therefore, the fjlaintiffs would be ciwisidered as purchasers, and they would acquire a special jiroperty in the flour for tlie purpose of pr(jtecting the draft. At the time of this transaction, the flour remained in the possession of the (lefen<lants, and, with the exception of taking pi^ssession, nothing had been done on thi'ir part amounting to a wrongful conversion of it to their own use. They had not [uit it out of their power to re- place the shippers in the enjoyment of their rights. It ai)pears from the report, that, when the bill of lading was forwarded the sec- ond time, the name of the firm of Good- win, Locke & Company was written over the indorsement of Ayers & Company. l?ut we do not tliink that this fact, whether the blank indorsement were tilled up after or before the discount of the draft, would materially affect the plain- tiffs' rights. The bill of lading was at- tached to the draft, and the substance of the transaction was that thedi'aftwas discounted upon the security of the mer- chandise itself. It purports to he on ac- count of the liarrels of Hour described in the bill of lading. The tlour, alihough in- trusted to Goodwin, Locke i.^ Company to sell, was appropriated to the specific pur pose of the payment of this draft. The bill of lading was put in the plaintiffs' hands to enable them to hidd the mer- chandise as their security, and the dis- counting of the draft was the co7isidera- tion for the transfer of the property to them. It was convenient so to indorse the bill of failing, as to make it manifest that Goodwin, Locke & Companj' were tc» receive and dispose of thegoods; but they were to do so as trustees and agents of tlie plaintiffs, and not as proprietors in their own right. Tliey certainly acijuired no title in the property until they had accepted the draft, and when that event hap))ened the goods had been disposed of by the defendants, and had gone into the hands of bona fide holders without notice, so as to be be.vond recall. The effect of this transaction bcttveen the plaintiffs and Ayers & Company was that the Hour was designated to st;ind as collateral se- curity for the draft. If the draft had not been accepted, the plaintiffs clearly would not have lost their title to the flour. It is not necessary to hold that the plain- tiffs became absolute owners of the prop- erty ; it is enough that they had a riglitof property and possession to secure the payment of the draft, and the right of Ayers & Company as former owners of the specific property had become divested, leaving them only a right in the surplus money which might remain after a sjile of the flour and a payment of the draft from the proceeds. lie Wolf v. Gardner, 12Cush. 1!). has in many respects a close analogy with this case. 'J'here the gen- eral owner of the flour was the plaintiff, and the defendant was a party claiming under the new consignee, and the court held that the plaintiff had parted with the right of property, and could not maintain his action. In Bank of Rochester v. Jones, 4 Coinst. 407, as in the case at bar, the plaintiffs had di.'-counted a draft drawn by the owner of a quantity of flour upon the defendant, who, as in the case at liar, refused to accept the draft, and claimed to hold the flour and sold it for the payment of a balance <lue from the drawer. Instead of a bill of lading, there had been a carrier's receipt, which the drawer delivered, unindorsed, to the plaintiff bank. The agreement was that the bank should hold the flour as security that the diaft should be accepted, but with ijower to sell it if the draft should not be accejited. The court of appeals held that the defendant could not acquire any propert.v in the flour, except by per- formance of the condition imposed, name- ly, the acceptance of the draft; that the transaction between the consignor and the plaintiff bank gave to the latter a gen- eral or special property in the Hour; that the transaction constituted a sale to the bank in trust for the fulfillment of the agreement; that the carrier's receipt, though not indorsed, was sufficient evi- dence of the plaintiff's right of possession; and that the statute of frauds was not applicable, as the deliver.v of the receipt, in consideration of the discount of the draft, was surticient to transfer the title. In legal effect, and for the purpose of ex- plaining what is to be done with the merchandise, there can he no substantial difference between a bill of lading and a cari-ier's receipt. We have then in this case an intent of the general owners of the flour to make use of it as a securit.v for an advance of money from the plaintiffs; a delivery of the bill of lading in pursuance of that in- tent; and a valuable and executed con- sideration in the discounting of the draft. The fact that the goods were in the cus- tody of the defendants would not prevent this arrangement from having the effect to transfer the title of Ayers & Company to ilie plaintiffs. Whipple v. Tha.ver, 16 Pick. 25. McKee v. Judd, 2 Kern. 622. Whether it should be regarded as a sale, a pledge or a mortgage, there was a suffi- cient (lelivery to give to the plaintiffs a special property, which they could enforce 1..V suit against any wrongdoer. They had a i-ight to transfer the property, sub- ject to the same trusts upon which they held it themselves, to their eorrespond- eut or agent in Boston, and it may well FIRST NAT. BANK v. CROCKER. 311 tip tlint, if the drnft liiiil been uccented by Goodwin, l^ocke <fe roinpnny liefore the flour hml been Hold iiiid placeil out of their reach, tliei' would luive been the proper parties to have brou^lit tlilH netloii. Hut the transfer to them (or that reason wholly failed to take effect, and tliey ac- (]uire(l no title t<i the (lour K|)ecHieally If they had nccciiled the draft before the flour had been sold to a boim firU; pur- chaser, the case would have been almost exactly like Allen v. Williams, above cited. That was a case in which the conHiy;nce of merchandise refused to accept the dralt which accompanied the bill of ladiii)^, and took possession of the merchandise, claim- in(r as in this case the riKlit to do so in order to secure a balance due to l.im from the consignor. The court hold that a new consignee could mnintain trover a;;ainNt him. Our conclusion then Is. that at the time of (he sale of the flour by the defend- ants, the plalntiffH hail a ri);lit and prop- erty in it, which, whether Rcneral or Hpe- cial. and whethi-r as purchasers, truHtees. pled^eeH or mortKaKees. i;ave theiu u right of possession as against all wrong- doers; and that the defendants had no title whatever and w ere mere wninnflocrH. The fa(!t that the draft has been |iaid by the new consicnees does not (irevent the plaintiffs from niaintninlUK the action fur the beni'lit and (jrotection of the a<-cept- ors of the draft, who without fault o( their own have been de()rived of the Hecur- ity upon whi(di it was discounted. Judgment for the plaintiffu. FIRST NAT. BANK v. DEARBOKN. 313 FIRST NAT. B.\NK OF GRKEN BAY v. DEARBORN. (11.5 Mass. 219.) Supreme Judicial Court of Massachusetts. Suf- folk. June 18, 1874. Ufplcvin of 100 liarrcU of flour. CoKe witliilruwii from tliL' jury, nnd I'eporti'd i to the Kii|)r('ine court. The followliif^ i« the siil>htiince of the report : !{.(). I'orks.of (ireen May, Wis., was innn- i)f!icturiiit> Hour at Necnali, Wis., at wliicli place the plaintiff hank wa.s established. I'nrkf had Hliipped Hour to Harvey, .Scud- der i!ic ("o , of lioston. His drafts on them had beoii accepted, and paid in part. The hank adv.inced to I'arks :5400 on the Hour in controversy. I'arks left with it the fol- lowiuK ilraft "on Harvej , Scudder &Co.: ••$400. Ollice of R. t;. Parks & Co., (ireen l!ay, Wisconsin. October 17, 1^70, At si^ht. pay to the order of .M. I). Teak, cash, four hundred dollars, value received, and charire the same to the account of R. (i. Parks & Co. " .\cross the face of the draft was written in pencil, ■■ Hold this till to- morrow, vvheri I will jiivc you U. L. " The next day Parks uave the bank the follow- inj; writing: "Chicago & Northwestern Hallway Company, Neenah, October 17, 1S70. Received from R. G. Parks and Co. t 100 barrels of Hour braniled W.-ftec. in train, consigncil to Harvey. Scudder & Co., Boston, .Mass., via (ireen Bay. To be forwarded to the Ft. Howard Station upon the ferms ami conditions of the pub- lished tariff of this company. A. H. Boardmari. .\Keiit. " The bank then i)laced f 1,400 to the credit of Parks. The defend- ant admitted that the draft and receipt were delivered by Parks to the b.nnk to se- cure the§i400advanccd, and that it was the intention to transfer the flourfor the same purpose. The fl(jur was in Parks' mill at Neenah until its delivery to the railway company, by Parks' agent, befori'the sign- ing of the receipt, but had not been seen by Parks or the bank. The receipt nnd draft were forwarded to Boston by the bjink. Harvey, Scudder & Co. refused to accept the ilraft because no bill of lading accompanied it, and they never made any advance on the Hour or received it. f)ne of the lirm of Harvey, Scudder *c Co. in ■ formed a creditor of Paiks & Co.. in Bos- ton, that the Hour was likely to arrive, and that bis lirm had no claim on it; and defendant, a deputy sheriff, levied an at- tachment -in it on its arrival as the i)rop- erty of I'arks & Co. R. .\I. Morse. Jr., and R. Stone, .Ir., for plaintiff. J. W. Hubbard, for defendant. .\M1CS, J. It appears that when the draft was discounted and the receipt de- livereil to the i)laintiff, l)oth parties under- stood thai it was an advance by the bank, "on the Hour." I'.oth partfes in- tended that the property should be. and un<lerstooil that it was, by that transac- tion, transferred to the bank, as security for that advance. The discouniing of the draft was a sutticient consideration for such a conveyance. If there was a sulli- cient delivery of the properly to the plain- tiff, there was nothing to hinder the inten- I tion of the parties from gidng into full effect. The charncterand situation of the prop- erty at the time of this trnnsuctlon were such that an actual delivery was Impos- sible. .\ constructive or symbidical deliv- ery was all that the circumstances al- lowed, but a ileliverj- of that nature, if I properly made, woidd have been sulHcieiit to give to the plaintiff cor|)oralion the title to the properly, and an immeillate right of possession, which It could mnln- taiu, nut only against I'arks himself, but also against Ills creditors. Tuxworth v. Moore. !) Pick. .■J47. Fettvplacc v. Dutch, I'J Pick. 3SS. Whipple V. Ihavcr, 10 Pick. ■27,. Carter v. Willard, Ifl Pick. 1. The delivery of the evidences of title, with or- ilers upon them, would be eipiivalent to the delivery of tlie property itself. (JibHon V. Stevens. S How. 3^4. Nathan v. (iiles, ."> Taunt. .').">s. .National Bank r)f Cairo v. Crocki.r. HI Ma.-fs. lt>:!. and cases there citeil. .Ml that would be necessary in such a case woulil be that the thing actually delivered should have been intended as a symbol of the property solJ. In this case, the only thing which was delivered to the plaintiff, as the represent- ative or symbol of the property intended I to be transferred to the plaintiff, was the 'written ncknow ledgment of the railroad corporation that thoy liad received the merchandise for transport a tion, consigned to Harvey. Scudder & Co.. of Boston. No order of any kind was Indorsed upon this receipt, anil no attempt was made to transfer it to the plaintiff in any mode, other than by mere manual <lelivery. Rut the receipt was evidence of ownership in Parks, and the only voucher which he had in or<ler to show his right to the goods after parting with their actual pos- session. It " as the meaiis which he had of calling the carrier to account If the goods shouhl be lost or injured, a-id It miuht well be supposed that the carrier would not ordinarily give up the goods except upon the production ami surrender of that receipt. Whatever right Scudder & Co. might have had to take the Hour into their own hands, if they had accept- ed the dr.'ift. it is certain that on their re- fusal to receive the consignment, the prop- ertv remained in the hands of the carrier, as the property of the consignor, <ir any I)ersi'n deriving title trom the consignor; the ctirrier would not be wholly relieved of responsibility by the refusal of Scudder & Co. to receive the property, but would continue to be liable, at least for reason- able care in its custody, to the trueowner. It is true that a receipt of this kind does not purport on Its face to have the <iuasl nogotijible character which Is sometimes said to belong to bills of lading in the or- dinary form: neither does it purport In terms to be good to the bearer. But In- dependent! v of any indorsement, or formal transfer In" writing, the po.ssesslon ami production of it would be evidence Indi- cating to thecarrier that the bank was entitled to dem.ind the property, and that be would bejustilied in deliverinK It to them. There are cases In which the de- livery of a receipt of this nature, though not indorsed or formally transferred, yet 314 FIRST NAT. BANK v. DEARBORN. intendefl as a transfer, has been lieltl to be a sood K.vinbolical delivery of the |)ro|)- erty described in it. In llaille v. Smith, 1 B. & F. .")(;:!, Eyre, C. J., uses tliis lanjiuuse: "I see no reason wli.v we shouUl not ex- pound thedoctrineof transterver.vlarjjely, upon the ajireeineiit of tlie parties, and upon tiieir intent, to carry tlie substance of that asreeinent into e.xecution." In Allen V Williams, 12 Pick. 207. :)(J1, Shaw, C .1., in (leliverinK the judgment of the conrt.says: "Even a sale or pledge of the property without a formal bill of ladinjj, by the shipper, would operate as a n'ood assignment of the projierty ; and the de- livery of an informal or unindorsed bill of ladinj;. or other docunientar.y evidence of the slii|)i)er's property, would be a s"'Jd symbolical delivery, so as to ve.st the property in the plaintiffs." It is true that he adds that it was not necessary to place the case upon that grttund. But this dictum was cited withentire a|)probntion, in a case raising that exact point, in the court of appeals of the state of New York. Bank of Rochester v. Jones, 4 Conist. 41)7. In that case, as in this, the plaintiff had discounted a draft drawn against a ([uan- tity of Hour, and its title, as in this case, depended upon a carrier's receipt, deliv- ered to it without any wi'itten imlorse- ment. The court held that the plaintiff thereby ac()uired a sufficient title to the property, and could call the consignee to account for it, he having converted the property to his own use, without accejtt- ing the draft. It is not necessary to hold that the plaintiff was absolute owner of the ])roperty ; it is enough that it had a right of proi)erty and of possession to se- cure the payment of the particular rlraft; and the right of the former owner, I'arks, in the specific property, had become di- vested, leaving him onl.v a right in the surplus n)onoy which might remain after a sale of the Hour, and a payment {)f the draft from the proceeds. I)e Wolf v. Gard- ner, 12Cush. 10, 24. Some reliance was placed by the defend- ant's counsel upon certain local statutes and judicial derisions of the state of Wis- consin. But, if applicable at all, they do not in our judgment affect the decision of the case. If we are right in holding tliat there was a sufficient delivery to pass the proi)erty to tlie i)laintiff corporation, the carrier must beconsidered, after that time, as its bailee, and as holding the property for it, and not in any adverse relatit)n. Mis possession would be the |)08session of the plaintiff. Our conclusion thereforeis that theclear intent of the parties, that the property should stand as security to the plaintiff in discounting the draft, was carried into effect in a mannersanctioned by sound au- thorities, and that there are no special equities in favor of an attaching creditor that make it desirable to defeat that in- tent. Judgment for the plaintiff. COLT, absent. ENDICOTT, and DEVENS, J.I. FIRST XAT. BANK v. SHAW. 317 FlUST NAT. BANK OF TOLHDU y. SHAW. (61 N. Y. 283.) Commission of Appeals of New Yorlj. Seiit. Term, 1874. Eilnard Bissoll, for appellant. Getiri;e W. Parsons, for respondents. DWIGHT, C. The plaintiff in this ease, iimler the bill of lailinsie-M'cuti'd at Toledo, had the lenal title to the property. True, it held this not as almolute owner, liut to secure its advances, the ultimate interest appertnininK to Grillin&Co., still the ti- tle was ill the plaintiff. 8o lontr as the advances were not paid there was im the- ory whereby Grilhn & Co. could claim title. It had never been in them. At the mo- ment their interest, whatever it was, ac- crued t(» them, it came to them burdened with the formal ownership of the plaintiff. The bank held the title in trust for (irilHn & Co., after its own claim was satisfied. This would be the result of the transac- tion as between the parties, even thout;h no hill of ladinRhad been executed. Bank of Hochester v. Jones, 4 X. Y. 4!)7; o."> Am. Dec. 2'JO. The bill of indinK was merely an instrument to carry out the trueintent of the transaction, as evinced by their dealing's. Before entering in detail into the ques- tion of the |ilaintiff's title, it is important to notice whether the bill of ladin;:: was drawn in such a way as to accomplish the parties' intent, or whether it was in any proper sense of the terra anibiuiious. In- struments of this kind are familiar to the le^al profession, and the construction of some of the danses in the one under con- sideration lias tieen settled ever since the case of Dows v. Perrin, K! N. Y. ."!-."). In that case there were bills of ladinji of ct)rn liy t wo caual-boats. to the care of Dows & Carey, for account of one Mack. The court said that this lannunse vested the title in Mack. The regular method of set- ting forth his title, as the consignee or party entitled to control the goods on their arrival, would have been for the owner who shipped it to have indorsed the bill, making the com deliveralile to him or his order. This however was done in substance by stating upon the face of the paper that the shiiimeiit was made on his account. When the document thus prepared was delivered to .Mack, it pur- ported to tie a transfer from Niles& Wheel- er (the consignors) to liini of the corn, and to lie a contract on the part of the proprietors of the transportalinii line to cany it to New York. an<l deliver it there to Dows & Carey, according to his direc- tions, for the price of freight tr.entioned in it. I'age :!:;!l. Dows V. CJreene, 'Jt .\. Y. (his, (i40, reiterates tirs ruling under an in- strument having sulistantially the same teruis as were employed in the case at bur. The effect of these words showing that the title was in the hank, and that Kidd, Pierce & Co., and A. I-. Grillin it Co., were its .agents, was not cliangeil liy the fact that there wereadditional words, " B'k a/c to T. W. (Jrillln & Co." There Ir nothlni; in those words on their face to show that the title w as in Gridi'i & Co. Ah far ait they can be interpreted by a mere perusal of them.andconsldering t lieabbrevialions to mean "liank account, " they reter to some relation between the bank and Grif- fin it Co.,Hncl not to anydealings lietwe<-n the owners of the grain and the bank. Kvidence however was given to e.TplaIn the romniercial meaning at 'I'oledo, Ohio, of the words, the result of which was that they wei-e a mere notation to show that the bank held title to secure the payment of a debt due from Gritfin & Co. It was objected liy the defendants that this evi- dence was not legitimate, on the ground that this was not an Ohio but rather a New YorUcontract. The advanccof mon- ey was made in Ohio, the transfer of the grain took place there, ami the bank, as between itself and the persons with whom it dealt, Carrington & Casey, were entitled to repayment there. The drafts onlirillin & Co., and the bills of lailing, were merely a mode of re-imburseinent. The contract Is, in substance, an (Jliio contract. Story Confl. Laws, § L's". It is there laid down that when advances are made in such a case, the undertaking is to replace the money at the same place at which the ad- vances are made, even tlxiugh the mode of re-imburseinent lie by drafts on n for- eign eonntrv. Lannssee v. Barker, .'I AVheat. Kll. iVi; (iriint v. Healey, I! .Sunin. 5u'.i, Boyle v. Zacharie. (i Pet. r.:!.".. tu:\. i\U. In the more general case, wlierea contract is made in one country and to be per- f<iriiie(l in another, it is not always easy to determine, according to the authori. ties, whether the interpretation of words is to be governed by the la w of the place where the contract is made, or l>y that where it is to be performed. The general principle is, that the law of the place where the contract is made Is to govern, unless it is positively to lie performed elsewhere. The l.'ict that acts are to be ilone abroad umler a contract does not necessarily mnke it a contract to be per- formed there, in a legal sense. Thus it has been said that !i policy of insurance ex- ecuted in Knglaii'l on a French ship for a French owner, on a voyage from one French port to another, is to be Interpret- ed as an Ivnglish contract. Don v. Liup- inann, .'.Cl.it F 1, li). The true Inquiry is. what was the Intent of the parties. It would seem that in a case like the present, where the contract was made in Ohio, tiy Toledo parties, the money beingadvanced there and the security there, that they had in view, in employing words, their own usages, even though the goods were to lie sent to an.itlier state, and nltimate- Iv sold there if the advances were not re- I'.aid. The result is, that the bill of laillng executed at Toledo was Intended to vest the title in the grain in the plaintiff ; that A. L. tJrillin it Co. were its agents to for- ward the cargo to New York: that Kidd it Pierce were its agents in New York to receive the goods, and that when the ad- vances were repaid the bills of lading were to lie assigned to T. W. Griltln & Co. Tlie authorities clearly sustain these 318 FIRST NAT. BANK v. SHAW. eondueions. Bank of Rochester v. Jones, mipra; Haille v. Smith, 1 Bos. & Pull. 563; Tooke V. Holliuf^worth, .5 T. R. 21.5; Allen V. Williams, 12 Pick. 2!)7; City Bank v. Rome, W. & C). R. Co., 44 N. Y. 13G; RawlR V. Oeshler, 3 Keyes, 572. The subject is set forth in a dear light in the ease of Haille V. .Smith, .supra. In that ease a cai-fj;o was consigned to bankers, to secure them for advances, and a bill of ladin}; indorsed to tlieni. It wasalso understood tliat the itargo was to be sold tor the account of tlie consif;nors, whoreceived theadvanccs. Subseiiuent to (he consisnment the bank- ers applied for directions respecting the dis(;osal of the cargo, and the price to l)e asked. The court held that this arrange- ment did not<'reate the relation of prin- cipal and factor, but that the bankers held the title in trust te effectuate the in- i tent of the parties. The consignors had a j residuary interest so as to gain by a rise j or lose by a fall of the marxet value of the ! goods. This fact however only related to , the mode in which the trust was to be car- ] ried into execution. The title to the car- ; go was in the bankers, who had the evi- dence of it in tlie bill of lading, which was of itself upheld by the valuable considera- tion paid for the transfer. Bank of Rochester v. Jones is to the same effect, though the apparent title was not so clear as in Haille v. Smith. Jn • that case one Foster applied to a bank to borrow itfOoO for the purjibse of buying two hundred barrels of tiour, and pro- i j)i>sed to leave a forwarder's "receipt"' for the flour so purchased, as security for the acceptance of a draft to be drawn on tlie defendant Jones. This proposition having been accepted, the "receipt" was delivered, and purported that theforward- er was to forward two hundred barrels of fiour to B. P. Jones, Albany. The prt)- ceeds of the draft as discounted by the bank were paid over to the seller of the flour. It was the understanding that if Jones accepted the draft the "receipt" was to be made over to him. Jones de- clined to accept the draft, but got posses- sion of the flour. In an action of trover brought by the bank against Jones, the question was whether it luid such a prop- erty as to maintain the action. It will be observed that there was no bill of ladinj: in the bank's name. The receipt was drawn in favor of Jones. The title of the bank did not rest upon any form, but on the substance of the transaction. After deciding that Jones had no title under all the circumstances of the case, the court held that the bank had either the special or general property in the flour. It said: "The true ground on which to sus- tain this transfer of property to the bank is by regarding the transaction as a sale to the bank in trust, to deliver the prop- erty to Jones in case heaccepted thedraft, and if he i-efused to accept the draft then to sell the flour and retain out of the proceeds the amount of the draft, and to pay the surplus to Foster." 4 N. Y. 502. The case of City Bank v. Rome, \V. & O. R.Co. follows thecnse justcited, and holds that the delivery of a bill of lading by an owner, with Intent to pass the title, actu- ally passes it, whether drawn to "as- sign.-i" or not, and if drawn to "assigns," whether it be indorsed or not. In this case again the substance of the transac- tion is regarded rather than the form. The only material point is, whether there was an intent to pass the title to the goods for a consideration. The intent may be either to pass It absidntely or c<in- ditionally, or in trust. Whatever the intent may be the c(jurt will carry it into effect. Following these authorities, it is necessary to hol<l that when the goods were shipped at Toledo the plaintiff helil the title to the grain included in the bill of lading, charged with a trust in favor of T. W. Gritlin & Co., to whom it was to be made over, if they accepted and paid the drafts drawnag aiust it. It is now necessary to examine the acts of A. L. Gritiin & Co., at Buffalo. It is plain that it was the intent of the parties that the grain should be trans-shipped at Buffalcj to New Vork. This is shown by the Toledo bill of lading, as well as by the known course of business. The words "care A. L. Grittin & Co." made those parties consignees at Buffalo only pro- visionally, and as incidental to the main object of the transit, which was to end in New Yoi'k. Their authority was limited by the object sought to be accomplished. It was in writing disclosed on the face of the bill of lading, and according to well- settled principles must be strictly pursued. Their whole power was to forward the goods to the same consignees on the same terms as stated in the Toledo bill of lad- ing. On the face of the cauHl bill of lading it was apparent that the grain had come to Buffalo by way of the bikes; and any one taking that bill would be put upon inciuiry as tu the authority of A. L. (irif- tin & Co. But without pursuing this line of inqui- ry it is enough that the canal bill of lading did notdifferin substnnce from theToledo iiill. It mentioned the same consignees, the same owners, the bank, and had the same memorandum as to the interest. of T. W. (Jriffin & Co. The statement that the "freight charges and demurrage were payable to Young Brothers," etc., was of no material sianificance. That only showeil with whom the freight was to be settled on behalf of the carriers. It cannot be considered that any holder of the grain could possibly be misled by an entry, the ohject of wliich was so plain and unequivocal. In the aspect of tin; case most unfavorable for the pliiintiff, there were indications on the canal bill which, under the rulings in Dows v. Per- rin, supra, an<l in Dows v. Greene, were sufficient to lead to the conclusion that the plaintiff had an interest, and to out any person who took the goods upon in- (juiry as to its rights. Gritfin & Co., ac- cordingly, ha<l no right whatever to med- dle with the grain, or to warehouse it. The entire control was vested in Kidd, Pierce & Co., for the use of the plaintiff. The warehousemen, Shaw & Co., were bounil to inquire whether a bill of lading accompanied the shipment. Their cus- tom to make no inquiriea but to ware- FIRST NAT. BANK v. SIIAW. 319 house Kraifi '">■ "uy one wlio liail tlio poH- HPHHion foul<l not, in any respect, preju'lice the riulitH of the plaintiff. Ilaviii;r wnre- lioiised it, Uiey were liounil to liold tlie jrruiu for tl)e ri«litfiil owner, ('ity IJnnlc v. Konie, W. & O. K. Co., 44 N. Y. 141. Their receipt fiiven for the firain waH no protec- tion to the (Guaranty and In<leninity ("o. Shaw & Co. simply trusteil to a person liavint: tlie naked possession, witliotit any title or indicia of it. If on tliat hare pos- session tliey issued evidences of title, tliey wen; mere waste paper, under wliieli the Kuaranty company can mal<o no claim. .\ mere possessor cannot confer owner- sliip hy falsify assertini;. through hills of ladint; or warehouse receipts, that he has .1 title. Saltus v. Everett, L'O Wend. L'G"; :i2 Am. Dec. .-)41. It is however claimed on tlie part of the company, that it is protected by the pro- visions of the so-called "Factors .\ct." iJiMore consiilerinjiC the terms of that act it will he proper to notice the rules <if the common law as to the power of factors anil others ha vinj{ possession of the f?(iods of third persons, liavin^ documentary ev- idence of title to such noods, tr) ple(lt;e them. This rule has been tersely stated by Baron Farke (Lord WensleyilaleJ, In Phillips v. Huth, G M. & \V. .")'.)G. He said : "IJclore the passing <jf the factors act it was clearly settled that a factor or afjcnt for sale had no power to i)led}>e whether he was in possession either of the Koods themselves or of the symbol of the rooiIs, and even thouffh the symbol miRlit bear on the face of it sr)nie evidence of the pro|)- erty bcin«- in himself, as in the case of a hill of lailiuK in which he was consignee or indorsee. This was in accordance with the general rule, that he who deals with one ex mandato can obtain fi'om him no l)etter title than his mandate enables him to bestow." lloweverloitical thisrule may have been, it was found in practice to bear hard on the iutfrests of commerce. To remedy, some of the inconveniences caused by it. the English Parliament enacted a number of statutes. 4 Geo. IV, chip, fv?; (! (ieo. IV, chap. 04 (commonly known as the Factors Act). 5 and (i Vict., chap. :?1). The .Vew York act, with some modifientions, is a reproduction of that of G (Jeorp:e IV. In so far as these statutes iiave not changed the law, the former rule of course prevails; ami the holder of the troods of another, with or without documentary evidence of title, has no greater power to pledjje them than they confer. Paterscm V. Tash, -'StrauKe. 117S; Daubif^ny v. Du- val, .'. T. H. G04; Lamb v. Attenboroush, 1 Best & Smith, s31. There are two sections of our"Fa<'tors Act" to he considered in their relations to the present case, the Hrst and the third. The first proviiles that every perst)n in whose name any merchandise shall be Hliippe<l shall be deemed the true owner so far as to cnUtle the con.siRiiee of such luer- diandise. acting in f;r>od faith, to a lien thereon, (1) for any money atlvanced or negotiable security jiiven l>y such con- Bi>;nee for the use of the person in whose name the shipment isiuade: and (!') for any money or ncKotiahle paper received by the person in whose name such Hhipnient shall have been madi- for the use of the consignee. It is plain that this section has noapplicntion to the present case, aa it has been shown that the shipment can- not be deemed to be made In the name of (Jrlllin & Co. The third section of the net provides that every factor or other n>reiit Intrusted with the possession of any bill of lading, customhouse [lermit or warehouse keep- er's receipt for the delivi-ry of any "such" merchandise (referring to thetirstMi'ction) ; and every such factor or astent not hav- injr the documentary evideiiceof title, who shall be Intrusted with the possessiun of any merclianilise for the purpose of sale, or as security for any advances to be made or ohtaineil thereon, shall be deemed to be the true owner thereof so far as to frive validity to any contract made by such Ufient with any othei person, for the sale or ilisposition of the wh<de or any part of such merchnndiHc, for any money advanced, etc., Iij' such other person oa the faith thereof. Laws ls:!u. chap. I7'J. It is urned by the defendants that the fact that the forwardiuK house at Ituffalo sent the canal bill of ladinK lo T. \V. <Jri(fin & Co. brings the case at bar within this section. To sustain this view, it is necessary to show that (ii-iffln & Co. were factors or aiients, that they were "intrusted " with the bill of lading for the delivery of such merchandise as was provided for in the first section, and that an advance was made to them on the faith of the docu- ment with whicli they were intrnstcd. It needs no argument to show that firiirin i»i Co. were not factors of the pluln- tii'f. The statute i)resui)poses that the re- lation of principal and factor already sub- sists when the trust or conlidence is re- |)oscd in him. In other words, the rela- tion of factor is not created ny the mere possession of the instrument. tln>uy:h that may raise a presumption when in the al- leged factor's name, otherwise the rela- tion is to be proved aliunde. Cook v. lieal, 1 lUisw. 4!)7. Nor can (irillln & Co. l:e re- jrarded as agents of theplaintiff. .No pow- er was sriven in the lake bill of ladinR to make them the nucnls of the plaintiff, and if the Buffalo house, without authority, sent the canal bill of ladin;r to them, tliey did not therooy become aKcnts. since that relation could only be created by the act Of the iilaintiff. Lamb v. AttenborouRh, 1 Best & Smith, s.11. It cannot be claimed that tirirlln & Co. were intrusted with the possession of the merchandise. If "intrusted" with any thin;:, it must have been with the bill of ladinR. It is accordin;:ly nei-essary to Rive a construction to the statutory words "intrusted with tlie possession of a bill of ladin;: of any such merchamllse," etc. The word " intrusted" here implies conHdence reposed. If the bill hail be.Mi stolen, there wotdd have been no Intrust- ing. The consent of the owner la necessa- ry? True, it may be obtaine 1 by fraud. Sheppard v. I'nion Bank of Lomloa, 7 H. & N. GGl ; Uow8 V. tireene, 24 N. Y. oas. But :i20 FIRST NAT. BANK » SHAW. it must in sonif form be liail. Tliere was Iiere no trust Uy the <»wner; the luke bill of lii(tin(r jjiive no authority to A. L. Grif- lit! & Co. to repose any eonliilence in T. W. Utitlin & Vi>. Af^ain. the sami word "intrusted" refers to a bill of lading in the name of the factor or other agent. This is assumed in all the Knslish eases. It was expressly so defined in the first fac- tors act, 4 (Jeo. IV, § 1. The court, in Phil- lips V. Huth, supra, said: "The first sec- tion of the act shows that the word 'in- trusted,' was uot unimporiJ'.nt, and was advisedly introduced, for it provides that the person in whose name the ^oods shall be shipped shall be deemed to be intrusted therewith for the purposes of the act, un- less the contrary thereof shall appear or be shown in evidence by the person dis- puting the fact." Page ijllG. This con- struction is strengthened by the words "such merchandise." Thelanguaj^e is that evei'v factor, etc., intrusted with the pos- session of any bill of lading, etc., for the delivery of any "such" merchandise (re- ferring to the first section), * * * shall be deemed to be the owner thereof. On examining the first section, it is found to apply only to cases where the merchan- dise is shipped in the name of the person who assumes to control it. (^artwright V. Wilmerding. 24 N. Y. 521. On the other hand, when the case of a factor, etc., not having any documentary evidence of title, but having possession, is provided for in the statute, the word "such" is omitted, and the vvord "any" is substituted in its place. Section ;i thus provides for two entirely distinct classes of cases: one, whore the factor, etc.. has documentary evidence of sui'h merchandise as is i-eferred to in the first section, running to himself; the other, where he is intrusted with the possession of any merchandise whatever, forthe purposeof sale. In the first of these cases the evidence must becomplete, point- ing to liimself as owner, and with no no- tice, l)j' the bill of lading or otherwise, that he is not the actual and bona tide owner. See § 2, and Cartwrlght v. Wil- merding, 24 N. Y.521 ; Bonito v. Mosquera, 2 Bosw. 401. Moreover, the defendant, the guaranty company, did not advance the money to Griffin & Co. on the faith of the bill of lad- ing, etc. This Is one of the requirements of the factors act. Jennings v. Merrill, 20 Wend. 9. It acted on the warehouse re- ceipt of Shaw & Co., which was itself is- sued without any reference to documenta- ry title, and relying only on the manual and unautliorize(l possession of Griffin & Co. Even if the bill of lading had been be- fore the defendant, it could not properly be said to act on the faith of it, as it would have had constructive notice that the goods were not "intrusted " to Griffin & Co., not being in their names. Bonito v. Mosquera, 2 Bosw. 401; Pegram v. Car- son, 10 id. M't; Cartwrlght v. Wilmerding, 24 N. Y. ."):B. The only explanation oon- sistent with good faith that can be given of the possession by Griffin & Co. of the canal bill of lading is, that they were mere bailees of it to hand to Ividd, Pierce& Co., or that they receiveJ it by mistake. There was no evidence to show fraud or collu- sion on the part of the Buffalo house, and these are not to be presumed. Nothing could be more contrary to established and elementary princijiles than to hold that a mere bailee of a bill of lading, such as a tinder or depositary, having no ap- parent title to it, could make a valid transfer of it or create a lien upon the goods which it reprpsents, in favor of a third person who might make advances to the possessor, with or withoiit knowl- edge of the actual state of tacts. The defendants take an additional ground. It was urged that the plaintiff has l(}st his rights under the bill of lading "through his negligence in not observing the arrival of the canal-boat." It Is not perceived how any remissness snbsecjuent to the advances made by the guaranty company would affect the plaintiff's rights. Whatever interest the defendant ac(|uired accrued on the 17th of October, when the advance was iiiade. The boat arrived on the Kith. This theory of negligence must rest on the view that the plaintiff's claim was a mere lien. It has already been shown that this was not the case, but that the plaintiff had the tille. The court below laid some stress on the fact that the plaintiff's cashier stated in Iiis testimony that the transacti4in was a pledge. His version of a transaction entered into by written instruments is not binding on the court. However, even if the transaction constituted a pledge, the rule whicdi holds that a mere lienor may lose his lien by negligence, etc., is not applicable. A pleilgee has something more than a mere lien. He has a property in the goods and not simpl.v a right to hold them as In the case of a lien. The negligence of the plain- tiff, under the circumstances, is wholly im- material. The rights of the defendants depend on the question whether Griflin & Co. were in any form held out by theown- ers as entitled to control the grain. That point can only be determined by the fair construction of the bill of lading. If the guaranty company saw tit to act on theso- called warehouse receipt, which Itself had no solid foundation, it acted at its peril. It should have inquired into the title and have examined the documentary ev'dence accomiianving the shipments of the grain. City Bank v. Home, W. & O. H. (;<)., supra. It cannot shield itself from this obligation by imputing negligence to the plaintiff, which was not bound toward mere strangers to be diligent in looking after its property while in the possession of the carrier. Even if there was some evidence of negligence, it depended so much on a variety of circumstances that it should have been left to the jury to determine whether the plaintiff had been guilty of it. Without dwelling upon this point, it is enough to say that the question of negli- gence does not enter into the case. The defendant further claims, that as (jrifRn & Co. had paid for the grain, on account, .^1,945.S0, and as the guaranty company had acquired Griffin's Interest, it was absolutely necessai-y to the mainte- nance of this action that this amount should have been tendered by the plaintiff. FIRST NAT. BANK r. SHAW. 821 TliiH is u inis-ooncpption. If Griffin & Co. Iitid <Jctniii('il the iiroporty, no Hiicli i)!iy- iDfiit woiilil hiivo lieeii nvcissiiry. im the poHHcssiiry rif^lit of tlio piiiiiliff wonlil liuvo foiitiiiueil superior to that of (iriIMn &()(). until till? entire iji'ht wan paiil. The Ku.'iranly eoiiipany, Htaiulinir in Gridin'w position and acquiring lilHritilitM.can have no greater claim. TIk," court helow were requested to in- struct tlie jury tliat as far as the defend- ants were concerned, if n verdict was ren- dered ill tlieir iavor, tlie v;ilue of tlie prop- erty should only l)e assessed at file ad- vaiiccM made liy the guaranty company, and intrrrest. This instruction was refused under exreplioii, and an instruction was Kiveii that the entire value of the proper- ty sliould be fouinl. This ruling was erro- neous. In any aspect of the cast , the plaintiff had not lost its lien as liclween it and tirillin & Co. The case is Roverned liy the rule in Townsend v. IJargy, .')" N. Y. (iii.'). This is, that the value to lie as- sesseil as a;;ainst the owner or his repre- sentatives is the creditor's claim, with in- terest. The result of the discussion nia.v now lie suninied up. Tlie title to tlicij;rainin con- troversy was held at Toledo by the iilain tff in trust, and after its own advances were paid any residuary interest was to lie made over to T. W. Grillin ..t Co. The can.-sl hill of lading recognized the true re- lation of the iiarties and left the title in the same way. The fact that this hill came into the hands of Griltin & Co., through the act of Voung Brothers, was of no importance, as the hill did not im- port a delivery to the former linn. Shaw & Co. could not safely repose on the mere possession of Grittin & Co., but were bound to look into the shippiiiL.' docu- ments, and are aci-ordingly churgealili- witli constructive notice of their contents. The guaranty company are in the same position with Shaw & Co. The ware- house receipt being mere waste pajier, that company can claim no rights umler It. Such a "warehouse receipt" is not one intended by the factors act. That refers to the receipts given in foreign trade or Importation. Cartwright v. VVilmerding, LAW SALES — 21 24N. Y. iJ2s. Rven if It were within the intent of the act, it wouhl nut help the de- fendants, as It did not rest on any conll- ilence or trust repo.-<ed by Hie owner in them, or ill those from whom they receiveil possession. The plaintiff accordlnglycould maintain an action of replevin against these defend- ants based on its (iroperly, whether gen- eral or special, in the goods. • 'onsiileiable stress was laid nt the ar- gumr-n I. by counsel on either side of the !euse, ontlie great consequenccM to com- ! merce <if a decision in thin cause udverHn I to their respective views. Finding the principles of law clearly settled, we are bound to administer them as they have ' conx- down to us from our predecesHors. We however believe that n decision can- not, on the wlKjle, lie adverse to eominer- [ cial Interests, which, while It re:-ogni7,en I the convenience of merchants and the I great value and importance of t he factors I act, requires of those who ailvance money I on commercial documents the observance of reasonable diligence and the obligation to make reasonable inquiry, and enables owners of |iro]ierty on the creat trans- portation lines of inland romnierce to se- cure it from the fraud.s and deiiredations of mere custodians and bailees, in wlKjni no special conlidence is reposed. While commercial convenience must be respected, the rights of [iroperty must not be sacrl- liceil. It is not a ca^e for the application of the rule, that where one of two persons must suffer, that one must susliiin theloss who has reposed the conlidence. No confidence has been reposed In the person under whom the defendants claim. On the other hand, great care was taken to keep the title to the property and the Indi- cia of ownership regularly In the plain- tiff. The true interests of commerce de- mand that the claims under bills of lading and other such instruments should t)e scrupulously protected, since commerce will not flourish where the rights of prop- erty are not respected. The judgment of the court below should be reversed and a new trial ordered. All concur. Judgment reversed. I FOOT V. MARSH. S23 FOOT T. MARSn. (51 N. T. 288.) Commission of Appeals of New York. Jan. Term, 1873. Action by N. 15. I'doI & Co ugainHt Mursli, Deliiye & KoKt'i'n to recover for a hreadi of a contract for tlio Bale of certain oil. DofendniitH had an option to piirchaKC inO bnrrelH of oil of three clifferent jjrailcH. Jind offered 100 harrelH to plaintifffi, siiow- iiiK them a Kani()le taken from the nilddle- ;irade oil. Ah tlie linrrels contained differ- ent ()uantitles, it was agreed that they shoulil contain an averau'e of 40 jiallonn. Tlie evidence waH contlictinK as to wliether the piircliaKerH whould a.ssunie the rmk of leakage, and defendants agreed to set apart 100 barrels, averaKinf? W gallons each. After the aRreement forthe salewa.'; niaile, plaintiffs gave defendants their note for:ff7.")0, and received from them thcfollow- ing receipt; "N. 15. Foot & Co. honght of .Marsh, Delaye & Hojrers 10(1 l)arrelH, at twelve HhillinKS, $ir)0: -1.000 gallons of oil, at eighteen cents, .IfTiiO— .f s70. Received payment by note al three months from .1 line 7, ISO:!. .Marsh, Delayed Rogers. The above oil is to be delivered when calleJ for, Hiibject to twenty shillings per month storage, and the (juality of the oil is to l)e like the sample delivered. Marsh, Delaye & Rogers. " Defendants accepted the option for the l.'iO barrels. Rialntifls paid their note, and weie shown 100 l)arrels, contain- ing about l.*<00 gallons, worth fi-om .'> to M cents a gallon less than the sample by which they bonght. The court charged that if there was an agreement to set aside 100 barrels of 40 gallons each, e(iu;il in <iuality to the sample, and defendants did so. the oil was thenceforth at plaintiffs' risk ; but. If there was no such agreement, plaintiffs were bound to deliver 4,000 gal- lons whi'n called for. .ludgmcnt was ren- dered for plaintiffs. D. M. K. Johnson, for appellants. J. D. Kernan, for respondents. CinAY. C. The principal question pre- sented for our consideration arises u|)on the defendants' exception to that por- tion of the charge given l)y the judge to the jury, in whicli he stated, in substance, that if no agreement was madeor author- ity given to the defendants to sit apart for the plaintiffs the oil described in the contract, then the contract, from its terms, l)ecame a contract to deliver four tlionsand gallons of oil wlien called for, and that the dcfendiints, in order to com- ply with the call, werel)ound tohavethat quantity on haixl whene\er the call should bo marie. This case is by the de- fendants liuened to the case of Kimberlv V. Patchin. l!) N. Y. :i:!0; 7.'> Am. Dec. .•i.i4; and the ground upon which this portion of the charge is claimed to l)e erroneous Is, that the contract, when read by the light of the circumstances surroundlrig it. Is in principle, like the contract In that case for tliesule of six thousand l)ushels of wheat, parcel of six thousand two liua- (Ired and forty-nine bushels, ut seventv cents per bushel, of which no separatioD or manual delivery was made, but uh a substitute for a manual cli-livery, and to constitute the contract for its sale an exe- cuted, not an executory contract, the vendor gave to the purchaser Ids receipt for it, agreeing to deliver It to his order, free of all charges, whereupon the vendor was held to ha ve constilnteil JilmKelf th? bailee of the wheat, and to have thence- forth stood in that relation to the |iur- chaser and the property; to render the contract effectual as an executed contract from Ihethneit was nia<le, the purchaser must have been investeil with the right, after demand, to take the property. This was a right the delenitants at the time of making the sale hati no power to confer, they not l)elng at the time the owners of any portion of it; nor <li(l they. In the place of a manual delivery, give to the plaintiffs their receipt for it, and thus at- tempt to constitute themselves the bailees of the plaintiffs and of the r)il, as did the vendor of the wheat in Kiinberly v. Patchin. If tlie one handi'cd and flfty barrels of oil of which the one hundred barrels anci the four thousand gallons were understood to be n part, were, like the wheat, all of the same i|uallty,so that nothing but the (luantity, without refer- ence to quality, was to be taken from the larger amount, the extrliisicfacts that the sale was at a prolit of only two cents per gallon, and the risk of leakage during the summer months so largely exceede(l the ])rolits of the sale. It might be urged, with more plausibility tlinn It now can. that the agreement of the defendants to deliver the barrels and oil when called for wan like the agreement conlnined In the receipt in Kiinberly v. Patchin to ilelivi-r Hie wheat to the order of tin- purchaser, and that the defendants should, under the cir- cumstances, as was the vendor In that case, be regarded as the bailies of the plaintiffs. I'lit in order to substitute an arrangement between the parties for a manual delivery r)f n parcel of property ntixed with an ascertained and dellneiJ larger quaiitity.it must lie so dt arly di»- tined that the piircliaser can take it, or as the assignee of the punhaser tlid In Kiin- berly V. Patchin, ni'iiiiiaiii replevin for It. In this case the larger quantity, parcel of which wa.s under.'»toi'd to be contracted to the plaintiffs, consisted of one hundred and fifty liarrels containing three illfferent qualities of oil, but sixty-eight of which (forty-seven of the Rnffalo and Krie idl and twenty-one liarrels, marked V. U.) corresponded with the sample by which the one hundred barrels were sold. The residue, forty-six barrels of the Murray oil. was superior to the sample; and thirty-six, known as the Lemon oil, wore Inferior to the sample. The plnlntiffs would not have the right to take the .Mur- ray or superior oil. and could not be coni- peiled to t/ike the I.emon or Infetlor oil. And If the sample was. as the witness at one time stated, a poor sani|>le of flie most inferior oil, then but thirty-six bar- 324 FOOT V. MARSH. rele of that description, containiiiK Icsk tlian one thousand five hundred gallons, could have been selected from the whole quantity, and hence tlie plaintiffs were without adequate means of redress, un- less by action for failing to deliver the quantity of oil sold conforniing to tlie sample. The fact that the oil, which was the subject of the sale, was understood by the plaintiffs to be a parcel of a larger quantity, and that the sale was made at a profit of only two cents per sailon, while the risk of loss by leakage and evaporation was very large, are circum- stances that would go far to prove that the defendants did not understand the legal import of the writing drawn and subscribed by them, or that they were overreached by the plaintiffs, wlio sug- gested tlieir terms after, as one of them had testified, they refused to piirclinse, un- less the defendants would guarantee them against leakage, which the defendants re- fused to do. But as no question was raised by the pleadings, or elsewhere, as to a reformation of the contract, we must regard it as expressing the intentions of the ijarties and give it the interpretation which, under the circumstances, its lan- guage plainly imports. Tlie charge was more favorable to the defendants than a fair construction of the written contract warranted. The conversations, out of wliich the defendants sought to establish an agreement between the parties that the defendants might set apart the one hundred barrels of oil for the plaintiffs, as well as the conversations as to the guar- anty against loss by leakage, were all prior to the reduction of their agreement to writing and should have been excluded from the consideration of the jury, lea v- ing the writing as the only evidence of \ he agreenient to be interpreted by the aid of extrinsic facts. No error was committed in the instructions to allow interest. The verdict was more favorable to the defend- ants than the charge warranted ; of that however tliey cannot upon this appeal complain. The order appealed from should be re- versed. All concur. Order reversed. GAXSON V. MA DIG AN. 327 GANSON et al. v. MA DIG AN. (15 Wis. 144.) Supreme Court of Wisconsin. 1882. January Term, Appoal Iruin circuit court, OoiIkp county. Action hy (iiuiHon, Huntley & t'o. UK'iiiist one .MiiiliKiin to rocover fur the price of »i reiipin^ inucliiiie allcneil to Iiav3 Iteen de- livered on liJH writli'U order. MadiKun HlKued an order in Keliruary, ls.j.">, reqiiest- iUK (iiinHoii. Huntley & Co. to manufac- ture and deliver to liiiii on or before .luly 1, IfS.Vi, at Milwaukee, at UouHcuian <Si ('o.'h, a patent Kelfrakin;; reaper, war- ranted with one man and a nood team to cut and rake from 12 to lid acnw n day, for which he n>;reed to pay on delivery S.'ill, and $110 Deci'nilier l.st folio wiuR. The order provided that, if the reaper at the ne.xt harvest did not perform aR t-pecified, the purchaser "will Htore it Hafely, ami deliver It to (ianson, Huntley \- Co., or their airent.suliject to the rcfuiidinK of the $.■)()." When he ciilled for the reaiier at the time and |)laee specilied.lie waw shown the separate pieces of a nuinher of reaiiers of identical form and size, and was told by DouHenian it Co, that one of them was for him, and they would put one up for him if he would take it, liut he refused. In "{iviiij; instr-uctiuns to the jury, the judsesaid: "After an examination of all its [larts, the cr)ntract between the par- ties in thisactio[i IsauibiKUous ; and your first duty wMl be to ascertain, fi'om the contract and from oral evidence which has been reci ived to explain it, what this eon- tract really means. You are to construe ti.e term ' a irood team,' as used by the parties in this contract, and lind from all the evidence on that subject, whether it means a t;ood two-horse team, or, il not, what kind of team it does mean. If you find that the plaintiffs did deliver a ma- chine acconliiiK to at;reemenl. then they are entitled to recover whatever damayres they have sustained by the defendant's refusal to receive. The rule of damages is the difference between the contract price and the actual value of the reaper on the 1st of .Inly, IS,"!.'), the day «iiec- ilied for the <lelivery, together with any exi)enses iucuried by the i)lainliff. " At the request ol the defendant, the judue bIho instructed the jury " that , if the ma- chine did not answer the terms of the or- der as to capacity and power, the defend- ant was not oliii^jed to take it ; it beinn a condition precedent to the reception of the machine and the i)aynient of the .'S.iO mentioneil in the order th.it the plaintiffs iiliouhl manufaclureund deliver, or offer to deliver, for defendant, a machine of the l)Ower and capacities desiy;nated in the order. If the jury believe fiom the testi- mony tliat the tea in referred to means one Kood i)air of horses, ami that the rea|)erfuinislied at Doiiseman & '/o.'s,.! uly 1. I^.'l.">, for the defendant, was a four- liorse machine, and re(|uired four horses to work it up to the wariaaty of twelve to twenty acres a d,iy. the defenilant was iinih-r no obli;;ation to receive it. If the jury believe that the words "jjood team' mean two horses, and that It Ih proved tluit these machines could not be opera ted with two horses up to the warranty at nil reasonable times, then theverilict must l)e for the defendant. The fact that said machines were occusionully operated with two horses is not suMiclenl proof loeMtab- lisli tliat the capacity of the michim- was e<|ual to the warranty." The plainlirTrt reipiested the jud^e to uive the following Instructions, all of which were refused: "(1) If the jury believe, from the evidence, that the plaintiffs fullilleil the contract uri their part by the manufacture of a reaper, and tile delivery of the same to Douseman & Co., <m ur before the 1st of Jidy. !>*.">'), as called for hy the contract, the pl.iintlfl.* areentitled to recover in this action the contract price, with interest. ("Ji 'I'hat it was not necessary that the plaintiffs should mark or set apart any [larticidur reaper for the defendant to entitle them to recover the ctmtruct i»rice; that If the jury lieliove, from the evidciice. Hint the Iilaintiffs ;iianufr.ctui-eil and delivered to Douseman ii Co., for the defendant, on or before the 1st ilay of .luly, l"-.'>."i. sm-h a reaperas the contract called for. the plain- tiffs performed the contract on their part, and are entitled to recover the contract price, with interest, thouKh tin- reaper for tlie defendant was not separateil from other reapers sent to Doiisi'iiian & Co. Iiy the plaintiffs, or any partirular reaper tendered to the defendant. (:!i That this action is brought to recover the eontrnct price of tlie reaper; anil, if entitled to r •- cover at all, the plaintiffs are entitled to recover therein tiie contract |)rice, with interest. (4) That if the iilalntiffn. (m or before the 1st day of .July. IH.V.. deliVer.«l to Douseman & Co., for the di-fendant, u reaper of the kind ordered, and such u one as the contract called for. the title to the reaper so delivereil vested In the de- fendant, (.'p) That, whatever may be the verdict of the jury in this action, the de- fendant, uiioii the iileadlnnH, Is entitled to the possession of tiie rea|>er. and may coll at Douseman & Co.'s, and demand and re- <'eivp the same." Verdict and juilKment for the defendant. Conger & Hawea. for appellants. >Snilth & Ordway, for respondent. DIXON. C. J. In cases like this, we fully concur with Judjre nrouBon in snylng, that "it is un elementary ittinciple that ail erroneous derision is not bad law — it is no law at all :" and coiihl we become satistu<l that our last decision ( 1.! Wis., 07 1 was in this unfortunate preilicament, or was an unauthorized dictum, we should hasten with alacrity to retrace our steps. .Sulisei|ueiit lnvesti;rations have only coii- lirnied the views which we there took of the law. The rights and liabllllleH of the pnrtiea under the contract were, in sulistnnce. these: The plaintiffs were bound to man- ufacture ami deliver the niachine In the manner specihed, at the city of .Milwau- kee, on or before the llrst itay of July. The tlefendant was bound, on the same day (or before, if notllled of Its earlier do- livorv, uud he chose to do no), to be prcs- 328 GANSON V. MADIGAN. eiit to receive it, and pay the fifty dollars and the storage. The obliiratiou of the plaintiffs to manufacture and deliver, and that of tile defendant to be present and receive and pay, were nuitual and con- current. The presence of Ijoth parties, by tlicniselves or agents, at the time and place desif^nated, was neces.sarily contem- plated, since tlie ol)li(iations restins upon them respectively could not otherwise be discharged. Tlie plaintiffs, if tliey bad manufactured and furnished ready for de- livery by their agents at Milwauljee, sadi a machine as the contract called for, would have so far performed the duty im- posed upon them as to be entitled todam- ages for the defendant's violation of duty in neglecting to be pi-esent, accept and pay the sums stipulated. For this pur- pose it was not necessary for them to set apart the machine so as to vest the title in him subject to their lien for the pur- chase money and charges. Having man- ufactured and forwarded the machine upon the faith of I'is pi-omise to receive and pay for it, it would be most unrea- sonable and unjust to say that tliey should not have compensation for any actual loss or expense which they had thus incurred. The defendant, by his fail- ure toappear and peri<)rm the contracCon his part, would have lieen in no situation to insist upon au actual ilelivery or sepa- ration of the machine, jieliver.v and pay- ment were concurrent acts, the one de- pendent on the performance of the other, and the neglect of the latter effectually ex- cused the former. It would have been enough to have enabled the plaintiffs to recover their actual loss and expenses, if they had shown that they were ready and willing to perform the contract on their part. Chitty on Con., 033. As stated by Mr. Parsons (2 Parsons on (Vm., 4S-I,) they had under the circumstances, three courses open to them; to consider the ma- chineas tlieir own (which they ilid, by not setting it apart, so as to constitute a de- livery ), and sue for the dam ages occasioned by the non-acceptance; or to consider it as the defendant's (which they might have done, by separating it from Iho othei's so ae to be capable of identification), and sell it, with due precaution, to satisfy their lien on it f(U- the piice, and then sue and recover only for the unpaid balance of the price; or in the latter case, also, to hold it subject to defendant's call or or- der, and then recover the wludo i)rice which he agreed to pay. We deim these principles to be sound and well supported by the authorities, and are willing to stand by them. The rule of damages given by the court below was therefore correct, and the judge was right in refus- ing the instruction asked by tne appel- lants on that subject. The case is clearly distinguishable from those in which thecounsel suppose adiffer- ent rule was establislied. They will all be found, on examination, to have been cases where the articles purchased or manufac- tured were, from their nature, susceptible of being distinctly known and identified, or where the.v were set apart by the ven- dors, so that tiie vendees, on paying the price, could reciive and dispose of them if they desired. Such was the case of the wood work of the wagon, in Crookshank V. Burrell, 18 .Johns., r>S; the carriage, in Mixer V. Howarth,21 Pick.,'20.i; the sulky, in Bement v. Smith, I.'} \A end., 493; and tlie proHiiasory note, in Des Arts v. Leg- gett, 1(> N. Y., 5S2. As was decided in the last case, the vendor, chousing tcj go for the price, becomes, afler a valid tender of the chattel in performance of the con- tract, a baileefor the vendee. But we know of no principle of law which would allow the venflor to keep the goods h& his own, and at the same time come upon the ven- dee for the price— compel the latter to pay for, and yet not get the property ; whicli would be the case were the present plain- tiffs to be permitted to recover the price irresjiective of tlie aniount of datuages whit-h the.y had sustained in consequence of the defendant's nonacceptance. The machine here was brought to .Milwaukee in pieces, its several parts separated and packed with those of a great number of other machines of identical form and pat- tern, so that thesamepart of one machine was equally suited to every other. It re- mained in this condition until after the day t1xe(i for its delivery and acceptance. It is idle, therefore, to talk al>out there having been such a delivery as would have vested the title in the defendant, provided the jury had found that the machine was such as the contract calle<l for. The prop- ei'ty in all the machines remained in the plaintiffs, subject to their absolute domin- ion and right of disposal. NotI ing could have changed it as to the defendant, short of a separation or distinct ascertain- niont, by mark or otherwise, of the ma- chine intended for him, so that he could afterwards, on paying the ()rice, have ob- tained it if he chose. If thedefendant's had been the only con- tract for a machine to be delivered in Mil- waukee, and his the only machine deliv- ered, or if it had been unlike all tlie otiiers, the question would have been very differ- ent. The authorities cited by counsel would then have afforded some founda- tion for their positiim. And here we may correct another mis- take on the part of the counsel. They seem to suppose that the delivery of sev- eral machines in Milwaukee, in whatever form, so that one could have been ob- tained by the defendant within the time jirescribed, was all that was necessary under the contract to pass the title; and that this court so decided when the cause v\-as here for the first time. 9 Wis., 146. But this was not so. The delivery there spoken of was a delivery in the general sense of bringing the machine to Milwau- kee, in pursuance of the contract, so as to entitle the plaintiffs to recover damages for the defendant's nonacceptance, — not that specific delivery made necessary by law, to transfer title. The contract of the defendant was distinct and independent of that of every other person, and a compli- ance with its terms, as well as the law, required a distinct and independent deliv- ery, in order to vest the title in him. He never agreed to receive his machine in fragments, commingled with those of the machines of a hundred other persons, in G ANSON V. MADIGAN. 329 Hiich manner thai nutbiu;^ could be iden- tified. Tlio way in wliicli the niacliines caiiitf tc> the liaiidH of tlie conHiKnecH, wnH tlic phiiiitirrH' fault, or at IcaHt, not tlie fault of the defendant. Th(' word " team," as UHed in the con- tract, is of doubtful slKnitication. It may mean liorHew, mulen oroxen.and two, tour, Hix or even more of either kind of heuHtH. We look upon tlie contract and cannot Hay what it is. And yet we know very well that the i)artie.s had some definite purpose in nsiiiK the word. 'I'he trouble \n not that the word is insensible, and lius no settled meaninR, but that it at the same time admits of several interpreta- tions, nccordinji; to the subject matter in contemi)lation at the time. It is an uncer- tainty arising from the indelinite and e(|uivocul moaninK of tlie word, when an iolerpretation is attempted without the aid of s'.irroundinK circumHtanc(«. It ap- pears on the face of the instrunu'ut. and is in reality a patent ambiguity. The tiues- ti(jn is, can extrinsic evidence be received to explain it? We think it can. There is undoubtedly some confusion in the au- thorities upon this subject, especlalli- if we look to the earlier cases; but the latter decisions seem to be more uniform. As observed by Chancellor Desaiissure, in Duprce v. McDonald, 4 Des., L'O'J. the Kreat distinction of arabiKuitas latens, in which parol evidence has been more freelv re- ceived, and of amblKUitas patens, in which it has been mure cautiously received, has not l)een suflicient to >;uide the minds of the judges with unerriuK correctness; some of the later cases show that there is a middle ground, furnishiiis cireumstances of extreme dilliculty. .lucl^e Story was of opinion (Feiscli v. Dickson, 1 Mason, 11), that there was an intermediate class of cases, partakinfj; of the nature bolli of patent and latent ambiiruities, and com- prisiriK tliose instances where the words are equivocal, but yet admitof preeiseand delinite application by resortinfr to the circumstances under which the instrument was made, in which parol testimony was adinissil)lo. As an example, be put the case of a party assijinins his freii;ht in a particular ship liy contract in writinir: sayiuK that parol evidence of the circum- stances attiiidiuK the transaction would be admissible, to ascertain whether the word "freiijht" referred to the jjoods on board of theship.oran interest iiitheenrn- in^sof the ship. Tills distinction seems to be fully sustained by the later authori- ties, and we can discover no objection to It on principle. Ueay v. lUchnrdson, 2 C, M. & H., 4->2; Hall v. Davis, -.K N. II., nc,!); Emery v. Webster, 42 Maine, 204; ISaldwiu V. Carter, 17 Conn., 201 ; Drake v.(iorte. 22 Ala.. 400; Cowles v. Garrett, 30 Ala., :t4s; Waterman v. Johnson. i:i rick.,2(il; Me- chanics' Hank v. Hank of Columbia, 5 Wheat., ;!2fi; .lenniiiKs v. .Sherwood, 8 Conn., 122; 1 Cireeul. Kv., S5 2S(!. 2s7 and 2S.S. 'J'lie seneral rul'* is well stated by the supreme court of New Hampshire. In Hall V. Davis, as follows: ".\s all writti'ii Instruments are to be inter- preted accordinf.: to tlieir subject mat- ter, and such construction niven tliem as will carry out the inteutiou of the pai- ticH, whenever It is legally possible to do so, consistently with the lauKUUKe of tho instrniiients themselves, parol or verlial testimony may be rcsorteil to, to ascer- tain the nature and (|uallties of the sub- ject matter of those iiistruuientM. to ex- plain the circunislanecs surrounding the riarties. and to ex|)lain the instruiiientH tlicmselves by showiiiK the situation of the parties in all their rclatlcjus to persons unri things around them. Thus, If the lant^uaKe of the instrument is applii able to several persons, to several parcels of land, to several species of goods, to sev- eral UKinunienls, boundaries or lines, to several writiaj{s, or the terms be vague I and general, or have divers meanlniis. In 1 all these and the like cases, parid evidence i Is admissilile of uay extrinsic drcuni- ' stances tending to sliow what pePHon or persons, or what thinus, were Intended by the party, or to ascertain his meaning j in any other respect; and this without I any infringement of tiiegeneral rule.uhicli j only excludes parol evi<lence of other lan- guage, declaring the meaning of the pur- tics, than thai which is contained In the instrunieiit itself." If evidence of surrounding facts and cir- cumstances is admitted to explain the sense in which the words were used, cer- : tainly proof of tlie declarations of the I parties, made at the time of their iinder- ! standing of them, ought not to be ex- cluded. And BO it was held In several of I the cases above cited. 2 C, M. & I!.. 422. 42 Maine, 204: ]:! E'ick., 2G1. Such dcclnrn- tlons, it satisfactorily established, would seem to be stronger and more conclusive i evidence of the intention of the parties than i)roof of facts and circumstances, since tliej' come miiro nearly to direr-t evi- dence than .•iiiy to be obtained, whilst the otlii'r is but circumstantial. And though in general the construction of a written instrum'.'nt is a matter of law for the court— the meaning to be col- lected from the i;istrumcnt itself; yet, ', where tlie meaning is to be judged of by extrinsic evidence, the construction Is j usually n question for llie jury. .lennings I v. Sherwood, and other cases above. The circuit judge was therefore right in receiv- ing parol evidence, to ascertain the sense in wliich the word was used by the par- 1 ties, and in subuiittiiig that question to 1 the derision of the jury. Hut he was clearly wrong In receiving I evidence of tlie slatcments of the plain - i tiffs' agent to the witness Ciinn. at the time of making the contract with hlin. iTIie occasions were clifferent— the tworoii- ! tracts entirely dlsci'iinectpd. and though bothconcerned a meilicineof ihe samepat- tern mid ninnutaetnre. yet what was said ; In the one case was not a part of the I transaction in the other. It was no port I of the res gestiP. It the agent Chase, In negotiating with Guna, had made an nd- inission of his representations to the ' plaintiff, evidence of such nilinission could not have been received. Mil. an.l Miss. I!. K. Co. V. riiiney, 10 Wis., :iss. It would liegtiingmucli loofar, were wetohohl that it « as [iroper to give the jury the agent's stati'Mii'iit to Gunn. as evidence lendiuR I to prove that a similar stnteiueiit was 330 GANSON V. MADIGAN. uiQde to the plaintiff If it has any such tenilency, it is so fLMiiote that the law cannot lay hold of and apply it. The question tlien comes up, must the judtfuient, for this reason, be reversed'.' The defendant's counsel insist not— that the evidence l)efore the jury was sufficient without tliis, and it it had been rejected, the verdict must liave been the same. We are inclined to talie tlie same view. The defendant's testimony was clear and positive as to the liind of team — tliat tlie asent said "one span of horses" would work the macliine up to tlie warranty. In this he was not contradicted, but rather corroborated by the asent, who was himself upon the stand. We woulil naturally expect, if the fact had been otherwise, the agent would have said so. On the other hand, he testifies very frank- ly that the defendant said he had but one team; and that he told him one good team would work the machine. The ad- mission of the improper evidence could not, therefore, have affected tlie findinj; of the jury upon this point; and conse<iuent- ly the plaintiffs were not prejudiced by it. We can hardly believe that the arjiu- metit of tlie plaintiffs' counsel upon the construction of the warranty, that it re- j ferred to the capacity of the machine : without regard to the kind of team em- I ployed, and was satisfied, if, under any cir- cumstances, and with any numiier of I horses, it could be made to perform as I alleged, was urged with any real hope of I success. Such a construction would be I directly opposed to the manifest intention of the parties. The jury, upon proper evidence and un- der proper instructions, having found that the machine delivered at Milwaukee was not such as the contract called for, the judgment upon their verdict must be affirmed. Ordered accordingly. GARDNER v. LANE. 333 GARDNER V. LANE. (9 Allen, 493.) Supreme Judicial Court of Massachusetts. Es- sex. January Term, 1S65. I{e|ilevin. The writ oommnmled the officer to replevy the tjoods nii'l chattels folio winj;, to wit: "One huiidreil and thirty-live barrels of No. 1 mackerel, forty- Ki.\ barrels of No. 8 niackerel, and forty- einht barrels filled with salt, together with the salt contained therein." The olhcer's return showed that hetooU thirty- twobarrels and fifteen half barcels of No. 1 mackerel, forty-nine barrels and twohalf barrels of No. 8 niackerel, and forty-ei;;ht barrels of salt. The answer avei-red that the defendant had the iiroperty in his pos- session as attaching ollicer under n writ I of uttaclinienl against (ieor;;e V. Wonson [ and others, to whom the same belony,e<l. i Jt appeared that in November, IM!'.', (jteortce K. Wonson & Brothers owed the plaintiff $l,.'!:W.Or>, and bargained to him in payment one hnndred ami thirty-five barrels of No. 1 niackerel, at ten doUai-s a barrel, amounting;, with inspector's fees, i to $I,:W7.1.'.'), anil uave liim a bill of sale tliereof, wherenpon he save them n re- 1 lease, and paid them the difference, fuS..'i',); that on the 5th of January, ISGIi, he called ui>on them for the mackerel, and Gecr^^e | F. Wonson went with him to a wharf, ; where a lar^e quantity was stored, and counted outeishty-fivebarrelsof mackerel, which both supiiosed to be .Vo. 1, which were delivered to tin- plaintiff and left there; that they then went to a store i where Wonson counted off two rows of barrels, containing;, as he siiid, fifty biir- rels, marked the barrel at the end of each [ row, and nuve plaintiff a st.ir.-itre receipt j In the name of (ieorse F. Wonson & Hroth- ' ers, and, before the same were removed, ' (lie .ittachment by the defendant was made. The two rows in the store in fact j contained only forty-ei;;lit barrels, and the barrels containeil s;ilt. A portion of the (piantity in the shed was No. 1 mack- erel, and a portion was No.:!. The dt- fendant iistioduced evidence that two half barrels would exceed one whole barrel in price by lifty-four cents, for inspector's fees; and the iilaintiff introduced evidence that, when the replevin suit was served, the defendant ajrreed that two half bar- rels should be considered as eciui^nlent to one whole one. ami that the officer serv- ing the replevi:! acted under such agree- ment. The defendant then asked thecourt to rule inasmuch as the eiy;hteen halt bar- rels of mackerel replevied by tliedefeiiilan t were not embraced in the bill of sale nor in tile storaj»e receipt, nor was there any evidence introduee<l that any lialf barrels were ever sold or attemiited to be deliv- ered to the plaintiff, the plaintiff had es- tnblislied no title or rl;iht of possession to the half barrels; and that inasmnch as there were rejilevied l)y the plaintiff's writ forty-five barrels of No. :! niackerel and forty-eishr barrels of salt, and inasmuch as the bill of sale and the stiir.'ijie receipt were of No. 1 mackerel, and if theattempt- ed delivery was to consist of No. I mack- erel Didy, and by mistake in such delivery there were No. 3 mackerel and dnlt, the bill of sale, receipt, and delivery did not convey to the plaintiff the No. :i mackerel and the salt; and that, the writ not di- recting the officer to reidevy any half bar- rels, the officer servin;; It would not be en- titled to replevy such half barrels. The jufltte instructed the jury that If plaintirr had a bill of sale of one humlred and thir- ty-five barrels of No. 1 mackerel, anil if substantially that nuniber of barrels was in fact delivered to him, the bill of sale ■would amount to a warranty that the barrels so delivered contained No. I luack- crel. If it afterwards proved on examina- tion that soiiio of the merchandise delivered was of inferior quality and a lower brand, and known as No. :i. and alxo that a por- tion of the barrels delivered contained only salt, the |)laintiff would have the rli;lit to rescind the sale in |iart, and return the articles which did not answer the descrip- tion ; or. if he saw fit to keep what was so delivered, and to rely upon his warranty for recoveriai;; back whatever he had over- paid beyond a fair value, he could do so, and that a third person, not a party t<» the contract, could not impeach the plain- tiff's title under the bill of sale; and that it was acreed between the plaintiff ond the defendant that In the service of the re- plevin two half liarrels should be tr"-nted I and considered as one whole barrel, and ; that the term "barrel" sliould be taken as a measure of quantity, and not as descrili- ini; the iiioile in which the iiro|)erty was I)Ut ui), the plaintiff could replevy the half barrels, provided they were in fact Includ- j ed amon^r the jioods which were delivered to him. The jury returned n verdict for the plaintiff, and the defendant alleged I exce|)tions. i J. C. Perkins, for plaintiff. J. G. Abliotl ; and L. Child, fur defendant. j BIGEI.OW, ('. .1. 1. The evidence of- fered by I he ilefeniiant and re] rted was clearly iiii(ii!;peterit. This Is not an ac- tion in which an a.-sij;iiee in insolvency Is seeking t" recover property belon>;inK to the insolvent debtor for the purpose of distribution amouK all the creditors. It is controversy l>etween tw<i creditors, each of them striviiiir to hold property of their debtor ntiaiiist the other for the purpose of approiiriatiuvr it in |)ayment of their pre-exlstinn debts, by way of preference over other creditors. Neither of them can claim any rights in this ac- tion under the proceedings in Insolvency. The provisions of the Insolvent laws for the avoidance of sales, transfers and nt- tachmeiits, which may oi>erate as a pref- erence, are desl;;iied exclusively for the benefit of those who come in under the assiitnee or otherwise to obtain an equal share of the property of the insolvent In the mode provided by law: and these provisions cannot be invoked In aid of a person who stands only In the position of a creditor, endeavorinc to sivure hl« whole debt, either by means of a sale or by an attachment, rennlman v. Cole, 8 \iet. VM\, .'lOU. Hurt v. I'erklus, '.1 Cray. :!l'i». The rights of creditors under the In- solvent proreedln>;s can In nti way be nf- 334 GARDNEK v. LANE. feeted by tlie result of the issue between the parties to this suit. If the property ill controversy can he rightfully claimed by the assignee in insolvency for the ben- efit of creditors, liis title to it can be as- serted with like effect, whether the plain- tiff or the defendant succeeJ.'j in establish- ing a right of possession and property In this action. 2. Other and more interesting questions were raised at the trial, and remain to l)e considered. The first and most impor- tant one is, whether on the evidence ad- duced at the trial any title passed to the plaintiff, under the contract of sale set up by him, to that part of the property re- |)levied which is described in the writ "as forty-six liarrels of No. 3 mackerel, and forty-eight barrels filled with salt." The facts in regard to the articles are few and simple. The plaintiff entered into a eon- tract of sale with the original owners of the property, under whom both parties claim, for one hundred and thirty-five bar- rels of No. 1 mackerel, at ten dollars per barrel, amounting with inspector's fees to $l,yi)7.2o, for which payment was made by the plaintiff by releasing claims against the vendors for about thirteen hundred and fift.v dollars, and by money to the amount of about fifty-five dollars This transac- tion tuok place on the 2()th day of Novem- ber, ISO-'. No delivery, however, of the mackerel included in the contract of sale then took place, but subseijuently, five or six weeks afterwards, a delivery was made of certain barrels supposeil to contain No. 1 mackerel, in pursuance ot the contract ; of the barrels so delivered, a large num- ber did not contain No. 1 mackerel, hut in- stead thereof, forty-five barrels contained No. 3 mackerel, and forty-eight contained salt only, and these were delivered by miotake as a part of the one hundred and thirty-five barrels of No. 1 mackerel which were agreed to be sold to the plaintiff. On these facts it seems to us to be in- consistent with elementary principles to hold that any property in the barrels of No. 3 mackerel and of salt t)assed to the plaintiff. To constitute a valid sale of goods, wares and merchandise, complete and consummate, so as to p.sss the prop, erty to them, there must be an agreement or contract of sale by which the vendor agrees that the articles shall pass to and become theproperty of the vendee. With- out such contract or agreement, there can be no sale. Delivery is not always essen- tial. As between the vendor and vendee of specific chattels, in esse, the title will pass when the contract of sale is complete without delivery. But the minds of the parties must meet, and there must he a mutual assent to the transfer of certain specified projicrty, before any change of title to it can l)e effected. Until this takes place, that is, until there is an agreement to sell certain specific, identical goods, there can be no actual sale or change of ownership. So strictly is this held, that where goods, part of an entire bulk or mass, are agreed to be sold, the contract of sale is deemed to be incomplete and no propert.v passes, if such part has not been separated or ilesignated in such man- ner that it may be distinguished from the mass or hulk with which It is mingled. Until the parties are agreed as to the specific, identical goods, the contract can be no more than an agreement to supply goods of a certain kind, or answering a particular descri[itiou. The reason of this is obvious. There can he no transfer of propei'ty until the parties have ascer- tained and agreed upon the articles sold. Before they are designated and set apart in some form, there is nothing to which the contract of sale can attach, or on which it can operate. Chit. (.'on. (lOth Amer. Ed.) ;;. -398. Aldridge v. Johnson, 7 El. & Bl. fsS-'i. Scudder v. Worcester, 11 Cusli. 573. It necessarily follows from these familiar principles, that where par- ties to a contract of sale agree to sell and Iturchase a certain kind or description of property not yetascertained, distinguished or set apart, and subsequently a delivery is made by mistake of articles differing in tlieir nature or quality from those agreed to he sold, no title passes by such delivery. They are not included within the contract of sale; the vendor has not agreed to sell nor the vendee to purchase them ; the sub- ject matter of the contract has been mis- taken, and neither party can beheld to an execution of the contract to which he has not given his assent. It is a case where, through mutual misapprehension, the con- tract of sale is incomplete. Delivery, of itself, can pass no title; it can he effective and operative only when made as inci- dental to and in pursuance of a previous contract of sale. Such a caseseems clearly to fall within that class in wliich, through mistake, a contract which the parties in- tended to make fails of effect ; as where in a negcUiation for a sale of propert.v, the seller has reference to one article and the buyer to another, or where the parties supposed the property to be in exi-ftence when in fact It had been destroyed. In such cases the contract is ineffectual, l)e- cause the parties did not in fact agree as to the suliject matter, or because it had no existence. Kice v. Dwight Manuf. Co., 2 (!ush..s6. So in the case at bar. Tlie c<jn- tract of sale did not pass the property, as against attaching creditors, because there was no delivery to the vendee of that which constituted the subject ma ttcr of the contract; tne flelivery of different ar- ticles from those embraced in the contract is inoperative, for the reason that there is no agreement for their purchase an<l sale. And this is the precise distinction which marks the line between the case at bar and those cited by the learned counsel for the plaintiff. In all of the latter, the particular articles which formed the sub- ject of the saleand delivery were mutually agreed upon ; there was no mistake or misaijprehensiou concerning them ; the same goods which the vendor agreed to sell and the vendee to buy, were deliv- ered. The mistake was only as to the quality of the article; it was the same identical thing in specie as that respect- ing which the i)arties had negotiated. Al- though in such cases there can be no doubt of the right of the vendee to rescind the sale and return the property, by rea- son of a breach of warranty or fraud, i there is as little doubt that the title to GARDNER v. LANE. 33.', the property passes, subject only to such (JlHnlfiriiiiiiice by tlie vendee. The ermr lit the trial ciinwiHted in lu.siii^ Hi>;ht of th«! diHtiriction between cusch of this chHruc- ter jiiid the one at bar; between an asree- lucnt to Kell and deliver a Hpecifii'd article, coneeriiind the quality of whicli the par- ties were deceived or niiHtaken, and an aKreeiui'ut to sell one article and a deliv- ery by iniHtaUe of a wholly different ar- ticle, which did not form the Mul)iect mat- ter of the Hjjreenient. In the former the title paHses at the election of the vendee; ill the latter it does not. ThiH view of the iirinciples of law applicalile to the factH developed at the trial shows very I'lcarly that the second hiHtruction asked for by the defendant wnH in Hubstunce correct, and hIiouIiI have been jiiven to the jury, as the riilins by whicli they were to be governed in considerins and apply- inK the testimony. 3. It is somewhat difficult to under- stand the precise posture ol the case at the trial, on rhe point raised in the third lirayer for instruction submitted Ity the defendant. We are l)y no means sure that the point is open on the pleadiiiRs; but assumiuK it to be so, we do not think it tenable. It is certainly true as any ab- stract proposition, that an officer in serv- ina a writ of replevin can take only such property as properly comes within the terms of tlie description contained in the writ. But it is an error to suppose that the term "barrels" necessarily imiiorts a definite and precisedescription of a partic- ular article or thint;. It may aiid often is used to desiRnate a certain quantity, ami not the vessel or cask in whicli an article is contained. There is nothinfj on the face of the writ to show tliat it was used in the latter sense; on the contrary, the evidence tended very clearly to show, and the jury have found under the instructions of the c<>urt, that the term "barrel" was not intended as a precise and deHiiito de- ecriptiua of the specific articles wbiuL the sheriff was rominanded to replevy, but as a designation of the (|uanlity of a par- ticular kind or quality of ina'-kerel which he was to take, irrespective r)f the mode in which it was packed, or the particular vessels or casks in which It was con- tained. Nor does the case stop here. It appears that the defendnnt so understood the description in the writ, and assented that it should be served by takiiiKasuf- licient number of half barrels to make up the quantity which the sherifl was re- quired to replevy. After such assent the ilefen<l,-uit cannot be permitted to say that the description in the writ was im- perfect or insutlicieiit lo warrant the serv- ice of the writ. The plaintiff havlii): acted on the streiiKlh of the assent of the de- fendant, and incurred the expense of com- pleting tlie service and prnsecutln^ the suit for the iiurpose of lltiifiitiii); the title to the property which was actually reple- vied, it would be unjust and unreasonable to allow the defen<lant now to defeat the rlKht of the plaintiff to holil a i;art of the property on the }!;round of any defect or ambiiiuity in the description of the prop- erty ill the writ. 4. The only remaJuiiiK point of exception arises on the first pray?r for instruction. It seems to us the verdict rendered under the instructions given leaves no question open to the defendant on this poiii* of the case. The jury must have found that the lialf barrels of mackerel were included in the sale and delivery. .X mere mistake in the bill of sale, or the desciiption of the mode in which the property was packed, would not prevent the property passine by the delivery, if It was of the same kind and quality as that which the parties in- tended to include in their aKi'eeiiient. The result is, that the case must go to a new trial, in consequence of misdirection on the point raised In the second prayer for instructions submitted by the defend- ant. Exceptions sustained. GILES V. SIMONDS. 837 GILES V. SIMONDS. (15 Gray, 441.) Supreme Judicial Court of Massachusetts. Boston. June, 18C0. Tort [i)r breakiiiK ful iiiterinp: defend- ant's close, and cutting; trees tlicrenn. Uefenduiit alleired a verbal wale of the trees to his father, and a payment of the price, and that, after his lather had ont Koine of the trees, u transfer of all his in- terest, with pluiutiff's consent, to defend- ant, rialntiff re(iue8ted « charue that an oral license to so on his lands and cut the trees was revocable, except so far as it liafl been acted on, and that the license after revocation was no defense, although the price of the trees hud been paid. The judKe refused the instruction, and the jury found for defendant. ('. Allen and S. T. Field, for plaintiff. A. Brainard. for defendant. HICKLOW. J. If the plaintiff had a rijrlit to revoke the license to enter upon his land, under which the defendant seeks to justif.v the acts of trespass alley,ed in the (h'claration, it i^s entirely clear that the veriiict rendered in favor of the defendant cannot stand. The decision of the case turns therefore on the question wliether an owner of land, who has entered into a verbal contract for the sale of standing wood or tinU)er to be cut and served from the freehold by the vendee, can at his pleasure revoke the license which he there- by itives to the ()urchaser to enter on his land and cut and carry away the wood or timber included in the contract. That such a contract is not invalid as passing an interest in the l;ind is too well settled to admit of doubt. It is only an e.xecn- tory I'ontract of sale, to be construed as conveying an interest in the trees wJicn they shall he severed from the freehold and shall becotneconverted into jjersonal pro];- erty. Nordoes the permission to enter on the land, which such a contract expressly or by implication confers on the ven<lee, operate to create or vest in him any es- tate or iiiterer,t in the pteniises. It is oiUy a license or authority to do certain acts on the land, which, but for such license or authority, would be acts of trespass. If it were otlierwise,lf under such a contract a ritrht were conferred on the vendee to enter on the land and then to exercise a risht or privilege at his own pleasure, free from the control of the owner of the land, during the continuance of the contract, it would clearly confer on the vendee a rlKlit or interest in the premises, which would contravene the statute of frauds. l{ev. Sts. c. 74, g 1. There can he no doubt tli.-it a valid license toenter on land may be jjiven by parol. I'.ut this rule rests on the dis- tinction that a license is only an author- ity to do an act or series of acts on the land of another, and passes no estate or interest theri'in. 'I'lie nature uniJ extent of the rijiht or authority conferred by a license, and how far it is within the power ot the licenser to modify or revoke it, hnveuiven rise to much discussion and many nice and Hul>tle distinctions in the books, as well as con- L.\W SAI.F> — 22 flictinK decisionB in thecourlR ofconiinon luw. Certain princliiles, however, seem now to be well settled. If the owner of land sells chattels or other personal pro|t- erty situated on his land, the vendne there- by obtains an implleil license to enter on the premises, anil take possession of and remove the |)roperty. In such case the license is coupled with and supported by a valid interest or title in the property sold, and cannot he revoked. Wooil v. Manley, II Ad. & El. :U. Heath v. Han- ilall, 4 Cush. It).'). So, too, If the owner of chattels or other personal proi)ertv. by virtue of a contract with or the permis- sion of the owner of land, places his prop- erty on the lanil, the license to entir upon it for the purpose of tukin}; and removing the property Is irrevocable. Patrick v. C<dPrick,8 .M. & \V. 4s3. Itussell v. Kich- ards. 1 Fairf. 4L1I, and 2 Fairt. .t?!. .Smith V. Benson, 1 Hill (S. Y.) 17(i. The rintit of property in the chattels draws aftiT it the liKht of possession : the lieeiiHe tDenter on land to obtain possession of them i.-< subsid- iary to this ritfht of property, which can- not be enjoyed if the license lie withdrawD or terminated. This ri^ht in the chattels is not derived from the license, but existH in the owner by virtue of a iMstinct and separate title, the validity of which in no W!iy depeiids on any rijjht or interest in the laud. Hut with the assent of tlie owner of the land the property has been placed in a situation where it cannot be used or enjoyed except by a license toenter upon his land. The continuance of thlH license is therefore essential to the enjoy- ment of tlie ri^lit. It would he a manifest breai'h of good faith to pi'rmit such n license to be revoked. No man shoul<l In- permitted to keep the property of others by inilucing tliem to place it ui)on his land, and then denying them the right to enter to regain its possession. A party is therefore not permltteil to withdraw his consent, by settini; up his title to the land, after it lias been acted on by others, and when their rights will be impaired or lost by its withdrawal. In like manner ami for similar reasons, a license li> enter on land for the r>urpo.se of removing trees or ti:;:l)er therefrom, which have bi-en felled in pursuance of a contract of sale, cannot be recalled. So far as it has been execut- ed, the license is irrevocable. I!y virtue of the contract, and with the express or im- plied consent of the owner of the soil, tlie vendee lins been induced to expend his money and services. The trees, so far an they have been sevi red from the freetiold. have become converted Into personal prt)perty, and vested in the venilee. A revocation of the license would, to the ex- tent to which it had been exifiiteil. oper- ate us a fraud on the vendei-. and ileprlve him of property to which he hail b'vonie lenally eiititleil. Bi'sides, the owner of Inml cannot, by a subse(|uent revocation of his license, render that unlawful which, with all Its incidents and necessary conse- quences, was lawful at the time it watt done, by virtue of his own authority anil consent. The true distinction between an execu- tory verbal license lo enter tin l:ir.d under a contract for the 8ule of timber or tree* 338 GILES V. SIMONDS. growing thereon, and a Hiniilar license ex- ecuted, seems to i)e this: The former con- fers no vested interest or property uo money or lal)or is espeixled oii the I'aitli of it, and no rigjit OP title is iini)aire(l or lost by its revocation. If tlie party to whom it is granted is injured l)y its vrith- drawal.his remedy is Ijy an action asainst the licenser for a breach of the ctjntract. It cannot be held to extend further, so as to confer a riglit to use tlie land of an- other without his consent, because it vyould thus confer ex proprio vigore, an interest in land, which cannot be created except by a writing. But such a license executed, to the extent, to which it has been acted on, has operated to induce the vendee to expend money and services on the property, and thereby to convert it into personal chattels which have become vested in him. The revocation of the license in such case would deprive the ven- dee of his property. It has therefore been held that such a license, while it is execu- tory, may lie countermanded, but that when executed it becomes irrevocable. Cook V. Stearns, 11 Mass. ii33. Cheever v. Pearson, IG Pick. 273. RurkIcs v. Lesure, 24 Pick. 190. Clattin v. Carpenter, 4 Met. .'JSO. Nettletou v. Hikes, S Met. 34. Applying these principles to the case be- fore us, it is clear that the defendant could not justify the acts of trespass charged in the declaration. Before l)is entry on the land for the purpose of cutting trees, the plaintiff revoked the license which he had given by the verbal contract of sale under whicli the ilefendant claimed to act. So far as the license was executory it was revocable, and the entry of the defendant after its revocation was unlawful. The view which we have taken of thecase seems to render a decision of the otlier questions raised by the exceptions unnec- essar.y. Exceptions sustained. I GIJJ. V. BENJAMIN. 341 GILL et al. v. BKN.IAMLN. (25 N. W. Rep. 445, &i Wis. 3(52.) Supn-ini- Court of Wisconsin. Nov. 3, 18S5. Aiipi-Jil from county court, Milwaukee county. TiiL'futtH fullv fippenr in the following statcnicnt by CASSODAY, .1.: Tlic plaintiffs were enKJ'Ked in tlie busi- ness of fnniiHhin)^ wood l>y contract at • Jill's I'iei-, .\Iic!ii;;an. The defenilant was a woud anil coal dealer at Mdwaiikee. .\Iurcli I. 1SS4, the plaintiffs sent to the de- fendant tliefollowing written proposition, \\ liicli was Hceepted in writing by the de- fendant, as follows: "fiilTs t'ier, Mich., .March 1, l,>ss>4. H. M. lienjainin, .Mil- waukee, Wis. — Dear !Sir: We will sell Jind deliver to you one thousand cords maple wood, to he delivered from Gill's I'ier, l^eelenaw ci^unty, Mich., over the rail of the vessel, at three dollars antl twenty-five cents jf.'J.i;.')) per cord : all the wood to he sound body, inarketal>K> ina|>le wood, and to be delivered from time to time to your vessel as wanted during the season of navigation of 1SS4. The said wooil to lie piled .-is taken from vessel, and to he measured and paid for when piled on your ilock in .Milwaukee, Wis. Vours, respectfully, William (iill & Son. 1 accept the above. Milwaukee, March 10, 1SH4. II. .\l. Henjamin." The undisputed evidence was to the effect that tlie captain of the scliooner .Surprise, a vessel owiie<l by the defendant, took the lirst cargo of wood from the plaintiffs' pier on June 30, ISS4, and at va- rious times thereafter chartered certain other vessels to transport cargoes to the <lefendant'sdock in .Milwaukee; that there were in all, aside from the one in dispute, six of these cargoes, ngKregating V!:!^^ cords of wood, which were loaded at (iill's I'ier, carried across Lake .Michigjin, unload- ed, assorted, piled, and measured on the defendjiiit's dock at .MiUvaukee, and then paid for; that two of the six cargoes were delivered anil received after October 7, IsM; that the defendant paid the freight for such transportation, and the expense of unloading. culling, and i)iliiig the wood, and part of tlie expen.-<(! of measuring; tlint the plaintiffs paid the expense of placing the wood over the rail of the ves- sel ut their pier, and employed and paid one .Saveland. residing ;i t .N.ilwaiikce. as their agent in doinc whatever was neces- sary t<i be done in such measurement, and sen. ling a statement t hereof to the plain- tiffs; that in the six cargoes so delivered LM> cords were treated aHculN.anil paid U-v at a less ratethan the'-ontract price; that «oo.I sound, marketai le maple wood could be culled: that the per cent, of culls in the six cargoes mentioned was very small— unusually so; that the defendant Jilways dealt fairly about culling wood; that the J. E. Bailey, chartered by the captain of the Surprise for that purpose, was present at (Jill's I'ier, .Mirliiijan, O.-to- her 7, l■^^4, to get a cargo of wood for the defendant under the contract, when the plaintiffs delivered over the rail of the Bailey ut that place lOo curds ofgood [sound, marketable, body maple wood, [sawed ends," aside from the wood here- in before mentioned, which l.",.-. cords of wood the vessel's crew, and the men they hired, (liled and stowed on the Baili-y ; that the last was put on board nboiit half past six in the evening of October 7, 18S4; that the 1;').-. cords did not constitute o full cargo for the Bailey, as she was ca- llable of c;irrying 1!).'. to IJiiO cords of such wood; that the captain thereof gave the plaintiff* a receipt therefor a day or two after in these words : "Gill's Pier, Mich., October 7. Iss4. Shipped in good oriler and condition, tiy William Gill & Son, at the risk of whom it may concern, on lionrd the J. E. Bailey, whereof Bereiison is ni.ister, now in port at Gills I'ier, bound for .Milwaukee, Wis., \m cords maple wood. Henry Berenson." The night after the wood was so put ou board the Bailey it began to rain quite heavily and the wind blew, and the next morning the Bailey was ashore, and the l.Vi cords of wood was partly washed overboard, and the balance thrown overboard by those in charge of the vessel, and became a total loss; the captain thereupon tele- graphed the defendant to the effect that the schooner Bailey w;is ashore with l.">5 cords of his wood ; the plaintiff admitted that the wood placed on the Bailey was of the same kind and character in general as the other wood delivered, except the latter had a part cargo of dry wooil ; this action is to recover for the l.'i.l cords of wood at the contract [irice. and intere-it from November 1. ISM. Upon the facts stated the court directed n verdict for the plaintiffs, and from the judgment entered thereon the defendant appeals. Markham & Noyes. for appellant. J. E. Wlldish, for respondents. CAS,SODAV, J. The facts are undls- puted. Does the law [lut the loss of the I.').') cords of wood upon the pl.'iintiffs <ip the defendant".' The contract when made was executory. The plaintiffs thereby agreed to sell and deliver to the defend- ant l.nno cords of wood. The wood was to be of the kii:d and iiuality named in the contract. No iiartiLUlnr l.iMio cords of wood was then designated nor described therein. It was all "to be delivered from (iili's Pier » • • over the rail of the vessel." It was, moreover, " to be deliv- ered froui time to time" at that place, "UH wanted, during the season of navigation of Issf." The Bailey was chartered liy the captain of the defendiinl's vessel, and for the luirposes of the contract must be re- garded the same as though it were the liroperty of the defendant. True, each cargo was " to be piled on the defendnnt's dock in .Milwaukee" as taken from the vessel, and to lie measured and iiniil for at the price named when so idled. Fills raises the ipiestion whethrr, by the terms of the agreement, the title of each cargo became vested in the defendant when ile- livered to and "over the rail of the" de- fendant's vessel at tiill's Pier, or remained vesteil in the plaintiffs while being curried across the lake on the defendant's vessel, and until taken from his vedsel and piled 342 GILL c. BENJAMIN. on his dock in Milwanl<ee. If the title to each oirgo reuiaineO vested in the plain- tiffs until piled on the dcfend.Tnt's dock in Mil waiikee, then did it continue to be vest- ed in tlioni until measured; and if until measured, tlien did it remain vested in them until paid for? The piliuR on the dock was appiircntly to facilitate the measurement, and tlie measurement was apparently to ascertain the amount to be paid. But can it he that the title of a coruo so piled upon the defendant's dock and measured dill not heconie vested in the defendant until he liad paid tor it: and if it became vested in him before he paid for it, then why n;)t before it was measured or i)ile(l on his dock or taken from his ves- sel? The words "sell and deliver to you * * * from Gill's Pier, » * • over the rail of the vessel," clearly designated that as the place of delivery. On the delivery of any car^o being made in that way at that place, the possession of such cargo was Uianifestly intended by the contract to immediately pass entirely from and beyond the ct)ntrol of the plain- tiffs into the absolute and e.xclusive pos- session and control of the defendant. The vessel upon which such cargo was so placed belonged to the defendant, and was controlled by his captain; or else the ves- sel was chartered by his captain for his service in the transportation of such car- go, and hence was, so far as the contract was concerned, his vessel for that voyage for the purposes of such transportation. The plaintiffs had no control over the management of the vessel, nor the direc- tion in which it should go, nor the port at which it should land. The contract, though e.'secutory when made, yet as it contemplated a delivery from time to time, as wanted, in separate cargoes, each of wiiieh was to be paid for as indicated, it was clearly severable. Scott v. Kittan- ning Coal Co., Si) Pa. St. 231 ; Goodwin v. Merrill, 13 Wis. 65S; Sawyer v. Chicago & N. W. Ry. Co., 22 Wis. 385. This being so, it necessaril.v follows that, as each cargo was delivered on board thedefendant's ves- sel, the contract as to such cargo became an executed sale, so far as the plaintiffs were concerned, unless the mere fact that their man was expected to participate in the measurement of such cargo when piled on the defendant's dock prevented the title to such cargo from becoming vested in the defendant until so measured. Mor- row V. Reed, 30 Wis. SI ; Mi>rrow v. Camp- bell, Id. 90; Fletcher v. Ingram, -JG Wis. 191, .'lO N. W. Rep. 424; Scott v.Kittanning Coal Co., supra. Such being the wording and effect of the contract, we must hold that each cargo, on being delivered "over the rail of the vessel" sent for that jmrpose oy the de- fendant or his captain, became at once the property of the defendant, unless the stip- ulation for piling and measuring on the defendant's dock, bi-fore payment, i)re- vented the title from so vesting in him. ')f course the 155 cords, being lost, was not so piled on the defendant's dock in Milwaukee, nor measured ; and thereforeit is claimed there is no obligation to pay. The contract contemplates no such loss. It contains no stipulation as to any one taking the risks of the perils of the lake. Without such stipulation, such risk would necessarily tall upon the owner of the cargo at the time of loss. It will be ob- served that the contract contains no 8tii)ulaiion for any inspection or sorting of tlie wood on the defendant's dock. The wood was to be taken from the vessel, piled and measured on the dock ; but it is i silent as to who shoidd do the piling or i the measuring. It seems to be conceded that the delcndant was to do the i)ilii)g. lit ma.v he inferable that the i)laintiffs' man was exjiected to witness or partici- pate in the measurement of every cargo, as he did of each that was so piled on the dock. Was such piling and nieasuiing a condition precedent to the vesting of the title thereof in the defendant? Where the manifest intention of the parties is to transfer the title, the sale may be com- plete, notwithstanding the property is yet tobe measured, and thearaount of the price yet to be ascertaineil. Sewell v. Eaton, 6 Wis. 490; McConnell v. Hughes, 29 Win. 537; .Morrow v. Campbell, supra ; Fletcher v. Ingram, sui)ra. .So held where, by the agreement, the vendee was to have the title to saw-logs as soon as the ven- dor deposited them in a certain i)lace. Morrow v. Reed, supra. These principles are fully recognized and sanctioned in Pike V. Vaughn, 39 Wis. 505, relied upon by counsel for the defendant. Thus, in Dixon V. Baldwen, 5 Kast, 175, A. <fc B., traders in London, ordered goods from the defend- ants at Manchester to be sent to M. & Co., at Hull, for the purpose of being aft- erwards .sent to the corresjjondents of A. & B. at Hamburg, and the defendants sent the goods to i\I. i*i Co. at Hull to be shipped by them to Hamburg, as usual, pursuant to the order; and it was held as between the buyer and seller, the right of the defendants to stop as in transitu was at an end when the goods came to the possession of M. & Co. at Hull; for they were for thispurpose theappoinied agents <»f the vendees, and received orders from them as to the ulterior destination of the goods; and the goods, after their arrival at Hull, were to receive a new direction from the vendees. To the same effect, Kendal V. Marshall, 11 Q, B. Div. 350; Ex parte .Miles, 15 Q. B, Div. :i9. We must hold that the intention of the parties, as expressed in the contract, was that the title to each cargo should imme- diately vest in the defendant on being placed on board of the defendant's vessel at Gill's Pier. True, the contract pro- vifles, in effect, that each cargo was to be ]"l)aid for when piled on " the defendant's j dock in Milwaukee, and that the cargo of 155 cords was never so piled on that dock. But theundisputed evidence shows that the failure to so pile on the <lefend- ant's dock was in no way attril)utable to the i)lain tiffs. It may be conceded, also, that it was not the fault of the defendant nor his agents, although the cargo was in the exclusive possession of the defendant at the time it was lost. Assuming that the loss of the cargo was not the fault of the defendant's agents, then such piling on the defnndant's dock was rendered im- possible solely by the act of God, and GILL c. HEN.IAMIN. 343 hence the defendant, npon Its loss, there- upon liecaine liaiile for its valiif. I'dwcfh V. UelliiiKer. .VI Wis. ■JbU. II X. \V. K.-p. .V.i7 ; Niiuent V. Smith. 1 C. I'. Div. 4i<; 2 Ik-nj. Sales. §S(;i. It appears from the andifiputerl evidence that the lij.") cords of wood lost was of the kind and substantially of the quality called for in the contract, and the same as the other wood which had been received hy the defendant without any objection, although a deduction was made in the price of 20 cords called culls. The title to the !.">."> cords of wood havinir become vested in the defendant when the same was placed on board of the Bailey, and the captain of the 15ailey being in law the ajrent of the defendant for the pur- pose of receiving the wood, and having received the same on brjanl the Bailey without any objection as to quality, and the wood having been lost, as indicated, it may be very doubtful whether any damages could be recovered in this action, even had there been a counter-claim for such damages in the answer. Locke v. Williamson, 40 Wis. 377. But here there was no such countrr-olaim. ami hence the ipieHtion need ni>t be diterrnltied. The de- fenriant does claim damages by way of counter-claim, however, for the failure to deliver the balance of thel.lMK) cords called for by the contract. Including the 15."> lost. But the contract «jnly re<|iilred that the plaintiffs should deliver the wood at their pier to the defendant's vessel from time to time, "as wanted, during the season of navigation of l'^^4." There is no evidence of any failure to deliver any wood "an wanted" by the defendant "during thai season, nor of any unreasonntile delay in furnishing wood to any vessel calling for it at the plaintiff's pier in hthalf of the de- fendant. We discover no ground upon which the defendant is entitled to any ilaniagi-H un- der his counter-claim. Simpson v. l"ri|)- pin, L. R. H Q. B. 14; Higgins v. Delaware. L. & W. R. Co.. 6U S. Y. .">5:i; .Scott v. Kit- tanning ('oalCo..80pra ; Ha inesr. Tucker, 50 N. H. a07. BV THECOL'HT. The judgment of the county court Is affirmed GIROUX V. STi:i).\rAX. 345 OIROUX V. STROMA N et al., (three cases.) I'i:c.)l(I> V. SAMK. (14 N. E. Uep. 538, 145 Mass. 430.) Siiiin-mo .Tiidiciiil Court of Massachusetts. HaiiiixJeii. Jan. 4, 18S8. K.xcpptioiiB from Ktipci-ior court, Hunip- (Icii iMiiiiity : I'itiiiiin, .IihI^c 'I'licse wiM'o aclioiiH hrouKht by Hidinrd <iiri)iix, Mary (Jiniii.x, .JoHcpli I'pi-ord, and Mary <;ii'i)ii.\, ( liy her next (rifiid, ) aj^iiifiHt IMiiricas Slciliiian and another, to recDViT iliiiiiaKCK lor tortH coniiiiit ti'd by them in Helling' to the plaintiffs pork ntifit for food. The pliiintiffH claimed to have pur- ehascd from the defendantM certain pro- visionH, to wit. certain ((uantitleH of drcHseil pork; that naiil pork wa.s tainted, and unlit for fooil : tijat they ate of Haid pork, and were made Hick tliei'ehy At the trial in the Mupi'rior court, tiio evi- deiK'e Kliowed that the (h'fendantH were farnierH carryinir on a farm in Cliicopee, and jointly interested in raisins pij^s: that ahoiic the middle of Septemher, l.ss."i, the defendants found that an infectious disease, known as " hou cholera, "' existed upon their farm, and that their entire heril h.id lieen exposed to the disease; that on ()rtol)er :>, IS.'s."), tne defendants liilleil two of their hoKH. dressed them, .ind sold one-half of one of them to the plaintilf Itich.ird (Jircuix, and oi;e half of the othei' lio^ to the plaintiff .losepli I'ecord ; that on Octoher oth the defend- ants killed and dresscil two other lions, one of which \\as sold to the plaintiff Pec ord. 'I'lie evidence showed, further, that, at the timi' of the several sales to the plaintiffs, no representatioiLs as to the <|ualily of the meat were made, and no notice f;iven to the plaintiffs, at the times of the s:iles, of the existence of the disease anion;; the herds owned hy the defond- ants; hut it aiipcarcd that the defendants knew, at the tiiiie of ilie several sales to the several plaiulilTs, that the meat so sold hy them to the plaintiff was to 1)0 used liy the plaintiffs for provisions. The presidium; jiidKc instrnctcd the jury In term.-', the substance of which appears in the opinion. The jury returned a verdict lor the defendants, and the plaintiffs ol- lejted exceptions. \V. W. .McClench, for plaintiffs. E. W. ( 'ha pi 11. foi defendants. I)1:\'I;NS. .1. it whs known to the de- fendants that tlie pliiintiffs purchased the meat to he used as provisions, but it was held by the presiilins' jndKc that, in order that they should recover, they iiinst prove the allei;.itions ill their declarations that tin- defcudauts knew that th'' meat sold liy them was nnwholesouie, and improper to l)e used as provisions, lie iiistrncted tliejurj that, at common law, the jieuerHl rul(> is th.Mt where personal property is sold in the presence of buyer anil seller, ouch haviiif; an opportunity to see the proiierty, and there is iiothiu;; saiil as to the i|uality, the only implied warranty on the part of the seller Is that '"e has a valiil title in, or has n rl^ht to sell, the chattel. Fie added that there is on exception to this fieneral rule, where a provision flpolcr or inurket-maii sells provlsioiiH. as meat and veK;etableH. to his customers for use: and that in such case there would bean implied warranty that they wi-re lit for use, and wholesome. WhethVr this excep- tion exists or not it is not important. In j the case at bar, to imiuire, as it cannot be, and was not conlendeil, tliat the Je- fendants were brou;;lit within It. The contention of the plaintiffs is that, even If the rule is well established that where there is no express warranty, and no fraud, no warranty of the iiuality of the tiling sold is implied by law. and that the maxim (jf caveat emptor a|iplies, there is ,•! more (teneral exception, which e*- cludes from its operation all sales of pro- visions for immediate iloiueslic use. no matter by whom made. That in a sole of an animal by one denier to another, even with the knowledKt that the latter dealer intends (o convert it into meat for do- mestic use, or that, in the s/ile of provi- sions in the course <if commercial transac- tions, there is no implied warranty of the quality, appears to be well settled. Iir»w- urd V iMiierson, 11(1 Mass. :JJU. and case8 cited: liuruby v. Itollett, lli Mees & W. While occasional expressions may be found (as in Van Hracklin v. Fonda, 12 Johns. -ICiS) which sustain the plaintiffs' contention, we liave f<iund but one de- cided case which supports it. In Van lirncklin v. Fonda, iibi suiwa. it is said that, in a sale of provisions, the vendor is Ijouiid to know that they are sound a I his peril: but the case shows that tlieilvfend- aiil, who had sold beef for donie.-tic use. knew the animal from which it came to be diseased. This had lieen found by the jury, and the remark is made in connec- tion with the facts proved. The case of Hoover V. I'eters, IS .Mich, ."il, does sustain the plaintiffs' contention, as it is there held that where articles of food ore I bout;lit for domestic consumiilion. and the vendor sells them for that express pur- pose, the law implies a warranty that they are fit for such purpose, whether the sale be made by a retail dealer or by any Dther person. This case imposes a heav- ier liability mi n pers(ni not en>;ai;pd In the sale f)f provisions .as a liusincss than he should be called on to liear. The opln- 1 ion is not suiiported l)y any citation of authorities. In a (lisscntiu!; opinhiii by I Mr. Justice ("hristiancy, it is sjiid : "Had it appeared that he [the defendant] was the keeper of a meat market or butcher shop, and was eiijiascil in the iiuslness of selling meat for foorl, and therefore bound <>•• presumed to know whether It was lit for that purpose, I should ha ve concurred in the opinion my brethren have ex- pressed." If there is an exception to the rule of i-ave;it emptor which ::rows out of the circumstances of the case, and the relations of buyer ami seller, where the latter is a general dealer, anil the former a luirchaser for immeiliate use. there ap- pears no reason why it should bo further extended. j In the case at bar. the defendants were I not common dealers In provisions or 346 GIROUX V. STEDMA>r. raarket-nieu. They wore fnnr.ern, KclliiiK a portion of the iirodme of their fiiriiiH. No representations of the qnality of the meat sohl were made liy tliem. !n niali- ing casuiil Bales from a farm of it.s prod ucts. to liohl the owner to the duty of ascertaining, at his peril, tlie cotiditiori of the articles sold, and of ini|ilie<lly war- ranting, if sold with the knowledge that Ihey are to lie nsed as food, that they are fit for the i)urpose, imposes a larger lia- bility than should h<? placed upon one who may often have no better nieansof knowl- edge than the purchaser. Tlie plaintiffs contend that the case of French v. Vining, lOL' Mass V.j2. is ilecisive in their favm-, bu t it a[)pear8 to us otherwise. In that case, the defendant sold hay, which he knew had been poisoned, for the purpose of l;eing fed to a cow, although he had carefully endeavored to separate tlie dam- aged [lortion from the rest, and supposed he had succeeded. From the eflects of eating the hay the cow died, and the de- fendant was lield liable. His knowledge <jf the injury to the hay was certain and positive; his belief that ho had remedied the ditticulty was conjeclnral and uncer- tain, and pi oved to be wholly erroiu-oiis. In the case at bar. while the dofotidant's herd had been exposed to hog cholera, there Mas evidence that a portion of it only had been affected: and, further, that, even if affected, the meat of the aniiiials was not necessarily unwholesome. There was no evidence that the animals whose meat was sold had ever, so far as the de- fendants knew, actually liad the disease. and the verdict of the jur.\- has establislicil that they were igncjrant that tli<' meat sold b.v them was un wlulesome. In French v. Vining the defendant knew what the condition of the hay had been, and this is a vital partof the cose. He sold an article which he knew had been poisoned, and fi'om which he had taken no effectual means to remove the poison. His belief or supposition that his effort had been successful could not relieve him from lia- bility for thr- conse()uences that ensued be- cause it had been unsuccessful, it he sold the hay without informing the purchaser of the dangerous injury which it had re- ceived. Kxceptions overruled. ll GODDARD V. BINNEY. S4!> GODDARD T. BINNEY. (115 Mass. 450.) Supreme Judicial Court of Massachusetts. Suf- folk. fcSept. 4, 1ST4. Contrnot to rerover tlie price of a biicKy liuilt l)y pliiliitift for (Itrcndant. Plaintiff H<;r('i'(l to tniilil a l)u««.v for defeudant, jiiiil tu di'livcr it at a certain time. De- fendant nave Hpecial directioiiM at< to Kt.vle /ind liniHli. The liiifitl.v waH Imilt accord- ing: to directioiiH. llefore it was finished, defendant called to see it. and In answer to phiintiff, who asked him if he woulil sell it, said no; that he would keep it. When the biiu^y was finished. i)laintiff sent a hill for it, which defendant retained, promisiriK to see plaintiff in regard to it. The l)nj;;>?y was afterwards burned in plaintiff'H possession. The case was re- [)orted to the supreme judicial court. C. A. Welch, for plaintiff. G. Putnam, Jr., for defendant. AMES, J. Whether on aKreemcnt like that descrihed in this reixirt should be comidered as a contract fur the sale of goods, within the inianinp; of the statute of frauds, or a contract for laboi', services and materials, and therefoi'e not within tliat statute, is a question upon which there is a contlict of authority. According to a long course of decisions in New York, anil in some other states of the Union, an agieemeiit for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a con- <litiou to be delivered, (such as flour from wheat not yet ground, or nails to be made from iron in the vendor's hands), is not a contract of sale within the meaning of the statute, ''rookshank v. Burrell, Is Johns. 58. Sewall v. Fitch. S Cow. L'l.>. Hobertson v. Vaughn. :j iSaiidf. 1. Downs V. Hoss, L'.'i Wend. 1!70. Eiclielberger v. M'Cauley, ."> iiar. & .1. 21:1 In England, on the other hand, the tendency of (he re- cent decisions is to treat all contracts of such a kind intended to result in a sale, as snbstaiitinll.v contracts for the sale of chattels; and the decision in Lee v.tJrillin, I I!. & S. 1.'7L'. goes so far as to hold tliat a colli I act to make and tit a set of artiliclal teeth (or a patient is essentially a con- tract for the sale of goods, and therefore is suliject to the provisions of the statute. Nee .\Iaberlev v. Sheppard, 10 Bing. 'M\ Howe V. Palmer. S 15. & Aid. ai'l ; Haldey V. Parker. 1' U. & (;. 37; Atkinson v. Bell, 8B. &C. 277. In this commonwealth, a rule avoiding both of these extremes was established In Mixer v. IIowarth.21 Pick. 20"), and has been recognized and aflirnied in repeated decisions of more rirent <la te. The effect of these decisions we understand to be this, namely, that a lontract for the sale of article.-' then existing or such as the vendor in the ordinary course of his busi- ness manufactures or procures for the gen- eral 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 t)ther hand, if the goods are to be manu- factured especially for the purchaser, and upon his Bpeclal order, and not for the general market, the case Is not witliln the statute. Spencer v. Ccuie, 1 .Met. 2s;t. "The distinction." says Chief Justice Shaw, in Lamb v. Crafts. 12 Met. :\:>.\. "we believe is now well understood. When a person stipulates for the future sale of ar- ticles, which he is habitually nuiKlng. and which, at the time, are not' n;ade or lln- Ished, it is essentially a contract of sale, and not a contract for labor ; otliirwlse, when the article Is macle piiisuant to the agreement." In (iardner v. .loy, !) .Met. 177, a contract to buy a certain numlier of boxes of candles at a fixed rate per pound, which the vendor said he woulil mantirac- ture and deliver in about three niontliH, was held to beacoiitract of saleand with- in the statute. To the same general effect are Waterinnn v. Meigs, 4 Cush. 4'.)7, and Clark V. Mchols, 107 Mass. .".17. it is true that in "the inllnltely various shades of different contracts," there is soine |)racti- cal dilliculty in disposing of the •(iiestionH that arise under that section of the stat- ute, (icn. Sts. e. 10."), § ,">. But wi- see no ground for holding tliat there is aiii' iin- certaint.v in the rule its'lf. On the contra- ry. Its correctness and justice are clearly implied or expressly allirii;eii In all of our decisions upon the subject matter. It Is I proiier tc say also tliat the present case is a much stronger one than Mixer v. Ilowarth. In this case, the cariiwge was not oiil.v built for the d?fenilant, but in conformity in some resiiecls with his dl- ! rcctions, and at his reipiest was marked with his initials. It was neither Intendeil nor adapted for the general market. K» we are by no lueaiis jirepared to overrule the decision in that case, we must there- fore hold that the statute of frauds does not apply to the contract which the plain- tiff is seeking to enforce in this action. Independentl.v of that statute, and la eases to which it does not appy. it is well settled that as between tlie immediate parties, propert,\ in personal clint'.els may pass by bargain and sale without actual delivery. If the parlies liave agreed upon thespecilic thing that is sold and the price that the buyer is to pay for it, and noth- ing remains" to be done but that the buyer should iiay the price and take the same thing, the property passes to the buyer, and with it the risk of loss by l!re or any other accident. Tlie appropriation of the chattel to the buyer is eiiuivalent. forthat purpose, to delivery by the seller. Tlie assent of the buyer to take Ihespccllic chattel is equivalent for the same luirpose to his acceptance of possession. Dixon v. Yates, 5 B. & Ad. .iia, :!4n. The property niny well be in the buyer, though the right of possession, or lien for the price, is in the seller. There could in fact be no such lien without a change ot ownership. No man can be s;iid to liavea lien, in theprop- er sense ot the leriii. upon his o» n proper- ty, and the seller's lien can only be upon tiie buyer's property. It has often been decided" that nssiiiiipsit for the price of goods bargained and sold can be lualn- taine.l where tliea(M>ds have been selected bv the Inner, and set apart for him by the seller, tlnnigh not actually .lelivereil to hliu, and where nothing n-maiim to bo 350 OODDAKl) V. UINNEY. done e:^cept tlint the liuyer should pay the sgreod price. In such a state of thiujis the property vests in liini, and with it the risk of any accident that may happen to the Roods in the meantime. Noy's Max- ims, S'J. 2 Kent. Com. (12th Ed.) 491,'. Blo.vani v. Sanders, 4 B. & (.". i)41. TadinR V. Baxter. G B. & U. 3G(). Hinde v. White- house, 7 East, 571. Macomlier v. Parker, 13 Pick. 175, 183. Morse v. Sherman, 100 Mass. 430. In the present case, notliinp; remained to be done on the part of tlie plaintiff. The price had been agreed upon; tlie spe- cific chattel had been finished according to order, set apart and appropriated for the defendant, and marked with his ini- tials. The plaintiff had not undertaken to deliver it elsewhere than on his own premises. He gave notice that it was fin- ished, and presented his liill to the defen<l- ant, who promised to pay it soon. He had previously re()uested that the car- riage should not be sold, a request which substantially is equivalent to asking the plaintiff to keep it for him when finished. Without contending tluit these eiicuin- stnnces amount to a deliveiy and accept- ance within the statute of frauds, tlie plaintiff may well claim that enough has been done, in a case not within that stat- ute, to vest the general ownership in the defendant, and to cast ui)on him the risk of loss by fire, while the chattel remained in the plaintiff's possession. According to the terms of the reserva- tion, the verdict must be set aside, and judgment entered for the plaintiff. COLT and ENDICOTT, J.f., absent. i GOMPERTZ c. I5AKTLETT. 8^ GOMPERTZ T. BAUTLETT. (2 El. & Bl. 849.) Court of Queen's Bench. Xov. 14, 18.5.3. Action for nioiic'3- hail iinil received. Pleii : Never indebted. I.ssiie thereon. On the trial, before Lord Caniphell. C. .1., nt the Kittinir.s at (iuildhall after last Trinity lerni, it appeared that the defenrl- ant, in London, Hold to the plaintiff a hill of excliatifje puri)ortinR to lieilniwnat .Siei-ia Leone hy .Jolly & Co.. of that plaee. on Bellot & Co., of London, and aecefHed hy I'.ellot & Co.. payable to the onler of a third per.Mon in London. The instrument was endorsed in blank by the payee; it was iin.staniped , but both parties be- lieved it to bo a foreicn iiill and eonse fjiiently to reijuire no Htamji. The defend- ant illii nut endorse the bill; and it was a sail' without reeonrse. The plaintiff paid £sl.'» to the defendant, as the price of the bill, vvliieh was handed to plaintiff; and he, in Hke manner, sold the 1)111 to another person, also without recourse. Before the bill attaineil maturity, all the parties to the bill became bankrupt. On the holder sei-kinK to prove a^raiiiHt the estate of the acceptor, it was discovered that the bill, thouRh bearing the uennino sig- nature of a Sierr.-i Leone firm, had, in fact been drawn by one of the partners in this kinK-<lom. and eonseiiuently was unavail- able for wan t of a stamp. The commis- sioners in bankrui)tcy refused to allow the proof. The holder ilenianded back Irom the plaintiff tln^ price paid to him: and the plaintiff, under threat of legal proceed- ings, paid him. The plaintiff now sought to recover from the defendant £sl.'>, the price of the bill, as money p.'iid on a con- sideration which had faileii. It was ad- mitted that the defendant, at the time of the sale, liona fide believed the bill to have been drawn at .Sierra Leone ; and neither fraud nor negligence was imputed to him. The lord chief justice directed a nonsuit, with leave to move to enter a v^^rdict for the plaintiff. Petersdorff, in this term, obtained a rule nisi aci'ordingly. M. Chambers and Pear- son now showed cause. Petersdorff, con- tra. Lonl C.\MPnF,r>L, C. .f.— At the trial, I was impressed with the consideration that this w;is a transaction of pure sale, and that the vendor really had title to the bill which he sold, and was perfectiv ignoiant of the latent defect. Besides, the bill would probably have in fact been paid had the parties to ii continued sol- vent: and Oh the whole I was then iiK lineil of think that the defect was n.erely one in the (juality, which t he vendor did lioi war- 1 rant. But, now, having heard the argu- ment, 1 think that the action is maintain- able, on the ground t ha t the article does I not answer the description of that which was sold, viz., a (oieign bill. There was no written stnteuicnt or direct assertion that this bill was drawn at Sierra Leone; | LAW SAI.KS— -3 but it purported to be BO drawn; nnd It must be taken that It nas Hold b,' th^ description of a bill drawn at Sierra Leone. In fart it was drawn in London: and, on that account, it could not be en- forced. If it really hail been a foreign bill, any secret defect would have been at the risk of the purchaser; but this is not a case in whcli an article answering the de- scri|)tion by which it is sold has a He<-ret defect, but one in which the article i-- not of the kind which was sold. I think, therefore, that the money jiaid for it may be recovered as paid in mistake of facts. The law is, I think, accurately laid down in the passage cited from Addison on Contracts. If. Iieing what was sold, thf bill was valueles.-. because of the insol- vency of the parties, the vendor would not be answerable; but ho isnnswerable if the bill be spurious. .lones v. Kvde, .'> Taunt. 4SN. and Young v. Cole, .3 New ("as. 7lM. 7:iO, are strongly in point. Young v. Cole is indeed a very strong case ; for the things sold there as Guatemala bonds were In one sense of the words (iuatemala bonds; but they were not what was |)ro[essed to be sold, viz.. bunds binding on the Guate- mala government. The case is precisely as if a bar was sold as gold, but was in fact brass, the vendor being innocent. In such a case the purchaser may recover. COLEHIDGE, J.— I am of thpsameopin- ion. What took place at the time of the sale was merely that the vendor did not endorse the bill, and stipulated in effect that this should be a sale without war- ranty. Tliat being so. the vendor wa» not bound to see that he sold a bill of good quality, or to answer for the insf>l- vency of the (inrlies ; but the vendee is stIU entitled to ha ve an article answering thp descrifjtion of that which he bought. Here he bought, as a foreign toll, what turns out not lo be a foreign bill, and therefore valueless. Common justice re- quires that he should have back the price. ' Erie, J., had gone to Clinmbors, •See the Digest, lib. xviii. tit. 1. De Contrah. Emt.; laws It, 10. 11, niiil 14, where the sub- ject of the principal ci!si» is discussol. The civilians seem to have come to the conclusion. "Si" "aes pro aun> vcneat non valet," aliler "si auruni quidom fuerit, doterius autem iiuam euitur existimarct: tunc eniin emiio valet.' GOODWIN c. IIOLUnOOK. acr, GOODWIN y. HOLUUOOK. (4 Wend. mi. I Supreme Court of New York. May, 1830. Dftniirror to ileelaration. On the 20th Mfin-li, IsKJ, at Au^cliu.^, an aKroeniont uniier seal waH entereil into between H. (ioodwin, of Atirclius in CayiiKn county, and J. MatthowK. of Salinu in Onondana county, wlieroby (Joodwin ngreed to hoII and convey unto Matthews all hiH rlKht, intercKt and claim in and to certain wait workw. desciilicd as 8H!t lot No. '.(; and Matthews nurccd to pay for the same f 1,(100 in tirwt <|iialitv OnondaRa salt; ^L'OO to be iiaid on the Ist October, IslC, $400 on the Ist October, 1H17, and the residue in one year thereafter, with interest from the 1st" October, ISIG. He further agreed to pack all the salt in barrels in the usual way of Hacking salt, the biirrels to be fur- nished by (ioodwin and delivered ut the salt works. It was further stipulated that Matthews should take possession within three days from the date of the agreement, and that the writings should be executed within si.xtydays; there was also a sti|)ulation in relation to the then occupants of the lot. On the 27th .Tune, IsKi. the time for conii)lelin«; the writings was exlendi'd. liy an en''orsement on the asrreement si^jned bv (lOodwin and Mat- thews, to the Ist October. IsKi. On the Nth April. IMS. Matthews assigneil nil liis title to the salt Works njireed to be con- veyed by (ioodwin to the defendant Hoi- brook, in consideration whereof llidbrook, by an instrument under seal, bearing date at Salina on the same da.vaKMcd to make to (ioodwin the payments then due, an<t which should thereafter becomedueon the contract lietween (ioodwin and Matthews. In February term, !>>.'!'.». 'ioodwin com- menced a suit atrainst llolbrook, an<I de- clare(l nuainst him in covenant. The dec- laration set forth that on. &c., an article of aKri'cment was entered into b.v and between (ioodwin and .Mat thews wliereby .Matthews aKreed to pay to (Joodwin ?1,- 000 in tirst (juality Onondafra salt, specify- ing theproportions and times of payment, as contained in the asreenient; that on, &c.. .Matthews assinned the ajireement to Holbrook, in consideration whereof llol- brook covenanted and ayrreed to pay all such sums of money as were then due anil owinu by .Matthews to (lood win upon the said agreement thusassijined, and all such sumsas should becomedue thereon. Tlien follows an averment that at the time of the Bssijinment of the afrreement there was due to (ioodwin on the agreement $.'i(lO, iiayable in salt, after which follows the breach. The defendant prayeil oyer of the instruments declared on, which be- ing reail, he put iii a general demurrer to the declaration. ('. P. Kirklnnd, for plaintiff. .1. A.Spen- cer, for defendant. MARCY, J.— It is said that the execu- tion of the writings relntive to the salt lot was a condition precedent to the pay- ments to be made by the defendant, and tbat tiie declaration Is defective io not averring that this was done. It la very evident, from an inspertion of the agree- ment, that the covenant for the convey- ance l)y the plaintiff is independent of the covenant on the part of the defend- ant, liy the first agreement, the con- veyance was to lie made at a time prior to that on which tlii> cotislileration, or any part of it. was to l)e paid: and. though it was extended afterwards to a time when a portion of the consider- ation became payable, there Is nothing to show that the payment was to depend on the execiition of the writings. There woulil have been more reason for inferring such an intent in the parties if the pay- ment of the whole consideiation ami the execution of the writings had been simul- taneous acts. The plaintiff, to whom thei)aynient was to be made, lived at Aurelins, "where the covenants were entered into, ami .Matth- ews, to whoso rights and liabilities the defendant hds succeeded, livcil at Salina, where the pren)iscs contracted for were situated, and where the article wl-.icli was to be taken as payment was manufac- tured. It will be observed that the contract in to pay one thousand ilollars In salt. II the payment had been to be made in mon- c.v. there could have been no doubt as to the place of performance, it would have been tlie duty of the defendant to seek the l)lalnliff-< in order to make the (la.vment. Is the place of performing the contract changed by substituting a commodity for money? The implied place of performance is sometimes rliniiged by the nature of the article to be delivered. If u merchant or manufacturer engages to pay on dem&nd in the articles of his trade, ami no place Is specilied in the contract, the store of the merchant or the workshop or pb-re of de- posit of the fabrics of the manufacturer is the place where the payment must be demanded before an action accrues for the nonperformance of the contract (Chip, on Cont. 2^. 11.) It Is said by the same au- thor, that " if a note of hanil be given for catl'e, grain or other portable articles, and no place of payment be designated In the note. t!ie criditor",-) place of residence is the place of pay ment "( Id. 25.) These two positions ma.v seem to he contradic- tory ; but ciiie or two conslderatl<>ns can not fail to show that they are not so. The peculiar circumstances am) course of business of the promissurs in the hrst case warrant the inference that the parties In- tended that thearliclesshould bedelivered at the promissors' usual place of making and deliveringof the articles sold liy them. The engagement is that the articles shall bedelivered on demand. This seems to imply that the creditor must go to the debtor to make the demand. Iiefore the latter can Ite in detault. Hut the last proposition suiMioses the i)lace omitted, but the tiniefor delivery nxed. It presents a case like the one umler consideration, and contains the rule of law that ought to be applied to it. Salt is as much a portable article as grain, and the time for the delivery of It in this case being speci- fied in the contract, the defendant's en- gagement must be construed to l)e for Its 356 GOODWIN V. nOLBROOK. delivery to the plaintiff at his rtsidtnee in Aurelius, iinlesH a different construction is authorized by the clause relative to pack- inj; the salt in barrels to be delivered by plaintiff at the salt works in Salina. This clause does not, in my opinion, weaken — it rather strengthens the legal inference that Aurelius was the place of delivery. Jf the barrels were to befuinished at the place where the salt was to be delivered, why was it deemed necessary to siiecify that i)lace? The salt was to be packed at the place of mniiufacture; this act neces- sarily was to precede the delivery, but it could not be done till the plaintiff had fur- nished the barrels. There was something: then to be done by the plaintiff before the delivery, and the defendant is not in de- fault for making delivery as long as this act remains unperformed by the plaintiff; it does not appear by the [ileadings that it was ever performed by him. But it is said that what relates to pack- ing and furnishing the barrels is a distinct agreement, solely for the benefit of the plaintiff, and that he was at liberty to dis- pense with its performance. I view it as a part of the contract, and I do not know that it would not be less expensive to the defendant to pack the salt in barrels, and deliver it in them, than to deliver it in bulk; if it would be less e.\[>ensive. th;it I)art of the agreement was beneficial t() the defendant and without his con.sciit the plaintiff could not di.s|)eMse u illi it. But whether this be so or not is in no « ise material; for if the plaintiff could have dispensed with it, the record does not show that he did so; and 1 hold the de- fendant excused for waiting until the |)laintiff performed the act which neces- sarily preceded the delivery, or distinctly waived the part of the agreement relative to that act. .Judgment on demurrer for defendant, with leave for plaintiff to amend. COULD V. i?oi:hoi:ois. 359 GOULD V. BOURGEOIS. (18 Atl. Rep. 6^, 51 N. J. Law, 361.) Supreme Court of New Jersey. June 17, 1889. Rule to show cause. Error to circuit court, Atlantic county; before .lusticp Rkkd. Argued at February Term, 1889, before I}easlky, Chief Justice, and Justices De- PUK, Van Syckel, and Knapp. , Learning d: Black, for tlie rule. D. J. Pancuasl, conlra. Depi'e, J. This suit was upon a promis- sory note made by the defendant. Thit de- fense was the want or failure of considera- tion. The city counril of Holly Reach City proposed to build a hnakwater. The de- fendant was an applicant for a contract to do the work, and prepared and sent to the city council an agreement with the city to that effect. Members of the city council sent wonl to the defendant that the city had al- ready entered into a contract for the building of the breakwater with (!ould <fc Downs, that these parties could not fulfill their contract, and that, if the defendant would make a sat- isfactory arrangeuient with (iould & Downs, the city would give him the contract. The parties thereupon entered into negotiation, the conclusion of which was a contract in writing and under seal, whereby Gould & Downs, for the consideration of a note for 8376 and $500 in city bonds, assigned to the defendant "all our right, title, and interest in a certain contract entered into by the au- thorities of Holly Beach City and ourselves to build a certain bre:ikwater ordered built by a resolution passed .\pril 14, 1887." Suh- seciuently, the city council, having obtaine<l the opinion of counsel that the city had no power to build the breakwater, refused to ratify the arrangement of the defendant with Gould <fe Downs, and abandoned the jiroject of constructing the work. The note sued on was given in compliance with the terms of this assignment. There was no pmot of an express warranty by Gould & Downs of the validity of their contract, nor any evi- dence from which fraud, either in represen- tation or concealment on their part, could be inferred. The power of the city to make the contract was not mooted until after these parlies had concluded their arrangement and the assignment bad been made; and, if tlie contract was invalid, its invalidity arose fioui the city charter,— a public act equally within the knowledge of both parlies. 'I'he defendant's contention was that, inasmuch as there was a sale of the contract, a warranty that the contract was a valid contract was im- plied, and that, the contract being ultra vires on the part of the city, and void, the considera- tion entirely failed. If the proposition on which the defense was rested be sound in law, the defense was appropriate in this suit. The doctrine of implied warranty of title in the sale of goods applies as well to the sale of a chose in action, and extends not merely to the paper on which the chose in action is written, but embraces also tlie va- lidity of the right purported to be transferred. Wood V. Sheldon, 42 N'. J. Law, 421. Nor is there anything in the nature of the alleged infirmity of the contract that woidd bar the defense. In the ordinary case of a suit on a breach of warranty of title the validity of the vendor's title against the adverse claimant is triable, if the purchaser has in f.ict lost title, although the transactions which deter- mine the vendor's title are res itiier alios add. If the contract wliich was the sul>- ject-matter of the assignment was in fact ultra vires, a foundation was laid for this defense, the city having repudiated the con- tract in limine on that ground. The validity of the defensp offered and over- ruled depends upon the fundamental propo- sition whether, under the circumstances of this sale, a warranty of title is implied in law. The theory on which a warranty of title is implied upon tlie sale of personal projierty is that the act of selling is an af- firmation of title. Theearlier English cjises, of which Medina v. Stoiighton, 1 Salk. 210. 1 Ld. Kay;ji. 5'J3, is a type, adopted a dis- tinction between a sale by a vendor who was in possession and a sale where tlie chattel was in the possession of a thiril person; an- nexing a warranty of title to the former, and excluding it in the latter. In the celebrated case of I'asley v. Freeman, 3 Term 11. 51, liULLEK, J., repudiated this distinction. Speaking of Medina v. Stoughton, this learned ju<lge said that the distinction did not apjiear in the report of the case by Lord Kaymond, and he a<lds: "If an allirmation at the time of the sale be a warranty, I can- not feel a distinction between the vendor's being in or out of possession. The thing is bouglit of him, anil in consequence of his assertion; and, if there be any dilTerence, it seems to me that the case is strongest ai;ainst the vendor when he is out of possession, be- cause then the vendee has nothing but the warranty to rely on." Nevertheless the En- glish courts continue to recogiii/o the dis- tinction, with its Incidents, as adopted in Medina v. Stoughton, to some extent, at least so far as to annex the incident of an implied warranty of title on a .sale by a ven- dor in possession. Later decisions have placed the whole subject of implied warranty of title on a more reasonable basis. .Mr. Benjamin, in his Treatise on Sales, after :t full examination and discussion of (he late English cases, states the rule in force in England at this time in the lollowiiig terms: "A sale of personal chattels iin|dies an allir- niation by the vendor that the chattel is his, and therefore he wanaiils the title, unless it be show n by the fads and circumstances of the sale that the vendor did not intend to as- sert owneiship, but only to transfer such in- terest as he might have in the chattel sold." 2 Benj. Sahs. (forbin's Kd.) g^ '.•45-it(>l. In this country llio distinction between sales 360 GOULD V. BOURGEOIS. where the vendor is in possession and wliere lie is out of possession, witli respect to im- plied warranty of title, has been generally recoiinized; but the tendency of later decis- ions is against the recognition of such a dis- tinction, and favoralile to the moilorii En- glish rule. Id. § 902, note 21. Bid. War. §§ 246, 247. The American editor of the ninth edition of Smith's Leading Cases, in the note to Chandelor v. Loptis, after citing the cases in this country which have held that the rule of caveat empiur applies to sales where the vendor is out of possession, remarks that in most of theiu what was said on that point was obiter dicla, and observes "that there seems no reason why, in every case where the vendor purixuts to sell an ab- solute and perfect title, he should not be held to warrant it." 1 Smith, Lead. Cas. (Ed- son's Ed.) 344. In ^Vo()d v. Slieldon, supra, Chief Justice Bi;asli:v, in delivering the opinion of the court, adopted, in terms, the rule stated by Mr. Benjamin, and made it the foundation of decision. The precise question now under discussion did not then arise. In Eicliholz v. Bannister, 17 C. B. (N. S.) 708-721, EiiLi:, C. J., said: "I consiiler it to be clear upim the ancient authorities that, if the vendor of a chattel by word or conduct gives the purchaser to understand that he is the owner, tliat tacit representa- tion forms part of the contract; and that if lie is not the owner his contract is broken. * * * In alujost all the transactions of sale in common life, t!ie seller, by the very act of selling, holds out to the buyer that he is the owner of the article lie offers for sale." In that case it was held that on the sale of goods in an open shop or wareliouse, in the ordinary course of business, a warranty of title was implied; but there is a line of En- glish cases holding that, where the facts and circumstances show that the |)ur[)ose of the sale, as it must have been understood by the jiarties at the time, was not to convey an ab- .solute and indefeasible title, but oidy to trans- fer the title or interest of tlie vendor, no warranty of title will be imjilied. In this proposition the fact that the vendor is in or out of possession i-; onlv a circninstance of more or less weight, according to the nat- ure and circNnistunces of the particular transaction. Thus in Morley v. Attenbor- ough, 3 Exch. 5U0, the holding was tliat on a sale by a pawnbroker at pulilic auction of goods pledged to him in the way of business tliere was no implied warranty of absolute litle, tije undeitaking of the ven- dor being only that the subject of the sale was a pledge, and irredeemable by the pledge- or. In Chapman v. Speller, 14 Q. B. 621, the defendant bought goods at a sheriff's sale for £18. The plaintiff, who was pres- ent at the sheriff's sale, bought of the de- fendant his bargain for £23. The plain- tiff was afterwards forced to give up the goods to the real owner. He then sued the defendant, alleging a warranty of title. The court held that there was no implied warranty of title nor failureof consideration; that tlie plaintiff paid the tlclendant, not for the goods, but for the right, title, and inter- est the latter had acquired by his purchase, and that this consideration had not failed. In Ba;;ueley v. Ilawley, L. 11. 2 0. P. 625, a like decision was made, where the defendant resold to the plaintiff a boiler the former had bought at a sale under a distress for poor- rates, the plaintiff having knowledge at the time oT his purchase that the defendant had bought it at sucdi sale. In Hall v. Conder, 2 C. B. (N. S.) 22, the plaintiff, by an agree- ment in writing by which, after reciling that he had invented a method of preventing boiler explosions, and had obtained a jiatent therefor within the L'niled Kingdom, trans- ferred to the defendant "the one-half of the English i)iitent" for a consideration to be I)aid. In a suit, to recover the consideration thedefcndant ) leaded that the invention was wholly worthless, and of no jniblic utility or advantage whatever, and that the plaintiff was not the true and first inventor thereof. On demurrer the plea was held bad, for that, in the absence of any allegation of fraud, it must he assumed that the plaintiff was an inventor, and there was no warranty, ex- press or implied, either that he was the true and tirst inventor within tlie statute of James, or that the invention was useful or new; but that the contract was for the sale of the i)at- ent, such as it was, each party having equal means of ascertaining its value, and each acting on his own jud,'ment. A like decis- ion was made in Smith v.Xeale, 2 C. B. (N. S.) 67. Chief Justice Eiile, in his opinion in Eich- holz V. Bannister, descrilies Morley v. At- tenborough, Chapman v. Speller, and Hall v. Conder, as belonging to the class of cases where the conduct of the seller expresses, <it the time of the contract, that he merely con- tracts to sell such title as he himself has in the thing. The opinion is valuable, in that, while it rescues the common-law rule of implied wananty of title from the assaults of distin- guished judges who held that caoeat emptor a|iplied to sales in all cases, and that in the absence of express warranty or fraud the purchaser was remediless, it also placed the rule under the just limitation thaC it should not apply where the circumstances showed that the sale purported to be only a transfer of the vendor's title. Expressions such as "if a man sells goods as his own, and the title is deficient, he is liable to make good the loss," (2 Bl. Coinm. 4.51.) or "if he sells as Ills own, and not as the agent of another, and for a fair price, he is uii.ierslood to war- rant the title." (2 Kent, Comm. 478.) — as a statement of the principle on which the doc- trine of implied warranty of title rests, is not inconsistent with the principle adopted by Chief Justice EuLE. Stating the principlein the negative form adopted in Morley v. At- tenborough, that there is no undertaking by the vendor for title unless there be an ex- press warranty of title, or an equivalent to it GOULD %}. BOUUGEOIS. 861 by (leclaiat on or condiipt, affects only the Older of proof. It whs nonctMlcil in tint case tliat tlie pawnbroker siliiiig his i;i)0 Is iimler- took tliat tlipy had l)i en jjli'iiiji'd. ami wpio irredeemable by the pledgeor, and if it be as- .siiiued, as X lliiiik il luiibL be, that the act of selling amounts to an allirnialion of title of some SDrt, but that its force and effect may be explained, qualilied, or entirely overcome by the laclsand ciicumstaiices connected wiih the transaction, the difference between Mot- ley V. Altenborough and Kichholz v. Bannis- ter will rarely be of any pralical impoitance. The liniitaliim above mentioned upon the doctrine that the act of selling is an allirma- tion of title has hi en ad()|iled in this state. In IJogert v. Chrystie, 24 X. J. Law. 57 00, this court held that the general rule that the vendor of goods having posse-ision, and sell- ing them as his owu, is bound in law to war- rant the title to the vendee, did not apply where the venilor sells with notice of an out- standing interest in a third [lartv, and sub- ject to that int.rest. In ll<iagla'nd v. Hall, ;58 N. .1. Law, ;J51, the vendor agreed in writing to assign a lease he held upon cer- tain premises, and to sell and transfer goods and chattels mentioned in a schedule. Tlie premises were a licensed inn and tavern, and in the scliedule of the articles sold were enumerated "the licenses ol the house. " The law under which the license was granted pro- hibited the transfer of a license, and in the purchaser's hands it would be void and value- less. The court held that that circumstance ;lid not justify the purchaser in withdrawing from his contract; that there was no war- ranty by tlie vendor that the license, when assigned, would be of any value to the pur- chaser; and that the latter, having obtained by the :issigiiment what lie had bargained lor, could nut annul his contract unless he showed fraud or inisiepiesentation with re- spect to the subject-uialler of the contract. In Dank v. Trust Co., Vl-'i ilass. o^JO, the de- fendant had a contract with B., uled^in" to liim certain toba'-co, in which it was recited tiiat the tobacco was B.'s own property, and free from all incumhranc s, and made an iis- signnient to the plaintilT "of all his right, title, and interest in and under the contract, with all the jiioperty therein mentioned." The tobacco was then in the defendant's pos- session, and was delivered by him to the [ilaintiff. Afterwards a third person de- manded and recovered of the plaintiff part of the tobacco as his property, which had been pledged to the clefendant without i ight. The plaintiff then sued the defeii.lant on an al- leged implied warranty of title. The court ruled adversely to the plaintiff's claim. In the opinion the court said that the written assigniui-nt did not purport to be a sale of the giiols, but of all the defendant's right under the contract, and its obvious purpose was to substitute the plaintiff in the place of the original pledgee, and that the fact that at the time of the transfer to the plaintiff the goods were in the actual possession of the defendant did not vary the case. In the case in hand the circumstances con- nected with the assignment, independent of the words "all our right, title, and interest," etc., contained in it, preclude the implication of a warr.mty of the validity of the contract. Taken in connection with the words of the assignment, the intention of the parties is free from doubt. The contention that the plaintiff was in fault in that he made no delivery of the con- tract to the defendant is without substance. The contract was neither produced at the negotiation b-tween the parties, nor was it required. The transaction was the purchase of tJoiild & Downs' interest to consummate an arrangement whereliy those parties were to be got rid of, that the city might give the defendant a contract. The defen<lant ob- tained by the a.ssignment ail he bargained for. The defense was properly overruled, and the rule to show cause should be dis- charged. GOULD V. STEIN. 86ff GOULD et al. v. STEIN et al. (22 N. E. Rep. 47, 149 Mass. 570.) Supreme Judicial Court of Massachusetta. Suffolk. Sept. 4, 181^9. Exceptions from superior court, Suffolk county; Houkkt C. Piim.vn, Judge. Action by Henry A. (lould and others against Abe Stein and otliers lor brcadi of i warranty on tlie sale of certain rubber. 1 Judgment for plaintiffs. Defendants except. /. /?. Warner and H. E. Warner, for plaintiffs. ./. H. Dougherty and (J. A. Kiny, for defendants. i C. Allen, .J. The determination of this case dejiends upon tlie construction to be given to the bonglit and sold notes, which were similar in their terms. It does not ad- mit of doubt that these notes were intended to express the terms of tlie sale. They were carefully prepared and were read to the par- ties line by line, as they were written. Of course all the existing circumstances may be looked at, but the contract of the parlies is to be found in what was thus written, when j re.ad in the light of those circumstances. The goods re.spccting which the controversy has arisen were a certain lot of rubber which the defendants had on liand, and which could be identilied. The transaction was a present sale, and not an agreement to deliver rubber in the future. The defendants now contend that the contract was executory, and that, if there was any warranty, there was none which survived the acceptance of the goods by the plaintiffs; but the argument that it was not an executed present sale finds no support in the bill of exceptions, and no such point was taken at the trial ; and there is no occasion to consid- er the further question whether, in case of an execulory agreement to sell, a warranty will survive the acceptance of the goods. The bought note, which the plaintiffs put in evi- dence, was of "148 bales Ceara scrap rub- ber, as per samples, viz., 46 bales of first quality marked 'A;' 102 bales of second quality." The controversy relates only to the 102 bales. It appeared that there was no exact standard by which the grade of rubbei could be hxed, but that it was a matter of judsjment. The court also found that Ceara rubber of second quality is well known in the market as distinct from a third or inferior grade; and there was evidence which well warranted this linding. The parties in their contiact recognized the existence of dilferent grades or ciualities, though all of the rubber properly classilied as of lirst quality or of sec- ond <iuality might nut be of an exactly uni- form standard nr grade. The plainlilfs at the trial claimed damaces merely on the ground that the IU2 l)ales were not of second quality, and made no claim of inferiority to the samples shown, as a distinct ground, but waived all claim founded on tlie exhibition of samples, and the court found dama.ces for the ulaintllTs solely on tlie ground "that the defendant* failed to deliver rubbei of the second quality; ruling that the broker's note contained an ab- solute warranty of second quality rubber. If this ruling was right, it disposes of the defend- ants' second and third requests for instruc- tions. The general rule is familiar and admit- ted that a sale of goods by a particular descrip- tion imports a warranty that the gooils are of that description, llenshuw v. Kobins, 9 Mete. 83; Harrington v. Siiiilh. 138 Ma,ss. 92; White v. .Miller. 71 N. Y. 118; Osgood V. Lewis, 2 Har. & (i. 4%: Randall v. New- son, L. K. 2 ti. H. Div. 1(»2; Jones v. Just. L. K. :3 0. B. 197; Josling v. Kingsford, 13 C. ]i. (N. S.) 447; Howes v. Shand, L. U. 2 App. Cas. 455. And where goods are de- scribed on a sale as of a certain quality, which is well known in the maikct ns indi- cating goods of a distinct, though not abso- lutely uniform, grade or standard, tlie de- scription imports a warranty that the goods are of that grade orstandard. In such cases, the words denoting the grade or quality of the goods are not to be treated as merely words of general commendation, but they are held to be words having a specific com- mercial signification. Thus, in Hastings v. Loverinff, 2 T*iek. 214. the words, in n sale- note, "Sold Mr. E. T. Hastings 2,000 gal- lons prime quality winter oil," were held to amount to a warranty that the article sold agreed with the description: and in Hensliaw v. Kobins, 9 Mete. S7, it was said that the doctrine laid down in that case has ever since been considered as the settled law in this commonwealth. So in Chisholm v. I'roudfoot, 15 U. C. (J. B. 203, it was held that where a manufacturer of Hour marked it as of a particular quality, viz., "Trafalgar Mills Extra Superhne," it amounted to a warranty of its being of such a (juality. A similar doctrine may be found in llogins /. I'lympton, 11 Tick. 97; Winsor V. Lombard, 18 I'ick. 57, d"; Forcheimer v. Stewart, 05 Iowa, 593, 22 N. \V. Kep. 88ti; Mader v. Jones, 1 N. S. Law H. 82. In Gardner v. I^iiie, 9 Allen, 492, 12 Allen, 39, it appeareil that thest itutes provided for the preparation, division into different qualities, packing, inspecting, and branding of mack- erel, and it was held that if a certain number of barrels of No. 1 mackerel were sold, and by mistake barrels of No. 3 mackerel were deliv- ered, no title passed to the purchaser, and ; that the barrels of No. 3 mackerel thus de- livered by mistake mij:ht beattacheil jusprop- ; erty of the vendor, anil that each dilferent quality, after being thus prepareil for mar- ket, was to be regarded as a different kind of merchandise, so tliat no title passe<l to Iho vendee; there being no assent on the part of the vendee to take the No. 3 m ickerel in place of those which he agreed to buy. Now, if the words ";i3 jier samples" liad not been in theboiight note, it would be quite jilain that the present ciise would fall within the ordinarv rules above given. But tlie in- sertion of those words raises the inquiry -364 GOULD V. STEIN. whether they limit the implied WMiianty of the vendor, so tliat if the rubl)er sold was equal in quality to the sample he would be exonerated from liability, tliongli it was not entitled to be classed as of tlie second quality. If no other meaning could be given to tlie words "as per samples" except that they alone were to be considered as showing the tiuality of rubber to be delivered, tlie argu- ment in favor of the defendants' view would be irresistible. .So if there was a plain and necessary inconsistency between the two de- scriptions of the rubber, it might perhaps be succe-sf uUy contended that the vendor's ob- ligation was only to deliver rubber which would conform to the inferior quality de- scribed; that is to say, that in case of such inconsistency, the words "as per samples" should prevail, and the words "of second quality" be rejected. If it were to be held that the vendor's obligation was fulfilled by delivering rul^ber of a quality equal to the samples, though it was not of the second quality, then the words "of second quality" would mean nothing, or they would be over- borne by the words "as jier samjiles." lUit if it is found that tlie bought note admits of a reasonable construction liy wliich a proper ■significance can be given both to the words "as per samples" and also to the words "of second quality," there will be no occasion to disregard either. Oases are to be found in the books where such a construction ha^ oeen given to contracts of s.de. Thus, iu Whitney v. Boardman, 118 Mass. 242, a sale of Cawnpore bulTalo hides, with all faults, was held to mean with such faults or de- fects as the ai tide sold might have, retaining still its character and identity as the article described: and the court cited witli approval the case of Shepherd v. Kain, 5 Harn. &, Aid. 240, where there was a sale of .'i ropnpr-fast- ened vessel, to be taken "with all faults, without allowance for any defects whatso- ever," and this was held to mean only all faults which a copper-fastened ve.-sel might have, the court saying I v way of illustration: "Suppose a sdver service sold with all faults, and it turns out to be plated. " So, in Nichol V. Godts, 10 Exch. 191, an agreement for the sale and delivery of certain oil, described as "foreign refined rape oil, warranted only equal to samples," was held to be not com- plied with by the tender of oil which was not foreign refined rape oil, although it might be equal to the quality of the samples. The decision of this case lias stood in England, though not without sor.ie questioning at the bar. See Wieler v. Schilizzi, 17 0. B. 619; Josling V. Kingsford, 13 C. B. (N. S.) 447: Mody V. Gregson, L. K. 4 Exch. 49; Jones V. Just, L. R. 3 Q. B. 197; Randall v. New- son, L. R. 2 Q. B. Div. 102. In the present case, by a fair and reasonable construction of the bought note, effect can be given to both of the phrases used to describe the rub- ber. Construed thus, the article sold was 102 bales of Ccara rubber, of the second quality, and as good as the sanqiles. The rublier delivered was in fact Ceara rubber. There was no question that it was of the right kind; but it was not of the second quality. There is no necessity to disre^'ard the words describing the rubber as of the second quality. They signified a distinct and well-known, though nut absolutely uni- form, grade of rubber. There was no exact standard or dividing line betwer-u rulilier of the second quality and of the third quality, any more tlian there is between daylight and darkness. But nevertheless a decision may be reached, and it may be easy to reach it in a particular case, that certain rubber is or is not of the second quality. This general desig- nation being given, the specification "as per samples" being also included in the note, the rubljer must also be equal to the samples. It must be rubber of the second quality, and it must be equal to the samples. If it fails in either particular, it is of no consequence that it conforms to the othi ■• particular. There is no inconsistency in such a twofold war- ranty; and, this rubber having been found to be not of the second quality, the warranty was broken, without legard to the question whether or not it was e(|ual to the samples. The fact that the plaintiffs had an oppor- tunity to examine the rubber, and actually made such examination as they wished, will ■ not necessarily do away with the effect of the warranty. The plaintiffs were not bound to exercise their skill, having a warranty. They might well rely on the description of the rub- ber, if they were content to accept rubber which should conform to that description. Henshaw v. Robins, 9 Mete. 83; Jones v. Just, L. R. 3 Q. B. 197. And the exhiljition of a sample is of no greater effect than the giving of an op| ortunity to inspect the goo Is in bulk. Notwithstanding tlie sample or the inspection, it is an implied term of the con- tract tiiat the goods shall reasonablv answer the description given, in its commercial sense. Druinniond v. Van Ingen, L. R. 12 App. Oas. 284; Mody v. Gregson, L. R. 4 Exch. 49; Nichol v. Godts, 10 Exch. 191. In the two former of these cases it was held that there might be, and that under the circum- stances then existing there was, an implied warranty of merchautalde quality notwith- standing tlie sale was by a sample, which sani])le was itself not of merchantable quali- ty, the defect not being discoverable upon a reasonalile examination of the sample. The point urged in the defendants' argu- ment, that tlie plaintiffs' remedy was de- stroyed by their acceptance of the goods, was not taken at the trial, and no ruling was asked ailapted to raise the question as to the effect of such acceptance. For these reasons, in the opinion of a majority of the court, the entry must be: Excsptions overruled. GREGORY V. MORRIS. 367 GREOOnT y. MORRIS. (!»(J I,'. S. 619.) Supreme Court of the United States. Oct. Term, 1877. Krror to tlie supreme court of Wyoming territory. On Fell. !•(!, IS?;!, W. A. MorriH and A. J. Urejiory made a written contriict nt Aiih- tiii. Tix.. for the Rali- to tlic latter of a larfje nuiiilicr of oattli'. Tlie contract pro- vi<lud tliut .MorriH wuh to retain a lien on the cattle until the price, ?s,(Mi(), Hliould be |!ai(l, and autliorized him to dcBiji'nate H(jine pcrnoii as liiH naent to ixo alon^with and retain poHsc.-sion of the cattle. If the tialtince of the piicewas not paid on or hefoni October Iwt (olIouiuK, Huch anient waH toKcU all orHuch portion of the cattle an woidd pay the purcha.se money then due, us well as the wanes and other e.\ penses of the af^ent. After the contract was signed, Morririexecuted to one Poteet ft l)ower of attorney, autlioriziiiK him to accompany the cattle, and retain the lien provided for. The cattle arrived on the Laramie Plains in September. October 4th, the price not Imvinf; been paid by tirejjory, I'oteet took forcible possession of the cattle, and diove them from tlie ranch where they were Kraziiif? to that of one .\lsop, some distance off. Grej^ory then lirou^ht replevin av:ainst .Morris and Poteet to recover possession of the cuttle. The defendants, in their answer, denied all the allei;ati(ins of the petition, and esi)e- eially that they wronnfully detained lbs cattle. At thetrial, the plaintiff having in- troduced evidence to prove possession and ownershli), the value of the cattle, the tak- ing and detention of tliem,and hisdemund for their return, the defendants offered the written contract and other documentary evidence, which offer was obiected to b.v the plaintiff, and the objection sus- tained. The defendants, having amended their answer, were pertnitted to introduce the special matter which, under tlieir orig- inal answer, had been excliideil by the court. Tl;e plaintiff Ihoreupoa cxcepteil. The court, without objection, charged the jury that, "there l)eing no ipiiRtion of title to the cattle (lUt in issue by the plead- ings, but of possession only, if you lind for the defendants, you will lin<l 'that they liad the right of possession.' and will as- sess such damages as they have sustained by reason of lieiPig deprived of that pos- session, and the opportunity of selling the cattle according to the contract." The plaintiff (iraycd for certain .instructions, which were refused by the court. They are stated in the seventh assignment of er ror. The jury foun<l for the defen<lants. anil assessed their damages $7,4.")4.0l). .\ motion by the plaintiff tor a new trial was overruleil, and judgment rendered, which was allirmed by the sniirenie court of the territory. Plaintiff sued out tliis writ, and assigns for error that said supreme court *rred, — 1. In sustaining the ruling of the ilistrict court in instructing the jur.v as follows, to wit, "The jury must compute the dnin- aKes,antl return their verdict on thatcuni- pututiou in dollars und cents; and, if the jury finil the contract on the part of the plaintiff was to pay a certain sum of money in gold, they will compute the dif- ference between gohl and currency, and render their verdict in dollars and cents in currency. " 2. In sustaining the ruling of said dis- trict court In giving to the jury the follow- ing instructl(jn : "That the written con- tract between .Morris and (ireg.)ry,in con- uection with the bill of sale, the" receipt, and the power of attorney to Poteet. ne<;- essurily explain on<l deline the rights and interests of the parties to this acthjn In the property in (juestion." ;!. In sustaining the ruling of sairl dis- trict court in giving to the jury the ffd- lowing instruction : "That by and under those iiapers the defendants had a legal right to take poss"ssiou of the cattle In question on or .■ifter the first rlay of Oc- tober last, and retain such possession, for the purpose of selling them, according to the terms of saiil contract." 4. In sustaining the riding of said dis- trict court in giving to tlie jury the fol- lowing instruction: "That if the jury lind that Poteet, in |)ursuance of his power of at torney, took pusaession of said cattle, and removed tliem to .Vlsop's rnuch for the purpose of sellini; them, according to the terms of said contract, then the.y must find the right of possession in the defend- ants at the coniinencement of this action, and must assess such damnKes for the de- fendants UP are just and proper." .^>. In sustaining the ruling of said dis- trict court in giving to tlie jury the fol- lowing Instruction : "That the iileadings ill this ca.ie put in issue only the right of possession at the time of the service of the writ of replevin, and you are Instructed that the right of the plaintiff in these cat- tle at that time was only a right of re- demption as a mortnagor after condition broken; and that he had no rijiht to the possession of the cattle, and no riglit to take them, by replevin or otherwise, from these defeMclniits. or either of them, until he had paiil or tendered the amount due on the coiitr/ict." (i. In sustaining the ruling of said dis- trict court in giving to the jury the fol- lowing instruction: "If the jury tind that' liy the terms of the written contract, which uiust govern in this case, that the delendants, on the lirst day of Octolier. 1S7:!, had a right to sell these cattle, the right to sell necessarily carries with it the riglit of |)usses8ion." 7. In sustaining the ruling of fl-e said district court in refusing to give to the jur.v the followinjr instructions: "If the vendor. Morns, made an ngreemeiit of sale and delivery, and. in conforhiity there- with, did sefl and ilellver cattle to iJreg- ory, the vendee, and liy the terms ot the agreement made ttctween the parties the vendor was to ha ve and maintain a lien upon the chattels, or cattle, for the bal- uiiee of the iiurchase price, by keeping the said cattle in the possession of the ven- dor during the journey from Texas to Wyoming, until the first day of October. 1S73, the vendee, (iregory, after receiving the cattle from Morris, must have tlrst re- delivered the said cattle to Morris, and 368 GKEGORY V. MOItlUS. placed them in his hands as a pledge be- fore the agrt'etl lien of Morris for balance of purchase price could vest; and, second, if such redelivery was made by Gregory, the vendee, to Morris, the vendor, and thereafter the vendor, Morris, by himself or his agents, by his own fiinlt, careless- ness, or negligence, permitted the posses- sion of the said cattle to again pass to Gregory, the vendee, Morris, the vendor, thereby lost his lien, and all right of pos- session and right of properti". and posses- sion must thereafter rest and remain in Gregory. " S. In sustaining the ruling of the dis- trict court in overruling the motion of tlie plaintiff to set aside the verdict as defect- ive in form. 10. In sustaining the ruling of said dis- trict court in overruling the plaintiff's motion to grant a new trial. 11. In sustaining the action and ruling of the district court in admitting in evi- dence written instruments, the execution of the same not having been proved. Mr. W. W. Corlett, for plaintiff in error. Mr. J. M. Wilson, contra. Mr. Thief Justice W.VITE delivered the opinion of the court. The sei'oud, third, fourth, fifth, sixth, seventh, and tenth assignments of error ma.v be considered together. They relate entirely to the construction and effect given the contract between Gregory and Morris, as shown Ij.v the several instru- ments in writing put In evidence. There was no real controver.sy as to the facts; but Gregory claimed that he was the pur- chaser of the cattle in dispute from Mor- ris, and that the lien pro\ided for in favor of Morris was one which a delivery of the property under the contr.'ict extinguished. There was no pretence of payment on his part further than that shown by the con- tract itself, or of title, except such as was ac<iuired through this i)urchase. The lien at common law of theveudorof jiersonal property to secure the paynient of purchase money is lost by the volun- tary and unconditional delivery of the property to the purchaser; but this does not prevent the parties from contracting for a lien which, as between themselves, will be good after delivery. 8o, ordi- naril.v, when the possession of a pledge is reliniiuished. the rights of the pledgee are gone. In this case, however, Morris was not willing to rely upon the lien which the law gave him as vendor, or upon a mere pledge of the property, but reo.uired a spe- cial contract on the part of Gregory, se- curing his rights. 'I'his contract created acnarge upon the property, not in the nature of a pledge, l)ut of a mortgage. The lien, as between the parties, was not made to depend upon possession, l)ut upon a contract, which defined the rights both of Morris and Gregory, and the pow- er of Moriis for the enforcement of his se- curity. When Poteet assumed the exclu- sive possession of the property, no rights of third persons had intervened, and there was notliing to prevent the execution of the agreement according to its terms. This clearly gave Morris the right, after Oct. 1, if the purchase money was not paid, to take the cattle into his own pos- session, detain them until the balance due him was discharged, and sell them if nec- essary to obtain his money. We think the court defined correctly the rights of tlie parties, and that there was no error in this particular, either in the charge or the refusal to charge. The first assignment of error brings up for consideration the rule of damages laid down by the court. By the laws of Wj'o- miug territory, property tjiken in replevin is delivered to the plaintiff upon his enter- ing into an undertaldng to the defendant, with one or more sufficient sureties in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute his action, and i)ay all costs and damages which may be awarded against him. Civil Code, l.sti'J, sect. 190. If the property is so delivered, and the jury find for the defendant upon the issues joined, they are also re(iu'red to find " whether the defendant has the right of propert.v or the right of possession oid^- ; . . . and if they find either in his favor, the.v shall assess such damages as they think right and proper for the defendant; for which, with costs of suit, the court shall render judgment for the defendant." Sect. I'Ju. The delivery of the property to the piaintiff passes the title to him as against the defendant, who must look for his i)rotectlon to a recovery in damages, if the writ is wrongfully sued out. In this case, the finding for the defend- ant is, under the pleadings, in effect, that Morris was the mortgagee of the prop- erty in possession after condition broken, and that Gregory hud by the replevin wrongfully deprived him of his possession. That rendered Gregory liable for such damages, in consequence of hi." wrongful act, as were "right and proper" under the circumstances. The obligation secured b.v the mortgage or lien under which Morris held was for the payment of gold coin, or, as was said in Bronson v. Kodes (7 Wall. 229), "an agreement to deliver a certain weight of standard gold, to be ascertained by a couut of coins, each of which is cer- tified to contain a definite proportion of that weight," and is not distinguishable "from a contract to deliver an equal weight of bulllor. of eijual fineness." In that case, it was held that juilgment might be rendered upon such a contract payable in coined dollars; but here the suit is not upon the contract for the recovery of the amount agreed to be paid, but. In effect, for damages on account of the wrungful detention of propert.v mortgaged to secure the debt. Gregory himself asked the court to charge that "the jury must compute damages and return their verdict in dol- lars and cents." This \vas undoubtedly correct, and It was done; but he further asked the court to say that "no agreement or contract to pay a certain numlier of dollars In gold can be enforced. The na- tional currency Is l)y law a legal tender at its face value for all debts and demands, public or private, except duties on Imports and interest on the public debt." This was in confiict with Bronson v. Rodes, aud therefore projierly refused. GREG OK Y V. MOUUIS. 369 But the court dill say to the jury, that, if tliL'y found the contract on tlio part of the plaintiff was to pay a certain Hum of money in irold, tliey HJiould compute tlie difference between t^ohl and currency, and render llieir verdict in dollars and cents in currency ; and in this we see no error. While we have decided that a judgment upon a contract payable in jjolil may be fijr payment in coined dollars, we have never held that iii all cases it must be s.>. While Kold coin is in one sense money, it is in another an article of merchandisp. (Iref^ory was re{iuired to discharf^e his debt inK-'l'l liefore he could rightfully take tlie property into liU possession under the replevin. If tlie payment had been so made, Morris would have had his coin ut that time to use as money or merchandise, according to liis discretion. Hut it was not made; and (Jretjory, by his wrouKful act in taking the property, BUl)jected him- self to damay;es. If the contract liad been in terms for the delivery of so much yold bullion, there is no doubt but the court niit;ht have directed the jury to (ind the valuo of the bullion in currency, and lirinj; in a verdict accordingly. Hut we think, as was thoujiht in Bronson v. Hodcs, such a case is not really distinRuishable from this. The question is not whether (Jref;- ory had the right to pay in gold dollars after his debt had become due, but wheth- er, hnviiiK wrongfully got the property into Ills possession witliout payment at nil, the damages he is required to pay on account of this wrongful act must, as n matter of law, be estimated in sold, or whether they may be in currency. We think it clear, that, under such circum- stances, it was within the power of the court, so far as (Jregory was concerned, to treat the contract as one for the delivery of so much gold bullion: and, if Morris was willing to accept a judgment which might be .lischnrged in ouriency, to have his dnninges estimated accfjrding to the currency value of bullion. Cert'iinly, if Morris had in good faitli sold the cattle under his power of sale for currency, and LAW SALKS — 24 received payment In that klnil of money, he would have been entitleil to ronvertthe curiency into gtjhi before crediting It upoo his debt. So here, if. with the approba- tion of the court, he takes a judgment that may be discharged in currency, the judgment should be for an ncnount which would be tlie e(|uivalent in currency of the specilied amount of coin as bullion. This was the rule adopted liy the court, and we think it correct. The eighth and ninth assignaientM of error I'elate to the form of the ver<lict. As has already breii seen, where the proiierty has been delivereil t(j theiilaintirf. the jiiry, if they liixl for the defendant, must also find whether the defendant has " the right of property or the right of possession only." In this case the verdict, though for the ilefendant, is siknt uj.on that point; but the record shows that by con- sent the court charged the jury if they found for the defendants they shoulil Hnd "that they had the right of i)osHession only." This cures any defect there may have been in the verdict in this particular. The whole recoril must be tiiken together; and, as the jury did not find to the con- trary of the instruction, the presumption is that thc.v followeil it. .\ll the other ussignments relate to the admissibility of evidence, and as to them it is suflicient to say we are satisfied with tlie rulings tliat were made. Certainly, the instruments in writing which were ob- jected to were adinissiljle. They tended directly to prove the defence set up in the amended answer, and no objection ap- pears to have been made at the trial as to the proof of their execution. The cross-ex- amination of Gregory, which was ob- jecteil to, was clearly legitimate, under the most stringent rules governing that subject. He had testified that hehad pur- chased the cattle from Morris. It was clearly proper, therefore, on cross-exami- nation, to ask him if his contract of pur- chase was in writing, and, il so, to iden- tify the paper. Judgment affirmed. GRIEB V. COLE. 371 GRIEB T. COLE (27 N. W. Rep. 579, 60 Mich. 397.) Supreme Court of Michigan. April 8, ISSC. Error to St. CInir; StevenH, Juflge. AssiiinpHit. Del'enduut brings error. ReverHC'd. The lai'ts are stated in tlie opiuioii. (jforge P. V'oorheis.forappellant. Chad- wicli & Wood, for plaintiff. CIIAMPI.l.N. J. On .May 1, 1S,S3, one W. U. .NU'l^auKJiiin, as agent for i)l«intiff, toot; from tlie defendant tlie following (irder: "(iratlot, .Midi., .\Iny J, l.ss;!. To Clinrles Oriel), I'ort Huron, .\liili.: Yon will please Tiliip me, on or about tlio first day of .luiii", ls.>;j, t)ne Huckeye liglit mower, to I'ort Huron, for wliieli I agre'? to pay you $77, in manner as followH, (re- serving, however, tlie full henetlt of the warranty hereon indorsed:) $3.5 cash, with freight from Port Huron, on deliv- ery, and execute approved notes as fol- lows: S.'iy, payable on the first day of January, 1XS4, with interest at 7 per cent, from delivery; ¥-12, payable on the first day of January, ISS."), with interest nt 7 per cent, from delivery; $ , payalde on the day of , If^S-, with interest at 7 per cent, from delivery. For the pur- pose of obtaining credit for the above, I certify that I own. in my own unine. acres of land in the township of (iratiot, county of St. Clair, and state of Michigan, of which M) acres are improved, anil the wlule worth, at a fair valuation. $.5,0(10 over aiid above ail incuiul)rances, lialnli- ties, and legal exetniitions. It is not in- oumtiered, except 1,(KH) dollars, and the ti- tle Is perfect. I nl8o own f.'iOO worth of personal jjroperty over and above all indelttedness, and not e.\empt from execu- tion liy law. P. O. address. Port Huron. Taken by \V. D. McLaughlin, Agent. His Chas. X Cole," — across the back of which Miirk waH printed a Ijlank warranty, with (jrieb's printed name appended,' as fol- lows: "Whereas, ,\Ir. has this day given us his order for a , we hereby agree, in consideration of said order and the faithful ()erfonnance of the conditions heieiii mentiinied, to warrant said one year to be good and well made, and to do as good W(jrk as any other machine of lis class. It is an express condition of Ihis warranty that the directions for using this macliine shall be faithfully fol- lowed, and if for any reason it fails to perform as warranted, immediate notice of the same must be conimunicated to tliea;reiit to whom the order is given, and If said agent should fail to make the ma- •'liine perform as wnrrnnted, it may be returned, and money or note refun.ied. And It is also agreed, should the machine be used from day to day or at intervals. or set aside before or after use, without giving said agent notice, then, in either of said cases, it shall be conclusive evidence that the machine is acceptotl and the war- rant is at an end. Dated . Charles Orieb." The agent delivered this so-called "order" to the plaintiff, who claims that he accepted It, and delivered to the defendant the said machine on the eighteenth day of July. lKs;j. hut the de- fendant has neither paid for said machine, nor executed and delivered the notes; and after the time expired when the note for ?3.') mcntioneil in Uie order would have I matured, had it been executed, the plain- J tiff brought suit in justice's court to re- cover the amount claimed to be due at I that time. The plaintiff's declaration was in writing, ami, besides the common 'counts in asHunipsit. contnine<1 a special count, and setting out the sul)stance of tlie above order. and nlleiring a delivery of the macliine ordered. The |)lea was the general issue. It is always proper. In construing a con- tract, to take info consideration the po- sition which the parties occu|)ied, and the 1 circumstances under which the agreement was entered into. The plaintiff resided at Port Huron, and was engaged in the bus- iness of supplying mowing-machines to farmers. Hewasnota manufacturer, but took written oniers, and purchased the machines to till such orders. Defendant la a farmer, residing in the vicinity of Port Huron, and on thesecond day of May,Ks.'!, signed the oriler above set out. anil deliv- ei'eil it to plaintiff's agent. On the trial the plaintiff offered In evidence the afore- said order, and warranty thereon In- dorsed; to which the defendant objected because not admissible under the declara- tion, and as immaterial to the issue. The t objection was overruled, and this consti- tutes defendant's first assignment of error. This objection is based uixin the idea that the paper is incomplete; that the order refers to the warranty on the back, and reserves the full lienetit of such wariimty, and it appears that the blanks in the war- ranty were not hlled out; and it is claimed, and I think rightly, that the warranty indorsed must be of surli legal validity as to support an action thereon by Cole in case of a l)reacli thereof. By reference to the warranty indorsed, it w'ill be oliserved that the name of .Mr. Cole, and the description of the machine ordered, are omitted, as well as the date. If the warranty stood alone, there could be no doubt that it would be so far in- complete as to render it invalid, because thus standing it lacks the essential nuul- ities of naming the party to lie indemni- fied and the subjeot-malter. It does not aitpear from it whether the machine Is a steam-thresher or a mowing-machine. But the reference in the order to the war- ranty indorsed thereon constituted the order and warranty one instrument, and when read together.no ambiguity or un- certainty appears. The party to whom the warranty is made is tlie party making the order, and the machine is the machine described in the order, and the date of the order supplies the date to the warranty, for they are contemporaneous, and the warranty has the same force and effect as if embodied In the order itself. The war- rantor is bound by the printed signature which he adopts as his as fully as if It was 372 GRIEB V. COLE. in his handwriting. The order and war- ranty were properly admitted in evidence at that stage of the case. The plaintiff gave evidence tending to show that he had coinplied with the con- tract on his part, and had delivered the ma- chine at Port Huron within the terms and meaning of the contract, and also had re- quested defendant to execute the notes, and that defendantdeclined toacceptsuch delivery, or to execute and deliver the notes. Tlie fact of delivery was contro- verted by defendant. The defendant also offered testimony tending to show that the mower which plaintiff claimed to have delivered to defendant was a second-hand machine, showing considerable wear; that the worn parts had been stripped and filled with paint in the woodwork, and parts of it had been painted ovorafter having been used and worn; that the axles had old grease upon them, one set of knives were chipped and broken, and the tongue and neck-yoke considerably worn ; that the entire machine liad been used oneseason somewhat; butthe court, on objection of plaintiff's counsel, ex- cluded this evidence as not admissible un- der the plea, and not tending to show the condition of the machine when delivered. The latter portion of this ruling was based upon the fact that the witnesses by whom these facts were sought to be proved did not make the examination of the machine until after the trial in the jus- tice's court in April, 18S4. The evidence, however, showed that on the twenty-first of July, 1.SS3, which was three days after plaintiff claims to have S3nt the machine to defendant's farm and demanded the notes, defendant gave written notice to plaintiff that he refused to purchase it, and that it was there at plaintiff's risk, and to come and take it away, and the testimony was that it had not been used since. There was therefore no reason for excluding the testimony on this ground. The court erred also in excluding the ev- idence upon the other ground stated. It was proper for the defendant, under the plea of the general Issue, to prove thsit the article delivered was not the article he purchased. He did not order or purchase a second-hand mowing machine, or one that had been in use and worn ; but the order, taken in connection with the cir- cumstances under which it was made, called for a new machine. A purchase of a machine from a dealer implies that the machine sold shall be new. — that is, not second-hand, or the worse for wear, — and under such an order the dealer could not impose upon the purchaser a second hand and worn article, whether it complied with the terms of the warranty or not, as to being good and well made, and will do as good work, as any other machine of its class. This evidence, if believed, fairly met and rebutted the plaintiff's case, and tended directly to sustain the defendant's plea, which put in issue each and every allegation .if the plaintiff's declaration. Rodman v. Guilford, 112 Mass. 405. The judgment must be reversed, and a new trial ordered. CAMPBELL, C. J., and MORSE. J., con- curred. SHERWOOD. J., did not sit. 1 GROAT V. GILE. I i 375 GROAT et al. t. GILE. (51 N. Y. 431.) Commission of Appeals of New York. 1873. Appeal from order nettinn iiHiiie o ver- dict for plaintiffs and granting a new trial. Action to recover ttie value of wool wliicli tlu'dcfcnilaiit linil Hhornfroiu Hlu-cp, to which I lif pJMintill'.s claimed title. The opinion titateM the facts. John II. IteynolilH.lor api)elluiitM. John (jaul, Jr., for ix-Mpoiulent. LOTT, C. C. Ah the verdict of the cir- cuit in favor of tlie [ilaintiffs wa.s onlered by tlie judge who tried the action on the version given by the liefi ndant oi tlir con- tract or agreement lietween the parties, it becomcH neccHsni'y to refer to it with par- ticularity tor tlie purpose of ascertaining whether his conclusion Af law based there- on was correct. The defendant, on his direct examina- tion, after stating that the plaintiffs called on him about thel'Olh of May, \sm, and that he and the plaintiff Croat had some convci-sation about the purchase of his sheep and lamtis, in which he sai.l that he wanted to sell the old sheep with the lambs, and that he would ask .1f4 apiece for tlietn, testilled as follows: '"J'hey con- cluded to go and nee the slieep ; 1 told tliem where they were; »)ne tlock was near a mile Ironi thelionse; they went off together; went to the further lot tirst; when Ihey came back from this lot I tolil tliem wlwre the others were; I told them 1 did not t)elieve they would like that lot; they did not look as well as the others, as some of th"m had lost their wool; then they went off to see the other lot and came back; they asked me how many BiHH'p and lambs there were; I tolil tliein I could not tell how many there were; I did not know myself; I think I H:iid in the neighborhood of so many sheep and ho many laml)s; then they in(]uired about taking tiK- sheep; it was agree<l that they shouhl take the lambs the middle of Sep- tember and the old sheep tli<' first of No- vember, anil pay me .54 apiece for sheep anil lambs; this was the contract; think I told them 1 would give them a good chance; something was said about cut- ting the lambs' tails off; I told tiicin 1 thought it wasnot in iident ; I trieil todis- suade them from having it done; that they had eot too large and might die; some- thing wjis said in answer to if, but I doa't know just what; they askid me if the sheep were sound afler they had been to see them; 1 told them I did not consider them eiil in ly sound ; then lliey asked that I should doctor the sheep if they needed it ; 1 told them 1 would; after the talk they li.Mudeil me over twenty live <lollars to bind the bargain, . -IS they said ; then they Went away." On his crosse.\amin;ilioii, he said : " When (iroat and .lacobia were there in May, I had sheep in two lots: the sheep I sold them wei-e in the lots men- tioned; I sold them all that were in these lots; did not knt)w how many sheep 1 bud; had not counted them forsoinetime; soroetimes thoy die; told them I did not know how many I had; that there would be in the neighborhood of ninety old Hliec|); they were to take all the sheep in the two hUs, except two bucks and a lame ewe; they got all the sheep In the two lots except two buiks and a lame ewe; they agreed to give four dollars per head ; in the bargain they were to have all the sheep except two Imcks ami a lame shc-ep; 1 agreed to sell the sheep at that price; nothing was said about the wool; they got ninety-tW'. old sheep anil seventy-one lambs." And o[i further re-dircct exam- ination he said: "When they made the contract for these sheep, there was noth- ing said about the wool." Ami also: "Son)e of the lambs came in March, and so along, and some were only n tew ilayi old; some time in August is the usual and projier time for taking lambs from sheep; they had not been siparated from the siieep on the nineteenth of .May; the lambs were in no condition to be separat- ed from the sheep at that time without ruining the lambs." The i)rcceding statement of the defend- ant's evidence contains all that nlates to the negotiation and making of the agree- ment, and fidly jnstilies the construction given to it by the learned judue at the circuit, it is clear that the pluiuliffs In- tended to buy of t Ik? defendant, and that It was his Intention to sell to them ail of the sheep and lambs that were rnnniuii in the two lotsof bind referred to by him (except two bucks and ji lame ewe, as to the iilen- tity of which there was no (luestioii), at .•^4 per he;iil, and that no further or other designation or s-lection was contemplat- ed. All the parties nnderntood what iiar- tii-ulnr sheep and lambs were intended to be sold, and there is no doubt that these were snilicicntly identilied. Indeed, that fact does not appear to have been disput- ed on tlifc trial. rndersuchcirrumstanceB, when the terms of the sale were agreed on and the payment of ?"J.'i was made to the deie!iilant on account of the purchase- money by the i)laintiffB. their liability be- camelixed f.jr the balance, which was as- certainable by a siiii|de arithmetical cnl- cnlation based upon a c<uiut of theshe<»p and lambs and the price to be paid per head for them. No delivery of them or other act whatever in relation to them by the defcnilaiit was reipiired or inteiideil. The plaintiffs were to take tliem without any agency in delivering them on the part of "the defeiiilant, and they, ironi tin- time the agreement was made, liecjime the owners thereof. Tl;e defendant siilise- ipieiitly kept them at the risk of the plain- tiffs, riiancellor Kent, in his Commenta- ries, vol. 1', p. 4!»L', in stating the rule gov- erning salesat common law. says: "When the terms of sale are agreed on and the bargain is struck and everything tliat the seller lias to do with the gooils is com- plete, the contract of sale becomes abso- lute as between the parties witlioiit actual payment or delivery, and the property and the risk of accident to the goods vest In tlie buyer. " Tills rn!e is moililied by our statute of frauils so far as to reipiire In certain cases tlint a note or niemor.induin of the contract shall be niuJe In writiu,; 376 GROAT V. GILE. and subscribed hy the parties ti> be cbargeil, or that the buyer shall accept and receive a part of the property sold, or at the time pay some [lart of the purchase- money; and in sucli cases he says, at p. 49!): "When the bargain is made and is rendered binding by giving earnest, or by part payment, or part delivery, or by a comi)liance with the requisition of tlie stat- ute of frauds, the property, and with it the risk, attach to tlie purchaser; but though the seller has parted with the ti- tle, he may retain possession until pay- ment." The fact that the number of tne sheep and lambs sold was not ascertained at the time the terms of sale were agreed on did not prevent the ajjplication of the rule referred to in tliis case. It is true that the same learned jurist, after stating that "it is a fundamental principle, per- vading everywhere the doctrine of sales of chattels, that if goods of different values be sold in bulk and not sejiarately and for a single price, or per aversionem, in the language of the civilians, the sale is perfect and the risk with the buyer," adds, "but if they be sold b.v number, weight or meas- ure, the sale is incomplete, and the risk continues with the seller until the si)ecific property be separated and identified." The present case is not one of the latter class. That rule has reference to a sale, not of specific propei-ty clearly ascertained, but of such as is to he separated from a larger quantity, and is necessary to be identified befoi'e it is susceiitible of deliv- ery. The rule or principle does not apply where the number of the particular arti- cles sold is to be ascertained for the sole purpose of ascertaining the total value Thereof at certain specified rates or a des- ignated fixed price. Th's distinction is recognized in I'rofoot v. Bennett, 2 N. Y. 25S; Kimberly v. Patchin, 19 id. 3:W; 75 Am. Dec. :«4; Bradley v. Wheeler, 44 N. Y. 495. The sale in question was in fact of a particular lot of sheep and lambs, and not of a certain undesignated number to be selected and delivered at a future time, and tlie postponement of the time for tak- ing them away did not prevent the title passing to the plaintiffs. A sale of a specified chattel may pass the property therein to the vendee and vests the title in him without delivery. See Chittv Omtracts (Sth Am. ed.), 3:32, and Terry v. Wheeler, 25 N. Y. 520. All the parties apiienr to have under- stood the transaction, at the time it took place, as a present absolute sale and change of title. Wliat was said about cutting the lambs" tiiils off an<l doctoring the slieep, if they needed it, is evidence r)f such understanding, and there is nothing in what is said to have been the agree- ment about taking them away inconsist- ent with it. That gave the plaintiffs the privllegeof leaving them in the defendant's pasture till the time specified for taking them away, but did not deprive them of the right to take them before, if they chose so to do. The remark of the defendant at the time to the plaintiffs, that he " would give them a good chance," shows that such was its object and intention. It is proper moreover to consider the state- ment in reference to such agreement in connection with what had bien i)reviously testified to by the plaintiffs, and which was not denied by the defendant, and therefore impliedly admitted, to the effect that <iroat, one of the plaintiffs, before going to look at the sheep and lambs, had stated to the defendant that he had no pasture for them, to which he rejilied thaf he had lots of pasture and would keep them for tlie plaintiffs if they purchased, and that they, after looking at them, had stated to him tliat they would take them at the price named, if the parties could agree upon the time for keei)ing them. Considered in that connection, it is clear that the agreement was one for the plain- tiffs' accommodation and an inducement to them to make the purchase at the price asked, which hud been fixed irrespective of their subsequent pasturage on the de- fendant's land. It affords no ground or warrant for saying that the defendant, during the time they were so kept, intend- ed to assume and bear all the rieks inci- dent to a continuance of his ownership of them, and consequently that the purchase- money receival)le by liim should depend on the number tliat should be living at the time specified or limited for that pur- pose. On the contrary, tlie fact that the price at which thoy were sold was that named by him when the first application to him to sell them was made, without reference to the (juestion of the future keeping of them iii his i)asture, and the other circumstances attendant on the transaction, as stated by him, clearly show that such was not his intention. It follows, from what has been said, that there was no error in the ruling of the judge that the title to the sheep passed to tlie plaintiffs immediately upon the completion of the contract and the payment of the .^25 by them. That neces- sarily carried with it the right to the vfool on them, it being shown that there was no reservation thereof, or any thing said about it during the negotiation or at the time the contract was made. It is not a mere presumpti(»n, as stated in the pre- vailing opinion in the supreme court, that the parties "intended, in the absence of evidence to the contrary, that the title to the wool should follow tlie title to the sheep." As was well said by .lustice In- galls in his dissenting opinion: "When the siieep were sold the wool was grown and was a part of the sheep, adding to their value, "and thei'e is no reas.)n or principle for saying that such particular part did not pass to the purchaser with the rest of the animals. Tlie sale was of the entireaniraaland not of different parts or portions constituting it, or of what it was formed. Assuming then that the legal effect of the agreement of the parties, as testified to by the defendant himself, was to vest the title to the wool in the plaintiffs, it was clearly incompetent to sliow a cus- tom in (^)lumbia county, where the transaction took place, that the wool of sheep sold, uni'er the circumstances dis- closed, does not go to the purchaser. See Wheeler v. Newbould, IG N. Y. 392,401; GKOAT V. GILE 377 IliKKi'iifi V. M Of) re, 34 id. 417; Bradley v. Wheeler, 44 id. 4!).'.. TlnTf were weveial offers of evidenoe hy the (lotendnnt which were rejected by the court. .\iii()iiK them wore the following: Int. That tlie i)ljiintiff Uroat, on a prevl- <)U.'< oc<-asion, purcha.sed a iiiiinlier of Hheop and laml)s of the defendant umler an arrangement precisely nimilar tri tlie present, and that lie did not claim the wool; i!d. That the plaintiffs admitted to a witness, on heiiiy; offered $HM tor their liar(;iiin with the defendant and to take the slK-ep anil lamlis oft their hands, al- lowing the defendant to ha ve the wool, refnseil the offtT an<l Haid that the sheep, withont the wool, were worth inme mon- ey llian the offer; Jind :!d. That the plnin- tifl (lioat admitted that he did not nnder- Mtand he had lion^^ht the wool in(iuestion. or think of makiiiK any claim to it nntil his co-plaintiff suggested that they could hold it. 'I'hese were properly e.xcliided. It was immaterial to the present controversy what the ]daintiff8, or either of them, had claimed of the defendant under a previous sale. Their legal rights could not lie con- trolled under the present contract hy a failure to ilemand what they were entitled to under a previous one, and it cannot lie held that the wool, under this agreement, was excepted from the operation of the sale, because one of the [ilaintiffs did not assert his rights under another, and it could Dot aid in determining what the contract in disjiute was, whether or not the purchase of the sliee|i was so prolit- ahle as to cause the plaintiffs to reject the offer made them for their bargain. Nor could the understanding of one of the plaintiffs, as to the question whether he had liouiiht the wool or not, alter the i'ffect of the transaction or the contract actually entered into. What he in fact did buy was the ()uostion, ami that ilid not depend on what he understood, but on the agreement. The defendant was also asked what was the v.iliie of the sheep without thewool uniler thearraiige- ment he had testified to. That ijuestion was properly excluded; the in(|niry was wlioUy irrelevant. The jiarties could make such agreement as they saw tit, and It was immaterial whetlKM- the defendant sold the [iroperty in iiuestion for more or less than it was worth, in the absence of any fraud or other evidence affecting its validity. There was a request to charge the jury That if the statement of the defendant was correct, then the sum of $i"i paid by the plaintiffs was merely paid to bind the bar- gain and take the contract out of the statute of frauils, and that the title to the sheep did not thereby pass absolutely to the plaintiffs. This was refuseil, and what has already been said as to the legal effect of that statement, shows that such refusal was correct. The court was then asked by the defend- ant to submit the tidlowing (luestions to the jury: 1st, Whether thecontract in suit wasex- ^cuted or executory; whether it was the intention of the parties that the title to the sheep should pass to the plaintiffs Im- tnediarely upon the making of the con- tract <ir at some future periml. 'J<1. Whether tlii' detendatit, uiion the iiiaking of this contract, inlentled to Bvli or the plaintiffs t<i buy the wool In queit- tion in this suit; and on his refusal ho to <lo. and after projier exceptioiiH were taken, he was reiiuested t(» charge the jury that if the contract was exe<-utory and it was not the intention to pass the title to the i-heep until delivery and pay- ment, then the wool sheared" from the sheep, before they were actually ilelivered and paid for, tielonged to the defendant. This was also refused, and an exception was taken to such refusal. There was no error to submit those 'luestions or give that instruct ion to the jury. They all involved the submission of matters of law to their consideration and determination. The court had previously decided that the terms, nature and effect of the contract should lie determined and controlled by the defeniiant's statement, or version of it, which was the most fav<»r- able view in which it could be c<iiisidered for him. The case was thus substantially one in which there was no dispute of facts as to the terms of the agreement, and it therefore became a (piestioii of law to be determinerl by the court, whether thecon- tract was executed or executory, and what was the intention of the parties (to be aseeriained from the contract) as to the nature, extent and effect ot t he sale. The only remaining ipu'stion to be con- sidered relates to the rule of damages laid down by the court, which he stated to be "the highest market priceof wool between the time of the demand and the time of trial, with interest from the time of tho demand. " It may lie questionnlile whether the in- struction as to the riglit to recover inter- est iscorreet ; and I understand, from the points of the counsel of the defemlant, that he only makes obji'ction on this ap- peal to that portion of the charge. That ((uestion was not presented by his excep- tion, wliich was to the entire InstructiuD and not to the allowance of inti'rest only. The part allouiiis a recovery for the liighest market value lietween the conver- sion and the time of trial was held by us in Lobdell V. Stowell. decided at the Septem- ber term, 1>>7"J, l."d N. V.7tl,l to be the proper rule or measure of dauiages orcompensa- tion, on the autliorilv of llomaine v. Van .Mien. -M .\. Y. ;tO'.l ; Hiirt v. Dutcher, :U Id. 4;>:i; .\laikham v..laudon.41 id. L':'..'i. There was therefore no ground of < iplaint to that portion of the charge. Tin- exception lieini: to that as weP as to the portion re- lating to the interest, was too broad and conseiiuently not well taken, and is not available as a ground tor setting asidethe verdict infavor of theplaintlffs and grant- ing a new trial. The result of the views above expressed is, that the order of the gi-iiernl term granting such new trial slioulil be re- versed, and judgment must be orden^d against defendant on the verdict, with costs. .Ml concur. Order reversed and judgment accord- ingly. 1 I GROVER 0. GROVER. 879 GROVER T. GROVER. (24 Pick. 201.) Supreme Tiidicial Court of Massachusetts. Middlesex. March 20, 1837. AHsunipwit upon a note inatlc by ClmrloH W. (jr()V('r, luiil pji.vniile to the order of lliriini !S. (jrover, the iilaintifl'H intestate. In March, Is.'iJ, (ii-over \V . Blancliard ealh'il to Kee tlie inte.state, and aHked vvlicther the iriort^aKe deed given to secure the payment of th(' note in qiioHtion had been recorded? The deed liad not been re- corded, and tile intestate naid to Itlaucli- ard,"I will make a present of these toyou, if you will accept them." Blanchard then took them, and put them in his pocket, sayinj;; that he would accept them as a token of affection, lllanchard afterwards gave them back to the intestate, savins, "You may keep the papers until I call for them, or collect them for me." NoassiKii- ment was made on the note or mortijaKe- The intestate then put the morteage dee(l on record. The plaintiff, after the death of tlio intestate, took the deed from the renister's ollice, and, havintr received pay- ment of the amount secured thereby, dis- charKed the niortnaKe. I'pon the death of tlie intestate, the note was found in his chest, with his papers; and Blanchard took it, refused to deliver it to the plain- tiff, and caused this action to lie l)rou;;ht liy the administrator for his benefit. The defendant contended (1) that no valid frift of a chose in action could t)e made inter vivos without writinj;; (2) that the name of the donor or of his administrator could not be used without his consent in an ac- tion for the use of the donee; and (3) that the donor could not, by law, .ict as the apent of the donee to keep the papers or collect the money. The jury found that the hitestate ,iid int'Mid to give the prop- erty contained in the note and raortj?ap;e absolutely to Blanchard. The wholecourt were to determine whether or not the property parised and vested in Blanchard, and whetlier or not he nilfrht maintain this action withotit the consent of the nominal plaintiff, for his own use. Hour, for plaintiff. Keyes and Farle.v, for defendant. WILDi:, .1. The jury have found, that the deceased intended to Rive the iiroperty in the note, and in the mortgnfie made to secure it, absolutely, to Blauchani; and the question is, whether by the rules of law this intentiuD can be carried into effect. It is objected, that no valid gift of a chose in action can be made inter vivos, without writing, and this objection would be well maintained, if a legal transfer of a otiose in action wife essential togive effect to a gift. But as a good and effectual equit.'ible assignment of a chose in action may be made l)y pared, and as courts of law take notice of and give effect to sncli assignments, there seems to be no good foundation for this objection. It is true that the cases, which are numerous, in which such equitable assignments have been supported, are founded on assign- ments for a valuable consideration; but there is little, if any, distinction In this re- spect, between contracts and gifts inter vivos; the latter indeeil, when tiiaile per- fect by delivery of the things ijiven, are executed contracts. 2 Kent's Coram. CJd ed.H'!^- By delivery and acceptance the title ()asses, the gift becomes perfei't. and Is irrevocable. There is, therefore, no good reason why properlv thus ac(|uired should not be protected as fully a nrl effec- tually as property acipiired bv purchase. And so we think that a gift of a chose in action, provided ne) clainis of creditors in- terfere to affect its validity, ought to stand on the same footing lis a sale. The cases favorable to the defencedo not depend on the question, w tiether an ns- signment must be in writing, but on the question, whether a legal transfer Is not necessary to give validity to a donation of a chose inaction. The rionation of a note of hand payable to bearer, <irof bank notes, lottery tickets and the like, where the legal title iiasses by delivery, is good; for by the form of the contract "no written assignment is necessary; but as to all other chosps in action, negotiable securi- ties excepted, it has been held in several cases, that they are not sulijecls of dona- tion mortis causa, on the ground un- (bjiibtedly, for 1 can imagine no other, that a legal assignment is necessary to give effect to such donations; and the same reason would apply to donations in- ter vivos. The leading case on this point is that of Miller v. Miller, :l I'. Wms. ;J5(!, In which it was held, that the gift of n note, being a mere chose in fiction, could not take effect as a donati<in mortis causa, because no property therein could pass by delivery, and an action thereon must be sued in the name of the executor. But In .Snellgrove v. Bnily, '.i Atk. 214. Lord Hardwieke decided, that the gift and de- livery over of a bond wiis good as a dona- tion mortis causa, on the ground that an equitable assignment of the bond was sulHclent. It seems to be very dillicult to reconcile these two cases. The disiinctloo suggested by Lord Hardwieke in the case of Ward v. Turner, 2 Ves. Sen. 4:!I, io which he adheres to the decision in Snell- grove V. Bally, is technical, and. to ray mind, unsatisfactory; and certainly has no appli<ation to our la ws, which place bends ami other securities on the same fooling. We cannot, therefore, adopt both decisions without manifest inconsistency; and we think, for the reasons already stated, that the decision in .Snellgrove v. Bail.v is supported liy the lietter reasons, anil is more conformable to general prin- ciples, and the modern decisions in respect to equitable assignments. We are. there- fore, ol iMiinion that the gift of the note of hand in question is valid: and in com- ing to this conclusion, we cniicur with the decision in tlie case of Wright v. Wright. 1 Cowen, .V.K, wherein it was liiOd, that the gift and delivery over of a promissory note, mortis causa, is valid in law, al- tliough the legal title did not pass by the assignment. It is not necessary tod«^lde whether the gift of the mortgage security is valid, al- though it is reported to have been said by 380 GROVER V. GROVER. the vice chancellnr, in the case of Piiffipld V. Elwcs, 1 Siiu. & Stu. 248, that a niort- gaRor waH not conipellable to pay the mortgage debt without having back the mortgage estate; and for that and other reasons he decided, that a mortgage was not a subject of a gift, mortis causa. This decision, however, was afterwards over- ruled in the house of lords, Dufiield v. Elwes, 1 Uligh's New. K. 4!)7, on the ground, tliat the gift of the debt oi)crated as an e<iuitable assignment of the mort- gage. But as we think it clear, that the right to maintain this action does not depend on that question, we give no opin- ion in regard to it. Another objection is, that if the gift was valid and complete, by the delivery of the note, it was annulled by the redelivery to the donor. We think this objection also is unfounded. In the case of Hunn v Markham, 7 Taunt. -.'30, (iibbs, C. J. lays it down as a well settled principle, that if after a donation mortis causa, the donor resumes possession, he thereby revokes and annuls the donation. This is the law no doubt. Whether there may not be an exception to this rule, when the donor takes back the thing given at the request of the donee, for a particular purpose, and agrees to act as his agent under circum- stances negativing every presumption that he intended to revoke his gift, is a question which it is not necessary now to consider ; for the principle has no relation to a dona- tion inter vivos. When such a donation is completed by delivery, the property vests immediately and irrevocably in tliedonee; and the donor has no more right over it than any other person. But a donation mortis causa does not pass a title imme- diately, but is only to take effect on the death of the donor, who in the mean time has the power of revocation, anil may at anv time resume possession and annul the gift. The last objection to tlie maintenance of this action by Blanchard, in the name of the administrator, has been sufiiciently answered in considering the first objection. It is contended, that the consent of the administrator is necessary. But if an eq- uitable assignment issufflcient tocompleto the gift, it follows that the administrator is trustee, and cannot set up his legal right in order to defeat the trust. This is fully established by the case of Dufiield v. Elvves, 1 Bligh's New R. 497; Hurst v. Beach, a Madd. Ch. H. 351; and Dufiield v. Hicks, 1 Dow & C 1. Judgment for plaintiff for the use of Blanchard. ♦ GRYMES t>. HONE. 383 GRYMES T. HONE. (49 N. Y. IT.) Court of Appeals of New York. Mar. 26, 1872. DcfenclaufH teHtutor. so years old and fct'lile. niaile un ali.-iohito asHi;>nm«'nt of bunk Htock to li's Kranddauuhtcr. and dc- livcrpd tilt' a8si;;iinieiit to Iuh wife, witli instructions t(» deliver it to the jjrand- daii!;;liter In ease of lii.s death. Kive months afterwards he died. The ntuck had not been transferred on the bank bookH. Jolin II. Reynolds, for appellant. Or- lando Meads, for reapoudenC. PF;cKnA.\I, J. On the 19th of AiiRUst, ls()7, tile alli'jied donor heinR the owner of one hundred and twenty sharen of Htcjck, Included in <»ne certitieate, in the Bank of Conjmeree of .Vew York city, made an ali- Holute asHijrnini nt in writinc. tran.sferat)le on the book.s of the bank on the Hurrender of the certificate, under.senl and witnessed, of twenty shares thereof to this plaintiff, his favorite KranddnuKhter, for value re- ceived, as tlie assignment purports, and appointed her his attorney irrevocable to sell and transfer the same to her use. Aft- er this paper had been signed "he kept it by him for awhile" (how long nowhere appears), and afterward handed it to his wife, to put with the will and other pa- pers in a tin box she had. Wlien he gave to his wife the paper so drawn, he said: "I intend this for Nelly. If 1 die, don't give this to the executors; it isn't for tliem, but for .N'elly; give it t(j her, herself." .She aski'il, " Why not give it to her now'.'" "Well." he said, " better keep it for the | present; I don't know how much longer I may last or what may happen, or wheth- er we may not need it." This is the state- ment as given by the widow of donor. It was admitted that at the time of exe- cuting said instrument the donor was from seventy-eight to eighty years of age, was in failing health, and so continued till his death. .January '2ii, isds. L'pon these facts was there a valid gift mortis eausa'.' I'|)on the question as to what consti- , tutes such a gift, the authorities are in- 1 finite, not always consistent. I?nt at this time it is generally agreed that to consti- tute such ;i gift, it must be made with a View to the donor's death from iiresent ill- ness, or from external and apprehended peril. It is not necessary that the donor should l)e in extremis, but he should die of that ailment. If he recover from the ill- ness or survive the peril the gift thereby becomes void: and until death it is sub- ject to his personal revocation. '.' Kent Com.4J4, an<l ce.ses cited: 2 Kedf. Wills, 2i»i) ct se«i.; 1 Story Kq. .lur., § (>06, etc., notes and authorities. I In the next place there nnist he a deliv- ) ery of it to the donee or to some person for him, and the gift becomes perfected by the diath of the donor. Three things are necessary. 1. It must be made with a view to donor's death. 1*. i The donor must die of that ailment or peril. 3. There must be a delivery. The | appellant inslBts that the gift In this case fullills neither requisition. Was this gift made with a view to the donor's death'.' It issofound bv the referee as a question of fact. What the witness intended to convey by the term "falling health " is not clear; but intendments are against the appellant where the fact Is left uncertain. There Is nothing In the case inconsistent with the idea that the tes- tator, when ho signed this assignment, was conlined to his bed and so continued till his death ; though I do not wish to he understood as saying that such confine- ment was necessary to validate the gift. It seems that he died, as the referee finds, from this failing health. In five months thereafter; so that the terms as used in- (licated a very serious ailment. True he did not, and of course could not, know when death woidd occur when he executed this assignment, but he was ina|)prehpnsionof it. His age a ml his "fail- ing" told him death was near, but when it might occur he had no clear conviction. .\n ailment at such an age is extremely ad- monitory. From these facts, can this court say as matter of law, that this testator was not so seriously ill when he executed this as- signment as to be ai>preliensive of death; that he was not legally acting "in view" of death; tnat he was not so ill as t<i be permitted to make this sort of gift'.' True, the donor died live motiths thereafter; but -we are referred to no case or principle that limits the time within which the donor must die to make such a gift valid. The only rule is that he must not recover from that illness. If he do, the gift is avoideil. Tlie authoritii-s cited bv the ap- pellant's couns.l, of Weston v. Might, 17 Me. 2X7, :!j Am. Dec. '2.")U, ami Stanihind v. Willott, a .Mc.N. & (i. (KU. are both in- stances of recovery, and the gifts on that ground declared void. In the latter the donor and his committee recovereil back the stocks given, because of his recovery. The lirst case is improperly ijuoted in 2 I!edf. .'iu(l, note 11, as not originally au- thorizing the gift. 'I he declaration of the donor that his wife should keep the assignment and not hand it over until after his death, as he did not know what might happen, nor hut that they might need it, was simply a statement of the law as to such a gift, whether the declaration was or was not made. Clearly he could not tell whether he should die or rccoverfrom that ailment. If he did recover the law holds the gift void. The transaction as to such a gift Is, the donor says I am 111, and fear I shall die of this illm'ss, wherefore I wish you to take these tilings and hand them to my granddaughterafter mydeath: bntdonot hand them to her now, as I may nvover and need them. .\ good ilonatio mortis causa always implies all this. If dellvereil absolutely to the rlonec in person, the law lndds it void in case the donor nvovcrs, and he may then reclaim It. .Stauiland v. Willott, supra. To make a valid gift mortis causn. It is not necessary that there should l)e any ex- press qualitication in the transfer or the 384 GRYMES V. HONE. dolivery. It may be found to be such h Kift fruni the attending cirounistances, though the written transfer and the deliv- ery may be abnolute. Nee the last case. i think tliis donor made tliis gift " with u view tohisdeatli," within the meaning of the rule on that subject. 2d. This also settles thesecond requisite, as it is admitted tliat he did not recover, hut died of tliis "failing health," as it is expressed. 3d. Was there a delivery? The assign- ment was delivered to his wife for the donee. She thus became the agent of the donor. So far as the mere delivery is con- cerned this is sufficient. Seethe elementary writers before cited; also Drury v. Smith, 1 P. Wms. 404; Sessions v. Moseley, 4 Cush. S7; Coutant v. Schuyler, 1 Paige, 316; Borneman v. Sidlinger, 8 Shep. IS,"); Wells v. Tucker, 3 Binn. .300; Hunter v. Hunter, 19 Barb. 031. Such a delivery to be given to the grantee after the grantor's death is good as to a deed of real estate. Hathaway v. Payne, 34 N. Y. 92. It is urged that this gift was not com- pleted; that thestock was not transferred on the books of the bank, and could not be until the certificate held by the ilonor was surrendered, and that equity will not aid volunteers to perfect an imperfect gift. Within the modern authorities this gift was valid, notwithstanding these oI)jec- tions. The donor by this assignment and power, parted with all the interest in the stock assigned as between him and the donee, and the donee became the ecjuitable owner thereof as against every pei'son but a bona fide purchaser without notice. De- livery of the stock certificate without a transfer on the bank's books would have made no more than an equitable title as against the bank (N. Y. &. N. H. R. Co. v. Schuyler, 34 N. Y. ISO, and cases cited), though it wc>uld give a legal title as against the assign<jr (McNeil v. Tenth Nat. Bank, 46 N. Y. :i25, 7 Am. Rep. 341, just decided), and according to the case of Duflield V. Elwes, 1 Bligh (N. R.), 497, .'')30, decided in the house of lor<l8. The repre- sentatives of tlie donor were trustees for the donee by operation of law to make the gift effectual. See also to the same effect Ex parte Pye, IS Ves. 140; Kekewieh v. Manning, 1 Ue G.,M. & (.). 176; Richard- son v. Richardson, I.,. R. 3 Eq.Cas.CM6. This trust, like this species of gift, is peculiar. The trust, like the gift, is revocable during the donor's life, and is perfected and irrev- ocable by his deatli. This extended the law as laid down by Lord Hardwicke, in Ward v. Turner, 2 Ves. Sr. 431, 442, upon this subject, and our courts have gone in thesaniedireetion with Dufiield v. Elwes. Where notes pay- able to the donor's order and not in- dorsed, and other things of similar char- acter, have been given mortis causa, courts compel the representatives of the donor to allow the donee to sue in their name, though the legal title has not passed. See last case; Grover v. Grover. 24 Pick. 261, 3."i Am. Dec. 31'.); Chase v. Red- ding, 13 Gray, 41S; Bates v. Kempton, 7 id. 3S2; and see also Westerlo v. I)e Witt, 36 N. Y. 340, 93 Am. Dec. 517; Walsh v. Sexton, 5.') Barb. 2.M. The eijuitable title to this stock is thus passed by the assignment, and it was not necessary to hand over the certificate. A court of equity will compel the donor's representatives to produce the certificate, that the legal title to the stock may be perfected. As there is great danger of fraud in this sort of gift, courts cannot be too cautious in recpiiring clear proof of the transaction. This has been the rule from the early days of the civil la w ( wliich required five wit- nesses to such !\ gift) down to the present time. In this case the proof of the assign- ment, etc., is entirely clear, the question being as to its effect. The judgment should be affirmed, with costs to be paid out of the estate. All concur; ALEEN, J., not voting. HAGUE V. PORTER. 387 HAGUE et al. t. PORTER. Suprem( (3 Hill, 141.) Court of New York. July, 1842 Action Ijy Hague ami Reiifield aKxinst •one I'orter for kooiIh Hold and delivered. JiKlKnicnt for defciidiint, and plaintiffH brirm error. Allirincil. Defciidant, a iiiercliant in New York, agrieil to take of [jlaintiffpt, iloin;; liUHines^ in Newark, N. .1., two do/.pn lainpH, which wei'e [laid for and delivered. At the Hanie time (lefendaut ordered 100 more lampH of the Kunie kind, to be made and delivered an soon aH practicalile. Suhse(inently de- fendant KUKKested an alteration to t)e made in the 100lam[)H soordered, and they were completed an directed, and sent to defendant'.s store. Defendant refused to receive the lamps, ancl they were left on the sidewalk. The court below directed a nonsuit, on tlie ;;round that there was no proof of delivery. R. N. Morrison, for plaintiffs in error. €. W. Van Voorhis, for defendant in error. COWEN, J. Here was no actual deliv- ery and acceptance by the defendant be- low. The contract was executory, and he refused to receive. It was scarcely a case of goods bargained and sold.i The ' Something roiiiainc*! to he done to the l.imps, at the time tlicy were ordered, before they were ready for delivery; and hence the sale was in- complete. (See Downer v. Thompson, 2 Hill, 137.) count should. I apprehend, have been spe- cial, for refusInK to accept. All the cases on this point were considered In .Mkiiison V. Bell, {'> .Man. & Ityl. l':ij. s I'.arn.Ac Cress. 277, S. C..) and the subject entirely ex- hausted: indeed the case itself is directly OKaiust the plaintiff in error. The con- tract for the two dozen bimpH was dis- tinct, and th(! delivery of these bore no relation to the one hundred in question. (Thompson v. Maceroid, 3 Itarn. & Cress. 1.) The case of Downer v. ThompHon, (2 Hill, ]:!7,) or rather the dictum cited from that case, went on the assntiiption that there had been a delivery to and accept- ance by the carrier with the as.sent of the ven<lee.2 That is a constructive delivery to the vendee himself, and sntihtiesa count for goods sold and delivered, the same as a personal delivery to and acceptance by him. If he order goods to be sent by a carrier, though he do not n.inie him. and they are sent accordingly, that is a deliv- ery. (I)utton v. Solomonson, 3 Hos. & Pull. .')S'_'.) Such direction may certainly be implied from the course of trade; but 1 do not see here any direction so to send, either express or implied. The practice between Newark and New York is not shown. There was no dispute in the cases cited that the goods were to be sent by a carrier, nor that they were so sent pursu- ant to order. iludgment affirmed. 'And see Grosvenor & Starr t. Phillips, (2 Hill, 147.) I HANSON 0. BUSSE. 389 HANSON et al. v. BUSSE. (45 III. 496.) Supreme Court of Illinois. Sept. Term, 18C7. Action by Ralph HmiBon and another ji^aiiiHt Frederick liiiKHf. From a judf;- iiu'iit for defendant, pluiutiffH apijeal. Af- lirnied. Blod^ett & Winston, for appellants. Tlioinan Shirley, for appellee. LAWKI:N(;E, .J. This was action, liroiight by Hanson anil Barrett, againHt liiiHse, to recover tlie price of one hundred and ten barrels of apples, sold by them to BuKse. The demand was resisted, on theKronnd that the apples, when opened, proved to lie decayed and entirely worth- less. The jury found for the defendant and the plaintiffs appealed. The court Kave for the defendant a se- ries of instruction.s, neai'l^- all of which embody the idea, that if the plaintiffs represented the apples to be Ktxjd, and the defendant bought them, relyin>^ upon such representations, and they were bad and unmerchantable, and the defendant offered, at once, to return them, he would not be liable for the price. In reference to the sale of personal prop- erty, which is open to the inspection and c.Kamination of the purchaser, this would not l)e the law. In such cases it is imma- terial how far the purchaser may rely up- on the representations of the vendor as to the (|uality of the goods, if there was no intention on the part of the vendor to warrant, and if he used no lanKunge fair- ly implying such an intent. The different rule of the civil law may be founded on higher morals, and the modern decisions, both in ICngland and this country, seem to be tending in that direction. This ten- dency is shown in the recognition of ex- cei)tions to the rule. But the rule itself must be considered (irmly settled in the common law, that tlie vendor of goods which the purchaser has. at the time of inirchase, the opportunity of examining, is not responsible for defects of ijuality, in the absence of frauil and warranty; and although no particular form of words is re<|uisite to constitute a warranty, yet a simple commendation of the goods, or a representation that they are of a certain quality does not make a warranty, unless the language of the vendor, taken in con- nection with the circumstancesof the sale, fairly implies an intention, on his part, to bo nnderstood as warranting. The rule lias been thus laid down by this court in several cases. Towell v. Gutewood, 2 Scam. 22; Adams v. Johnson, 15 111. 34u, and Kohl v. Lindley, 3'J id. ]'.15. In the last case the role is fully considered. But, although these instructions would be erroneous if applied to ordinary sales of personal property open to Inspection, yet they nuist be consi<lered in reference to theii- application to this particular case, and. tried by that standard, we can- not say they misled the jury. Asstateilby this court in Kohl v. Linilley, above quot- ed, one of the exceptions to the general rule is, where the sale is made by sample, and another, where the purchaser has no opportunity for inspection. The bulk must be as good as the sample, and. If there i-i no opportunity for examination, the article sold must be what the vendor represents it to be. In such cases the maxim i^aveat emptor can have no appli- cation. Ill the case before us the proof shows that the 110 barrels were piled up in tiers at a railway depot in Chicago. The [inr- chnser went with the clerk of the plain- tiffs to look at them. They opened a couple ol barrels that stood on the tloor. The purchaser was lamefrom rheumatism, and requested tlie clerk to climb up and oi)en a barrel on the top of the tiers. He did so, and showed the purchaser some upi)les which were in good condition, and said they were all like that. The I)laintiff8 had told the delendant the ap- ples were just such as he had previuusly l)Oughf, shippetl by the same man, and good handpicked fruit. The apples in the three barrels exhibited as saiu|iles were unqnestional)ly merchantable, or the tlc- fendant would not have l)ought. It would be unreasonable to reijuire that he should hnveoi'ened every one of the 110 barrels. He had the right to rely on the samples shown to him, and on the repre- sentations of the plaintiffs that the aiiples were good. He had no opportunity for the exercise of his own judgment, and the plaintiffs must have known that he bought relying upon their representa- tions. The case falls clearly within the exceptions 1o the general rule above men- tioned, and there is no ground for saying caveat emptor. The verdict was Jnt-t. and the instructions as applied to the facts of this case could not have misled the jury. The plaintiffs' instructions were pro[)cr- ly refused, because inapplicable to the facts of this case. They would have tended to mislead the jury. The judgment must be affirmed. .ludgment affirmed. IIARDMAN V. BOOTH. 3'Jl I HAIIDMAN ct al. v. ROOTII. a Hurl. & C. 8<i:!.) EiiBlisli Court of Exchequer, flilary Term, 20 Vict. Jan. 12, IStiS. Ti'ovor for twenty-two pieces of Herne anil eiirlity-two pieces of woollen linin^rs of the plnintiffH. I'IcMH. — KirHt: Not guilty. Second: that the ko'"'** "re not the plaintiffs'. — IssucM tlioreoi). At tlie trial, before Martin, I!., at the London sittinfiM after last J rinity term, the following factw appearefl. — Tlie jilain- tiffs were worsted nianiifacturerH at Unw- tonstall, near Manclie.ster. and they ein- j)l<iyed MessrH. HukIick and Kcijililey aH their London aKcntH. In .May, iMil'. one of the plainliffH lieiiiK in London, atid having heard of a firm oi (inndeli & Co., in .loin- ers' Hall Buihlinas, Upper Thames street, called, with Keifihley, at thorfe pretniwes and inquired for .MeHHrs.tJandell. At that time the firm, which had been estalillKlied ei;^hty or ninety years, and was well known, couHisted only of ThoniiisGandell, %vho was old and in bad healtli; and liiw son, who wa.s hiw clerk, managed tlie bus- iness. Thelirm of (iandell & C<i. was only known to the plaintiff and KeiKliley by reputation, an<l, on their iiKjuiriuK for Messrs. (Jandell. one of the workmen di- rected them t<i the conntiiiir house, where they found Ldwnrd (iandell. Keii'hiey said, "1 believe yon are a buyer of the class of noods .Mr. Ilnrdman is makinsi." and introduced the plaintiff to him. After some conversation, and when they were about to leave, I'Mward (iandell said, ■' We are government packers, but weha ve a shipping connection that we sometimes buy for, and I have no doubt we shall be able to do a little business together." On leaving, the plaintiff began to copy the name from the door-post, when Kdward (ian<lell handed him a printed card, hav- ing on it: "Thomas (iaiiilell & Co., Pack- ers, Joiners' Hall Uuildings, 7!t Upper Thames Stieet." Keighley had twosub- seijui'iit interviews witli Kdward (iamlell, at the lirst of which he introduced hini to one 'I'odil. The goods in (inestion were order'd by Kdward (iandell, anil sent at two different times inJul.v. The first lot was sent to Joiners' Hall Buildings, and n receipt for it was given by one ol (ian- dell & ('o.'s men; the other lot was taken away in a cart of (Iandell & Co., which Edward (iandell had offered tosend for it. ^'he plaintiff drew a liill of exchange for the first lot of goods on " .Messrs. Thomas Gandell & Co."; but, at the reipiest of ICd- ward (iandell. the name was altered to "Edwaril." The invoice for l)oth lots was headed:— "Mesrs. Edward (iandell & Co., Joiners' Hall Uuildings, Upper Thames Street, London. Bought of Hardman, Brothers, per William Hughes it Co." Edward (iandell carried on business in partnership with Todd, whom he intro- duced to Keighley, and who had an othce in Size Lane. Neither the plaintiff nor Keighley knew of the lirm of (iandell iV- Todd. The goods were pledged by Ed- ward Ouodell to the defendant, who wae an auctioneer, with a [lower of sale, as b security for £:}()() l)ona fide advanced hv the defendant to (iandell A: Todd. Short- ly afterwards Gandell & Todd tiecame bankrufit; and the defendant. In pursu- ance of the power, sold the goods liy aiiP- tion for t:M4, and retained £.'!(»(), and paid over t;J4 to tlie assignees. It was submitted, on liehalf of the de- fendant, that the action was not main- tainable, inasmuch as there was a sale of the goods to Edward (iandell. The learned judge non-suited the plaintiffs, reserving leave to move to enter the ver- dict for them for t:U4. Balhintine, Serjt., in last Mid'aelmas term, obtained a rule nisi accordingly, on the ground that no proiierty passed lt> Edward (iandell in consei|Uence of his fraud, and therefure the defendant was liable for the valui" of the goods. Hawk- ins now shewed cause, (iiffurd and Po- land, in support of the rule. FtH.LOCK.C. B.— 1 am of opinion that the rule should be absolute. Tlie firot question is whether there was a contract. It is difficult to lay down any general rule by which, at all tiiiie-< and nnder nil cir- cumstances, it may be delermim-d wheth- er or no there is a contract voidable at the option of the party defrauded, Ijut in this ease I tl'.ink it cl^-ar that there waH no contract. Mr. Hawkins contendei) that there was a contract iiersonally with Edward (iamlell. the individual witli whom the conversations took place. It is true that tlie words were uttered by i;nil to <iim, but the plainliff>< supposed that they were dealing with (iandell & Co., the packers, to whom I hey sent tlie goods; the fact tieiiig that Edward (Jan- dell was not a member of that tirm and had no authority to ;ict as their agent. Therefore at no period of time were there two consenting minds to the same agree- ment. Then, what is tlie consequence? A person having no antl'.ority whatever over the goods sends them to the defend- ant, an auctioneer, who, supposing the goods belong to that person, bona lide advances money upon them, taking a power of sale; but that did not authorize him to sell another person's goods and retain the proceeds to reimburse himself. 1 think that he is liable to the e.\tent of the money realized by th" sale, and that the rule should be absolute to enter the verdict for that amount. MAT5TIN, B.— I am also of opinion that there was no contract. I cannot doubt that the plaintiffs believed that they were dealing with (iandell \- Co., the packers. The cases cited are quite correct; and If (iandell & Co. had obtained the goods liy means of fraud, the plaintiffs might have been precluded from recovering. But the case is very different. The goods wen* ob- tained bythe fraud of Ivdward (iandell, who iiret'eiiiled that he was a iiieniber of the lirm of (i.iiidell & Co.. and led the plaintiffs to lielleve that they were ilenlinK witli (iamlell A: Co. The only doiilit I have had was whether there oiiglil not to lie a new trial, in order that the question 892 HAEDMAN v. BOOTH. mislit he submitted to a jury; but I do not think it rlfjlit to Henil dowu tlie case for a new trial, for it is clear tliat the plaintiffs believed that tliey were dealing with Gandell & Co., and therefore there was no contract. CHANNELL, B. — I am also of opinion that there ought not to be a new trial, but that the rule ought to be absolute to enter the verdict for the plaintiffs. I do not thinii tliat the defendant was in the position of a mere couduit-pipe, as a car- man would have been; but that he is re- eponsible for the conversion of the goods, and the plaintiffs are entitled to recover provided the goods bek)ng to thera. There is no doubt they were originally the plaintiffs' goods, and they must still be theirs unless there has been u contract of sale to divest the property. It is not sug- gested that there was a sale to Uandell & Co.; and 1 do not think there was a sale to (iJaudell & Todd, or either of them, so as to render a repudiation of the contract by the plaintiffs necessary, for it is evident that the yjlaintlffs l)elieved that they were dealing with Gandell «& Co., and never meant to contract with Gandell & Todd. WILDE, B. — I am of the same opinion. The defendant made advam'os to Gandell & Todd upon the security of the goods, and under a power of sale he sold them to recoup himself. The defendant now sets up a contract, voidable he admits, t)e- tween the plaintiffs and Edward Gandell; and if there had been such a contract, and the defendant had sold the goods before the plaintiffs repudiated it, no doul)t the defendant would have had a good defense. The real question therefore is, whether there has been such a dealing as amounts to a sale. It is clear thai there was no sale to Gandell & Co., because they never authorized Edward Gandell to pnrcliase for them ; and it is equallyclear that there was no sale to Edward Gandell, because the plaintiffs never intended to deal with liim personally. The fact of his name be- ing Gandell cannot affect the question, inasmuch as the dealing was not with him personally, but under the belief that he represented the firm of Gandell & Co. The result is that there was no contract, and the evidence is too strong to render it worth while to submit the case again to a jury. Kule absolute. I I I IIAUKNKSS 0. Ui;.SSKLL & CO. 395 HAUKXESS V. RI.'SSELL & CO. I iir-tc.l. P. O.. Oxford. On.-l.ln County, JMiiiio territory. if.W). IMii-Inn & Fer- (7 Sup. Ct. Uep. 51, 118 U. S. G03.) KUM(jn." Some of tin- iiotcH wi-rr jjlven lor the price of one of the ciiKincH witli itM nc- Suprcme Court of the Uuiteil .Slatrs. Nov. 8, coiiipiiiiyiiiK lioiler iiikI iiiill, iiiiil the ISSC. otIierH for the prioe of ilie otiiir. .Some of the riotcw were paid; iinil tin' preHcnt Huit A|)i)ealfrom tlie supreme court of tlie vv';ih liroiiKlit on those tliul urrc not paid, territoi'y of I, tail. The property wan iJilivereil to I'heJHii & Tlie facts fully appear in tlie followinj; I'er^vison on the e.xeniiion of the uoteH, statement by Mr. jimtice I!U.\1);.,KV : and Knl).>.e(|iieiitly tliey Holrl it to the de This was an appeal fioin thesupreme feiidan t llarl<nenH. in part payment of u court of I'tali. The action was lirouKl't deht due from t hem to liiin ami one I.aiiKH- in the 'list rid court for Weber county, to (loif. The defendant, at the tiinx of the recover the value of two stea ui-enKiiies sale to him, knew that the puri-liase price anil boilers, and a portable saw -mill con- , of t he property had not been paid to the nectcd with each engine. A jury bein>r , plaintiff, and that the plaintiff claimiil waived, the court found the fac'^s, and ! title thereto until such pa vment was made, rendered judKment for the plaintiff, I!us- I The unpaid notes u'iven for each engine Hell & Co. The plaintiff is an Ohio corpo- and mill e.vceedecl in amcuinl the vjilue of ration, and by its at;ent in lil;\lio, on the such eiiiciuf and mill when the action was second of October, lss2, a;;reed with a commenced. partnei'ship tirm by the name of I'lielan The territory of Idaho has a law relat- & FernusiMi, residents of Idaho, to sell to inir to chattel mortuanes. [act of .Jann- tliem the said eugiises. boilers, and saw- ary I:.', Is7."),] reiiuirin;; that every such nnlls for the price of $4. liss, nearly all of mort};a;;e shall set unt certain particidarM which was secured by certain promissory as to parties, time, amount, etc., >\ ith an noti's, which severally c.iniained tlie alTnlavit nttaclied that it is bona fide, terms of the aurreement lietwecn the ))ar- and made witliout any design to defraud ties. One of the notes (the others beiiiy; and dela.v creditors; and rei|uirinn the in the same form) was as follows, to-\\ it : mortKa«e and allidavit to be recorded in ".Salt Lake City, Octol)er L', Issil. On or the county where the niort>;ai;or liveH, before the tirst day of May, In*<:!. for value and in that where the property is located: received in ore si-Xteen-horse i)(;rtable en- and it is declared that no clialtel tnort Kine, No. l,()'J(i, and one portable saw-iuill, ' >ra;re shall be valid (except as between the No. ll'N, all complete, bouf;ht of I>. I'.. Mat- parties tlit;reto) without compliance with tison, auent of Kussell & Co., we, or either these requisites, unless the inortKairee of us, promise to pay to the order of I shall have actual poss^ession of the prop- Kussell & Co., Massillon, Ohio, .1f:!iiO, pay- ' eriy niortirajjed. In the present case no al)le at Wells, Faryro & Co.'s lui nU, Salt alfidavit was attached to the nt)ttH, dot Lake City, Utah Territory, with ten per j were they recorded. cent, interest per annum from October 1, j Tin- court found that it was the Inten- 1882, until paid, and reasonable ai tor- tioii of I'lielan it I'"eri;nson and of Kiissell ney's fees, or any costs that may be paid i>c Co. tlia t tiie titli' to the said proiicrty or incurred in any action or [iroceedinj:; in- sliould not iiass from Kussell & Co. until Htituted for the collictioii of this note or all the notes were paid. I'pon these facts enrorcement of this covenant. 'J"lie ex- the court found, as conclusions of law, press condition of this transaction is such that the transaction between I'helan & that tlie title, ownership, or possession l-Crsruson and Kussell iV Co. was a condi- of said enjrine and s.-iw-niill ilocs not pass tioiuil or executory sale, and not an aliso from the said Kussell & Co. until this note lute sale with a lien reserved, and that and interest shall have been paid in full, the title did not pass to I'helau A: Ferjru- and llio said Kussell & Co. or his afient son, or from them to tlie defendant, and has full lioiver to declare this note due, t;a ve jiidKUient for (he plaintiff. The hii- and take i>ossi'Ssion of said ensine and preme court of the territory alliniied this saw-mill when they may tieeui tlieinsclves jud;;nient. [7 I'lic. Hep. MI."> ] 'I'liis ap- insecure even liefiire the maturity of this peal was taken from that judgment, note; and it is further agreed bv the mak- i ,, , , ,,..,,. ,i, , v i-;..,i...ii ers hereof that if said note is not paid at ' ^ "^'''y V'p" ■''""""■ 'i'"'" H.i^i h '/,' r maluritv. that the interest sliali 'be two '""• -^/-"V' ';/'!'»' ^'Ji ,„L, t!;',?. percent, per month from tnaturit v here- "PPHlant. Charles W . lieuuett. for ap- of till paid, both before and after jiidu'- l'^'"''''- ir.ent, if anv should be rendered. In case said saw-mill and eiiKiue shall be taken Mr. Justice TiHAnLF.Y, after statins the back, Kussell & Co. may sell the same at facts as above reported, delivered the public or privjite sale without notice, or opinion of the court. thev may, without sale, indorse the true The lirst nucstion to be considered is \alueof the property on this note, and whether the transaction in iiiic-tion was we aaree to iiav on tlie ni te any lialance a conditional sale or a niortH:a;;e : that is, due thereon, after such indorsement, as whether it was a mere agreement to sell damages and rental for said machinerv. upon a condition to be perforn.ed. or an As to tills debt we waive the rifibt to ex- absolute sale, with a riMervatlon of a lien empt, or claim as exempt, any property. Or mortfra«e to secure the pnrehase real or personal, we now own, or mav nioiie.\ . If it was the la tier, it is ronceded iiereafti-r ac<|uire, bv virtue of anv home- tliat the lien or iiiorlnaKf was void as stead or exemption law, state or federal, a^'ainst third persons, liecaiise not vcrlHed now in force, or that hereafter uiav be en- 1 by atlldavit, and not recorded as re<iulre<l 396 IIAHKNESS V. RUSSKLL & CO. by the Inw of Tdnho. But, so far hh words iincl the I'xprcsH intPiit of the i)nr- ties can go, it is perfectly evi<lpiit tliat it was not an alisolnte sale, hut only an aareeuient t!) sell upon condition that th(? pnrcMiasers should pay their notes at ma- turity. The laiiKuaf^e is: "The expre.ss condition of this transaetif)n is snch that the title * « ♦ does not pass • » * I'.ntil this noteand Interest shall havelieen paid in full." If the vendees should fall in this, or if the vendors should deem them- selves inseeure hefore the maturity of the notes, the latter were authorized to repos- Hes.s themselves of rhe machinery, and credit the then vahic of it, or the proceeds of it if they should sell It. upon the unpaid notes. If this did not pay the notes, the balance was still to be paid by the makers by way of "damages and rental for said machinery." This stipulation was strict- ly in accordance with the rule of daniaRes in such cases. I'pon an aureement to sell, if the purchaser fails to execute his con- tract, the true measure of damaares for its breach is the difference 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 iiriee they bring on a resale. It cannot he saitl, therefore, that the stipulations of the con- tract were inconsistent with or repugnant to what the paities declared their Inten- tion to be, namely, to make an executory and conditional contract of sale. Such contracts ai-e well known in the law and often recognized ; and, when free from any fraudulent intent, are not repugnant to any principle of justice <jr equity, even though possession of the property he given to the proposed purchaser. Therule is formulated in the text-books and in many adjudged cases. In Lord Hlackburn's Treatise on the Contract of Sale, published 40 years ago, two ri'les are laid down as established. (1) That where, by the agreement, the vendor is to do anything to the goods be- fore delivery, it is a condition precedent to the vesting of the property; (2) that where anything remains to l)e done to the goods for ascertaining the (irice, such as weighing, testing, etc., this is a condition precedent to the transfer of the pi'operty. I^lackb. Sales, l.'rj. .\nd it is sul)se(iuentiy added that "the partle.s may indicate an intention, by their agi'eement, to make any condition precedent to the vesting of the property ; and, if they do so. their in- tention is fulHlled." Blackb. Sales, 107. Mr. Benjamin, in his Treatise on Sales of Personal Property, adds to the two for- mulated rules of Lord Blackburn a third rule, which is supported by many authoi-l- ties, to-wit: (3) "Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the pnssing of the property de- pends, the property will not i)ass until the condition be fulfilled, even iliough the goods may have been actually delivered into the possession of thel)uver." Keiij. Scales, (L'd Ed.) 2:jfl; Id. (3d Ed.) § 320. The author cites for this proposition Bishop V. Stilllto, 2 Barn. & Aid. 32'J, note a; Brandt v. Bowlby,2 L5arn.& Add. 932; Barrow v. Coles, (Lurd Ellen borough,) 3 Camp. 92; Swain v. Shepherd, (Baron Parke, 1 I .Moody & R. 223; Mires v. .Sole- bay, 2 Mod. 213. In the last case, decided in the time of Charles II., on<' Alston took sheei) to ]m8» ture for a certain time, with an agreement that if, at the end of that time, he shinld pay the owner a certain sum, he should liave the sheep. Before the time expired the owner sold them to another person; and it was lield that the sale was valiil, and that the agreement to sell the sheep to Alston, if he would pay for tlnni at a certain day, did not amount to a sale, but only to an agreement. The other cases were instances of sales (jf goods to l)e paid for in cash or securities on delivery. It was held that the sales were conditional only, and that the vendors were entitled to retake the goods, even after delivery, if the condition was not i)erformed; the delivery being considered as conditional. This often happens in cases of sales by auction, when certain terms of payment are prescribed, with a condition that, if they are not complied with, the goods may be resold for account of the buyer, who is to account for any deficiency be- tween the second sale and the first. Such was the case of Ijamond v. Duvall, 9 Q. B. 1030; and many more cases could be cited. In Ex parte ('rawcour, L. H. 9 Ch. Div. 419, certain furniture dealers let Robertson have a lot of furniture upon his paying £10, in cash and signing an agreement to pay £.") per month (for which notes were given) until the whole itrice of the furni- ture should iiepald; and when all the in- stallments were paid, and not liefore, the furniture was to be the property of Rob- ertson; but, if he failed to pay any of the installments, the owners were authorized to take possession of the property, and all prior payments actually made were to be forfeited. The court of appeals held that the property did not pass by this agree- ment, and could not he taken as Robert- son's property by his trustee under a liq- uidation i)roceeillng. The same conclu- sion was reached In the subsequent cHse of Crawcour v. Salter, L. R. IS Ch. Div. :i0. In these cases, it is true, support of the transaction was sought from a custom which prevails In the i''f>tps where the transactions took place, of hotel. keepers holiling their furniture on hire. But they show tliat the intent of the parties will be recogtnzed and sanctioned wh.ere it is not contrary to the policy of the law. Thi.9 policy, in England, is declared by statute. It has long been a provision of the Eng- lish 'jankrui)t laws, beginning with 21 .fames I. c. 19, that if any person l)ecom- ing bankrupt has in his i)ossession, order, or disposition, by con.sent of (he owner, any goods oi- chattels of which he is the reputed owner, or takes upon himself the sale, alteration, <»r disposition thereof as owner, snch goods are to be sold for the benefit of his creditors. This law has had the effect of preventing or defeating condi- tional saies accompanied by voluntary delivery of possession, except in cases like those l)efore referred to; so that very few decisions are to be foimd m the English books directly in |)oint on tne question nnder consideration. The following case HARKXESS 0. RUSSELL & CO. 897 preBL'titH a fair illustrati<jn of the Enttlish ' law iVH bnspil upon the Htjitiitcw of bank- ruptcy. In Horn v. liaki/r, '.I HiiHt, 111."), thi- owner of a term in a (linti!lery, and of the apparatUH and uteuHilH einphiyed therein, decniwed the same toJ.&.S. in connidera- tion of an annuity to l)e paid to tlie owner and liis wife during their several liveH.and upon tluir (leiith the lesweeH to have the liberty of purclianiu}^ tlie residue of the term, and tlic api)aratus anil utensils, with a proviso for re-entry if the annuity should at any lime be two niontlis in ar- rear. The annuity havinj? beeom:' in arrenr for that |)eriod, instead of makinfr entry for condition broken, tlie wife and administrator of the owner broujiht suit to recos'er the arrears, which was stopped by the bankruptcy of .1 . & S. The ([ues- tiiin then arose %vhether the urensils passed t<» the assignees of .J. & .S. under the bankrupt act, as beinsr in their posses- sion, order, and disposition as reputed owners; and tlie court held that they did; but that, if there had been a usaxe in the trade of letting utensils with a dis- tillery, the case would have adniitteil a diff'.'ient considc'ration, since such a cus- tom niight liaverebutU'd the presumption of ownership arising from the possession and apjiarent order and dispohition of the goods. Thiscase was fidlowed in Holroyd V. (iwjniK', L' Taunt. 170. [ This prcsuuiiition of property in a bank- rupt arising from his possession and re- (luted ownership became so deeply imlied- (le<l in the English law that in process of time many persons in the profession, not adverting to its origin in the statute of Imnkruptey, were led to regard itnsniloc- trine of the common law; and hence in some states In this country, where no such statute exists, the principles of the statute have bi-eii followed, and conditional sales of the kind now under consideration iiave been condemned either as being fraudulent and void as against I'leditors, or as aniountliii:, in effect, to alisulute sales with a reserved lii-n or mortgage to secure the paywicnt of tlie|iurch.Tse money. This view is based on the notion that such sales are not allowed by law, and that the in- tent of the [larties, however honestly formed, cannot legally be carried out. The insuMiciencv of this argument is dem- onstrated by the fact that conditiomil sales are adnimsible in several acknowl- edged cases, .Mild therefore there cannot be any rule of law against them as such. They may sometimes be used as a cover for fraud ; and, when this is clinrt'cd. all the circumstances of the case, this includ- ed, will be open for the consideration of a jury. Where no fraud is iiitendeil, but the honest purpose of the parties is that the vendee shall not have t he o wnershi|) of the goods until he has |>nid for them, there is no general principle of law to prevent their purfiDse from h.-iving effect. In this country, in states where no such statute as the English act referred to is in force, many decisions have lieen rendere<l BUHtalnIng conditional sales accompanied by delivery of possession, lioth as between the parties themselves and us to third persons. In Hussey v. Thornton, 4 Mass. 404, (de- 1 cided In 180S,) where Rctods were delivered on board of a vessel for the venrlee upon an agreement for a sole, subject to the condition that the goods should remain the property of the vendors until they re- ceived security for |iayment, it was "held (Chief .Justice I'arsoiis delivering the opinion) that the property dill not pass, and that the goods could not be attached by the creditors of the vendee. This case wasfolloweil in l^-'l' by tliat of Marston v. lialdwin, 17 .Mass. Ciiti, which was replevin against a sheriff for takini; goods which the plaintiff had agreed to sell to one Holt, the defendant in the at- tachnient; but by the agreement thefirop- crty was not to vest in Holt until he shouMpay ?100, (part of the price,) which condition was not performed, though the goods were delivered. Holt had iiaid $75, which the plaintiff did not tender back. The court held that it was sullicient for the plaintiff to be ready to refiuy the mone.v when he should te rei)uesteil, nnJ a verdict for the plaintiff was sustained. In Barrett v. Fritchard, 2 Pick. 512, the court said: "It is impossible to raise a doubt as to the intention of the parties in this case, for it is expressly stifiulated that "the wool, before manufactured, after being manufactured, or In any stage of manufacturing, shall ne the propert.v of the plaintiff until the price be paid.' It is difliciilt to imagine any good reason why this agreement should not bind the Iiarties. • » » The casi! from Taunton ( Holroyd v. G wynne, ) was a case of a con- ditional sale ; but the conditiuu was void as against the polic.v of the statute "Jl .lac. 1, c. 1!), § 11. It would not have changed the decision in that c!ise if there had bem no sale; for, by that statute, if the true owner of goods .nnil chultels suffers an- other to exercise such control and man- agement over them as to give him the ap- (learance of being the real owner, and he becomes bankrupt, the goods and chattels shall be treated as his profierty, and shall be assigned liy the comtiiissloners tor the beneht of his creditors. The case of Horn V. Haker, !) Kast, LM"). also turned on the same [loiiit, and nothing in either of these cases has any bearing on the present ques- tion. " In t'ogeill V. Hartford & X. H. U. O)., 3 (Jray, .'il.'i. the rights of a bona tide pur- chaser from one in possession uniler a con- ditional sale of goods were H|iecillcally dis- cussed, and the court held, in an alile opin- ion delivered by .Mr. .lustice Higelow. that a sale and delivery of goods on rondllion that the title shall not vest in the vendee until payment of the price passes no title until the conilitiiin is performed, and the vendor, it guil'y of no ladies, may re- rliilni the property, even from one who has purchased from his vemb-e in good faith, and without notice. The learned justice commenced his opini in In the fol- lowing terms: "It has long been the set- tled rule of law in this commo:: wealth that a sale and delivery of goods on con- dition that the properly is not to vest un- til the purchase money is paid orsei-ured, does not pass the title to the vendee, and that the vendor, in case the condition Is not fullilled, has a rit'lit to repossess him- 398 HAI?KNESS B. RUSSELL & CO. self of the goods, both asninHt the vcikIpo ' suit mid of the injunction, tlio remedy and UKHinst his creditors clniniin;^ to !iohl tlicni under nttnclinients. " lie thi'n ad- dresses liiinsi'lf to a consideration of the rights of a l)ona fide piircliascr from the vendee, imrcliasinii- witliout notice of che condition on wliicli tlie latter liidds tlie goods in liis possession; and lie concludes that thc.v are no greater than those (jf a creditor. He says: "All the cases turn J inld ha ve been gone. In Strong v. Taylor. 2 Hill, S2(i, Nelson, C. .1., pioiKMincing the opinion, it was held to he a conditional sale where the agrer- ment was to sell a canal-hoat for a cer- tain sum, to be paid in freighting Hour and wheat, as directed by the vendor, he to liave h;ilf the freight until paid in full, with interest. Before the money was all Oil the principle that the compliance with paid the boat was seized under an execu- the conditiens of sale and delivery is, by tion against the vendee ; and, in a suit by the terms of tlie contract. precedent to the the vendor against the sheriff, a verdict transfer of the jiroiierty from the vendor , was foanil for the plaintiff, under the in- to the vendee. The vendee in such cases struction of the court, and was sustained accjuires no proiierty in the goods. Ho is j in banc ujion the authority ot the Massa- ehusetts case ot Barrett v. Pritchard, 2 Pick. 512. In Herring v. Hoppock, 15 N. Y. JO!), the same doctrine was f(jllowed. In tliat case there was an agreement in writing for the sale of an Iron safe, which was deliv- ered to the vendee, and a note at si.\ months given therefor; but it was ex- pressly understoo.l that no title was to pass until the note was paid; and if not paid. Herring, the vendor, was authorized higher to retake the safe, and collect all reason- only a bailee for a specific purpose. The delivery which in ordinary cases passes the tide to the vendee must take effect according to the agreement of tlie parties, and can operate to vest the property <inly when the contingency eouteni plated by the contract arises. The vendee, there- fore, in such ca.ses, having no title to the property, can pass none to others. He lias only a bare right of possession, and those who claim under him, either as cied itors or purchasei-s, can aciiuii'' or better title. Such suit of cairyin of the parties t livery. .\ny other rule would bo lent to the denial of tlie validity of such contracts. But they cert;!inly violate no rule of law, nor are they contrary to sound policy." This case was followed in Sargent v. Metcalf, 5 (iray, 30G; Deshon v. Bigelow, X Gray, 159; Whitney v. Eaton, 15 (iray, 225; Hirschorn v. Canney, 9S Mass. 149; and Chase v. Ingalls, 122 Mass. 3fSl: and is is the necessary re- able charges for its use. The sheriff levied effect the intention on the safe as the property of the vendee, nditional sale and de- with notice of the plaintiff's claim. The iniva- court of appeals held that tlie title did not pass out of Herring. Paige, ,1., said : " Whenever there is a condition iirececlent attached to a contract of sale which is not waived liy an absolute and iincondi- tiona delivery , no title passes to the ven- dee until he performs the coa>lilion or the seller waives it. " C<jnistock, .1., said that, if the question were new, it might be more in accordance with the analogies of the Believed to ex[)resB the settled law of ' law to regard the writing given on thesale Massachusetts. 'J'he same doctrine prevails in Connecti- cut, and was sustained in an able and learned opinion of <'hief Justice Williama, in the case of Forbes v. Marsh, 15 Conn. :W4, (decided in 1S43,) in which the [irinci- pal authorities are reviewed. The deci- sion in this case was followed in the sub asa mere security for tliedebtin tlien;iture of a personal mortgage; but lieconsidered I the law as having been settled by the pre- vious cases, ana the court unanimously concurred in the decision. In the cases ot Smith v. Lynes.S N. Y. 41, and Wait v. Green, 35 Rarl).5s5,on appeal, 3fi N. Y. .556, it was hold that a bona fide seijuent case of Hart V. Carpenter, 24 Conn, purchaser, without notice from a vendee who is in possession under a conilitional sale, will be protected as against the orig- in New York the law is the same, at 1 inal v?iidor. These cases were reviewed. 427, where the question arose upon the claim of a bona fide ourchaser. least so far as relates to the vendee in n conditional sale and to his creditoi's; and, we think, substantially overruled, in the subsequent case of Ballard v. P.iirgett. though there has been some diversity of 40 N. Y. 314, in which separate elnb'irate opinion in itsapplicatioii to bona fide pur- chasers froru such vendee. opinions were delivered by .ludges (jrover and Lott. This decision was concurred in As early as 1S22, in the case of Ilaggerty by Chief Judge Hunt, and Judges VVood- V. Palmer, () JoliuH. Ch. 437, where an auc- ruff. Mason, and Daniels; Judges James tioneer had delivered to the purchaser and Murray dissenting. In that case Bal- goods sold at auction, it being one of the lard agreed to sell to one France a yoke of conditions of sale that imlorsed notes oxen for a price agreed cm, lint the con- should be given in payment, which the tract had the condition " that the oxen were to remain the property of Ballard until they should be pai(! for." The oxen were delivered to France, and he subse- (piently sold them to the defen<lant Bur- gett, who purchased and received them without notice that the plaintiff had any claim to tliera. The court sustained Bal- lard's claim; and subsequent cases in purchaser failed to give. Chancellor Kent held that it was a conditional sale and delivery, and gave no title which the ven- dee could transfer to an assignee for the benefit of creditors; and he said that the cases under the English bankrupt act did not apply here. The chancellor remarked, however, thafif tliegoods had beenfairly sold by P., [the conditional vendee.] or if New Y'ork are in harmony with this deci- the proceeds had been actually appropri- sion. See Cole v. Mann, 62 N.Y. 1 ; Beau v. ated by the assignees before notice of this Edge, 84 N. Y. 510. IIARKNESS V. RUSSELL & CO. 3<» We (Jo not perceive that the case of DovvH V. Kiildcr, S4 N. Y. iL'l, is adverse to tlie ruling? in I'lilliird v. HiirKctt. There, iiltlioiiKJi file plaintiffs stipulated that the title to the corn should not pass until payment of tlii; price, ( which was to l)e lasli, the same day,) yet they indorsed and delivered to the piirchaspr the evi- dence of title, namely, the weigher's re- turn, to enable liim to take out the hill of lading in his own name, and use it in raisiuK funds to pay the plaintiff. The purchaser misapiiropriated the funds, anil ilid not pay for the corn. Here the intent of hoth parties was that the |)urchaser niJKht dispose of the corn, and he was merely the trustee of the plaintiff, in veste<l hy him with tlie le^al title. ( )f course, the ianoceut party who purchased the corn from the lii'st purchaser was not liound l)V the e(iuities hotween him and the plain- tiff. The later case of Parker v. Baxter, S(! N. Y. ."iS(i, was precisely similar to Dowh v. Kidder; and the same iirinciple was in- volved in Karwell V. lmporters'& Traders' Hank, Dlt N. Y. -Is:!, where the ()laintiff de- livered his own note to a hroker to }ict it discounted, and the latter pledged it as collateral for a loan ma le to himself. The U'Kal title passed: and although, as be- tween the plaintiff and the hi'oker, the former was the owner of the note an<l its proceeils, yet that was an eiiuity which was not hindinfj; on the innocent holder. The liecisions in Maine, New IIam|)sliire, and Vermont are understood to l>e suh- stantially to the same effect as those of Massachusetts and .Mew York; thouj;h hy recent statutes in Maiire and Vermont, as also in Iowa, where the same ruling prevailed, it is declared in effect that no acreements that personal proi erty, l)ar- Uained and delivered to another, shall remain the property of the vendor, shall he valid against third persons without notice, (jeorue v. Stulihs, L'(> Me. IM:}; Sawyer v. Kislier, ;V2 .Me. 2S; Brown v. Haynes, .")L' .Me. r>7S; Boy n ton v. Lihhy, (>l' Me. 1.'.'.:!; KoHcrs v. Whitehouse. 71 Me.L'L'L': Sartrent v. (Jile, S X. IL :!!'.->; McFarland v. Farmer, 41' N. II. :!S('>; Kin« v. Hates. T)? N. H. 44r,, UefJlin v. Hell. .!() Vt. 1:!4; Arm- InKtoii V. Houston, ;!s Vt. 4lJ<; Kales v. Uolierts, :!S Vt. .'^id:!; Duncans v. Stone, 4.") Vt. 12!; Moseley v. Shattuck.4:5 lowa,r.4n; Thorpe v. Fowler, .">7 Jowa, j41,ll N. W . Hep. :!. The same view of the law has been taken in several other states. In New.Ier- sey, in the case of ('(de v. Berry, 4L' N. ,J. Law, :tOS, it was hehl that a contract for the sale of a sewinif-mnchino to he deliv- ered and paid for Dy instadments, and to remain the i)ropert.v of the vendor until paid for, was a conilitional sale, and f;av the vendee no tilleuntil tlie condition was performe<i ; aiul the cases are ver.v fully discussed and distinfj:uislied. In I'ennsylv.inia tlie law is understood to lie somewhat dlfferiMit. It is thus sum- marized liy. Indue Depue, in the opiniun deliven-d in fole v. Berry. 4l' N.J. Law. .■!14. where ho ways: "In Pennsylvania a distinction is taken between delivery un- der a liailnient. with an ofition in the liailee to purchane at a named price, and a clelivery under a contract of sale con- taining a reservation of title in the ven- dor until the contract price be paifl; It beiuK held that in the former Instance property <loes not jiass as in favor of cred- itors and purchasers of the bailei-. but that In the latter instance delivery to the ven- dee subjects the property to execution at the suit of his creditors, and makes It transferrable to bona tide purchasers, f'hambeilain v. Smith. 44 Pa. St. 4:!!; Hose v. Story, 1 Pa. St. I'.IO; .Martin v. Mathiot.USerK. & R.214: llaak v. I.inder- tn.ui, C-l Pa. St. 4'.t!). " Hut, as the l.-arned judge adds: "This distinction Is discred- ited by the great weiglit of anthcirity, which puts [lossession under a conditional contract of sale and possession under a bailment on the same footing,- liable to lie assailed by creditorsanil purchasers for actual fraud, but not frauilulent perse." In this connection, see the case of Cop land V. Bos(|uet. 4 Wash. ."iS.s, where Mr. .lustice Washington and .fudge peters (the former delivei'ing the opinion of the c<iurt) sustained a conditional sale and delivery against a purchaser from theven- dee. who idairiied to be a bona tide pur- chaser without notice. In Ohio the validity of conditional sales accompanied by delivery of possossinn is fully sustjiined. The latest reported case brought to oiir attention is that of fall v. Seymour. 40 Ohio St. (170. which arose up- on a written cuntract contained in sev- eral promissory notes given f<ir install- ments of the purchase moie'.v of a ma- chine, and resembling very niMcdi the con- tract in tlie case now under coiiKideratlon. Following the note, and as a part of the same document, is this condition: "The express conditions of the sale and pur- chase of the separator and horse-power for which this note is given, is such that the title, ownershij), or piisscHslon does not pass from the said Seymour, Sabin * Co. until this note, with interest, is paid In full. The said Seymour. .Saliiii & Co. have full power to declare this note due. and take possession of salil separator and liorse-power. jit any lime they may deem this note insecure, even before the ma- turity of tlie note, and to sell the said ma- chine at Dublic or private sale, the pro- ceeds to be applied upon the unpaid bal- ance of the purchase price." The machine was seized under an attachment issued against the vendei-. and the action was lirought by the vendor against the con- stable who" served the attachment. The case was fully argneil, and the authori- ties pro ami con duly considered by the court, which sustained the condition ex- pressed in the contract, and aHiriiied the judgment for the plaintiff. Siv, also, Sanders v. Kcber, -.N Ohio St. ("la. Thesaniclaw prevails in Indiana. Shire- man V. Jackson. 14 Ind. 4."i'.>; Piinbar v. Itawles, L'S Ind. L'L'.'i : Hradshaw v. Warner. .'i4 Ind. .W; Ilodson v, Warner. iW Ind. J14: McGirr v. Sell, Id. L'4'.i. The same in .Michi- gan. Whitney v. MrConnell, L".» .Mich. IL'; Smith V. Lozo. 4J .Mich. C. ^ N. W. Rep. l'L'7; Maniuette .Miiaufg Co. v. Jeffery. 40 Mien. Js:!. I.! N. W. Rep. .V.tJ. The same in .Missouri. Ridgeway v. Kennedy. .V.' .Mo. :!4; Wangler v. Franklin, 70 Mo. G.VJ; Sum- 400 HARKNESS v. RUSSELI. & CO. ner v. Cottey, 71 Mo. 121. The same iii Al- nbnnia. FairbaukH v. Kiireka,()7 Ala. 10!); Sumner v. Woods. Id. 139. Tlio Kair.e in several other states. For a very elabo- rate colleetion of cases on the subject, see Mr. I5ennett's note to Benj. .Sales, (4th Ed.) § 320, pp.32'J-33(i; and Mr. Freeman's note to Kanaka v. Taylor, 70 Amer. Dec. 62, 7 Ohio St. 134. It is unnecessary to quote further from the decisions. The quotations already made show the grounds and reasons of the rule. The law has been held differently in Illi- nois, and verj' nearly in conformity with the English decisions under the operation of the bankrupt law. The doctrine of the supreme court of that state is tliat if a person asirees to sell to another a chattel on condition that the price shall be paid within a certain time, retaining the title in himself in the mean time, and delivers the chattel to tlie vendee so as to clothe him with the apparent ownershii), a bona fide purchaser, or an execution creditor of the latter, is entitled to protection as against the claim of the original vendor. Brundage V. Camp, 21 111.330; McCormick V. Hadden, 37 li:. 370;Murch v. Wrisht, 46 111.488; Michigan Cent. R. Co. v. Phil- lips, 60 111. 190; Lucas V. Campbell, 88 111. 447; Van Duzor v. Allen, 90 111. 49il. Per- haps the statute of Illinois on the subject of chattel mortgages has influenced some of these decisions. This statute declares that "no mortgage, trust deed, or other conveyance of personal property having the effect of a mortgage or lien upou such property, is valid as against the rights and interests of any third person, unless the possession thereof be delivered to and remain with the grantee, or the instru- ment provide that the possession of the property may remain with the grantor, and the instrument be acknowledged and recorded." It has been supjjosed that this statuteindicatesa ruleof public policy condenming secret liens and reservations of title on the part of vendors, and mak- ing void all agreements for such liens or reservations unless registered in the man- ner re(juired forchattel mortgages. At all events, the doctrine above referred to has becone a rule of property in Illinois, and we have felt bound to observe it as such. In the case of Her'ey v. Khode Island Locomotive Works, 93 U. S. 064, where a Rhode Island company leased to certain Illinois railroad contractors a locomotive engine and tender at a certain rent, i)aya- ble at stated times during the ensuing year, with an agreement that, if the rent was duly paid, the engine and tender should become the property of the lessees, and possession was delivered to them, tliis court, being satisfied that the trans- action was a conditional sale, and that, by the law of Illinois, the reservation of title by the lessors was void as against third persons unless the agreement was recorde<l, (which it wasnotin proper time,) decided that a levy and sale of the prop- erty in Illinois, under a judgment against the lessees, were valid, and that the loco- motive works could not reclaim it. Mr. Justice Davis, delivering the opinion of the court, said: "It was decided by tliis <-ourt in Ureen v. Van Buskirk, 5 Wall. 307, and 7 Wall. 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 tlie law there, rather than that of the jurisdic- tion where the owner lives. These deci- sions rest on the ground tiiat every state has the right to regulate tlie transfer of property within its limits, and that who- ever sends property to it impliedly sub- mits to the regulations concerning its transfer in force there, although a differ- ent rule of transfer prevails in the jurisdic- tion where he resides. * * * The policy of the law in Illinois will not permit the owner of personal property to sell it, eitherabsolutely or conditionally, and still continue in possession of it. Possession is one of the strongest evidences of title to this class of property, and cannot be rijjhtfully separated from tlie title, except in the manner pointed out by the statute. The courts of Illinois say that to suffer, without notice to the world, the real own- ership to be in one person, and the ostensi- ble ownership in another, gives a false credit to the latter, and in tliis way works an injury to third persons. Accordingly, the actual owner of personal property creating an interest in another to whom it is delivered, if desirous of preserving; a lieu on it, must comply vsith the provi- sions of the chattel mortgage act. Rev. St. 111. 1874,711,712." The Illinois cases are then referred to by the learned justice to show the precise condition of the law of that state on the subject under consid- era lion. Tlie case of Hervey v. Rhode Island Lo- comotive Works- is relied on by the ap- pellants in the present case as a decision in their favor; tint this is not a correct conclusion, for it is apparent that the only points decided in that case were — First, that it was to be governed by the law of Illinois, the place where the property was situated; secondly, that by the law of Illi- nois theagreement for continuing tlie title of the property in the vendijrs after its delivery to the vendees, whereby the latter became the ostensible owners, was void as against third persons. This is all that was decided, and it does not aid the ap- pellants, unless they can show that the law as held in Illinois, contrary to the f^reat weight of authority in Fn^iland and this country, is that which should govern the present case. .4nd this we think they cannot do. We do not mean to say tliat the Illinois doctrine is not supported by some decisions in other states. There are sucli decisions; but they are few in num- ber compared with those in which it is held that conditional sales are valid and lawful as well against third persons as against the parties to the ccmtract. Tlie appellants, however, rely with much confidence on the decision of this court in Her.vford v. Davis, 102 U. S. 235, a case coming from Missouri, where the law al- lovvs and sustains conditional sales. But we do not think that this case, any more than tliat of Hervey v. Khode Island Loco- motive Works, will be foimd to support their views. The whole question in Hery- lord V. Davis was as to the construction of the contract. This was in the form of I HARKXESS t>. RUSSELL & CO. 401 a lease, but it contained pruvisionB eo irrf'conuilal)le wltli the iileu of its bein>? really a lease, and ho (lemonslruble that it wart an absolute sale witli a rewervation of a niortftaKe lien, that the latter inter- pretation ivas Kiven to it by the court. Tliirt interpretation rendered it obnoxious to the statute of Missouri requiring niort- >tug«s of personal property to bn recorded in order to be valid as accMinst third per- sons. It was conceded Ijy the court, in the opinion delivered by Mr. Justice StroDK. that if the agreement had really amounted to u lease, with an aureeiuent for a conditional sale, the claim of the vendors would have been valid. The first two or three sentences of the opinion fur- nish a key to the whole effect of the deci- sion. Mr. .Tustiee StrotiK says: "The cor- rect determination of this case depends altt.Kether upon the construction that roust begiven to the contract between the Jackson & Sharp Company and the rail- road company, ajiainst which the defend- ants below recovered their ju<lf;ment and obtained their execution. If that con- tract was a mere lease of the cars to the railroad company, or if it was only a con- ditioniii sale, which did not pass the owu- ersliip until the condition should be per- formed, the property was not subject to levy and sale under execution at the suit i>f the defendant apainst theeompany. But If, on the other hand, the title passed by the contract, and what was reserved by the Jackson & Sharp Company was a lien or security for the payment of the price, or what is called sometimes a mort^jajte back to the vendors, the cars were subject to levy and sale as the property of the railroad company." The whole residue of the opinion is occupied witli the discus- sion of the true construction of the con- tract : and, as we liave stated, the conclu- sion was reached that it was not really a lease nor a conditional sale, but an abso- LAW SALE* — 26 lute sale, with the reserratioD of a lien or security for the payment of tlij pricv. This ended the case; for, thus interpreted, the instrument inured as a mortKace la fa vor of the vendors, and ou^ht to have been recorded in (jrder to ijrotect them airainst tliird persons. I!ut whatever the law may be with re- Kard to a bona fiile purchaser fronj the vendee in u conditional sale, there Is a cir- cumstance in the present rase which makes it clear of all dilliculty. The appellant Id the present case was not a bona lide pur- chaser w ithout notice. The court below find that, at the time of and prior to the sale, he knew the purchase price of the property had not been paid, and that Hussell & Co. claimed title thereto until such payment was made. Under such cir- cumstances, it is almost the unaninionR opinion of all the courts that he cannot hold the property as against the true owners; but as the ruiinus of this court have been, as we think, somewhat inisuo- derstood, we have thouubt it proper toex- ainine the subject with some care, and to state what we regard as the >;eneral rule of law where it is not affected t)y local statutes or local decisions to theccjntrary. It is only iiecessary to add that there is nothing; either in the statute or adjudged law of Idaho to prevent, in this case, the operation of the general rule, which we consider to be established by overwhelm- iuR authority, namely, that, in the alisence of fraud, an aRreeraenr for a conditional sale Is );oo<l and vnliil as well against tliird personsas against the parties to the transaction; and the further rule, that a bailee of personal i)roperty cannot con- vey the title, or subject it to execution for his own debts, until the condition od which the agreement to sell was made, has been performed. The judgment of the supreme court of the territory of Utah is affirmed. I HASTIE 0. COUTUllIER. 403 HASTIE et al. t. COUTURIER et al. (9 Exch. 10-2.) Courts of Exchpriuer Cliaiiiber. June 25, 1S53. Error on a bill uf e.\et'i)ti()iiH, hh allowed by the court of excheciucr in the cawe of Couturier v. IlaHtic, S Exch. 4(t. The lilil of excci)tion.s Hct out the cviiU'iicc.ln ) and contained nn alIe«ation that the nieaniim: of "free on hoard " Ih, that tlie f^ooiJH are on l)onrd. The hill of (?xceiition8 hIhcj Htated, that the lord chief haron, at the trial of the cauHe, ruled iiHfollowH: (li) "That the meaning and I'onMtruction of the contract with A. Callender wan, that A. (.'allender, aw imrchaser, wns to take upon hiiUHcIf all rinU, from the time of the Bhipment of llic corn ; tliat the purchaHcr houKht the car;;o, if it existed at tlie date of the contract; hut that if it had hern <lainaKeil or lout, he l)ou;;ht tlie licnefit of the iuHurance, hut no more; and that by HelliuK the carjjjo the vendor undertook that the vendee whould have it, if it exist- ed, and that the vendor had not Hold it tiefore to another. And the lord chief haron then further ruled and directed the jury, that, if they believe<l the evidence, the sale of the cargo at TnniH by the agents of the defendants waw not Huch a Hale as to defeat the contract, and that It waH rendered necewKary in eotiHefinence <if Hea damage, and was made merely to prevent the loss beinu; ho great aH itotlier- wiflo would necessarily have been." Before COLKKIDCE, .MAULE, CUESS- VVELL, WKilirMAX, WILLIAMS, TAL- EOIJRD, and CKOMl'TON, .1.1. Butt (Bovill with him), for plaintiffs in error, the defen<lantH below, (-'owling, for dciendont in error. COLEHIDOE, .1.— (After Ktatlng the pleadingH jind evidence liiH lordHliip pro- ceeded : ) — The caHo was originall.v tried before Martin, B., who, in directing the jury, ruled that the contract imported that, at the time of the sale, the corn was in bxistence as such, and capable of deliv- ery, and a verdict waa found for the de- feinlants, the plnintiffH having leave to move to enter a verdict in their favour on all the issues except those on the lifth and sixth pleas, and on those pleas for judg- ment non obstante veredicto. The case was argued before the lord chief baron and Barons I'arko anil Alilerson. The lord chief baron agreed in the opinion ex- pressed by Martin, B.. at nisi [)rius; but the othei' learned barons differed from him, and made the rule absolute; where- upon it was agreed that the question should be brought before this court on a bill of exceptions, as if tne lord chief bar- on had directed th(> jury in conformity witli the oidnion of Barons I'arke and Alderson. The case thereforecomes before us without any great preponderance of authority in favour of the defendants in error. Nor do wo find in th(> arguments of counsel, or in the judgment of the court below, any case referred to upon which that judgment was foundeil. It turned entirely on the meaning of the contract made between the parties, which was in these terms: " Bought of Ilasfie & Uuteh- iiiHon a cargo of about ) IMI (|uarterH of I Salonica Indian corn of fair average qual- ity when shippeil per the KvrAn I'age,' Captain I'age. from Snlonica, bill of ladinR dated the I'L'd of Eebrnarv, iit LVh per I quarter, free on boar. I, and Including freight and insurance to a safe port In the j Lnlted Kliigcloin, the vessel calling at Cork or I'almouth for orders, measure to I be calculated as customary, payment at two months from this date, or" in cash. ' IcHs discount at the rate of t.'i per cent, per I annum for the unexpired time upon hand- ing shipping documents." .\n attempt was made to explain this dornnient bv ev- idence, but failed. Then- is. indeed, an ex- pression in the bill of exi'cptionH." that the meaning of free on board is, that thegoodu are on board," which, taken literally, may impf)rt that they are on board at the time when the words are used; but it was not contended for th? plaintiffs In error that such is the true meaning. The case, there- fore, is not affected by that statement, and the question depenils up<jn the ivords of the contract, unexplained by any evi- dence. For the plaintiffs in error it was con- tended, that the parties plainly contract- ed for the sale and purchase of go.jds, iliiit the price to be paid was for goods, and that for the price the purchaser was to have the benellt of a contract to carry them anil a policy of Insurance; that a vend(»r of goods undertakes that they ex- ist, and that they are capable of being transferred, although he may not stipu- late for tlieir condition; ami that as the good in (|uestiun liad been sold and de- livered to other parties before the con- tract in question was made, theri^ was nothing on which it could opisrate- and Barr v. Cibson, :! M. & \V. :)!»0, ami Strick- land V. 'i'urner, 7 Exch. L'os, were cited. On the otiier hand it was argued, that this was not B mere contract for the sale of an ascertained cargo, but that the pur- cliu.ser bought theadventure. and took up- on himself all risks from 'he shipment of the cargo. It was said that the mention of the condition of the cargo at the time of shipment was a proof of the intention of the parties that the buyer should take all risks from that time that its condition at the time of sale, or the fact of its exist- ence, could not then bo ascertained, and therefore the purchaser must be supposed to have taken the risks; that If it had ex- isted, however much deteriorated, the purchaser must have taken It, although the loss had been all but total, and there- fore there was no re^ison for exchnling to- tal loss from the risks that he was to bear; that if it had ceased to exist the consideration wovild not fall, for the pur- chaser wouhl have the shipping ilocu- ments. It was further argued that thi^ stipulation for payment, which would probably have to be made before thearrlv- al of the cargo. Indicated an intention that the purchaser was in all events to pay for It, on account of thelnconvenience that woulil ensue If he might havetori>- claiin the money back. It was not disput- ed that the cases of Hair v. (ilbson and Strickland v. Turner were well decliled. 404 HASTIE V. COUTURIER. It appears to iis that tlie contract in question was for tlio sale of a carRO sup- posed to exist, ami to be capable of trans- fer, and lliat, iunsinucli as it liad been sold and delivered to others by tiiecaptain before the contract in question was made, the plaintiffs cannot recover in this ac- ti(jn. With regard to the description of the cargo as " of fair averajipquality when shipped," we think that, if those words had not been introduced, it must have been held that the purchaser of a cargo (jn a voyage would take upon himself the chance of what its condition at the time of purchase might be, and that this clause was introduced for his benefit, by enabling him to object, if the fact were so, that the cargo was had when shipped. If, in Barr V. Gibson, there had been a stipulation that the ship, when she sailed on the voy- age during which she was sold, was sea- worthy, that would not have made the purchaser liable, if a total loss harl oc- curred before the contract was entered in- to. It has been said, that if the loss had lieen all but total, if the cargo had become all but wortliU'88, yet, if it existed in spe- cie, the purchaser must unquestionably have been bound, and therefore there is no reason for holding that he was not also to take the risli of a total loss. The same argument would have applied in Strick- land V. Turner. If the annuitant, at the time of the sale of the annuity, had been in extremis, and had died the next hour, the i)urchaser would have been bound and could not have recovered the purchase money, but was held to be so entitled, the annuitant having died before the sale. Again, it has been supposed that there is an inconsistency in saying that, if the car- go had sustained sea-damage, constitut- ing an average loss covered by the policy, it would pass to the purchaser so as to secure to him an indemnity, l)ut would not pass in the event of a total loss. This seems to depend upon the same point, and not to be attended with any realdithculty. If the contract for sale of the cargo was valid, the shipping documents would iiass as accessories to it; but if, in consequence of the previous sale of the cargo, the con- tract failed as to the principal subject- matter of it, the shipi)ing documents would not pass. Although we cannot find anv decisicjn in point, there is a case of Sutherland v. I'ratt, 11 M. & W. l".)G, where this subject was mentioned. In that case, the plaintiff had txiught goods on a voyage, and effected an insurance, lost or not lost. They had sustained sea damage before the sale, and the purchaser sued on the policy. The underwriters pleaded that the goods were damaged be- fore The plaintiff had acquired any interest in them. On demurrer, it was held that the plea was bad; but the very learned counsel who argued for the plaintiff ad- mitted, in answer to a question put by i^arke, B., that if the goods had been to- tally lost before his contract of purchase was made, there would not have been an insurable interest, as a person cannot buy a thing that has been totally lost. For these reasons, it appears to us that the basis of the contract in this case was the sale and purchase of goods, and that all the other terms in the bought note were dependent upon that, and that we cannot give to it the effect of a contract for goods lost or not lost. The conse- quence is. that the judgment of the court below must be reversed, and entered for the plaintiffs in error according to ar- rangement between the parties. Judgment reversed. HATCH V. BAYLEY. 407 I HATCH T. BAYLEY. (12 Cush. 27.) Supreme Judicial Court of Mass.-ichusetts. Suf- folk and Nantucket. Mar. Term, 1853. In thiH action a verdict was returned for the plaintiff, and tlie defendant e.xcept- cd to the rulinjL^B. C. A. Welch, for plaintiff. E. Wright, for defendant. SHAW.C. .1. This is an action of re- plevin for twenty-three barrelH of Hour, and the siiifjlo ([uestion \», whether it was the property of the plaintiff. It was at- tached Uy the defendant as llie iiroperty of J. H. llooj^H. It ai)pearH by the case, that lloo;i;s. previously to his departure for AlliMiiy to i)urclia.se (lour, promised the plaintiff, in consideration of a loan of his note to raise money upon, to si-ll the I)laintiff two hundred barrels of liis pur- chase, at prices fi.xed. At Albany, Hooys purchased and put on board the railroad cars for ISoston, one hundred barrels of one brand and twenty-three of another, to be forwarded to Boston, taking the usual receipt or way-bill, niakins the said flour deliverable to himself. 'I'he flour was forwarded, and Hooks inclosed to the plaintiff a written order, making the flour deliverable to him. This the plain- tiff notitieil to tlie agent of the railroad company, and at the same time paid the freiiiht. The agent took the plaintiff's directions as to the mode and place of de- livery; the agent marked the car contain- ing it, and directed the car to be run on a side-track to a jioint near the plaintiffs warehouse, for the purpose of l)eing there delivered; but the flour was not taken out of the car, nor had the car been actu- ally removed. All this occurred before the attachment. 'I'here was no evidence of any l)ill of sale, or other conveyance of said Hour, from Hoogs to the plaintiff. The court, in reference to this evidence, which was not controverted, instructed the jury, that if tliey should find that the saiil car. containing said twenty-three barrels of Hour, was, prior to said attach- ment, marked as aforesaid by the clerk of the cori)oration, in the jiresence cif said I)laintiff. wlio then gave the foregoing di- rection in i-cgar<l to its marking and dis- posal, it w;is a sutlicient delivery; and that it was not necessary that the corpo- ration shiMild open the car, separate the twenty-three barrels of Hour from the rest of the merchandise, or run the said car on the side-track, or do any other act to complete the delivery. These directions, we think, were correct. No bill of sale or other- contract in writ- ing was necessary to effect an actual sale and transfer of ijroperty ; the verbal con- tract made by the said Hoogs. i[i Itoston. to sell the |)laiutiff two liundred barrels of tlour, though being an executory con- tract, could not be enforced by law, by reason of the statute of frauds, without writing, yet when it was actually exe- cuted, the property passed to the vendee. Then, was it executed by a snfliiient de- livery? Tutting the tloni' into the cars ut Albany, was not a delivery, because the way-bill made the flour deliverable to Hoogs himself. But the right to n-celve the property on arrival was asHlgnaldo, and when Hi>ogs ordered it delivered to the plaintiff, and the company, by their authorized agent, aeknowleilged the plain- tiffs right, took his dliections as to the delivery, then marked the car containing it, with directions to the subordlnatCB of the company so to deliver the merehan- 1 dise, it was a good constructive delivery, [pursuant to the agreemi-nt to sell, and vested the property in the vendee. In general, that act, which changes the control and dominion of property, after an agreement for a sale, that whicli su[ier- sedes tlie power and control of the vendor and transfers it to the vendee, is a good delivery to pass the property; such as h delivery of the key of the" warehouse, Wilkes V. Ferris, ,">, Johns. :{:!.'>; Packard v. Dunsmore, lli:ush.2S2; transfer of a ware- house-keeper's receipt, notified and assent- ed to by the warehouse-kcpper, Tu.x worth V. Moore, t) I'ick. .'547; removal of a horse from vendor's sale-stable to his livery- stable, to keep for the vendee, ICIrnore v. lSt<jne, 1 Taunt. 4.")S; transfer of dock war- rants for goods in the London dock ware- houses. Zwinger v. .Samiida. 7 Taunt. 205. In all these cases, tlie ground is. that the same person who was the agent of the vendor to keep, becomes the agent of the vendee to keep; and the possession of the agent is the possession of the principal. Gardner v. llowland. 2 I'ick. ."I'Jl); (Jibuou v. Stevens, s IJow. :!S4. And wo tliink the judge was right in di- recting the jury as he did. What amounts to a delivery of goods sold, when the (acts are found, is a (luestion of law. The court left it to the jury upon the evidence, to decide whether the facts were true, and directed them hypothetically. that if such facts were true, they constituted a sutli- cient delivery. This was no encroach- ment on the province of the jury: it left them at liberty to weigh the evidence, to draw their own inferences, and decide on the facts; and the judge did what it was his province to do, directed them in niat- ter of law, to enable them to return a gen- eral verdict. .Another ground o( defence is. that the sale was fraudulent, in regard to which the court instructed the jury that it was necessary that the defenclant should ad- duce stronger proof, to establish fraud, iV:c.. than is necessary to prove a debt or a sale; that the presumption was, that every man conducted honestly without fraud; and when fraud was alleged, the proof must not only bt- sutlicient to estab- lish an innocent act, but to overcome the presumption of honesty. These were ob- viously general remarks, upon the nature of evidence in application to facts to be proved by it, and pcrhiips they are not stated with all the illustrations which ac- companied them, or precisely as they were made. .\s we understand them, the judge in- tended to say, that he who alleges (rauiJ against another, is bound to prove It. Thatevery man is iiresumed toiict lione«t- ly until tiie contrary Is proved; that he who charges another with au act involv- 408 HATCH V. BAYLET. ing moral turpitude or legal delinquency, must prove it; that as tliis is an allega- tion against a presumption of fact, it re- quires Bonievvhat more evidence tlian it no such presumption existed. It carried no direction as to tlie amount of evidence re- quired, or as to the nature of evidence, wliether positive or circumstantial, hut only that, on the whole, it Uiust be some- what stronger: and we cannot perceive that such a direction ia incorrect. The ordinary direction to the jury is, that be who charges fraud must prove it to the satisfaction of the jury. We tliinlc it not contrary to any rule or principle of law for the judge to inform the jury, that as the charge of fraud is a charge against a presumption of fact, perhaps often a alight one, .vet the jury, In order to be satisfied, might require somewhat stronger evi- dence, than would suffice to prove the ac- knowledgment of an ol)ligation, or the de- livery of a ctiattel. 1 Greenl. Ev. § 380. Exceptions overruled. I HAWES o. WATSON. 411 HAWKS et al. t. WATSON et al. (2 Bani. & C. 540.) King's Bench. Jan. 28, 1824. Trover for u qunntity of tallow. Plea, not K'i'lty. .M the trial before AlUtOTT, C. J., at tlie Loniliin Hittin^jH after MiclinelmaH term, the fnllowinir facts were proved for the plaiiitiflH. Tlie plaintiffs on the 2oth of Septeinhcr, ls:;:{, purchased by contract, of Messrs. .Moberly & Bell, :J<I0 caskH of tal- low at 4i)s. per ewt. On the 27th of Sep- tember, ill part e.\ecution of their con- tract, Moberly & Bell sent to the [ilaintiffs the followinjr transfer note, sisned by the defendants, who were wharfingers: — "MessrB. .1. & H. Hawcs.— We have this day transferred to your ac<(nint ( l)y vir- tue of an order from .Messrs. .Moberly & Hell), loo casks tallow, ex Matilda, with charKes from October 10, 1S23. H. & M. 100 casks. " The iil.Tinfiffs then cave Moberly & Bell their acceptance for £2SS0, the price of the tallow, which was duly paid, and after- wauls sold 21 casks of this tal'ow, which the defendants delivered, pursuant to their order. .Moberly & Bell stopped pay- ment on the nth October, and on the 14th the defendants received noticefrom Haikes & Co., the oriKi'i'Tl vendors of the tallow, not to deliver the remaining casks lo Mo- berly & liell, or their order; and the de- fendants in cunse(iu(nce, refused to deliver the remainder of the tallow to the plain- tiffs, upon their demanding the same. On the part of tlie defendants it was proved, that .Moberly & Bell, on the 2('>th .Septem- ber, had iiurchased of Haikes & Co. 100 casks of tallow (the same that were after- wards sold to the plaintiffs) landed out of the Matilda, lyin;; at Watson's wharf, at £2 Is. i;er cwt. to be paid for in money, allowing -% pc cent discount, and four- teen days 'for delivery; and on the same day Kal'kes & Co. c'lve a written order up- on the defendants to weiKli, deliver, trans- fer, or rehouse the tallow. Moberly «& Bell had not pnid for the same, nor had it been weighed subse(iueiitly to this order, up- on these facts it was contended at the trial, on the jiart of tlie defendants, that they were not bound to deliver to the plaintiffH the remaining seventy-ninecasks of tallow, iiijisiiiuch as Haikes & Co. had, as lietween them and .Moberly & Bell, u rislit to stop them in transitu, the deliv- ery to Moberly & Bell not liein;; perfect, in- asmuch as the tallow had not been weighed. The I>ord Chief Justice, howev- er, wasof opinion that whatever the ques- tion miglit be as between buyer and seller, the defendants having, by their iioteof the 27tli of Septeml)er, acknowledgpd that thev held tlie tallow on account uf the plaintiffs, could not now dispute their ti- tle; and the plaintiffs had a verdict. The .'\ttorney-(>eneral now moved for a new trial, upon the ground taken at the trial. Hanson v. Meyer,' is an au- thority to shew, that the absolute proper- ty in the tallow would not vest in .\lober- ' 6 East. 614. ly & Bell, the ttfHt vendee, until It was weighed. The contract in that case wa» In terms siniilar to the contract made be- tween the original vendors and .Moberly & Bell. The weighing must precede the delivry, in order that theprlce iiiaybeaH- certained. In that case too, part of the goods had tieen weighed and delivereil, yet it was lield that the vendor might re- tain the remainder, which continued iinweighed in his possession; and .Shepley V. Davis^ is also an autliority to the Hame effect. ABBOTT, C.J. The plaintiffs, in this case, paid their money upon the faith of the tran^-fer note, signed by tliC defend- ants, by which tliey acknowledged that they held the tallow as their agents. If we were now to hold, that, notwith- standing that acknowledgment and that payment, the [ilaintiffs are not entitled to recover, we should enatile the defend- ants to cause an innocent man to lose his money. To hold that the doctrine of stoppage in transitu api>lieil to such n case as the present, woulil have the effect of putting an end to a very large portion of the commerce of the city of London. BaYLEY, J. This appears to ine very different from the ordinary case of vendor and vendee. In such cases, justice re- quires that the vendee shall not have the goods unless he pays the price. If he can- not pay the price, the vendor ought to have his goods back; tint if tlie question arises, not between tlie original vendor and the original vendee, but lietween the original vendor and a purchaser from the vendee, that purchaser having paid the full price for the goods, what is the lion- esty and justice and equity of the case? Surely, that the vendee who has paid the price, shall be entitled to the posses- sion of the goods. 1 am of opinion, that when Messrs. liaikes & Co. signed the or- der to transfer, weigh, and di'liver, that, according to tlie settled course and usage of trade, enabled .Moberly & Bell to sell the goods again. There are innny cHses in which it has l)een held, that if the Hrst vendor does any thing which can lie con- sidered as sanctioning the sale by his ven- dee, that destroys all right of the former to stop in transitu. Stoveld v. Hughes, » Harman v. Anderson. ■* HOI.KOYD, J. I think that the note given by the defendants makes an end of the piesent ()ucstion. When that note was given, the tallow became the prop- erty of the ))laintiffs, and is to l>e coiisld. ered from that time as kept liy the defend- ants as theagentsof theplainlills, and the latter were to be liable froir. the loth October for all charges. This ca.se is very different from that of Hanson v. Meyer. There, there was a sale of nil the veiidnr's starch (the quantity not being ascer- tained) at (il. Iier cwt. The order was to weigh and deliver all the veiulor's starch, and a part having been weighed and de- '5 Taunt. 017. ' 14 Kast. .-.as. ' 2 Caiiii). 24^ 412 HAWES V. WATSON". livered, but not the residue, the main question hefore tlie court was, whether the weighing and delivery of part did or did not in point of law operate as a trans- fer of the pr<>j)erty as to tlie whole. The court held, rightly, that it did not, be- cause there the price of the whole which was to be paid for by l)llls could not l)e ascertained before It vras weialied. The delivery of part, therefore, was not a de- livery of the whole, but the order was complied with only as to the part which was weighed and delivered, and the prop- erty in the residue remained unchanged until something further was done. It was not a delivery of part for the whole, and therefore it did not operate in law as a de- livery of the whole so as to divest the vendor of his right to stop in transitu; but here, the wharfingers, upon the re- ceipt of the order directing them to weigh and deliver, sent an acknowledgment that they, the wharfingers, had transferred the goods to the vendees, and that they would be considered as subject to charges from a certain period. I think, therefore, that the wharfinger then held the tallow as the gcKtds of the plaintiffs and as their agents, although there was not any ac- tual weighing of them; and that the plain- tiffs were then in possession by thedefend- ants as their agents, they having acknowl- edged themselves as such by their note. For these reasons I am of oi)inion that the plaintiffs are entitled to recover. BEST, J. I am also of opinion that the acknowledgment which has been given in evidence puts an end to all question in this ease. The very point has already been decided In the case of Harmon v. An- derson. 5 There the wliai finger had trans- ferred the goods to the name of the Ven- dee and actually debited him with ware- house rent, but he having become insol- vent the sellers gave notice to the wharf- ingers to retain the goods; and upon an action of trover being brought against the wharfingers by the assignees of the vendee, it was contended that the seller's right to stop in transitu continued; but Lord Elleiiborough said: "That the goods havinu been transferred into the name of the purchaser, it would shake the best established principles, still to allow a stoppage in transitu. From that moment the defendants became trustees for the purchaser, and there was an executed de- livery, as much as if the goods had been delivered into his own hands. The pay- ment of rent in these cases is a circum- stance to show on whose account the goods are held, but it is immaterial here; the transfer in the books being of itself decisive." In the ensuing term, the then attorney general (after Lord C. J. Gibbs) expressed his acquiescence in the decision '2 Camp. 243. at ni.si prius. In that case indeed, It does not appear that in order to ascertain the price, it was necessary to weigh the goods, but in a subsequent case of Stonnrd v. l)unkin,8 it was expressly held by Lord Ellenborough that a warehouseman, who on receiving an order from the seller of malt to hold it on account of the pur- chaser gave a writien acknowledgment that he so held it could not set up as a defence for not delivering it to the pur- chaser, that by the usage of trade the property in malt sold was not transferred till it was remeasured and that liefore tile malt in question was remeasured, the seller became bankrupt; and there Lord Ellenborough says: "Whatever the rule may be between the buyer and seller, it is clear the defendant cannot say to the plaintiff ' the malt is not yours' after ac- knowledging to hold it on hisaccount. By so doing they attorned to him." It ap- pears to me, too, that if we consider the principle upon which the right of stoppage in transitu is founded, it cannot e.xtend to such a case as the present. The vendee has the legal right to the goods the mo- ment the contract is executed, but there still exists in the vendor an e(iuitable right to stop them in transitu, which he may exercise at any time before the goods get actually into the possession of the vendee, provided the exercise of that right does not interfere with the rights of third persons. Now, it appears to me impos- sible that it can be exercised in this case without disturbing the rights of third per- sons, for the property has not only been transferred to the purchaser in the books of the wharfingers, but there has been an acknowledgment by them that they hold it for the purchaser, who has paid the price of it. It has been said that there has been no change of property. If there has not, I do not see how there can be any until the tallow is actually melted down and converted into candles. If the argu- ment on the part of thedefendantsb.° valid, the vendor, if he is not fully paid, has a right, if the goods are not weighed, to stop in transitu, even though they have passed through the hands of a hundred different purchasers and been paid for by all except the first. It appears to me that we should disturb an established prin- ciple if we held that this could be done in such a case as the present. I think the right of stoppage in transitu is an equi- table right, to be exercised by the vendor only when it can be done without disturb- ing the rights of third persons. '? Here, that cannot be done, and therefore I think that Kaikes & Co. had not any right to stop in transitu, and that the plaintiffs are therefore entitled to recover. Kule discharged. '2 Camp. 344. ' See Cuming v. Brown, 9 East, 506. 1-. i HEXSCHEL 0. MAURER. 415 riEXSCHEL, Adiu'r, etc., v. MAURER et al. (34 N. W. Rep. 926. 69 Wis. 576.) Sii|)reme Court of Wisconsin. Xov. 1, 1S87. .Appeal fr(»ui circuit court, Slieboygan roimty. TliH facts fully appear in the foUowlns Ktatenicnt by CASSOD.W, J.: 'I'luH action waH coinniPnccd February 17, Issi). for till' forecloture of a niortjjaiLi^ uiioii real estate e.'jecuted January 2, ls77, by one t'onrad Maurer, (since deceased,) and the defendant Marie .Maurer, then his wife ■•ind now his widow, given to secure a ()roniisr<()ry note of even date, executed by riaid Conra<l, an<l both running and payable to the i)laintiff8 intestate, for $1, -(ID, two years from the date thereof, with interest at S per cent. Thecomplaint is in the usual form, and alleged that said George died intestate, .September 27, 1SS4, and that the plaintiff was appointed such administrator. .March .">, lsr>5. The said widow and the minor heirs of said Con- rad, by their gunrdian ad litem, byway of answer, in eflect denied that the plain- tiff wan the owner and holder of said note «ud mortgage; denied that there was any sum due or payable thereon; and allege, upon information and belief, in effect, that September 22. l.SSl. and while said tieorge was the owner and holder of said note and mortgage, and in his last sickness, in contemplation and expectation of death, he, the said (jeorge, executed and ac- knowledged a written discharge of said mortgage, in the presence of two wit- nesses, who subscribed their names there- to as such, and wherein the said George ackno%vledged satisfaction and payment in full of said mortgage, and thereby re- leased the same, and all his right, title, and interest in and to the mortgaged premises, and thereby authorized the register of the county to enter such satis- faction of record ; that September 26, 1nS4, ia immediate contemplation and expecta- tion of death, the said George delivererl said satisfaction piece, Itigether with said note and mortgage, and also certain other i)ersonal property and clioses in ac- tion, to his uncle, one Fred .Maurer. for de- livery, and with ilireclion to deliver said note and mortgage, and said satisfaction thereof, to said Conrad, as a gift and re- lease of said note and mortgage; that at the same time said George delivered to said Fred a written order to the effect that he deliver, of the money and other personal property in his lianils, $2.") to Mrs. Marie Henschel or order, and the balance to his said brother, Conrad, and Mrs. .Adolph Henschel, i;s to his verbal or- der; that, upon the death of said (Jeorge, and during the life of said Conrad, said Fred delivered to said Conrad said note, mortgage, and satisfaction piece, as so directed by said (jeorge. .At the close of the trial the court found, in effect, that thenotejind mortgaiie were executed, and payments made thereon, as stated in the complaint ; that September 22. Iss4, and while of sound and ilisposing mind Hn<l memory, but in extremesiik- ness and expectation of death, the said <ieorge made and cxecuteil said satisfac- tion piece; that on the same day he deliv- ered the same, together with snld note and mortgage, to said (onrad, as and for a satisfaction of said mortgage, and subse- quently, and on the same day, caused said note and mortgage, and satisfaction piece, to be placed with said Fred for Hnal delivery after his death, without any con- dition or control over the same; that said note, mortgage, and satisfaction iilcce were subse(|uently, and prirtr to the com- mencement of this action, delivered to said Conrad by said Fred ; that the making of said satisfaction piece, and the delivery of the ?ame with said note and niortKage. were intended and made as a release and satisfaction of said mortgage, anil the In- debtedness thereby secured, and a gift causa mortis thereof tothesaiil Conrad, who was brother to said (ienrge. As con- clusions of law the court found, in effect, that said satisfaction constituted a good and valid gift causa mortis, and a release and discharge of said mortgage and in- debtedness to the said Conrad ; that thB plaintiff, as administrator, had received no right to or interest in the mortgage; that the defendants were entitled to judgment dismissing the complaint, and adjudging said note and mortgage fully satixlied and discharged, and for costs and dis- bursements against tile estate of said George; and judgment was ordered there- <m accordingly. From such judgment so entered thereon the plaintiff briuga this appeal. Krez & Krez, for appellant. Seaman & Williams, for responilents. CASSODAY, J., (after stating the facts as atjove. ) The evidence is tcj the effect that .September 22, 1S>>4. the plaintiff's In- testateat first requested oneCharles Helns to draw his will. and to give all his prop- erty, except *2."i mentioned, to his brother, Conrad, and liis sister, Mrs. .\dolph Hen- schel; that, when informed that it would probably cost 5()0 or $70 In the probate court, he declined to make a will; that he then asked if such distribution could not be made in some other way, and was told by Heins that it could, and accordingly the satisfaction piece wus drawn and exe- cuted, and then, with the note and mort- gage, delivered, Hrst to Conrad, then to the uncle, and subsequently to Conrad, as found . that at the same time he executed a deed of ItiO acres of land in .Marathon count.v to his sister. Mrs. .\dolph Hen- schel. "and delivered that to her: that he theieupon directed her to deliver the deed to his uncle, and she did so; that at the same time he eave to his uncle an order for the personal property, with directinns to keep all the papers until he ascertained the value of the .Marathon county lands, and then divide the personal property, so that his said brother and sister sliould each have one-half of all his property, ex- cept that he should give .Mrs. Herman Henschel Sf2.'.; that In executing the pa- pers he wrote his own name, and was at the time physically weak, but of sounil mind, with no hope of recovery, but. per- haps, with na e.\pectaiion of reclaiming the property if hedid ri-covcr; and he died 416 HENSCHEL D. MAURER. five days thereafter. Upon these facts it is urged by counsel that tlie whole trans- action, when taken together, was simply an attempt by the intestate to <iispose of all his propertj; by will, or to delegate to his uncle the power to do so upon his death, or both together. There can be no question but what a person of sound mind, oven in extremis, may make a partial as well as a total dis- position of his property by will. The same is true in case of a gift as to any property which is the subject of gift. The mere fact that he attempts at the same time, and as a part of the sacne transac- tion, to dispose of the whole of his prop- erty, but for some cause the disposition is ineffectual as to a part of it, will not pre- vent its being effectual as to the other part. Here the matters of con veying the land to the sister, and the directions for disposing of the personal property, are not within the issues, and hence not be- fore us for determination. No question of creditors or other claimants is involved. The only question presented is whether what was said and done by the intestate constituted a complete satisfaction and extinguishment of the note and mort- gage. A mortgagee may undoubtedly, by way of gift to the mortgagor, com- pletely satisfy the debt, and discharge the mortgage. Moore v. Darton. 4 De Gex & S. 517; Lee v. Boak, II Grat. 182; Uarland V. Taylor, 52 Iowa, 503, 3 N. W. Rep. 510; Carpenter v. Soule, SS N. Y. 251. Where a gift of personal property is made with in- tent to take effect immediately and irrev- ocably, and is fully executed by complete and unconditional delivery, it is certainly binding upon the donor as a gift inter vivos, even if the donor at the time is in extremis, and dies soon after. Tate v. Jjeithead, Kay, 65S; McCarty v. Kearnan, 8<) 111. 2!)2. But where such intent is not manifest, and the gift is otherwise made, under such circumstancesit will ordinarily be regarded as a gift causa mortis. Rhodes v. Childe, 64 Pa. St. 23, 24; Grymes V. Hone, 49 N. Y. 17. But even such a gift is not complete without delivery. Id.; Wilcox V. Matteson, 53 Wis. 23, 9 N. W. Rep. Sl4. Brunn v. Schuett, 59 Wis. 2G0, 18 N. W. Rep. 2«0. Such a gift may be de- fined as one made by the delivery of per- sonal property by the donor in his last sickness, and in expectation of deatn then imminent, and upon condition that it shall lielong to the donee if the donor dies, as anticipated, without revoking the gift, leaving the donee him surviving, and not otherwise. Rhodes v. Childs, supra ; Grymes v. Hone, supra ; Ogilvie v. Ogil- vie, 1 Bradf. Surr. Snti; 2 Quar. I>aw Rev. 440; 21 Amer. Law Rev, 734, and cases there cited. But even such a gift is de- feated if the donor survive such sickness. Staniland v. Willotr, 3 Macn. & (J. r)(i4. Here the intestate, as mortgagee, actually delivered the note, mortgage, and satis- faction to the mortgagor personally as a present. True, the intestate subsequent- ly directed the mortgagor to deliver them to the uncle, as he directed Mrs. Adc.lph Henschel to deliver the deed she had re- ceived from him to the uncle. But this was apparently done in order that the uncle might the better ascertain the value of the land conveyed, and thus ascertain the difference in the value of the two gifts thus made, and then divide the personal property so as to make the gifts equal. Under such circumstances, and in view of the apparent absence of any hope of re- covery, it would seem that the note, mort- gage, and satisfaction may l)e regarded as so delivered to the mortgagor as an absolute gift in prtesenti. But even if there was an absence of such intent to make a then present and unconditional gift, yet as the delivery by the donor was complete, and he was at the time in his last sickness, and died soon thereafter, without revoking the gift, we must re- gard it as a valid and binding gift causa mortis. The judgment of the circuit court is af- Brmed. HIGGINS V. DELAWARE, L. & AV. R. CO. 419 HIGGINS V. DELAWARE, L. & W. R. CO. (60 N. Y. 553.) Court of Appeals of Now York. Feb. Term, 1875. .Vpoeal from order reversing jiidKinont ill favur of plaintlft and diHiniHHiii^ pluin- tiff'H eoiu|ilaiiit. Action to recover the vnlue of one Inin- dred tons of coal allejjed to have heen piir- chnsed by i)laiiitiff of defendant, and which it refused to deliver. On .September L'!), 1870, at a retinlar monthly auction sale of coal, held by de- fendant in New York, pinlntiff hid off one hundred tons. The notice of sale stated tliat ninety thousand tons were to Lesold, deliverable at the company's depot dur- ing the month of October, li70, upon these teinis, ainoHK .jtliers: "Fifty cents per ton, in city bankable funds, to be deposited on the day of sale, us a security for the fulfillment of the con- tract by the purchaser, and the balance to be paid within ten days thereafter at the ofiice of the company, when the order for the delivery of the coal will be given on their a^ent at Elizabethport. The coal to be taken away during the month of October, 1870. Should the purchaser fail to take it away within the month, the oompiny may, at their option, at any time thereafter, discontinue furtlier deliv eries, and retain the fifty cents per ton de- posited on the day of sale; or slniulil the company elect so to do, they may resell the coal, either at public sale or other- wise, for account of such defaulting pur- chaser, who shall i)ay to the company any deficiency caused by the coal beiriE; sold at a price liss than that agreed orig- inally to be paid. " 1 "The company may deliver at Hoboken, j N. ,J., all or any portion of the coal now sold, and the purchaser shall accept the same as being delivered on the contract j made by this sale, and shall pay therefor ten cents i)er ton in addition to the price agreed to be paid for the coal delivered at Elizabethport." "Every effort Tvill be made by the com- pany for the fulfillment of its contracts for the delivery of coal ; but if at any time the business of the company is so inter- rupted by storms, floods, breaks, acci- dents, combinations, turn-outs, strikes amoiiij: miners or other employees, or by any other occurrence whatsoever, as to materially decrease the quantity of coal which the company would otherwise have heen able to obtain and deliver during the month in which the coal now sold is deliverable, the company will not hold It- self liable for or pay any damages sus- tained by reason of the non-delivery of the coal now sold, or of any portion there- of, although a portion of the coal that is received daring said month may, in the usual course of the comp;iny'H cojil sales and business, be •lispo.-.erl of otherwise than in the fulfillment of the contracts made by this sale. .Vorwill the company, . In case the coal now sold is not delivered, I undertake a pro rata distribution among ! the respective ijurchasers of what is de- j livered; but In all cbbcb of nondelivery from any of the above caiisi-s the money paiil on coal will be prijmptly refunded." Nelson Merrill, for'appcllant. Hamilton Odell, for resiiondent. FOLGER. J. At the special terra the judgment in this case was put iiiiiin the ground that the facts found in tlir- find- ings, anil some inferences therefrom made in the opinion, brought this ease within the holdings in Kiniberlv v. I'ntchin, lit N. Y. :t;50; 75 Am. Dec. :'M, an. I Kuswell v. rarrinirton, -IJ N. V. lis, 1 Am. Rep. 49N. The learned judge, in forming his opinion, liaving arrived at the concluHion (Iwit, hh a matter of fact and inference, the sale was of a specilii'd quantity of coal, to be taken from a specified general mass, indis- tinguishnble In quality or value, and that it was the inti'iition of the parties to pass the title to the amount sold, deemed the case within the ]irinci|ile of those author- ties, anil held that there was a complete sale to the plaintiff and a perfect title given to him. At the general term the court was con- tent with refuting, to its satisfaction, the theory upon which the special term had gone; and did not perceive in the finilingH nnr in any inferences properly deducilile therefrom, that the sale was from some certain or identilied body of coal, either in bulk or included in any other mass then being anywhere in existence or capable of iilentilication.and so it held that this case did not fall within the rule laid down in the cases above cited. The special term did not notice, as a clr- cumstanceeiititled toeffect in thedecisicii, and the general term, thoiigli alluding to it. laid no stress upon it, that by the terms of the sale to the plaintiff he was liound to take away the coal in the month of October. It is evident that this was a part of the terms of sale of some moment in the estimation of tlie defendants, for they based upon it, in the same terms of sale, important consequences. A failure of the buyer to take away all tlie coal bought, within the time specifieii, gave the iletcndants the right and posver to refuse further delivery, and to forfeit the earnest nione.v paid by the l)uyer, or to resell the coal on the buyer's account, and at his risk of loss. .\nd we can readily perceive that it is essential to the success- ful prosecution of the l)usiiiess of the defendants, that they should not lie com- pelled by the dilatorincss of their ven- dees to furnish, upon their docks at Kill- abethport or Hoboken, space for the k<*p- ing into succeeding months, of tiie coal sold liy them deliverable in a given month. ilence their stipulation in the terms of the sale appears, from a fair con- sideration of the language of it, and of the other parts of those terms and of the cir- cumstances, to be of the essence of the contract, to have been really intended by the parties, and to have formed a condi- tion precedent, to lie observed ami kept by file idalntiff if he wislied to lie able to retain his contract and to have It enforce- able against the defendants. Renj. Sales (2d Ed.). 481. The finding Isthattheplaln- 420 HIGGINS V. DELAWARE. L. & W. R. CO. tiff demanderl a delivery of tliecoal in Feb- ruary, 1871. There is a finding tliat lie did not offer to take it away until then, and hence did not offer to in th"^ month of Oc- tober, 1S70, as he was required to do to meet the condition precedent. There is lackinK then a fact which should have been found to sustain the conclusion of law and the judRuient. It is a fact which the proofs will not supply, for theevidence was that the defendants were ready and willing to make delivery of the coal in Oc- tober and November, l.STO. It may not lie well said, that though there is this condition precedent in the terras of sale, the defendants had pre- scribed the only remedies for themselves, in ca.se the plaintiff did not keep the con- dition. It is true that options of the defendants were provided for; they could forfeit the earnest money paid ; they could resell, on the plaintiff's account, and at his risk; they could discontinue future deliv- eries. But these wore not all. There was also the legal right of every contracting party to hold himself absolved from his obligation when the other contracting party has failed to keep sfinie condition precedent which he is bound to perform. Thus, in an agreement to exchange pieces of real estate on specified terms, and to deliver the deeds at a fixed date, "or for- feit the sum of f.'jOO," it was held by this court tliat the partj- not in default might elect to sue for the amount named as a forfeit, or generally for his damages from a breach of the contract by the other par- ty, and in the latter action was not limit- ed to the sum named. Noyes v. Phillips, CO N. Y. 408. It is there said that parties are not released from the performance of their contract by reason of the same con- tract containing a penalty for non-per- formance. Here the options reserved to the defendants, of a forfeiture of the earn- est money, etc., uro in the nature of pen- alties for non-performance by the plaintiff, but the relations and rights of the con- tracting parties, so far as harmonious with the provisions of the contract re- serving option, are to bo determined by the legal principles applicable. Nor do we think that this case falls within the principle of 19 N. Y. and 42 Id., supra. The findings of thespecial term do not set forth facts suflicient therefor. Nor are we able, from the evidence in the case, to make inferences which will sujiply the lack. There is not that in the testimony which proves or indicates that there was, either at Eliza bethport or at Hoboken, at the time of the sale, a mass of ninety thousand tons of coal, undistinguishable in kind and quality and value from that contracted for of the defendants; or that at that time there was an ascertained body of coal at either of those places, all parts of which were of the same value, and undistinguishable from each other. Rath- er, it appears to us, that the terms of the contract and the circumstances of the case indicate, that the ninety thousand tons at that time offered for sale, had not yet reached either of the contemplated points of delivery, and were not yet gathered into one mass. Nor can we make the inference that it was the intention of the defendants to pass the title to the plaintiff before ac- tual delivery of the (juantity he contract- ed for. But we do not elaborate the rea- sons for these conclusions. As a new trial would not afford oppor- tunity to change any of the facts as now presented, we affirm the judgment to the general term. All concur. »i HIGGINS V. MURRAY. 423 HIGGINS V. MURRAY. (73 N. Y. 252.) Court of Appeals of New York. 1878. Action for work und materials. Defend- ant eiii])loj'efl piniiitlff to manufacture eoine circus tcntw, witliin a specifiofl time, from material furniRlied by plaintiff. No place o( delivery or price was Hpccifiod. Defendant afterwardH reiiuented plaintiff, by letter, to Hhip the tents to him at Lew- iHton. He Hhip|)ed them by ateamboat, via Portlan<l, C. O. D., and they were de- stroyed by fire on the way. S. T. Freeman, for appellant. John W. Weed, for reHpondent. CHURCH, C .1. The action is not strict- ly for the sale of the article nianufactured. but for work, labor, and materials, per- formed an<l used inits manufacture (Mixer V. Howarth, L'l Pick. 20."); 32 Am. Dec. 2.56) ; and hence is not within the statute of frautls. It is nndiK[)uted that the plain- tiff [jcrformod his contract, and if the de- fendant hud refused to take the tents, an action upon the agreement would have been sustaineil. Crookshank v. Burrell, IS .Johns. .oS; '.) Am. Dec. Is". There is some confusion in the juitliorities as to when the title passes to the purchaser in such cases. In Andrews v. Durant, II X. Y. .'!.■>; ti2 Am. Dec. 55, Denio, J., la.vs down the rule, that in such a case" the title does not pass until the article is linished and de- livered, or at least ready for delivery, and api)roved by such party;" and there are other authorities to thesanu- effect. Grip- pen V. N. Y.C. R. Co., 40 N. Y. 36; Comfort V. Kiersted, 26 Marl). 473. It is urjred in this case that the title did not pass, for two reasons : First. IJccause there was no acceptance; and, second. Because the plaintiff shipped the property (-". O. D., thereby refusing to deliver until the value was paid. This last ground was sustained in liaker v. Bourcicault, 1 Daly, 24, where certain cards were ordered to be sent to New Orleans, and were sent C. O. D., and lost at sea. The importdnt question to determine is when the liabilit.v of the defendant at- tached. If the article had burned durins the progress of construction, it is clear that no action would lie, for the reason that the contract was an entirety, und until performed, no liabilit.v wouhl exist. And this rule 1 apprehend would apply when the contract is to make and deliver at a [)articular place, and loss ensues be- fore delivery at tli(> place, and for the same reason. But when the contract is fully performed, both as it respects the character of the article, and the <lelivery at the place njireed \ipon or implied, and the defendant is notified, or if a specified time is fixed, and the contract is per- formed witliln that time, ujion Keneral principles I am unable to perceive why the party makiuR such a contract is not liable. One person nsirees to manufacture a wacon for nnothcr in thirty days for ?100, and the other atjrees to pay for it. The mechanic performs his contract. la he not entitled to enforce the obligation against the other party, and if after such performance the wa^on is deHtro.\ed with- out the fault of the mechanic, is the undls- charged liability canceled? It d<ieH not depeml upon where the technknl title Is. us in the sale of Roods. It was upon this principle substantially that Adiard v. Booth, 7 Car. & I'. Ids, was derided. The ((uestion was submitted to tliejury wheth- er the work of printing books was com- pleted before the fire. 8uiijinse in this case that the defendant had refused to ac- cept a delivery of the tent, his liability would have l)een the same, although the title was not In him. The plaintiff had a lien upon the article for the valuo of his labor and materials, which was good as long as he retained possession. Tills was in ;l)e nature of a pledge or mortgage. Retaining the lien was not inconsistent with his right to enforce the liability for wiiich this action was brought. That liability was com[)lcte when the request to ship was made by the defendant, and was not affected by complying with the request, nor by retaining the lien the same as when the request was made. .\s the article was shipped at the request of and for the benefit of the defendant I assuming tliat it was done in accordance with the directions), it iollows that it was at his risk, and could not impair the right of the (ilaintiff to recover for the amount due liim upon the performance of his contract. If tlie plaintiff had agreed to deliver the tent in Lewiston as a part of tlie contract for its manufacture, ho coulil not have recovered any thing; but this was not a Iiart of the contract. Suppose the tent had reached Lewiston in good order and the defendant had refused to accept or re- ceive it, his liabilit.v would be clear and complete. As before stated, the point as to who had the title is not <le<-iHive. It may be admitted that theplaiiitiff retained the title as security for the ilebt, and yet the defendant was liable for the debt in a proper personal action. This is a case of misfortuDe where one of the parties with- out fault must incur loss, and it seems to me very clear that the legal riiiht is with the plaintiff. A point is mnile that the property was not proi)erly shipped. It was directed to the defendant at Lewis- ton, and was forwarded to rorthuxl <in a steamer running to that place. It does not appear but that was the usual mode of shipment to Ix-wiston. and the devia- tion would impose the oldigntion upon the consignee at the latter place to for- ward the property liy a coniie<-ting car- rier. Wecanniit presume tliat there was no connecting route, and if we could, it is difficult to see what else the plaintiff could have done. .\t all events it does not appear that the loss was occasioned by the defendant's negligence or fault lo not properly shipping the goods. The judgment must bealUrmed. All concnrexcept ALLEN and MILLER, J J., absent. .Judgment afflrmcd. I • I HILLESTAD v. IIOSTETTEB. 425 HILLESTAD et al. v. HOSTKTTEH et aL (49 N. W. Rep. 192, 4(i Minn. 393.) Supreme Court of Minnesota. June 30, 1891. Appeal from district court, Polk county ; MiM.H, .Jud^e. A. C. Wilkinson, for appellants. H. Stoenersou and iV. H. Avcrill, for respond- ents. VANDKRiiunoii, J. The plaintiffs sue to recover for a bill of Roods Hold and deliv- ered to the defendants and to Carver Bros., lunihernicn, at the requeMt and by the order of the defeiidanls. The account, ns rendered, is admitted hy the pleadinfis to be correct, except as to an alle;;ed ex- cess of $!).L'."> in the account with t'iirver Bros. The only issue In the case litigated was whether the Roods were furnished un- der an agreement that they were to be paid for by the defendants in lumber. The defendants allege that such was the affi'eement, and the plaintiff.sdeny it. The parties live in the same town, the plain- tiffs beinK dealers in general merchandise, and the defendants engaged in selling lum- ber. The defendants' evidence tends to prove that in December, issis, they and the I'arvers were trading with another mer- chant, and that at the request of the plain- tiffs he made an arrangement with them to deal with them, and "take goods for lumber," and "that, at plaintiffs' re<juest, Carvers Bros., who were lumbering for de- fendants, were also induced to get their supplies of pl.nintitfa, to he paid for in the same way. There was no error in allow- ing the defendants to show that this change was made, and that the latter re- questcil the Carvers to trade with plain- tiffs on their account. This was an item of evidence conhrmatory of the defend- ants' claim as to the nature of the agree- ment. One of the Carvers ((). F. Carver) 8Wt)rn for the defendants testihed that there was some trouble with plaintiffs about their orders, and that one of the plaintiffs explained to him that thereason was that the i)ass-boo,k was not present- ed, but said "that it was all right," he "had made a trade with Hostetter, " and "should need a considerable lumber in the spring." The witness also testilied that he told him in the sameconversation what Hostetter had said " that he had made a trade with him to get goods there, and that he was going to take lumber. " O. P. Carver also testilied that he changeil his trade to plaintiff at Hostetter's request. He was then asked by defendants' counsel to state what that reiiuest was. This question the witness was allowed to an- swer, over the objection of plaintiffs' counsel, and in his answer he stated" that Hostetter wanted him to trade with plaintiffs, because he had arranged with them to take lumber, and he was to take groceries. AVe think it was error to allow the witness to testify as to the terms or particulars of the reciuest. It was inuna- terial and hearsay. It was sutlicient that iie was in the employ of the defeiulanls. land that he went there to trade nt their reipiest. At the close of this witness' evi- dence the plaintiffs' counsel moved to strike out all his evidence. The court an- nounced that he would reserve his decis- ion for the time, but soon after, and before plaintiffs introduceil their testiinony In re- buttal, stated that the olpje<-tionable tes- timony above referred to was stricken out. And subseiiuently, in its charge to thejury, the court expressly so advised the jury, distinctly calling their attention to the fact and withilrawing the evidence from their consideration. The objection- able portion of the answer was not strictly responsive to the question, and shoulil have been stricken out immediote- ly, in which case there would have been no error to com|)lain of. But wc think the Intervening delay was so short that the action of the court in striking It out, together with the charge on the subject, was sutticicnt to counteract any imiires- sion which might have been made on the ndnds of the jury by this item of evidence, liarticularly in view of the rest of the de- fendants' evidence on the subj(K-t. .\fter plaintiffs' account was rendereil to the defendants, in the spring oflNS!), the latter, on or about .lune 1st. by their attorney, sent them written notice that they were ready to deliver the lumber according to agreement, and awaited their order. This I was objected to by the plaintiffs, but was received liy the court for the purpose of showing that the defendants were ready and willing to perform the contract. We lind no exception in the record to this rul- ing. The court instructed tin- jury tlint tbey could only consider it for the purpose mentioned; and we think there was no error in submitting tlie evidence to the jury. The time for the delivery of the lumber and the prices arc not siii-citied iu the agreement testilied to by the defend- ants. It was suthcient that they were ready and willing to furnish it when called for. They had a lumber-yard amply ' stocked, and it was the plaintiffs' doty to apply for anil select the lumber In pay- ment of the amount of their claim ; and they would be entitled toit at the current market rates. I!ish. Cont. § 14;!(>: Beede V. Proehl, 34 Minn. 49S. :.>7 .N. W Hep. 191. The court also, in the same conni-ction, stated to the jury, in substance, that there was some dispute as to the effect of the letter in connection with defen<lnnt8' tes- timony, but they might consider It for what it was worth, or "as far as it went, with the rest of the case." This does not ai>pear to beerrorfrom anythlngdisclosed by the record, and it is not siiecilically ex- cepted to. The plaintiffs excepted gener- ally to that portion of the charge "In re- gard to the way or manner in which they might consider" the lettiT." This Includes all that was said on the subject, and the exception is ineffectual if any part of the instruction excepted to is projier, which, ns we have seen, is the case here. We have very carefully examined the entire record, and lind no errors warranting a new trial. Order athrmed. HINCHMAX r. LINCOLN. 427 HINCHMAN V. LINCOLN. (8 Sup. Ct. Kep. 309, 124 U. S. 38.) Supreme Court of the United States. Jan. 9, 188S. In error to the circuit court of tlic United StatcH for tlie southern diatriet of New Yorli. Theo. V.H. .Meyer nnd Wayne AfcVeuKh, {A. H. U'iiiterHtcen, on tiie lirief,) for pluiiitiff in error. .\UKUKtuH C. lirown, for (li'fendnnt in error. MATTHIOWS, J. ThiH i.s «n nction at law lirouKlit liy Kufus P. I^ineoln, a citi- zen of .New York.anainMt Cliarles .S. Ilinch- inan. a citizen ol Pennsylrania, to recover flH.OOU an the agreed price and value of certain HccuritieM, stoi-ks, and UondH al- iened to have lieen Hold and delivered l>y the plaintiff to the defendant. The wale iH alleged to have taljen place (jn .luly n, 1>n'.'. It is set forth in the complaint that the plaintiff a('(|Uired title to the Hecurities in qucHtion b> purchase of one John K. IJotlnvell, HUhject to any claim Wells, Fnrtjo & Co. had upon the same for ad- vances madeliy them to or for the account of the said Both well; "that thereafter this plaintiff paid to Wells, Far^o & Com- pany the amount of their said advances, and took possession of said seenrilics, Htocks, and honds; hut stated to the ahove-nameil defenilant that iie was will- intrand wi>uld pay over to the Storniont Silver Minins;' ('•iinpany, which conipany was a 111 rue creditor of llie said Hotlnvell, and in which company said defendant was very larjrely intereste<l, any surplus which he derived in any way from said securi- ties, stocks, and lionds, after havini; re- imhursed himself in the sum of aliout $L'(!.- (lUO aiKl inti-rest for advances theretofore made by hiin to and tor the account of the said I'.othwell. " The answer ilenied the alleged sale and delivery. The aclhin was trieil in the circuit court of thoUuited States for tlie .Southern district of New York hy a jury. There wjis a verdict in favor of the plaintiff, on which judgment was renilered, to reverse which this writ of error is prosecuted. A hill of excep- tions sets out all the evi('ence in thecause, together with the charge of the court, and the i'Xcei)lions taken to its rnliims. At the close of the testimony, defendanfs counsel. amon>; other things, reiiuested tlie court to charjie the jury "that there i.s no evidence in the case of a completed sale of the securities to the defendant; nnd the plaintiff, therefore, cannot re- cover." This recpiest was refused, and an e.\ciption taken hy the defendant. This raises the srenerai (inestion whether there was snIHcient evidence In support of the plaintiff's case to justify the court in suh- mittiiiK it tt) the jury. The defense rested u()oii two iiropositions: (1) That there was no evidence of any asreement be- tween the parlies for a sale and purchase; nnd (u'i that, if there were, the airreemeiit was not in wrfticiy:, and there hail been no receipt and acceptance of the subject of the sale, or any part thereof, hy the de- fendant; anil that coiiKeiiiiently the asfee- nient was within the prohibition of the statute of frauds in New York. In reward to the first branch of the de- fense, we think there was sufllrlent evi- dence of a verbal agreement between the parlies for the sale of the sefurltlrs at the pricenamed. It ai)peared in evidence thHt the plaintiff, having acquired title and possession to the securities previously lieloiiKinK to Bothwcll by paving oft the advances due to Wells, Far«o & Co.. agreed with the defendant, as represent- inix the Storniont .Silver .Minini; Coinpnny, to Kive to that ciiinp;inv and ether cred- itors of Clark and I'.othwell the beiielit of any Hur[)lii3 there nii;:ht be after the pay- ment of the amount due to the plaintiff. There is evidence tendinR tn show that thereupon, a siii;j;estion havin>; lieen made that the defendant should purrhasu the securities from the plaintlft. it was agreed between them th'it the plaintiff would sell and the defeiid;int would take them at the price of *ls,Ot>i). jind the next day at 3 o'clock wjis appointed ns the time for delivery, [ly way of explanation, and as havinc a bearing upon other items of evidence in the cause, it is |>roper to say that the defendant's testimony In denial of the fact uf the aureeinent tends t<j the point that the proposed purchase hy him was not in his Individual capac- ity, but as the representative of the Storinnnt Silver Minini; Coiniinny, of which he was one of the trnstces, anil was made conditional on his procuring the assent thereto of the other trustees. We assume, however, in the further consl I- eration of the c;ise. that the jury were warranted in lindlnK the fact of a verlial nureement of sale as alleLced by the plain- tiff. The question as thus narrowed Ih whether there was sulMcient evidence to submit to the jury, of a recelutand accept ance by the<lefen(laiit of theseeiiritii-H sold. It appears that on July *<, l><s-, in pur- suance of the appointment made the day previously, the plaintiff handed the se- curitics in question, at the ollice of the storniont Silver .Minin-; Company in New Y'ork. to Schuyler Van Kensselaer. who was the treasurer of that company, and to(d; from him the following receipt: "Ollicc of Storniont Silver .Mining Com- pany, No. 2 Nassau, Cor. of Wall Street. "New York. July 8, ISS-J. "President, William .S. Clark. "Secretary, John U. Both well. "Ueceived of Dr. Itufus P. Lincoln the followini; certificates of stock on behalf of C. S. Iliiichman, and to In- deli vereil to him when he fiillills his contract with Ur. Lincoln to purchase 8aid stocks fur 9ls.- (lOii for— l's.4(lii shares .Storniont Silver M'g Co. San Itriino Copper M'k Co. Kaiile Silver .Mv: Co. Mile (iolil Qimrt/. Xi'tfCo. Starr (irovc Silver .NI'k Co. Menio (>idd (Jiiartz Co.. & order on Wells. Kariro & Co. fur 4.'.,(IOO siiureM tiunrtz Co. Satemo tiold Quart* Co. .V. Y & Sea lleach It. U. Co. .Mso $!»,.'.l)0 in llrst mortj:a;ie bonds of the I'attle -Mn. & Lewis K. I!. Co. "Schnvler Van Kensselaer. " W itness : M . W ." Ty ler. " 24,:!<iO MIO LM',> 1.410 COO 100 428 HINCHMAN V. LINCOLN. The ilefpn'I.Tnt was not present. The re- ceipt, sinned by Van Rensselaer, and which he nave ti) the plaintiff, was witnessed hy M. \V. Tyler, the plaintiff's attorney, and had been prepared by him. The securi- ties mentioned therein are the same with those described in the comjilaint. For the purpose of proving the authority of Van Rensselaer to riceive and receipt for the securities, some correspondeiH-e be- tween the parties was put in evidence by the plaintiff, the material parts of which are as follows: On July 21, 1SS2, Tyler, as attorney for the plaintiff, wrote to the defendant as follows: "1 was much dis- appointed in receivinj; .your letter this aft- ernoon, postponing? your appointment with me in re Lincoln neRotiation. When Dr. Lincoln accei)ted your offer of f IS.OOO for his position in reference to the Both- well securities, he did so unqualifiedly, without even sucsesting a modification of your offer, in the hope that in this wn.v he would expedite a c<inclusion of the matter, and bolievina; that nothinp; was open except the delivery of the securities, and the receipt of the price. This was on .lul.v 7tli. On .fuly 8tli, learninp; from Mr. Van liensselaer that you had left word with him to receive the securities, Dr. L. called on .Mr. Van R., and left with him the securities just as be received them. Now, under these circumstances. Dr. L. feels as if there was nothing left to be done except the pa.vment of the money, and that tiUKlit not to take very long. Now, I will do anything to accommodate you in this matter in the way of an ap- pointment. If it is inconvenient for you to see me ill New York, if you will appoint an early day. I will meet you in I'hiladelphia. If you desire anything in (larticular should be signed or iloue by Dr. Lincoln in ad- dition to what he has done already in de- livering the securities to Mr. Van R., if you will write me what yon request. I will prepare it and take it on witli ine for delivery to you." On the same daj' the plaintiff wrote to the defendant as fol- lows: " Agreeatile to a note from Col. Tyler, I went down town this P. .\J. to meet you as per appointment, and receive payment for Storniont anu other stocks in accord- ance with your offer. I was especially disappointed, for 1 had promised to ap- ply this money this week to cancel that which 1 borrowed when I took up the stock. I hope nothing will prevent your carri'ing out our airangeiiient by Monday or Tuesda.v at the furthest, ami I will es- teem it a favor if, on receipt of this, you will telegraph me when I shall receive a check for tlie amount of the considera- tion." In answer to this, the defendant wrote to the blaintiff from Philadelphia, .luly 22, ISSL', as follo%vs: "Dear Sir: Your favor of the 21st, as well as Mr. Tyler's, duly received, i did not understand that the negotiation between us was finally concluded, but, as I explained to Mr. Ty- Itr, there were some otherquestions which would have to be settled before I could act in the matter, on account of my being a trustee. I told Mr. Van Rensselaer that he could receive the Stonnont stock held by you for joint account of yourself and Stormont, without requiring you to advance any more mone.v, and that 1 would arrange with you about it; and he, knowing that I was in negotiation with you, took charge of the whole as handeil to him by Mr. Tyler, your coun- sel. There are several questions which come up ill regard to it, and I cannot give you any definite reply until 1 have con- ferred with counsel and my co-trustees on the subject. My advice to you is to exchange the .Stormont stock for receipts, as a majority have already done, on re- ceipt of this; and if you do so, and not convenient for you t(j advance the con- tribution for additional stock, I will see that it is carried until we have an oppor- tunity to fix up the whole matter. " It is further in evidence that a short time after the date of Van Rensselaer's re- ceipt, it was seen by the defendant, but he said or did nothing to repudiate it. Tyler also testifies that on July 20, 1882, he met the defendant, and had this con- versation with him: "1 said to Mr. Hinch- man that I had been looking for him for several days, and that I supposed he knew we had (leiivei;ed the securities— the Both- well securities — to Mr. Van Rensselaer, as he had directed; and he said, 'Yes, that was all right;' and I said, 'Well, now, when will you be able to close this matter?' 'Well,' he says, 'I am in a great hurry this morning, but I will come to your office certainly this afternoon or to- morrow afternoon, at three o'clock. You can rely upon my coming and seeing you upon one or the other of those days.'" The plaintiff also testified that he had an accidental meeting with the defendant at Long Beach about the first of August, 1882. The defendant was in comiiany with his attorney, Mr. Meyer. The inter- view is stated by the plaintiff as fi witness as follows: "I spoke to him. I do not know that he recognized ine, for I was not well acquainted with him before, and he introduced me to Mr. Meyer, and he said, 'This is Dr. IJncoln, from wlioni I have the Bothwell securities ;' and we had some conversation about it, but noth- ing very definite, althougli there came up during the conversation a statement that there was some controversy about it. I don't know whether I made the state- ment, or .Mr. Meyer, or Mr. Hinchman. I remarked that there might be some differ- ence — had heard something about some difference — of oi)inion about it, but that I had none; and I told Mr. Meyer that the idea of turning them over to the Stor- mont Company was an afterthought of Mr. Hinchman; that I conceded nothing of the kind. 1 never had." The following letter also is in evidence: "Office of Stormont Mining Company of Utah, No. 2 Nassau, Cor. of Wall St. "President, Charles S. Hinchman. "Secretary and Treasurer, Schuyler Van Rensselaer. "New York, August 24, 1SS2. "Schuyler Van Rensselaer, Esq., Sec'y and Treas. Stormont S. M. Co., No. 2 Nassau St., N. Y.— Dear .Sir: Dr. Lincoln, through his attorney. Col. M. W. Tyler, having seen (it to disavow the understand- ing and agreement by which he obtained H IN CUM AX V. LINCOLN. 429 ' his [><)rtiti()n ' in carryint; rlie .1. K. Itoth- w'll Hcciiriticw in .vcjur liiin<l.s left tlicrc by (,'i)l. Tyler, lifter conferciitM; with n tn;ij<Jr- ity <j[ (jiir truxtpos, J am inntrnctcil to no- tify yi)ii to rotiiii) possession of sniil seeii- ritifs until a court of competent juriKilic- tion KJiall direct you wliat to ilo Willi tiiem : I eluimint;, uh trustee, for tlio lieii- efit of Storrnont treasury, an e(|uitalilc ami bona fide interest therein. I'lease acknowledKe safe receipt. " Y<iurH, truly, t'lwis. S. Hinchinnn, "Prest. and Trustee S. S. M. Co." There was some other correspondence between the parties not material to the present point, but n(jthin>; further was done until November Hi, ISSJ, when a written demand was maile by the plain- tiff u|ion Van Hensselaer for the return of the securities. Thi.s demand was read in evidence on the part of the plaintiff. The fullowins is a copy of it: "To Schuyler Van FJensselaer: As Mr. Charles S. liinchnian refuses to fulfill his contract with Dr. IJncoln to iiunhasecer- tnin securities delivered to you on the eighth ilay of .July, IS'^'J, for Mr. Ilinch- nmn, I hereby demand the immediate re- turn of the Hecurities to lue, to-wit, cer- tificates for — 2>i,40U shares of theStormontCo.'sstock, or its equivalent. 24,300 " " San liruno Mining Co.'h stock. SOO " " Ensle .Silver Minins Co.'s stock. ,500 " " Hiteliold Quartz Mill- ing Co.'s stock. 1,.SU) " " Star Grove .silver Mining Co.V stock. 4(1,410 " " Meiilo Gold tjunrtz Co.'h stock. 600 " " Satemo Gold Quartz Co.'s stock. 100 " " N. Y. & Sen lieach R. K. Co.'s stock. ^O.-noo in first morti;hge bonds of the battle .Mountain & Lewis R. R. Co. "Dated New York. November IG, 1.S.S2. "Yours, etc., Rufus P. Lincoln. "By M. \V Tyler. Atty." The reply to it by Van Rensselaer, as proven, is as follows: "New York. November 'JO, ISSl'. " Dr. R. I'. Lincoln— Sir: In answer to the demand matle upon me through .Mr. M. W. Tyler, I beg to say that I hold the securities mentioned therein on behalf of yourself and Mr. (,'. S. Hinchman. and I have no interest In or claim upon tlieni personally, i have been notiileil by Mr. Hiuchmiin not to deliver them to you. and for that reason shall not be aiile to accede to yourdemand. Any arrangement agreed to by yourself and Mr. Hinchman shall hove my prompt aciiiiicscense. "I am, etc., S. Van Rensselaer. "Per Nash & Kingsford. His Attys." Nothing further occurred until the bring- ing of this suit on Novemliei- L',"!. ISSL". It is conceded by the counsel for the plain- tiff that the delivery of the securities in ((uestion by the plaintiff to Van Rensse- 1 laer was according tu the terms of the! rpceijit taken from him at the time, and of itself was not sulhcicnt evidence of u receipt and acceptance l)y the ilefe:,dunt tij sati.ify the stalute "of frauds. The juryweieso instructed liy the court. In speaking of it in his charge, the judge said. "You will recollect that it recites that the property was to lie delivered to .\lr. Hinchman (I will situply state the language in substance) ' when he had per- formed his contract with .\lr. Lincoln;' in other words, it nttixheil a condition. If you litid upcui the cvidenee that Hiat was all there was of this transaction. I think it my duty to sav, as matter of law, that there was not such delivery as would take the case out of the statute, because, if that were true, if he simply delivered the stock to .Mr. Van Rensselaer, to be deliv- ered to Mr. Hinchinnn. upon tlie payment of the Slim by .Mr. Hinchiiian. it would not be a receipt and accept.ini-e l)yhlm; the possession would not b,- in him; he could e.xercise no dominion over it until he had performed the act which it was necessary for him to perform in order to olitain the title. To i)ut it more plainly, perhaps the plaintiff would have in that event maile .Mr. \'an Rensseiaer his agent, as well as the agent of the defendant." The position of tlie plaintiff's counsel on this part of the case is stated by hiin in i\ printed brief, as folhjws: "That receipt was put in evidence, not as conclusive of a delivery to Hinchman. but as a fact to be taken into considtration, after the jury had de'ermiiied the (lucstioii of delend- aiit's capacity, in connection with hie ad- mission that lie hud given Van Rensselaer some authority in the premises; his ad- mission to Tyler, after he saw the receipt, that the deliver.v to Van Rensselaer was ' all right ;' his admission at Long Reach that lie had the securities, and his direc- tion to Van Rensselaer, on .August ".Mth, not to surrender any of the Hccuri'les. If the jury should find, as it actually iliU find, that Hinchman was acting in his indiviiliial capacity, and that his claim of a representative capacity, first intl- irated in his letter of July L'Jd, was an aft- erthought and false, then the authority given liy him to Van Rensselaer was not the limited authority he said it was, and in view of the admission to Tyler that the delivery was • all right.' the ad- mission at Long Reach of possession, and the subsciiuent assertion of dominion over tiie securities, it was a fair inference for the jury that Van Rensselaer's author- ity was a general one to reieive thesj-cu- rities for Hinchman. If the jury should so find, tlii'ii, under the terms of the rivcipt, the delivery to Van Rensselaer was a de- livery to Hinchinnn, and an acceptance by liim,"sullicient to satisfy the statute; for nothing remained but for him to pay the purchase price. " In dealing with the queotlon arising on this record, we keep in view the general rule that it is a question for the jury whether, under nil the circumstanccH. the acts which the buy er does or forben rs to do amount to a re<-elpt and acceptance, within tlie terms of the statute of frauds. Hushcl v. Wheeler, l."i Q. U. 442; Morton v. Tibbett, Itl. 42S; Uorrowscale v. Bos- ^■.)^ IIINCIIMAN 0. LINCOLN. worth, ',)'.) Muss. 3SI ; Wartinan v. Breed, 117 Mass. IS. lUit where the tiiftB ill rela- tion to n cun tract of sale allefied to lie within the statute of frauds are not in dispute, it belons-i to the court to deter- mine tlieir Icfjal effect. Sliepherd v. Pres- Hey, ;!l' N. H. .')(>. And so it is for tlie court to witlihold tlie facts from tliejui.v when they are not such as can in law warrant finding;' an acceptance; and this includes cases where, tliousli the court niinlit ad- mit tliat there was a scintilla of evidence tending: to show an acceptance, tliey would still feel hound to set aside a ver- dict finding an acceptance on that evi- eiioe. Hrowne, St. Frauds, § 'S'2\ ; Uenny V. Williams, 5 Allen, fi; Howard v. Borden, 13 Allen, 299; Biukhain v. Mattox, 5H N. H. G04. In order to take the contract out of the operation of the stat\ite, it was said hy the New York court of appeals, in Marsh V. Rouse, 44 N. V. CV,i, that there must he "acts t>f such a character as to unequivo- cally 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 Benj. Sales, (Bennett's 4th Amer. Ed.) § 179, as the lan(iua,.ie of the decisions in America. In Shindler v. Houat(jn,l N. Y. 2(51, 49 Anier. Dec. 810, Gardiner, J., adopts the lannnafie of tlie court in Phillips v. BristoUi, 2 I'-arn. & ('. .'ill, "that, to satisfy the statute, there must he a delivery by the vendor, with an intention of vesting theright of possession in the vendee, and there must be an ac- tual accceptance by the latter, with the intent of taUinj;' possession as owner;" and adds: "This, I apprehend, is the cor- rect rule, and it is obvious that itcan only be satisfied by something done sul)sequent to the sale unequivocally indicating tlie mutual intentions of the parties. Mere words are not sufficient. Uailey v. Og- den, 3 Johns. 421. * » * In a word, the statute of fraudulent conveyances and contracts pronounces these agreements, when made, void, unless the buyer should 'accept and receive some part of the goods.' The language is unequivocal, and demands the action of both parties, for acceptance implies delivery, and there can be no complete delivery without accept- ance." In the same case. Wright, J., said : "The acta of the parties must be (jf such a character as to unequivocall.v place the property within the power and under the exclusive dominion of the buyer. This is the doctrine of those cases that have car- ried the principle of constructive deljvery to the utm( st limit. » » » Where the acts of the buyer are equivocal, and do not lead irresistibly to the conclusion that there has been a transfer ami acceptance of the possession, the cases qualify the inferences to be drawn from tliem, and hold the contract to be within the stat- ute. » * » I think I may affirm with safety that the doctrine is now clearly settled that there must not only be a de- livery by the seller, but an ultimate ac- ceptance of the possession of tlie goods liy the liuyer, and that this delivery and acceptance can only be evinced by un- equivocal acts independent of the proof of the contract." This case is regarded as a leading authority on the subject In the state of New Y'ork, and has lieen uni- formly followed there, and is recognized and supported by the decisions of the highest courts in many other states, as will appear from the note to the case as reported in 49 Amer. Dec. IJIO, where a large numbt-r of them are collected. So, in Kemick v. Sandford, l-'O Mass. :W9, 31G, it was said by Devens, J., speaking of the distinction between an acceptance which would satisfy the statute, and an accept- ance which would show that the goods corresponded with the warranty of the contract, that, "if the tmyer accepts the goods as those which he purchased, he may afterwards reject them if they were not what they were warranted to be; l)ut the statute is satisfied. But wliile such an acceptance satisfies the statute, in order to have that effect, it must be by some nne(iuivocal act done on the part of the buyer with intent to take possession of the goods as owner. Thesaleiuust be per- fected; 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 re- lation of vendor and vendee exists, writ- ten 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. * » * That there has been an acceptance of this character, or that the buyer has conduct- ed himself in regard to the goods as owner * * * is to be proved by the partj' setting up the contract." Mr. Benjamin, in his treatise on Sales, § l!S7, says: "It will already have been perceived that in many of the cases the tsst for determining whether there has been an actual receipt by the purchaser has been to inquire whether the vendor has lost his lien. Heceipt implies delivery, and it is plain that, so long as vendor has not delivered, there can be no actual receipt by vendee. The subject was idaced in a very clear light by Holroyd, J., in the decision in Baldey v. Parker, 2 Marn. & C. o7: 'Upon a sale of specific goods for a specific price by parting with the possession, the seller parts with his lien. The statute contemplaten such a parting with the possession, and there- fore, as long as the seller preserves his (•ontrol over the goods so as to retain his lien, he prevents the vendee from accept- ing and receiving them as his own, within the meaning of the statute.' No excep- tion is known in the whole series of de- cisions to the proposition here announced, and it is safe to assume as a general rule that, whenever no fact has been proven showing an abandonment by the vendor of his lien, no actual receipt by the pur- chaser has taken place. This has been as strongly insisted upon in the latest as in the earliest cases. The principal deci- sions to this effect are referred to in the note." In accordance with this, the rule is stated in Browne, St. Frauds, § 317a, as follows: "Where, by the terms of the contract, the sale is to lie for cash, or any other conditi(ju precedent to tlie buyer's HINCIIMAN V. LIXCOhX. 431 acquiring title in the goods he inipoHed, or ] the KoodH be at tlic timo of the alleKed re- ceipt not litted for delivery according to the contract, or auything leiiiaiii to he done by the seller to perfect the delivery, Hu<'h tact will be Konerully conclusive that there was no receipt by the buyer. Thei'c must be lirst u delivery by the seller, with intent to Kive possession of the goods to the buyer." It is clear, and, us wo have seen, is con- ceded, that the original delivery hy the plaintiff to Van Uerisselaer of the securi- ties, according to the terms of the receipt taken at the time, was not a delivery to the defendant in the sense of the rule es- tablished by the authorities; and that ionse(|uently there was not, and could not have bi'cn, at that time, a receipt and ac- ceptance of them by the defendant to sat- isfy the statute of frauds. How far can it be cltilmed that that inchoate and in- complete delivery was made perfect by any subsequent act or conduct of the par- ties? The lirst circumstance relied on liy the plaintiff as material to that point is that, shortly after the receipt was given, the defendant was informed of it, and made no objection to it. Hut certainly this is insi;^niticant ; it added nothing to the transaction stated in the receipt tliat the defeiiilaiit assented to it. That as- .sent was simply that the securities had been delivered to Van Itensselaer, to be delivered to him when paid for. It did not alter the implied contract between Van Hensselaer and tiie plaintiff, arising upon the terms of tlie receipt, that the subject of the sale should not be delivered to the defendant until he had paid the agreed pr'ce. The ne.\t circums'ance relied upon is the conversation testilied to l)y Tyler | as having tal<en place on .luly L'Oth be- ' tween him and the defendant. In that conversation, Tyler testilies that he said . to the defendant "that I supposed he l<new we had'delivered the securities — the IJothwell securities — to A'an H^nss-elaer as he had <lirecteil; and he said, ' Yes, that was all right.' " Here, certaiidy, nothing was added to the transaction. Hoth these circumstances are also fnll.v met by the well-established rule that mere «ords are not snlhcient to constitute n delivery and acceptance which will take a verbal contract of sale out of the statute of frauds. Shindler v. Houston, ubi supra. riie ne.xt item of evidence in support of the plain tiffs contcTition is the conversa- tion on August 1, ISSL', at Long Beach, be- [ tween the defendant and the plaintiff, in l which the defendant, introducing Meyer io tlie plaintiff, said : "Tliisis Doctor Lin- j cola, fi-om whom I have the liothwell se- curities." This declaration of the defend- ant is treated in the argument as an ad- mission liy hijn ilistinctly (d tlie fact that he had at that time possession of the se- curities in question, which he coulil only have by a deliver.v from \'an ISensselaer, either actual or constructive. This con- struction of the statement, however, in our opinion, is entirely inadmissible. The context plainly shows such not to have been its meaning, tor, as appears by the testimony of the plaintiff relating it. the conversation immediately turned to the controversy between the partlefi ns to whether the (h'lendant had been negotiat- ing for the sei'uritics In his Imllvldual capacity, or as trustee for the Stormont Silver .Mining Company. The expreHsion testilieil to cannot fairly be extended be- yond a casual reference to the trnnHuc- tion as it had taken place, anil as it then stood u|)on theteinisof the Van Kensseluer receipt. There is nothing whatever in the conversatioti to justify tlie inference that there had been a subsequent delivery by Van Itensselaer to tlie defendant, whereby the possession of the securities had been changed, or whereby the control and dominion over them had been given to the defen<lant by Van Itensselaer, contrary totheleims of his agreement with the plaintiff as contained In the receipt. .\iid Nuch was and must have been the under- standing of the plaintiff hiins>'ir. for sub- sequently, on the si.xteenth of Xovembi'r, he made the written ilemand upon Van Itensselaer for the immediate return of the si-enrities to him, on the ground that up to that time the defendant had refused to fuinil his contract for their iiurchasc. This is certainly an unequivocal act on the part of the plaintiff entirely inconsist- ent with the assertion that there bad been, prior to that time, any delivery by him or by his authority to the defendant of the suliject of the alleged sale. Its legal effect goes lieyond that; It was a distinct rescission of the contract of sale; it was a notice to Van Rensselaer not to deliver to the defendant thereafter, even if lie should offer to complete the contract by payment of the consideration ; it put on end, by its own terms, to the n-lation be- tween the parties of vendor and vendee; It made it unlawful in Van Itensselaer there- after to deal with the securities, except by a return of them to the plaintiff as tbeir owner. The refusal of Van Itensselaer to comply with the terms of thedeniand sub- jecteil him to an immediate action by the plaintiff for their recovery specllically. If he could reach them by process, or other- wise, for damages for their conversion. This certainly is conclusive of tlie (|nestion of a prior delivery to the defendant, and a receipt and acceiitance by him. Taylor V. Wakelield, (J Kl. & lU. TC..".; lienj. Sales, § 171. To meet this view, however, the letter of the definilant to Van Kensselaer of Au- gust LMtli is relied on as evidence of a re- ceipt and acceptance by the defendant at that lime, being, ns it li^ argued, the ex- ercise of control and dominion over the securities by the defendant as owner. That letter. It will be observed, is ad- dressed to Van Itensselaer as secretary and treasurer of the Stormont Silver .Min- ing Company by the defendant, signing himself president and trustee of the same. It declares that the plaintiff had seen tit to disavow the umlerstanding and agree- ment bv which, as claimed by the tlefend- ant, heliiid obtained control of the secu- rities in question which had been left in Van Kensselaer's hands; that, after con- ference with a majority of the trustees of the company, he had Ihhmi Instructeil to notlfv Van Kensselaer to retain posses- sion "of them until a court of competent 432 IIINCHMAN C.LINCOLN. jurisdiction Khoiild direct him wliat to do with them ; nddinR, " Iclaiiiiiii«, as n truH- tee, for the benefit of Storiiiont treasury, an equitable and bona fide interest there- in." Clearly, tliere is nothing in the send- ing of this dornmeiit. or in its contents, which can have the effect contended for, whether considered alone, or in connec- tion with the subsequent refusal of Van Rensselaer to return the securities to the plaintiff, in pursuance of his demand. Taken together, they do not constitute either the assertion or exercise of any right in respect to the securities under anj- contract of sale bc^tween the plaintiff and the defendant as individuals. It is quite true, and the authorities so declare, that the receipt and acceptance l)y the vendee under a verbal agreement, otherwise void by the statute of frauds, may be complete, although the terms of the contract are in disi>ute. Keceiiit and acceptance by some unequivocal act, sufficiently i)roven to have tal<en place under some contract of sale, is sufficient to take the case out of the prohibition of the statute, leaving the jury to ascertain and find from the testimony wliat terms of sale were ac- tually agreed on. Marsh v. Hyde, .3 'iray, 331; Townsend v. Hargraves, US Mass. 32.5; Uenj. .Sales, § 170. I?ut, as was said by Williams, .1., in Tomkinson v. Staight, 17 C. B. GOT, the acceptance by the defend- ant must be in the quality of vendee. "The statute does not mean that the thing which is to dispense with the writ- ing is to take the place of all the terms of the contract, but that the acceptance 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 establish that the relation of vendor and vendee exists. Remick v. SandfonJ, 120 Mass. 30'J. Jn the present case the notice of tlie de- fendant, as president and trustee of the Stormont (^ompany, to Van Itensselaer, to retain possession of the securities, and Van Rensselaer's refusal to return the se- curities to the plaintiff on his demand in consecjuence thereof, certainly are not facts which tend to establish the existing relation of vendor and vendee between the plaintiff and the defendant. The de- fendant in his notice makes no claim as Kucl) ; and certainly no assent on the part of the plaintiff to his exercise of any such dominion is shown. It is clear beyond all controversy, so fur as this record shows, that the plaintiff had never con- sented that Van Rensselaer should deliver the securities to the defendant except upon payment of the price, nor is there a particle of proof that Van licnsselacr has ever done so. It is further and finally nrgeil, however, by his connsel, that it was competent for the plaintiff to waive the condition of a previous payment of the consideration, and to authorize Van Rensselaertorleliver the securities to the defendant without performance of the contract on the part of the latter, and that the bringing of the present action was such a waiver. It, in point of fact. Van Rensselaer had trans- ferred the manual possession of tlie securi- ties to the defendant, or if, contrary to the terms of his original receipt, he had agreed with the defendant to hold the securities subject to his order as his agent, free from the conditions of the purchase, and as his absolute property, the plain- tiff's assent to this new arrangement might be well implied from his bringing an action against the defendant to re- cover the consideration. But the preni- ise.s on which this conclusion rests are not to be found in the present case. There was no transfer of possession from Van Rensselaer to the defendant, nor has there been any change in the relation of Van Rensselaer to his possession ot the securi- ties, whereby he has agreed, with the con- sent of the defendant, to hold tliem as agent for the latter as vendee under any contract of sale with the plaintiff. On the whole, we are well satisfied that there was no evidence of a receipt and acceptance of the securities in question by the defendant to authorize a recovery against him upon the alleged contract of .sale. It was error in the circuit court to refuse to charge the jury to that effect, as requested by the counsel for the defend- ant. For that error the judgment is re- versed, and the cause remanded, with di- rections to grant a new trial. iiouTON V. liurn.N rf)x. 435 IIOKTUX V. BUFl-'INTON. (105 Mass. 399.) Supremo Judicial Court of Massachusetts. Bristol. Oct. Term, 1870. I{('|)ioviii of n wujion. .JarviH I{. Ilortiin, the orifiiiiiil owner of liie waKoii, sold niid (Iclivcri'il it to Chiirlfs A. H^jrton, who Hold it to the phiintifr. While in the plain- tiff'H hfinilK, it WUH nltiiclied \>y the de- fendant, a depnty wheriff, on a writaK"iiiwt .larvis I!. Ilorton. There wuh evidenee that the sale by JarviH I!. Korton to Charles A. Ilorton waH on a .Sunday. The defendant reiiueHted thejiidfreto inMtruet the jury that, "if Jarvis H. Hortoii nnder- took to sell the property to t'harl'.'H A. Ilorton on Snnday, then Charles A. Ilor- ton ai(|nireil no title to it l)y that tranH- artion, anil could inii)art no title to the plaintiff, when he undertook to sell it to liiin. which *lie latter coulil set up aifaiast an attaehin^ creditor of Jarvis I!. Ilor- ton." Thejudtfc refnsi'd the instrnclion prayed for, and instructed that "if t'liarles .\. Horton purchased the wafj;«n on Sun- day, and sold it to the plaintiff witl.out informinij; him that it was purchrised on Sun<lay, and the plaintiff was ignorant of that fact when he l>ou};ht the wuk"". "'•'' in no way particijjated in the transaction on Sunday, then he wouhl nccjuire a title to the wa;;on by thi; sale from Charles A. Ilorton which he conld set up against an attachinjr creditor of Jarvis B. Ilorton." The jury found for ])laintiff, and the de- fendant alleged exceptions. C. A. Iteed. for plaintiff. G. .Mar.«iton and O. E. Williams, for defendant. AMES, J. It is well settled that con- tracts made upon the Lord's day are ille- gal and cannot be enforced. It is e(iually well settled, however, that after bupIi a contract lias been executeil and carried in- to full effect, the law will not aid a parly, who has paid money ordeliven-il property in pursnance of its terms, to reclaim what he has so parted with. The policy of the law is to leave the parlies in nil such cases without remedy against each other. Thedefence of Illegality is allowed." not as a iirotection to the defendant, but as a • Usability in the plaintiff." Myers v. .Meinrath, 101 .Mass. ;!(;(;. The case linds that the wniton In dlH- I)ute. ulthon«h it may be true that it was sold by .Jarvis I!, lloiton on the Lord's day, was delivered to his brother, Charles A. Horton, was rtubse(|uently sold by the latter to trie plaintiff, and was In the actual possession and use of the plain- tiff at the time of the attachment by the defendant. In the absence of all evidence to the contrary, it may be assumeil that the consiileration of the Hrst sale waa paid. Kniler such circumstances it is dlffl- cult to see how the original vendor, Jar\ Ir 1'. lloitoii, could have reclaimed it on th» irroiind of any illegality in the contract of sale. 'I'he l:tw would not aid him to undo what he had done, lie could only iiD- peach the .sale by showiii); the illegality of his own act. which in the case of atl executcil and completed contract he cer- tainly cannot do. This disability on his part to reclaim it wo\ild avail the party lioldiuK it. as n sullicient title. Myerf v. Meinrath, ubi supra. It hod ceased to be the original vendor's property, or lia- ble fiir his debts, and therefore the attach- ment under which the defendant seeks to justify was wrongful. Kinii v. Ureen, 6 Allen, VM. Claridfte v. Iloare, U Ves. .".9. Waj V. Foster, 1 .\llen, 4(is. Oreun v. \Vy- nian. 4 Cush. "ll"J. .Sanipson v. SUaw, 101 .Mass. I4.->. Exceptions overruled. IIos^rER c. wiLsox 437 HOSMKR et aJ. v. WILSON. (7 JtiHi. 204.) Snprprae f'iMir( of Mirliijjan. Oct. 17, 1859. AsKiimpHit b.v John B. Wilson a^aintst Itiifiis llosiiier and atiotlier "for wor'k ami labour done, and HiTvicfM rendered, and niati't'ialH furnished, hy jihiintiff and liiH hervants for defendants, all at request of sail! dcfwndiintH. " .Jndnment for idaintiff, and defcndiints brinjj: error. Reversed. It ,i|)|irnn'il (hat one of defendants had called ;il iil;iintiff's foundry, tiiul ttierc sinned a wit ten order for an etiRine. to be paid for wlii'n taken f)iit of the shop, and that plaintiffs clerk accepted the order; that plaintiff then proceeded to make such enirine, and only stopped when he received .■I li'ller from defendant.s countermandinK the order. .lerorne & Swift, for plaintiffs in error. Towle, Hunt & Newberry, for defendant in error. (."HKI.STI.\N(;Y, J. Whether the writ- ten meniorandtiin sinned by the defenil- ants belciw, when taken in connection with the whole transaction between the parties, was iimlerstood by all of them as a contract, minht have been a fair ques- tion of fact for the jury. Hut ndmittinn the contract to have been proved in all re- Kpects as clainuMl by the plaint iff. and that defendants lielow wrongfully counter- manded the order for the ennine, after the plaintiff had. in nood faith, made most of the castinjis, and done a larfz;e part of the work; the lirsf (|ucstion which arises is, whether th(" pinintiff was entitled to re- cover upon the common counts for work and lal)or, as upon a (pinatum meruit? Ah to thematerials it is admitted he could not, though contained in the same count; as they still belonji'ed to i)lHintiff, and were never delivered to defendants. In the case of a conti'act for a certain omoMMtof lal)or,orfor work for a specified period — when the laboi- is to be perfornsed on themiitcriaU or i)roperty, or in carrying on the business, of llie defendant, or when the defendant has otherwise accepted or appropriated the labor performed, if thcde- (endaiit prevent the plaintiff from per- forniiuy: the whole, or wrongfully ilis- tharne him from his employ lucnt. or order him to stop the work, or refuse to pay as he hns agreed (when pa.vments become due In the progress of the work), or disa- ble himself from performitijj;, or unquali- fiedly refuse to perforin his part of the contract, the iilaintiff may, without fur- ther performance, elect to sue upon the contract and recover damanes for the breach, or treat the contract as at an end, nnd sue in nener.'il assumpsit for the work and labor act uallv iierforiued: Hall V. ItupU'v. HI Itarr. l.':!l : Moulton v. Trask, 9 Mete, .■iT'.l; Derby v. .lohrson, 'Jl Vt..:.'!; Caiiiida V. ("jiiuidn, (1 t'usli., 15; Draper v. Hnnd(>lph,4 Iliirrinnton, 454; Webster v. Kiifield. 5 (iilni.. L'ilS. .\nd in snchcascs he may, it would seem, un<ler the common itidebitatus count, re- cover the contract pric, where the case is such that the lalxir done can be measured or apportioned by the contract rate; or I whether It can be ho apportioned or not, lie may under the quantum meruit recover what it is reasonably worth. Hut in all such cases, the [daintiff, hnunc appro- priated anil rcceiveil the Iteiietit of the labor (or, what is erjuivnlent. having In- tluceil the plaintiff to e.\pend his labor for j him, an<!, if properly [lerformed acconJiuK to nis desii-e, the defendant beiiin estopped to <leny the benefit), a dutv is iinposeil upon the defendant to pay for the labor thus performed. This duty the law en- forces under the fiction of an implied con- tract, nro'vinn out of the reception or aji- pr,.priation of the plaintiff's labor. It is therefore evident, l.st, that in all the cases supposed, an implied contract wouhl have arisen, and the plaintiff niinht have recovered upon a quuntutn meruit, if no B|iecinl contract had ever been made; 2d, that in the like cases (where the value of the work done could not, as it probably could not in the case before us, lie appor- tioned l)y the contract price) the value or fair price of the work done, woidd neceH- sarily constitute the true measure of dum- ancs. And in all such cases, ;ih first Hup- poseil, either the contract price, or the reasonable worth of the labor done, would measure tlie damages. Similar considerations and like rules would, doulttlcHs. equally apply to con- tracts for furnishing materials, and forthe sale nnd delivery of pergonal property, wlien, after part of the materials or prop- erty hns been received ami appropriated by, or v'ested in the defendiint. he has pre- vented the i)l,iintiff from peiforminn, or authorizing him to treat tlie contract as at an end. on any of the grounds above mentioned. r.ut the case before us stands upon very different irrounds. Mere the con- ti'act, as cliiimed to have been proved, was in no just sense a contract for work and lal)or, nor could the plaintiff, while at work upon the engine, be proi)erly said to be enuaned in the business of the de- fendants. It was substantially a contract for the sale of an engine, to be made and furnished by the )>laintiff, to the defend- ants, from the shop, and, of course, from the m.-iterials of the plaliitiff. The defend- ants had no interest in the materials, nor any concern with the amount of the labor. They were to i)ay a certain price for the engine when completeil. ICniiines, it Ir true, are not constructed without labor; the labor, therefore, constitutes part of the value of the enjr'n«>. Itut this would have been equally true if the contract in this case had been for an enuini' already completed. The lalxir of the plaintiff was upon hia own materials, to increase their value, for the purpose of effeciiiiK r. sale (o defend- ants when completed. No title in any part of the n.aterlals was to vest In de- fendants till the whole should be coin- Iileted by pinintiff. and delivered to defend- ants. The pliiinliif iniKht have sold any of the ninterlals. after the work was per- formed, or the whole engine when com- pleteil. iit anytime liefore delivery to, or acceptance by defendants. Whether, therefore, the labor actually performed on these niateriala, wbeo the 43S HOSMEU V. WII.SOX. defendants refiiHed to go on with the pon- tract, or prevented the fnither ptrl'orui- aiice, had euhaneed (jr diminished the value of the mnterialH. and liow uiiicli, would be a necessary (luestion of faet, in arriving at any proper measure of dam- ages. Tlie value of the work and lahor does not, therefore, in sueh a case, consti- tnte the proper criterion or measure of damages. If the value of the materials has been enlianced bj- the labor, the plain- tiff, still owning thematerials, has already received compensation to the e.xtent of the increased value; and to give him dam- ages to the full value of the labor, would give him n\ore than a coicpensation. If the value of the materials has been diniiu- ished, the value of the labor would not make the comptMisatitin adeciuale to the loss. It would beonl.vin the single case wliere the materials have neither been in- creased nor diminished liy the labor, that the value of the labor would measure the dainage.s. Such a case euuld seldom oc- cur, and whether it could or not, it must always be a (piestion of fact in the case, whether the value of the materials dcjes remain the same, or wiiether it has been increased, or diminished, and to what ex- tent. Again, as the defendants never received the engine, nor any of the materials, the title and possession still remained in the plaintiff, and the defendants never having received or api)ropriateil the labor of the plaintift, if the same work had been per- formed under the like circumstances, with- out any actual or special contract, the law would have imposed no duty upon the defendants, and therefore implies no contract on their part to pay for the work done: ] t'hit. PL, 3^1"; Atkinson v. Bell,S B.&C.,277; Allen v..Jarvis,l'U <,'onn., 3S. The only contract, therefore, upon which the plaintiff can rely to pay him for the labor, is the special contract. No duty is imposed npon the defendants otherwise than by this. This contract, therefore, must form the t)asis of the plain tiff's ac- tion. He must declare upon it, and claim liis damages for the breach of it, or for being wrongfull.v prevented from perform- ing it. His damages will then he the ac- tual damages which he has suffered from the refusal of the defendants to accept the articles, or in consequence of being pre- vented from its performance; and these damages may be more or less than the value of the labor. This case, therefore, in this respect, comes directly within the principle recognized in the case of Atkin- son V. P.ell, above cited, and in Allen v. Jarvis, 1!0 Conn., 3S (a well reasoned case, which we entirely approve I. And see Moody v. Brown, 34 Me., 107, where the same principle is recognized. But it was claimed by plaintiff's counsel that no action could have been main- tained on the special contract until fully performed, and the engine delivered or tendered to the defendants; that the un- qualified refusal of the defendants to take the engine, when it should be completed, was not a prevention of performance which would authorize the plaintiff to sue upon the contract on that ground. We think it was, and that such absolute re- fusal is to be considered in the same light, as repects the plaintiff's remedy, as an ab- solute, physical prevention by the defend- ants, ibis view will be found fully sus- tained bv the following cases: (,'ort v. Amberga'te Railway Co., 6 E. L. & Eq.,230; Derby v. Johnson, 21 Vt., 21; Clarke v. iMarsiglia, 1 Denio, 317; Hochster v. De Latour, 20 E. L. & E;i., l.")7. In the latter case, it was held that a refusal of the employer before the work commenced, to allow it to be done, authorized an imme- diate action upon the contract. So, a I'efusal to make any jjai'ment, which, by the contract, is to be made during the progress of the work, has the same effect: Draper v. Kandolpli, above cited ; and see Hoagland v. Moore, 2 Klackf., 1()7; Webster v. Enfield, 5 Uilra.. 29S; Withers V. Reynolds, 2 13. & Ad., fi82. See this whole subject ably discussed, and the authorities cited, in 2 Smith's Lead. Cas. (Amsr. Edit.), 22. to :!S; and tor what will amount to prevention, see note of Hare & vVallace to same, 40. As to mode of declaring on the contract: Ibid., 41, and 1 Chit. PI., 32G. It would be unreasonable and unjust to hold that the plaintiff, in this case, after the pf)sitive countermand of the <lefend- ants' order, was, nevertheless, bound to go on and complete the engine, and thereby increase the damages, before he could re- cover for the work already done. The defendants carmot complain that tha plaintiff has given credit to their asser- tion. The law will not require a vain thing. And it is certainly, in such cases, much better for both parties to hold the party thus notified to be fully justified in stopping the work, as it lessens the dam- ages the other party has to pay, and re- lieves the party who has to do the work from expending further labor, for which he has fair notice he is to expect no pay- ment. And it is certainly very question- able whether the party thus notified has a right to go on after such notice, to in- crease the amount of his own damages. In Clarke v. Marsiglia, above cited, it was held he had no such right, and that the employer has a right (in a contract for work and labor) to stop the work, if he I choose, subjecting himself to the conse- j quencesofa breach of hiscontract, and that j the workman, after notice to quit work, has no right to continue his labor, and i recover pay for it. 'l^his doctrine is fully approved in Derby v. .Tohnson, above cited. This would seem to be good sense, and, therefore, sound .aw. And it would seem that any other rule must tend to the injury, and, in many cases, to the ruin of all parties. It is unnecessar.v here to review the au- thorities cited by the plaintiff's counsel. Most, if not all of them, when carefully ex- amined, will be found entirely in har- mony with the views above expressed. The result of them will be found well and fairly stated, ami evidently form a careful examination, in Allen v. Jarvis, above cited. I have made the same examina- tion, and come to the same result. It may, however, be i)roper here to say, that in the case of Planche v. Colburn, 8 i HOSMER V. WILSOX. 430 Bins;., 14, upon which mach reliance was placed by the counsel for the rlcfenilant in error, there was a npecial count upon the contract, ns well ns the common counts, and It may ho inferred from the opinion that the plaintiff was allowed to retain his verdict upon the special count. And we Dave the hij^li authority of Lord Camp- hell that such was the case. Sec Hocli- sterv. De Latour, 20 E L. & Eq. 163, above cited. As the conclusion at which wc have arrived upon this point diKpi>HeM of the whole case, it beconies unnecessary, and even improper to discusH the other quentiuils ralHed in the caMe. And, as we do not conceive that under a writ of error we have any power to amend the declaration in this rcnpcct, the judKoient must be reversed. The other justices concurred. HOWE V. UAVAVAUD. 441 HOWE v. HAYWARD. (108 Mass. 54.) Supremo Judicial Court of Massachusetts. Wor- cester. Oct. Term, 1871. T. G. Kent, for plaiutilf. P. E. Aldrlcb, f<ir (lofendant. CHAPMAN, O. J. It appears by the repiirt, that tlie parties made an oral con- trart for tlie sale of property by tlie plain- tiff to the defendant, anri that eaeli of them deposited the sum of .fSOO In the hands of one Taft. The plaintiff contendecl that the money deposited by the defendant was tjiven in earnest to bind tlio bargain, or in part |>ayment. The defenilnnt con- tended that it was under an aKreement that the sum should be forfeited in ease he refused without just eause to [lerform the contract. The jury found that it was not deposited in earnest or in part payment, but was deposited "as a forfeiture, to be paid over to the [)arty who was ready to perform the contract, if the other i)arty neftlected to do so;" and under the in- struction of the court found for the defend ant. The plaintiff contendB that the find- ing should have been for the plaintiff, be- cause, If the money was deposited as u for- feiture, as stated, it amounted to "ear- nest," within thenieaniuK of thestatuleof frauds. Tills depends upon the pro|>er definition of that term as used in the Htut- ute. The Idea of "earnest," In connection with contracts, was taken from the civil law. Uul(-rbock on I'.racton (.\m. transl.) 145. It Is not necessary t(j cunsider its I)recise effect under that law. As used In the sta t u te of frn uds, " ea rnes t " is re^a nled as a part pnymentof theprice. '2 lil.Com. 447. Porda^e v. Cole, J .Saund. 3191. LnuRfort v. Tiler, 1 Salk. 113. Morton v. Tibbett. 1.0 II. n. 42H. Walker v. Nussey, IC) .M. & W. WJ. 1 Dane Ab. i;:!."). The case of MlenUinsop v. Clayton,? Taunt. o'.iT, cit- ed by the plaintiff, turned on the question of delivery. The de|)oslt with Taft was not therefore e()uivalent to an earnest to bind the bar- train, or part payment, and there was not a valiil sale within the statute ot frauds. The rulinj; was correct. Judgment on the verdict. lIUiMIiLE V. MITCIIKLL •H:? HUMBLE V. MITCHELL. (11 Adol. & K. :205.) tJiu'cii's Bench, Michaclniiis Vacation. Nov. 27, 18.'{9. .VsHunipHit by the purcliaser of HhnroH in a joint-.stock c(>ni|i;ui.v, called the North- ern and reiitral I5uiik of Eii^lnnd, nt;ainHt the vendor for refusiiifj to Ki«;n a notice o( transfer tendered to him for Hjfinature, and to deliver tliecertilicate.sof tlieshareH, witlioiif. which the sliures could not be transferred. I'leaH. \. That the contract mentioned in the declaration wan an entire contract for the Kale of Kood.s, warei^, and mer- chandiser, for a price exceedinp: £U>, and that i)lMintiff had not accepted or received the sail! goods, &c., or any part thereof, and di<l not give any tliinsr in earnest to bind the bargain or in part payment, and that no note or memorandnni in writing of the l)aru;ain was made and signed by defendant or lii.s agent thereunto lawfully authorii^ed. Verification. 2. That the contract was a contract for the sale of, and relating to an interest in and concerning land.-t, tenements, and hereditaments of and belonging to the said company, and that there was not in respeft of, or relating to, thesaid contract, an agreement or any memorandum or note thereof in writing signed liy defend- ant, or by any other person thereunto l)y him lawfully authorized according to the form of the statute etc. Verification. Itcplication: to the first plea, ilenying that the contract was tor the sale of goods, wares, etc.: to the second, denying that it was for the sale of an interest in lands etc. Issues thereon. At the trial of tlie cause before Colcriilge J., at the Liverpool Spring assizes, ]s:(S. it was proved that the company was in possession of real estate; lint no title deeds to the estate were produced; nor was it sliewn what was the nature of the property Itelonglng to the company, or tli(r e.\tent of their inti-rcr^t llierciu. The jury found a verdict for the plaintiff f)n both issues, subject to a motion to enter a verdict tor the defi-nilant. In thefollow- ing Kaster term Alexander olitained u rule nisi acconling to the leave rchcrved, citing, on the llist [ilea. Ex parte Val- lanre,' and, on the second plea, lix parte The \'au.\liall Bridge Company,- anil Ex parte lloriie.8 CresHwell ami ('rompton now shewed cause. Alexander, contra. Lord DK.VM.VN, ('. J. With respect to the (piestinn arising on the second plea, we have alreaily clisposed of it. The oth- er i)oint Is whether the shares in this com- pan.v are goods, wares, or merchandises, within the meaning nf § 17 of the statute of frnuds. It appears that no case has been found direcll.v in p')int; but it is con- tended that the decisions upon reputeil ownership are apiilicable, and that tin-re is no material distinction between the woi'ds used in the statute of frauds, an<l in the banKrupt act. I think that both the language and the intention of the two acts are distingui.-fhable, and tliat the de- cisions ni>on the latter act cannot be rea- sonably extended to the statute of frauds. Shares in a joint-stock coni|iaiiy like this are mete choses in action. inca|)able of delivei'y, and not within the scope of the 17th section. A contract In writing was therefore unnecessary. PATTKSON, WILLIAMS, and COLK- UIDCi:, .I.I., c<»ncurred. Hule discharged. .\ (nio.stion also arose as to the projjcr mode of estimatinK the damages in this action; but on this point the parties eventually agreed. ' 2 Pencon. B. C. .''.54. '1 Glyn. & .T. 101. ■ 7 B. & C. 032. HUTHMACHEI! r. HARRIS'S ADM'RS. 445 HT'TIIMACHER v. HAJIRISS AD.M'HS. (38 Pa. St. 491.) Siiprfine Court of Pennsylvania. March 2,'5, 18G1. Triiver by RoHniiiin Gardner, iitliiiiiilH- tratrix, ami Silas Suttun and retor II. Seovill, ailiiiinistra tijiH of EliMtia HarriH, (H'ceaHeil, ajiainst David M. llii thniaclii-r. .ludAnient for plaintiffs, and defendant hrinjis error. Aflirmed. 'riio property in controversy, eonsistint; of proniiKsory notes and two watelies, was found l)y defendant in a square hloek of -.vodd, <>» tlie top of wliirli was a liori- zontal wlicel with a perpendicular iron siiindle, called in ttie vendue list a "drill machine,"' which wa.s hoiiKht liy him at a sale of the effects of the said Harris. Ilendrick B. Wright, forplaintiff inerror. E. L. Uuna, tor defendants in error. WOODWARD, J. The irround on which weallirui thisjndKment is, that there was no sale of the valualiles contained in the l)lock of svood, which Is called, in virtue of its horizontal wheel and upright spindle, "a drill machine." Sale, said Mr. .Justice Wayne, in Williamson v. I'.erry, >S How. "44, is n wor<l of i)reciHe lej^al import, hoth at law and inequity, jt means at all times a contract between itarlies to pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought and sold. That no such contract was made by these parties in respect to the conterils of the drill marliine, we deduce from the agi'ced facts of the case. The miichine it- self, and every essential part and constit- uent element of it, were well sold. The consideration paid, though only lifteen cents, was in law a (|uid pr<j nuo, aixl the sale, unaffected by fraud or ndsrepreseii- tation, passed to the purchaser an inde- feasible right to the machine anil all the uses and purposes to which it coulil l)e applied, lint the contents of the machine are to be distinguislied from its constitu- ent parts. They were uuKnown to the administrators, were not inventoried, were not exi)osed to auction, were not sold. Of course they were not bought. .Ml that was sold was fairly bought, and may be held by the purchasers. The title to what was not sold retiiains uncliangcd. A sale of a coat does not give title to the DocUet-liook which may happen to be temporarily deposited in it. nor the sale of a chest of drawers a title to the de- |)osits therein. In these caseji, and maii.v others tliat are easily Imagined, the con- tents are not essential to the existence or usefulness of the thing contracted for, and not being within the contemplation or in- tention of the contracting parties, do not pass by the sale. The contract of sale, like all other contracts, is to be controlled by the clearly ascertained intention of the I)arties. The argument proceeded very much on the doctrine that equity will, in certain eases, relieve against mistakes of fact as well as of law; but if there was no con- ' tract of sale, there could he no mistake of fact to vitiate it. anil therefore that doctrinehas no possible a|)pllcalion. Mis- take is sometimes a ground of relief in e(|uity ; but a man who puts ui) his wares at auction ami sells them to the highest bidder, has [io right to relief on the ground that he was ignorant of the value of that which hesidd. Such a mistake comes of his own negligence, for it Is Ids duty to liossess all necessary knowledge of " the value of that which he brings to market, and the rule is general that if a paity lie- comes remedile.-iH at law by his own negli- gence, equity will leave him to bear the conseiiuences. Noi- could these administrators, had tliiy sold the contents, have pleaded, in addition to their ignorance, their fiduciary character. a[id their jiossible liability for a ilevastavit, in defeat of the vested rights of the i)urchaser; for, in respect to the personalty of the dei-edent, they stood in the ilead man's shoes, and were in fact, as they are coinmoidy called in law, his personal representntives. The law cast the personal estate upon them for pur- poses of nilministration, atid a fair sale made in pursuit of ihat purpose, would confer as perfect a title as if made liy a llv- ingowner. Tlie.v.no more than any other vendor, could set nsiile such a sale to avert the conse(|Ucnces of their own neg- ligence. Hut inasmuch as they did not, In point of fact, sell the valuables which are In dis- pute, these principles, and all the argu- ments drawn from the law of mistake, are outside of the case. If, then, there was no sale and purchase of the contents of the block or inachine, how did Hutlimaclier. when he diwccjvered his unsuspected wealth, hold it'.' ICvi- dently as treasure trove, which, though comnioaly deliaed as g(dd or silver hidden in the ground, may. in our commercial day, be taken to include the paper rejire- sentatives of gold and silver, especially when they are found hidden with both of these precious metals. And it is not nec- essary that the hiding should he in the ground, for we are told In ;! Inst. 1:!J. thot it is not '■ material wlu-ther it be of ancient time hidden in the ground, or in tin- roof, or walls, or other part of a castle, house, building, ruins or otherwise. " The certain rule of the common law, in regard to treasure trove, as laid down by Hracton, lib. ;!. cap. It, and as (|Uoted in Viner's.Abriilgement. is," that he to whom the property is. shall have treasure trove, and if he dies la-fore It be found, his exec- utors shall have it, for nothing accrues to the king uidess when no one knows who hid that treasure. " The civil law gave It to the Under; according to the law of na- ture, and we suppose it >viis this principle <»f natural law that was referred to in what was saiil of treasure hid in a (kid, in .Matthew's tiospei. xill. 44. ISut the common law, which we admin- ister, gave it always to the owner if ho coidil be found, and if he could not be. then to the king, as wrecks, strays, and other goods are given." whereof no person can claim property:" 3 Inst. l:iL'. llulh- 446 HUTHMACHER v. HARRIS'S ADM'RS. iiiHclicr, tlioreforo, held tlie uusuld valiia- hlesfor tlic personal rcpresecta lives of the (leceaHod owner. Several sporadic cases, some of which were liishly aixicryphal, were mentioned in the argument as affording analogies more or less appropriate to this case, but it i.s quite unnecessary to discuss them, because if they touch, they do not encum- ber the clear ground whereon, as aliove indicated, we rest our judgment. Tlie judgment is affirmed. ILSLEY 0. STUBBS. 449 TI.SLEY et al. v. STUBBS. (9 Mass. C5.) Supreme Judicial Court of M.-isB.n(husett8. Cumhorland. May Term, 1S12. TliJH ttOH a replevin of a qinititity of Halt and conlH. Issue lieio^t taken upon the (iiie.stion of the property of the plain- tiffs in tlie artir-les replevied, the Hame wan tried at tlio last Octolier term in this county Ijefnro Thatcher, .1., and a verdict found by coiiHent for the defenilant, huIj- ject to the opinion of the court u|)on the evidence reported tiy the judge who sat in the trial. To maintain the issue on their part, the plaintiffs relied on a hill of sale from Lens- uel VVeeUs and W. C. Weeks his son, dated tin- Nth of .January ISO.S at I'ortland, ex- pressed to be for the consideration of yOOD didlars and purport iiiy; to con vej' to the plaintiffs, "all and singular the contents of the carn'o now on board of the ship l^Ienry of I'ortland, Joseph Weeks maslei-, now on a voyage to Liverpool, and back to the l,'nite(i States,"— and also on a tiill of lading executed by the said Joseiih Weeks, as master of the ship Henry, at Ijiverpool on tlie 27tli of January isus; by wliich he acknowledges the shipment and receipt of the salt and coals in ques- tion on board the said ship, to be deliv- ered at Portland unto Mess. Weeks & Son, or their assigns; and which bill of lading wns endorsed l)y Mess. Weeks & Son to the rilaintiffs on'the L"2d of March ISoS. Tlie plaintiffs also produced in evidence an agreement made between Logan, Lenox & Co. and Weeks iV Son, dated the 4th of November ISO", stating the terms on which the former receive e<msignments anil make insurance wlicn directed by their corresponilcnts : and limiting the draughts of the latter to the estimated value of their consignments. — Also a let- ter from Logan, Lenox iS: Co. to Weeks & Son, ilated at Liverpool December 2Sth ISO", announcing the arrival of the sliip Henry, and undertaking to procure em- ployment for her, if practicable; and if not, to dispatch her immediately with a cargo of salt. — Likewise the copy of an account current of Logan. Lenox & Co. with Weeks and .'^on, in which, undei' date of January L'Otli ls(,'s, the former charge the latter with a cargo of salt and coals shippel by the Henry, and credit them with the proceeds of tlie outward cargo of the same ship: which account had been produced before certain arbitrators be- tween Logan, Lenox «.*c Co. and n Mr. M'Lellan, but. as one of the arbitrators testitied. not as sliewing the stale of the existing demands between the parties to tlie account: ii()rdi<l it ai)pear that it had ever been rendered as such to Weeks Jt Son. On the other hand, the defendant relied on an.ither bill of lading affirmed to by the same master of the sl.ip Henry at IJverpool, on the 10th of I-Vliriiary ISOS; by which the same shipment of the salt and coals is stated to be "on the proper account and risk of citizens of the I'nlteil States, to he delivered at lloslon unln LAW SALKS — 29 Mr. Peter Stiihbs or his asRlgns, freight for the same being paid."— The shi[)ment In question Is in both In- ptances stated to have been mudo by Logan, Lenox & Co.: and the origin of these contradictory bills of lading was ex- (iluined by the testimn(]y of Joseph Weeks, the master of the ship. In his clepoMition lit relates his voyage in the Henry for ac- count of his owners Weeks & Son, from Bath to Liverpool, consigneil to Logan, Lenox c& Co. with a cargo, which he de- livered there;— their shipment afterwards of the salt and coals for the account of Ids owners, and consigned to them, tor which he aflirmed to the first bills of lading;— and that during a detention at Liverpool by contrary win<ls, n requisition was made upon him by Logan, Lenox & Co. in consequence of intelligence they had received of the failure of his owners, to have those bills of lading given up and others substituted, threatening to detain tlie ship, if this was refused. With this requisition he thought himself under a ne- cessity of complying, and accordingly signed the second liills of lading; and re- ceived Mr. Stnbbs. the present defendant, the consignee named in the second bills, anil one of the firm of Logan, Lenox & Co. as a passenger; who came out for the purpose of having the possession and controiil of the cargo. — After their arrival at Portland, Joseph Weeks the master gave one of the bills of the tirst set, which he had retained, to Weeks & .Son his own- ers, who endorsed it to the plaintiffs as aforesaid. Whitman, for plaintiffs. Mellen and Km- ery, for defendant. SEWALL, J. The general question to be decided in this case is, does tlie evi- dence establish the property of this cargJi in tlie plaintiffs, claiming it under the bill of sale executed at Portland on the Stb of January ISOS? .\s to the effect of the bill of sale, re- stricting its operation to the words of It, there would tie no question. For litprally taken, the cargo claimed under It hail no existence at the time of the bargain and transfer, under which the plaintiffs claim. Hut this is not tlie construction to be put upon a contract of this kin<l. .\b between Weeks & Son and the plaintiffs, the bill of sale undoubtedly gave the lattera right to tak> to their own use whatever ar- ticles did or should constitute the home- ward cargo of the ship Henry, wlien slio should return from the voyage, in which she wns then engaged; that is.siicli Inding as she shoulil have, which, independently of the bill of sale, woiilil have been tlio property of the owners of the vessel; a sense latterly and not incorrectly given to the term cargo, as exclusive of any other lading, "r gooils taken on freight. The bill of sale may be considered as establish- ing an uiKpiestlonnble claim ami right against them, or any intere.-it they might have in a cargo nflerwarcls arriving In the sliip Henry, from Liverpool. When however the question of property Is with third persons. It may bo uecc»»- 450 ILSLET ». STUBBS. sary to examine the case with more strict- ness. And in dcrnding l)et\veen parties, wliose interests are not distinguishable in equity, the question may ultimately turn upon the nicest formalities of Icsal title. Strictly speakinf? tlien, the contract lie- tween Weeks & Sou and the plaintifi's gave them Ijiit a cliose in action, and was rather a covenant than a sale. As transferring an expectation or demand against tlie correspondents of Weeks & Son, their factors at Liverpool, the ven- dors of the carso to be sliipped tliere, the liill of sale must be considered subject to all the rights and duties of tlie ori^jinal parties to the shipment, when it should be made; tlie shippers and master acting without notice of the transfer at Port- land. The ritihts of the shii)perH or ven- dors of the carKo are not to be affected by the bill of sale: and the property acquired by it is not to be carried beyond the legal demands of Weeks & Son, or their rights in the property in qup.stion, against the firm of Logan, Lenox & Co. The defend- ant in this action reijresents them; and all their rights, opposed to the claim of the plaintiffs, are to be allowed to him. In this view of the case, the other cir- cumstances and facts in evidence became material to the decision. The agreement made for Logan", Lenox & Co. with Weeks & Son, dated November 4th l.SCiT, which may be considered as re- Bulling in the consignment of the ship Henry to them, if relied on for the plain- tiffs as evilence of any contract to send them return cargoes for vessels consigned to the house of Logan, Lenox & Co. is very defieient in that i-espect, and not at all suitable to the purpose. It not only expressly negatives any intention of ad- vancing for consignments, but it contains no stipulation, engaging them absolutel.y to the purchase of return cargoes, even when 8U|)plied with funds. But what is more material, the Henry was not con- signed to them for the purpose of obtain- ing a return cargo. To the extent of her outward cargo, or as it proved, much ex- ceeding the proceeds of it, had been drawn and accepted; and the vessel was placed entirely in the contrnul of Logan, Lenox & Co. to be employed b.y them on a freight or charter party, if to be obtained; and cargo of salt was onl.v to be resorted to, if nothing better could be done. The testimony of the master was, that he had no power to dispose of either ship or cargo, but was to follow the orders of Logan, Lenox & Co. in all things concern- ing the voyage: and in their letter under date of December liSth ISO", after the ar- rival of the Henry at Liverpool, they un- dertake to get a charter for the vessel if possible, and onl.v to send a cargo of salt, if nothing better could be done. Until the departure of the vessel therefore, slie continued under their controul, and the cargo was subject to their orders. And their power was not determined by aship- ment intended for Weeks & Son, if after- wards a shipment for someother account, or u[)on a charter or freight, appeared to them advisable. The first bills of lading were evidence of an intention, which, un- til the departure of the vessel, Logan, Lenox & Co. had authority to reconsider and reverse: and this authority they ex- ercised in cancelling them, and substitu- ting other bills of lading, which placed the articles of the cargo on freight, instead of lieing on account of the owners of the ship. Their authority in this respect was not impaired, nor was the determination on their jjart unjust or improper; because it became necessary as a measure for their own securit.v upon an intended advance- ment, after the credit of Weeks & Son had become doubtful. Besides, the first bills were cancelled with the consent of the master; a con- sent in which he was entirely justified, be- ing conformable to the duties of his own- ers and employers. This was a restora- tion of propert.y, which they could not, with any sense of justice, insist upon re- taining, at the certain expense and los.^ of j their correspondents. j If under similar circumstances, and at the instance of Logan, Lenox & Co. and their threatening to stop the vessel by vir- tue of their controul and authority over the voyage, the master had relanded his cai'go and returned empty, is it possible to conceive that the bill of sale at Port- land would have given a right of action to the plaintiffs against Logan, Lenox & Co. for the value of the cargo shipped or intended to be shipped, but finally re- stored, for the best of all reasons, viz. that the purchasers, those to whom it was go- ing on credit, had no ability of paying for it, if the.v should fake it?— And how does the reversal of the bills of lading differ materially from the case supposed? If this reasoning is correct, tliere is no occasion of resorting in this case to the doctrine of stoppage in transitu. For Weeks & Son as consignees, or for their assigns under the hill of lading, there never was a cargo in the ship Henry ia transitu: the authority of Logan, Lenox & Co. to reverse their intention, and tlieir doing this, and substituting the second bills of lading, was tantamount to a re- storation of the property intended to he shipped for Weeks & Son ; and it must be considered as shiyiped from the beginning for another account. Their authority to demand a restoration, and that of the master to consent to it, were not restrict- ed by the contract with the plaintiffs, un- known to those who were acting at Liv- erpool under an ajiprehension of an im- portant change in the circumstances of Weeks & Son, which proved to be well founded. This becoming known to their correspondents, seasonably to enable them to provide for their own security, the provision was made, and was justi- fialile upon the principles of good faith and nipi-cantile honour; and was, I think, legally effectual against the claim of the plaintiffs. As a question of fact upon the whole evi- dence, whether the shipment for the ac- count of Weeks & Son had been finally cancelled, or was r)nl.vcolourably changed, some doubt might be excited from the cir- cumstance of tlie account produced by one of the firm of Logan, Lenox & Co. at ILSLEY V. ST I BUS. 451 the ri'fcreticc botwci'ii tliciii uiid ii tliiril pnrty, contaiiiliiir tlic clinrKCH of thoHiilt aixl coiiIh to W'ccUrt & Son. Hut tliiH doubt Ih rcniovcil liy the tust iinon.v of the HUiiiu witiicHM, of the iiiMiincr in which tiuit account wiih ohtiiincil. nnd the iictnni HtiitK of it )IH u incnioi'iinduni only ; anil that it liad never constitiilc'd an account rendered, and liad never lieen offered aH an exiHtliiK demand. Atid altliouirh tliis nii^ht be a (lUCHtion ratlier for tlie jury tlian the court, yet in tlie actual Htate of the evidence, a ccMicluHion upon it for tlie defendant niuMt he the only correct renult, HO far a.s the case is affected by that circiinistance. W'itli the aid however of the doctrine of stoppay;c In trauHitu, the (inestion in tlus cane may l)e more conclusively, and with some, more satisfactorily decided. Ae- eordiiiK to this rule of the law rn<'rchant, which has become ingrafted with the common law, the shipper or consiunor of i;oods, sent u[)on a general or particular credit, as niion an order for a return carno, wIk'U there is no specification, or a specific order and |)urcliase of the ar- ticles sliii)ped, has a riuht, in the event of an actual failure of (he c.nsijjnee or pur- chaser, to coiiutermand the (leliver.v, and cause them to be delivere<l to himself or to some ot her for his use: and this rinht ceases only with the transitus or passage of the soo'lw. upon an actual or construct- ive delivery thereof to the consignee him- self. A foreiKn merchant, who for a commis- sion only to himself, pui'chases upon his own credit, and ships upon the credit which he <.;ives to his employer, is a con- signor or vendor enl itled to the benedt of this rule. Nor is the application of the rule to be restricted to those cases, where the contract of sale, as between the eon- signor and consignee, is to he considered executory; as where the coiisi^jnee or vendee has not obtained upon t heoredil af- forded him, what is by the principles of the common law, a vested property. On the contrary this is supposed : and Iherestric- tions upon the e.xerciseof this rlK'Ht, estab- lished by KuKlish decisions, have been de- rive<i from mercantile usnjjtes sanctioned by their expedienc.v, anil by principles of public policy, or l).v the precautions sut;- jiested by the system of the t)nnl«rupt laws. In itself, and as determining n qtipstion of rijrht between the parties to thecontract of sale, the rule is perfectly eiiuitable and j'nst, in every case of tlie actual insolvency of the consifinee: and It has been allowed to be exercised, even where a part of the price had been paid, or a bill of exchange for It accepted and end( rred over to a third person.' Whenit is that the transitus isat anend, and a delivery has taken place, has been a question of some ditliculty in particular cases. By one decision, goods have been ' Abbott on Shipping, c. 0, page ;?57, (Amor. Rdit.); Feiso v. Wray, 3 East, 93; Mason v. Licklmrrow. 1 H. BlacU. MH, note a: Newsom V. TliDriitoii, (5 Kast, 27, 28; Hodgson v. Loy, 7 D. & E. 440. considered In transitu, notwlthBtnndlne a delivery to the master of n ship char- tered solely by the consignee. In another case, where the goods attempted to bo reclaimed had been delivered to the mas- ter of a sliip chartei-ed solely by the ven- ilee for a terra of years, and were put on board thereof destined by him on a par- ticular adventure, for which they had been purchased, it was hidden that the vendor could not stop them. The distinction In these two cases, upon which these differ- ent decisions rest, is, as 1 apprehend, the eircumst!uico of tlie ultimate dcstinntion of the consignment : for in both cases the consignee was the owner of the vessel; in one case for the term of years; In the other case for the voyaire:" so that tliix was not the ground of decisiini, as .\b- bott in citing the cases seems to suppose: but in the one case the goods liad reached the constructive possession of the owner, the transitUB was at an end. ami the fur- ther diiection of the goods, had been de- termined tiy the vendee: wiiereas in the other case, the transitus continued, the goods lind not arrived to the posuessioii of the owner, actual or constructive, con- sidered as a termination of their pasHage from the vendor to the vendee. - In the case at bar the consignee was the ( wner of the vessel, on Imanl of which the articles, the pri>|)erty whereof is in ()ueKtion, were laden. .And it is to l>e sup- posed in making this i|uchtion, that they liaii been delivered to the agent of the consignee for his account and risk; but tlic delivery was for the purpose of car- riage to liim, and the vessel itself ami the iiiiister, at the time the delivery was coun- termanded, were still under the direction of the consignor. The goods constituted a cargo :>n its passage to the vendee, to give the fullest effect to the first bills of lading, that can be contended for. The right to stop them therefore, proving the actual failure of the consignee, ^eeins to result from a reasonable construction and application of the rule on this subject, and both the right and the exercise of it are. in our opinion, established by the whole evidence, not only against any claim of the consignee, but also against the claim of his assigns, under the dei'd to them, made nrospectively and in tact liefore the shipment: for which the consignor was not eniraged by any previous promise or consideratiim. The assignment relied on for the plaintiffs is not of a bill of lading In the possession of tlie consignee: and the case is not therefore to be decided by the usage found by the jury in the ultininte decision of the case of I.lckbnrrow v. Mason," if indi'ed a similar usage witblo tills state is proveal>le In any case. I'pon the whole, the opinion of the court is ill favour of the dcfi'udant ; an.l Judg- inent is to be entered upon the venllct taken for him, for a return of the articles replevied, with his damages and costs. ' Stiibbs V. Lund, 7 Ma.ss. 4r>3. •5 D. & E. CSG. Ilaillo v. Smith, 1 B. & V 563. INGALLS 0. nERIUCK. 453 1NGA1.LS V. HEURICIC (108 Mass. 351.) Supreme Judicial Court of Massachusetts. Essex. Nov. Term. 1871. Tort for the converHion of 21 bales of flockH of wool, attached by a deputy of defendant sheriff aa property of Willinni II. Loujcee. in a suit against LouKee by one of liiH creditorw. The plninliff intro- duced eviilence that on Decemlier IG, isos, he bargained with Lou^ee's a);ent, Lewi.j U. Bos worth, at an aprreed prioe, to cell a^ain ; that the bales were numbered and marked, and were stored in Loutree's fac- tory ; that ho told Bosworth that he wished to have them remain where they were for a while, and \Vf)uld pay storajje on them, to which Bosworth agreed; that he also tolil Bosworth that he was {joing to New York the next day, and wislied some samples to take with him; that the same day. at LouKce's countinK room, he received a l)ill ot the flocks, dat- ed that day, and signed by Lougee, speci- fying the numbers, murks, and weights of the bales, and acknowledging the re- ceipt of the price; tliat the flocks were of two qualities, and at the same time Bos- worth gave him samples of each ; and that he saw the flocks at the factory about Ueeember, but did not see tliem on the day of the sale nor afterwards, until they were attached by the defendant's deputy. Bosworth testified "tliat, after the bargain was made, he went to the fac- tory, and examined the bales to gft the niin)bers and weights, and wrote the liill which l.ongee signed 'Lougee,' anil deliv- ered it to the plaintiff; that he took out the samples, which the iilaintlff wanted, and then sewed up the bales; that he met the plaintiff in the afternoon, and lold him th:it the bill and the samples would be ready for him that evening, at hongee's counting room; and that he gave the samples to the plaintiff at the time of the delivery of the bill of sale. " The court ruled that there was not snilicicnt evi- denceof thedelivery of thegoods as against the jiltaching creditor of the seller, and directed a verdict for the defendants. The plaintiff alleged excepti(ms. J. K. Tarbox, for plaintiff. S. B. Ives, Jr., and S. Lincoln, Jr., for defendant. COiyr, J. It was ruled as matter of la w. In this case, that the jury would not be authorized upon this evidence to finil a delivery of the baled flocks, suthcient to pass a title valid as against creditors of the seller. There was evidence tending to show that the bargain for the sale was made with one Bosworth. an agent of the seller. A receipted bill of parcels, signed l)y the seller liimself, which con- tained a description of the bales by num- ber, mark and weight, was afterwards de- livered by the agent to the plaintiff. The subject matter of the sale was all thebaled flocks then stored in the seller's factory. It was thus a completed contract of sale, and as between the parties tlie title passed to the plni[itil'f. Was there evidence to go to the jury of a delivery sullicient as to creditors? This Is the only question, and In disposing of it we must take the sale to have been made in good faith and for a valuable consideration. Ujion this iiuestion, there was evidence tending to show that the flocks were bought for resale; that the bales were large, not easily moved, and reijulrlDK room for storage; that the plaintiff, hav- ing no convenient place, agreed with Dom- worth, at the time of the bargain, to let them remain where they were, and pu.v storage, and directed hini to obtain sani- ples of the flocks, which he, the [)lalntlff, could take with him to New York to sell by: and that Bosworth accordingly o|)ened the bales, took out saniplesof two kln<ls of flocks, sewed up the l)ales, and gave the samples to the plaintiff at the time he delivered the bill of paicels. The plaintiff bought upon his own previous knowledge of the article, ha ving seen the flocks at the store-room of the factory a week or two before. The samples were not required or used by him in reference to his own purchase, and Bosworth, in taking tliem from the bales, acted unrler the directions and as the agent of the plaintiff, and with reference to future sales by hin?. It was a signilicant act of ownership anil possession on the part of the plaintiff, after the sale was agreed on, through Bosworth, acting In this respect as Ills agent. There is something more, therefore, here disclosed, than a mere con- tract of sale without delivery or posses- sion under it. .\nd we are of opinion, un- der tli(> la w heretofore laid down by the court, that the casi? should have been sub- mitted, with proper instructions, to the j u ry . It was early held that the possession of personal chattels by the vendor after un alleged sale is not conclusive eviilence of fraud. Upon iiroof that the sale was made in good faith and for a valuablecon- siderntion, and that the possession alter the sale was in imrsuancc of some agree- ment not inconsistent with honesty in the trans.nction. the vendee miuht hold against cre.litors. Brooks v. Powers, l.'i Mass. '2M. It was declared by Morton. J., in .Shnrtleff v. Willnrd. I'.t IMck. LML', I'll, that, whatever the rule upon this point may be in Kngland or elsewhere, it Is per- fectly well settled In a series of cases here, that" the possession of the vendor Is only oviderce ot fraud, which, with the man- ner of tile occupation, the conduct of the parties, and all othi-r evidence beorlng up- on tile question of fraud, is for the consid- eration of the jury. It is certain that slight evidence of delivery Is sntflrient; and if the buyer with the consent of the seller obtains possession liefore any at- tachment or secoml sale, the transfer is compli'te without formal delivery. Sliuin- way V. Huller, s I'irk. 44:!. A dellverv of a I'lortion in token of the whole Is a suiJl- cient constructive deliveiy as against creditors, altlioui;h the gomls are in the ))ossession of various persons. I.egg v. Willard. 17 I'ick. Hii. In Hardy v. Pot- ter, 10 tiray. v.". the jury were told that, although the plaintiff only took u Idll of sale. vet. if prior to the attachment he had iiccii to the place where the lumber 454 INGALLS V. HERRICK. was, and had exercised acts of ownerslii]) over it. by virtue of his purcliase, tliat would constitute a delivery of it good against a subseiiuent attachment. And tliis instruction was held not open to e.\- ception. altlioush the evidence was that the purcliaser had only been to Beverly and seen the lumber there. See, also, Phelps V. Cutler, 4 Gray, 137; Tu.xworth V. Moore, 9 Pick. 347: BuUard v. Wait, K! Gray, .w; Ropes v. Lane, 9 Allen, 502, and 11 Allen, 591. The fact that the possession of the prop- erty is retained by the vendor l)y agree- ment, and does not follow the bill of sale, is held by this court to lie in most of tlie cases, evidence of fraud, to go to tlie jury. In many of the states, the fraud is held to be an inference of law resulting inevitably from the possession. And such was sup- posed to be the earlier English rule, as laid down in Edwards v. Harben, 2 T. 1!. '>S7 ; but the only point there decided was, that an absolute conveyance with- out possession, if there be nothing but that, is in ])oint of law fraudulent. In the more recent cases, it has been declared tiiat the continued possession by the ven- dor, of goods sold, is a fact to he consid- eied by the jury, as evidence of fraud, and is not in law a fraud in itself. Martin- dale v. Booth, 3 B. & Ad. 498. Benjamin on Sales, 3()3. There was evidence here of delivery, which should have been submitted to the jury. Exceptions sustained. INGLIS V. STOCK. 457 INGI-IS V. STOCK. (10 App. Cas. 2C3.) English House of Lords. March 'M. 18So. .Vppcnl trotn nn order of the court of appeal (lirott M. I!. BnKKf<.llny iukI Liiid- le.v I>. .I.l.,)' rovi-rsiim n (IcciMjot) of I-'ield .].- Tlic factM are MtiUed in tli(; ri'ixtrtH of tho dcc'iHioiiH tic'low, and in the jud>;tnent of tlie lord chancellor In IIiIh house. Sir F. Herschell, 8. (J.. and A. Cohen, Q. C, (.J. Goroll Harn(!S, with thcMii.) for ap- pellant. C. KiisHt'll, (.J. ('., K. T. Iteid.Q.C, and Danck wert.s.for ri'Hpondont, were not heard. Earl of SKM'.OIt.N'lC, L. C. My IohIh, tho (incstioii in Huh caHe is whether the pliiintifl' had, at the tiiiie of the Iohh of the Mteanier City of Dulilin in the lUver liihe, on the 4th of February IMsl. an int^urahle interest in :!!)l)0 baffs (or ;!'.)() tonH weight) of sn(j;ar, part of that veKBel's cargo '.' Tho court of appeal. revevHinjr a judgment of Fielil .1., decided in the plaintiff'H favour. I?y two contracts ilated repectively the 7th and iL'tli of .lanuary issl, which werc^ (except as to dates anil parties) identical in their terms, .Messis. Itrake & Co. mer- chants of London, asireed to sell to one Beloe and to the plaintiff respectively, L'OO tons each of (ierman I)ee1root sugar to he shipped fron) llamliurg. The material terms of the contract lpet\vcen Drake and Keloe are these: — "London, "tli .laiinary IWl, .Messrs. \V. I'.eloe i^ Co. A\'e have this da.v sold to you for your account -dO tons (ierman hect sugar of the crop isMi-Sl, at 'ils. l)d. per cwt. of 5(1-^; kilos, net f. o. h. Haml)iii-g for ss degrees net saccharine contents." I need not reail all thedctaiis. '"The sugar shall analyse between ^.'I'.fi net both inclusive; six-pence jier cwt. to lie paid or allowed for each ilegree above or below ss, fractions in proportion; but anything above ;i2 not to be paid for. fshould the average analysis of whole con- tract exceed !)(!, such ex;'ess is not to lie paid for. Tlie analysis is to be effect.-d by a pulilic German chemist." Then, omit- ting some immaterial points, it goes <in : "For .I.'iuuary delivery at Hamburg. Payment liy cash in London in exch;inge for bill of lading le."s two months" intt-r- est at ■) per cent. |)er .Mniium. .\ny dis- pute arising out of this contract to be set- tled by arbitration of two London brokers In the usual way."' I?y another contract, dated the 7th of January, the plaintiff bouglit from Beloe the sugar which I!eloe hail contracted to bu.v from Drake & Co., upon sulistanliall.v the same terms, except that the price to be paid tor it to I'.eloe was to be Jls. lu'i,il. per cwt., subject to like variations lie- tweeu tlie same limits ; and that the aver- age analysis of the whole contract was "not to exceed !1(l." The price, therefore. In each case was to be variable, according to the percentagi> of saccharine matter In the sugar; the good.^were,in each case, to be delivet-eil nt Hamburg free on board, 'V2 Q. R. n. .-(U. !) Q. n. D. 70S. and (consequently) were, after Mhlpn;ent, to be at the imrchaser's risk; and the bills of lading were to be retained by the vendors till the purchase-nioneyM were paid. The plaintiff and ISeloe at I'-ristoI and the agents of Drake & Co. at Hamburg engage,! space (or tliese sugars in a gen- eral ship, the City of Duldin, one ol a line of steamers trading between Itristol and Hamburg. Tl>e shipping agents at ISris- tol, being informed by the plaintiff of IiIh two purchases fi-oni ISeloo and Drake & Co , and learning from Ueloe that Drake & Co. weri- his vendors, advised their cor- responik-nts at Hamburg that 4(iO tons of sugar wonhl be coming for that ship's cargo from Drake. I do not think it mate- rial, but it is proper to notice that the plaintiff did not know frcjiu whom Ueio"; had bought, and Drake & Co. did not know that lieloe had sold to the plaintiff, till after the lo»s. The iiuanf ity actually put on board the City oi Dublin at Haniliurg was only ^'J«0 bags, or ."!'.m tons. As to this, I think It enough to say, that If the plaintiff would have li;id an insurable interest in 4(100 bags, under the circumstances of the case, he had, in my opinion, such an interest though the quantity was short by ten tons. No other sugar belonging to Drake & ('<». was put on lioard this ship. The Ulioi) liags were, therefore, specifically separated from the bulk of the vendor"s own sugar; anil they were shipped under Drake & Co. "s contracts with Beloe and the plain- tiff, witli a vi(!W to and in (ultilment of the agreement of Drake & Co., as vendors, to |iut the purchased sugar8"free on board." The present controversy arises out of the manner in which this was done. Facli bOK was distinguished by a mark denoting its jiercentage (according tocertilied analysis) of saccharine matter; and ten liills of lad- ing, for |ia reels liearing marks correspond- ing will) those on the bags, were madeoiit in an ini|iersonalfi>rm,iind sent (according to the contracts) to Drake & ("o., to lie retained by tlieni till the time of payment sliould arrive. The aggiegate consign- ment (except as to the deliciency of 100 bags) was proper and suitable to fullill the two contracts, without exceeding, as toeith.Tof tliem, the average o( '.Hi per cent, of saccharine matter; and (accord- ing to the evidence of Mr. Hales, a partner in the linn of Drake & Co.) it was made up and ■"ordered forwanl" as being ""mo livislble." I'.nt no particular bags were then set apart or marked as appli-able to the one coalract more than the other; It was thought sutlicient by Drake \- Co.. or their agents, to leave this to be done when tlie bills ol lading came forwaril. Tliere would be no practical dilliculty In doing it in a proper and reasonalile way, even if the plaintiff had not purchased Heine's contract, inasmuch as neither pur- chaser could cbilin, and Drake A: Co. were not to be p.'iid tor, any excess bi'vond 'JO per cent, of the average nnalvsis of the whole contract ; though It was conceiva- bly possible that it mitht have been dune porversciv and nnreasoiialily. The divi- sion was" in fact made by Drake & Co.. 458 INGLIS V. STOCK. who forwardefl invoices of the parcels at- tributed to each purchaser on the evening; of the 4th of Feliruary, after they hail re- ceived notice of the Iosh. In the division HO made the deficiency of ten tons vras as- cribed to the plaintiff's contract, being the later in date. No question was raised by the plaintiff or by Helue; and the purchase-moneys were paid by the plaintiff according to the contracts and invoices. But by this, which was done after the loss, the underwriters were (of course) not bound. Jt is contended, on the part of the ap- pellant, thai, under these circumstances, and for want of a proper division before the loss, the shipment had not the effect of divesting the prior title of Drake & (^>., the vendors, or of passing any interest in these sugars to the plaintiff. This argu- ment appears to me to confound two very different things; the appropriation neces- sary as between vendor and purchaser, and the division, as Itetween purchaser! and purchaser, of specilic goods, actually | appropriated to the aj-gregate of the two contracts. I do not think it follows that there could be no appropriation by the vendor of which the purchasers might take the lienetit, merely because the par- cels of goods appropriated were mixed, in the act of appropriation, so as to re()uire some subsequent division or apportion- ment. Whether this may have happened by previous agreement or course of deal- ing between all the parties (in which case there could be no serious doubt), or by accident, error, or want of proper care on the vendor's part, appears to me to make no difference in principle. The purchasers might possibly be entitled to reject, but the vendors could not, in my opinion, without their consent retract the appro- priation. In the present case, I see no reason to doubt that the difficulty arising from the confusion of parcels — material only to the settlement of the amounts payable by the plaintiff to his two vendors— if not solved by consent (or by arbitration, for which each contract provided) would have been soluble by principles of law,api)lied to the facts and the terms of the contracts. The necessity for doing this, and the fact that it had not been done at the time of the loss, do not, in my opinion, suHicientlv dis- tinguish this case from Browne v. HareS and earlier authorities to the same effect. The goods were, by the act of the vendors, 8ei)a rated from the bulk of all other goods belonging to them; they were shipped "free on board" in what (for that i)ur- pose) was the purchaser's ship, under two contracts so to deliver them ; in both which contracts (subject to the payments to be made by him to Drake & Co. and Reloel the plaintiff was then (although Drake & Co. did not know it) solely inter- ested. I cannot infer from any part of the evidence that, in so shipping them indis- criminately, the vendors intended to break, instead of fulfilling, their contracts, and to take upon themselves ('-ontrary to those contracts) the subsequent risk of loss, and the liability to freight. Yet this (as it seems to me) would be the necessary consequence of the appellant's argument. I think the order api)caled from is right, and I move your Lordships to aftirm it, and to dismiss the ajipeal with costs. Lord Br^.4CKBURN:-My lords, 1 also agree that there is no occasion to bear the counsel for the respondent. The respondent (plaintiff below) had in- sured himself by Moating policies to the extent of, as I understand, £.50U0. One of the policies is set out as a sample policy. It is a policy for £4000, part of £ftO()0,and is marked on the margin No. 4;;47. By it the respondent caused himself to be in- sured in respect of goods conveyed in a steamer "from the continent of Europe be- tween Havre and Hamburg, both ports included, ^"r' Kouen "„"/ Nantes to Bristol upon any kind of goods and merchan- dises, "" beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship at as above upon the said ship etc., including all risks of craft, and so shall continue and endure during her abode there upon the said shii) etc. And further until the said ship with all her ordnance, tackle, ap- parel etc. and goods and merchandises whatsoever, shall be arrived at as above upon the said ship etc. until she hath moored at anchor twenty-four hours in good safety and upon the goods and mer- chandises until the same be there dis- charged and safely landed. " Then I pass over a sentence which is immaterial for the present purpose. "The said ship etc., goods and merchandises etc., for so much as concerns the assured by agreement be- tween the assured and assurers in this i)ol- icy are and shall be valued at £4000, part of £5000, on sugar to be hereafter valued and declared. To follow policy for £4000 No. j:i^ dated Cth of December 1880." The meaning of to be "hereafter valued and declared " is, that if the insured has sev- eral adventures, all within the description in the policy, out, he may select at his pleasure which is to be protected l)y the policy; and, on his giving notice of such a selection to the insurers, the policy is as if it had named that adventure from the beginning. Of course, if adventures have been previously named, these come first, and whether those prior subjects of insur- ance are lost or not, the; policy is equally pro tanto functus officio. And I believe the practice is if there is nothing to shew that the first adventure which came in safe was selected not to be under the pol- icy, it is taken to be so, though there is no <leclaration. The meaning of "To follow policy for £4000 No. is, that there being consec- ' 3 H. & N. 484: 4 H. & N. 822. utive policies any loss declared is to be borne first by the earlier policies, and that it is not till after the policy No. fqjMs ex- hausted, either by losses or declared ad- ventures wliich have come iusafe.that the underwriters on the policy wh'ch follows are to bear the balance of the loss if any. There is not, as far as I remember, any A INf;[,I.S 0. STOfK. 459 othor ilifferenpo between a policy in the ; though the excRHB wns not to be pn id for IitcHcnt lorin with a (leflaintlon that it is No portion of tlie HiiKar now in (Jlnnuto on HUfjrar valued at tisoo loaded in tlie wuh either liclow s.') or al)ove irj ho that City of Diihlin Hteaincr Hailed froni Hutu- tliiH term doin n<jt come in to opera lion buPK to lliiMtoi on tlic :!r(l of Kelnuary | Tlie Hunar was to lie "net fiee on hoard 18S1, and an ordinary policy for thowanio IlnmliurK ' and it whh for January dellv- Hun"'" valued at the Hanie Butn on IheHunio ery at Iluinliur){. Tlie price wan to de- Hleamer on the wanie voyaKe. |iend on the "averau" analVHlH of the The defendant below iH an underwriter wholecontraet." "Should llieu verncean- for tino on eacli of these conHecutive tloot- nlysis of tlie wliole contract exceed !M)Much injr policieH. excess is not to he paid for. " T!:es«j|lcitor- There is no dispute, at least now. that Rcneral raised an argument on this clause the City of Duldin is sucli a Hteanier, which I shall notice hy-and hve. The and the voyage such a voyage as was price was to be paid In London in exclinnKo witliin the terms of the policies, nor tiiat for l)ill of ladinj;. the values and declarations were prop- N'ow under this contract the first thing eriy jriven, nor that tliere was enough left to be done was by lieloe (the buyer). He une.xhaustr'il on the policies to enable the must let Drake the seller, or rather sup- underwriters to pay a total loss. Hut it plier, liuow in due time on what slilp the was said tliat the situation of tlie plain- Koods were to be shipped free on board, tiff with rctiard to tlie suf^urs was not for till he knew that, Urake could not put sucli as to Kive him an insurable interest, tlie >j;oods on board. Meloe mi^'lit las in And I have no doiitit that in order to re- fuel he did), eiinaKe to put su«ar on cover auairist an underwriter the assured bonrd several steamers liouiid to Itrlstol, must show tliat he suffers loss in respect but lie midht have made an enKiiKenient of the thint; insured. In case of an insur- to ship su;;arfor Leitli and wish to have ance on gooils if lie shews that he had at the suuar put on board the Leilh steamer, the time of tlie loss the whole legal i)rop- Ur he miulit (thouKh that was less likely) erty in the goods which were lost, he iin- have charlereil a steamer for I^ondon, or donble<lly does shew it. But I do not any other port, and wish the sugar to be agree that this is the only way in whicli put on board tliat. As soon as he had he can sliew an insurableinterest in goods, securei] ro<»in in the steamer he diil select, or that any relation to goods such that if and let Drake & Co. know in good time the goods perish on the voyage the (ler- on what steamer they were to ship them, son will lose the wlnde, and if they arrive Drake & Co.'s part of the contract begins; safe will have all or iiart of the goods, they are bound to have there at Ham- will not give an interest which may be burg, and to ship free on hoard that ship, aptly descrilied as goods. l L'OO tons of sugar answering in all respects In the present case there has been a the descriiition in the contract. I'rovlded good deal of ext raucous matter brought the sugar of the proper quantity and de- iiito the diKciissioii. I tliiiik if it had been scription was put on board that ship it remembered that the three contracts, viz. was no concern of Beloe's where or how that of the 7th of .January, between Drake Drake & Co. got it. So soon as they had and lU'loe, that of the same date between done that they had fullill''(l their part of Ueloe and the plaintiff, and the contract the contract so far liut the price was to of tlie I'JtIi of .January between Drake and bo jwiid in London in exchange for bill the plaintiff, were all in writing; an<I it of holing. .\nd no doubt from that it Is had been seen that they are so expresseil to be implieil that Drake & Co. were to that, as In ni.v ojiinion, there is no doubt take a bill or hills of lading for the sugar as to their construction, the objection they put on board and, were in due time would have been much more clearly to be ready and willing to give the bills of raised, not I think for its benelit. lading in London in exchange for the price. Drake iSc Co, of London, who were largo If Drake & Co. did this Heloe was bound importers of beet sugar manufactured in to pay the price. • Jerniany, m-ido a contract with lieloe of Now Hcloe had on the same day, hut liristol, who sonietiiues, as we liiid, whetlicr bi'fore or iifter he had made the bought to sell again. Tliere are, I gather cimtract witli Drake & Co. does not a|i- from a let ter of the ..".th of .January from pear, niaile a contract with the plaintiff to Ilcrmaiiu of llaiiibiirgto Drake, trading supply liim with L'dU tons ofsugaratl^d lines of steiiiiicrs running twice a month a cwt. higher price tlian tluit at whi(di from llamhurg to Liver|)ool, Leith, and Drake hinl ag.-ced to su|iply Iteloe. .\8 Bristol, and it maybe other jilaces; but the plaintiff knew where he wauled the to J.,on(lon, and it may be other places, if sugar tliis was to be sliiiiped "free on a steamer is wanted from Hamburg it board .\. 1 steamer to Bristol." The do- must be chartered, but of course it may scription of the sugar was the same hh be diartered. that in the contract between Drake and And now by the contract Drake & Co. Beloe except tluit it was sai^l "average bound themselves to Beloe to sup|ily U'lM) analysis not to exceed 00." The solicitor- tons of (lerinan lieet sugar of tliecr<ip of general said that if tlie average analysis ISSO-sl. It was not only to beOerinan beet i-xceeded ltd. lieloe was bound to take It HUgarlMit it was toanalyse between S.'iand from Driike. but not to pay the excess In 9".' "l)ut anything above !12 not to be pnid price; lint tlie plaintiff was not bound to for;" so that it would seem that sugiir take this more valuable lot at all; but below s.'i would not fuUil the description would be in his right If he rejected It. In the contract, but sugar above 9'-' might What would have ln'cn the case if that be given in fiillilmeiit of the contract, point was raised by the facts, we iietd 460 INGLTS V. STOCK. not inquire, though I have a strong sus- picion that a jury would not much fa- vour it. But on looking at the documents it ap- pears that not only were The averages un- der 91), but that by no possible slinffling of the oDOO bags actually put (Jii board the <:ity of Dublin could 2000 bags have been selected the average ot which would ex- ceed 90. The plaintiff did not luiow, and liad no reason to inquire, where Beloe was to get the sugar with which he was to supply him. The plaintiff savv Edward Stock (his nephew as it happens, l)ut that is immaterial), the agent for the Bristol line of steamers, and according to the evi- dence of both the Stocks, the plaintiff's directions were to secure room for the iOO tons in the steamer, which would leave at the end of the month; and on the 11th of January Edward Stock & Son, the Bristol agents for the steamers, wrote to Nisstle & Gunther the following letter: — "There are 200 tons of sugar sold for ship- ment the second half of this month, hut we have not yet ascertained the names of the shippers. There are also further par- cels in treaty," and so f<jrth. This, it must be noticed, was belore the contract between Drake and the plaintiff on the 12th of January, and how there canbe any doubt raised "that the plaintiff did his best as far as regards securing room on that steamer to take on iKjard the sugar which Beloe was to ship or cause to be shipped, I am unable to conceive. He had to advise Beloe of this, and it is sworn that he did so, and I see no possible rea- son for doubting that he did. The position of things then as between Beloe and the plaintiff was this, —The plaintiff had done his part, and unless Beloe, by himself or Drake, or any one else, put the proper quantity of sugar of the proper description on hoard the steamer the plaintiff had a cause of action against Beloe. If Beloedid i)ut the projier quantity on board he was entitled to re- cover tlie price in exchange for l)ill8 of lading, and it was no answer that the goods had perished at sea before the bill of lading was offered. He did send an in- voice specifi'ing themarks and numbers of 2000 bags, undoubtedly put on board, which Beloe alleged had been shipi)ed on plaintiff's account. If these were proper bills of lading for the sugar shipped it is diflicult to imagine a clearer case of a loss of sugar. Jt is said the bills of lading which he offered to give in exchange for tlie cash were not the bills of lading of goods shipped for him on the City of Dublin, and therefore he was not bound to pay in exchange for such bills of lading; instead of being liable to pay Beloe the price he had an action against him for breach of contract in not shipping as he ought to have done. This requires us to notice some more of the evi- dence. When on the 12th of January the plaintiff had made hiscontract with Drake he at once proceeded to Edward Stock & Sons, who on that very day advised Niss- tle & Co. that the 200 tons were coming, so that plaintiff had done his part in se- curing room for that 200 tons, and if Drake & Co. have not shipped them, he has a cause of action against them. They did not ship the whole 200 tons, hut only i;i i tons— ten tons or 100 bags meant to be shipped having been delayed — for that Drake & Co. sent an invoice and received payment. And as I said about Beloe, if Drake &("o. have offered the plaintiff bills of lading for goods which were not shipi)ed for him he has a cause of action against Orake & Co., and was not bounil to pjiy. But if Drake & Co. have fultilled their con- tract and the bills of lading are those referring to the 1900 bags, then the subse- quent lossby perils of the sea is noanswer. The plaintiff must pay the price, and has lost it, and that is as clear a loss as can well be. When Drake& Co., or rathertheir agents at Hamburg, were shipping thesugar and held the mate's notes, it was no floubt their busin^•ss to see that a proper hill of lading for each separate shipment was signed; and if at any time before the bills of lading left Hamburg they had been allocated to each shipment, no objection, not even an idle one, could have been raised. But instead of doing so the whole of the bills were sent in a lump to London that they might be allocated there. This was perfectly bona fide. Drake & Co. had no interest in favoui'ing one more than the other, and were to be paid exactly the same price per bag, whether they allocat- ed it to the one or to the other. And if they had done this before the loss, I do not see%vhat dam age either Reloeor Stock could have sustained by the allocation be- ing made in London instead of in Ham- burg. Now, I have been quite unable to see, even if the i)lnintiff had sustained some damage, that it could have been damage going to the whole root of the matter, so as to form a defence for the plaintiff against an action by either Drake & Co. or Beloe for not paying tor the goods in ex- change for the bills of lading; that is, sup- posing the plaintiff (because prices had greatly fallen, or from any other un- worthy motive) had wished to get off. And if it were so, I think the case would fall entirely within what Lord Hatherley, in Anderson v. Morice,* says is the princi- ple of Sparkes v. Marshall. ^ The insurers have no right tf) call upon the insured to exercise a possible option to he released from their contract. But the loss having happened before the actual allocation, the plaintiff's loss, when it happened, was a loss not of 200 tons, but of 200 tons par- cel of 890 tons, so that the loss, though ex- actly the same, is said not to be the same in description, because it is the loss of an undivided i)ortion of the goods, instead of being the loss of the goods themselves. I am quite unable myself to perceive why that should make the slightest diffei'ence. In the merits, certainly it does not. 1 am quite unable to perceive why an undivided interest in a parcel of goods on board a ship may not be described as an interest ' 1 Apn. Cns. 73.5. ' 2 Bing X. C. 7G1. JNGI-IS V. STOCK. 401 in RoorlBjiiHt nsmuch oh if it wore an inter- C'Ht In every portion of the koocIh. N(» ihi- tliority WHS elteil in order to shew tlint it WiiH not HO, and I oais wee no reason for it. Tiien, tiiat lieinj; no, of e<)nrHe it follows lliat tlieie is no defence at all, and this is my opiniun. 'I'IdH, liowever, is not the ground on wldcl) the court of appeal decided. Tiicy thouKlit tliat there was Hhewn to lieacns- (oiii (»r eonrse of dealing wliieh rendired Drake i*i C'o.'s conduct a literal fnllilnient of the contract. I Mm not entislied that on the evidence such a custuui or course of trade is «hewn. I do not nny It Ih not, Imt I would at least wish to hear the re Hpon<1ent's counsel lieftireclecidinK on that Kround. On the other, uh 1 liuve nlrcudy intimated, I have no diiuht at all. L<ird WAT.SON: My lords,! concur lu the judKuientH delivered, and hove noth- ing to add. Lord FITZtiERALD: My lonls. I olso concur. Order appealed from alltrnied, and ap ' peal distnlHsed u ith co8tt). TROX CLIFF CO. c. HUIIL. 4C3 IRON CLIFF CO. V. BUIIL et al. (3 N. W. Uep. 209. 42 Mich. 80.) Suprome Court of Michigan. Oct. 30, 1S70. Error to Marquette. \V. P. Ileuly, ti)r plaintiff in error. Dan. H. Hall, lor defendants in error. (JHAVES, J. In 1S71 defendants in crroi'. with one JanieH Westernian, wer^ pur.suiii;' the furnafc hurtlneHH at Sliaron, inthcKtiite of I'cnii.si'lvania, aw copart- nerH, under the luiinc of the WcKtcrnian Iron CoMipany, and the plain! iffs in error were a mining corporation underthe laws of Michif-an, and enKaued in mining iron ore at NeRaiinee, in our northern peninsula. Tlie eor|)oration were from time to time Kliip|)in;;: t heir ore to Krie, I'ennKylvania. and th" Westernian company were in the way of receiving ore from that point, by rail, foi- their liusiness. .\t this time Hlioden & Co., of Cleveland, Ohio, wern airentsfor the corporation in contractiii}; sales of their ore, and on the lirHt day of August of that year they eon- traeteil on lieh;!lf of the (,'liff compau.y with tli(! Wcsterman company for the Hale of a (jnaiitity of ore. The agreement was written, and In these tei'ms: ".V^ieement between the Iron Cliffs Iron Company, of Nesaunee. Lalie Superior, by its ajj;ents, Hliodes & Co., of Cleveland, Ohio, and Westernian Iron Co., of Sharon, I'.i, made at Cleveland, Ohio, August I, I'vTl : Witnessetli, that tin; said Iron Clilfs Iron Comi)any,for the consider- .-itions hereinafter named, hercljy ajrree to sell to the H.ild U'csterman Iron Co. two tliDUsand uross tons of I'.arnuni iron ore, of itSHtandanl qualily, deliverable at Krie, I'a., during the season of IsTl, afloat at the docks of the Krie & Pitts. 1;. U. Co., and as near .'lOD tons per month as prac- ticalile, but with the ajjcreement that if ore is lost by disasters of navi;i;ition too lute to be replaced, said Iron Cliffs Iron Com- pany shall not be held accountable for non-delivery thereby occasioneil. Said ore is to be paid for by the said Wester- nian Iron Co. at the rate of s.ao dollars per ton, in e(|ual iiayments of .If each. payable on the first days of Aujiust, Sep- tember, Octot)er and Nc^vember next, re- spectively, each of which payments is to consist of thenoteof said Wesrerman Iron Company for WM) per ton dollars at four months, payable ut Cleveland, Oliio, ami L'..'!(> dollars in cash, all in funds par at Cleveland. Said Westernian Iron Co., for the above-named considerations, hereby BRree to bu.v, receive and pay for said ore us above mentioned." The Westerman company paid in full for the amount of orecontracted for, but some 3110 tons out of the 2,1)01) airreed for failed to reach the works of the Westerman com- pany at Sharon, and Westernian having retired ami assigned his interest to defend- ants in error, they proceeded, after n lapse of nearly si.'i years, to bring this action on account of the minin); ore. They were allowed to recover, and the corporation has brou;xl''t error. The pointa agitated are numerous, but the I case depends on one or two main codrIc]- I crntions. I The plaintlffh In error nctnally Hhlppcd ' to the railroaci dock at Idle n conHldern- bly lar;^er ((uanlity than was buri:ulned to till' Wi'sterman coinpanv. and tliey In- tended 2,(100 tons o( it for them. .\s no tjiie appc'iied to accept It nflont it was landed mi the dock in charge of the railroad ((iinpaiiy for the bi n.llt of the liuyers. Tins was the only course fairly practicable, and it was the coursi" the Westernian company expectPil \voul<I he taken, and the course which received their subsei|u>'nt sanction. The position of de- lendanls in error that the ore was to Ite- conie the lunperly of the Westernian com- pany only as it was delivered to them nt .Sharon, and that durini; its rlcposit on the dock in a laruer [lile It remained the property of plainliffs in error, cannot l>c s.istaiiied. I'.otli parties understood that it should be left anil was left for the rail- road company to hold and carry for the buyers. The circumstnncethat the lulecontaincd more than was barg.iined t(j the Wester- nian company is of no importance under the facts in tliis record. It was all of the same kiinl and (luality, and there was notliing to do except to taki- away from the c<>miiion mass the reciuired ipiantlty, and tliecase iscertaiii that it was fiill.v con- templated that the railrcad company should attiMicl to that business. Khodea & Co. notitied the agent of the railroad company that 2.iiOO tons of the ore be- longed to the Westr-rman com|ianj, :ind ! he forwarded over I, (iOO tons which they received , and in the course of the fall, and i whilst he was sending the ore forward, they interposed and re(|uired him to cease for awhile. The explanation given is that 1 they lacked room, and that the riiilroail company would charge them for the use of the cars if left nnloailed at Shiiron. Here was a clear exercise of dominion over the ore, and an act inconsistent with the notion that it was not sutiject to their contr(d, jind that delivery was to be made l)V plaintiffs in error at Snaron. According to the evidence the failure of tl-o Westernian comiiany to receive the missing ore at Sharon was owing to a miscarriage liy the railroad company, and it aiipears tliat sor)n after discovery of the loss they sued the railroad company to recover for the ore as their iiroperty. This was an uneciuivocal assertion of their understanding that the ore was umler thelrcontrol as their property when piled upon the dock and ready for removal to [Sharon by the railroad company, and by I them known to be sutiject thereto. ThecliTUit judgeallowed thejury to llnd, however, that of the ore in that situation the portion whidi was taken by the rail- road coinpanv and liy them miscarried was not at the risk of the Westernian conipanv, I'r their proiierty, but was still the propertv of the Cliff coriioratlon. In the hands of the railroad company as the agents of the Cliff corporation. We think this was contrary to uiniuestioiiable facts. , . _, The refusal to permit certain adjudiicd 464 IRON CLIFF CO. IK nVUh. cases in Pennsylvania to be read to the jury from tlie books of reports was not error. Tbelawof Pennsylvania was not in dispute. The claim was that there ex- isted at Erie a particular custom or usacre in rcRard to the mode of handling and de- liverins ore, and this, if true, was a local fact, not necessarily stable, but subject to bechangeilas experience and altered cir- cumstances might dictate, and it was not a matter to be proved by law books. Much, however, of the way in wliicli tilings were done there, and all of im- portance, was matter of necessity and of understanding rather than of custom. Further discussion does not appear neces- sary. The judgment must be reversed, with costs, and a new trial granted. The other justices concurred. I .JACKSON c. ITPI'EK. 407 JAfKSO.N et al. v. Tri'I'HU .-t al. (5 N. E. Rep. 05, 101 N. Y. 515.) Court of Appeals of New York. March 2, ISSO. ThiK action was hroiicht to recover daiiiaReH for an alle^fd breach of warran- ty in a contract of Bale. The facts are stated in the cawe an follows: Thedefend- nntH, lit West Tro.\ , N. Y., on the 28th day of Fehrnnry, ISKd, orally sold to the lilaintiffs about ei^lit hundred tons o( ice, which was licinii cut at Hound pond, near <jlenH Kails, N. Y., and agreed to place the same in a Iioiihc which they warranted Hhould be a>;ood, HubMtantial house, which Hhould stand a year. Thei)laintiffs orally atrrecd to ])ay for said ice tiiesum of eighty cents a ton. No ineinoranduni was made in wiitiuK of this contract, and no money was paid at that time. Some time after this, said ice was received and accepted by the plaintiffs in said house built by the licfcndants. .\fter this, about -May 1, IssO, the plaintiffs f.jave the defendants ¥lil5. in full for said ice, by creditinK said amount on an iccount Wight had against Tupper. \Ylien said credit was jiiven, tiothint; was said liy either party about said contract or its "terms. About May 10, Isso, the house fell. It was not jtroperly construct- ed ; It was neither j;oo(l nor substantial ; its deffcts were latent. 'I'hey were not dis- covered b.v the plaintiffs before said house fell, and coiild not have l)een discovered by an inspection of the building liefore it fell. Its defects were known to the defend- ants. The plaintiffs suffered daniaires to the amount of f4.l.'JI. The comiilaint was ordered amended to deniund as dam- fl^cs the amount proved. The defendants on the trial introduced no evidence. At the close of the plaintiffs' case the defend ants' counsel moved for a nonsuit. N. P. Ilinman, for appellants. G. B. WelliiiBton, for respondents. AXDIJEW.S, ,1. It Is c<inceded that the oral contract of February L'S, lisso, for the sale and storage of the ice, was, when made, void, under tliestatuteof frauils. It must also be conceded, under the decisions Id this state, that it was not valiilated by the payment made in May, ISso. By our statute, payment operates to take an oral contract for tbe sale of goods for the price of f.')0 or more, out of tlie statute. only when It Is made at the time of the contract. 2 Rev. St. 130, § i. The deci- sions have construed this iirovlslon of the statiit4- with great strictness. Hunter v. \Vetsell,57 N, Y 375, s4 N. Y. :A'.): AIIIs v. Read, 45 N. Y. 14J. It is in substance held that payment subsei|uently made, al- thouKh conforminic to theoral agreement, is insufficient of itself to make the prior oral aKreetjient valid. TIhii' must be enough, in arldition to the act of pay ment, to show that the terms of the prior oral contract were then in the miii<ls of the parties, ami were reallirmeil by them, and this being shon-n a cause of action arises, not on the prior oral contract, but on the new contract made at the time of the payment. The plaintiffs did not bring their case within this principle. There was no restatement of the terms (jf the prior oral agreement when the payment of May 1, iNsi). was made, and no exprexs re<(>gnition tlx-reof. nor was the payment maile for the avoweil purpose of binding the prior bargain. It is expressly found that nothing was said at the time by either partj" about the contract of Febru- ary L's, INso, or its terms. But a prior void contract may be valjclated by a sub- sequent receipt and acceptance by the buyer, pursuant thereto, of the goods, or part of them, which are the subject of the contract. 2 Rev. SI. l:Mi, § :{; .McKnlght V. Dunlop, 5 N. \. 5:17. Where this has been clone, the cnuse of action arises on the original oral agreement, authenticated by the act of acceptance. Thi're is no stat- iitediflicidty, as in the caseof a snbse()uent I)n.vment, because the statute ib^es not, as in that case, re<piire that the accept- ance must be at the time of the making of the oral agreement. It was found in this case that, after the oral agreement of February I's, IS-HI, was maile, "the said Ice was nreived ami ac- cepted by the plaintiffs." It is impossible to construe the finding except as referrinR to the Ice which was the subject of the oral agreement of that date, and as n'fer- ring to an acceptance thereunder. This relieved the contract from the ban of the statute. No question is presented as to the right of the plaintiffs to the judgmentrecovered, assuming that the contract of February 28, IJSSO, was validated. The judgiuent should be allirmed. All concur. JAMES 0. PATTKX. 469 JAMES T. PATTEN. (6 N. Y. 9.) Court of Appeals of New York. 18.51. This action whh upon a contract, i)f wiilcli a nienidrandura wan given, in ttie followiut; wordK: ".Vlbuny, .Marcli 12, 1S47. Mr. TlioraaH .laincH, bon^lit iif M. & S. Patten, for tlie relief committee, three tliouKatid biiHlieJH yellow corn (fifty-si.v pounds per l)ushel), to be delivered at the opening of the Hud- son river navijiation. at oar store in Al- lianv, at eighty -one centH per husliel, $2,- i:iO. " Tills iiieniorandnm was admitted to l)e in the hnndwritinff of one of the defend- ants. The plaintiff tendered the price and ileniamled the corn, whicli the defendants rehiseil. The price had risen from eighty- one to ninety-seven cents per bushel. The <li'fendant moved for a nonsuit on the fol- low ing grounds: First, that thecontract was nol subscribed by them; and second, tliat lh(! contract was not made with the plaintiff, but with the relief comniitlee. The motion was denied, and the defend- ants excepted. The defendants then offered to prove that the plaintiff |)ur- chased a large (juantity of corn as agent of a committee, known as the Irish relief committee, and that tin* <lerendant8, on tlse opening of the navigation in lS-17, tendered to said conimittee the three thousand bushels of corn mentioned in the above memorandum or bill of Kal(^ The court o.Ncluded this evidence, and the de- fendants excepted. Judgment wasdirect- eil In favor of the plaintiff for l$.")41.4.'). The case was tried by the court without a jury. The judgment was alhrmed at the general term of the supreme court, and the defendants aiipeaied. 0. -M. .lenkins, for appellants. S. H. Hammond, for resiMindents. FAKilO, J. The principal question to be decided in tliis case is wliuther the memo- randum of the contract entered into be- tween the parties was a valid note or memorandum of such contract within the Btatute of frauds. The obj"ction made to It is that it was not subscribed by the de- fendants, the p.'irties to be charged there- : by. The section of the chapter of frauds contained in the Hevised Statutes relative to contracts for the sale of goods and chattels, (Icrlarcs that every contract for the sale of goods, etc., for the price of ?.")0, 1 or more, shall be void; unless, I, a notej or memoranduin of such contract be niadei In wiitiiig, anil be subscril ed by tlie par- ties to be ''harged thereby; or 2, unless the buyer shall accept and receive part of! such goiids, etc.; or. :!, unless the buyer' shall at the time pay some part of the pur- j chase-money. (2 H. S. l-it!, § :i.) The old I Btatute of frauds, passed February 2i>, ' 17>*7, as well as the IJritish statute of 2*.) ; Charles II, chap. ."!, were substantially in I the same words, with Hie exception of' the! word "subscrihed." (1 Uev. ],. of ISKi, p. 79, § lij; 1 Chit, on Cont. .'is^.l Those statutes required thenotcor memorandum of the contract to be signed l)y the parties Instead of being subscribed by them. Un- der the juillcial construction of our old statute and of the IJritish statute, it was not necessary to the voiidlty of the con- tract, or of the note or memnrandum thereof, that it should be signed under- neath or at the end. It was held t<» be a compliance with the statute. If the name of till! party tobe charged aiipeared in any part of the instrument, either at tlie top, in the niiildle, or at the bottom, provided it was placeil there by the party liinis'.lf, or by his authority, and was applicable to the whole substance of thi- writing. (Cln- son v. Bailey, 14 Johns. 4sr>; .Merrilt r. Cl«- son, 12 id. lU(i, 1(17.) Thus tin- law stood at the time of the revision. The revisers, in their notes t<> the SHi section of the 1st title of the chapter of frauds as reported by them, say it had been hehl, under the former statute of frauds, " that the literal act of signing is not necessary, althougb the statute speaks of 'signinn.' After set- ting out with this principle, the courts found themselves perfectly at large ns to what should be considered a sigiiin)2. To prevent dilticulties of this sort hereafter, the revisers propose to require that these agreements shall be subscribed." The re- visers, at the end of the :5il section of the 2d title, which relates to contracts for the sale of goods, and in which they also substituteil the word "subscribed " for the word "signed." refer to their notes to the preceding sections. The note to the Nth section of the 1st title is a plain e.xpres- sion of their understanding of the mean- ing of the word "subscribed;" and a ch'sr manifestation of their intention in recom- mending its substitution for the word "signed," It is perfectly clear from the note of Hie revisers, that they Inteinled by the word "subscribed," to reipiire the manual signing of the agreement at the end thereof, by the party to be charged. When the members of the legislature passed upon the sections of the chapter of frauils as rejiorted by the revisers, they liad their notes before them, detlning the meaning of the word "subscribed." and in substance declaring that the adi^ption of that word would require an actual, man- ual, subscription nt the end of the note or memoranduin of the contract. The legls- latureuniler these circumstances retainbiK the word "suliscribed, "as (iroposed by the revisers, must be understood to have done so, for the purpose of requiring an actual signing in writing of the agreement or memorandum thereof, underneath the same. We cannot now so construe these sections of tlie chapter of frauds, as to dispense with the necessity of an actual subscription, without disregarding tho plainly declared will of the legislature. It is tiie olllce of the courts to administer the law as the legisbiture has (b-clareU it; not to alter the la w by means of con- struction. In order to remedy an evil or In- convenience resulting from a fair Inter- pretation of the law. The etymology and delinition of the word subscribe, as given by lexicographers, show that its meanins w-lieii a|iplied to the signature to an In- strument In writing, ns understood by men of letters, is tlie signature or wrltlnji of one's name lieneath or at the end of 'he Instrument. This i.s also its iiopiilnr slg- 470 JAMES V. PATTEN. nification. I am aware that the popular meaning of the word "signed," when ap- plied to a contract or other instrument, is generally writing one's name at the bottom; and tliat tliis is sometimes its literar.v meaning. lUit this is not so em- phatically and universally its meaning, as it is the meaning of the word "subscril)ed. " The derivation of that word from the Lat- in word subscribo, shows that literally Hud according to its derivation its mean- ing is " to write under." or "underneatli." But this is not the primary or derivative meaning of the vert> "to sign." Such meaning is, to write one's name on paper or to show or declare assent or attesta- tion b.v some sign or mark. I concede we are not always in the con- struction of a statute to be controlled b.v the literary signification of words, or their primar.v or derivative sense; and that w here they have not by long habitual con- struction received a peculiar or technical meaning, they are t(> receive their natural and ordinary signification. (Wain v. VVarlters, 5 East. 10.) In all cases, tlie intention of the law- maker in using the words is to be sought after, and when that is ascertained, it must be followed with reason and discre- tion in the construction of the statute. Wherever any words are obscure or doubtful, the intention of the legislature must be resorted to, in order to find their meaning. ( Bac. .\br., Stat. 1, 5.) In the revision of the statute of frauds, no motive can be assigned for rejecting a word, the legal meaning of wliich had been established by a long lineof adjndications, and substituting another, which had nev- er received a judicial interpretation, but which had a known limited meaning; un- less it was to change the law or the con- struction of the statute, so as to require an actual signing of the name of the par- ty at the end of the contract or of the memorandum thereof, although in com- mon parlance the word "signed" in refer- ence to a contract or other instrument in writing is generall.v understood as a writ- ing of the name at the bottom ; yet now, neither in its ordinary orlegal use is itcon- fined to that office; but the word "sub- scribed, " in its habitual use, and accord- ing to both its popular and literary sig- nification, is limited to a signature at the end of a printed or written instrument. It has a secondary meaning, but that is purely metaphorical, denoting assent, without reference to any mode of express- ing it by actual writing. It seems to me, therefore, that the legislature, by the sub- stitution of the word "subscribed " for the word "signed," intended a change in sub- stance of the statute of frauds, and to at- tain a greater degree of certainty in con- tracts, b.v requiring an authentication, by an actual subscription of the contract or of the memorandum thereof, by the party to be charged or liis lawful agent. This alteration is more than a verbal one, or a mere change of phraseology. It is an al- teration in substance; the rejection of a word, which by u'.eaiis of judicial inter- pretation, had an extensive legal signifi- cation; and the adoption of anotherin its place niiicli had iu its (lopular and litera- ry use, and according to the general pop- ular understanding, a known limited meaning. According to the familiar rules of construction, this substituted woi'd must receive its natural and ordinary sig- nification. (.5 East, 17; Bac. Abr., Stat. 1, 2.) And if that is accorded to it, the con- tract or memorandum must now be au- thenticated by a manual signature at the end. In neither a popular, literary or le- gal sense, are the wonls "signed" and "subscribed" synonymous, or of equiva- lent meaning. In the case of Merritt v. Clason (12 .lolins. 102), it was conceded by the eminent counsel who argued that case, that there was a plain distinction between signing and subscribing. Mr. Wells sa.vs "signing does not ex vi termini mean that the name of the party should be subscribed." Mr. D. B. Ogden replies, "I do not sa.v that the agreement must be subscribed, but that it must be signed in some part of the contract." I do not think that all the foregoing ar- guments can be overthi'own by the mere circuin>^tance that the legislature in the chapter in relation to wills, from abundant and unnecessar.v caution, added to the provision requiring the will to he suh- scribel by tlie testator, the words, "at the end of the will." The chapter in relation to wills was acted upon previous to the enactment of the chapter in relation to fraudulent conve.vances and contracts. When the latter chapter was examined and passed, the legislature had the uotcs of the revisers before them which ex- plained the distinction between the words signed and subscribed ; and. I think, we must presume that the word "subscribed" was adopted in reference to its meaning as defined by the revisers. This question was expressl.v determined by the court of errors iu Davis v. Shields (20 Wend. 311), and is, therefore, no long- er open for debate. In that case it was elaborately and learnedl.v discussed by the late chancellor and by Senator Ver- planck, and both of them came to (hecon- clusion that the word "subscrilied," as i used in the statute of frauds, requires an actual signing in writing of the name ol I the i)arty who is to make a sale of an in- ' terest in lands or to be charged by a con- tract for the sale of goods, at the end of the contract or of the memorandum there- of. The ground on which the binding force of this <lecision is sought to be evad- ed or overthrown is, in my judgment, un- sound. The argument is, that inasmuch j as ('hancellor Walworth and Senator Ver- planck examined two questions in that cause: 1. Whether as the memorandum of the broker, varied from the contract j made by the parties, there was a contract 1 liinding on either party; and 2. Whether I the word "subscribed" retpiired an actu- al signing of the name of the party tcj he charged at the end of the contract or memorandum; and as all the other mem- bers of the court with one exception voted silently with them to reverse thejudgment I of the supreme court, that it is impossible to discover on which of the two questicms a majorit.v of the court voted for such re- versal; although Chancellor Walworth ! and Senator Verplanck agreed that both i JAMES o. PATTEN. 471 of the questionB were erroneously decided by the Hupreme court. If this arKumeiit is to prevuil, it will un- settle a great portion of our law, which, by universal c.msent.haH lieen retjarded as definitely e.stalilished. If in a caHe like that of Davis V. Shields.it is held that no point of law was decided, then no case id authority for any purpose which is decided by a court consistint; of more than one judge, where one inemtjer of the court only delivers a written opinion, disposing of several questions il is tinctly arising in tile cause, the decision of each of which is fatal to the recovery or defense, and the other memhers of the court concur without re- spectively declaring their individual views in regard to any of tlie questions discussed in such opinion. Such a doctrine is op- posed to the general understanding of the bar, and to the uniform practice of the courts in recognizing such cases as binding authority as to all the questions which legitimately arose in the cause, and were | passed upon l)y the judge who delivered the written opinion. Where a c(jurt con- sists of several judges two or more of wlioai deliver opinions, and all arrive at the same general result in the cause, but for different reasons, and the residue of the judges give a silent vote of concurrence with tliera, in a decision for the one par- ty or the other; there, as it does not ap- pear that a majority of the court agreed as to any one question in particular as the ground of tlie decision, thecasecannot be considered as authority on any of the questions which arose in the cause. But where several questions arise in the cause, and the opinions delivered agree in regard to all of them, and the other meml)ers of the court give a silent vote of concurrence, there all the questions will be deemed to have been determined by a majority of the court, and the case will be reganled and respected as an authoritative adjudica- tion <jf ull such questions. It has been In-ld by several of the coortH of this state that the case of Davis v. Shields (20 Wend. 3J1), expressly deter- mined that the word "Buliscribed " In the chapter of the Revised Statutesln relation to fraudulent conveyances and contriicts, called for an actual subscription of the name of the party at the end of the con- tract. Chancellor W'alworth so held In Coles v. Bowne (10 I'alge. ."k!?), and in Champlin v. Parish (11 id. 410, 411), and a like decision was made by the supreme court for the fourth district in Viele v. Osgood (8 Barb. 134). As a member of the senate, I took a part In the decision of the case of Davis v. Shields, and, at the time that cause was decided, I had no doubt, nor have I any now, that a major- ity of the court, in voting for a reversal of the judgment of the supreme court, con- curred with Chancellor Walworth and Senator Verplanck, as to both of the ques- tions discussed in their opinions. I dis- sented from the opinion of the majority of the court on the ground that the legisla- ture, by substituting the word "sul)- scribed" for the word "signed," useil In the former statute of frauils, did not in- tend to change the la w. From my pres- ent examination of this question. 1 am satisfied that I was mistaken In the opin- ion 1 then expressed. I am of opinion thatthe judgment of the supreme court should be reversed and a new trial granted. (lARDINER, .T., also deliverid an opin- ion in favor of reversing the judgment. .Tudgment reversed. JENXEFt V. SMITH. 473 JENNER V. SMITH. (L. R. 4 C. P. 270.) Common Pleas. April 30, 1869. Action for koucIh bar;>:iiinpil imd Hold and goods sold nnd delivered. Fledw: Never inilelited, pu.vnieiit, and payment ofSH. 2d. into c(»urf. lU'ijlicatioii, taking is.Hiie, and daniageH nltra. TliecauHe waw trieil before Brett, J., at the Kittingn at WestmiiiHter after lai^t Michaelniii.s term. The facts were an fol- lows: On the Nth of C>cti)l)er. lsc,7, the plaintiff, who is a liop-nierchant in Lon- don, in'.'t the defendant, a maltster of De- vizes, at We.vhill Fair, Hants. The de- fendant wished to bny of the plaintiff four pocl<ets of Carpenter's Siisse.v hoi)s which, the plaintiff had there; Imt, as the i»laln- tiff had already sold two of them, he pro- posed to sell the defendant in lieu of tlieni two pockets of Thorpe's, of which he showed him a sample, offering to let the defendant have the two pockets of Car- penter's at £9 [ler c\\ t. (the |)rice of that day's fair lieiiig £'.> Ds.), if he would take two pockets of Thorpe's at £7 l.")s. per cwt. The iilaintiff at the same time or shortly jifter informed the defendant that the last-MientiiMied two pockets were ly- ing at Prid iV: Sou's warehouse, Kentish ISnildings, .Sontluvark, aijil agreed that he should have them upon the same terms as if they had been in linlk at the fair, that is, that lie should he at no e.xpense for wareliousiiig or carriage. The defendant consented to purchase tlie four pockets upon these terms, and took away with him the t%vo pockets of (Jarpeuter's, but reipiested that thetwopocketsof Thorpe's should not be sent until he wrote for them. The plaintiff had at this tinicthree pock- ets of Thorpe's hops at the warehouse of Prid & Son. On the 'Jlst of October, the plaintiff's son went to the warehonse,and insti'ucted the warehouseman to set apart two of the three pockets of Thorpe's for the defendant; and the warehouse- man thereupon placed on two of them, numbered respectively one and three, what is called a " wait order card," that is, a card upon which was written, "To wait orders." and the name of the ven- dee. No alteration, however, was made in the warehousebooks : ;ind the plaintiff, the original depositor, still remained lia- ble for the rent. On (he 4th of November, the plaintiff sent the defendant an invoice as follows, at the same time inclosing a draft for ac- ceptance: — Mr. S. .><mllh. nouKht olCtinrleB Jennen 2 pockets SnsHi'T Imps (CnrpiMiter, ISii7), No. 2 ... 1 cwt. 2 qrs. 2li Urn. 4 ... 1 cwt. 2 qrs. l;l lbs. Scwt.lqr. II 11)8. «i)X9 percwt. MO 2s. 8(1. } pockots Sussi'X hops (Thorpo, IS67), No.l . . . 1 cwt.2 qr«.271bs. 8 ... 1 i-wt ciqr. 21 lbs. 2 cwt . 3 qrs. 20 lbs. 6i f 713a. percw t. £22 13a. lod. I.VJ IGa. 8(1. The two Inst pockets of hops are I.vinff to your order. OntheSth of November the defendant wrote to the plaintiff as follows:— Sir,— 1 have returned your bill unsigned; but. as I have never received the two pockets of hops or heard any thing about them, 1 crjnrluded you had not thought of Keniling them, and have made an exchange for some malt, nnd shall not re(|uire them. As 1 will never sign a bill. I will pay, as was agreed, in February, the welghtof the two Carpenter's. The defendant subsequently pniil the price of the two jjockcts which he had re- ceived, all but a small balance which was covered by the payment into court. It was (jbjcctcd on the part of the de- fendant tliat, as to the two pockets of Thorpe's h(»ps, there was no contract binding within the statute of frauds, no delivery or acceptance, or part payment, and no evidence of goods bargained and sold. For the plaintiff it was insisted that the whole was one bargain, and consequently that there had been a part delivery and p.-irt payment, and that the properly In the wlnde four pockets passed by the con- tract. The learned judge ruled that It was one entire contraci, and that, therefore, there had been a part delivery so as to make n contract binding within the statute of frauds, that the plaintiff could not rely upon the [lart |iayment, liecause the ite- fendant, at the lime of making the pay- ment. re|)U(liated the bargain as to the two pockets in (|uestion; that, though there was a binding contract, the prop- erty did not pass thereby, inasmuch as the contract was to deliver two out of a larger numberof pockets of Thorpe's hops equal to sample, the [irice to be deter- mined according to the weight; and that there had been no siillicient appropriation afterwards to pass the property, because Prid & .Son never bound themselves to hold for the defendant instead of for the plaintiff. lie t!u'reiii)on nonsuited the Iilaintiff, reserving liim leave to move to enter a verdict for £'J2 Ills. lOd., the court to draw inferences of fact. Morgan Lloyd, in Hilary term last, ob- tained a rule nisi accordingly. H.T. Cole, (J. C, and Bromley showed cause. .Mor- gan Lloyd, in suiiport of the rule. KEATING, .1. I am of opinion that this rule should be discharged. The ac- tion is brought to recover the price of two pockets of hops as sold and ilelivereil and bargained and sold. It appears that the iiarties met in October, lsc.7, at Wey- liill Fair, and that it was orally agreed between them that the defendant should purchase of the plaintiff twi> pockets of Carpenter's Sussex Imps, which were then in the fair, and had l>een Inspecli'd liy the defendant, at £!• per cwt., and >ilso two pockets of Thorpe's hops, of which a sam- ple was shown, at £7 l.')s. per cwt. After the purchase had lieeii agreed on, the de- fendant was informed that thelatler were Iviiig in a warehouse in London, and he reiiiiesteil that I hey might be left therw until he sent word that he was ready to receive them. On the 4th of November the [)laintiff sent an invoice describing the 474 JENNER 0. SMITH. numbers, weight, and price of the four pockets, with an intimation that the two pockets of Thorpe's were l.ving at the wareliouse to the defendant's orders. The plaintiff had tliree jjockets of Thorpe's hops nt tlie warehouse; and lie had in tlie mean time gone to the wareliouse and directed the wareliouse keeper to put cer- tain marks upon two of them, to indicate that they were sold and were to wait the orders of the purchaser. No alteration, however, was made in the books of the warehouse-keeper; nor was any intima- tion of this appropriation of tlie two pockets Kiven to the defendant until the 4th of Novenilier, when the invoice was forwarded to liim. The defendant declined to accejjt the two pockets. At the trial various objections were urged. It was BHid, amongst other things, that there was no contract as to the two pockets of Thorpe's hops to hind the defendant with- in § 17 of the statute of frauds; that the contracts for the purchase of the two pock- ets oi Carpenter's hops and for the two pockets of Thorpe's were di.stinct con- tracts; and that, consequently, there had been no delivery or part-payment to take the case out of the statute. My brother Brett ruled that the contract was entire, and the olijection founded upon the statute of frauds was thus got rid of. Then came the question whether the count for goods sold and delivered or goods bargained and sold could be main- tained, the property in thegoods not hav- ing passed. Upon this my brother Brett noiisuited the plaintiff, but gave leave to move to enter a verdict for the jjlaintitf lor the price of the two pockets in dis- pute, reserving power to the court to draw such inferences as a jury might draw. The question before ns, therefore is, whether, ui)on the facts proved, we can see that the property in the hops passed to the defendant so as to make him liable in this action. The general rule of law was not contested on the part of the plaintiff, that, where an article (not spe- cific) is sold, but something remains to be d»)ne by the vendor before it is despatched to the vendee, no projierty passes by the contract of sale. It was contended on the part of the defendant that much re- mained to be done here before the prop- erty could pass, — that, the hops having lieen sold by samjile, they would require to be inspected, and to be weighed, in or- der to ascertain the price. On the other hand it was urged that, though that may be so as a general rule, Aldridge v. John- Koni and other cases show that, if it ap- pears from the contract that the vendee has made the vendor his agent for the purpose of weighing and doing all the other acts necessary to be done to pass the property, the property in the goods will pass so soon as those acts are done. It is, however, observalde that in Al- dridge V. .lohnson the bulk of the barley had been inspected and approved, and all that remained to he done was to sever and measure the portion to be appro- priated to the vendee: and that the ven- dor had filled a number of sacks which had been sent by the vendee, thereby measur- ing it. The barley which was to be ap- propriated to the fultilineiit of the con- tract was therefore severed from the bulk and measured with the assent of both parties. There could be no doubt that the property in the l)ailcy so dealt with passed. Mr. Lloyd sought to bring the present case within that l>y saying that a similar extensive auchorify was conferred by the defendant on the plaintiff in this case. I cannot draw any such inference from the facts proved here: on the con- trary, I think they negative it. I cannot suppose that the defendant meant to part witli tiie right of objecting to the corre- spondence of the hops with the sample, or of insisting on the weight being ascer- tained, before the pro|)erty passed. It is true, there was an intimation tothe ware- house-keeper that the two pockets num- bered one and three liad tieen sold to the i defendant; but no transfer was made in his books, and he still held them at the! charge and at the risk of the vendor. I think it is impossible for the court to) draw the inference that an authority! such as was given in Aldridge v. .Johnson* I was given here; and if no such authority ■ was given, the case is brought within the] multitude of authorities in which it haa •• been held that, where there is a sale of'| unascertained goods with reference to which something remains to be done by the vendor before delivery to the \endee, no property passes until that has been done. BRETT, .T. At the trial 1 proposed to nonsuit the plaintiff, on the ground that there was no evidence to go to the jury in supp(jrt of the count for goods l)argained and sold. It was not then suggested that | there was any authority from the defend- ant to the plaintiff to select the two pock- I ets for him. If it had l)een, I should not ' have nonsuited the plaintiff, but would have left that question to the jury. The-] question now is, not whether there was any evidence for the jury, but whether the court can infer from the facts proved, that the propert.v in the two pockets ofj Thorpe's passed. It is clear that no prop- erty passed by the contract itself. The | contract was for a sale bj' sample of unas- certained hops, the price depending on the , weight. Then comes the case put by my | brother Blackburn in the passage at p. 127, to which I referred in the course of the I argument. Here there was no previous I authoritj' given to the plaintiff to appro-] priate; and. if not, what evidence was there to show that the appropriation of | the two pockets in Prid & Son's ware- house was ever assented to by the defend- ant'? The defendant's assent might liave] been given in eitheroftwo ways, — by him- self, or by an authorized agent. I!y him- self, after the receipt of the letter contain-] ing the invoice; or by the warehouse- keepers, if there had been any evidence ofj agency or autliority in them to accept, ! and assent liy tliem to hold ihe hops fori I >7 K. & K. hsr); 26 I.. J. (Q. li.) iOfi. I '7 E. & li. !>»5: aO L. J. (Q. B.; 296. JEXXER V. SMITH 475 liitn. I tliink tlie di'fendant'H Iptter refuH- iiiK to (i''<'<'i)t till' ilrnft WHS Htroiig, if not cKiicliiHivp, to hIiow that there had heeii no such awHeTit l».v tlic defcrulaiit. And. nn to I'rid iV Son, the evidence failn on Itoth pointH. They never nj;i-eed to h<j|d tlie two poeketH on lielialf of tlio purehnHer ; and, if tliey (li<l, tlieie Ih no evidence of any autliority from liiin that they iniKlic do HO. Mr. I^loyd lia.s stronsly |)ut for- ward a point wliicli waH not made at tlie trial, viz., tlial tlieie wasevidence tlia t, l)y agreement between tlie parties, the pnr- cliawer }j;ave aiithoi-ity to the Heller to He- lect the two pocketH for him. If he did 80, he Kave u|) liin power to object to the weiKliInK anil to the koihIh not corre- MpondluK with tlie Nainiile; for he c«)iilil not tive huiIi anthority and renerve liiH ri^ht HO to ohjei't : and itiileeil It huH not been contendi'd that hi' nave up tliime ri^htH. That kcciiih to me to he conelu- Hive to Hhow that the ilelendant never Kave the plaintiff aiitlioilty to niiike the Ki'lection HO aH to hind him. t'lider the eirciiniHtanceH, therefore, it Ih inipoHHilde to Ha.v that the property panHcd ; conMe- qiiently the t>laintlff cannot recover oh for ^ooiIh harKained and Hold. Rule dlHciiargeU. \ JOHNSTON V. TRASK. 477 JOHNSTON V. TRASK et al. (22 N. E, Rep. 877, 116 N. Y. 136.) Court of Appeals of New York, Second Division. Oct. 8, 18S9. Appeal from a judgment of the general term of the su|iienie court in the third juili- cial department, entered on an order made January 2(i, lK8t), which allirnied a judg- ment in favor of plaintiff, entered upon a vpidict directed at circuit. This was an action for a breach of con- tract. Since January, 1882, the defend- ants have heen bankers and brokers, doing busini'ss as partners under a firm name. On the trial of the issues, the plaintiff testilied that on the 18th day of January, 1882, the nian.iging piirlner of the firm, at its place of business, orally agreed with the plaintiff to purchase for him, if they could be bought in the market, income mortgage bonds of the Ohio f'entral Uailroml iif the par value of 810,000, "and, (giving the language of said partner) any time you want to get rid of them, we will take them off of your hands al what they cost you." Later in the day, tlie defendants reported to the plaintilf that they had purchased the bonds for §4,800, and their commissions were §12.50; and there- upon the plaintitf paid .?1,000 towards the purchase price. The bonds were retained by the defendants as security for the sums due from the plaintiff to them until November 16, 1882, when the plaintiff paid the f idl pur- chase price for the bonds, commissions, and interest, and took them into his possession. The market price of the bonds declined until April 28, 1884, when they were selling for about 10 cents on a dollar. On this date the plaintiff tendered the bonds to the defendants, and demanded that tliey should pay him $4,- 812.50, which tliey refused to do; and .\pril 30, 1884, this action was brought, on contract, to recover that sum. The defendants did not contradict the plaintilf's evidence, which was corroborated by three witnesses; but at the close of his case they moved for a nonsuit on the grounds— ^'i'/s?. That the oral contract was void for not comi)lyiiig with the follow- ing section of the statute of frauds: "Sec. 3. Kvery contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or (2) unless tlie buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or (3) unless the buyer shall, at the time, pay some part of the jiurchase money." Secuml. That the evidence was insullicient to sustain the con- clusion that the managing partner had au- thority to bind the firm by such a contract. Third. That the plaintiff did not tender the bonds, and demand the repayment of the price, within a reasonable time, and thereby lost his right of action. The motion was de- nied, and, the defendant not asking to have any question submitted to the jury, a verdict was directed in favor of the plaintiff for $4,800, with interest tbereon from April 28, 1884. Horace E. Smith, for appellants. John if. Carroll, for respondent. FoLLETT, C. J., (after stating the factt as above.) An oral contract by which a per- «on sells his own chattels or choses in action for more than S50, payment and delivery be- ing made, and agrees to take tliem back from, and rei)ay the purcha.se price to, the purchaser on demand, is an entire contract; and the promise to take back the proi)erty, and repay the purchase price, is not void by the third section of the statute of frauds. Wooster v. Sage, 67 N. Y. 07; Kit/patrick V. Woodruff, 90 N. Y. 5G1; White v. Knapp, 47 IJarh. .'549; Williams v. Burgess, 10 Adol. & K. 499; Fay v. Wheeler. 44 Vt. 292; Dick- inson v. Dickinson, 29 Conn. 600; 1 Uenj. Sales, (Corliin's Ed.) § 169. Executed con- tracts of sale, embracing a promise by ven- dors of chattels that in case they do not suit the purchaser, or do not possess certain speci- fied qualities, the vendor will repay to the vendee the purchivse price upon their return, have been frequently cunsidcred by the courts, (Towers v. IJanctti 1 Term K. 133; Thorn- ton v. W\vnn, 12 Wheat. 183;) but no case has been cited holding that such a promise on the part of a vendor is an independent contract. When an agent, by an oral con- tract, sells anil delivers the gootis of a dis- closed princi|ial, his personal oral warranty of quality is not a contract independent of the contract of sale, but is a part of it, and one consideration is sutlicient to support the sale and warranty. The oral contract of the defendants that they would purchase for the plaintiff in the market, at marki t rates, the bonds, for the usual compensation, and, in case he should thereafter become dissatislled with the bonds, that they would, on demand, take them off his hands at what they cost him, was a single contract. Under this con- tract, the bonds were purchaseil and held by the defendants until the purchiise price and their commissions were paid, and then they delivered the bonds to the plaintiff. The promise of the defendants that they would take the bonds off the plaintiffs li.-tnds at what they cost him, upon request, is not a contract for the sale of goods, chattels, or things in action, within the third section of the statute of frauds, but is a provision for the rescission of the entire contract, and Is valid. The learned counsel for the appellant, in support of his contention, cites Hagar v. King. 38 liarb. 200. In that case a firm was iiulebted to the plaintiffs in the action for woik performed in constructing pnrt of a railroad. The defendant, who was one of the firm, asked the plaintiffs to take from thi» railroad corporation its bonds in payment of the debt, orally agreeing with the plaintiffs. 478 JOHNSTON V. TRASK. for himself, that, if they would so take the bonds, he (not the firm) would, within 10 days, take the bonds from and pay to the plaintiffs the amount of tlie lirm's debt. The plaintiffs assented to the proposal. After- wards they accepted from the corporation its due-bill for the amount due them for their work, payable in the bonds of the corpora- tion, and gave a receipt for all of their de- mands for work done on the road. The plaintiffs then indorsed the due-bill, deliv- ered it to the corporation, and received the boi Is. Within 10 days the plaintiffs ten- dered the bonds to the defendant, and de- manded the amount for which they were taken in payment. It was held that the oral agreement embraced two contracts, — one to accept the bonds in payment of the debt, and another to purchase the bonds at a future day at a given price, — and that the latter contract was within the third section of the statute of frauds, and void. That case is easily distinguishable from the one at bar. The defendant in that case, as an individual, was not indebted to the plaintiffs, and his individual contract to take back the bonds was held to be distinct from the contract by which the firm's debt was paid in the manner described. Was the evidence sufficient to sustain the conclusion that the managing partner was authorized to make the contract in behalf of the firm? The defendants admitted, m their answer, that they were bankers and brokers, and that they entered into that part of the contract by which they agreed to purchase the bonds for the plaintiff, which, by their concession, was within the ordinary business of the firm. But they neither averred in their answer, nor gave evidence tending to show, that the promise to take back the bonds was beyond the scope of their business. There being no evidence which shows that the transaction was actually beyond the scope of the business of the firm, the ques- tion arises whether it was apparently beyond the scope of its business. 15ank v. Under- bill, 102 N. Y. 336, 7 N. E. Rep. 293. The case shows that, in addition to the business usually done by bankers and brokers, the de- fendants were accustomed to purchase and carry securities on margins for their custom- ers. The undisputed evidence is that the managing partner did make the promise up- on which the plaintiff recovered; thus assert- ing his authority to make it in the name and in behalf of the firm. No evidence is found in the record which would justify the court in holding, as a matter of law, that the promise upon which the action was brought was so far beyond the scope of the business of the firm that the plaintiff had no right to rely upon it. The evidence was sufficient to cast upon the defendants the burden of re- butting the presumption arising from the evidence and the pleadings, and, they having failed to do this, no error was committed in refusing to nonsuit on the ground that the managing partner had no authority to bind the firm by this contract. The third ground upon which a nonsuit was asked for is not supported by the evi- dence. The undisputed evidence is that the managing partner of the firm, on several oc- casions, advised the plaintiff not to part with the bonds, assured him that they were good, and would ultimately advance in the market. Under these circumstances the plaintiff was not guilty of laches in not earlier returning the bonds, and demanding the price paid. Wooster v. Sage, supra. The judgment should be affirmed, with costs. All concur. n JONES c. EARL. 481 JONES V. EAUL. (37 Cal. 030.) Supreme Court of California. July, 1869. Appeul from the district court, Bixtl) Juiii<'ial (liHtrict, Sicrameiitti county. Tlic jjctiiiii WMg njjaiii.st a torwunlcr for the conviTHion of ko<)<Ih. The roll()\vin<; ' Is a copy of the letter wliich is ;eferre(I to i in tlie opinion r)f the court : "San F"raucisco, Noveniher 18tli, lS(i7. MesHTM. I). W. Earl & Co.: Cents— On the el?ventli in'<tant we Hliipped to your care the rollowiuK jjoods. viz.: Two liarrcls whi.il\y. Two ca.sli.s ale. Two caeks por- ter. Four liasketH clianipa;rne. Four casoH Hostetter'H bitterw. .Marked: F. M. .\.. Viruinia City, (are 'Karl,' (Mmco. " If the >;o()(la have not been forwarded yet ironi Cisco, please hold on to them till you hear from us aK»in, as the party to wlicMn they were consij^ned at VirKinia has been attached, anil we want to save tlic uoods. If they have been forwanii-rl from (i.sco, please instruct your agent at Virginia to deliver the froods to no one ])Ut our agent, Mr. J. A. livers, who will be at Virginia on the lookout for the goods. Please write us immediately whether the goods have been sent; if not, Mr. Hyers will call for tliein at Cisco. Very respectfully. Biggs & ,Jones." Coffroth & .Spf.ulding.for appellant. M. A. Whuaton. for respondent. SANDER.SON, .1. StopP'ige in transitu is n right which the vendor of goods upon creilit has to recall them, or retake them, upon the discovery of the insolvency of the vendee, before the goods havecome In- to his possession, or any third party has nc(|Uired liona fide rights in them. It con- tinues HO long as the carrier remainsin the possession and control of the goods, or until there has been an actual orconstruc- tive delivery to the vendee, or eome third I'lTson has acquired a bona fide right to tlu'in. Upon demand by the vendor, while the right of stop|>age in transitu continueK, the carrier will l)ec<irao lial)le for a conversion of the goods, if he decline to redeliver them to the vendor, or deliv- ers them to the vendee. (MarkwalU v. His Creditors. 7 Cal. l.'l:!: HlacUman v. I'ierce, i':! Cal. ,5l)s: O'Neil v. (Jarrett, fi Iowa. 4n0; IJeynolds v. Railroad, 43 N. H. LAW SALES — 31 5S0.) And a notice l)y the vendor, wlthoot an express demand to leileliver the gnoda, is sufficient to charge the carrier. lithe carrier is clearly informed that It Is the in- tention and desiri' ol the vendor to exer- cise his right ol stoppage in transitu, the- notice is sntlicient. (licyu<dds v. HallroaiU supra; Eitt v. Cowley", 7 Taunton, KiU; Whitehead V. AmIersou.O .M. &\V..-)1K; Bell V. .Moss, 5 Wharton, l*-!).) .And notice U^ the agent of the carrier, wIkj in the regu- lar course of his agency is in the actual custody ol the goods at the time the no- tice is given, is notice to the carrier. (Bierce v. Bed Bluff Hotel Co., 31 Cal. IfiO.) The case made by the record shows that the goods in question were consigned to- the care of the defendant at Cisco, to be forwarded liy him in the usual course of busines< to the vendee at VirL'lnia City. That the defendant was engaged in the- forwarding business at Sacramento, and had an agent at Cisco whose business it was to receive all gooils shipped to the care ol defendant, and deliver them to the order of the vendee u[ion payment or charges and commissions. 'I'liat, while the goods were at Cisco and in the custo- dy of the defendant's agent, who had full charge of the forwarding busin-ss at that place, a letter from the plaintiff, ad- dressed to the defendant at Cisco, con- taining a bid of the goods, and informing the defendant that the vendee hail been at- tached, and that he wanted to save the goods, and <lirecting the defendant not to deliver the goods to any one except his (tlie plaintiff's) agent at Virginia, who ivouM be l(»oking out for theiu, was re- ceived by the defenilant's agent at Cisco. That the defenilant, by his ageut. ac- knowledged the receipt of the letter, and stated that the goods were "in store and he woulil hold them sul>ject to the order of Byers" (plaintiff's acentl. That after- wards the vendee of tlie goods came to the agent of defendant and, tendering charges and commissions, demanded the goods, and that the demand was comfdieil with. That the vendee was insolvent at the date of the notice to defendant's agent that the plaintiff desired to stop the goods in his hands. In view of these facts, and the law as above declared, the defendant Is clearly liable for a conversion of the goods. Judgment and order atUrmed. I JONES V. PADGETT. 483 JONES V. PADGETT. (84 Q. B. Div. 650.) Queen's Bench Division. March 27, 1890. ApponI from the WoKtiiilnster couritv court. ■' Tlie plaintiff cnrried on tho ImsinesH of a woolen niercliant «t on(> ndilreHH, and of a tailor lit (in<jtlu'r. Ah a woolen nierchnnt he ordered of the deieiidun ts, who were woolen ninnufactiirers, a (inantity of "in- dipo hluo cloth," to he inacje aecordin" to Huniple. He intnnded to use the elotli in his husinesH as a tailor for the purpose of iiiHkinK it into servantH' liveries ; hut the fact that he was a tailor as well hh a woolen merchant was unknown to tho defendants, and he did not coniniunicnte to them the i)articular purpose for which he wanted the cloth. The defendantH made and supplied to the plaintiff cloth which wan of the description ordered and which corresponded with the sample i The plaintiff made the cloth into liveries which he supplied to a London club for the use of its servants. Alter tlie liveries had been In use for a few weeks, they Hhowed si^ns of wear, the surface of the cloth came off, and the dve came out It I was admitte<l that the cloth was not strong enoiitth in te.xture for the liard usase to which servants' liveries are sub- Jected, aiKl that it was altoKether unsuit- able for that purpose. There was evi- dence that one of the ordinary uses to winch indiiro blue cloth was aprilied was the makiiif? of servants' liverlos, tliouKh it was also freijuently used for other pur- poses, such as carriage lininRS, caps and boots. There was no evidence that the cloth supplied by the ilefendants was un- suitable for these latter imrposes. lie- fore or.|erin« the cloth the plaintiff sub- jected (he samiile to the ordinary tests for the purpose of a.scertaininj: whether it was suitable for liveries, and failed to discover that it was not so. The plain- tiff having sued the defi-ndants for breach of an iin[)lied warranty that the cloth was inerchnntable, the judRe left to the jury the (juestion whether it was mer- chantable as supplied to woolen mer- 1 chants, ami refused to leave to them the question whether an ordinary and usual use of cloth of the description ordered was the making of it into liveries The verdict havins passed for the defendants tho plaintiff moveil for a new trial on the ground of misdirection. Danckwerts, for plaintiff. Ciuiry, for defendants, was not called upon. I Lord COIJCfUIHJK, C. .J. I am of opin- ! Ion that in this case the direction of the cpiiMty court jiidue to the jury was rlKht and that there was not aiiv such non-direction as made his direction amount to a misdirection. There is no oouhtthatifa manufacturer sells an ar- ticle which he knows is bouirht for a par- t ciilar purpose, he impliedly warrants ti at It IS ht for that |)articnlar purpose, innt IS a principle which was established some sixty years ago in the case of Jones Jlncp'^.WA^r'"'"''^*'^" "«*'"' upon ever fh„f ,""ft''« present case Is not within ;„»,/■",•. '"■'^"""t' "•'tl'i"K was mentioned to the seller as to the particular purpose 'for which this cloth was bouKht, and there was nothing to llx him with knowlellKe was that the seller on the one sl.le woH a manufacturer, and the buyer on the ..o""/','" ""'" " "'""li'" merchant. No miKhthelthe Roods to some person or ther who miKht use them tor a purpose for winch they were not ht. and I nav assume that the Roods here were unlit for the particular purj.ose to which tli.- plain- tiff applied them. Hut there was nothlne beyond the position of the parties, to show that the seller knew thespecltic pur- pose for which they were bought, and It I could not be ilenied tliat they mJKht have been used for a variety of other i)urpose8 for which they were fitted. The plaintiff misht liave sold them to lie used for niir- poses for which they were applicalde. Hut then it is said tliat the case of Drum- mond V. Van Iurcu- in the house of lords carries the law farther than .Jones v liriKht.'i In my opinion that is not so. 1 here was no intention on the part of the lords to extend the old rule. L.ird .Mac- naKhten exi>ressly said that he did not ro beyond it; so also did Lord .Selborne .\nd Lord Herscliell, on whose judgment Hliecial reliance has liecn placed, was par- ticiilarly careful to ex|)lain that he did not intoiKl to carry the doctrin.- farther lie said: "It was ur^ed for the appellants by the attorney-Reiieial, In his able arsu- ment at the bar, that it would be unrea- sonable to reipiire that a manufacturer should be cognizant of all the purposes to 'which the article he niaiiiifartures inb'ht be applied, and that he should be ac- quainted with all the trades in which It may be use<l. 1 asrree. Where the article I may l)e used as one of the elements in n I variety of other manufactures. I tliink it j may be too iiiiich to impute to the maker <)f this ci>iiiinon article a knowledge of the details of every manufacture Into I which it may enter in conil)inatii>n with [Other materials." If the plaintiff is to succeed, it must 1)0 on the ground of the reasonableness of Imputing such knowl- edge to the manufacturer. I do not see that there was any evidence that the mak- iiiR of liveries was the only purpose, or oven the most usual purpiise. for which this particular kind of cloth was ordi- narily used, and uiil.ss that is so, there Is nothinu: to Hx the manufacturer with knowledse which would brinjj the case within the rule. Lord KSIlKri,M.R. Thequostioii which w lis left by the judne to the jury, and the Hulliciency of which is now complained of, was whether the cloth supplied by the de- fenilants to tin- plaintiff was merchant- able as su|iplied to woolen inen-hantR. The cloth in cpiestion was ordered uniler •5 Bing. 5.11. « 13 A pp. Ciis. 2S4. •5 Bing. 533. 484 JOXES V. PADGETT. a particular name, namely, "indigt) blue cloth," by a wooUeu merchant of a wool- len cloth manufacturer, to be made accord- ins to sample. It waa not denied that the cloth supplied anHwered the name, nor was it disputed that it agreed with the sample. But it was said that there was a breach of an implied warranty that it should be fit for the particular purpose of being made into liveries. Now the rule with regard to the imitlied warranty of fitness which arises in the case of a sale of goods is that which is laid down in Jones V. Just'* in the fourth of the five classes of cases there enumerated : "Where a manu- facturer or a dealer contracts tosupplyan article which he manufactures, or produces, or in which he deals, to be api)lied to a particular purpose, so that the buyer nec- essarily trusts to the judgment or skill of the manuf.-icturer or dealer, there is in that case an imi)lied term or warranty that it shall be reasonably fit for the pur- pose to which it is to be applied." Those are the limits of the warranty. Here the goods were ordered by a woollen mer- chant. He no doubt happened also to be a tailor; but that fact was unknown to the defendant. The purpose for which a woollen merchant buys cloth is to sell it again to others. There was indeed evi- dence that sucii cloth as this, if sold to a tailor, was not fit for one of tlie purposes to which a tailor might apply it. But there was no evidence that it was not fit for other of the purposes even of a tailor. Moreover, the cloth might have been sold by woollen merchants to fifty other classes of persons besides tailors. There was no evidence that wool manufacturers know that woollen merchants sell to tailors at all. The manufacturer here was not told, either expressly or by implication, that the goods were ordered that they might be sold to tailors. Then is there any au- thority which establishes that where goods are ordered by a woollen merchant of a cloth manufacturer the latter must be taken to know that they may he or- dered to be sold to tailors? The case re- ferred to in the house of lords is nu au- thority for such a proposition, for there the goods were ordered under the desig- <L. R. 3 Q. B. 197. nation of "coatings," which necessarily imported that they were intended to be made uo into coats, and therefore the facts of that case came within the precise terms of the fourth rule in .lones v. Just. 6 it is suggested that every wool manufac- turer is bound to know all the ordinary purposes to which a woollen merchant may put the cloth which he buys — that is to say, he is bound to be acquainted with all the trades to which the woollen mer- chant may re-sell it; but that is the very proposition which L.ord Herschell ex- pressly denies. •'It would be unreason- at)lR, " he says, " to re(iuir3 that a manu- facturer should becognizant of all the pur- poses to which the article he nianufac- tui'es might be applied, and that heshould be acquainted with all the trades in which it may be used." Though he adds that "There seems nothing unreasonable in ex- pecting that the maker of 'coatings' should know that they are to be turned into coats." And Lord Selborne says, that although, "if the goods being of a class known and understood, between merchant and manufacturer, as in demand for a parti<Milar trade or business, and be- ing ordered with a view to that market, are found to have in them, when sup- plied, a defect jjractically new, not dis- closed by the samples, but depending on the method of manufacture, which ren- ders them unfit for the market for which they were intended," the doctrine nf im- plied warranty applies; yet that doctrine "ought not to be unreasonably extended, so as to require manufacturers to be con- versant with all the specialties of all trades and businesses which they do not carry on, liut for the purposes of vchich goods may be ordered from them." The lords decided that case on tlieground that it came within the fourth proposition in Jones V. Just, 6 which proposition they held to be applicable to a case in which the goods were bought by sample. But here there is no evidence to bring the case within that proposition. Thedirection of the county court judge was right, and this appeal must be dismissed. Appeal dismissed. »L. R. 3Q. B. 197. •L. R. 3Q. B. 197. JONES V. UNITED STATES. 487 JONES V. UNITED STATES. (96 U. S. 24.) Supreme Court of the United States. Oct. Term, 1877. Appeal from the court of claims. Mr. James I.owndes, forappeliiint. The Solicitor-General, contra. Mr. Justice CLIFFOUD delivered the opIiiiiMi of tlie court. Time is usually of the essence of nn exec- utory contract for the saleandKulisequent delivery of ^ood.s, where no ri;;ht of prop- erty in the same |)aHHe8 by tlx- hart^ain from the vendor to the purchaser; and the rule in such a case is, tliat the|)UrchaH- er is not hound to accept and pay for the Koods, unless the same are delivered or tenderefl on the day specilied in the con- tract. Addison, Contr. Is."): (iath v. Lees, 3 H. & C. 5."i8; Coddington v. I'aleolojjo, Law Kcp. 2 E.xch. 1!J(!. Articles of aRreenient were made June 1, ]N(;4. Iietween an asHislaiit-(|uarterniaster of the army and the petitioner, who con- tracti'd to man.ifacture and deliver at the clothing; ilepot of the army in I'incinnati, hy or liefore the 15th of Dccemher then ne.xt, two hundred thousand yards of darli-hlue uuiforni-cloth ; and it was aRreed that deliveries under the contract should he nia<le as follows: five thousand yards In June, twenty-five thousand yards in .luly twenty-five thousand yard'* in August, thirty-live th<)usand yards in Septeiuher, fifty thousand yards in l)cto- her. fifty thousand yards in November, and ten thousand yards on or liefore the 15th of l)eceiul)er in the same year. Other persons were interest.'il with him in the contract at the time it was made; bu^^ one after another retired, until the petitioner is the only one that ret.-iins any interest. His claim is fully set forth in his petiti<ui. Certain instalments of the cloth were delivered, for which the I'nited States paid the contract price, excepting ten percent reserved hy the United States, pursuant to the written contract. .Neither party complains of any default jirior to August of that year, when the mill in which the cloths wc^re manufactured was destroyed by fire, and the petitioner, in couseciuence of the loss, failed to make the deliveries of the cloth as the contract required ; and the assistant-quartermaster called his at- tention to the fact, and notified the sure- ties that he should proceed airainst their principal for his delint|uenc,v. Unable to fuHil the terms of thecontract, he applied by letter to the person in chnrjie of the depot to be released from the obligation, and for the payment of the reserved ten per cent. Beini; nnsuccessful In that application, he visited Washing- ton, for the purpose of applyinnto thede- partinent tobe released from the unfinished part of his contract; and with that view sought an interview with the (piarter- master general, who referred him to the heud uf tlie bureau of clotliing, wliere he was told that there was no power out of congress to release him, and that he ninst furnish theKoods. Had the conversation between the parties stopiied there, tlif» case would be destitute of any color of equity; but the lindinj? of the court below shows that the head of the bureau re- nisrked, that, upon application to the assistant. (piartermaster, sufficient time- I would lie allowed to deliver the^coods. Thouiih told that there was no power ' out of couKress to release him from hi» contract, he (irocured the necessary quan- I tity of such cloth to be manufactured, and aiiplied by letter to the aHsistant-qnarter- master for leave to complete thecontract, who referred the letter to the quartermas- ter-Kcneral for decision; and his reply to the petitioner, as Riven in the finilincs. was, that he could not authorize tlie re- ieasi' from contracts, nor the exiension of time for the delivery of articles under a contract, nor any action whatever not in accordance with their terms and con- ditions. I Prices in the market fell one-half; but the petitioner tenrlered the cloths to the I asslstant-(|uartermaster, wIkj refused to receive the same, liecause the time for de- liveries under the contract had passed. Damaues are claimed l>y the petitioner, upon the cround that the time for the de- livery of the cloths, as specilied In the contract, was e.xtenderl : but the court of claims decided that the theory of fact in- v(dved in the defence was not proved; that the remarks of the head of the bu- reau ol clothing were not sutlicient to su|>- port that theory, as they miRlit not im|ily any thinR more than the <qiinion of that olli.-er as to what the assistant-quarter- n. aster would do. The petition havinjj; been dismissed, due appeal was taken by the petitioner; and he assigns the follou ini; errors: I. That the court erreil in holding that time was of the essence of the written contract. 2. That the court erred in decidini; that there . was not a valid e.-ctension as to the time for deliveriiiir the cloths. :i. That the court erred in overruling the proposition of the petitioner, that the United States were estopped from ilenyinR the existence of thecontract when the Roods wen^ ten- dered. 4. That the court erred in hiddlnic that there was not a new contract, and that such new contract was void because not in writinir. Whi'ther one promise Im the considera- tion for another, or whether the perform- ance, and not the mere promise, be the 'consideration, is to be iletermiued by the ; intention pnd meaninRof the parties, as col- lected from the instrument, and the appli- cation of Rood sense and riRht reason to eaih particularcase. Instructive rules for the accomplishment of that purpose have been stated in various deci.-^iuns of the court and in treatises of liiRli authority, some few of which may be consulted in I this case to advantaRC. ("hltty, Contr. (ids. Where an act is to be performed by the ' plaintiff before the accrulnii of tlie defend- ant's liability under his contract, the plaintiff must prove eithorlils perloruiunce 488 JONES V. UNITED STATES. «f Ruch condition precedent, or an offer to perform it wliich tlie defendnnt rejected, •or liis rea<lines8 to fultil tliecondition niitil the defcndiiiit diHcli!ir;;ed liiiu from k(j do- ing', or prevented tlie execution of tlie matter whicli the contract required liiin to perform. For, wliere the riprlit to de- mand the iierformanre of a certain act de- pends on tlie execution by tlie promisee of a condition precedent or prior act, it is clear that the ivadiness and offer of the latter to fulfil the condition, and the liin- <lranceofitH performance b.v the promisor, are in law eijuivalent to the completion of the condition precedent, and will render the promiHor liable upon his contract. Graves v. Lei!};,'.) Kxch. 709; Morton v. liamb, 7 Term. IL'5; Peeters v. Opie, 2 Wins. Saund. .'luUb ; Cutter v. Powell, 2 Xmith, Lead. Cas. lo. Well-considered anthoritie."^ everywhere agree that a contract may be ro framed that the promises upon one side may be -dependent npon the promises upon the other; so that no action can be main- tained, founded on the written contract, ■without showing that the plaintiff has performed, or nt least has been read.v, if allowed by the other part.v, to perform, his own stipulations, which are a condition precedent lo his right of action : nor is it necessary to enter into much discussion in this case to prove tliat the described in- stalments of clothing were required, by the true intent and meaning of the parties, as expressed in the written contract, to be •delivered at the time and place therein specified and set forth, as the manifest purijose and oliject of the contract was to procure necessar.v supplies of clothing for an arm.v in the field. None will pretend that any right of property in the clothing passed to the United States by the bargain between the parties; and the rule In such cases is, that time is anri will be of the essence of the ct)ntract, so long as the contract re- mains executory, and that the purcliaser will not be bound to accept and pay for the goods, if they are not delivered or ten- dered on the day specified In the contract. Addison, Contr. ls.">. Suppose that is so, still it is contended by the petitioner that the time of perform- ance wasextendeil by the remarks of the head of the bureau of clothing when the contractor applied to be released froin the obligation to complete the unfinished part of his contract ; butthecourt is un- able to concur in that proposition. The finding of the court below shows that no such extension was ever made. Conditions precedent may doubtless be waived by the party In whose favor they «re made; but the findings of the court below do not afford an.v ground to sup- port any such theory. Cases arise where •either i)art.y, in case of a breach of thecon- trnct. may be compensated in damages; and In such cases it is usually held that the conditions are mutual and inileiiend- ent: but where the conditions are depend- ent and of the essence of the contract, it is ever.vwhere held that the performance of one depends on the performance of an- other, in which case the rule is universal, that, until the prior condition is per- formed, the other i)arty is nnt liable to an action on the contract. Addison, Contr. !)!'.■■). Whore time is of the essence of the con- tract, there can be no reco\er,v at law in case of failure to perform within the time stipulated. Slater v. Emerson, 19 How. •22i. Additional authorities to show that a party bound to iierform a condition pre- cedent cannot sue on the contract with- out proof that he has performed that con- dition, is scarcely necessary, as the jirinci- ple hasbecomeeleinentary. Gouverneurv. Tillotson. .3 Edw. (N. Y.) Ch. H4S. Conditions, says Story, may be either precedent or subseiiuent, liut a condition precedent isone which must happen tiefore either party becomes bound by the con- tract. Thus, if a person agrees to pur- chase a cargo of a certain ship at sea, pro- vided the cargo proves to be of a particu- lar qualit.v, or provided the ship arrives before a certain time, or at a particular port, each proviso is a condition prece- dent to the i)erformance of such a con- tract; and unless the cargo proves to beot the stipulated ((uality, or the ship arrives within the agreed time or at the specified port, no contract can possibly arise. Sto- ry, Contr. 33. Impossible conditions cannot be per- formed; and If a person contracts to do what at the time is atisolutely impossible, the contract will not bind him, because no man can be obliged to i)erforni au impos- sibility ; but where the contract is to do a thing which is jjossible in itself, the per- formance is not excused by the occurrence of an inevitable accident or other contin- genc.v, although it was not foreseen by the part.v, nor was within liis control. Chitty, Contr. 663; Jervis v. Tompkinson, 1 H. & N. 208. Other defences failing, the petitioner in- sists that the United States are estopiied to deny that the time of performance was extended, as set up in his second assign- ment of error; but the court Is unable to sustain that proposition, as the remark of the head of the bureau does not amount to a contract for such an extension, being nothing more than the expression of an opinion that the a8Sistant-()uartermaster would grant the applicant some indul- gence. Viewed in that light, it Is clear that the United States did not do an.v thing to warrant the contractor in changing his [)ositlon, and, if not, then it is settled law that the principle of estoppel does not aji- ply. Pickai'd v. Sears, 6 Ad. & K. 474; Freeman v. ('ooke, 2 Excli. 6.j4; Foster v. Dawber, 6 1d. So4; Edwards v. (,'hapman, 1 Mee. & W.231; Swain v. Seamens.y Wall. 2.'>4. Estoppel do#i not arise in such a case, unless the [larty for whom the service is to be ])erforii;ed indtced the otiier party by some means to change his position and act to his prejudice in consequence of the inducement; but in the case before the court, the remark made by the head of the bureau was not of achar.icter to warr;int the petitioner to assume tliut it waa JONES 0. UNITED STATES. 489 OKreed thnt any such Indulgence would ho tt\vpn. Benjamin, Sules, 45; United StntoH V. si)aw, 1 (;iifr. ;ji7. Coni'luHivo evidence tlint the time of per- formance had expired Ih found In the tind- InRH of the court, and the petitioner fnll- inn to eHtnhlJHh I)Ih tlieory that tlie time of pciforindnce had been extended. It Is cl«;ar tliat tliere iHno error In the record. Judgment alllnned. KIMHKIiLV V. I'ATCIIIX. 491 KIMUEnLY et al. v. PATCIIIN. (ION. Y. 330.) Court of Appealsof New York. JuneTcrm, 1><5!». Appeal from the Hii|)r('iiip court. Action to rofovi'r (li<> viiliic of CidOli IjiihIk-Ih o( wlu'Mt, ullcijcil to liiive been tlif property of llie pluiiitiffH, hikI to have lieen con- verted hy the defeiidant. I'lion the trial before .Mr. .liiKtice (ircene. at the JCiie cir- cuit, it wiiH proved tliat one UickiiiHon had in warehou.se, at Liitlefort, in WiH- consiti, two piles of wheat, nmountinK to <iVlV.) ImimBi'Is. .IoImi Sliultleworlh i)ro- poHed to i)urchaHc (illOU huKJielK of wheat. Upon l)eiiiK whown tlie pileB, he expresweil a iloul)t wlietlier they contained that quantity. DickiuHon declared IiIh oi)inion that tliey did. and a»{r(ed t(j make up the quantity if tliey tell short. A wale wan then made nt seventy centM per bushel, Dickinson si^^uinn "'"I deliveriiiK to Sliut- tleworth a memorandum, as IoHowh: — "Littlefort, February 17, 1S48. "John Sliuttleworth bou^'it of D. O. Dick- inson. COOO l.ushol.s of wheat, (lolivered on board. 70 cents $4,200 Ueceivf<l his draft upon John Shtitllcworlh, of BulTalo, for.. $2,100 To remit nie 1,(H>0 Five drafts of .?100 each 500 4,200 "D. O. Dickinson." He also sifined and delivered to Shuttle- worth, this pa|)er, viz. :— " I.ittlefort, Ket)ruary IS, 1S4S. fiOOO busliels wheat. Ileceived in store (lOUO bushels of wheat, subject to the order of John Slinttleworth, free of all chartres, on board. !).(>. Dickinson." Tile wheat was I'lc undisturbed in the wareliouse. Slinttleworth sold the wheat to the defendant, assiKniiic to him the bdl of s'lle and warehouse receipt. Dickinson, shortly afterwards, sold the whole quan- tity of wheat in the two piles to a person uniler wliom the i)laintiffs derived title. The delendant ha vinj; obtained tliei)Gsses- sion of the wheat, this action was liroii^ht. The juil;ie, un<ler exception by the dcfendiint. ilirccted a verdict for the plainiiffs, which was rendered, and the jnilKUient thereon havinjr licen allirme() nt Keneral term, in the eit:luli district, the delendant appealed to this court. John II. Ueynolils, for appellant. John L. Talcott, for respondents. rOMSTOCK, J. Koth p.-irties trace their title to the wheat in controversy t<. D. (). Dickinson, wlio was the former owner, and held it in store at Littlefort, Wiscon- sin. The defendant claims thr<)Ui;l> a sale made by Dickinson to <jne .shiittlewi.rth on the'lSth of I'ehrnarv. IM^. If that sale was effectual to pass the title, it is not now pietended that there is nny ground on which the plaintiffs can recover in this suit. The sale to tlie person under whom tliey claim, was about two and u half inonlliH junior in point of time. The sale to Shuttleworth was by n wrlN Int: in tlie form of a present transferof (KKX) bushelH of wheat, at seventy cents per bushel. M(, manual delivery was then made, lint Instead thereof the" vendor exe- cuted and delivered to the vendee another Instrument, di-clarint; that he had rei-eiveil i ill store the (imitt bushelssubject to the ven- (lee's onler; of llie price *-Ji; ID was paid [down, and the residue $l(iiM), which was to be paid at a future day, the purchiiHer nftei wards offered to pay, accordiiiK to j tli(,' aurcement. So far the contract had all the requisites of a perfect sale. The Sinn to be paid by the piirclmHer wan as- i certaiiicil, because tlie niiiiiber of bushels and the price per bushel were speritied in the contract. .XlthonKli the articie was ! not deliverej into the actual possession of the purchaser, yet the s»ller, by the plain terms of his nKreement, consMtnted him- self the liailee, and henceforth stood in that relation to the purcliaser and to tlie liropcrty. Tiiat was eipial in its results 1 to the most formal delivery, and no ar;;u tnent is required to show" tliat the title wascompletely divested, unless a ditliculty 1 exists yet to be considered. The quantity of wheat in store towhich the contract related, was pstiniateU l).V the parties at about iiniKI liusliels. Hut I subsei|uently, after Dicixinson made an- other sale ol the same wheat to the party I under whom tlie itlaintiffs claiiu.it ap- peared on measurement tliat the niinitier j of bushels was (i.'-llt, lieiiiK an exo. ss of I'l'.t I bushels. When Shuttleworth boimht tliu 0000 bushels, that quantity was mixed in I the storehouse with the excess, and no measurement or separation was iiiude. 'I'besale was not in bulk, but pn-ci-iely of the lllllio bnslK'Is. On this mound it is claimed. on the part of tlie plaintiffs, that in ieiral effect the contract was executory, in otlier worils a mere aitreeiiieiit to sell and deliver llie spi^ciliiMl i|iiiinlity, so that no title passed by the transaction. It Ik not denied, liowever. nor does it admit of denial, that the par ties intenl, d a transfer of the title. The .•irmiiiieii t is, and it is the only one which is even plausible, that the law overrules that intenliiin, nItlioUKh expressed in pljiin written laiiKnaKe, en- tirely appropriate to the put pose. It is a rule asserted in many ieiinl au- thorities, but wliicli may be quite as fitly called a rule of reason and loi-'ic as of iaw, tliat in order to an executed sale, so as to transfer a title from one party to an- other, the tliini;sold must be ascertained. This is a self-evident triilli. when applied to those sul«jects <if property which are distiiiKUisliableby their physical at tributes from all other things, and. I herefore. are capable of exact identillcalion. .\o person can be said to own a horse or a picliin-, unless he is able to identify the ihattel or S|iecily wlial liorse or wliat picliir" it is that lieloiius to him. It is not only legal- ly, but logically. Imiiosslble to hoi. I pruii- ertv in siicli tliiiiits. unless they are asrer- taiiied and distinguished froi:i all other Illinois; and this, I apprehend, is the foun- dation of the rule that, on a sale of chat^ teis, ill order to pass the title, the nrticlen must, if not delivered, be desiyiiatod, su 492 KIMBEULY V. PATCIIIN. tliat possession can betaken by the pur- chaser witliout any further act on the part of the seller. Uiit property can be acquired nntl helil in many thiiiira wliich are incapat)le of Kucli an iilentilici'tioii. Articles of this nature a re sol il, not by a descriptioti wliich refers to and distiniiuishes the particular tliinfi, but in quantities, which are ascer- tained by v^'eight. measure, or count; the constituent uarts wliich make up the mass being undistinguishable from each other by any physical difference in size, shape, texture, or quality. (Jf this nature are wine, oil, wheat, and the other cereal grains, and the flour manufactured from them. These can be Identified only in masses or quantities, and in that mode, therefore, they are viewed in the contracts and dealinjj;s of men. In re.-fpect to such tliinas, the rule above mentioned must be applied accordinf? tothe natureof the sub- ject. In an executed and perfect sale, the thini;s sold, it is true, must be ascertained. Hut as it is not possible in reason and philosophy to identify each constituent particle composing a quantity, so the law does not require such an identification. Where the (juantity and the general mass from which it is to be taken are specified, the suliject of the contract is thus ascer- tained, and it becomes a possible result for the title tn pass, if the sale is complete in all its other circumstances. An actual delivery indeed cannot be made unless the whole is transferred to th" possession of the purchaser, or unless the particular quantity si'ld is separated from the resi- due. But actual delivery is not indispen- sable in any case in order to pass a title, if the thing to be delivered is ascertained, if the price is paid or a credit given, and if nothing further remains to be done in re- gard to it. it appears to me that a very simple and elementary inquiry lies at the foundation of the present case. A quantity of wheat being in store, is it possible in reason and in law for one man to own a given portion of it and for another man to own the resi- due without a separation of the parts? To bring tlie inquiry to the farts of the case: in tlie storehouse of Dickinson tliere was a quantity not precisely known. In any conceivable circumstances could Sliut- tleworth become owner of 60(10 bushels, and Dickinson of the residue, which turned out to be -40 bushels, without the portion of either being divided from tlie other? The answer to this inquiry is plain. Sup- pose a third person, lieing the prior owner of the whole, had given to S. a bill of sale of (iOI)O bushels, and then one to D. for the residue more or less, intending to pass to eacli the title, and expressing that inten- ti(m in plain words, what would have been the result? The former owner most certainly would have parted with all his title. If, then, the two purchasers did not acquire it, no one could own the wheat, and the title would be lost. This would bean absurdity. But if the parties thus purchasing could and would he the own- ers, how would they hold it? Plainly ac- cording to their contracts. On? would be entitled to (iOOO bushels, and the other to what remained after that quantity was subtracted. Again suppose, Dickinson having in store and owning '2-ii) bushels, Sliuftlo- wortli had deposited with him 0000 bushels for storage merely, both parties agreeing that the quantities might be mixed. This would be a case of confusion of property where neither would lose his title. In the law of bailments it is entirely settled that S., being the bailor of the 0000 bushels, would lose nothing by the mixture, and, it being done by consent, it is also clear that the bailee would lose nothing. Story on Bailments, § 40; -J Bl. Com. 40.'5. These and other illustratioBs which might be suggested, demonstrate the pos- sibility of a divided ownershiii in the 6".'40 bushels of wheat. If, then, the law ad- mits that the projiert.v, while in mass, could exist under that condition, it was plainly competent for the parties to the sale in question, so to deal with each other as to effectuate that, result. One of them being the owner of the whole, he could stipulate and agree that the other should thenceforth own GOOd bushels with- out a separation from the residue. And this, I think, is precisely wh<jt was done. The 0000 bushels n.ight have been uieas- ured and delivered to the purchaser, and then the same wheat might have been re- delivered to the seller under a contract of bailment. In that case the seller would have given his storehouse receipt in the very terms of the one which he actually gave; and he might, moreover, have mixed the wheat thus redeliverfd with his own, thereby reducing the quantity sold and tlie quantity unsold again to one common mass. Now the contract of sale and of liailuient, both made at the same time, iiroiluced this very result. The formalities of measurement and deliver.v pursuant to the sale, and of redelivery according to the bailment— resulting in the same mixture as before— most as- suredly were not necessary in order to pass the title, because these formalities would leave the property in the very same condition under which it was in fact left; that is to say, in the actual custody of the vendor, and blended together in a comnum mass. Those formal and cere- monial acts were dispensed with by the contract of the parties. They went di- rectly to the result without the jierform- ance of any useless ceremouies, and it would be strange, indeed, if the law denied their power to do so. There are in the books a considerable number of cases having a real or some apparent bearing upon the question un- der consideration. Some of them very un- equivoc«lly supjiort the defendant's title under the sale to Sliuttleworth. A few only of these will be cited. In Wliitehouse V. Frost, 12 East, 014, the vendors owned forty tons of oil secured in one cistern, and they sold ten tons out of the forty, but the quantity sold was not measured or delivered. Tlie jiurchaser sold the same ten tons tn another person, and gave a written order on the original ven- dors, which, on lieing presenteil, they ac- cepted, by writing the word "accepted" KIMBERLY v. PATCIIIX. 493 oM tlie face of the order, and HisninK their iiiiJiieH. It was held l)y the ICiiKlisli ciiin- iiiuii pleaH that the title t'a«se<l ; cotiHider- ahle HtresH Ix'iii;; laiil on the nceeptanee of tlie order, whiili. it was Haid, placed the vendors In the relation of l)nileeH to ihe (piantitj Kold. 'I'hin was in IslO, In the foljowinj:; .year the case of.lfKrkHon v. An- derson, 4 Taunt. l!4, was decided in the kiim'K bench. That was an action of tro- ver for r.M'ill pieces of coin called Spanisli dollars. Mr. Fielding, at Buenos A.vres, ren)itted to Laycock & Co.. at l..ondon. Ji47iiii, and advised the plaintiffs that l!)(iu of the nuinl)er were desimied for them in payment for r;oods lion^ht of them. Lay- cock & ("o. received the 4700 pieces, and pledired the whule of them to the defend- ant, who sold them to the I>aiik of I'npr- lund. It was held: 1. Thai the letter of advice was a sulliiient approjiriation of $l'.)(iO to the plaintiffs. :.'. Thaf the plain- tiffs and defendant did not hecoine joint- tenants or tenants iti common of the ilol- lars. 3. That altlioufili no specific dollars were separated from the residue fur the jilaintiffs, yet as the defendant hail con- verted the whole, trover would lie for the plaintiffs' share. Of course the action in its nature directly involved the plaintiffs' title, and it was held thnt the sale or ap- propriation of a part without atiysepara- lion was a perfect sal>'. In I'lejisants v. Pendleton, (i Uaml. 4":!, the sale (omit- ting iuimaterial circumstances) was of 11!) out of 123 barrels of Hour, situated in a warehousi', all of the same brand and (luality. It was held by the Viry;iriia court of appeals, upon very elaborate consid'Tation, and after .-i review of all the cases, that tlie title was transferred by the sale. .See also Damon v. Osliorn, 1 Pick. 477; t'rotoot v. Itennett, 2 Couist. 2.")S. In the last mentioned, which was decided in this c(/urt, the sale was of 43.(JU0 bricks in an unfinished kiln rontainin;? a lartc( r ipiantity. A formal possession of the whole biick-.vard was taken by the purchaser. It was held that he ac(iuired title to tlie 4:!,0h0, altliuii^h no separation was made. In the opinion of .Jiidtfc Strontt, thecasewns made to tiiin mainly on a supposed delivery of tlie whole ((uaii- tity. Put, with deference, that circum- stancedoes not appear to meto liave been the material one, inasmuch as all the bricks confessedly were not sold. The de- livery, therefore, did not make the sale. antl "if part could not be sold without be- iuK separated, I do not see how a formal delivery of the whole brick-yard could cure tiie dithcul'y The learned jud;;e speaks of the tr;insaction as a ilelivery of the whole (piantity "with tlie privileee of selection." But assuming, as he did, that tlie want of selection or separation was the precise ditticnity to be overcome. It is not easy to see how n privileae to se- lect could chanire the title before the selec- tion was actually made. The case, there- fore, it seems to me, can onl.v stand on the Eround that tlie sale was, in its na- ture, con:|)lete: the formal delivery of the whole bcinir doul)tlesK a circumstance en- titled to wei;iht In arriving at the inten- tion of the parties. The case is, in short. a HtronK authority to prove that. In saleH by weight, meiisiire, or count, u Hepara- tion of the part sold from the iuuhh In not in all cases a fund.'imentiil reiiulsitp. BeferriiiK now to cases where it has been held that sales of this nencral nature were incomplete, it will be fo.ind that they are not essentially and necessarily oppoMod to the conclusion tht>t, in the instance before us. the title was changed, in White. aH- simiee. &c.. V. Wilks, ,'> Taunt. 17(i, a mer- chant sold twenty tons of oil out of a stock consisting of different birtte <|uantl- ties In different ciHterns, and at vnrluuH warehouses. The note of sale did not ex- press the quality or kind of oil sold, or the cistern or warehouse? from which it was to be taken, and the purchaser did not even know wliere the particular oil lay which was to satisfy the contract. Very clearly the title could not pass ui>ijn such a sale; and so ir was held, aithouKh the seller was entitled by the contract to charge "Is. per ton per week rent," for keepii.fj the oil. A very different (juestion would have been presenteil if the cistern from which the twenty tjns were to be taken had been specified. The ninss and quality would then have been ascertained. •is it was, the subject of the contract wnH not identilied in an.v manner. The re- marks of the judire, evidently not made with much deliberation, must be con- strued with reference to the particular facts of the case. In Austen v. Craven, 4 Taunt. 044, there was a contract to sell 20(» hocslieads of sujrar, to be of four d'fferent kinds and qualities wliicli were specilicd. It did not : appear that the seller, at tie time of the contract, had tlie su;;ar on hand, or any part of it, and the fact was assumed to be otherwise. Tlie sale was, moreover, at so much percn t., requiriim tliat the siiKiir should be weighed in order to ascertain the price. In these circumstances the case was coiisi<lered jilninly distinuulshuhle from WliiteliouKe v. Frost, sn|>ra. and It I was held that the title iliil not pass. 1 do not see tlie sli-ilitest urounil for qucH- tioniiiE tlie decision, ailhoiiuli, perhnpH, one or two remarks of Chief J ustice Mann- held ate capable of a wider application than the facts of the case would justily. ; Tlie two cases last mentioned have been not uiifn'iiuently cited in various later Kiitflish and .\nierlcan authorities, which need not be particularly referred to. Some of tliese authorities m»iy suCH:est n doubt whether the title passes on a nieresnle noto by measure or weight out<if a lari:eri|uan- tity of the sanie kind and ipiality. thers beiiiK no separation and no otiier circnm- Htances clearly evincinc an Intention to vest the title In the purchaser. It ih nn- ne.-essnry now to solve that ilonlit, be- caiise none of the decisions announce the extreme <Io(trine, that where, in snch leases, the parlies ex iiressly declare an tn- I tention to chnniie the title, there Is any ! lesal impossiltility In the way of that de siun. Uiion a simple bill of sale of callims of oil or bushels of wheat, nilxetl with an ascertained and dellned larjier quantily.lt mavormnvnot be considered that the parties intend that the portion sold shall 494 KIMIJEP.LY V. PATCHIK. be tncaHiirecl before the purchaser becomes invested with the title. 'I'hiit may be rn- gartled as an act remaininjr to be done, in which l)()th parties liave a rifrht to partic- ipate, liut it is surely competent for the vendor to say in terms, that he waives that rif;ht, and that the purchaser shall become at once the lesal owner of the number of fiallons or bushels embraced in the sale. It he cannot say this effectually, then the reason must be that two men cannot he owners of separate (juautities or proportions of an luiilistinHuishable mass. That conclusion would be a naked absurdity, and I have shown tliat such is not the law. In the case before us the vendor not only executed nis bill of sale professing to transfer UDOO bushels of wheat, but, waiving all further acts to be done, in order to complete the transac- tion, he acknowledged himself, by another instrument, to hold the same wheat in store as the bailee thereof for the pur- chaser. If his obligations from that time were not simply and precisely those of a bailee, it is because the law would not suf- fer hitn to stand in that relation to the property tor the reason that it was mixed with his own. But no one will contend for such a doctrine. 1 repeat it is unnecessary to refer to all the cases, or to determine between such as may api)ear to be in contiict with each other. None of them go to the extent of holding that a man c.innot, if he wishes and intends so to do, make a perfect sale of part of a ()uantity without actual sep- aration, where the mass is ascertained by the contract and all parts are of the siame value and undistinguishable from each other. One of the cases, however, not yet cited, deserves a brief consideration, because it wasdetermined in this court, and has been much relieil on by the plaintiffs' cminsel. I refer to Gardiner v. Snydam, H Seld. ool. The owner of Hour dilivered it in various parcels to a wareluiusenian, and from time to time took I'eceipts from him. One of these receipts was helil by the defend- ants and others hy the |)laintiffs, both par- ties having accepted and paid drafts on the faith thereof. The defendants' receipt was the first in point of time, and was for 536 barrels, being given at a time when in fact there were but 2(ll barrels in the warehouse, so that it covered l-iS.o nr.ore than were then on hand. Rut oth<?r()uan- tities were sulisequently delivered at the warehouse, all of the same kind and qual- ity, and the defendants, in fact, received by shipment to them, .500 barrels. For the conversion of this qnantitj' they were sued l)y the plaintiffs, who had failed to receive the flour which their receipts called for. It cannot fail to be seen from this statement that the defendants, having the first receipt and receiving no more Hour than it specified, were entitled to judg- ment by reason of the |)riority of their ti- tle; and this ground ot decision is very clearly stated in the opinion of the chief judge. He thought if the transfer of the receipts could pass the title to the flour. notwithstanding the mixture of all the quantities together, that the one held by the defendants entitled them not only to the 201 barrels in store when it was given, liut also to so many barrels delivered in store afterwards as were necessary to make up their number. This view, which ai)i)ears to me correct, was fatal to the IJlaintiffs' case, liut in another aspect of the controversy, the learned chief judge was of ojiinion that the transfer to the plaintiffs of the receipts held by them passed no title, on the ground that the quantities which tliey respectively covered were all mixed together in the storehouse. Assuming the correctness of that view — wliidi 1 am constrained to question — the case is still nniiUe the present one. The transfer of a warehouseman's receipt, given to the owner, was certainly no more than a simple sale note of the specified number ot barrels; and where, in such cases, that is the whcde transaction Ite- tween vendor and vendee I have already admitted a doubt, suggested by conflict- ing cases, whether the title passes. If the owner of the flour had held it in his own wari'liouse, and liad not only given a bill of sale of a portion of it, l>ut had himself executed to the purchaser another instru- ment declaring that he held the ((uantity sold as bailee and subject to order, then the case would have resembled the one now to be determined. We are of o|>inion, therefore, both upon authority and clearly upon the principle and reason of the thing, that the defendant, under the sale to Shut tleworth, acquired a perfect title to thetiOOO bushels of wheat. Of that quantity he took possession at Buffalo, by a writ of replevin against the master of the vessel in which the whole had been transported to that place. For that taking the suit was brought, and it results that the plaintiff cannot recover. It is unnecessary to decide whetlier the parties to the original sale became ten- ants in common. If a tenancy in common arises in such cases, it must be with some peculiar incidents not usually belonging to that species of ownership. I tliink each party would have the right of severing the tenancy by his own act; that is, the right of taking ithe portion of the mass which belonged to liim, being accountable only if he invaded the quantity which l)elonged to the other. But assuming that the case is one of strict tenancy in common, the de- fendant became the owner of (iOOO and the plaintiffs of 2-10 parts of the wliole. As neither could maintain an action against the other for taking possession merely of the whole, more clearly he cannot if the other takes only the quantity which be- longs to him. The judgment must be reversed and a new trial granted. CRAY and GROVER, J J., dissented; .STRONG, J., expressed himself as inclined to concur, if necessar.y to a decision, but it l)eing unnecessary, he reserved his judg- ment. .ludgnient reversed and new trial or- dered. n KINGMAN V. DENISON. 497 KINGMAN et al., a Corporation, v. DENISON ct al. (48 N. W. Hep. 2», »4 Mich. 608.) Supreme Court of Michigan. Fob. 37, 1891. Error to circuit court, Kent county; Wii-r.iA.M E. (jiii)Vi:, Ju(1k«. Rc[)lcviii l).v Kiiifjiiiaii & f'o. aKuiiiBt William C. Dciiisoii and the .McCoriiiick Harvesting Miicliiiie ('()iui)jiii.v. There was u jvKljri'ient in defcuduntH' favor, and plaintiffH bi-iiig error. Tnfiii.irt & Dpnisnn, for appellants. Sweet it- J'erkins, for appellee.s. EoNO, J. On July S, l.SSO, defendant PeniKon wrote Hie plaintiffs at Peoria, 111., orderinfr .^i.iKIO ixiunds of twine. No (leiiliiiyiH liad ever licen had between the parties prior to that time. The plaintiffs receive<l the letter next day, and at once wrote Denisoti : "We have entered your order, an<l twine will ;;;(> forward to-mor- row." On.July 11th the twinewas nhipiied to \V. C. Denison, firand Kapid.^. Mich., plaintiffH taliinj; shipping hill from the railroad company there, and on same day Bent it to Denison, with statement of ac- count for value of the twine. The twine was received at (Jrand Kapids hy the Grand liapids & Indiana Itailroad Com- pany,. July 17th. ami on theisth they tiirneil it over to a teamster, who delivered it at tlie store which was occui)ie(l by Denison at the time the order was made. It aii- pears that on .July '.)th the (irand Hapids Savinsrs Bank caused an attachment to be levied upon Denison's property. On that eveniii;; Denison jjave the bank a chattel mortsaKe on all the Roods in the store and at a warehouse there. !ind a store situate at another place outside of (irand Kapids. .luly luth. Uth, and l-'tli he Knve niorttrn^res on the same prop- erty to se\eral other creditors, two of them beins niven to tlie defendant the McCormick llarve.-.tin}r Machine Com- pany. 'J'lie soods mortj;:aKed were held in the store by the ajjents of the b.nnk until they were sold under one of the mort- Kases, wliich was about July ISth, at which time the defendant the McCormick Ilarve-stiiiK Macliine (.'ompany bid the Kocxls in. an;l continuefl to occupy the Store, puttinjT Mr. ' Denison in as its asent. The McCormick llarvestin;r .Ma- chine Company uiortsraKe contained a clause, after a description of the prop- erly mortfrased, as follows: ".And all additions to and sulistitutes for any and all the above-described i)roperty." On September 7tli plaintiffs, wlio had no notice or knowlcdtte of the chan^jed con- dition of Mr. Denison's affiiirs, drew on him at si;rlit for the amount of the bill. This draft was not jiaid, and on Septeni- lierHlh plaintiffs wrote him for i)ronipt remittance, wlilcli was not made. On Sep- tember I'.l, Iss;), plaintiffs brought replevin against the defendants for the twine, lind- hif? about t)ne-half of it ; the balance having been sold out of the store by the McCor- mick Harvesting; Machine Com])any. On the trial of the cause the defendants waived return of the property, and had verdict and jndKUient against the plaintiff LAW SALES — -"2 for $:!.")! .01, the value of the twine taken, and costs, i'lalntiffs brlni^ error. Tile plaintiffs askid the court toinstruct the jury that plaintiffs were entitleil to u verdict; and in the ninth reiiucHt asked un instructionthat "if Mr. Denison did not in fact receive the twine at his store, liut was not there when it was diiiveriMl, and never received and accepted it for his use in any way, except that, lindinK it In thestore, liu allowed tin- niortjrat;ees to assume con- trol of it. pl.'iintiffs could retake it an airainst him." And in the fourteenth re- quest it was asked that the jury lie instruct- ed that the .McCormick Com|iany,as niort- Ka;;ee, is in no better piii-itiun than Mr. Denison. Its morliraire does not cover this twine, nor is it a b(jii;i t'nle purchaser. Several requests were also asked for in- structions to the jury relatinfi to the In- solvency of Mr. Denison at the time of the purchase, and his intent not to iiay for tlie twine at the time of its purchase, or at the time when it was reci-ived at the store, on tlie istli of July. These last- named re<|nests we do not deem it neces- sary to set out here for an understanding of the points involved. The re<iuest8 sot out were refused by the trial court, and upon such ruling the plaintiff assigns er- ror. Thecoiirt.in its charge to the jury, stated: " I'laintiff claims the ri;jlit to the posscs.sion of these goods at the time this suit was comnienceil — y'ir.vf, because as counsel claims, the goods were ordered, were purchased, by Mr. Denison at a lime wlien he was insolvent, and knew that he was insolvent, and hud no intention. or at least no reasonable e.xpectation.of paying for tliem acconling to the terms of the contract; ond the plaintiff's counsel also claims the right of stoiipage in transit. All 1 need to say in regard to the latter claim is that I think the right of stoppage in transit, under tlic facts of this case as shown by the evidence, lias no applica- tion whatever; there is no such right e.\- isting. " This part of the charge relating to the right of stoppage in transit is as- signed as error. The court was in error in refusing these requests to charire and in the charge as given. It is not seriously contended here but that, umler the evi- dence given on the trial, the defendant Denison was insolvent at the time the goods were ordered. At least this was a (|Uestion of fact which should have been submitted to tlie jury: and. if so found, llie question of the riirht of stoppage In transit was an imiiortant question in the case. Tlie right of stopp.-ige in transit Is a right possessed by tlie seller to rons- sume the possession of goods not paid for while on tluir wav to the vendee, in case the vendee liecomes insolvent before he has ac()uireil actual possession of them. It is a privilege allowed to the seller for the particular purpose of protecting lilm from the insolvency of the consignee. The right Is one highly fa vored in tlie law. being based upon the plain rejison of jus- tice and eipiitv that one mans property shouhi not be applied to the payment of another man's debts. Gibson v. Carruthers, .S Mees. & W. 3;?7. Hut It is iinqierlv exercised only upon goocis which are in passage and are in tlie hands of 498 KIXGMAN 0. DENISON. some intermedinte person bolueen the vendor and vendee in process, and for the t)urpose of delivery, and this right may be exercised wlu-tlier tlie insolvency exists at the time of the sale or occurs at any time l)eforo actual delivery of the goods, without the Unowledfte of the consignor. O'Brien v. Norris, 1(! Md. 122; Reynolds v. Railway Co., 4:! N. H. 5S0; Rlurn v. Marks. 21 La. Ann. 2GS; Benedict v. Scaettle, 12 Ohio St. .'Jir). This right of stoppage in transit will not be defeated by an ap- parent sale, fraudulently made, without (•ousideratiiin,for tlie purpose of defeating the right. There must be a purchase for value without fraud, to have this effect. Harris v. Pratt, 17 N. Y. 249. In the pres- ent case it appears that the goods ar- rived in Grand Rapids July 17th, and were taken to the store on the ISth. Mr. Denison was not in the store at the time they were taken in. Mr Talford was in possession of all the goods and of the store at this time for all the mortgagees, and after the sale under the mortgage the Mct'ormick Company took possession, and was iu possession at tne time this re- plevin suit was commenced. The testi- mony tends to show tliat at the time de- mand was made upon the McCormick Company and Mr. Denison for the twine Mr. Uenison stated that he thought the plaintiff, having heard of his financial affairs, would not ship the twine, and that he did not kni)w it had liecn sliipped until it was in the store; and he was ver> sorry it had come, und(>r the circum- stances. The McCormick Company claimed that by the terms of their mortgage they were entitled to hold tlie twine. The court was in error in not submitting to the jury the question wliether the goods Imd come actually to the possession of Mr. Denison. The circumstances tend strongly to show that he never had act- ual |)ossession of them, and never claimed them as owner. He had made the order, and was notified that thei* would be shipped; Init from that time forward it is evident that he made no claim to them. The McCormick Comiuuiy claimed that the.v passed to it under the tei-ms of its mortgage. It however, stood in ni) bet- ter position than Denison. If the goods never actually came into the possession of Denison as owner, the mortgage lien would not attach, even under the clause in the mortgage covering tifter-acnuired property. It does not stand in the posi- tion of a bomi tide purchaser of the prop- erty. The right of stoppage could not be divested by a jjurchase of the goods under the mortgage sale. The transit hail not ended unless there was actual delivery to Mr. Denison. These were questions of fact for the jury, which the court refused to submit. If the jury had found that Denison was insolvent at the time the order was made, or became insolvent at an.y time before the claimed delivery of tlie goods, and that the goods were nevei- actually delivered to tlie pos- session of Mr. Denison, then the vendors' rights would have been paramount to any right which the McCormick Company could iiave ac(iuired at the mortgage sale. Underbill v. Booming Co., 40 Mich. CdO : Lentz V. Railway Co., ,')?. Mich. 444,10 N. W. Rep. 1.38; AVhite v. Mitchell, 38 Mich. 390; James v.Grifiin,2 Mees.&W. 623. In the view we have taken of the case, we think the other questions raised are unimportant, and we will notpass upon tliem. The judg- ment of the court below must be reversed, with costs, and a new trial ordered. The other justices concurred. KIXNEY V. McDEKMOTT. 501 KINNEY V. McDERMOTT. (8 N. W. Rep. 656, 55 Iowa, 074.) Supreme Court of Iowa. April 20, ISsl. Appeal from Buena Vista circuit court. TliiH In nn nctioii of replevin, ami the ainoiint in controvorHy Ih Icsh tlinn $10(1. Tliero vv(\8 a trial by jury. There woh no conflict in the evidence. The court iiiwtnicted the jury to return a venliet for the plaintiff. Defendant ap|>calH. H. W. Weeden, VVni. Wart, and Rohin- 8on & MilcliriHt.for ap|>cllant. C. D. Uold- aniith, for appellee. ROTHKOCK. J. The trial jud^e made the following certificate, upon which we are authorized, under the statute, to en- tertain the appeal : "(1) On Sunday plaintiff agreed with defendant, at the house of the latter, to {live defendant a horHo and S$2'> in exchange for a lioiHe of defendant. TIiIh was conHeiit- ed to. and on theHame day, purHuant to Haid agreement, plaintiff left his horse witli defendant, and tooic the horse of the latter away. The money wa.i to l)e paid the fidlowing Sunday at the liouse of plaintiff. On Tuesday, following the ex- change, defendant, in the absence of i)lain- tiff, and without his knowledge or con- sent, returned to the stable of the latter the horse received of him, and took the borse he let plaintiff have away. A day ortwo later plaintiff replevied thehorseso taken, ami has since kept both horses, us- inji the one returned by defendant, and not offering to return either horse or money. Under these facts can the plain- tiff recover in his action of replevin? "(2) Under thefncts hereinbefore staled, can plaintiff recover in replevin when liis allege<l right of possession, under the i.s- sues made in tlie pleadings, depends upon the ownership of the property? "(3) Is the plaintiff entitled to recover nnder the issues in this action, and the facts n» stated above?" A contract made and concluded on Sun- day cannot be enforced by action. Pike V. King, 10 Iowa, ^O. It is illegal, and the law in such cases will leavethe parties where it finds them, or rather where they have placed themselves. If one party sells property to another on Sunday, and de- livers it, no action will lie for the price agreed to be paid therefor. Pike v. King, supra. If tlie defendant in the action had broughtreplcvin for Hiehorse, Instead of taking liim by force, he would have been defeated, because he would have lieen ob- liged to introduce evidence to overcome the presumption arising from i)lnintiff'B poBsesHion. By tlie acts of tlie parties in violation of la w the plaintiri became en- titled to the possession ol the horne. ThU possession was such that the defendant could not have recovered by action the price, if H(dd anil not paid for, and coulil not maintain an >iction of replevin. He, however, wrongfully and by a trespasH, de[)rived tlie plaintiff of the possession. The qnestiijn is, will he be allowed tore- cover liy force what the law woiiltl not have aided him to recover peacealily? It Is insisted by counsel for appellant that, because the plaintiff claims title to the horse, he was bound to Introduce evi- dence of such title, and could only do ho by showing the Sunday contract. But, according to tlie certificate of tlie trial juilge, the plaintiff was In poHsession, and the defendant, by force, and without the knowledge of the plaintiff, removed the horse from plaintiff's stable. The ques- tion is, by what right did the defendant possess himself of the horse? The burden was on him to show hi^ right. In iloing so he would necessarily be compelled to introduce thoSunday contract nsevidence. In Smith v. Bean, 1.') .N. H. .")77, referring to a contract of sale made on .Sunday, It is said: "Tlie transaction lieing illegal, the law leaves the parties to suffer the consequences of their illegal acts. The contract is void so far as it is attempted to be made the foundation of legal pro- ceedings. The law will not interfere to assist the vendor to recover the price. Tlie contract is void for any such purpose. It will not sustain the vendee upon any warranty or fraud in the sale. It is void in that resi)ect. The principle sliows that the law will not aid the vendor to re<'over the possession of tlie property if he has parted with it. The vendee has the posses- sion as of ills own property by the assent of the vendor, and the law leaves them where it finds them. If the vendor shoulil attempt to retake the (iropeity without process, the law, flnding tliat the vendee had a possession which could not be con- troverted, would give a remedy for the violation of tliat possession. " See, also. 2 Parsons on Contracts, TtU. and notes. The author admits tliere Is soiiie conflict of authority upon the question whether a vendee willbe allowed to retain the prop- erty without paying tlie price. In our opinion lie should, on the ground that the law will leave the parties where It Hnils them. It was held In Pike v. King, su- iira. that the plaintiff could not ri-cover the value of the property aside from the price agreed upon, or. In other words, could not recover upon the (|uantum vale- bant. Aftirmed. KOUXTZ B. KIItKPATUICK. 503 KOUNTZ V. KIRKPATRICK et al. ] (72 Pa. St. 370.) | Supreme Court of Pennsylvania. Jan. 6, 1S73. [ AKSumimit by Joseph Kirkpntrick and JniiicH LyoriH, trailinir as Kirkputrick &' lO'i'iiH. to tlic use of Freileriek Kislier find otln-i-H, truiliiit; aa Fiwlier I'.ros., aKaiiiHt William J. Koiintz, for failure to duliver a certain iiuiintity of enide petroleum, wlieii called upon to do so Deeeiuber 31, ls<>'.), in compliance with his contract previously made. Judnment forplaintiffa,aud defend- ant brings error, iieversed. Before THOMI'iSOX, C. J., and UKAl), ACiNEW, SHAKSWOOU.and WILLIAMS, J.- I S. il. Geyer and (j. Slilras, .Jr., for plain- tiff in error. M. W. Acheson, for defend- auts in error. AG.XE'.V, J. The second, third, fifth, ei.\th, seventh, eif;hth, eleventh, twelfth, thirteenth, fourteenth, filteenth and si.\- leenth error.-s. are not well ai?si(;ned. for all the un.'^wers of the court to the points were omitted. Wheo u court simply re- fuses a point, the eiror is well assijined by reeitin;^ the point, and stating that it was refused. But when the judt;e an- swerji specially, in onler to introduce a gualitiiation he deems necessary to make his instruction correct, the answer must lie recited as well as the point. We shall not decline considerinK, however, all the important questions; and in order to dis- cuss them, we may state succinctly the nature of the ca-^e. On the 7th of .Tune isci'.l, Kountzsold to Kirkputrick & Lynn, two thousand barrels of ci'ude petroleum, to he delivere<l at his option, at any time from tlie date, until the aist of December iMi'.t, lor cash on delivery, at tliirteen and a iialf cents a gallon. On the L'lth of .Inne iMi'.i, Kirkiiatrick and Lyon assigned this contract to Fisher & Brothers. Kount/. failed to deliver the oil. He defends on the ground that Kirkfiatrick & Lyons, and others holding like contracts for de- livery of oil, en tered into a comtnnntion to raise the price, by buyin>^ uii lar^e quantitii'S of oil. and holilin;^ it till the ex- piration of the year l^(i9, and thus to com- pel the sellers of oil on option contracts, to pay a heavy difference for nondelivery. Fisher & Brothers, the assij;nees of Kountz"s contract, were not in the com- bination, and the principal questions are whether they are affected by the acts of Kirki)Htrick &, Lyons, subsequent to the assiuniiient ; whether notice ol the as- Hii;nment to Kountz was necessary to protect them, and what is the true meas- ure of damages. The court below held that Kisher & Brothers, as assiirnees of the contract, were not affected by the acts of Kirkpatrick «& Lyons, as niemliers of the con\bination in the followin^i Octolier and sulisei|uently, and that notice in this case was not essential to the protection of Kountz. The common-la w rule as to the assign- ability of clioses in action no lont^er pre- vails, but in equil.v the assitrnce is looke<l upon as the tiue owner of the chose. He may sot off the demand nshjaown: Nfur- ^an V. liaiik of .Ni>rlh Aii.erlcu, x S. & It. 7:i; I'.amsey'rt Appeal. 1! Watts '2'JH. The assiiinee takes the chose subject to the pxistin;; equities between the oriuinal par- ties before assiLfnment, and also to pay- ment and otherdefenees to the Instrument itself, after the assitrnnient and In-fore no- tice of it; but he cannot be affected by col- lateral transactions, secret trusts, or acts unconnected with the subject of the con- tract: Davis v. I!arr, !l S. iSc I!. i:t7; tteck- ley V. Erkert, 3 Barr L".c.>; Mott v. (lark, !» Id. .•{!);»; Tay:or v. (litt. 10 Iil. JlN; North- ampton Bank V. lialliel, K W. &. H. 31s; Corser v. Craig,! Wash. (-'. C. K. 4-i; 1 Parsons on Cont. 1U:1, IOC; 2 Story on t'jtnt., §:!9(;, n. The act of Kirkpatriek & Lyons, rom- (ilained of as members of an unluMful combination to rai-se the price of oil, woH loiiK suitsequent to their assignment of Kountz's contract, and was a mere tort. The contract was afli-cted only by its re- sults as an independent act. It does not seem just, therefore, to visit this effect up<m Fisher & Brothers, the antecedent assignees. The act is wholly rclluternl to the ownershipof the chose iiself.and there is nothing to link it to the chose, so as to bind the nssi>?nors and assignees to- fjelher. After the assiijnmeri t, there belnjt no Kunranty, the assi;;nors had no inler- est in the performance of this )iartlcular contract, and no motive, therclore.arisinK out of it to raise tlie priceon Kountz. The acts of Kirkputrick & Lyons seem, tlierefore, to have no greater or other bearinj; on this contract than the acts of any otiier members of the combination, who were strangers to the contract. In regard to notice of the assignment to Kountz. it is argued, that having had no notice of it, if lie knew of the consplrac.v to raise the prii-e of <mI, anil tluis td oflect his contract, and that Kirkpntrick & Lyons were parties to it, he miglit have relied on that fa;t as a defence, and refused to deliver the oil. and claimed on the trial a verdict for merely nominal damages for his breach of his contract. Possibly lu such a special case, want of notice might have constituted an equity, but the an- swer to this case is. that no such point was mode in the court below, ami thero iloes not seem to be aiy evidence that Koiititz knew of the conspiracy, and Kirk- patrick & Lyoiiss privity, and relying on these facts, desisted from purchasing oil to fulfil his contract with them. As the case stood before tlieeourt below, we dis- cover no error in the answers of the learned judge on this |.art of It. The next (luestion is upon the proper measure tif damages. In the sale of chat- tels, the general rule Is, that tlie inensHre is the difference between tliecoiilract price and the market value of the article at the time and place of delivery under the con- tract. It is unneres..ary to cite authority for tills well est;iblislied rule, but as this case ri Iscs a novel and ixtraordinary question between the true ni;irkrt value of the article, anil a stimulated market price. Treated bv artilicial and fri.udul'nt prac- tircs. it is" necessary to Mx the true inenn- ing of the rule itself, before wo can ap- 504 KOUNTZ V. KIRKPATRICK. proficli the real question. Ordinnrily, when an article of sale is in the market, and has a market value, there is no dil't'er- ence between its value and the market price, and the law adopts the latter as the proper evidence of the value. This is not, howevtr, because value and price are really convertible terms, but only because they are ordinarily so in a fair market. The primary mennins: of " vnlue"is worth, and tliis worth is made up of the useful or estimable qualities of the tliinu;: See Web- 1 ster's and Worcester's Dictionaries, i "Price," on the other hand, is tlie sura! in money or other equivalent set upon ] an article b.v a seller, which he demands j for it: Id. Value and price are, there- i fore, not synon.vmes, or the necessary! equivalents of each other, though com- j mouly, market value and market price are i legal equivalents. When we examine the j authorities, we find also that the most ao | curate writers use the phrase market' value, not market price. Mr. Sedgwick, i in his standard work on the Measure of i Dama!^es,4th ed. p.2G0,says : " Where con- tracts for the value of chattels are broken 1 by the vendors failing to deliver property I accordinft to the terms of the bargain, it seems to be well settled, as a jjeneral rule, [ both in England and the United States, that the measure of damages is the differ- ence between the contract price and the market value of the article at the time it should bedelivered upon the ground ; that this is the plaintiff's real loss, and tliat with this sum, he can go into the market and supiily himself with the same article from another vendor." .Judge Rogers uses the same term in Sinethurst v. Wool- ston, .') W. & S. 109: "The value of the article at or about the time it is to be de- livered, is the measure of damages in a suit by tlie vendee against tlie vendor for a breach of the contract." So said C. J. Tilghraan, in Girard v. Taggart, ,5 S. & K. 32. Judge Sergeant, also, in O'Conner v. Forster, lU Watts 422, and in Mott v. Dan- forth, 6 Id. 3(IS. But as eren accurate writers do not alwaj's use words in a precise sense, it wou'd be unsatisfactory to rely on the common use of a word only, in making a nice distinction between terms. It is therefore proper to inquire into the true legal idea of damages in or- der to determine the proper definition of the term value. Except in those cases where oppression, fraud, malice or negli- gence enter into the question," the declared object (says Mr. Sedgwick, in his work on Damages) is to give compensation to the party injured for the actual loss sus- tained." 4th ed., pp. 28, 29; also, pp. 3(i, 37. Among the many authorities hegives, he quotes the language of C. J. Sliipt)en, in Bussy v. Doualilson, 4 Dallas 20G. " .\s to the assessment of damages (said he), it is a rational and legal principle, that the compensation should be equivalent to the injury." "The rule," said C. J.Gibson, "is to give actual compensation, bj" grad- uating the amount of the damages exact- ly to the extent of the loss. " "The meas- ur J is the actual, not the speculative loss:" Forsvth v. Palmer, 2 Harris, 97. Thus, com- pensation being the true purpose of the law, it is obvious that the means era- ployed. In other words, the evidence to as- certain compensation, must be such as truly reaches this end. It is equally obvious, when we consider Its true nature, that as evidence, the U'arket price of an article is onli- a means of arriving at compenshtion ; it is not it- self the value of the article, but is the evi- dence of value. The law adopts it as a natural inference of fact, but not as a con- clusive legal presumption. It stands as a criterion of value, btcause it is a con)mon test of the ability to purchase the thing. But to assert that the price asked in the market for an article is the true and only test of value, is to aliandon the proper object of damaires, viz., compensation, in all those cases wherethe market evidently does not afford the true measure ot value. This thought is well expressed by Lewis, C. .1., in Bank of Montgomery v. Reese, 2 Casey !•!(>. "The paramount rule in as- sessing damages (he says), is that every person unjustly deprived of his rights, .should at least be fully compensated for the injury he sustained. Where articles tiave a determinate valueand an unlimited production, the general rule is to give their value at the time the owner was dei)rived of them, with interest to the time of ver- dict. This rule has been adopted because of its convenience, and because it in gen- eral answers the object of the law, which is to compensate for the injury. In rela- tion to such articles, the supply usually keeps pace with the demand, and the fluc- tuations in the value are so incousideraiile as to justify the courts in disregarding them for the sake of convenience and uni- formity. In these cases, the reason why the value at the time of conversion, with interest, generally reaches the justice of the case, is that when the owner is de- prived of the articles, he may purchase others at that price. But it is manifest that this would not remunerate him where the article could not be obtained else- where, or where from restrictions on its production, or other cause's, its price is necessarily subject to considerable fluctua- tion." This shows that the market price is not an invariable standard, and that the converse of the case then before Judge Lewis is equalli' true— that is to say- when the market price is unnaturally in- flated by unlawful and fra.udulent prac- tices, it cannot be the true means of as- certaining wliat is just compensation. It U as unjust to the seller to give the purchaser more than just compensation, as it is to the purchaser to give him less. Right upon this point, we have the lan- guage of this court in (he case of a refusal bv a purchaser to accept: Andrews v. Hoover, S Watts 240. It is said: "The jury is bound by a measure of damages where there is one, but not always by a particular means for its ascertainment. Now the measure in a case like the pres- ent, is the difference between the price con- tracted to be paid and the value of the thing when itought to have been accepted ; and though a resale is a convenient and often satisfactory means, it does not fol- low that it is, nor was it saii in Girard v. Taggart, to be the only one. On the con- trary, the propriety of the direction thej-e. KOUXTZ 0. KIltKPATRICK. 505 that the jury wero not hound liy it, if they could find another more in accordance Willi tlic justice of llie cawe, HCfiiiH to have liecn adinilti'd ; the very tiling coniplairied of here." Judfje Stronjr took the Hame view in Trout v. ICunncdy, 11 Wright 3'J3. That WMH the cane <>{ a trcspaHHiT, and the jury had been told that the plaintiff was entitled to the just and full value of the property, and if at the time of (he tresiiass the tiinrket was depressed, too much importance was not to he ;jiven to that fact. "If (says JudKC Strong) at any particular time, there he no market demand for aiiartii-le.it Is not of ccjurse on that account of no value. What a thiuK will hrjiijj in the market at a K'^en time, is perhaps the mcHsurc of its value then; hut it Is not the only one. " These cases plainly teach that value and market price are not always convertihle terms; and certainly there can l)e no difference in justice or law, in an unnatural depression and an unnatural exaltation in the market price — neither is the true and only meas- ure of value. These Reneral principles in the doctrine of damaiies and authorities, prove that an inflated speculative innrket price, not the result of natural causes, hut of artifi- cial means to stimulate prices liy unlawful corabinntions for the pur(»oses of ;tain, cannot he a leKititiiate means of estiinat- ing just compensation. It nives to the purchaser more than he ou^lit to have. and compels theseller to pay more than ho ought to give, and it is therefore not a just criterion. There is a case in our own state, hearing strongly on this |)oint: Blydenhurgh ct al. v. Welsh, Hald- win's lU'p. 331. .Judge lialdwin had charged the jury in these words: " If yo-j are satlsMed from the evidence, that there was on that day a fi.\ed price in the market, you must he governed hyit; if the evidence is doulitful as to the (irice, and witnesses vary in their statements, you must adopt that which you think best accords with the proof in the case." In granting n new trial..Iudge Ilopklnsou said: "It is the prici — the market price— of the article that is to furnish the measure of damages. Now what is the price of a thing, particularly the market price? We consider it to be the value, the rate at which the thing Is sold. To make a market, there must he buying and selling, purchase and sale. If the owner of an article holds it at a jirice which nobody will give for it, can that he said to be lis market value? -Men sometimes put fan- tastical prices upon their piopeity. For reasons personal ami peculiar, they luay rate it n.uch jihove what any one would give for it. Is that the value? Kurther, the holders of an article, Hour, for In- stance, nnler a falsi' rumor, which, if true, woiilil augment its value, may suspend tlieii- sales, or put n price upon it, not nc- rording to Its value in the actual state of the market, tint according to what in their opinion will be its market price or value, provided the rumor shall |irove to be true. In such a case, it is clear, that the asking price is not the worth of the thing on (he given day. lint what it is Biipposed it will be worth at a future day, if the contingency shall happen which Ih to give It this additional value. To take such a price at the rule of dHmoges, is (o make the d. fenduiit pay what in truth never was the value of the article, ami to give to the plaintiff n profit l)y a breach of the contract, whhh he never would have made hy its performance." The case of suspended sales upon a rumor tending to enhance the price, put oy Judge liopkinson, hears no compari- son to the case alleged here, where a com- bination is intentionally formed to liuy up oil, hold It till the year Is out, and thus force the market price up purposely to affect e.xlHting contracts, and comi>el the sellers to pay heavy dnmnges for non- fulfilment of their l)argalns. In tha same case. Judge liopkinson further said: "We did not intend that they (the jury) should g<j out of the limits of the market iirice, nor to take as that price whatever the holders of the coffee might choo.<<e to ask for it; substituting a fictitious, unreal value, which nobody would give, for that at wliich the article might be bought or sold." "In determining," says an emi nent writer on contracts, "what is the market value of property at any particu- lar time, the jury may sometimes take a wiile range; for this Is not always ascer- tainable by precise facts, but must Home- times rest on opinion; and it would seem that neither party ought to gain or lose by a mere fancy price, or an inflated and accidental value, sudilenly |)ut in force by some speculative movenient, and as sud- denly jtassing away. The (|uestion of damages l>y a market value is pirullurly one for a jury:" I'arsons on Contracts, vol. 2. (1. 4SJ, ed. ls.'>7. In Smith v. lirlf- fith, :! Hill 3:!7-s. C. J. Nelson said : " I ad- mit that a mere speculating price of the article, got up liy the contrivance of a few interested dealers, is not the true test. The law, in regulating the measure of damages, c<intemplates a range of the entire cnarket, and the average of prices, as thus found, running through a reason- able period of time. Neither a sudden and transient inflation, nor a depression of (irices. should control the question. These are often accidental, promoteil hyinteivst- ed and illegitimate combinations, for te'u- porary, special and sellish oliji-cts, inile- pendent of the objects of lawful com- merce; a forced and violent perversion <if the laws of trade, not within the contem- plation of the regular dealer, and not de- serving to he regarded as a iiroper Imsis i:poii which to deteriuine the valne. when the fact becomes niateriul in the ndniii.is- tration of justice." I may dose the»e sayings of eminent jurists with the lan- guage of Chief .lustice (ilbson, upon stock- jobbing contracts; Wilson V. Davis, fi \V. &S. r>l':!: "To have stipulated. " says he. "for n right to recrulton seiiarateaccount, would have given to the agn-ement iia appearance of trick, like those of stock- jobbing contrac(H, to deliver n given num- ber of shares at a certain day. In which the seller's performance has het'n fore- stalled hy what is called cornering; In other words, buying up all the (Linting shares in the market. Th-se contracts, like other stock-jobbing transactions, lo 506 KOUNTZ V. KiniCPATRICK. which parties deal upon honor, are seldom subjected to the test of judicial experi- iiieut, but tliey would necessarily be de- clared fraudulent." Without adding more, 1 think it is con- clusively shown that what is called the inarlvet price, or tlifi quotations of the articles for a given day, is not always tlie only evidence of actual value, but that tlie true value may be drawn from othei sources, when it is shown that tlie price for tlie iiarticular day liad been unnat- urally inflated. It remains only to ascer- tain whether the defendant gave such ev- idence as to require thecourt to submit to tlie jury to ascertain and determine the fair market value of crude oil per gallon, on the Hist of December INf!!!, as demand- ed by the defendant in his fifteenth point. There was evidence from whicli the jury might have adduced the following facts, viz.: That in the month of October l^iOH, a number of persons of large capital, and amongthem Kirkpatrick & Lyons, com- bined together to purchase crude oil, and hold it uutil the close of the year 1869; that these persons were the holders, as purchasers, of a large number of sellers' option contracts, similar to the one in suit, that they bought cdl largel.v, and determined to hold it from the market uu- til the year 1870 before selling: that oil, in consequence of this combination, ran up in price, in the face of an increased sup- ply, until the 31st day of December ISGlt, reaching the price of seventeen to eighteen cents per gallon, and then suddenly dropped as soon as theyearclosed. Major Frew, one of the number, says : "It was our purpose to take the oil, pay for it, and keep it until January 1st 1870, other- wise we would have been heading the market on ourselve.s. Mr. Long says that on the 3d of January 1870 he sold oil to Fi"her & Brother (the plaintiffs) at thirteen cents a gallon, and could And no othe'" purchaser at that price. Several witnesses, dealers in oil, testify that they knew of no natural cause to create 9uch a rise in price, or to make the dif- ference in price from December to Jan- uary. It was testified, on the contrary, that the winter production of oil was gre.'iter in Deceml)er 1809 than in former years liy several thousand barrels per day, a fact tending to reduce the price, when not sustained by other means. Mr. Benn says he knew no cause for the sudden fall in iirice on the 1st January 1870, except tliat tlie so-called combination ceased to buy at the last of December ISGD. It was, therefore, a fair question for the jury to determine whether the price which was <lenianded for oil on the last day of December 18()'J was not a fictitious, unnat- ural, inflated and temporarj- price, the result of a combination to "bull the market," as it is termed, and to compel sellers to pay a false and swcdien jirice in order to fulfil their contracts. If so, then sucli price was not a fair test of the value of the oil, and the jury would be at libert.v to determine, from the iirices before and after the day, and from other sources of information, the actual market value of the oil on the Slst of December ISU'J. Any other cause would be unjust and injurious to fair dealers, and would enable gam- blers in the article to avail themselves of their own wrong, and to wrest from hon- est dealers the fruits of their business. It cannot be possible that a "corner," such as took place a few weeks since in the market for the stock of a western railroad company, where shares, worth in the or- dinary market about sixty dollars each, were by the secret operations of two or three large capitalists, forced up in a few days to a price over two hundred dollars a share, can be a lawful measure of dam- ages. Men are not to be stripped of their e^itates by such cruel and wrongful prac- tices; and courts of justice cannot so wholly ignore justice as to assume such a false standard of compensation. Our views upon the effect of the attidavit of defence, on which the learned judge in a great measure rules the question of dam- ages, will be expressed in the case of Kountz V. The Citizens' Oil Refining Co., [72 Pa. St. 302.] in an opinion to be read immediately. Judgment reversed, and a venire facias de novo awarded. i LEE c. GRIFFIN. 509 LEE V. GUIFFIN. (1 Best & S. 272.) Queen's Bench. May 9, ISCl. Declaration at;ai"st the defendant, as the executor of one FranceM 1'., for t;oodH barKained anil Hold, KoodH Hold and de- livered, and for work and laltor dune and materials iirovidcd l).v the i)laiiitiff a8 a Kurneoii-dentlHt for the Haid FraneeM P. I'k'ii, that theHaid Franeee I'.neverwuH indelited as allesi-Ml. The action was hroiight to reeovcr the Huin of £-1 for two nets of artificial teeth ordered by the deceased. At the trial, before Crompton, .1., at the BittlnuH for MiddleHex after Michaelmas term, IfSdU, it was proved by the plaintiff that he had, in [tiirsuance of an or<ler fioni the deceased, prepared a model of her mouth, and made two sets of artilicial teeth; as HO(»n as they were ready he wrote a letter to the deceased, requestin}? her to niipoint a day when he could see her for the purpose of fittinj" them. To this conimiinication the deceased replied as folio wk: — "My Dear Sir, — I regret, after your kind effort to oblige me, my health will prevent my taking advantage of the early day. I fear I may not be able for some days. Yours, .»ic.. Frances I*." Shortly after writinir the above letter Frances P. died. On these fa<'ts the de- fendant'scounselcontended that the plain- tiff ought to be nonsuited, on the ground that there was no evidence of a delivery and acceptance of the goods by the de- ceased, nor any memoiandUMi iti writing of a contract within the meaning of the 17th section of the statute of frauds, l'!) ( ar. 2, c. o, and the learned judge was of that opinion. The plaintiffs counsel then contended that, on the authority of Clay v. Yates.' the [jlaintiff conhl recover in the action on the count for work and labor done, and materials provided. The learned judge declined to nonsuit, and ilirected a verdict for the amount claimed tobeentereil for the plaintiff, with leave to the defendant to move to enter a non- suit or verdict. In Hilary term following a rule nisi hav- ing been obtained accordingly, Patchett now shewed cause. (Jriflits, in support of the rule, was not called upon to argue. CHOMPTOX, .1. I think that Ibis rule ought to be made absolute. On the sec- ond point I am of the same opitiion as I was at the trial. There is not an.v suffl- eient memorandum in writing of n con- tract to satisfy the statute of frauds. The case decided In the ho ise of lords, to which reference has been made during the argument, is clearly distinguishable. That case oidy decideil that if a ducument, which is silent as to the particulars of a contract, refers to another document which contains sucli |)articulars, parol evidence is admissible for the purpose of shewing what ilocuiueut is referred to. AssMming, in this case, that the two doc- uments were sufllciently connected, still there would not be any sulllcient evidence of the contract. The contract in quention was to deliver some |)articular t<'etl. to be made in a partii-ular way, but these letters dli not refer to any particular bargain, nor In any inauoer discloHC ItM terms. The main question which arose at the trial was, whether the ccntract in the seconil c(jutit could l)e treateil ns one for I work and labor, or whether it was a con- j tract for goods sold and delivered. The distinction betwe<'n these two causett of . action is sometimes very line; but where j the contract is for a chattel to be made and delivered, it clearly Is a contract for the sale of goods. There are some cases in which the supply of the materials is aiii'illi»ry to the contract, as In the case of a printer supplying the pnper on which a book is printed. In such a case an ac- tion might perhaps be brought for work and labor done and materials provided, as it could hardly be said thatthesub- jcct-mat ter of the contract was the sale of a chattel: perhaps It is more in the nature "f n coiitract merely to exercise skill and labor. Clay v. Ynles- turned on Its own pcruliar circumstances. I enter- tain some doubt as to the correctness of that decision; but I certainly do not ngrw to the proposition that the value of (he skill and labor, as compared to that of the material sup(ilied. is a criterion bj- which to ilecide whether the contract be for work and labor, or for j the sale of a chattel. Here, however, the subject-matter of the contract whs the sup])ly of goods. The case bears a strong resemblance to that of a tailor supplying a coat, tlie measurement of the mouth and fitting of the teeth being analogous to the measurement and fitting of the garment. lULh.J. 1 am of the same opinion. I think that the decision in Clay v. Yates' is perfectly right. That was not n case In which a i)arty ordered a chattel of an- other which was afterwards to lie made land delivered, but a case In which the I subject-matter of the contract was the j exercise of skill anil labor. Wherever a [contract is entered into for the manufac- ture of n chattel, there the subject-mat- ter of the contract is the sale and deliv- ery of the chattel, and the (larty supply- ing it cannot r(M.-iiver for work and labor. .■\tkinKon v. Bell* is, in my opinion, good law, with the exception of the dictum of I'.avliy, .T., whlcii is reinidiated by Mnule, .1., in Cirafton v. .-Xmiitage.^ where he savs: "InordiT to sustain n count for work and labor. It is not necessary that the work and labor should be performed upon materials that are the property of the plaintiff." And Tlnilnl, ('. .).. In his judgment in the same case, page 3tO, ] points out that In the application of the 'observations of Bnyley, J., regard must ' 1 H. & X. 73. '1 IT. & X. 7 '1 II. & X. 7: ' S B. .V: C. 27 ' 2 C. B. X!0. 510 LEE V. GRIFFIN. be had to tlie particular facts of the case. In every other respuct, therefore, the case of Atkinsou v. Bells is law. I think that these authorities are a complete answer to the point taken at the trial ou behalf of the plaintiff. When, however, the facts of this case are looked at, I cannot see how, wholly Irrespective of the question arising under the statute of frauds, tliis action can be maintained. The contract entered into by tlie plaintiff with the deceased was to supi)ly two sets of teeth, which were to be made for lier and fitted to her nioiitli, and then to be paid for. Throus'i no de- fault on her part, she havins died, they never were fitted; no action can therefore be brought by the plaintiff. BLACKBURN, J. On the second point, 1 am of opinion that the letter is not a sufficient memorandum in writing to take the case out of tlie statute of frauds. On the t)ther point, tlie ()uestion is whether the cc^ntract was one for the sale of goods or for work and labor. I think that in all cases, in order to ascertain whether the action ought to be brought for goods sold and delivered, or for work and labor done and materials provided, we must look at the i)articular contract entered into between the [jarties. If the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labor; l)ut if the result of the contract is that the party has done work and labor which ends in nothing that can become the sub- ject of a sale, the party cannot sue for goods sold and delivered. The case of an attorney employed to prepare a deed is ' 8 B. & O. 277. an illustration of this latter proposition. It cannot be said that the paper and ink he uses in th3 preparation of the deed are goods sold and delivered. The case of a printer printing a book would most prob- ably fall within the same category. In Atkinson v. BellT the contract, if carried out, would have resulted in the sale of a chattel. In Grafton v. Armitage.s Tin- dal, C. .!., lays down this very principle. He draws a distinction between the cases of Atkinson v. Belio and that befoj-e him. The reason he gives is that, in the former case "the substance of the contract was goods to be sold and delivered by the one party to the other;" in the latter, "there never was any intention to make any thing that could properly become the sub- ject of an action for goods sold and deliv- ered." I think that distinction reconciles those two cases, and the decision of Clay V. Yates 10 jg pot inconsistent with them. In the present cas? the contract was to deliver a thing which, when completed, would have resulted in the sale of a chat- tel ; in other words, the substance of the contract was forgoodssold and delivered. I do not think that the test to apply to these cases is whetlier the value of the vfork exceeds that of the materials used in its execution; for, if a sculptor were employed to execute a work of art, great- ly as his skill and labor, supposing it to be of the highest description, might exceed the value of the marble on which he worked, the contract would, in my opin- ion, nevertheless be a contract for the sale of a chattel. Rule absolute. ' 8 B. & C. 277. ■2 0. B. 340. ' 8 B. & C. 277. "> 1 H. & N. 73. LIXCOLN c. GALL.VOHEH. 513 LINCOLN V. GALLAGHER. (8 Atl. Hep. 8s:{, 79 >Ie. 189.) Supreme Judicial Court of Maine. Feb. 28, 1SS7. On exceptions by tlefciiflatit from su- preme judicial court, Wusliington county. AHHumpsit for ilanuiKC.s on a breacii of eotitract for tlie [lurcliaKe and Kale of a veMHcl. The defenKe was that the vessel was not dcliveieil by plaintiff within a reasonable tinie, and that the defendant had no opportunity to e.xamine the vessel in order to see tliat she was in >;ood or- der, as stipulated in the contract. A ver- dict was rendered for the plaintiff, and the defendant alleged exceptions. Thomas L. Talhot. for plaintiff. John F. Lynch, for defendant. PETERS, C. J. It was said in Howard V. Miner, '.'0 Me. 330, that, on a contract for the delivery of spec-ific articles which 1 are ponderous or cumbrous, when it is ' not de.sijinatcd in the contract, and there j is nothing; in the condition and situation of the parties to determine the i)lace of I dellverj', it is the privilese of the creditor] (o name a reasonable and suitable one; i Ihat the debtor should request the cred- itor to select the jilace; and, if the creditor' falls to do so, the debtor may appoint the place. In the ease at bar a ves.sei was purchaseil on the eastern coast some- where, tc) be delivered to the buyer in Portland. Had the defendant provided a suitable place at some dock or wharf which could have been reached by the u.se LAW SALES — 33 of reasonable exertion, the delivery should have been made there. The purchoser, after notice, falling trj provide a place, we think the seller woulil bejuKtilled in ten- ilerinK a delivery at safe anchoraKe in the harbor, lie should not be reijuired to go to special expenses to hitnself to obtain a place at the wharf or up<in the shore. B.v the hill of e.xceptions examined with the judite's charRe we fiml that a controversy arose between the parties over the require- ment of the purchaser that the seller should Ko to the e.xiiense himself of plas- inK the vessel in a dry-dock in order that the seller could there examine her. There was some reason to suspect that the ves- sel had been ashore on her voyage to Portland, and tlie purchaser desired an lnsi)ection to see whether she had es- caped injury or not. 'I'hore can be no doubt that. In ofterinR delivery, the seller was under oblijiation to afford an op- I)ortunity to the purchaser to make the examination. Hut any expenses to he incurred thereby, beyond what would be necessary in putting the vessel in a proper place for delivery, would fall upon the buyer and not upon him. The seller was uniler no obligation to incur any unusual expense. He could not be called upon to place the vessel in u dry-dock. He tenders the property as sound accordliic; to the agreeinent under which he acted. The buyer must accept or reject it at his risk. Renj. Sales, § i\'.)b: Croninger v. ("rocker, fiJ N. Y. l.-d. Exceptions overruletl. WALTON. D.ANFORTH, E.MEKY. FOS- TER, and HASKELL. .IJ.. concurred. LITCHFIELD v. HUTCHINSON. 515 LITCHFIELD v. HUTCHINSON. (117 Mass. 195.) Supreme Judicial Court of Massachusetts. Mid- dlesex. February 1, 1&75. Tort for deceit in the sale of a hoi'He. The decluralioii alleged tliat the defeml- Miit Hold [)luiiitit( a linrHe f'lr $;{L';J; that defendant I'alHely reprewented that the horse was Hound in every way, to induce, plaintiff to huy; tliat the plaintiff, believ- ing that naid representation wbh true, vvaH thereby induced to buy the horse, but the liorHe whh not wound in every way, but waH lame and foundered, and lame in the fore le«H and KhoulderH, and was unsound and of little value, an defendant well knew. .\nHwer a general denial. The court al- lowed a bill of exceptions totheeffect that there was evidence that the defendant made the representations an alleged ; that tliey were false, and known by defendant to be false; that the plaintiff, relyiuR tliei'con, wuH induced to purchase the horse as allejicd; and that the lior.se was then in fact lame and unsound. The evi- <lence was conflictiuK on all these points, i'laintiff puid defendant l5;J2o for the horse, aTid there was evidence that he waH not worth at the time of the sale over §100. The defendant testified that he maiie no representations whatever, and that Ik^ had worked the horse almost every day for three weeks, and did not observe any lameness or that he was unsound. Upon this evidence the plaintiff requested the judge to charge that, if thedefendant made a representation of the soundness of the horse as of his own knowledge, ho might have known by reasonable inquiry and examination whether he was sound or not, and the horse was not sound, and if the plaintiff relied on such representations, and was induced thereby to purchase the horse, and thereby sustained damage, the defendant was liable. If the defendant represented that the hor.-ie was sound, wiien he was unsound, and the |>Iaintiff was thereby indnrod to buy thehorse.and was then^by injured, then the defendant was liable. If the defendant knew the horse was unsound, and did not make such fact known to the plaintiff, but al- lowed him to purchase the same at a fair market price as a sound horse, then th? defendant \>as guilty of fraud, and was liable. If the defendant had no knowledge one way or the other as to the soundness <if the horse, but represented to the plain- tiff that he was sound, and he was in fact unsound, it would su|i|iort the allegation that he made to the plaintiff' a false alle- gation knowingly. If the defendant made the represen tat ions to the plaintiff wit ho lit any knowledge, information, or ground of belief, and they were in fact fnlse.it would not differ legally from a representation known by the defendant to be false. The judge, instead, iiistnictpd the jury that if the defendant iiiaile the reiiresentatioiiH alleged, as matter of fact within his own knowledge, and the representations in nn.v material respect were not true, and the defendant knew they were false, or he diil not honestly believe them to be true, and [the plaintiff, relying upon them as true, was induced to purchase the horse and pay therefor, the defemlant was liable, liut that the action could n(it be main- tained by merely proving that the ilefend- ant had reasonable cause to believe the reiiresentatlons were untrue; the di-clara- tlon alleging that they were frauilulently made, and that the defc^ndant knew them to be false, and that a false representation is knowingly made wlicn a party, for a fraudulent purpose, states what he does not believe to be true, even though he may have no knowledge on the subjeit. The jury returned a verdict for the defendant, aud the plaintiff alleged e.xccptioDH. D. S. RichardHon, |(j. V. Hichnrdson, with him. J for jdaintiff. W. 8. Gardner, for defendant. MOKTO.X, J. This is nn action of tort, in which the plaintiff alleges that he was induced to buy a horse of the defendant by reiiresenfations made by liim lh;it the horse was sound, and that the horse was, in fjict, unsound and lame, all of which the defendant well knew . Tosustain smh an action It is necessnry for the [ilaintiff to prove that the defend- ant made false reprrsentations, which were material, with a view to Iniluee the plain- tiff to purchase, and that the ]iliiiritirr was thereby induced lo purchase, lint it is not always necessary to prove that the defendant knew that the facts stated by him were false. If he states, as of his own knowlrdge, material facts snsci-ptible of kiicwledge, which are faNe, it is a fraud wliich renders him liable to the party who relies and acts ujion the statement as true, and it is no defence that he believed the facts to be true. The falsity and fraud consists in representing that he knows the facts to be true, of his own knowledge, when he has not such knowledge. I'age V. lient. 2 .Met. :i7l. Stiuie v. Dennv, 4 .Met. l.'il. -Milliken v. Thorndike. 103 Mass. ;;si>. Fisher v. Mellen, KK! .Mass. .■|0:I. In the case at bar the plaintiff asked the court to instruct the jury "that if thede- fendant made a representation of the soundness of the horse, as of his own knowledge, and the jury aresatistied that he might have known by reasonable in- quiry and examination whether he was soiiiid or not, anil the horse was not sound as a matter of tact, and If the plaintiff re- lied on such re|>resentation8. ami was in- djceil thPieby to purchase the horse, and thereby sustained damage, then the de- fendant is lialile. " We are of oiiinlon that this instruction should have lieen given In substance. If the defect In the horse was one wjich might have been known t>y ren- sonable examination. It was a matter sus- ceptible of knowledge, and a re|iri>seiita- tion by the defendant made as of his own knowledge that such defect did not exist, would, if false, lie a fraud for which ho would be liable to the plaintiff, if maile with a view to Iniluce hini to purclin8e, and it relieil on by hlin. A f.'ilse representation of this character is sulllcieully set forth In the declaration to constitute a cause of action, without the further allegation that the defendant 51G LITCHFIELD V. HUTCHINSON. well knew the representations to be false. It is not necessary that all the allesatious shoiilil he proved if enoiiffh are proved to make out a cause of action. The instructions given upon thesuhject embraced in this prayer required the plaintiff to prove, not <inly that the de- fendant made the false representations al- leged, as of his own knowledge, but also, that the defendant knew that they were false, or thiit he did not honestly Relieve them to be true. In this res|)ect the in- structions were erroneous. Kxcc|)tions sustained. AMES & ENDICOTT, .IJ., absent. LOKIi V. 1'ETEU.S. il'J LOEB et al. T. PETERS et al. (1)3 Ala. 243.) Supreme Court of Alabuma. Deo. Term, 1879. Action hy J. M. Peters & Brnther a^xiii'^t tlx' South & Nortti Alubuniii KmiI- riiai] Coiiijiaiiy for certain cliiiltels. J. Ijocb & I'rotliiT iiittTvciiccI a8 claiiD.-iiitK, and olitai[K'(] poKKOKJsion iii the k<)o<ih on makiiiK the proper attidavit and ;;ivinj; bonil. From iijuiit;inent f(jr plaintiffs said clainiantH appealed. Alllrnied. Sayre & Graves, for appellants. L. A. Shaver, contra. MANNING, J.— Munter & Brother, be- ln>r largely in debt, and insolvent, by an order re(iuestiny: ehi!>nient to them, bought of jilaiiitiffs. J. M. Peter.s & Broth- er, of Virniiiia, twenty-live boxes of to- bacco; which they accordinj-ly sent us directed, to Munter & Brotlier, at Mont- Koniery, Alabama, by railroad, forward- ing to tiieni by mail a bill of ladins there- for. On receipt of this, several days be- fore the bo.xes arrived, .Munter & Brother indorsed it, and transferred tlieir rij^ht to the Koods to J. Loeb & Brother, who nave them credit for the same, on a debt past due, which .Munter & lirother owed them. There was no other consideration for this transfer. Soon afterwards, Pe- ters A: Brother, being informed of the in- solvency of Munter & Brother, and claim- inn the rifilit to stop the tobacco in tran- situ, demanded it of the carrier, the South & .North Alabama P.ailroad Company, and sued the same in detinue for it, hav- ing lirst offered to pay the freinlit money. Loeb & Brother intervened as claimants, and thereby obtained possession of the noods. Whereupon, the suit was prose- secute<l acaiiist them, to a verdict and judgment in favor of Peters & Brother, from which Loeb & Brother have ap- pealed to this court. We do not concur in the opinion ex- pressed in Kopers v. Thomas t^U t'onn. 54), that a vendor of poods, in transit to an insolvent vendee, can not stop them on tlie way, before delivery, unless the in- solvency of the vendee occurred after the sale to him of the kooiIs. We think, with thesu[»reme court of Ohio, tliat the ven- (k)r may stop theuoods u|ionu subsequent mscovery of insolvency existinnat thetime of the sale, as well as upon a subsequent inscdveucy. If there be a want of ability to pay, it can make no difference, in jus- tice or Kood sense, whether it was pro- duced by causes, or shown by acts, at a period before or after the sale.— Benedict V. Schaettle, 11.' Ohio St. 51."): Hevnolds v, Boston^ M.R.U.('o.,4:! N.H..">y.t: O'Brien v. Norris, It; Md. iL'J; Blum v. .Marks, L'l La. Ann. 2(>.S. The best delinition of the rijiht which we have seen, is that in Par- sons's Mercantile Law, as lollows: "A seller, who has sent noods to a buyer at a distance, and, after sending tliem, linds that the linyer is insolvent, may stop the Koods at any time before they reacli the buyer. His riKht to (U) this is called the rinht of stoppage in transitu."— Chap. X, p. GO. j If, before this right lo exercised, the buyer sells the goods, anil indorses theblll of lading for them to a punliaser in good I faith, and for value, the right of tlie first j vendor to retake them is extinguished. — jLickbarrow v. Mason, 1 ^>mltl^s lA'aii. Cases, JiSS. Evidence, therefore, that Loeb & Brother knew, when thev took a tranH- fer of the bill of lading, tiiat Munter & I Brother were innolvent. was relevant anil proper to show, in connection with other testimony, that Loeii & Brother were not j bona tide purchasers. And there was no error in permitting a witness to testify I what one of that lirm had previously said, tending to show such knowledge, w-hen he was giving evidence in another [cause. Statements and declarati<ms, rele- i vant to the matter in hand, which have been made by a party to u cause, may be ] proved against him, witlioul his ail- , versnry being compelled to use such party as a witness in a suit in which he is Inter- ested. The two judgments against Munter & Brother, in favor of creditors, confessed D.v the former before the tobacco had j reached its destination, and the seizure upon execution the next day of property I of Munter & lirother, by the sheriff, tenil- ed to prove their insolvenc.v; tinil tlie evi- dence of those facts was, therefore, prop- I erly admitted. The transfer of a bill of lading, as a col- lateral to previous iddigations, without anything advanced, given up, or lost on I the part of the transferee, does not consti- tute such an assignment as will preclude the vendor from exercising the right of sto[ipage in transitu. Said Bradley. Clr- jcuit .lustice. in Lesossier v. The .South- I western, 2 Woods, :!.">: "Nothing short «if j a bona lide sale of the jroods for value, or the possession of them by the vendee, can defeat the vendor's right of stoppage in i transitu: and hence it has been held, that an assignee iu trust for creditors of the insolvent vendee is not a purchaser for value, and, conseoiiently. takes subject to the exercise of any right of stoppage in transitu which may exist airaitist the assignor. — Harris v. Pratt, 17 N. Y. 241)." I Wherefore, it was held in the latter case. |tliatun attachment in the suit of the vendee's creditor, of goods landed by the carrier upou a wharf boat at the place of delivery, did not prevent the vendor from stopping them in transitu.— See. also, O'Brien v. Norris, Id .Md. 122; Nay- lor v. Dennie. S Pick. l'.»ii; Nicliolls v. LeFeiivre, 2 Bingh. (.V. C.) S;{. The doe- trine is based upon the plain reason of justice and equity, enunciated in D'.VgulIa ' V. Lambert (2 Eden's Ch. 77). that "one mail's property should not be apiilled to tlie payment of another man's dclit." The light itself is regarded as niiextentlon .merely of the lien for the price, which the seller "of goods has on them while remain- ing in his possession; which lien the courts will nut permit to be siipersede<l. before the vendee, who has become insol- vent, obtains possession, unless, in the ' nieantiiue. the goods have been sold to a person « lio, in good faith, has paid value . for them, and so would be a loser by his I purchase, if that were beld invalid. A|>- 520 LOEB V. PETEKS. pelliinlH bavins only crodited Miinter & Brother on a dobt previously due fi-oni tlieni, witii the pru:e of the tobacco, liHve notlilng iiioie to do, in order to net even, than to dehit llieni with the same sum, for the uon-delivery of the Roods in con- sequence of tlie defect in Munter & Broth- er's title. The case of Crawford v. Kirksey (55 Ala. 'JS2), so much relied on by a[ipel- lants, is wliolly unlike tliis. Tlie (jnestion of stoppage in transitu was in no Tv:iy involved in it. The controversy tliere was, whether a conveyance by a debtor in a failins condition, of pro[)erty which was indisputably and entii'ely liis, in pay- ment of a debt to one of his creditors, was not void as to the otliers; and tliis court decided, that the law permitted such a preference, and that t!;e transac- tion was n(jt fraudulent in fact. It results from what wo liave said, that tliere was no error in tlie cliarges to the jury. Let the judgment of the circuit court be affirmed. LUPIX V. MAUIE. r.2.T LIJI'IN ct al. V. MAIUK ct al. CO Wend. 77.) Court of Errors of New York. Ucccmber, 1S30. Appoal from clinncory. On tlieHltli Aii- fjnHt. lKL'(i, Marie Ixumlit of an UKCit <if tin; coriiplaiiuuits in tliu i-ity of Now Ytii'U, IS pai-kai;eM of kooiI.s, amounting tofT.'JiKi.'iM, for which lie agreed to nivf IiIm own not(-H, pa.valiliMM ."iciina! [iroportionH, at 0, 7, S, ;> anil 10 niontliH ; the Roods were Hold at 14 cciitH per franc, short price, when KoodH of the Hanic (luallly were publicly Helling at from I'O to L'2 cents per franc, and not at a lurner credit than hI.x tnontliH. On the L'.')tli AiiKU.Ht the Koods were delis'ered to Marie, who represented to the anent of the coinplainantH tli..t he intended to Bhip them to Havana forHalcHand returns ; and on the next day did ship them on hoard a vesHcl, which shortly thevafter set sail from New York, hound to Havana. 'l"he notes which Marie was to fj;ive were not [ made or delivered to the atjent of theconi- plainants at the time of thedeliver.v of the •rcMids. On the fonrth Septemher, IM'd, ' Marie, by an aceiimnlation of disastrons i circnnistances, and in conse.inenre of ad- vices received by him from Vera Cruz and from Knrope. was compelled to suspend payment, and suffer his bunds and notes ' to be dishonored. At the time of the pui-- cliase of the jioods, Marie enjoyed a liij;li (•(Miimercial credit and stnndinii iu the city : of .New York, was reputed and considered himself perfectly solvent and amply jililo ; to pay all his del)ts and responsibilities, and not until one o'clock in the afternoon I of t he fourth of September did he perceive ' that he would be comiielled to suspend i payments; anil so unconsciou» was he of Ills situation, that after the purchase of. the Roods from the complainants, and i)ro- 1 vious to his failure, he niade [lavments to the amount of about .fls.doil. On the fifth , of September, the insolvency of .Marie ha v- ] iiiK liecome notorious, the asjent of the complainants requested him to re-deliver the Roods by RivinR an orrler for the same upon the captain of the vessel in wliich they were shipped. Marie refused to dive such order, and on the ninth of Se|)tember executed an asslRnment tc» Varet. the oth- er <lefendant, of four several shipments of Roods, incluilinR the merchandise pur- chased of the complainants, to secure him nearly :tf7(),(IOI), for which lie was responsi- ble as the endorser of Marie, and as liis Huret.v on custom-house lionds. 'I'he ves- sel in which the Roods were embarked met with a disaster at sea, and was cdiliReil to put into Norfolk, in VirRinia.foi' repairs. Whilst she was there, and about the thii'- tielh day of September, the aRent of the coiiiplainaiits applied to Varet for permis- sion that the Roods be delivered to him ; Veret refused to Rive such consent, and instructed his aRf nts at Norfidk to rc-ship i the Roods to him at New York, where they | accordiHRly arrived, and were disposed of by him, some bel:iR sold at Now York, and the residue beiuR shipped to Havana. The net proceeds of the goods amounted to .?(i,(i<,ll. :,".). After the return of the Roods to New York, the complainants demaiuled them of Varet, which demaiid was not complied with. The complainants filed their bill, rclvluR upon the non-ileliveiy of the noteH,"on(l the non-payment of the consideration money us entltliiiR them to a decree In their favor for the value of the Roods, and also charRiriR the defendants with fraud. In their answers the defendantM insisted that the Roods had become absolutely the Iiroperty of Marie; that ho had not been reciuested to Rive the notes, and that In conse(|uence of his failure. It was believed that the complainaiiiH were unwillinR fo receive them; that since the failure of .Marie, the other defendant, \'aret, hail paid aii<l satisfied all the cuslomhouse bonds and notes for which he was responsible. Var«-t denied all knowleilRe on his part of the terms of the sale tci .Marie, that such terms were not complied with, or that the Roods were not paid for; and botlidefend- aiits denieil all fraud, &c. The cause was heard on bill and answer, and the chancellor decreed that the bill lie dismissed. For the reasons of his deci- sion, see 2 PaiRe. IGl). The complainunts apiiealed. <". (Jraham and .1. TnllnindRe. for nppel- lanls. (.". Baldwin, for respondents. Mr. .Justice MAItCY. The <iuestlonB presented by this case for our determlnn- tion, are: 1. Wa.s there a sale of the IS packaRcs of merchandise by the appellants to Marie? 'J. Had the appellantsa lien on the property when they demanded it at Norfolk or New Y'ork? The validity of the sale is iiuestioned up- on twoRrounds: 1. The contract of sale was never complete, it is sai<l, Ik cause t!ie purchaser Marie did not comply with the condition upon which its valiility depend- ed. The position that where any thing remains to be done to eoniplele a con- tract of sale, the title of the iiroperty does not pass to the purchaser, has had the sanction of too many decisions, and is too Renerally aciiniesceii in, to reijuire theclta- tion »)f authorities to sustain it. Indeed it was not (|ueslioned on the argiiinent. l!y the terms of the sale, promissory notes were to be Riven liy Marie for the Roods, payable at six, seven, elRht, nine and ton months. These notes have never been Riven, and if the RiviuR of them has not been waived by the appellants or their aRcnt, the title "to the Roods has not vest- eil in the piiiehaser. The Roods were de- livered without re(|iiirinR the notes. .Marie says the notes have nevi'r been demanded, and he has been williiiR at all times to Rive them, but believes the appellantsslnce his failure are nnwilliuR to receive them. It is contended that there has been n waiver of this eoiidilion of the contract. When- the ileliver.v is aosolule it is a waiv- er of the condition of payment or civinR security; ami we search this case In vain for anv facts that can warrant an infer- ence tfiat the delivi'ry of the Roods wils not fair and unconditional. If the appel- lants dill not intend that Marie slinuld he- come vested with the absolute property in the Roods. " they were liounil."as Ch. J. Parsons said In the case of Hussey v. 524 LUPIN V. MARIE. Tliorntiin, 4 Mass. K. ■10."). "to recollect tlie conililioiis they had tlieiusclve.s made, and not to deliver the pacUasies till the condi- tioiiH wore comiilled with." It has been held, where goods weresold to be paid for in ea.sli down, that the delivery, without domandinff the money, vested the title of them in t!ie purchaser. Haswell v. Hunt, assiKuoe, &c., cited in 5 T. U. 2:i\. The de- livery of the tliinssold, made uncondition- ally, and not procured by fraud, vesta the absolute propert^MU tbepurcha.ser. Chap- man v. Lathrop, 6 Cowen, llo, and cases cited, and note. The second ground of objection to the validity of the sale is mistake or error. The alleged mistake was not in the article sold, or in the identity of the person pur- chasing, but in the ability of the purchaser to pa.v. The appellants sold toone whom they l.elicved to l>e solvent, but who was not so in fact. The case sliows that there was in this respect a mutual misapprehen- sion. No objection can tlierefore be raised to the contract on the ground of fraud. Marie did believe and had good reason to believe, that he was solvent when he en- tered into the contract. To invalidate contracts upon the ground that one of the parties was mistaken in tlie ability of the other to execute, would bj establish- ing a doctrine unknown,] think, to any code, and of the most dangerous conse- quences. If the circumstances of the pur- chaser may be inquired into %vhenever the seller wisiies to disaffirm a contract, the commercial world, by the e.vercise of this right of inquiry, would Ije thrown into the greatest confusion. I presume that the appellants do not contend for an ap- plication of this doctrine lieyond a case like their own — a case where the insolven- cy of the purchaser is notorious and ac- knowledged: but if theprincii)leof thedoc- trine is that the seller can disaffirm the sale because the purchaser has Ijeen dealt witl) as a solvent person, when he was in fact insolvent, the mistake, whenever it existed, would authorize theoriginalown- er to reclaim tlie property the moment of a default in the payment and perhaps an- ticipation of it ; and he might allege tliis insolvency and default to exist in any case, and seek to enter upon an inquiry in- to thecircurastaiicesof tliepurchaser while he was in active business and his credit unimpaired. I cannot consent to yield the least countenance to such a doctrine. The remaining question to be settled re- lates to the lien which the appellants claim to have had on the property. The assignment of it to Varet was not in the usual course of trade; it was voluntary on the (lart of .Marie and for the purjiose of indemnifying Varet against antecedent resi)onsibilities. If there would have Iteen a lien without tlie assignment, the assign- ment did not operate to discharge it. The rule of law in relation to real estate is, that the vendor has without any express agreement for that purpose, a lien on the premises conveyed, even after j)ossession thereof is delivered to the purchaser, for the purchase money, provided lie has not taken a distinct and independent security therefor, and the land has not passed by a bona fide sale to a third person. The chancellorheld in this case that such a rule does not exist in relation to personal prop- erty. Whetiier it does oi not we arc no .\ to determine. By the Roman law the vendor could in such a case as this resort to the property; and so, I think, he may liy the civil code of France, notwithstand- ing article 15!S3, which changes the civil law and conforms to the common law, so ifar as to vest the title in the purchaser j without delivery or payment of the jirice. j Code Napoleon, art. 16.j4, 11*<.3, 4. Dig. Lib. LS, tit. 1, /. ID. All contracts of sale, although positive in their terms, accord- ing to these laws, have, it is said, this im- plied condition; "provided the price is paid." 7 Coursde Code Civil, 1.52, par Del- vincourt. It was admitted on the argu- ment by the counsel for the appellants, that the decisions of the English courts [fui'nished but little or no countenance to [the doctrine they advanced; lint this was i asci'ibed to a provision in the bankrupt jlaw of that country, which declares that I the goods found in the possession of the j tiankrupt subject to his order or disposi- I tion as owner, shall p.-iss to his assignee, I though they be in fact the property of i others. This statute would cut off this i lien incases of bankruptcy where it would j most frequently arise; but it would often 1 arise where there was no bankruptcy. If iit is a rule of the common law, it must I be shown to have existed at some period. j This is not a matter confined exclusively I to commercial dealings and to l)e settled I by commercial usage. In France it is not j a provision of the commercial code alone; jit is founded in the Civil Code, and has a ; general application to all sales. Are we i then to recognine the rule as a part of the |commonlaw? This, I think, we cannot ] do unless we have some proof that it isso. I We are asked to infer its existence in rela- tion to personal property, because it ex- j ists in the case of real property ; but even in relation to real pro|)erty it does not ex- [ ist as a rule of the ancient common law ; I it is a doctrine of equity, and not of law. iand was transplanted into equity from 'the civil law. Hut it may be said that if ] ecjuity can adopt the rule of the civil law 1 as applicable to real estate, it may adopt j it in extensn. If we tind it as it is claimed : in this case in our system of eciuity, with- i out inquiring liow or when it came there, ' whether by a bold act of adoption or by insinuation, whether it is to be reverenced for its age or admired as a modern im- provement, we ought to give the benefit of it to the api)ellanfs. We are referred to no case on the argument, and I think the search would be in vain to find one, wherein it has been decided in a court of law or equity in this country or in Eng- land, that after a sale of personal jiroper- ty and a fair and alisolnte delivery to the purchaser personally, the vendor can re- claim the property because the considera- tion has not l)een paid. There is an intimation of Lord Hard- wicke,in Snee v. Prescot,! Atk. 1'4.'), which conveys his opinion of the reasonableness of the doctrine, that the seller of goods should have a right, in cases of insolvency, to resort to the goods sold, even after delivery, to secure himself for the pur- LUPIX V. MAIHE. 525 fliiiso motio.v; but tlio caHedid not prt-Hcnl n Htato of fnctH on which Hiich a (|i)(.'Mtioii could arise (or lii.s deU-i-rnina tioii ; it wan a (di'ar case of HtoiipaKi'in transitu. .Soniii expressions of Lord Loudllljoronuli, in the ease of Mason v. Liclvl)arro\v, 1 II. I!lacl<. :!(llp, wonid seem to place the rijilit of stop- page in transitu n]ion the Rronnd that the Kale is HO far incomplete, until theiMirch.ise money Is paid, as to prevent the titlelrom vesting absolutely in the purchaser. "The admitted right of the conHij;iior, he says, to stop the goods in transitu as against the consignee, can only rest upon his orig- inal title as owner not divested, or upon a legal title to hold the possession of the goods till the price is paid as a pleilge for the price." I'utting the right upon the latter nlternativ<', no inference can be drawn from it to countenance the doc- trine contended for in thiscnse. .Mtliongii the cases in relation to the stoppage of property in transitu were referred to on the argument, and the d<JClrine discussed somewhat at large, an examination of these cases, or a particular consideration of that doctrine, does not seem to me to be called for to enalde ii« to come to a right conclusion in this case. If there is any r'rinci(de established In law, it Is that the right to sto|) in trannitu exists only during the transit of the property; when that is coiiiplele. and the property has come fairly ami fully to the possi-Kslon of the purchaser, the right is at an enil. It was urged on the argument, tliat Uio doctrine lontended for on ti.e part of the a[)pellants is so salutary, if wedid not find it sanctioned by any other court, wo ought to take this occasion to legitimatize It. In reply to this suggestion, 1 will bor- row the language of .Mr. .Inslice .Story, in the casi! of Conyers v. Knnis, '2 .Mnson, 'SK, in wliich <iueslionH, in all respects similar in principle to those now under consider- ation, were decided ns I propose to decide these: "I clo not sit here to revise tlie general judgment of the common law, ur to establish new doctrines, merely l)PcaUBO they seem to be more con venlent ore^iui- table. My duty is to administer tlie law as I lind it, and I have not the rashness to attempt more than this humlde duty." I am ofoplinon that the decreeof thcchan- cellor ought to be nnirmed. Tills being the unnnimouaopinlon of the court, the decree of the chancellor was thereupon ntUrmed, with costs. MACOMBER v. PARKER. 527 MACOMBER et aL v. PARKER. (13 Pick. 175.) Supreme Judicial Court of Massachusetts. Mid- dlesex. Oct. 20, ls:i2. Replevin for three kilns of bricks at- tached \>y the defendant on several writs aprainst Joseph Evans. Flea, property lu Kvaiis. Hepiiention, property in theplain- tiffs. Trial before Shaw, C. J. It was proved that Hunting and I.,nw- renre had a certain brickyard in Cam-' bridge. orlu;iiinlly leased by A. liianey to .J. | Wilson, who assigned the lease to Hunt- 1 inc & Lawrence. | On the Ist of March 1S20, the followins ; a};''cenient was made betwfcii Uuntin;;! & Lawrence on one part and Kvnnson the ; other: — "Memorandum of an agreement i &c. shovveth, that said Evans has aftreod 1 to make or cause to be made from ei^rht ; to ten hundred tliousaiid good niercliaut- ( able brick in the brick-yard at CambridKo : &c.; said Evans agrees to hire the men and board to the best advantage, to per- 1 form the manufacturing of said brick, an<l i said Evans agrees to give in his time and | services in making said brick; and said i Hunting & Lawrence agree to attend to selling of brick, purchasing of wood and all necessary materials for the raanufac- Inring, collecting the bills &c. to the liestj advantage, and after the l)rick are made, | and the labor and board of the men are paid, and all materials and tools of ever.v [ kind are paid for, and the said Evans' paying to said Hunting & Lawrence sixty | cents per thousand for each and every tlionsand brick made or claj- sold, as rent therefor, then the parties agree to share the profits or loss, as the ease may be, one half each; said Evans agiees to pay every attention to have the brick made in the best manner and in good season for mak- ing brick ; said Hunting & Lawrence shall have full power to retain said Evans's part of the brick or money collected or delits due for brick &c.,in their possession, to the amount of all sums of money now due from said Evans and such other sums , of money, goods &C., as they may from ' time to time advance him ; all of which the parti'^s agree to perform acconliiig to the , true Intent and meaning." i .\o lease of the yard was given to Evans, i and Hunting testified that Hunting & Lawrence expected to secure to them- selves, by the foregoing contract, a ll"n on , the bricks to be manufactnrCil in purwu- ; ance tliereof, for the payment of any bal- ance that might be due them. The plaintiffs offered to prove, that un- ! der such contracts for the manufacture of Inicks, it is customar.v for the owners of .yards to retain all in their liands and account with the makers of bricks for their share of the profits, after the sales are ' rcnde and the proceeds collected. ThisI evidi'ncp was rejected bv the Court. 1 On the 3d of Julv IM".). Hunting & Law- rence stopped payment and assigned nil their property, including the brick yard and all their interest therein and proper- ty thereon, to the plaintiffs, for the benelit of the creditors ol the assignors, and on the same day delivered poRHexRlon of the yard and all the i)ro|.erty thereon to the plaintiffs, in presence of Evans; and the plaintiifs then and there a|)puinted Evaua their agent, by a writing ns folhjws:— "You will please take the charge anil care of all the property and effcct.s in and about the l)rick-yard &c., the said property hav- iiig been this day asslgtied to us &c., you will proceed to sell the same at retail until further orders from us, for cash only, and whenever :|f 100 is received, you will depos- it the satne in the lirancli liank tr> our credit. Please keep and render uh uu exact account of your doings herein." Hunting & Lawrence made larga ad- vances for the yard in 1"<J'J. Evans as agent of the |)laiatirfs, thus appointed, sold bricks to (livers persons. On Friday, February 2<J. ls:!0. the plain- tiffs |iut a stop to sales l)y Evans, and di- rected Hunting, who had been their agent in the liuslners of the yard, to makea final settlement with Evans; and Hunting and Evans thereupon looked over the state- ments and accounts aud cast them up (or- that purpose. Hunting testified that at this settle- ment Evans agreed to cart all the bricks; the common bricks, at live shillings per thousand. No price was lixed forthe faced bricks. I'poii the settlement, the witness, in liehalf of the assignees, agreeil to take all the bricks at certain estimated prices. The assignees meant to take all the prop- erty and allow Evans his half in account. The bricks were estimated at .'ITD thou- sand, and at the cslimateil priiesaniount- ed to SPISUO; the lioiird &c. at $'^W: mak- ing yi;(i:50. Taking the wliole to the ac- count of the assignees and creiliting Evans his part, there wiiuld still lie a balance due to the assignees, which was to be I)aid in carting. It was agreed, that if the bricks overran the estimatol nuinber, the assiirnces should account to Evans, and if they fell short, he should account to them, for the difference. They were to be counted in the ctinise of the ensuing week. It was agreed that this should be a ilelin- itivesettlement, as Evans was not to take tlieyard again. .Nothing remalueil but to count the bricks, and make the allowance on the one i-ide or the other, if the number vnrieil from tlie estimate. Oncrossexam- ination the witness testilled, that at this settlement there was an express unil'.T- standing with Evans, that the assignees were to take the bricks to their own ac- count; it was a sale of his half. Evans stated expressly that the workmen had all been iiaid. and that he had paid all charges. Evans after this sctllemi-nt car- ried one load of bricks to O. \V. lilake. The assignees were to take Evans's half, as they owned one half l)efore. The wit- ness considered the bargain and sale com- plete, except tliat the bricks were to be counted. 1 hat was to be done the fort>- part of the ensuing week. When the wit- ness went over to take the count, he toiiml the l)ricks had been attachcil as the prop- erty of Evans. Had it not beenfor theiit- tachmeut. a reguliir account current would have been settled. The witness un- derstood that ICvans was to proce»'d Im- mediately to cart the bricks to Uoston, 528 MACOMBER v. PARKER. which he sulicilt-d, but the finalsettlenipnt was not to wuit till the bricl<H were cart- ed, hut was to be tinished as soon as they were counted. Tlie defendant was proceeding in his de- fence, when a question arose, whetlier the plaintiffs liad made out a prima faciecase. It being necessary that they should show that they were the sole owners of the property in these bricks, two preliminary questions arose, viz: — 1. Whetlier by the terms of the contract Evans was interested in the bricks, as joint tenant or tenant in common, when they were made in pursuance of the con- tra( t and were fit for market; — 2. If that were so, then whether upon the facts stated, such a sale and delivery had been niade by Evans before theattach- ment, as to divest his interest. A nonsuit was ordered, subject to the opinion of the whole court. D. A. Simmons and Gay, for plaintiffs. Buttrick and Ashmun, for defendant. WILDE .r. delivered the opinion of the court. It was objected at the trial, that the plaintiffs had not made out a prima facie case, and two questions were there- upon reserved for the consideration of the whole court. 1. Whether by the terms of the contract between Hunting & Lawrence and Evans, the latter, under whom the defendant claims, was interested in the bricks in question as joint tenant or tenant in com- mon, when they were made in pursuance of that contract and were fit for market. 2. If that were so, then whether, upon the facts proved, such a sale and delivery had been made by Evans at the time of the defendant's attachment, as to divest his interest. As to the first question, we are of opin- ion, that by the terms of the contract, the bricks when made were the joint property of the contracting parties. By this con- tract Hunting &Lawrence %vere to furnish the materinls for raanuiacturing the bricks, and to attend to tlie sale of them ; Evans on his part undertook to manufac- ture the bricks, to hire and board the la- borers employed for that purpose, and to allow Hunting & Lawrence sixty cents per thousand for every thousand of bricks nia<le or clay sold, as rent thereof; and after all expenses should be paid, then the parties agreed to share the profit and loss, as the case might be. one half each. That this amounts to a complete con- tract of partnership, cannot, we think, admit of a doubt. Partnership is defined to be a voluntary contract between tw(. or more persons, for joining together the'r money, goods, labor.and skill. or either or all of tlieni, upon an agreement, that 'he gain or loss shall be divided proportiona- bly between them. Gow, 2. With this definition the contract in question fully agrees. It contains every essential requi- site in a contract of partnership, 'i he parties agreed to join together their prop- erty, skill and labor, for the purpose of ac- complishing an enterprise, in wliich they were to have a comm union of interest and a communion of profit and loss. The brifks, therefore, when made were their joint property, and when the partnership was dissolved, and Hunting «fe Lawrence assigned their share to the plaintiffs, the latter became tenants in common with Evans. The plaintiffs offered to prove, for the purpose of showing that Evans had no property in the bricks, and was only enti- tled to a share of the jiroceeds of sale of them when disposed of, that it was usual and customary for the owners of yards, un- der similar contracts, to retain all in their hands, and account with the makers of the bricksfor theirshareof the profits after the sales were made and proceeds collected. This evidence was rejected by the judge who presided at the trial, and we think very properly. The usages of trade may be admitted to aid in tlie construction of doubtful contracts; but the terms of the present contract are by no meana doubtful. So far as the question of partnership or of the light of property is concerned, the con- tract is clearly and explicitly expressed, and the supposed usage, if admitted, could not affect its construction. It would only prove how other parties had considered similar contracts. Indeed, it would hard- ly prove so much, for if other owners of yards had retained possession of the prop- erty there manufactured, it might be by consent, or for the convenience of the par- ties, and not under the claim of any legal right. Besides, the contract expiessly ad- mits that Evans would be entitled to a share of the bricks, and stipulates that Hunting & Lawrence might retain the same as security for an.v lialance which was or might be due from him to them ; BO that the evidence of usage, if it were admissible, would be wholl.v immaterial. The remaining question is. whether be- fore the attachment by the defendant there was a valid sale from Evans to the plaintiffs. It is ol)jected in the first place, that the contract of sale wasnot loraplet- ed, because the bricks had not been count- ed according to the stipulation lietween the parties to that effect. Ari<l if the counting was intended by the parties to precede the completion of the sale, then undoubtedly the objection must prevail. The evidence, however, does not support this objection, but rather shows that the sale was considered as complete and ab- solute at the time when the settlement between Evans and the plaintiffs was made; or at least the jury would he war- ranted by the testimony of Hunting, to find that such was the intention of the contracting parties. Tlie whole bricks 'vere estimated at 370 thousand. Evans sold his share in the whole and received pay in account, and a balance was due to the plaintiffs which was to be paid for in carting the bricks, so far as that might go. It is true the liricks were to be count- ed, but that was to be done to enable the parties to come to a settlement of their accounts, and not for the purpose of com- pleting the sale. Taking the whole of Hunting's testimony together, this, we think, is the reasonable inference to be drawn from it. If the bricks had been ac- tually delivered, there could have been no question that the sale would have been MACOMBER o. PAUKER. 529 complete, notwithslniidinK the bricks were to he afterwards cnunted. The Ken- ertil iiriiiciple is. that where any operation of wcislit, ineuHureuieiit. coiuititif; or tlie lll<e, rcii.diim to lio performed, in nriler to aHcertain tlie price, the (|uaiitity or the particular ((itnmoility to l>e delivere(i,nn(l to put it in adeliverablo Htate, the ccjn tract is incomplete until such operation is per- formed. Urown on .Sale.i, 44. Hut where the (.rooils or commodities are actually delivered, that shows the intent of the parties to complete the sale liy the deliv- ery, an<l the weishins or mensurinK or counting afterwards would not he consid- ered as any part of the contract of sale, hut Would he taken to refer to the adjust- ment of the final settlement as to the price. The sale would he as complete as a sale upon credit hefore the actual payment of the price. Nothiufi can he f<iund in any of the numerous cases on this point, whicii militates a;;ainst this positiou. U'e come, then, to the second objection to the sale, namely, that there was no de- livery. In answer to this objection it was said, as Evans agreed to cart the bricks and did actually cart one load after the sale, this may be considered as a delivery of a part umler an entire sale, and so ac- cordiiiK to the authorities would amount to a constructive delivery of the whole. I'erhaps this may he so, hut we do not think, under the circumstances of this case, that any actual delivery was necessary. The plaintiffs were in fact as much in pos- LAW .SALhS — 34 Bession o( the bricks hh Evumh woh; he was their aKent; the bricks were retiinln- ins in their yard, and under the circum- stances proveil, a delivery would he nlto- Kether an unmeanin;; ceremony. The plaintiffs aoceptefl the hrii-ks, i;ave ordeiv t(j Evans to cart tiK'm, and in all respecls treated them as their property. The sale, tlieref(jre, amounleil to a transfer, aad was so considered by the parties. Then it was ol)jected, that the sale was void liy the statute of frauils; hut as here was a delivery of a part, that alone would take the i-ase out of theslatute. But that which took place was eijuivalent to a de- livery of tlie wh<;le, and therelore theslat- ute of frauds can have no application. Whether this sale was void as against creditors, is a (jucstion not now to be con- sidered ; nor have we considered the ques- tion, whether the plaintiffs, before the sale, had a lien on the brick as security lor the balance due them from Evans, since our opinion as to the sale renders this (jues- tion immaterial. These <|uestioDs may be raised <in another trial, but at present wp contine ourselves to the two questions reserveil by the report. As to one of these questions, n'\mely, that touching the sale, evidence may be offered by the defendant which may have a material bearinjr; but as the evidence is reporfcfl. we are all of ojiinion that the plaintiffs have made out a [irima facie case, and the nonsuit must be set aside and a new trial . granted. McCONNELL v. HUGHES. 531 McCONNELL v. HUGHES. (2!1 Wis. 537.) Supremo Court of Wis Wisconsin. January Term, l!57J. Appeal from circuit court, Ureeii Luke county. Ryan & Kirobnll, for af)pellnnt. A. B. Hamilton and Butler & VVinl{ler, for re- HI)oiii]unt. LYON, .1. The bill of exceptions does not |)urp()rt to contain all of the evl- ilciife. We cntinot, tluTcforc, review the evi- dence, but luuHt preMunie that it HiiHtniuH the lindintis of fact by the ciicnit court. That court havini; found that then)aterial nllfgntions of the complaint were |)roved, it follows that if the complaint statcH a valid cause of action, the plaintiff was en- titled lo judKUient. We think that the complaint does state a valid cause of action. It avers that an executory contract for the sale and iiur- chase of wheat was made by the partii^s, and that, in pursuance thereof, the plain- tiff delivered to the defendants, and the defendants acccpteil and received the wlieat. It must lie true that by such de- livery and acceiitanc(! the title to the wheat became vested in the defendants, and the ri^iht to have the price therefor, when the same should be determined as pr(»vided in the contract, in like manner became vested in the plaintiff. But it is ursed on benalf of the defend- ants tliat the transaction was invalid as a sale, l)ecause the contract did not lin)it the plaintiff to the selection of any i)artic- ularday,orof a day within a specilied time, on which the market price of wheat in Milwaukee should control the i)rice of the wheat in (lucstion, but left him the o|>ti()n to select any day in the future for the purpose of fixinjr the price. The contract furnishes a criterion for ns- certainiuK the t)rice of wheat; leavini; nothiiiK In relation thereto for further negotiation between the parties. This in all that the law re(|uiicM. .Story on Sales, §220. No casB has been cited, and we are unable to find one, which holds that It Is essential to the validity of a sale in such cases that the criterion agreed upon should, by the terms of the contract nf sale, be apidicd, and the price tlieieby de- ternnned, on any specilied day or within a specified time. ,Iuil};e Story, In the sec- tion of his treatise above cited, evidently does not intend to lay down any such rule. It may be that, if the pliiint'iff had delayed unreasonal>ly to make such selec- tion after beins requested to make the same, he noRht be comiiellod to do so. But we do not decide this |)id:it. It is further argued that, after a valid sale and before payment of the jirice, there must be a debt owinc by the vendee to the vendor, while in this case, until the price of the wheat was ascertained, there was no indebtedness. The latter part of this I)ro|)c)sition is erroneous. As soim as the wheat was delivered, thedift-ndants owed the iilainliff therefor. There was there- fore a debt, but the nmo\int thereof was not ascertuiucd. It remalnrd unliqui- dated until the price of the wheat was de- termined. The cd)jectionR that the assessor couM not list the claim for the price of the wheat for taxation, and that the same could not be reiiclieil by garnishee process at the suit of a creditor of the plaintiff, while such price remained und(tern)ined, |)resent no practical dillicultles. The assessor would fix the value of the deuiaml according to his best judgment as in other cases of the valuation of propert.v and credits; and the creditor in the gar- nishee proceeding would prol)ably be sub- rogated to the rights of the plaintiff in respect to determining the contract price for the wheat. BY THE COURT. The judRment of the circuit court is atlirmed. McCRORY V. HAMILTON. 533 McCRORY V. HAMILTON. (39 111. App. 490.) Appellate Court of Illinois. Jan. 34, 1S91. Action by JameH numilton aKoinHt William K. McCrory. From a judgment for plaintiff, (lefcnclant appealed. Re- versed. Fryer & NenI, for appellant. F. K. Dunn and -laniea W. Craig, for appellee. WALJy, .7. TliiH was an action of delit on a replevin bond. Tlie replevin Huit was brought Octob.-r 10, IfiS-l. by F. F. Rand<ilpli ugainHt Robert Kanefor a ()ihiii- tity o( barrel staves and .heading valued at $400. The writ was executed by re- |)!evying the property and delivering it to the plaintiff. The defendant died pending the suit and his adniinisti-ntor was made a party in his stead and at the Seiiteniher teiin, ISST, the suit was disniisseil for want of pruse- cution. The jjroperty not having been returned the present action was brought, resulting in a judgment of ?.">VJ 75 in favor of the plaintiff therein, from which an ap- peal is prosecuted to this court by defend- ant McCrory, who was the surety on the bond. Th(! tirst point niailein behalf of the apiiellant is, that upon the death of Kane the replevin suit abated and could not be revived against his administrator. By See. 123, Chap. ;{, R. .S., it is provided that in addition to the actions which sur- vive at common law the action of replevin (and others named) shall survive. Hut counsel urges that means merely that it shall survive only in favor of the represent- atives of the plaintiff, the injured party. In Wehr v. Uroolvs, 21 111. App. ll.'>, we held that the provision of the statute is not HO limited and we see no occasion to depart from that ruling. It is next urged tliat the judgment in the replevin suit is not suUiciently foiinal and that it is not in terms u judirment that the property be returned to the de- fendant, a.s alleged in tlie declaration, but merely that the defendant have a writ of retorno habendo. The objection is, as we think, not sub- stantial. While the judgment Is some- what informal. yet it is not so defective as to he regarded as a nullity. In effect it is an adjudication of cost against the plaintiff and that theproiierty be returned to the dcfendaL't. We are not inclined to the very technical view suggested by ap- pellant and must overrule tlie objection. Certain objections to the action of the court in admitting and excluiling evidence are also considered not well taken, and as we think they are not important in the view we take of the merits of the case, they need not be iliscussed. The main question presented arises upon the evi- dence and the conclusion tobedrn wn from the stand |)oint of the appellee. The proof shows that Kane was a cooper and that Randolph was a miller; that Ranilolph delivered a lot of the staves and heading, of which the property replevied was a part, to Kane, from which Kane mn<le and was to make Hour barrels to be deliv- ered to Randolph; that the material was mostly worked u|) in this way when Ran- dol;)li gave notice to Kane that he would need no more barrels and ilemnnded the staves and heading then on hand, which demand not being compiled with the re- I)k>vin suit was brought. The evidence la contlicting as to the terms of the arrange- ment, it being contended ou the part of Randolph that the staves anil lieading were always his property and that Kane was to be paid for his wiirk at eighteen cents per barrel; while, as Kane contends, the staves and heading were sold to him and became his nljHolute property nt cer- tain rates named, and that he was to pay for the same in barrels at certain i)riceH named for liarrels of ten and twelve hoops respectively. It was evidently mn<Ie a question before the jury upon which the case was sup- l.iosed to hinge, whether the material was sold to Kane or whether It always con. tinned the property of Randolph. If the latter, then it seems to be conceded that no more could be recovere<l in this suit than the amount of whatever was due to Ivane for the work done by him when the demand was made; l)ut if he purcliased the property it is assumed that the value of wliat was replevied may be recovered without regard to the fact that it was not fully paid for. It seems quite clear that though the form of the transaction may have been an agreement to sell the materials to Kane at certain rates and that he should sell the barrels to be made out of It back to Randol|)h at certain prices, yet it was not in any proper sense a sale of properly on either side as that term is usually under- stood. It was rather a delivery for the special purpose of making up into barrels which were to be delivered to Randolph. Had Kane refused to do this or had he sold or disposed of the propertj- in any other way he would have broken his contract with Randol|di. The mere fact that the wlt- I newses may use the terms sell or sale or that the parties may have used them, will not make it a sale when, upon a consider- ation of the whole matter, it ai)pears that there was no sale. We can not believe that it was intended by the parties to change the general own- ershi|> of the property, and whdo Kane may have been and was invested with a special ownership or interest. It was for the puriiose and upon the express trust that ho would do certain work upon it and return it. He was to liecharged with it at certiiin |)rires nnti was to be credited with certain prices upon what lie was to return. It is a misuseof terms to rail this a sale on either side. Kane had a lieu for any balance due hini for the Work done, and If liandolpli ini- prc>i(erly [irevented him frou) manulac- turing the rest of the material, he was also entitled to fair compensation for dam- ages thereby sustained .-ind his lien woulil include that item also; liuf we are of the opiidon that this is the full extent of his demand, in any event, even accepting the testimony offered by the a |) pel lee as the true version of the matter. The judgment must therefore be reversed and the cause remanded. Reversed and remanded. MALLOKY V. WILLIS. 5:;5 MALLORY V. WILLIS. (4 N. Y. 7«.) Court of Appeals of New York. ISoO. Rppleviii for sfvent.v-flvc burrclnof flour. Tlu> pliiintiffs hiid contractPd with the (Icft'tiilii II I. Christopher U'illiH. to di'liver ut tlie Ho|ict()ii Mills a (|iiiiiitity of k'kxI iiiL'U'h;iiit!il)li' wheat to lie niMiiiifaetureil into flour on the following terniH: For every four linslii'lK und fifteen pounds of wheat, Cliiislopfier WilllH was to de- liver one hnndred and ninety-wix poundn of superfine flour, puckeil in liarrels to be furiii-ihed by the plaintiffs. Said Willis was to Kuarantee t!;e inspection of the flour, anil if scratched, to pay nil losses sustained therehy. Tlie plaintiffs were to have all tl)e offals, or feed, etc.; tlie suid Willis to store the saiiie until sold. The plaintiffs were to i)ay si.xteen cents for e;ich liarrel so manufactured, and if tliey upkIc one shillinj; net profit on every liarrel, they were to ])ay said Willis two cents i)er liarrel extra. The plaintiffs delivered thirty-two thou- KOnil five luindred and eighty-six bushels and four |)oiinds of wheat at the Hopeton Wills, and received seven thousand six hundred and sixty-seven barrels and one hundreil and lifty-six pounds of flour, pur- suant to the aureenient. The.v brought this action of replevin aiiainst Christopher Willis and Charles P.Willis, to recover the surplus of seventy-five barrels still diie un- d( r the c(jntract. The defendant Insisted that the title to the wheat passed to Wil- lis by force of the delivery uinler tiie con- tract, and that, therefore, the plaintiffs <-ould not recover the flour manufactured from the same wheat. .lud^nieiit was rendered in favorof the plaintiffs by Pratt, .1.. anrl aflirrned by the jieneral term. The defendants brouj;ht this appeal. J. S. (Jlover, for appellants. Wells, for regpondents. S. H. HURLBUT, J. If the contract was one of fiailment, and if by a proper construc- tion of it the defendants were entitled to the surplus flour, I think Hiebunlen would have rested on them of showing that the article in f|UPstion was such^iurplus. after the plaintiffs had established that it was the produce of their wheat ; so that tnk- iuK the most favorable view for the cie- fendants, there was no error in point of law ill this liranch of the decision at the circuit, which would entitle them to ex- cept, and t he only (|uestion for our deci- sion is, whether tliecontra<-t and thedeliv- ery under it amounted to a sale or a bail- ment of the wheat? The defendants refer us to that part of the contract which binds them to deliver a barrel <if superHne flour ami to iiuar- nntee its inspection, for every four ami one-fourth bushels of wheat, which it is alleged, if the plaintiffs' construction is to prevail, is not only an unreasonable and hard contract for the defendants, but is altoKether inconsistent with the notion of a bailment ; fur it is asked, if it were not a Hah', why shouhl the defendantH Kuaranteo thRt the flour should bear In- Mpectidii. or why sliould they acree for a certain (|nantity of wheat to deliver a barrel of (h.ur? It may be rein.irked In answer to this, that the defendantM belntj ex|ierienceil millers niust be deemed to have contracted with a knowl'due of the Muantily of wheat renuired to yield a barrel of flour; and an the plaintiffs were obliged by the contract to deliver uood merchantable wheat, it seeniH but rea.-ton- alile that the defendants hIiouIiI have been required so to mannfucture It. us that the flour would bear inspecliori; that iheHe provisions must be viewed In the connec- tion in which they stand, and rt>reive a construction wliich shall make them liar- tnonize with the whole expression of the contract between the parties; and that taking the whole UKreement into view, they seem to have been inserted at the 8UK;je8tion of tlie plaintiffs, for the pur- pose, in part, at least, of caiiHiiiK a skill- ful and prudent manufacture of the wheat into flour; and even if they were em- ployed to define the quantify of flour to be returned, they would not overlienr the other provisions of the nt;r«'ement, which import very clearly an underHtandinK between the jiarties tliat the identical wheat which whs delivered by the plain- tiffs should be manufactured into flour (or their beneflt; that they were to pay for the work a stipulated prii-e in money, anil to receive the manufactured article, together with the offals or feed, which should come from the wheat. The lan- jruai^e of the ni;reement will hardly bear a different construction. The plaintlffM by its terms were to deliver wlii-at to he manufactured into flour, which Willis airreed to lio— i. e., he a^rreed to mniiu- faclure the wheat so to be delivered into flour. I5ut this provision would be en- tirely oiitfif place in ane.vcliaime of wheat lor flour. The jilaintiffs were t«) furnish the liarrels in which it was to be packed; thus providing every material forthecom- pletion of the work, and leaving nothinK for Willis to do but to perform the pro|ier labor of a manufacturer. The plaintiffs were moreover to have all the offals or feed, etc.: not such a quantity of oifals as would proceed from like quantity of other wheat, but the offals or feed— i. e., such as should come of };rindiuK the very wheat ilelivered to the miller, who was also to store the feed until the plaintiffs could sell it. And in case Willis perfiiru:eil on his part, i, e., in ease he mniiufartured the wheat so delivereil into flour, with the re- quisite skill anil jirudence. the plaintiffs weiv to pay him at the rate of sixteen cents, or in a certain contiuKi'ncy eight- een cents per barrel, as .a cotnpensation for the labor of mnnufacture. Proper effect cannot be iriven to these provisions of the agreement, without treating It as a contract liy the defendants to inaniifar- ture the plaintiffs" wheat Into flour, to de- liver to them thesptvilic proceeds, at least to the extent mentioned in tie contract, and to receive in satisfaction for the work the stipulated price per barrel. Contractu of this sort, which have received a differ- ent construction, will be found to have 536 MALLORY V. WILLIS. differed very niateriall.v from the present in their terms, as will be seen by a l)riof reference to the leading cases. In Buffuni v. Merry (3 Mason, 478), the plaintiff owned two thousand nine hun- dred pounds of cotton yarn, and agreed to let one Hutchinson take it at the price of sixty-five cents per pound, and he was to pay the plaintiff the amount in plaids, at fifteen cents per yard. H. was to use the plaintiff's yarn in making the warp of the plaids, and to use for filling other yarn of as good a quality. Under this contract the yarn was delivered to H., who failed without having manufactured it into plaids, and assigned it with other property for the benefit of his creditors. The question was whether the property in the yarn passed to H. by the delivery; and Story, J., said that it did; holding that it was not a contract whereby the specific j'arn was to l)e manufactured into cloth, wholly for the plaintiff's account and at his expense, and nothing but his yarn was to be used for the purpose. That in such a case the projierty might not have changed; Itut here the cloth was to be made of other yarn as well as the plaintiff's. The whole cloth when made was not to be delivered to him, but so much only as at fifteen cents per yard would pay [or the plaintiff's yarn at sixty- iive cents per pound. That this was a sale of the j'urn at a specified price, to be paid for in plaids at n specified price. (See, also, Story on Bailments, § 283; Jones on Bailments, p. 10:.'). In Ewing v. French (1 Blackf. [Ind.] 353), the plaintiff delivered a quantity of wheat to the defendants, at their mill, to be exchanged for fiour. The wheat was thrown by the defendants into their com- mon stock, and the mill was subsequently destroyed by fire. The court held this to be a contract of exchange, or a sale of the wheat to be paid for in flour ; that from the moment the defendants received the wheat they became lialile for the flour; that the wheat itself was not to be re- turned, nor the identical flour manufac- tured from it. And this was very well, for the contract was, by its express terras, one of pxcliange. In Smith v. Clark (21 Wend. S3), one Hubl)ard owned a flouring-niill, and the plaintiffs agreed with him to deliver wheat at his mill, and he agreed that for four hushelsand fifty-fivepounds of wheat which should lie received, ho would de- liver the plaintiffs one barrel of superfine flour, warranted to bear inspection. Here was nothing which imported a delivery of wheat for the purpose of being manu- factured, nor any agreement to make it into flour and to receive a compensation for so doing, at a certain price per barrel; and it is obvious that Hubbard might have delivered any flour of tlie quality stipulated for, in satisfaction of the con- tract. Hence it was held that the deliv- ery of the wheat under this agreement amounted to an exchange of the wheat for flour, and that Hubbard on receiving the wheat became indebted to the plain- tiffs. Jn Norton v. Woodruff (2 Comst. 153), the defendant agreed to "take" wheat and to "give" them one barrel of super- fine flour for every four bushels and thirty- six pounds of wheat; l)ut here also there was the absence of a delivery for the pur- pose of being numufactured, no compensa- tion was agreed to be given to the miller for his work, there was nothing about offals, and nothing about the wheat-own- er's furnishing barrels in which to pack the flour. On the contrary, t/ie miller in this case was to furnish the barrels. This court gave proper effect to the language of this contract by holding, that the mill- er, by agreeing to take wheat and give flour in return, had bargained for an ex- change of wheat for flour; that any Hour of the quality described in the contract would have answered its requirements, and that the property of the wheat passed upon its delivery. But in the case under review, Willis con- tracted to manufacture the wheat deliv- ered, and to receive compensation for his labor. The flour, by whicli was intended the produce of the manufacture, was to be delivered to the plaintiffs in their own barrels, and the offals were to be kept in store as their jjroperty. These features give a character to this contract so ma- terially different from that which is borne by the agreements wliicli have received a judicial construction in the cases referred to, that witli the fullest concurrence in the justice of tliose decisions, it may be held that the defendants were bailees and not purchasers of the plaintiffs' wheat, and b<fund to restore its proceeds to them. I am, therefore, of opinion that the judg- ment of the supreme court ought to be affirmed. JEWETT, .T., also delivered an opinion in favor of afflrraing the judgment. ROGGI.ES, GAKDINER, PRATT, and TAYLOJ5, JJ., concurred. BRONSON, C. J., and HARRIS, J, dis- sented. 1 MAKTINDALK c. SMITH. 539 MARTINDALE v. SMITH. (1 Q. B. .■W!l.) n. II. Krister Term, I\'. Vict. April 15, l-^ll. Ti'dver for RoodH anil iihatteln, to wit, Mi.\ HtJU'kM of oatH, etc., of wliieli piniiitiff wii.s lawfully |ioMseHK('<! ii» of liin own property, rieas: 1. Nol«Milly. 2. Tlmt plaintiff was not posscsHcd of the koo<1h and cliatlclH a.s of his own property, in niaiiiicr an<l form etc. Iskiich thereon. On the trial, l)efore Alder.son B., at the Cnniherland Hprin;r aHhizen, 183!), it np- I)eared that defendant, heiiin owner of six HtaekH of ontH tlien Mtandiny; on his around, sold them to the plaintiff, under tlie following; written contract. "April L':;d, ls:!S. Sold to .Mr. .lohn Martindale of Catterlen six oat staeUH, for .£S5. .loliii Smith ^iives .lohn .Martindale lilierty to let the stacks stand, if he thinks fit, nntil tlie middle of August next; and .John Marlindale to pay ,lohn Smith tor the .stacks in twelve weeks from the date hereof." Sinned by the parties. In the licKinnin); of .Inly, the defendant told the plaintiff that, if lie. plaintiff, <lid not pay on tlie Ititli of that month, de- fendant would consider the contract at un end. The plaintilf liid not pay on that day, but afterwards reipiestiMl time, wliicli the defendant refused to ;iive, addiiiy: that plaintiff, as he had failed in i)aynieiit at the time apl)ointed hy the contract, should not have the stacks. Two or three ilays afterwards, the plaintiff ten- dered the money ; which the defeiiilant re- fused to accept. On the 14tli of August, the plaintiff served defendant with a writ- ten notice, in which he reppate<l the ten- der, and staled that he sliould attend to remove the stacks on the next day at ten in the inorninK, and demanded that he should he then admitted to the held in which the stacks were, re(iuiriii(; the de- fendant not to sell thera. An actual ten- der was then atrain made, and refused: and defendant afterwards sold the stacks. The defendant's counsel contended that plaintiff, havlntt made default in payment at the appointed day, was not entitled to the possession. The learned judjie direct- ed u verdict for the plaintiff, «ivin>r leave to move to enter a verdict for the defend- Hnt on the second issue. In Kaster term, 1S.'!!I, Dundas obtained n rule accordiii;cly. Alexander and Knovvles shewed cause. CresHwell, IJundas, and KamBhay, contra. Lord DKNMAN, C. J. now delivered the juilKinent of the court. After statiii« tlie facts, his lordship proc<'edcd as follows: UaviiiK taken time to consider of our judt;nieiit, nwinu; to the doubts excited hy a most iiiKcnious argument, whether the vetKlor had not a riirht to treat the sale as at an end and reinvest the property ill liiinseir by reason ol the vendee's failure to pay the price at the a|ipoiiited time, we are clearly of opinion that he had no such richt,aiid that the action is well brought against him. F.ir the sale of u specilic chattel on credit, thonuli that creilit miiy be limited to a delinite period, traiisferH the property in the >;oods to (he vendee, KiviiiK the vendor a rinlit of actiiiii for the iirice, and a lien upon tlie Koods, If they remain in his possession, till tlial price be [)aid. But that default of pay- ment does not rescind the contract. .Such is the doctrine cited by Hoiroyd .1. from Com. Diir. Agreement. "(It. :!.),ln Tarlintj V. Baxter'; and it will lie found consist- ent with all the numerous cases referred to in the course of the ar^ninent. In a sale of chattels, time is not of tlie <"ssciice of the contract, unless it is made so by (■xpress aKreement, than which nothing; can be more easy, by introilucinu condi- tional (vords into the bargain. The late case of Stead v. Da n her- does not apply, depending; (as Parke B. truly observed In Marshall v. Lynn, i'' not on the materiality of the alteration in the contract, but on the fact of the alteration only. Pothier, in his Traile clu contrat de vente, part. V. ch. 1'. s. (!,' rites tliefivil Code for the firoposilion, that a purclias. er's delay in paying the price does not >;ive the vendor a rialit to reijuire a disso- lution of the contract ; he can only exact by le^al procedure the payment of the price due to him. " Xon ex eo, ijuoil emptor iion satis conventiimi fecit, con- tractus irritns constitiiitur. "•'• lie adds, however, that, from the dilliciilly of en- forcing payment from debtors, tlie Krencli law had departed from the riiiour of tlie.Ke principles, perniittini; a suit for the disso- lution of the contract for default of pay- ment. Thejudse then appointed a more distant day; which passed, and no pay- ment made, the vendor was permitted to resume possession of the tiling sold. But, even after sentence of dissolution, the purchaser may prevent that effect, niiil keep what he has liou»<ht, by appealing, and offering, on that appeal, the price which he owes, with interest andexpeiises. The vendor's right, therefore, to ilelnin the thinn sold afj;ainst the purchaser must t)e considered as a right of lien till the price is paid, not a right to rescind the bargain. And here the lien was gone hy tender of the price. My brother .Mderson directed the jury according to these prln- ciiiles: and the rule for settint? aoiile the verdict must be discharged. lUile discharged. ■ C B. & C. 3C.n, :!(52. > 10 A. & E. 57. 'G M. & \V. 117. •Art. ■17."'>. (Oriivres. I "Cod. lih. iv. lit. 44, 5 14. ■ 1 p. OIO. '.M IM.) MAUVIX SAFE UO. o. NORTON. rAl MAIIVIN SAFE CO. v. NORTON. | (7 All. Rep. 418, 48 N. J. Uiw, 410.) Siiiireiiiu Court of New .Jersey. Nov. 21), IS'nO. On rertiornri to Mercer coininoii pious. On May 1, lSS4,oiie Samuel N. Schwartz, of UiKlitHtdWii, .Mercer couiily, New .ler- ney, went to I'hilailelpliia, I'eniisylviniia, and there, in tlie ollice of the pro.seculorH, e.xeeiiled thefollowintj instrument : ".May 1, 1S.S4. .Marvin Safe Company: I'lease send, as per mark ^iven below, one sec- ond-hand safe, for wliieh the un<lersit;ned ajirees to pay the sunt of eighty-four dol- lars, (!ifs4, | seven dollars ca.sh, and halance seven dollars per iiiontli. Terms cash, dclivere<l on hoard at i'liila<lelphia or New ' York, unless otherwise stated in writing. It is agreed that Marvin Safe Company stinll not relin<|uish its title to said safe, hut shall remain the sole owners thereof until aliove sum is fully paid in money. I In event of failure to pay any of said in- j stnllments or notes, when same shall be- come duo, then all of sai<l installments I or notes remaiuinn unpaid shall Imme-' <liately become due. The Marvin Safe' Company may, at their o|)tioii, remove' said safe without lei;al process. It is ex- ■ pressly iindeistood that there ore no con- tlitions whatever not stated in this mem- orandum, and the undiTsijined ay;i-ees to accept and pay for safe in accordance tlieri'with. Samuel N. Schwartz. .Mark: Samuel N. .Schwartz. IliKhtatown, New .lerse.v. Route, New .lersey. Not ac- countal)le for damages after shipment." Schwartz paid the first installment of seven dollars. May 1, 1SS4, aiul the safe was shipped to him the same day. lie afterwards paid two installments of seven dollars ouch, by remittance to I'hil- ailelpliia by check. Nothing more was paid. t)n .Inly 30, 1.SS4. Schwartz sold and ' delivered the safe to Norton for $.V). .Norton paid him the purchase money. He hou>::ht and paid for the safe without notice of Schwartz's asreemont with the prosecutors. Norton took possession of the safe, and removed it to his ollice. Schwartz is insolvent and has absconded. The prt)secutor brouftht trover against Norton, and In the court below the do- ^ fondant recovered judgment on the Kronnd : that, the <le!eudant having bou;;ht and linid for the safe bona tide, the title to j the safe, by the law of ronnsylvania, was transferred to him. Ileforc .lustices DEPUE, UIXON, and REED. A. S. Apiiolset, for plaintiff in certiorari. S. .M. Schanck, contra. niCIH'E. J. The contract e.xpressed in the written order of May 1, 1.SS4, signed by Sell wartz, is for the sale of the prop- erty to him conditioiiallv ; the vendor re- servinjj; the title, notwithstanding deliv- ery, until the contract price should be paid. Tim courts of Pennsylvania make a distinction between the bailment of a chattel, with power in the bailee to be- come tlie owner on payment of the price atrreed upon, and the sale of a chattel, with a stipulation that the title shall not pass to the purchnsor until the contract price shall be paid. On this distinction the courts of that state hold that a bail- ment of chattels, with an option In the bailee to become the u wner on pa vment of the price aKrecd upon. Is vallil, and that the rlKlit of the bailor to reHuine possession on Don-payment of the con- tract price is secure a;;ainst creditors of the bailee and bfina fide purchaHors from him: but that, upon tlie delivery of per- sonal pro|ierty to a purchaser under a Contract of sale, the reservation of title in the vendor until the contract price Irt paiil is void as ntf.'iinst creditors of the purchaser, or a bona llde |iurclia-ior from him. Clow V. Woods. 5 SerR. & R. 275; Eolow V. Klein, T'J Pa. St. 4hs; Ilnak v. I-inderman, lU Fa. St. 4'.i!t; Stadtfeld v. Huntsman, it:,' I'a. St. iVl: lirunswick, etc., Co. V. Hoover, l)."> Fa. St. ."JOS ; 1 llenj. Sales. (Corbin's Ed.) § 4J(;; 21 Amor. Law Rec (N. S.) 224, note to Lewis v. McCabe. In the most recent case In the sujireme court of Pennsylvania, Mr. Justice Sterrett oald: " .-V present sale and ilelivery of personal propeity to the vendee, coupled with an aereeinent that the title shall not vest in the latter unless he pays the price a;?reed upon at the time appointed therefor, and that, in default of such payment, the ven- dor may recover possession of the prop- erty, is (juite different in its effect fr>»in a bailment for use. or, as it is sometimeH called, a lease of the propert.v, coupled witli an afrreenient whereby the lessee may subseiiuently become owner of the jiroperty upon payment of a price agreed upon. As between the parties to such contracts, both are valid ami binilinK; but. as to creditors, the latter Is ^food, while the former is invalid." Forrest v. Nelson, i;> Reporter, :!S, Ids Pa. St. 4S1. The cases cited show that the Pennsyl- vanin courts hold the same cloctrine with respect to bona fide purcliascrs aa to creditors. In tliis state, and in nearly uU of our sister states, c<mditlonal sales — that in, sales of personal property on credit, with delivery of possession to the purchaser, and a stipulation that the title sludl re- main in the vendoruntil theconlract price is paid — have been held valid, not only against the iinmeiliate purchaser, but also against his creditors and bona tide pur- chasers from him, unless the vendor h»8 conferred upon his vendee indicia of title be.vond mere possession, or has forfeited his rifiht in tlie[>ropprty by conduct which tlio law rejrards as fraudulent. The cases are cited in Cole V. Perry, 42 N. .i. Law, :WS: .Midland R. Co. v Hitchcock, :J7 N. J. E(I..-..-)(l, .".:.!); 1 Benj. Sales, (Corbin's Ed.)§$ 4:!7-4(;0; I Smith, L. C. (Sth E.l ) XWM\: 21 .\mer. Law Rok. (N. S.) 224, note to Lewis V. McCabe; l.'> Anier. Law Rev. .'Wl, "Conversion by Purchase." The iloctrlne of the courts of Pennsylvania Is fonmled niion the doctrineof Twyne's Case.S Coke, so. and ICdwards v. Marben, 2 Term R. .'iN". that the possession of chattels under a con'rnct of sale without title is an In- delible bailiie of fraud,— a doctrine repu- diated qu'te ceneraliy by the conrts of this country, and cspeclnlly In this Btnte. Runvon v. (iroshon, 12 N. J. Eq. SG; 542 MARVIN SAFE CO. v. NORTON. Broadway Bank v. McElratli, 13 N. J. Eq. 24; Miller v. Pancoast, 2J N. J. Law, 25G. The doctrine of the Peiiiisylvniiia courts is disapproved by tlie Aincrican editors of Sinith's Leading ('ases in the note to Twyne's Case, 1 Smith, Lead. Cas. (Stli Ed.) 33, .34; and by Mr. Landreth in his note to Lewis v. McCabe, 21 Ainer. Law Keg. (N. S.) 224; but, nevertheless, the supreme court of that state, in the latest case on the .suliject, — Forrest v. Nelson, de- cided February Iti, I8S.5, — has adhered to tlie doctrine. It must therefore be re- garded as the law of Pennsylvania that, upon a sale of personal property with de- livery of possession to the i)uicliaser. an agreement that title sliould not pass until the contract price should be paid is valid as between tlie original parties, bnt tliat creilitors of the purchaser, or a purcliaser from liim bona fide by a levy under exe- cution or a bona fide piircliase, will ac- quire a better title than the original pur- chaser had,— a title superior to that re- served by his vendor. So far as the law of Pennsylvania is applicable to thetrans- action, it must determine the rights of these parties. The contract of sale between the Marvin Safe Comiiany and Schwartz was made at tiie company's f)ffice in Philadelphia. The contract contemplated i)erforniance by the delivery of the safe in Philadelphia to the carrier for tiansportation to Hightstown. U lien the terms of sale are agreed upon, and the vendor has done everything that he has to do with the goods, the contract of sale becomes abso- lute. Leonard v. Davis, 1 Black, 47G; 1 Benj. Sales, § 31)8. Delivery of the safe to the carrier in pursuance of the contract was delivery to Schwartz, and was the exccntidn of the contract of sale. His title, such as it was, under the ti^rms of the contract, was thereupon complete. The validity, construction, and legal effect of a contract may deiiend, either upon the law of theplace where it is made, or of the i)lace where it is to be per- formed, or, if it relate to movable prop- erty, upon thp law of the situs of the prop, erty, according to circumstances; but, when the place where the contract is made is also the place of performance and of the situs of the property, the law of that place enters into and becomes part of the contract, and determines the riglits of the parties to it. Frazier v. Fredericlis, 24 N.. I. Law, 1(12; Dacosta v. Davis, Id. 319; Bulkley V. Hanold,19How..390; Scud- (ler V. Union Nat. Bank, Ul IT. S. 406; Pritchard v. Norton, lOG U. S. 124, 1 Sup. <'t. Hep. 102; Morgan v. New Orleans, M. & T. K. Co., 2 Wood. 244; Simpson v. Fogo, 9 Jnr. (N. S.) 403; Whart. Confl. Laws,?!) 341, 34.5, 401, 403, 41.s; Parr v. Brady, 37 N. .1. Law, 201. The contract between Schwartz and the company hav- ing been irade and also executed in Penn- sylvania by the delivery of the safe to him. as between him and the company Schwartz's title will be determined by the law of Pennsylvania. By the law of that state the condition expressed in the con- tract of sale, that thesafecompany should not relinquish title until the contract price was paid, and that on the failure to pay anj- of the installments of the price the company might resume possession of the property, was valid, as between Sell wartz and tlie company. By his con- tract, Schwartz obtained jiossession of the safe, and a right to acquire title on payment of the contract [nice; but until that condition was performed the title was in the company. In this situation of affairs, the safe was brought into this state, and the pro|)erty became subject to our laws. The contract of Norton, the defendant, with Schwartz for the purchase of the safe, was made at Hightstown, in this state. The property was then in this state, and the contract of piircl ase was executed by delivery of possession iu this state. The contract of purchase, the domicile of the parties to it, and the situs of the subject-matter of purchase were all within this state. In every respect the transaction between Norton and .St hwartz was a New Jersey transaction, tinder these circumstances, by princii)les of law which are indisputable, the construction and legal effect of the contract of pur- chase, and the riglits of thapurchaser un- der it, are determined liy the law of this state. By the law of this state. Norton, by his purchase, acquired only the title of his vendor, — only such title as the vendor had when the property was brouglit into this state and became subject to our laws. It is insisted that inasmuch as Norton's purchase, if made in Pennsylvania, would liave given him a title superior to that of the safe company, that, therefore, his purchase hei'e should have that effect, on the theory that the law of Pennsylvania, which subjected the title of the safe com- pany to the rights of a bona tide pur- chaser from Schwartz, was part of the contract between the company and Schwartz. There is no provision in the contract between the safe company and Schwartz that he should have power, under any circumstances, tosell and make title to a purchaser. .Schwartz's disposi- tion of the property was not in conform- ity with his contract, but in violation of it. His contract, as construed by the laws of Pennsylvania, gave him no title which he could lawfully convey. To maintain title against the safe company, Norton must build up in himseli a letter title than Schwartz had. He can accom- plish that result only by virtue of the law of the jurisdiction in which heacquireJ his rights. Thedoctrineof the Pennsylvania courts, that a reservation of title in the vendor upon a conditional sale is vt)id as against creditors and bona fide purchasers, is not a rule affixing a certain construction and legal effect to a ccmtract made in that state. The legal effect of such a contract is conceded to he to leave property in the vendor. The law acts upon the fact of possession by the purchaser under such an arrangement, and makes it an indel- ible badge of fraud, and a forfeitui'e of the vendor's reserved title as in favor of cred- itors and bona tide purchasers. The doc- trine is founded upon ctjusidera tion of public policy adopted in that state, and applies to the fact of possession and acts MARVIN SAFE CO. v. NORTON. 543 of ownership under such a contract, with- out rpfianl to the plare where thecontrart was made, or its ie^ai eflect considered as a contraet. In MacCabe v. Biymyre, 9 Thila. G15, the controversy was witli respect to the rights of a mortgagee under a chattei mortgage. Tlie mortgage had been made and recorded in Maryland, wliere tlie chattel was when the mortgage was given, and by the law of .Maryland was valid, thougli the mortgagor retained poNspKsion. Tlie chattel was afterwards l)riiiiglit into Pennsylvania, and tlie i'ennsylvaiiia court lield that the mort- gage, though valid in the state wliere it was made, would not l.e enforced by the courts of I'ciiiisyivania as against a cred- itor or piii-cliaser who liad ac(iuired rights in the projierty after it had been l)r()uglit to that state; that the niort- ^ngecN by allowing the mortgagor to re- tain possession of the property, and iiriiig It into Pennsylvania, and exercise iiolo- riouH acts of ownersliip, lost his right, un- der the mortgage, as against an interven- ing Pennsylvania creditor or purchaser, on the ground that the contract was in contravention of the law and policy of that state. Under substantially tlie same stale of facts this court sustained tlie title of a mortgagee under a mortgage maile in an<ither state, as against a bona lido purchaser who had boiiglit the proii- erty of the mortgagor in this -itate, for tlie reason that the possession of the chattel by the mortgagor was not In contraven- tion of the iiuiilic policy of tills state. Parr v. P.rady, 37 N. J. Law, '201. The public policy whicli has given rise to the doctrine of the Pennsylania courts is local, and the law whicli gives effect to it Is also local, and has no extraterritorial I'lfect. In the case in hand, tlie safe was removed to this state liy Schwartz as soon as he became the purchaser. His possession, under the contract, has been exclusively in tiiis state. That jiossession violated no public policy,— not the public policy of Pennsylvania, for the possession was not iu that state; nor the public pol- icy of this state, for in this state posses- slou under a conditional sale is regarded as lawful, and does not invalidate the vendor's title unless impeaclied for actual fraud. If the right of a purihnhir, under a purchase in this slate, to ovoid the re- served title in tlie original vendor on such grounils be conceded, the same right must be extended to creditors buying under a judgment and execution in this state; for by the law of I'ennsylvnnla creditors and liona tide purciinsers are put upon the game footing. Neither on prim-iple, nor on considerations o( convenience or pub- lic policy, can such a right be conceded. Umlcr such a condition of tlie law, confu- sion and uncertainty in the title to prop- erty would l)e introduced, an<l the Irans- inission of the title to movable property, the situs of which is in this state, would depend, not ujion our laws, but upon the laws and public policy ol sister states or j'oreign countries. \ purchaser of chattels in this state which Ills vendor had ob- tained In New York, or in most of our sister states, under a contract of condi- tional sale, would take no title; if ob- tained under a conditional sale in Penn- sylvania, his title would bi- good ; and the same uncertainty would exist in the title of purchasers of property so circum- stanced at a sale under judgment and ex- ecution. The title was in the safe company when the property in dispute was removed from the state of Pennsylvania. Whatever might impair that title— the continued liossession and exercise of acts of owner- ship over it by Sell wartz.and the purchase by Norton — occurred in this state. The legal effect and consc(iuences of those acts must be adjudged by thelaw of this s'ate. Dy the law of this state it was not illegal nor contrary to public policy for the com- [lany to leave Schwartz In possession as ostensible owner, and no forfeiture of tlie comiiaiiy's title could result therefrom. By thelaw of this state, Norton, by his Iiuichase, acquired only such title as Schwartz had under his contract with the company. Nothing has ocruried which by our law will give him a better title. The judgment should be reversed. ■ MELDRUM c. «NOW. 545 MELDRUM el al. v. SNOW. (9 Pick. 441.) Supreme Judicial Court of Massachusetts. Suf- folk and Nantucket. Murcli Term, 1S30. Replevin lirouKbt liy tlie |)luin<iff8, who lire briiWiTH iti the city of liostoii, to re- cover of tlie (ii'fertiliiiit, u deputy of the sheriff of Suffolk, eiKlileen beer barrels, each containiii'; about tliirty ^allonM of beer, with liieir contontH, bciuK in the cellar recently occupied by <ino Klein, in Market Htreel ; which the plaintiffs aver to be their property, and that the defend- ant took and unlawfully detained theaame on the lirst day of Auy;uHt ISJS. TluMklcndant pleaded as to the beer, that it was the property of Klein, and that he, the defendant. IhhI attached it as such at the suit of Klein's creditors; to which the i)laintiffH replied projierty in themselves, trnversinjr Kein's ownership, and issue was joined thereon. At the trial before Wihle J. the plain- tiffs proved that the beer was Bent to Klein ill the spring, he beins; a retailer of beer, and I'arryinK on lii.s business in the cellar where the bocr was when it was at- tached by the dofendiint. The plaintiffs also [irovcd, that aceord- inji to the universal usatie of trade here, and in other jilaces in this country, the foUowinji are the terms upon which re- tailers are supijlied by the brewers. Jn the spring, the brewersends to the retailer such (iiiaiitity as the retailer exjiects to vend, and at a stipulated price, and in barrels belonKina: to the brewer, which are returned to him when emptied. The re- tailer pays for all that he vends in the course of the season, at (he price at which It was originally lurnished. If the beer I hecomes sour or stale, or is l(i«t by the bursting of the casks, or by fire or other casualty, the loss falls on the brewer. If | any beer remains unsold at the end of the Beason, the retailer has a ri^lit to ivturn i it to the brewer, but the brewer has no | riKht to take it without hisconsent. Pay- i meat is never made liy the retailer in aU- 1 Vance, but usually in annual or semian- nual settlements, when what lias been sold Is paid for and the residue is returned or remains a subject for future adjustment. The profits of retailinu beIou>;c exclusively to the retailer, and all losses by bad debts fall upon him. The brewer's price of beer never varies. IJeer cannot be drawn off nor removed in warm weather without injury and y;rent daiiRer of ilestroyiuK it. Sciwden, a brewer in lioston, who has carried on the business for twenty-two years, testifi>'d, that he nevci' considered the sale absolute till the barrel was emptied. It was testified that the custom was observed by the plaintiffs in theirdealinfis, and that Klein was one of their custom- ers. The iilaintiffs also produced an Instru- ment nuidc and delivered to llicm liy Klein on the first day tif .\uKiist. iircvioiis- ly to the service of the writ, as follows: — " Whereas I have alwa.vs holden the beer, now in the cellar recently occu|)icd by me, LAW SALES — 35 in the casks furnished by MeUlram & Co., as being of their [iroperty unlesH pnlrl for, and the same beiiij; now" attached by my ci'editors, ought of right, according to our contract, to be delivered up to them; therefore and for good and Tuliiuble con- siderations Die thereto moving, I do here- by assign and transfer all my right, title and property therein, unto tlie said .Mel- drum & Co., they crediting me io account for what they thus receive." Horton, the attesting witness to the nu- sigiiment, testified that he went with the plaintiffs' clerk to the defendant, and that the clerk produced this instrument and demanded the beer and barrels, but the ilefendant refused to give tlieni up. As to the (luestion, whether the prop- erty in the beer was in Klein, the jury were instructed, that if they believeil that betook the beer of the plaintiffs on the terms of the custom above staled, the property became vested in him; that this was in fact a conditional sale, and the beer could be attached as belonging to him, and the only remedy of the plaintlffH would be to recover of him the price. The jur.v found a verdict lor the defend- ant. The plaintiffs moved for a new trial, be- cause the judge Instructed the jury, that the delivery of the beer, upon the terms of the custom proved, constituted a condi- tional sale to Klein, and vested in him the liroperty in the beer, subject to attach- ment for his debts ; wliereas the plaintiffs contended, that such delivery vested only a special jiropertyin Klein for certain pnr- p(jses; and that the genera) property re- mained in the plaintiffs ; so tlial the beer could not be iittached as the projierty of Klein: and that by virtue of the assign- ment to them of his special property, they became entitled to the immediate posses- sion, and acquired the whole title, so that the detention by the defendant alter de- mand made, was unlawful. C. (i. lioring and E. O. Loring. for plain- tiffs. S. I). Ward, for defendant. # PERCriUAM. The principal cjueBtion in the case regards the ownership of the beer. Evidence was given at the trial, of a custom among brewtrs to supply re- tailers with beer in the manner stated in the re|)ort of the judge. It is argued that this mode of dealing is necessary, and it should seem tr# be so; for in general the retailer would not be able to purchase a large (luantily of beer at once, and it ap- pears that beer must be supplied t.> him in cold weather, as it cannot lie removed in warm weather without Injury. The (inestion is, whether the beer is liable to attachment as theproi»erty of the retailer. The contract is very similar to that of sale or return in Euglainl ; and in the case of some kinds of manufactures such a con- tract is leviuired, owing to particular cir- cumstances which take them tint of the rules of ordinary sales. It is tni this ground that conlracis of sale or return are held valid ; and It is uniformly consid- ered that in such contracts the properly continues In the original owner; except in 546 MELDRUM V. SNOW. caRes undpr the statute of James, of bank- ruptcj-, wliicli is not in force in this com- monwealth. It is ohjecterl, that in the contract of sale or retarn.tlie article is to bereturni^d, unless sold, but that by the custom under consideration, it may or may not be re- turned, at tlie election of the retailer. We are not; clear that there is any such dis- tinction; nor is there good reason for it. It is consistent with the English law, that the beer shall remain the i)roiierty of the brewer until the election of the retailer shall be made. We place this contract on the same ground as that of sale or return in Eng- land, and we are glad to find authorities whichsustain us; but without authorities we should deem it proper tu uphold such a contract. Retailers who take beer to sell are often persons of very small prop- erty, and thecustom appears to be so gen- eral and well known, that the retailer would not be supposed to be the owner of the beer; no injury therefore can arise to creilitors of the retailer. And it being beneficial to the couiinunity to introduce the use of beer, public policy would justifj- us in favouring the custom. Tt is asked, how shall the beer be at tached; whether as the property of the brewer, or of the retailer. It is not neces- sary for us to answer this question. There are many cases where chattels can- not be attached as the property either of the general or of the special owner. An otijection is raised in regard to the possession of the plaintiffs in replevin, the possession and the right of possession being here in the retailer. It is sufficient to remark, that when the sale of beer is stopped by the acts of the retailer, his right to retain ceases; and further, in the c.ise before us, the general property being in the brewer, and the retailer having as- signed all his right in the beer to him, the action may well lie. Xew trial granted. MKWS 0. CAUIi. 549 MEWS V. CAKR. (1 Hurl. & N. 4»4.) Exchciiuer. Nov. 20, 1856. The declaration stated that the plain- tiff put up (or 8)iIo by public auction in lots a larfjc (juantity of timber of a cer- tain descripf Ion, &c., unilcr and subject to the following couditiouH of Hale. (Tlie declaration set out theconilitions, of which the followinK only are mjiterial): tii-Mt, that the hitihest bidder sliDuld be deemed the purchiiser, &c. ; fourthly, that the gooils should he paid for and cleared away within twcnty-eiKht days froir, the day of sale; sixthly, that in default of compliance with the aliove conditions tlie deposit money received shall be forfeit- ed, and the purchasers shall be liable for all loss, charges, interest of money, or any expenses whatever attendant on n re-sale either by private contract or [lublic auc- tion. Averments: that on the said ex- posure to sale of the said timber the de- fendant became the hichest bidder for ami the |>urchaser of (to wit) twt) lots <jf the same on the conditions aforesaid, at and for a certain sum (to wit) of tls! (is., and he a;:reed with tlie plaintiff to become the purchaser thereof on the said conditions and at and for the said price, and to com- ply with the said conditions, and the plaintiff accejited him as such purchaser; and althou;j;h the plaintiff has at all times been ready and willint; to do and perform and has clime and peiformed all thinus and all tiiinRs have happened to entitle him to a performance by the de- fendant of the said conditions of sale and his said agreement, and althoH^ih the de- fendant accordin;; to the said conditions of sale and his said atrrecinent ou^ht to have iiaid for ami cleared n way the said lots within twenty-eljj;lit days from the day of sale, yet the defemlant did not nor would at any time within the said space of twcnty-ely;ht <l«ys from the day of sale pay for or clear away the said lots or any part thereof; and thereupon, in accord- ance with the said conditions of sale and after the expiration of the said period of twenty-eight il.-iys from the day of sale, and in a reasonable time in that behalf, the i)iaititiff did n'-sell the said lots by public auction at and for a less sura thin the amount so to ha re been paid for the same by the defendant as aforesaiil, to wit, at a loss of ,fj() ; and the plaintiff was put to and incurred p;-eat expense, to wit, n further sum of ,tL'(), for and in respect of divers charges and expenses attendant on such re-sale, &c.: of all which premises the defe!idant afterwards and before the conimencenient of this suit hail notice, and was then recpiested by the plaintiff to pay him the said several sums; but the defendant has hitherto wholly neglected and refused so to do. Plea. Tliat the defendant did not be- come the highest bidder for and the pur- chaser of the said two lots on the suld conditions, nor did he agree to becumi' the purchaser thereof on the said coiidil ions at and for the said price and to comply with the said conditions; nor dill the plaintiff necei)t lilm as such purchaser as alleged. Ueplicatioa, taking Issue on the plea. At the trial before Pollock, C. R.. at the last Surrey assiies, It appeared that on the L>(;th of ()ctol)er, 18.^1(5, one Churcldll on behalf of the plaintiff put up for sale by auction several lots of timber under tlie conilitions of sale mentioned in the decln- ration. All the lots were not sold; anil on the following day the ilefendnnt called at theolllee of Churchill and lni|Uired what lots remained unsold. Churchill thereup- on shewed him a catalogue, and he select- erl two lots, which he agreed to purchase, (.'hurchlll then wrote the defendant's name in the cntnlogueopposite these lots. Two or three days alter the defendant again called and requested to know what fur- ther lots remniiicd on hand. The cata- logue was shewn to aim, and be selei-ted jtwo other lots; and on t)elng informed the terms he said he should consider whether he would become the purchaser of them. About the itth .Voveraber he [again called, and on this occasion he agreed to purchase these two lots. Churchill then wrote in the derendnnt's presence his name in the ratnlogue oppo- site these lots, and also the agreed price, £10 lOs. per standard. The defendant then stated that as the prompt day fixi-d by the conditions of sale at twenty-eight days after the day of sale, viz., on the •J3il Novemlier, was so near, he could not pay for the lots then; and it was agreed that the twenty-eight days should lie caii'ulal- ed from thedtli November. Kvldence was adduced to shew that by the custom of the trade persons who purchased lots from those remaining unsold at an auc- tion were always considered as bounil by tlie conditions of sale, the same as if they had purchased at the auction. It was objected on behalf of the defend- ant, tir^t. that Cliurchill was not the pgent of the defendant so as to bind him by his signature, and conseiiuently that there was no contract in writing as re- nulred by the I'tli section of the statute of frauds; secondly. that this, being a sale by private contract, was not subject to the conditions mentioned in the declara- tion. The learned judgedirected a verdict for the plaintiff, reserving leave to the de fendant to moveto entera verdict for him. Hawkins in the present term obtained a rule nisi accordingly, against which .Montagu Chambers and .\lathew now ' sliewed cause. Hawkins appeared to sup- I port the rule, hut was not called upon. j POLLOCK. C. B. The rule must be ab- solute. The sale in questlnn took place some days after the auction was over: and therefore, as regards the statute of frauds, the ease must be determined ns any other ordinary sale. The partlescan- not set up a custom of trade to repeal the j statute of frauds. No doubt an niirllon- 1 eer at the sale Is agent for both seller and ' buyer, so as to bind them liy his slgiin- ■ tnre: but the moment the sale Is over, the 'same principle does not ap|ily, and the I auctioneer Is no longer the agent of both parties, but of the seller only; and the ' signatuie of the seller or his agent cnn- j not Idnd the buyer. The nucstion Is, 550 MEWS 0. CARK. whether there is any evidence to take the ease out of the statute of frauds; and I think that there is none. ALDERSON.B. ion. I am of the same opin- BRAMWELL, B. The only reason why I make any remark is, that the observa- tions of the court in Graham v. Musson' may not be misunderstood. Tliere the court said that, if the traveler had signed '5 Bias. N. C. 603. the defeudant's name, and he had not ex- pressed any dissent, tliat would linve been a recognition of aaoncy. Here the auctioneer eigned the defendant's name, not purporting to act for him, but as the person who sold the goods. It is now established that an auctioneer at the time of the sale is agent for both buyer and seller; but as soon as the sale is over the reason for the rule fails, and he iscertninly not the agent of the buyer unless he has some authority to act on his part. WATSON, I?., concurred. Rule at)8olute. J I MITCH EI>L V. GILK. .153 MITCHELL V. GILE. (13 N. H. 390.1 Superior Court of Judicature of New Hiimpshire. Hillsborough. Dec. Term, 1S41. .\HHUinpsit by one Mitchell aRniimt one (iile, one of the cliuiKi'S licinju; for ti'ii cordH of wood Hold anil delivfrud. It npinured nil the triiil that pluintiff had on his land a lot of seHHoned wood, of which dtfend- ant wished to lioirow a |jorlion in order to complete a boat load. Plaintiff nave him pi-rmiHHlon to lake what he wanted for the |iiir()Oi<i', and. UH defendant pro- posed to cut Home wood from his land near iJhiinllffH, it wan a^jreed thiil the lat- ter Klionld have of it as nmcli aH defend- ant lai^lit take of plaiiililf's wood. De- fendant accorrliny;ly look ten cords of plainliff'H wood, and plaintiff afterwards demanded a like <|uantity of ilefendant, which, however, the latter neglected to deliver. Defendant objected that this evi- dence did not Hiippi.rt the declHratiun, and that plaint ii( niionld have declared on the original contract. 15owiuan & Porter, for i)laintiff. S. D. Bell, for defendant. tJILCHRIST, .1. There is aclaHsofcases where it i.s unnecfssar.v to declare upon the Hpecial contract which the parties may have made. Where on.^ party ajji-oes to do a certain thing, and tlie other party agrees to pa.v a sum of money, and the thing or duty is nerfoniied, but the other party refuses to pay the nione.v, an action lies for the money, because a debt has ac- crued, and nothing remains to beilonebut to pay it. There seeing to be no reason in such a case why a general count should not be sulhcient for the recovery of the money due. The plaintiff's claim does not then Bound in ilaniages, but is for a ilelinlte sum. .Such is ) he principle recognized in the Bank of Colunibia vs. Patterson's Adm'r, 7 Crancli :!0:!; Williams vs. .Sher- man, 7 Wend. lOil; .Jewell vs. Schroeppel, 4 Cowen.'>(i4; Felton vs. DickiuHoii, 10. Mass. 287; Sheldon vs. Cos. 3 B. & V. -120, and in the cases geiierully, whenever the point is adverted to. There is another class of cases, where the only remedy for the plaintiff is l)y an action on the spi'cial iigreemenl. because It still remains open and nnresciiided. In geneial, where goods are solil to be paid for wholly or in pai'l b.v other goods, or by the defendant's labor, or othei-wise than in money, the a<-lion must be on the ,agreemeiit, and for ii breach of it, and not for goods sold and delivered. And this is especially the case unless there be a suiii of money due the pluintiff on the contract, and that part of it which is forsoniething else thiin money has been performed liy the defendant, so that there is nothing to be done which can be the sul)ject of future litigation. In such case pcrh.ips theplain- tiff mav declare that the defendant was indebteil to him in a sum of mone.v for goods sold and delivereil to him in ex- change. But in a caHC tried before Mr. .luslice Buller, where the deelfiratioii was for goods sidd and delivered, anil the con- tract proved was, that the goodn should be paid for partly In money and partly In buttons, the plaintiff was nonsuited, for not declaiiiig on the s| eclal agreement. Harris vs. Fowle.cited In the caseof Barbe VH. Porker, 1 II. Bl. •.N7. There is also an old case on this point In Palmer's He- ports .304, Brigs' Case, where one in pos- session of land rsroiiilHeil to make a lease of it, and took a line for the lease, after which, and before the lease was made, lie was evicted from the land. It was held that debt dhl not lie to recover the money paid for the line; and the (irlnciple of the decision seems to have bi'cn, that the con- tract to niaki' the lease being still sub- Bisting, the plaintiff should have sued up- on that contract. And tlieaiithorities are nearly uniform, thai where goods are de- livered on a special agreement, a mere fail- ure to perform, iiy the defenilant, does not rescind tne agreement ; but it is still executory and subsisting, and the ri-iin dy is by an action upon It. Baymoiid vs. Beurnanl. 12 .Jolins. '.74; .leiinin::s vs. Camp, l:! Johns, '.if; Clark vs. Smith. 14 .Tohiis. :!2C,; Bobertson vs. Lynch, Is.Johns. 451; Dubois vs. Del. & Hudson Canal Co., 4 Wend. 2S!); Tiilver vs. West, Holt 17S. And in Weston vs. Downes.I Dougl.23,lhe court exiiressly held, that if a contract lie rescinded, an action for money had and received will lie for mone.v paid under it; l)ut if the contract be broken, this action will not lie, but an action for a breach of the contract must be brought. This prin- ciple is fully rec<>gnized in Towers vs. Bar- rett, 1 T. B. 13:!, and In Davis vs. Street. 1 C. & P. 18. Opposed to the general cur- rent both of the ICnglish and American au- thorities on this point, are I heintimations and the reasoning of Mr. Justice Coweii, in the case of Clark vs. Kairlield, 22 Wend. .522. Heexpresses theopinion that IhecascH will justify the position, that lliough the compensation for the goods, or other thing advanced, is to be rendered in serv- ices, or someotherBpecinc thing, if the par- ty promising to render be in default, indeb- itatus assumpsit will lie for the price of the tiling advanced. lie admits that this |;ositii>n goes beyond aiiv direct adjiidii-a- tiori ill Knglanil, although he thinks it may be maintained by the principle of many cases there, and that it is just that in si'icli a case a general count sluiiild be maintained. He cites, with approbation, the case of Way vs. Wakefield, 7 Vermont K. 22;'. 22S, where Mr. .Iiistice Collamer says, tliat " whenever there an- goods sold, work done, or monev passed, whatever stipulations may have been made about the price, or mode, or time of payment. If the terms have transpired so that money has become due, the general count may be maintained." Tlie action was for Iinr- iiess sold. III be paid for in lumber at a specHied time. There lieliig a default In pavmeiit, the court allowed the general count for harness sold. Mr. Justice Cow- en admits that "the learned jiidi:e certain- ly did not cite any .llrect anihoiity for thus applylii;; the rule," and we are not aware that any authority exists for such an application of it. Tollie rule.asabove stated, there may, perliaps, be no obj"c. tlou. The niiesiion in cases of such a char- 554 MITCJIKLL 0. GILE. acter always is, whether the money lias become (hie; aiiO if no more l)e meant thnn tliat a jj;enerul count will lie, where a con- tract has been performed, and has resulted in an oblination to pay money, then we assent to the correctness of the position. Of the propriety of the a|)plication of the rule to the facts in the case of Way vs. Wakefield, we may be permitted, reKi)ect- fully, to express a doubt. It is true that a Reneral count may sometimes be main- tained, where the goods were to be paid for by other Koods. Of this character is the case of Forsyth vs. .lervis, 1 StarUie's Reports 437. The plaintiff sold thedefenil- ant a fijun for forty-five guineas, and af?reed to take of the defendant a ^un, in part payment, at the i)rice of tliirty guin- eas. Lord Ellenborough held that as here wa-i a sale of uoods, to be paid for in part by other goodsat a stipulated price, ui)on the refusal of the purchaser to jiay for them in that mode, a contract resulted to pay for them in mi)ney, and that the for- ty-five guineas might be recovered under a count for goods sold. This case has every characteristic of a sale. The plain- tiff sold the gun for a specified price; the defendant agreed to give, in (lart payment, another gun for a stipulated price, and was bound either to deliver the gun or pay its price. As he refused to deliver the gun, a decision that ho wasindebted tothe plaintiff for its price accords with the gen- eral tone of the authorities. In relation to the case of Clark vs. Fairchild.it is also to be remarked, that in the sulisequent case of Ladue vs. Seymour, 24 Wend. 02, Mr. .Justice Bronson says, that where there is a subsisting special contract Ije- tween the parties in relation to the thing done, all the casts agree that the contract must control, and that the remedy is, in general, upon that, and not uponthecom- nion counts in assumpsit. But apart from authoiity, and from technical reasoning depending upon au- thority for much of its force, it is proper that the form of the remedy should be adapted to the actual state of facts. In no other mode of declaring can the proper rule of damages he applied, where there has been a breach of a special contract. If goods are sold and delivered, the price, or value, at the time of the transaction, is the measure of damages, unless there be something showing a different intention by the parties. The plaintiff is entitled to the value of the goods he has parted with, at the time, and to nothingmore; norcan the defendant be compelled to pay more than the value at the time he ri>ceived them. Both parties act with reference to the value at the time of the transaction. But where a party agrees, but neglects to deliver goods at a specified time, the dam- ages for the non-fulfilment of such an agreement are to be calculated according to their value at the time they should ha ve been delivered. If the articles have fallen in price, the defendant will be entitled to the benefit of such a changeinthe market; if they had risen, the increase in value will belong to the [jlaintiff. There is, therefore, a substantial reason why tlie rights of both parties can be better se- cured, by declaring specially upon a breach for the non-fulfilment of a contract to de- liver goods, than by declaring upon the general count; and this reason probably has had its effect in causing the forms of the remedy to be kept distinct. Leigh vs. I Paterson, S 'i'aunt. 540; (Jainsford vs. [Carroll, 2 B. & C. (i21; Shaw vs. Nudd, 8 I Pick. 9. j If, where goods are sold to be paid for otherwise than in money, and the vendee ' neglects to perform, an action must be ! brought on the si)eeial agreement, there is j a still stronger reason for adopting the i same form of the remedy where the goods are not sold, but exchanged. In the for- mer case, tlie goods are at least sohl ; and I so far the evidence supports the declara- [ tion. But the latter case has no feature in [common with a contract, necessary to support a count for goods sold and deliv- ered. Now thetransaction between those parties was, properly speaking, an agree- ment for an exchange of goods, and not for a sale. Blackstone says, 2 Coinm. 446, "if it be a commutation of goods for goods, it Is more properly an exchange; if it be a transftrring of goods for money, it is called a sale."' Here the defendant agreed to deliver to the plaintiff as much wood as he received of liiui. This agrje- ment the defendant failed to perform. There is, then, a breach of the ■special agreement, and there isnotliingelse. The injury sustained by the plaintiff is to be compensated by a recovery of damages for the breach. There is nothing in the case that sliows a 9ale of the wood by ei- ther party to the other; norcan thetrans- action be considered a sale, without a dis- regard of all the authorities wliich distiii- j guish actions sounding in damages for a I breach of contracts, from actions to recov- er a definite sum as the purchase money for goods sold. ; Nor is the case altered by the fact that I no suit could be maintained without a de- imand. The wood was to be delivered to : the plaintiff at such time as he should de- ! sire it. The plaintiff would have a I'ight j to the performance of the agreement when- 1 ever he should notify the defendant that [he desired the wood. There could be no ! breach of the agreement by the defendant until after this notice; and a refusal to deliver was a breach, for which an action lis maintainalile. That a demand, in a given case, is necessary beftjre a suit can ; be niaintained on a special contract, by no means proves that the demarid alters I the form of the remedy to which theplain- tiff is entitled. It might as well l)e said, that because an action on a st)ecial con- tract could not beiuaintained untilagiven period had elapsed, therefore the lapse of time altered the form of the remedy. Un- doubtedly, a demand and refusal may, in some cases, have this effect, hut tjie result does not necessarily follow because the demand must be made. The opinion of the court is, that the plain tifi has misconceived his remedy, and that this action cannot be maintained. Plaintiff nonsuit. MOOOY V. BROWN. MOODY V. BROWN. (34 Me. lOT.) Supreme Judicial Court of Maine. 1S52. On uxcoptions from the iliHtrict court; llatliaw; ,v, J. /^Hsiiin|iHit. on account for inateriiilH and lalxir furnlHJied, anil ono on an ac- count forartick'K Hold and delivered. The accdunt waH tor Hlereotype platcH. $1K; alteration of Haine, $4; and some inlercMt and exprcKHaKe, making in .-ill $L'r>.((4. A wItnesH lor the plaintiff tcKtilied that in l]elialf of the plaintiff he prenented the hill and reqaeHted payment, to which the defendant re|)licd that he had ordered tlie plateH, bnt did not feel ul)le to tal<e them ; that then" waH a mistake in them, which the plaintiff waw to correct at his own ex- peiirte; that ho afterwards carried the plates to tlie store of the defendant, who refused to take tlieni ; that he left them there, <iKainst the remonstrance of the de- fendant; that the defendant afterwards offered to pay $20 for the wiude liiU; that at a still subsequent period, the witness asked the defendant wlien lie woidd pay the ?-M, who replied that he would do it In a few flays; and that the defendant nfterwarils repeatedly said ho would pay the twenty dollars. The jndKe instructed the jury, that, if defendant contracted for the plates to be made for liiin, and refused to accei)t them when made, althouKli he in ifiht be liable to plaintiff in an action for dnmaKes for not fiilfillin;; liis contract, yet he would not be liatile in this action for their value, as for jioods sold and delivered; that if they were left ;it defendant's storenKiiinst his consent and remonstrance, such a i)ro- ceeiliriK on the part of plaintiff could have no effect to varv the liabilities of defend- ant. I!ut if afterwards defendant offered to pay the twenty dollars in full for the liill, and if that offer was accepted, tlie |)lain. tiff would be entitled to recover the twen- ty ilollars and Interest thereon from the lime such offer was accepted, but that de- feiulant would not 1)0 bound liy that offer, unless it was ncce|>ted. liefore SIIEPLKY, r, J., and WKLLS, RUE, and APPLETON, J.I. J. E, CJodfrey, for plaintiff. Simpson, for the defendant, SIIEPLEY, C, .1, There is not a perfect agreement of the decided cases upon the question iiresonted l)y the exceptions. The \i\\\ apiiears to bo entirely settled in lOnsland in accordance with the instruc- tions. Atkinson v. ISell, 8 R. & C. 277; Elliott V. PybuH. 10 Uinu ,'il2; Clarke v. Spence, 4 Ad. & El. 44s. Thecasc of IJement v. Smith, 15 Wend. 40:t, decides the law to be otherwise in the stale of New York. The case of Towers V. Osborne, iStra. ."iiHi, was reliTreil to as an authority for It. The plaintiff In that case does ajjpenr t<i have recovered for the value of a chariot, which the <le- fendant had rcfuHi'd to take. No question appears to have been made reHpectlni; his rinht to do so, if he was entitled to main, tain an action. The only qiieHtion decided was, whether the case was within the statute ol frauds. In the case of Dement v. Smith, C. J. Sava.":e appears to have cunsidered tho plaintiff entitled upon iiriiiciple to recover for the value uf an article manufactured according to order anil tendered to a cqb- tonier refusinjy; to receive it. This can only be correct upon the Krouiid that by a tender the property passes from the manufacturer to the cus- tomer against his will. This Is not tlie or- dinary effect of a teniler. It the property does not pass, and the manufacturer muj' commence an action and recover for itH value, while hi.s action is pendinu it niuy be seized and sold Ijy one of his creilltors. and his lejral riRlits be thereliy varied, or he may receive benellt of its value twice, while the customer loses the value. Tlie correct principle appears to have lieen stated by Tindal, t'. .1., in the case of Elliott V. Pybiis, that the mniiufucturer'H rlKht to recover for the value ilepends upon the <piestion, whether the property has passed from him to the customer. The value should not be recovered of the customer, unless he has become the owner of the property, and can protect it aftainst any assignee or creditor of the manu- facturer. To effect a change in the property there must he an assent of both parties. It Ib admitted that the mere order given for the manuiacture of the article does not affect the title. It will continue to lie the property of the manufacturer until com- pleted and tendered. There is no axsent of the iitlier party to a chaiiRc of the title exhibited by a tender and refusal. There must be proof of an acceptance or of actH or worils respectinn It, from which an ac- ceptance may be inferred, to pass tlie property. This a|>pearR to be the result of the best- considered cases. There is a particular class of rases to Avhich this rule does not apply, where the customer employs a snpeiintendent and pays for the property manufactured by installments us the work is performed. Exceptions <iverruled. I MOOIJK V. McKINLAV. 559 MOORE V. McKINLAY r'l al. (5 Cal. 471.) Supreme Court of California. Oct. Term, 1855. Appeal from the diHtrict court of the twelfth judicial diHtrict, San FranciHco county. Houce & Wilson, and Cook & OldH, for I appellanto. CharleH H. S. W'illinrnH, for rcHpondent. .MU!tl{j\ Y, ('. J. 'i'his wnH an action in the court lielow, to recover the amount paid hy the plaintiff to the defcnilanlH lor the purchase of an invoice of (garden BecdH. It iH in evidence, that after the arrival of the vcHsel, the plaintiffn were retiucKted to open and inspect the Mceds, hut declined to do so, and paiil for them. 'J'hey were afterwards tested, and (ound to he almost wholly worthless. In order t<j maintain this action, the pluintifls must thowelther an express or Implied warranty. The sale note is as follows: " \V(^ have this day sold you two shipments of seeds tor ar- rival," &c. The plaintiff maintains, that the word "seeds" thus used, amounts to an express warranty: that it has an express sisnlti- cation, importing an article which will Kerminate or y;row, and that it would he error to apply this term to any seeds not ponsessiiiK these properties. And secon<I, tiiat if not an express warraitty, the law will imply a warranty; or, in other words, riiise the presumption, that the article sold is mcrchantahlo, and tit for the use for wliich it was sold. At common law, the rule caveat emptor applied to all sales of personal property, except where the vendor H'lve a;i express warranty, which is said to he such recom- mendations or allirmations, at the time of the sale, as are supposed to have in- duced the purchase. To constitute a war- ranty, no precise words are necessary; it will 1)0 sullicient if the intention clearly appear. DuriuK the time of Lord Holt, the dec- trine was estahlished, tliat to warrant, no formal words were necessary, and there- fore a warranty mi;;ht he imiilied, from the nature and circumstfinccs of the case, and the maxim was thus introduced, that a sound iirice Imports a sound bar- gain or warranty. This doctritie was afterward exploded by Lord iMaiislield, since which time It has undi-rj^ono some modilications in the Kng- lish and American courts, tendiiiK In the former somewhat and In some of tlie states (if the I'nion, to the rule of civil law, widch implies that the i;oodH sold are morchuntalde, and lit for tlie purpoHe for wlncii they were bou^lit. The lietter opinion, however, I lhlnl<, an deduced from ICn^lish and .\miTican de- cioions, is that a warranty will not he Im- idicd, except in cases where ^oods ore Hold at sea, whei-e the party has no i.pportuni- ty to examine them, or in case of a sale by sausple, <jr of [irovisions for domestic use. In Hart v. Wri^'ht, 17 Wend., -yiT. ./udRe ("owen reviews the former deciKinnH of that state as well as the ICuKlish cnscB, and urri.cs at the concluHJon which 1 hav(? staled. This case was afterwards hrouKht before the court of errors ol New York, and the doctrine approved. Jn .Sloses v. Mea<l, 1 Di'iiio, .■('<.">, tlie ques- tion a^ain came before the suiireme c<»urt of New York. In commentinjj; on the de- cisions on this subject, .ludKC Bronson says, "iSome EiiKlish jndnes liave lately shown a stronj; tendency towards the doctrines of thecivil law, in relation tc» sales, and have been disposed to imiily warrantys wliere none exist. * • * I do not regret to find, tliat there are men in Great Itritain who can look beyond the shoresof that island ; l)ut I feel no dis- position to f(dlow them in their new zeni for tile civil law, for the reason, that it is not our law in relation to sales In the best." The same doctrine Is maintained in Fraley v. Bispham, 10 Barr., :1lMI, and many other .\merican decisions. There liave been no departures from this rule in the decisions of this court. In the case of Flint V. Lyon, 4 Cal., 17. tlie Hour was described as "Hnxall," and we held, that tins amounted to a warranty, that tlie article sold was " llaxall," and not a dif- ferent brand or quality <>( Hour. In Kuiz et al. V. Norton, 4 Cal., :!.'>'.), the sale note described the rice as "sound rice." which it was held amounted to a warranty. Testinj? the present case by the rule wliich we have deduced from the better authority of courts, the pbilntltf cannot recover. " The laiiKiiay:e useil In the sale note cannot be tortured Into a warranty, and the fact that the plaintiff had an op- portiiiiity and declined to Inspect the seeds before acceptiuK them, takes the case from the operation of the rule of Im- plied warranty. Judgment reversed, with costs. UEYDKNFELDT, J., concurred. MOIWE V. SIIAW. 561 MORSE et al. v. SHAW. (134 Mass. 59.) Supreme Judicial Court of Massachusetts. Hampden. Feb. S, ISiS. Replevin of wool. At the trijil in the Rii- perlor court, hofore Kockwell, J., the jury returned ii verdict for tlie pluiiitiffH; und the defendant ulleKed e.xcepiiouH. G. M. Stenrns nnc) N. A. Leonard, for plaintiffH. G. F. Hoar, for defendant. MORTON, J. The plaintiffs seek to a void a Hale, upon the ground that the.v weie induced to make it hy false and fraudulent representations o( the defendant. The burilen is upon them to show that the de- fendant knowingly made false representa- tions of matters of fact whirh are suscep- tihleof knowledge. Rei)rosentation8 which are mere expressions of opinion, judgnient or estimate, or intended as e.xpressioHH of helief only, are not sufficient to support the action. They must be statements of facts suscei)til)le of knowledf;e, as distin- guished from matters of mere belief or opinion. Safford v. Grout. 120 Ma.ss. 20. Litchfield v. Hutchinson, 117 Mass. 1!).'>. At the trial of this case, the presiding justice st:i ted tliese principles of law with substantial correctness, and thedefendant d<ieH not coni|)lain of the rulings in this respect. I'.iit he contends that the onl.v representations proved in the case were expressions of o|iinion or belief as to the defendant's ability to pay his <lcbts, and that, therefore, under rules of law adopt- ed by the presiding judge, he should have instructed the jury, as requested, that the evidence would not warrant a verdict for the plaintiffs. The evid.nce tended to show that, in January, isTG, the defendant went to the plaintiffs to buy wool, and. after some conversation as to his business condition and credit, agreed to go home and pre- pare a st.'itement of his aff.-iiis; that, in the February following, he again called upon the plaintiffs, took out n niemoran- LAW SALES — 36 duin book, apparently rend It, and said: "I want to tell ycHi how I stand. I could pay every dollar of iiideliteilneHS of mine, including the mortgages on my real es- tate, and not owe on that real estate more than $1."),000 to *20,()(H>. " It up- I)enred that he had a large and valuable real estate. The statement is ei|uivalent to a ret)iesentation that he huil, imlepend- entiy of his real estate, property enough to pay all his debts except $20,000. Such a representation may he suscepti- lile of either of two interpretations. It may hfl intended as a wilfidly false state- ment of a fact, and may be understood us a statement of a fact. Or it may lie In- tendeil as the expression of the opinion or estimnfcH whicli the owner has of the value of Ills property, ann may Ijc ho un- derstood. .Suppose, lor instance, that a man who owns iiroperty worth ?bHio, for the purpose of procuring credit, re|)resentB that he is worth or that he has property worth $100,000. It would be sell-evident that lie intended to misrei)resent facts, and such misreprfsentatinn would be a frauil. I'.ut, if the same man shoulil repre- sent that III' had property worth $1."jOO, It might well be regarded as an expression of his judgment or estimate of value, and therefore not an acfionablefraod. In such cases, it is for the jury to determine wheth- er the representations were intended and understooil as statements <if tacts, or mere ex|>ressions of opinion or juilgment In the case at bar, the court could not .say, as matter of law, that tliestatements made l)y the defendant as to his iiroperty and del)ts were mere expressions of his opinion or lielief, and not statements of facts. All tiie evidence was before the ju- ry, disclosing the circumstances and con- dition of tlie ilefendant and his property, and it was properly left to them to deciile wliether the statemenls proved were false and frjiudulent representatiousof material facts. Exceptions overruled. I ENDICOTT and LORD. JJ.. olisent. I MOUSE 0. SIIEUMAN. 5C3 MORSE et al. v. SHERMAN. (106 Mass. 430.) Supromo Judicial Court of Massachusetts. Suf- folk. March, 1S71. Contract. The declurntion contained two countH, — tlie (Irst on an account an- nexed, tlie KL'conil for go<j(lM ho1<1, and re- ferring til I lie account an u liill of purticu-' larH. .lolin S. .Miuiny. one of tlie |)lain- 1 tills, testitii'd tlint plaintlffH, as «HHiy;nee.s of tlie InvciilopK' Maiiufaclnrers' Com- 1 paui', in .Inly, ISO'J, took poMsesHion of 1 tlieir ;;oodH in a 8tore in lUiHton. The Htock included "a lot of cutlery, plated ware, ladien' travcllinji hagn, pocket- bookH, pencils, and fancy iroodn." Th" defendant proposed " to buy for cash ail I the Koods in the 3lore of the description named, at a certain discount from the niaiiufacturers' list of prices," and the plaintiffs accejited the offer. All tlienoods of that description were then taken from i the places where tliey had been Uei)t, and I put by themselves, for d(dlvery, anil a schedule was made, showins the amount of )54,l(i:5.7S as their price under the con- tract of sale. The defendant then said that he could not pay for the whole of them, but would like apart of them for his customers, and was allowed to take about $I,l'0O worth, pnyinj,' $1,(100 "on account." The defendant at the time promised to paj- the balance and take away the rest of the Koods in a few days. Thereat of the goods were kept at the store for the defendant for some time, un- til the plaintiffs were to vacate the store, when plaintiffs asked thedefendnnt topa.v the balance due and take thegoods away. Plaintiffs refused to take defendant's iiot(> for the balance, and notified iiim that, if he did nut iiay the balance and take the goods away before they vacated thestore. they should store them at his risk and ex- pense, and refused to let him have them until he paid for them. When they va- cated the store they packed and removed them ti> the waiehouse of one of the plain- tiffs. Tile defendant was present at the time, and made no objection, iiromising to pay for tliem in a few days and take| them away. The defendant then offered the plaintiff at whose warehouse they were stored an assignment of certain leases as security for the balance due, which plaintiffs refused. The plaintiffs then brought this action. The judge, be- ing of opinion that the declaration was insufruient for the goods not taken away by the defendant, reported that c)iiesti(iii before verdict, for the determination of the court. A. A. Ranney, (N. Morse, with him.) for plaintiffs. J. D. lUcliardson, for defend- ant. CdLT, J. A count on an account nn- noxed may be used under our statute, "where the action is for one or more Items, which v.'ould bo correctly described by any one of the coinmon counts." Thi-s includes an action for the price of goods bargained and sold, as well as one tor goods sold and delivered, because formerly the price in such ease could be recovered under an Indebltatua asHumpslt. Steams V. Washburn, 7 (Jray, 1H7. Do thefactH here reported justify the jury In llnding lor the plaintiffs under a general count for goods bargained and sold, or such a count for goods sohl and delivered? If, so, then the declaration on the account annexed is sufTicient, and the case slionld have been submitted to them. The evidence reported tends to show a completed contract of sale. .N'othing re- mained to be done by cither party, in the way of designating, or appropriating, or accepting, the goods sold. 'I'hey were all that were in the store of the description named, and were taken from the shelves, scheduled, and put by themselves. After they were tiins set apart, the defendaat took a portion of them, jiaying a part of the price, and saying that he liu>l not money to pay for the whole, but prom- ising to pay the balance in few iliiys. The goods have since been kept by the plaintiffs ready to be surrendered to the defendant upon payment of the balance of the purchase money. The purciiase was for cash; and the plain- tiffs had a right to retain possession, by virtue of their lien for the price. The con- tract of sale was e.iecutod. It is a familiar rule of pleading that, wlieii the terms of a special contract have licen so far performrd thai nothing re- mains liut a mere duty to pay money, tiieii the amount due may be recovered under a general count. It is only neces- sary to ileclare specially, when the agree- ment remains executory. Tlius when the contract of sale is ciinil)lete, and the ven- dee does not take awa.v the goods, the vendor may recover the price in indebitn- tus assumpsit. Tlie law does not recjuire tliat coniplete delivery, that actual re- ceipt of the goods, which would be neces- sary to defeat the vendor's li.-n for the price, or his right of stoppage In transitu, or which would be renuired to take l In- case out of the statute of frauds. The term "delivery" Is used in the law wf sales in very different senses. It is used in turn to denote transfer of title and transfer of possession; anil where the parties have agreed, and thespecilic articles are appro- priated and accepted, then, Indeiiendently of the statute of frauds, it is often said, there is sullicient delivery to pass the title, although there be no transfer of pos- session. .\iid this must he so. In order to bo consistent with the lien which remains to the vendor for tlie price. - Kent Cora. (t;th ed.) VX2. .Simmons v. Snift. .'> B. & C. N.")7. In Dixon v. Yates, 5 H. & Ail. :!13, Parke, J., said that when, by the contract itself, the vendor appropriates to the ven- dee a specific chattel, and the latter there- by agrees to take the specific chattel and pay the stipulated price, the parties are then in the same situation as they would be in after a delivery of goods in pursu- ance of a general contract. The appro- priation of the chattel Is equivalent to de- livery by the vendor; and the assent of the vendee, to take the specillc articles and pay the jirice. Is equivalent to his (Ac- cepting" possession. And It Is now well settled that "by the law of England, by a contract for the sale of spcclUc ascer- 564 MOUSE V. SHERMAN. tained goods, tlio property immediately vests in the buyer, and a ris'it to the I)rice in tlie seller, unless it can he shown that such was not the intention of the parties." Gilmour v. Supple, 11 Moore P. C. 551, r^dfi. BlacklJurn, J., in Calcutta & Burmah Steam Navigation Co. v. De Mat- tos. 32 L. J.(N. S.) Q. B. 322, 328. See also Damon v. Oshorn, 1 Pick. 47(5; Mid- dlese.x Co. V. Osgood, 4 Gray, 447; Riddle V. Varnum, 20 Pick. 280. In At wood V. Lucas, 53 Maine, 508, cited for tlie defendant, the action indeed was upon an account anne.xed, which would, as we have seen, have been maintained by proof of goods bargained and sold mere- ly, as well as by proof of goods sold and delivered. But the facts of tlie case are not fully stated in the report; the ques- tion passer! upon, as appears both in the opinion of the court ami the head note of the reporter, was whether general indebi- tatus assumpsit could be supported, with- out proof of actual delivery and accept- ance of the goods; and it was erroneously assumed that goods bargained and sohl required a special count, and could not be recovered for under the common counts. That case therefore is of no weight upon the question what evidence is necessary to maintain an action for goods bar- gained and sold. In Turley v. Bates, 2 H. & C. 200. the dec- laration contained a special count, with counts for goods bargained and sold, goods sold and delivered, and on an ac- count stated; the plaintiff sold the defend- ant a quantity of clay at a certain price per ton, to bo carted away by the defend- ant and weighed at his own exjjense; it appeared that it was the intention of the parties that the property should pass to the bcyer; and it was held that the plain- tiff might recover the balance of the price under a count for goods bargained and sold, although the clay had never been all carted away and weighed. It is competent, of course, for the par- ties expressly to agree, in the contract of sale, that the title to the property shall not pass except on the performance of a precedent or concurrent condition, such as the payment of the price. It is then a conditional sale strictly ; and it isfamiliar law that the title will remain in the seller. It will not be a complete sale; it is then an executory contract; and it may be that the vendor's remedy is only upon a special count. Thecaseshows no such ex- press condition here; and there was evi- dence enough, in the opinion of a majority of the court, to warrant the jury in find- ing that it was the intention of the par- ties to make the sale complete and abso- lute, subject only to the vendor's lien for the price. Upon such a state of facts, as we have seen, the declaration is sufficient. Case to stand for trial. fi ^ MORTON 0. TIBBETT. 567 MOUTOX T. TIBBETT. (15 Q. B. 428.) Queen's Bench. May 31, 1850. Debt for K'io(ls Hold and delivered, and HoodH hurjiHiiied and Hiild. Plea, uun- (|iiani indcliitatiiH. JwHue tliereoii. On the trial Ijotore Polloeli. C. 15., at tlie <'anil»ri(li;eHliire wprinn aHHizew, 1S49, it ap- peared that the action wuh IjruiiKlit to re- cover tlie price of lifty ijuarterH of wheat. On 2.'>tli AuKUHt, l,s4«, the ])laintiff and de- fendant heinu at March niaiket. Hold the wheat to the defendant by sample. 1'he defendant waid tliat he wouUl Heiid one IOd;;lcy, n fjeneral earlier and liKhtermnn, on the following morning to re(reive the residue of the wheat in a llj.;hter for tlie purpose of conveying it t)y water from March, where it then was, to Wiwljeuch ; and the defendant himself took the sam- ple away with him. On 'JCith AuiinstEdu- ley received the wiieat accordinj^ly. On the same day thedefendant sold the wheat at a profit, hy the same sani|ile, to one IlampHonat Wislieach market. The wheat ariiveil at Wislieach in due course on the cveninj? of Monday the 2Sth Aujjust, and was tendered hy Edcley to Hnmpson on the followiuK morniiiK, when he refused to take it, on the grounil that it did not correspond witli the sample. Up to this time the defendant hail not seen the wheat: nor had anyone e.xamined it on his behalf. Notice of Hanipson's repudia- tion of his contract was jjiven to the ile- fendant; and the defendant on Wednesday thelJOth Aumist sent a letter to the plain- tiff repudiatinf; his contract with the plaintiff on the same ground. There was no memorandum in writing of the barnain within § 17 of the statute of frauds, l'!t Car. 2, c. IS; and it was objected tor the defendant that there was no evidence of acceptance and receipt to satisfy the re- (|uirpnientH of the same section. The lord chief baron overruleil the objection ; and the counsel (or the defendant addressed the jury e.xclusiveiy on the question of such acceptance and receipt. .\ verdict was found for the plaintiff, and leavegiven to move to enter a nonsuit, if the court should think either that there was no ev- idence of acceptance an<l receipt ornosuch evidence as justilied the verdict. Hefore CA.MIMSKl.L, C. J.. I'ATTE.SCN, COLKHIIXii:, and EHLE, .J J. Worllcdge in Ivister term.ls^i), obtained a rule nisi accordingly. In this term (.May 22d) .\ndrew8 atid O'Mnlley shewed cause. Worlledge and Couch, contra. CAMfBELL, C..I. In this case the(|ues- tion submitted to us is, whether there was an.v evidence on which the jury could be justilied in tindlng (hat the buyer acceiited thegofids anil actiialiy received the same, so as to render him liable as buyer, al- though he did pot give any tiling in ear- nest to bind the bargain or in part pay- j nient, and there was no noteor memoran- dum in writing of the bargain. It would be very dilHcult to reconcile the cases on this subject; and the differ- ence between them ma.v be acconnted lor hy the exact words of the 17th Hcctlon of the statute of frauds nut having been al- ways had in recollection. JudgeH as well as (!<.unsel have supposed that, to tlls- pense with a written meuioranilum of the bargain, there must first have been a re- ceipt (jf the goods by the buyer, anil after that an actual acceptance of the same. Hence perhaps has arisen the notion that there must have been such an accefitance as would preclude the l)uyer from (jiies- tioning the quantity or quality of the goods, or in any way disputing that the contract has been fully performed by the vendor. But thewordsof theact of parlia- ment are: "No contract for the sale of any goods, wares and merchandizes, f-ir the i)rice of £10 sterling or upwards, shall be allowed to be good, excejit the buyer shall accept part of the goods so sold, and actually receive the same, or give something in eainest to bind the bargain, or in riart of payment, or that soiiie note or memorandum in writing of the said bargain be made and signed by the par- ties to be charged by such contract, or their agents thereunto lawfully author- ized." It is remarkable that, notwith- standing the importance of having a writ- ten memorandum of the bargain, tlie legis- lature appears to have been willing that this might be dispensed witli where by mutual consent there has been part per- formance. Hence the payment of any sum in earnest to bind the bargain or In part payment is sutlirient. This act on the part of the buyer, if acceded to on the part of the vendor, is suHicient. The same effect is given to the corresponding act by the vendor of delivering part of (he goods sold to the buyer, if the liuyer shall accept such part and actually receive the same. .\H part payment however minute the sum may be is sufficient, so part delivery how- ever minute the portion may be is sulli- cient. This shews conclusively that the condition imposed was not the complete fulfilment of the contract to the satisfac tion of the buyer. In truth the effect of fultilling tlie condition is merely to waive written evidence of tlie contract and to allow the contract to be estaldished by |)arol as before the statute of frands passed. The (juestion may then arise, whether it has lieen performed either on the one side or the other. The acceptance is to be something wliicli is to precede or at any rate to be contemrioraneius with the actual receipt of the goiiclH. and is not to be a subsequent act after the good? have been actuiilly received, weighed, measured, t>r examine<l. .-Vs the act of parlianient expressly makes the accept- ance and actual rtveipt of any part of the goods sold BUlhcient, it must be open to the buyer to objirt at all events to the quantity and quality cf the residue, and even where there is a sale by sample that the residue offered docs not correspond with the sample. We are therefore of opinion that, whether or not a delivery of tlie goods sold to a carrier or any agent of the buyer is sullicient. sllll thire may bean acceptance and receipt within the meaning of the act without the buyer hav- ing examined the goods or done any thing to preclude hiui from contending that they 568 MORTON V. TIBBETT. do not correspond with the contract. The acceptiuice to let in parol evidence of the contract ap|)ear8 to us to be a differ- ent acceptance from that which affords conclusive evidence of the contract having been fulfilled. We are therefore of opinion in thin case that, although tlie defendant had done for, that there mu.st he an opportunity for the vendor to inspect the (quality of the thing sold; and Abliott, C. J., founds hi.s juiiKment u[)on this consideration, that the defendant had no rinht of property in the horse till the price was paid, and could not till then exercise any act of ownership over l)im. Holroyd, J., says: "There is I nothing which would have precluded him i no evidence to shew that" the vendor from objecting that the wheat delivered "had ever parted with the possession" of to Edgley was not according to the con- 1 the horse. Next conies Hanson v. Arnii- tract, there was evidence to justify the t tage.s Tliere the vendor, who resided in jury in finding that the defendant accept- ■ London, having been in the habit of sell- ed and received it. '"g goods to a customer in the country We will now examine the eases which i and of delivering them to a wharfinger to are supposed to prove the doctrine that j be forwarded by the first ship, in pursu- thcre can be no acceptance within the ance of a verbal order from tlie customer meaning of the statute of frauds unless (ieliveied a parcel of goods to the wharf- the buyer is precluded from objecting that \ inger to be forwarded in the usual nian- the vendor lias not fully performed the j ner. The customer had done nothing be- contract on his part. The first of these yond givingthe verbal orderforthe goods, was Howe v. I'almer.i which we clearly .Abbott, C. J., in a very few words deliv- think was well decided, although we can- ^ ered the judgment of the court that an ac- not concur in all the reasons given for the j tion could not be maintained for the price decision. There the only evidence of ac- 1 of the goods, on the ground that the ac- ceptance and receipt was that the agent ' ceptance in this case not Ijeing by the par- of the vendor who had verbally sold to t^' himself was not sufficient, referring to the defendant twelve bushels of tares, Howe v. Palmer,* where he says: "It was part of a larger quantity in the vendor's I held that there could no actual acceptance possession, had measured off twelve bush- 1 so long as the buyer continued to liave a els of the tares, and set them apart for the i right to object either to the quantum or purchaser. According to the contract I quality of the goods." Rut the decision they were to renrain in the possession of inay well stand on other grounds; and the vendor till calleil for. The purchaser | we may observe that it is an actual re- therefore neither had a(cei)ted nor received i eeipt of the goods which the statute re- the goods. Abbott, C. J., does say: "Iflquires, and not an actual acceptance, he had once accepted he could not after- ^ Carter v. Toussaint^ was llKewise relied wards make any objection, even it it j upon, but it was merely (like Tempest v. turned out that the tares did not corre- I<"itzgpraliH) a case of a sale by pnr(d of a spond with the sample." But this obser- vation was quite unnecessary for the de- termination of the case; and, with the horse that remained always in the pos- session and under the control of the ven- dor, so that he could not have been ac- rcost sincere respect to the great ju<lge j cepted and received by the purchaser, from whom it fell, we do not think that i Abbott, C. J., .-"ays: "The plaintiff's char- it is applicable. Tiie proper ratio deci- ' acter of owner remained unchanged from dendi seems to us to be given by Holroyd, j first to last." The next case is Smith v. J., where he says: "In this case there has i Surman,'^ and there after a sale of timber been no actual receipt of any part of the [ by parol the purchaser had offered to sell goods sold within the usual meaning of | the Ijutts. and had given some directions the term, and 1 think that what has been about crosscutting the timber: but the done ought not to be considered in point of la was an acceptance. For supposing that it was made part of the contract in this case that the seller should set ariart evidence clearly proved that the whole continued to remain in the possession of the vendor. The court, as might have been expected, held that there could be no and measure the thing scdd, that would receipt b.y the purchaser while the posses- not make tlie act of measuring amount to sion of the goods remained with the ven- a virtual acceptance or receipt of the dor. Avery learned judge, my Brother goods by the buyer." The next case relied Parke, does unnecessarily add :§ "That the upon is Tempest v. Fitzgerald, 2 where in [later cases have established that, uiness an action for the price of a horse that had 1 there has been such a dealing on the jiart died after the time when he was sold by of the purchaser as to deprive him of any parol and before he was delivered or paid j right to object to the quantity or quality for, the question arose upon whom the , of tlie goods, or to deprive the seller of hia loss should fall. The only evidence of ac- [ right of lien, there cannot be any part ac- ceptance and receipt was that, while the 1 ceptance. " That thete can be no accept- horse remained in the possession of tlie [ ance and recei|)t by the purchaser while vendor, the purchaser made his servant [ the lien of the vendor remains is clear gallop the horse and gave some directions j enough, for the vendor's lien necessarily about his treatment, requesting that he supposes tnat he retains the possession of might be kejit by the vendor a week longer. The court held that there had been no ai'ceptance and receipt of the horse by the purchaser. But the case has little connection with the doctrine contended ^3 B. & Aid. 321. '3 B. & Aid. 6S0. ' 5 B. & Aid. 5.57. '3 B. & Aid. 3-21. ' 5 B. & Aid. 855. = 3 B. & Aid. 680. '9 B. & C 561. "9 B. & C. 57T. MORTOX V. TIBBETT. GO'J the poods; but I muHt be perniittcfl to | doubt whether the caHos roturred to hnve OHtnblJHhed the residue of the rule. Tlie la«t ciiHc cited on behalf of tl)e defendant KUH Norman V. Pliilli|)H.>' This cawe very much resembled Hanson v. ArmitaKO,!" i and presented no stronjier evidencj of a'j- ceptance and reroii)t. The defendant iiv- 1 ing at WolliuKford fruve the plaintiff, u timber merchant in London, a verbal or- der for timber, dirictiuK it to be sent to the PaddinRton station of the Great West-' ern Railway so that It niiKht be forward- er! to him at \ValliiiKf<»r(l. The timber was accnrdinKly forwarded to the Wal- lin^ford station ; but the defendant beiiiK , informed of its arrival refused to have any tiling to ilo with it. The court held that althouKJi there mif^ht be a scintillu of evi- { deuce fcjr the jury of an acce|)tance of the timber within the statute of frauds, yet there was not sufficient to warrant them in finding that there was sucli an accept- ance; and the court set aside a verdict for the plaintiff as not warranted by the evi- dence. Aldersnii. B.,8ays: "The true rule api)ears to me to be that acceptance and delivery under the statute of frauds means such an acceptance ns j)recludes the pur- chaser from objecting to the (juality of the goods." He adds what, with great deference, is a better reason: "The carrier is only an ogent for the purpose of carry- ing, and here the purchaser liimHelf Imme- diately refused to take the goods." It was upon this reason that the rest of the court appears to have proceeded. If there were such a rule as is contende<l for it would be decisive against the plain- tiff in this case, for the defendant never had an opportunity of examining the goods sold: there is no evidence that Kdgley was bis agent for that pur[)ose; and he had done nothing to preclude him from objecting to the quality of the wheat. I'.ut if there l)e no such rule, then surely there was evidence to submit to the jury and to justify them in finding an acceptance and receipt. He S|)ecially sent Kilgley to receive the wheat after the de- livery of the wheat to his agent and when it was no longer in the possession of the vendor, instead of rejecting it as in other cases, he e.Kercised an act of ownership over it by re-selllng it at a firofit, and al- tering its destination by sending it to an- other wharf, there to l)e delivered to his vendee. The wheat was then construct- ively in his own i)ossessiou ; and could such a re-sale and order take place without his having acce])ted ami received tliecom- mctdity'.' Does it lie in his mouth to say that he has not acce|>ted tliat which ho has re-sold and sent on to be deliverefl to another? At any rale Is not this evidence from which such an acceptance and receipt may be inferred by the jur.v? Upon sim- ilar evidence the finding of an acceptance and receipt has lieen sanctioned by very eminent judges. In Hart v. Sattley,!' where goods had been verbally ordered to be sent from London to Dartnunith, and were sent by a carrier employed by the defendant, and were not proved to have been rejecteil by hira, although there was no proof that they had conn- to Ills hands, (.'ha mbre, .J., is reported to havesaid: "I think under the clrcumstani'eH of this case the defendant must be consideri'd as hav- ing constituted the master of the ship his agent to accept and receive the goods." The plaintiff recovered a verdict which was not disturbed. In Chaplin v. Rog- ers, i- where a stack of hay being sold by jiarol to the detendiint he, without pay- ing for it or removing it, re-sold a part of it to another person who took it away, and tlie jury found that the defendant hud accepted and received the stack of hay. Lord Kenyon sold: "The question was specifically left to the jury whether or not there were an acceptance of the hay by the defendant, and they have found that "there was, which puts an end to any ijuestlon of law." "Here the defemlant dealt with this commodity afterwards as If it were in his actual possession ; for be sold part of It to another person." "The other judges agree<l that there was sulliclent evidence of a delivery to and acceptance by the defendant to leave to the jury." And the verdict for the plaintiff was con- firmed. .So In Blenkinsop v. Clayton,'-'' (jibbs, C. J., anrl the whole court of cora- mon pleus. agreed that If a person who has contracted for the i>urchase of gooda offers to re-sell them as his own, whether this be proof of an acceptance and receipt of the goods by himself is a (juestion for the jury. I will only further nu-ntlon the well-considered caseot Bushel v. Whei'ler." decided in this court. The dofendant re- siiling in Herefordshire had verbally or- dered goods from a manufacturer at Bris- tol; according to his orders they were sent to Hi refold and deposited in a ware- house there, .\fterthey harl been a consid- erable time there the defendant repudiated them. In an action for the price before a most learned and cautious judge. .Mr. .lus- tice Ersklne. it was left to the jury wheth- er up<in the evidence the buyer had nccei>t- ed and received the goods; and the verdict was for the defendant, with liberty to cu- ter a verdict for the plaintiff if the court should be of opinion that there was an ac- ceptance. A rule tr) shew cause was granted ; iMid cause being shewn the court unaniuKiiisly apiiroved of the direction, but dec-lined to take upon themselves to enter a verdict for the plaintiff, and made u rule absolute for a new trial. I partic- ularly rely upon the pointed language in that case of my Brother Ccderldge. who. after observing that the acceptance re- quired by the statute must be very clear and unequivocal, says that It may be con- structive; and nilds that "it is a ciiiestlon for the jury, whether under all the rlroum- stances" "tile acts which the buyer docs or forbears to do are an acceptance or otherwise." These are express decisions throiiah a long course of years that there may be an acceptance and receipt of gtiods liy a purchaser within the statute of fraudR, '14 M. & W. 277. "5 B. & Aid. 557. "3 Oampb. 52S. "1 East, 102. " 7 Taunt. .'■.!)7. »S Jurist. 5::l". \Z Q. B. 442, note. 570 MORTON V. TIBBETT. nlthougli he has had no opportunity of examininK them, and althouRh he has done nothinK to preclude himself from objecting that they do not correspond wiHi the contract. We approve of these decisions thinkinj; that they do not in- fringe upon the statute of frauds and that they conduce to fair dealinj; in trade. We are therefore of opinion tliat in this case the rule for entering a nonsuit should lie discliarged. Rule di.soharged. NATIONAL BANK o. DAYTON. 573 NATIONAL BANK v. DAYTON. (102 U. S. 59.) Hupremo Court of the United Stales. Oct. Term, 1S80. Error to tlip HU|>renie court of Wyoming Territory. Siimuol Slicllabarni'r nnd Jeremiah S. Wilson, lor iihiiiiliff in error. .Mr. William A. Maury, for ilcfeiidaiit in error. Mr. .JiiKtirc 1 1. \ ULAN delivered the o|)in- ion of the court. TliiH was replevin by the Wyoming Na- tional liank a^ainHt TliomaH .1. Day ton. The latter, n» hheriff of Albany county, Wyoming territory, haij, by virtue of .sev- eral attiicIitnentH a^ainHt the property of one W.S. liruniel, levied upon a iiuinberof cords of wood. The bank, claiming; to be the owner of the wood at and before the tiinewhen the writs were isHued and levied, brought this action to recover it, and daniaKes for the <letention thereof. In the court of ori^'iaal jurisdiction a verdict was returned in favor of tlie de- fendant, and judsnient thereon entered. From the judgment of atlirmance by the supreme court of the territory the present writ of error is iirosecuted. I'pon the question of the ownership of the wood, at the date of the respective levies, the wvidence was conllictin>;, and presented a case peculiarly vvilliiu the province of the jury to determine, under proper Huidance as to the law soverniiifr it. Without attemptinu to set forth the whole case, it is sufficient to remark that there was evideuce to establish the follow- iu>; facts : — lirauiel was enRaued in the business of briuKiufr wood down the liin' Laramie river to Laramie city. He had a con- tract with the I'nion Pacllic Railroad (_"ouipany for the delivery to it, at its yard in that "city, by a specilied date, of Hve hundreil cords of wood at Sf."i percord. In the necessary prei)arations for that en- KaKcnient, he had, prior to Oct. ;!(), lsT;i. received from the bank about flMOh. which its presiilent testitied had been ailvance<l to him at different times on this same wood. For these advances the l>ank held his notes. On the day last named he ap- plied to the president of the bank for a fui-- ther advance of money. 1 1 is appliiMlion was denied. He then proposed that the bank should buy all the wood he had, some of which was then in the yard of the comnany, but not received by it, some on the bank of the river, and some in the river. This proposition was at lirst declined; but. after further con vei'sa tiou between him anil the president of the bank, it was agreed that the baidi should take the live liunilre<l cords at $."i per cord, to be paid for in tlie<lel)t of $l.'.l(>0, then held by the hank, and .'if400 in cash, upon the condi- tion that the company would receive the wood from the bank upon like terms. It was a part of the arran^;ement that Hramel shoul I, in that evi'nt, put the wood into the yard of the company, and use the $Mm for that purpose, lu order to ascertain whether the company wnnlil assent to this arraai;ement, the bank cashier anil I'.ramel. by dli-ectlon <if the president of the bank, visited .Mr. Shank- land, who had thecuntrol of all such busi- ness for the company. They returned to- ftellier and reported that Shankland ap- proved the arranirenient, and would moke out the vijuchersfor the wood to theliank. The cashier then paid $4tM) to Itrainel, tak- ing bis note therefor, bearing; interest ut three percent per month; and the latter went on putting fe wood into the yard of the companj'. He had delivered at that place about three hundred and seventy- live cords, and had a few cordH on the river-liauk, when it was all seized by the ilefendant in error, under the attuchmeiitK against Urainel's property. .None of the wood had then been actually received l)y the company, liramel's notes, to whicli we have referred, were held by the bank at the commencement of this action. They were taken, as the tiank claimed and i)roveil by its president, more as memoranda than anytliinu else, and had not lieen surrendered to liramel berouse he had not called at the bank for them. Such was, substantially, the case of the bank. We do not say that tliejury shoidd have found that it was made out. even by a decided preponderance of the evidence, but only that there was evidence tending to show that the contract and acts of the parties were such as the foregoing state- ment sets forth. I.ookinj; at the case in the lifrht of these facts, it seems that the transaction be- tween the liank and liramel was some- thing more than a mere asireeinent as to the disposition of the money to In- ob- tained from the company. It constituted a sale to the bank of all the wood which he delivered at the yard of the company. The absolute title to It passed tothebank upon his depiisiting it there, with the in- tention or for the purpose of completing the sale. Nothing; more remained to be done by him. His contr.iet bound hini to deliver the wood, not to thecompnnv. Init at its yard only. In li«nl eonlemplu- tion, it then can)e into the possession and control of the bank, and was not there- after subject to be reached liy hiscreditors, upon the mere Kround that the title had not passed, or that a complete delivery had not been made. The delivery in exe- cution of the contract, at a specilled place not lielonjiinf:; to him. was such as accord- ed with the natureof the property. W hen placed in the yard of the company, in pur- suance of the' ajireenient, the acts of tlip parties united with the previous verlial contract. rcsuIlinK in a consuniinated ob- ligatory agreement, deprivini; the seller of all furtiier control of the proi)erty, and putting it under the exclusive dominion oT the tiiiver. with a perfected title thereto. From that moment, the indebtedneHS of the seller to the bank to the extent of the contract price of the wood actually deliv- ered at the desi;;nated place was dl8- charKed. and the pror.erty was thence- forward at tlip risk of the liuyer. .\ctiinl manualpossessionof the liank by Its aRcnta was. under the circumstances and rotjnrd- inji the nature of the property, bothlinpruc- 574 NATIONAL BANK v. DAYTON. ticable and unnecessary to a complete de- liveiy. These conclusions are atiumlantly sustained by authority. Benjamin, Sales, hk. 1, pt. 2, p. 134; Hilliard, Sales, c. 7, pp. 124-130; Browne, Statute of Frauds, c. 15, p. 323. The instructions were not in accordance with these views. The coui't failed to state distinctly and clearly the princiiiles of law by which the jury were to be gov- erned. Taking all theinstructions togeth- •'jr, it is evident that the dejjosit of the wood at the yard of the company, in pur- suance of the previous agreement between the bank and Bramel that it should be put there for ultimate delivery to the com- pany, was not regarded by the court as such a change of possession as would, in law, pass the title to the bank as against the creditoi's, whose attachments were subsequently issued and levied. That we do not misinterpret theinstruc- tioiis is quite clear, from the opinion of the supreme court, which declaied that "the record shows that the full and absolute control and possession of the same was publicly and privately retained by Bramel, after the alleged unconditional sale." In view of the pleadings and evidence this could not be the case, unless the court below not only disregarded the evidence in behalf of the bank, but was, further, of opinion that the delivery of the wood at the>ard was insufficient to pass the title, and change the control and possession of the property from the seller to the buyer. But that po.sition, as we have seen, is un- sound both upon principle and authority. We repeat that, it Bramel agreed to sell and the bank agreed to buy The wood at a fixed price per cord, the seller to remove the wood from the river and put it in the yard of the company, for sale or delivery to the latter by the bank, which was to receive the vouchers, and if the wood was so deposited in pursuance of that sale and agreement, then, in legal contemplation, the title and possession of the projjerty passed to the bank from the moment it reached the yard. If after being placed there and betoreits receipt by the compa- ny the wood had been destroyed orstolcn, the loss would have been that oftbel)ank. It is immaterial, under the circumstances, that the company had not, when the at- tachments were levied, expressly or form- ally recognized the bank's ownership of the wood. Some stress was laid upon the fact that the hank took the note of Bramel for the |4U0 advanced to him. That act, it is claimed, was incon.siatent with the theory- of an absolute purchase by the bank. There was, however, evidence conducing to show that the bank took the note by way only of precaution, and to meet the |)ossible contingency of the non-delivery of the wood at the yard of the company. But it was for the jury tosay whar weight should be given to that fact in determin- ing, upon the whole case, whether there was an actual sale of the wood.oronly an agreement as to the disposition of the pro- ceeds after it should be received by the company. The judgment will be revci-sed. with directions to require the judgment of the court of original jurisdiction to be set aside and a new trial gTaute<], and for such further proceedings as may be in conformity with this opinion; and it is So ordered. 1 NEWIIALL 0. CEXTHAL PAC. R. CO. NEUHALI. et al. v. CF.NTHAL PAC. U. CO. (51 Cal. 34.5.)- Supreme Court of California. July, IS7G. Ap|)fal from district court, tifteentli ju- dicial district, city and county of Sun Fi-iiucisco. Caniiilicll, Fox & Campliell, for appel- lant. \V. II. KliodeB, S. M. Wilson, and W. W. Cope, for respondents. CROCKETT, J. This case comes up on tlie finiliiiKs, and there is, tlieretore, no controverHV as to the facts; the only (juestion bcinK. whether the ])laintiffw are entitled to jud;;ment on the facts found. The facts necessary to a correct under- standiii:; of the only question of law in the case are, that a mercantile tirni in New York sold certain merchandise on credit to a similar lirrn in San Francisco, and shipped the same in the usual course of business, by railway, to the veiKlees as consifjnees, under bills of ladinjr in the usual form. The bills of lading were re- ceived at San Francisco by the consiKnees before the ^oods arrived; and while the nicrchnndise was in transit, in the custody of the <lefendant as a common carrier, the consiy:nees failed, and became insolvent, and theieupon the vendors notified the de- fendant in writin;i that they stopped the Roods in transitu; that the vendees had become insolvent, and the (roods were not paid for. and that they must not be deliv- ered to the consi:;neey, but to the vendors. The plainiiffs then were, and for many years had been, auctioneers and commis- sion merchants, doinjr business in San Francisco, and liad been in the liabit of receiving from the coiisii;nees bills of lad- inn, and floods under them, for sjile on commission. About two hours after the notice of stopijane in transitu was served upon the di'lendant, tlii' consi>;nees in- dorsed and delivered the bills of lading to the plaintiffs, who, on the faith thereof and of the ki""'" n&mc<l therein, "ad- vanced a Kiim of money to the consi(;nees in the usual course of business;" and the sum so advanced was to be reiiul)ursed <mt of the pi-oceeds of the uoods, which were to be sold at auction tiy the plain- tiffs. .At the time of the indorsement and transfer of the bills of lading to the i)lain tiffs, they had no notice that the con- sijinecs were in failing; circuinstances, or had failed, or 1liat any notice of stopp.iKe in transitu had been served ui)on the de- fendant. While the goods were still in the possession of the defendant as a com- mon carrier, the plaintiffs, as holders, ex- hii)lted to the ilefendant the bills of lad- ing, tendered the char;;es, and denianded « delivery of the gooils. which was re- fused, and the action is to recover their value. The question involved being one of sreat practical iiiportanee. it has been disc\issed by coutisel both orally and in printed arfiummts, with learninsi and ability, lint after the most cartful re- search, they have Iiiiled to call H) our at- teuiltin a siUK'e adjudicated case in whicii the precise question under review has been decided or discussed. There are numer- LAW SALtii — 37 OU8 decision-), both in i;nKlnnd and Amer- ica, to the effect that where goodH arecon- siiriied by the vendor to the vendee, under bills of lading in the usual form, as In thla case, an attempt by the vendor to stop the iroods In transitu will be uiiavalline as against an assignee of the bill of lad iiiK. who took It in >fi>od faith, for a val- uabl" consideration, in the usual cour-«« of l)usiness, before the at torn [>ted stoppaKe. The leadinK case on this point 1h Lickbar- row v. .Mason (2 Term K, at), the author- ity o( which has been almost univerKally ucquiesce<l in by the courts and text-writ- ers, in this country and In iCnt;lund. There beluK little or no conflict in the au- thorities on the point adjudicated in that case, it would be useless to reeapitulate them here. liut it is Important to ascer- tain the principles which underlie thene decisions, that we may determine to what extent, if at all, they are upidlcable to the case at bar. The first, and, as I think, the controllinc, point determined in these cases, is, that by the bill of l.idiuK the li'Kal title to the ;;oodH [>asses to tlie ven- dee, subject only to the lien of the vendor for the unpaid price; which Hen continuett only so lonn as the goods are in transit, ami can be erjforcecl oidy on condition that the vendee is or becomes Insolvent while the gooils are In transit. On the failure of each of these condi- tions, the ri2;ht of stoppage is gone, and the lien ceases, even as against the vendee, liut it is further settled liy these adjudica- tions, that if the bill of lading i.s assigned, and tile legal title passes to a bona tide |)urchaser for a valuable consideration be- fore the right of stoppage is exercised, the lien of the vendor ceases as against the assignee, on the well-known principle that a secret tru.--t will not be enforced as against a bona fide Indder for value of the legal title. In such a case. If the eijultlea of the vendor ami assignee be considered equal (and this is certuinly tlie light most favoralile to the vendor in which the transaction can t)e regarded i, the rule ap- plies tliat where the equities are equal the legal title will prevail. Hut in such a case it would beiiilhcult to miintain that the equities aree<inal. The vendor has volun- tarily placed in the hands of the vendee a muniment of title, clothing him with the a|q)arent ownership of the goods; and a person dealing «ith him in the usual course of l)usiness, who takes an assign- ment for a valualile consideration, with- out notice of such circumHtances as render th"' bill of lading not fairly and lionestly assignable." has a superior equity to that (»f the vemlor asserting a recent lien, known, ]ierhnps. only to himself ami the ven<lee. (lirewster v. .Sime. -41.' t'al. I:!;i.) These being the conditions which ileter- mlne and control the relative rights of the vendor and assignee, where the assign- ment is maile before tlienoticeof stoppage is given, precisely the same principles. In my opinion, are ap|ilicable when the as- signment is made after the earlier Is nt>- titied by the veiidor. .\ot withslantliiiK the notice to the carrier, the vendor's lien continues to l>e only a secret trust as to a person, who, in the langu;ige of Mr. Uen- jainin, in his work on Sales, section eight 578 NEWIIALL V. CENTRAL PAC. R. CO. liundrerl and Hixly-six, taUes an assign- nientofa bill of killing " without notice of such circumstance as renders the bill of lading not falrl.v and honestly assignable." The law providesno method by which third persons are to be af- fected with constructive notice of acts transpiring between the vendor and the «arrier; and in dealing with the vendee, whom the vendor has invested with tlie legal title and apparent ownership of the goods, a stranger, advancing his money <in the faitli of tliis apparently good title, is not bound, at his peril, to ascertain whether, possibly, the vendor may not have notified a carrier — it maybe on some remote portion of the route — that the goods are stopped in transitu. If a per- son, taking an assignment of a bill of lad- ing, is to encounter these risks, and can take the assignment with safety only after he has inciuired of the vendor, and of every carrier tlirough whose hands the goods are to come, whether a notice of stoppage in transition has been given. It is quite certain that prudent persons will cense to advance money on such securities, and a very important class of coruniercial transactions will i)epractic»lly abrogated. In my opinion the judgment should be af- firmed, and it is so ordered. Mr. Chief Justice WALLACE did not ex- press an opinion. XEWIIAI.L 0. L\S(;\H)S. bSl NEWHALL V. LA.NUDON. (39 Ohio St. 87.) Supreme Court of Ohio. Junuaiy Term, 1883. Krror to district CDurt, Hamilton county. Action by Newhall, Gale & Co. n.(;>iinHt Lini^filon & Son to recover lialnnrc dne on r>U linn-t'ls oi llonr, nt .If'i.l.") per linrrcj. 'I'h(! nnHwcr ndniittcd tlic purcliUHf of 17 ImriolH, (inij .•illcf^cd pnynicrit tlu-reldr, l)Ut ilciiicd t lie |Mirchn.-i<> anil delivery of tlie li.iliine.'. Tile followinn were the Hpeclal Uridines of fact in the CDnnnon pleas: "FirHt. On August L's, INTO, during the forenoon, (he plalnliffH, \vh(» were at tliat diite conirni.s.siiin tnerchantH, in Ciminnuti, Ohio, coiitraeted to Hell the defendantH fifty l)arrels of fl'iiir of u particular (juaj- ity and hrand. The price ti.xed by tliecon- tract waw $7>.^'> per liarrel. On the after- noon of the Haine day the defendants re- ceived from the plaintiffs an onler upon the Dayton Shoit-IJne Itailroad ("oniiiany for the delivery to the defendants of hfty t)arrels of Hour, of the l)rand and ehar- neter called for tiy the terms of the con- tract. .Second. The plaintiffs were the owners, at the time of nivirit; the order, of one hundred barrels of the brand and character called for by the contract. Said one hundred barrels of Hour had ai lived ut the de|)ot of said raili'oad company in I'incinnati, and was stored in the depdt in a i)articular location or conipartiiieut. On said "JStli day of Anyrust plaintiffs H(dd twenty-live liarrels ctf said one huniired biirrels to one Smith, and ;:ave him an or- <ler upon the railroad company therefor. On the L".»th of Aunust they sold to one Sweeney twenty-live liarrels, and ;;ave him an order therefor. On the L".tth, be- tween four and live o'cloi k 1". M., the de- fendants sent their drayman to the depot, with the onler for the titty barrels for the purpose of obtaining son)e of the Hour. He delivered the order to the railroad clerk, took seventeen barrels of the llonr, left the order with the railroad clerk, who noted the delivery of the seventeen barrels on the back of It, and hauled the seven- teen liarrels to defendants' stoi'e, pursuant to his instructions. Later in the after- noon of the l".lth. Smith and Sweeney re- ceived and hauled away the remainder of Hour, due them upon their respective or- <l"rs, thus leavin;;- thirty-three barrels of the one hundred before referred to. Duiim; the ni'xt suceeedinu ni;iht, to wit, at 11!'.; o'clock A. .\1., Aufinst the .•!Oth, the dep.if was burned, and the t hirty-three barrels of Hour left of the one hundred, as above staled, were totally destroyed. Subse- quently the defeuilants paid illaiutiffs for the seventeen barrels which had been hauled, such payineut beiuK without prej- udice to the rights of either party touch- lii«' the remninint; thirty-three barrels. Thiril. Neither the plaintiffs nor the rail- road eomiinny set apart at any time any Bliecilie barrels to the defendants, and there « as no such setting off, nnlQ,ss the fact that Sweeney and Smith haule<l away all of the Hour save the thirty-three barrels which were left, and the hauling of the seventeen barrels hauled by defend- ants, amounted to such separation and appropriation. Neither defenilants nor any of their ncents saw any of the flour which remained after the drayman look away the seventeen barrels, ruir had they seen any part of the one imndred at uny time prior to the hunlint; of the seventeen barrels, nor dii] they know ot the sales to .Smith and Sweeney, or the removal of nnv flour by (liem until after the lire. I'onrtli. The usa^e of business In Citiclnnati, be- t%veen buyers and sellers of Hour, at and liefore the ilates named, was this: I'lonr arrives at the depots consi^'ued to com- mission merchants. The railroad com- pany notlHes the merchant of Its arrival, who pays the freight, and .-i«ns n full re- cei()t. acknowledging the delivery of the Houi' to him. The railroad company then stores the Hour in a jiarticular loeatlcm or compartment in its depot, of which the merchant is advised. He then makcH sales, and, upon the conclusion of an aRreemeut of sale, he hands to the buyers an order upon the rnilroarl company for the nun:ber of barrels caller] for by the conlrnct. The purchaser sends h's dray or w a iron with the order. The drl\er <le- livers the order to the r.-iilroad clerk, wlui Iioints out the Inention or compartment in which the flour against which the or- der Is drawn is contained, and the driver proceeds to loail his vehicle. If (he order calls for a certain number of liarrels, and the comiiartnient contains a lar;;er num- ber, the clriver makes the selection and re- moval of the iiumber to which he Is en- titled, and recei|itH for them. The order in left with the railroad compi.ny when the llrst load is hauled, and separate receipt fiivenby the haulerfor the amount of each load. The p.-irties to this suit umlersloud and pursued this, the usual mode of trans- actiiiK this business. The order from Iho seller to the buyer u|ioii the railroad com- pany speciHes the number of barrels, the number of the car upon which the llonr was transported to the ilepot, ami the number of the locntion or <'oiniiartinfnt in which it is stored; also the liriind and quality of the flour. Fifth. The one hun- dred barrels ot Hour before referred to waB all that was in the location in which It was stored on the "-'sth. iMlth. and :iltli <if Aiiiiust, mill it was all alike, and answered tlie terms of the contract between the Illaiutiffs and defendants in all res|iivtH. " The conclusions of law were: " First. That upon the facts, asfound byllieconrt, the title to the thirty tliree barrels of flour destroyed in the ilepot remained in the plaiullffs until the destruction thereof by lire, and did not pass to the defendants. Second. That the plaintiffs are not enti- tled upon said facts to maintain an action aualnst the defendants as to said thirty- three barrels as for ;;oods biir»;alned niu] sold, or irooils sold and delivered. Third. It is therefore adjudged that defendanffl y;o hence without day, and rei'over their costs in this behall expended, and faxed at ? . To all of which said plalntlff«, by their counsel, except. .liidKuient and liiidintrs of court for defendants. I'laln- tiffs except. Motion for new trial over- 582 NEWHALL V. LAXGDON. ruled, to which plalntiffa except." This judKineiit was affirmed by the district court. Rnmsey & Matthews and C. B. Mat- thews, for plaintiffs in error. P. H. Kuni ler, Drausin Wiilsin, and .lames H. Per- kins, for defendants in error. JOHNSON. C. J. Since the decision of Whitehouse v. Frost, 12 East, 614, the cases l>earinp: on tlio question here in- volved have l)een numerous, bnt by no means uniform. The tendenc.v of the more recent cases has been to follow that ease, though its correctness has l)een ably challenged. This tendency has arisen out of the apparent necessity of adap'ting the Iiriiiciples of the common law to the changes in the new methods adopte<l for the transaclion of hnsiuesa. The accepted piliioiples of right and jus- tice form the grouncUvorU of the law of contracts. In all (luestions involving contract relations, the convenience and wants of business give rise to usages which become part of the contract, where It is made with leference to such usages. This is often called the expansive i)rop- erty of tlie common law, but it is rather the application of accepted principles of right and justice, as evidenced by com- mon law, to new phases and methods in the transaction of business. in view of the nature of this particular business, in case at bar, and the known usage governing buyer and seller, we think it clear that, as between them, by the delivery of the order from the seller, by the purchaser to the warehouseman, and his acceptance of the same, the right to the fifty barrels of flour was perfected in the purchaser, and that thereafter it became his property. It is true, there were one hundred barrels out of which the order was to be filled, but it was all of the same quality, and by the known usage, the onl.y delivery to be made by the seller, was b.v an order on the warehouse- man, which, when presented, entitled the purchaser to separate and remove the propert.v. No selection, properly speaking, had to be made, as all the l)arrels were alike, but only a counting off and separa- tion, and in this I'espect it differs from those cases where it is the inten.tion of the parties that there is to be a selec- tion or designation out of thelargcrquan- tity. The effect of a known usage onsuch a transaction is settled in Steel Works v. Dewey, .37 Ohio St. 242. In that case. Dewey, Vance & Company hud a contract for a large (piantity of ore, belonging to the Iron Mountain t.'omiian.v, to be taken from a larger quantity l.ying on the bank of the river. They sold to the steel works part of the ore so situated, and gave the purchaser an order on the Iron Mountain Company for the san'.e, which was pre- sented and accepted. B.v the terms of the contract, and by the usage of the busi- ness, purchasers were to take away their ore by l)oats during the year, or the order would be canceled. Owing to ice and other causes, the ore was not taken away by the steel works during theyear, though it was there for them in mass with the larger lot. It was held, that as betw-een Dewey, Vance & Company and the steel works, and in view of the usage, the sale was completed, and the right to the ore vested in the steel works, without any separation from the larger mass. We think thi!< case is decisive of the case at bar. Woods V. McGee, 7 Ohio, pt. 2, p. 128 (4l:i), is relied on to sustain the court he- low, and but for the effect of the known usage, tlie language of ,Iudge Grimke sus- tains this daiu). An examination of the facts of that case will show, that while the judgment is right, yet it did not nec- essarily depend upon the principles dis- cussed and declared by the learned judge. That was trover by Woods against Mc- Gee, a warehouseman, for the wrongful conversion of three hundred barrels of flour, which he claimed to own. Thefacts were these: Swearinger owned fifteen hundred barrels of flour, viirying in value from twenty-five to fifty cents per barrel, which was stored with McGee, a ware- houseman. Out of this lot, Swearinger sold to lluttou six hundred barrels, and on the 2ltd of April, gave him an order on MctJee for the same. On the same da.v, Hutton assigned the order to tiordon andSidwell. Seven da.vs thereafter, (ior- don assigned to plaintiff. Woods, all his interest in the order and purehase. This was on Ma.v 1. The order was not pre- sented to tiie warehouseman until May 21, when Woods, as assignee of (iordon's in- terest, received from McGee three hundred barrels, and Sidwell receiveil three hun- dred barrels, and in each case McGee took a receipt for the amount, from the res[iec- tive parties. Wood sued for the three hundred barrels delivered to Sidwell, on the ground that he had purchased the same of Sid well, prior to said deliver.v, through his agent, Gordon. Of this sale McGee had no notice, and it api)ears that Sidwell, at the time he received the flour, presented the original order with the as- signment thereon b.v Hutton to himself and Gordon, and with the assignment of (jordon, otil.v of his interest to Woods. Looking, therefore, to the order, one-half this flour belonged to Sidwell, when delivered to him, and the warehouseman who delivered the same to him in good faith, could not. on any principle (jf jus- tice, be charged in trover in favor of an unknown ijurchaser, when lie had strictly complied with the terms of the order showing the right in Sidwell. The distinction between that case and the one at bar, is so manifest, that even conceding the correctnei-s of the principles stated b.v the learned judge, independent of any usage on the subject, and it is un- necessary to question thetu, they do not control in this case. 1st. There the question was considered, unaffected by any usage, in the light of which the parties acted. 2d. In that case, the order was never presented by the holders and accepted b.y the warehouseman, as in this, nor does it appear that he knew of its existence, or ol the assignments indorsed thereon, until the day when all the flour was delivered. XKWIIALr. V. L.VNODOX. 583 one hHlf to cncli nKsiKneo, as dircctod by the orikT. So fur, tliyrefore, aH the ac- (■p|)t;iiii-e of thf order l).v the warelioiiHC- innii iilfectH the qiiostion ol ownerKhip, as hctween seller and l)uyer, the cases are nnlike. :!(1. The flour varleil in price, and there- furo in rniirUetiible ((ualily, and in all snch cjiKes, tlicre Is to be a selection bffore the title |)aHses. 'I'his opinion mlKht be extended and per- linpH made more intorestinK by an analy- His of the nnnieroue cases on the subject both ani'ient and modern, but \vecont(.'nt onrselvps witli n reference to some few of liieu), witjiout ntteini)tinK more. We li()l<l that upon the facts found by the court, sliowing the well known usase of the business, it Is manifest that apoti the presentation and acceptance of tliis order, the sale was completed, nnri the subse- Huent loss of tlour, while stored at th»- <icpot must fall on the purchaser. Steel Works V. Dewey, :!7 Ohio St. IMJ: Younjc V. Miles, 2:; Wis. r.4:!: ('loud v. Moorman, is Iiid. 40; llorr v. Barker, f. Cal. 4V.(; C'usliinn V. IJreed. 14 Allen, 370; KImberly V. I'atchin, UtN. Y. rno; Waldnin v.CliaHe. 37 .Maine, 414; Chapman v. Sliepard. :{S» ("imn. 41:!; U'hitehouse v. Frost. 12 Kast. (514; also notes to Hires v. Hurff. 17 & IS Am. Knw lU'ff. 17. Uil. In wlilrh the whole- subject is exhaustively discussetl and the cases reviewed. .1ud}i;nient reversed, and coumc reniaml- ed. I NICHOLSON r. TAYLOR. 585 NICH(5I.S0N et al v. TAYLOR et al. (31 Pa. St. 128.) Supreme Court of Pennsylvania. 1858. Action on the cbkc by Ricluird L. Nich- <iIh<)ii 011(1 anotlier, trmlinu an K. L. & V.. L. NicliolHoii. iiKiiinHl DnvicI H. Taylor (ind DtlierH, trailinu na U. U. Taylor *: Co., (or breach ot eontract to deliver certain lum- ber. From a ju(l;?nieiit for clefenUantH, |/laintiffH appeuleil. Allirnied. .1. Cook LoiiKntreth, for plaintiffn in er- (or. FnrHopH, lor defeiidantH in error. THOMPSON, .1.— "When the lawful form of contractiiiK in pursued," said .\lr. .Iun- liee Lowrie in W'iiiwlow. Lanier & Co. v. Leonard, IL' llarri.'<, 14, "the vestins of tlie litle ahvayw depends upon the intention of the parties, to be drawn from the con- tract and its circumstances," ami "it is perfectly legitimate to point to the want of measuring ami settinj^ apart as evi- dence, in tlie very nature of the transac- tion, that it was not intended as u perfect Hale:" Id. lioius further in this <lirection than mere evidence. C. .1. Gibson, in Haz- aril V. llamlii). .'> Watts, 201, declared that "where nothini; is paid or delivered, it is ajrreed on all hands that the contract is merely executory." This is true of such a contract standing alone; whether taken as an a.xiom or an evidence merely, the diffeience is in terms only. No intention is to be drawn from a contract but what It expresses, when there is nothing else to manifest it; so that the differenceof terras in statini; the [jroposition leaves the rule the same, namely, that so long as any- thinc remains to be done as lietwecn the vendor and vendee, for the pnri)ose of as- certainiiiK the amount and price of the article, the proi:erty and risk remains in the vendor; it isnotclianged : Addison on Contracts L':.''.'. I'l':?; Hanson v. .Meyer, (i East til4; Word v. Shaw, 7 Wend. 404 ; Lester, Sennett & Co. v. .McDowell, Hnr. ris !)2; Hutchinson v. Hunter, 7 KarrUii; Smyth V.Craig, :i W. & S. -JO ; Wiuslow. Lanier & Co. v. Leonard, I'J Harris 14; Nesbit V. I'urry. 1 Casey L'Os. This rule Is predicable of cases « here no actual deliv- ery of the property has taken place, and it is sought to give the contract the effect of changing the possession. If i)arties choose to deliver property without the price being lixed, the [jropcrty will pass, iiecause it is the contract an<l intention to pass it. Hut we have to «lo with a case not of this last kind. The contract is as follows : — "Sold Messrs. U. L. & C. L. Nicholson, load of Pine creek luml>cr, within the neighborliood of ."jOOO feet of plonk, at ?l."j..")0 and e.Ypenses, take a note at *! months, with interest. U. 15. Taylor & Co. Ntli Mo. 11th." .\ I'ine creek load of lumlier. it would appear contains abr)ut ."iO.ihmi feet l;oard measure, a portion of "iiieli in this cune was plank. The oral testimony left tlie case just OS it found it, glvini; nothing in regard t'> the intention of the parties but what was contained in it. The defendants lieli'w refused to deliver the iiinitier. alleg- ing that they were mistaken in the amount of the plank contained In it — that in place of .".OOO there were 10.000 fc-et, and which they chargi'd tliat idaintiffs knew ; but they offered to deliver the load, or tlie anxinnt of it, witli .'lUiio feet of plank in it. The plaintiffs n-fuseii to take it. Tills lie- ing tlie situation of things between the parties, and the plaintiffs claiiuing that the property passed to them, brouglit a special action on tlie case og.'iiost the de- fendants in which they liad a count in trover. On the trial in (he district court, the point was reserved as to whetlier the property passed by the contract; and a verdict w IS rendered in fav(jr of plain- tiffs for $10.'i0..'i0, its entire value, .\fter. wards tlie court entereil juilgnient for tlie defendants non obstante veredicto, on the point reserved. Tlie cose stands now sniply upon the riglits of the parties as created liy the written contract. .Applying Hie rule al- ready laid down, "that when something remains to be done between the vendor and vendee for tlie purpose of ascertain- ing the amount and price of the article, the property and risk remains in the ven- dor," to this case; we will have but little difficulty in coming to a conclusion. Tlie lumber was to lie measured before the price could be ascertained, so as to give the si.x months' note for tiie piiynient. Tills was. in point of liil>or, as well as in other particulars, an important item of the transaction. No time was set for the measurement, or for giving tlie note, the Litter licing eonsei|ueiit only on the for- mer; all showing that the contract wan but executory In fact and intention. The property therefore remained in the vendor, and the plaintiffs liad no legal right to recover its value In trover; property in the plaintiffs lieing neressory to eiialde them to ilo so. Tliey were at no time de barred from suing for damages for a brencii of the contract.il any such hinl occurred. We think tlie court below were right in thei.- decision, ami this Judg- ment must bealHrmed. .Juilgmcnt athrmed NIGHTINGALK c. ElsKM.YX. 687 NIGHTINGALE et al. v. EISEMAN el al. (■a N. E. Rep. 47->, 121 N. Y. '^s.) Court of Appeals of New York. April 20, 1890. Appeal from supreme court, uoneral term, first departiiiLMit. Action by John Niftlitinnnle and others ORahist Moses L. Kiseniaii ami aiiotlicr. A jii(ly:inent entered at cirenit in favor of defendantH, and disiiiiKHinK the conndaint, wan .•illiinied at general term, and plain- tiffs aucaia appeal. Albridf^e C. Smith, for appellants. The- odore Connoly, for respondents. Earl, J. On the 4th day of January, 1880, the plaintiffs were manufacturers of silk at Patterson, N. J., and tlu; defend- ants were dealers in sill< doinu' business in the city of New York. On tliat day an agent of the plaintiffs, who was eiiKnged in selling silk lor them on a salary, called upon the defendants at their place of busi- ness, and took from them the following order : Order No. 11. Ship bv Ex. Hill .Mnch. DapliL-atc .N'o. Term, 6-lU 1 per Janaary 4tli. 188U. KlHiMnaa & Co., Grand St., City. nt. sperlnl. ■> pes , Feb. 20. I BO pes., Mill. let. Ualanee before Mcb. 16, or earlier, if posuible. , 19-ln. Snrali. at COc. Delivery, No. 750. 100 pc! Then follows a statement of thecolorsof the different pieces to bo furnished. It was i)roved tlmt tlie figures "G-10 1, " fol- lowing the word "Term," meant G per ci'iit. off from the bill for tlie silk, 1 per cent, extra discount, and tliesilk to bepaid for 10 days after delivery. The order hav- ing been sent to the plaintiffs by tlieir agent, on the next day they wrote to the delciid;uits that they had receivetl theiror- der, and would endeavor to forward the goods "as near as possible to the time specilieil." Aliout the l:jth of March they sliipped from Patterson to tlie defendants at New York 17 pieces of iho silk, and nev- er thereafter shipped any more; and tiiey commenced thisaction on tliellith of April thereafter to recover the contract price of the silk delivered. Tlie defendants refused payment before the action was com- menced, and defended the action on the ground Hint the iilaintiffe had not per- formed till ir contract. If we .issume tliat the contract as made by the pliiinliffs" agent is to be considered niodilied by tlieir letter to the defendants, so tliat they were bound to delivertliesilk only, ns near as possible to the time siiec- ilied in the contract, yet, in iiiiy event, the contract bound them to deliver at some time. If the circunistances weresuch as to excuse the plaintiffs froni delivery at the time specilied in the contract, yet they were bound to deliver, and they could per- from their contract only by delivering the silk at some time. We are inclineil to the opinion that thecontract should be treated as an entire contract to ileiiver the inO pieces, and that non,- of the silk was to be paiil for until 10 days after the delivery of the whole. But if such be not its proper construction, and the defendants were bound to pay for each of the installments of silk specified In the contract within 10 diiys after the delivery thereof, the plain- tiffs were bound to makeat least one com- plete delivery before they conld call upon the di-fendants for any payment. The de- feiiilants in no way, so fur as the evidence discloses, waived complete performance. The 17 pieces of silk were shipped to them from I'atterson. Tliey hud no reason to suppose that the plaintiffs intended that shipment as a compliance with their con- tr.'iet to ship L'.'i pieces; and so when they rereived the 17 jiieces llicy hud the right to suppose tliat tiie.v wouhl he followeil by a, further shipment, and tliat the plaintiffH would coiitiiiiie to perforin their contract. They could, therefore, receive the 17 piccea without waiving their right to demand further performance before they could be compelled to pay. At the very tirst time ■when they were called upon tospeak,that JB, when they were asked to pay for the 17 pieces, they refused payment on the ex- press ground that the plaintiffs had not lierforiiied their contract, and promised that they would pay when the balance of the silk was received, and not before. Therefore wliether we regard this as a sin- gle contrtict, by which the plaintiffs were bound to ileiiver 100 pieces of silk before they could demand any payment, or whether we considerthe defendants bound to i)aj' for each delivery specilied In tlie contruct, we tliink the plaintiffs are not entitled to recover; and for this conclu- sion the authorities in this state an? so abundant that they need not be cited. At the trial the counsel for the pluintifis asked one of tlieir witnesses— the agent who took the order from the defendants— the following questions: "After you took this order, did you have any conversation with the defendants, or either of them, with respwt to the delivery of any of the goods under this c<mtract'.'" ".\ftertho taking of that order, what conversation did you have with the defendants In re- gard to thedeliveryof thelirst installment of pieces referred to in the contract?" These questions were objected to on the part of the defendants ns immaterial, and were excluded by tlie court. The counsel did not disclose what heexpected to prove by these <iuestions. and it is impossible to discover what competent evidence could have been elicited by them. No claim was made at the trial that thecontract had In any way been changed, nntl the court, therefore, committed no errorin excluding the questions. One of the plaintiffs, ns a witness, was asked the following ipiestions by his coun- sel : "State whether or not, but tor tlie strike of the laborers employed in your mill, vou w:.Mil(l liave been able to deliver thegooils ordered by thedefenduntsat the time stati-d in the or<ler, or within a rea- sonable time thei-eufter. " ".State whether or not the strike of the labon-rs int«rfere«i with the delivervof a portion of the goods ordered bv the defendants nt the time nameii in theordergiven by them." These questions wen> objected to by defenibints counsel as incompetent and immuterial. and were excluded. No complaint was made at the trial that the plaintiffs did not deliver the 17 pieces of silk lu time. 588 NIGHTINGALE v. EI8EMAN. The sole complaint was that thoy did not deliver even the 25 pieces requiri'd for the first installment, and any evidence which could have been elicited by these questions could show no justification fora failure to nialve such delivery at some time before the action was commenced, and therefore the questions were properly excluded. The judgment is clearly right, and sliould be affirmed. All concur. NOBLE 0. SMITH. Wl NOBLE V. SMITH et al. (2 Johns. 5'.) Supreme Court of New York. Nov. Term, 1800. This was an action of troKi)asK, for hri'iikins; and ciitcriiiK the cIdhi- of the pluintiff, ciitlinji down, tdkinK: juid ciirr.v- inirmviiy tlie wheat in tlii' Htraw, which was there Ktaniliiit;, and oonveitinji the Hainc to liiH own use. ThfcauNPwaH tried at the RenHselaer circuit, in Ma.v, ISlMi, hofore Mr. C'liief Juh- tice Kent. The pl.-iintiff proved, tliat lie waH ])iit into possesHion of the loeiis in quo in Marcli, l.su."j, liy tlieslieriff of lienH- splaer county, li.v virtue of a writ of lia- bere laeias |)OHKe.s.sioneni, isHued on a judg- nient in ejectment a/];ninst one liallett, and that liecontinned in possesHion totlie time of tlie trewpasH. At tlietinietlie sheriff put tlie plr.intiff in possession, he did not re- move the ^roods out of the house of Ilallelt. It wasalscj pi'oved, that thedefendanlH and their servants, in July, ISO.'), broke and en- tered the same close, and there cut down and carried away, though fcrhidden by the plaintiff's overseer, near two hundrecl bushels of wheat in the straw. A witness for tlie defendants, proved that liallett had lived on the farm as a tenant to John Hill, the principal of the plaintiff, above two years before the plaintiff was ]iutinto possession. That two of the defendants were step-sons of liallett. and lived in his family. That after liallett was dispos- sessed, he was sued, and taken on execu- tion for rent due to Hill. The witness ap- plied to the (ilaintiff, to let Mrs. liallett liave some of the whe;it then fii'owin^ on the premises, for seed; and the plaintiff told the witness, that "he wouhl H:ive the wheat growiuK. to the defendants, the Smiths, for the support of themselves and Mrs. Ilalli>tt,and would procnrea written suneniler to be drawn up for Hallett to execute." The Smiths, afterwai'ils. re- rjuested the plaintiff to j-ive them a writ- iuK for the wheat, wliicli the plaintiff re- fused to do. snvinsr. "that he would re- serve it for them, if he should <leniise the premises »o any other person." The Smiths were relations of Hill, who reipiest- ed them to repair the feiie<' in the antuMui, rouinl the Held in which the wheat was KrowiuK. .\iiolher witness stated, that the plaintiff, in October, ISO."), told him, that lie had >iiven the wheat to theSniiths, hut that he had revoked the fjilt, on ac- count of some offence they had niven him. .Something was said of a coiulition an- nexed to the fiift. Imt "hat it was, did not clearly appear. The judge charsed the jury, that there was sullieient evidence of a valid jrlft of the wheat, and which was not revocable by the plaintirf. The plaintiff, therefore, stibmitted to a nonsuit. A motion was now made to set aside the nonsuit, anil for ;i new trial for the tnisdiieetion of the jud;ie. Henry and \'an \'eclitoii, for plaintiff. Woiiii worth, Atty. Gen., for defentlnnts. KK.NT, ('. J. This case presents the f<d- lutving questions. 1. Can property in corn Krowinjr, be transferred, liyKittV 2. Is there here the refpilslte evidence of such a Kiff After n coDsidcrntion of this case, I am satisfied, that the opinion which 1 gnve at the circuit, upon the trial of this cause, was incorrect. Lord Coke is reported to have salil. In Wortes V. Clifton. (I Uol. Hep. CI,) that l>y the civil law, a uift of Koods, was not valid, without delivery, but that it was otherwise, by our law. This is a very inaccurate dictum, and the difference be- tween the two systems, is directly the re- verse, liy the civil law, a i:ift. Inter vivos, was valid and bindinK. without d -livery; (Inst. lib. U. tit. 7. § l'. Code lib. s. lit. iA. 1. :!. 1. :j.">. § .'il but at common law.lt is \ery clear, from the general current of aiitlnir- ities.thal delivery is essential to niveeffect to a Kift. I Hracton. de acq. reruni doni. lib.!', fo. 1."). b. 10. a. I' lower'sCase, Xoy.O". Smith v. Smitli. 2 Str. ll.'i?. (ine .No. 9, .lenkins. HI'.i. 2 Black. Conini. 441. ) Inthe analo;;()Us case, also, of nifts, causa mor- tis, it was held, by Lord Hard w icke. in the case of Ward v. Turner. (J Vesey. .Sr. 4:11.) where the subject umlerwent a very full discussion, that a flelivery was necessary [to make the;;ift valid; and. aeconiiiiKly, I that a delivery of receipts, (or south seu annuities, was not a sullieient delivery to pass these annuities by that speciesofKift. Delivery, in both kinds of gift, is e(|ually re<iuisite. on grounds of public policy and convenience, and to prevent mistuke and iin|>oHitiiin. If dtliverj- be requisite, there was none in the present case. The land, at the time of the nllesed gilt, was in p<»sessicin of oue Hallett, and not of any of the defendantH, to whom The gift Is said to have been made: and befuic tin- wheat was ripe, the plaintiff recovered the possessbm of the land, by due course of law. Here was not even an attempt at a symbolical delivery, ami giving the testimony the strongest possilile construction, in favour of the de- fendants, il amounted to nothing more than saying. I give, without any act to enforce it. A mere symbidical delivery, would not, I up,>reliend, ha ve been sulli- eient. The cases in which the delheryuf a symbol has been held sullieient topei"i"ct the gift were those in which it was I'on- sidered as equivalent to actual delivery, as the delivery of a key of a trunk, of a room or wareliouse, which was the true and eflectnal way of obtaining the use and command of the sisbjit-t. (Ward v. Turner. 2 Vesey. 442. 44.1. Tate v. Hllbert. 4 lirown. Ch. 280. Toller's law of Kxc. Isl. 2.) 1 tlo not know, that corn, growing, is susceptible of delivery, in any other way. than by putting Hie donn- into pos- scs.sion of the soil: but it is not necessary to give any opinion, at present, lo that extent; nor do t.'ie court mean to do so. II is sntllcieut to say. that there was n<i evidence of delivery, in the p'vsent case, and. that to presume one. we must go the whc.le length of the exaniide, given in the Koinaii law. where the buyer Is sup- posed to take possessloniif a liirgelmnmv- able column, bv his eyes an I hisaffittlons. oculls et aflectu. (Dig. 41,2. I. 21.) The 592 NOBLE v. SMITH. courts of equity seem to liave adopted tliel The oiiiniun of the court, tlieieforc, is, true rule in their decisions, on the dona- that tlie nonsuit be set aside, and a new tio Ciiusa mortis, in wliicli they hold, that trial awarded, with costs, to abide the tlie delivery must be actual and real, or, event of the suit, by some act, clearly equivalent. ' New trial granted. N()KI{in(;t()\ c wkkmit. 595 N()KKl.N(iT().\ V. WKKillT l-1 iil. (6 Sup. Ct. Uep. 12, 115 U. S. 188.) Supremo Court of tho United States. Oct. 20. I.S.S0. In error to tlio rirciiit court of the Unit- ed StntcH for the caHtern disti'ict of I'l-nn- Hjivaniii. The fiictH fully appear in the followin}^ fltutcincnt li.v .Mr. .lustice (iKAY : TIiIh waH an action of aHHumpHit, hrotisjht by .\rthiir Ndrrington, a cilizL'ti of (jri'at liritain, trading under the name of A. NorriMKton & Co., atiainHt .laineH A. Wright and otlipr.s, citizcnH of Ucnnsyl- vania, tradin^r under the njuiit- of I'cter Wright <*i SonH, upon the followini; con- tract: '■ I'hiladclpliia, .lanuary Hi, Issil. Sold to .MesHPH. I'etcr Wright iV Souh, for ucconnt of A. Norrinuton it Co., London: Five thouHand (.'i,(inil) tonw olil T iron railH, for shipment from a ICuronean port or port.i, at the rate of about one tliouHanil (1,OUO) tons per month, hej.;inninK I'ehri-- ary, IK.SO, hut whole contract to he Hhip|)cd before Auf;nHt 1, l.ssu. at forty-live clollarH{$f.").()0) per tonof LMUO llis.cuHtom- bouHO weidht, ex whip I'liiladelphia. .Set- tlement, cash, on prenentation of billH ac- coui|>aniPd by cuHtoni-houwe certificate of weijiht. Sellers to notify buyers of Hliip- nients with ves.sels' namew as smjn as known by them. -.Sellers not to be com- pelled to replace any parcel lost after shipment. Sellers, when possil>le, to se- cure to buyers rijjht to name discharKiny; berth of vessels at Philadelphia. K(l- ward .1. HtlinR, Metal IJroker. " The declaration contained three counts. The first count allef^ed the contract to hove been for the sale of about ri,(lU(i tons of T iron rails, to be shipped at the rate of about l.OlllI tons a month, be^iuniim in February, and en<lin;; in .Inly, 1nn(I. The second count set forth the contr;icf ver- batim. Kacli of these two counts alle;;(Ml that the plaintiffs in February. March, April, .May. .lune, and .Inly shipped the Koods iit the rate of about 1. (Mill tons a month, and iiotKied the shipments to the defendants; and further alleged the due arrival of the (roods at I'liiladelphia. the plaintiff's readiness to deliver the jjoods and bills thereof, with cnstoin-honse cer- tificates of weight, nccordiiii; to the con- tract, and the defendants' refusal toaccept tliem. The third count diflered from tlie second only in nverrintr that 40(1 tons were sliii)peil l)y the plaintiff in l'"ebruary anil acceptcil by the defendants, and that the rest was slil\)ped liy the plaintiffs, at the rate of about l.Odi) tons a month, in March, .\pril. May. .Mine, and .July. The dcfeiKlants pleadetl non assumpsit. The material facts proved at the trial were as follows: The plaintiff shippeil from varions Kuro- l)enn ports 400 tons by one vessel in the last part <if February, *>s,") tons by two vessels in March, 1,.')71 tons by live vessels In A|)ril, HM) tons by three vessels in May, 1,000 tons by two vessels in June, and .'!00 tons by one vessel In .luly, and n<itilieil to the defendants each shipment. The de- fendants receive<l and paid for the Feb- ruary shipment upon its arrival in .March, and in .Vpiil ^ave diiecthMis at what wharves the .March Hhi|)nients sliould l)e dischar^:ed on their arrival, but on .May 14th. about the time of the arrival of the •March shipments, and havinir bei n iheD for the first time informed of the amountH shipped in Feliruary, .March, and April. Kave Fttin^ written notice that they should decline to accept the shipnientH made in .March and April, beiause none of tlieni were in accorilancc with the con- tract ; and in answer to a letter from hitu of .May l(;th, wrote him on .May ITIIi. »n tolhuvs: " We are ailvised that what lias occuri-ed <loes not amuunC to an accept- ance of the iron under the circumstances, and the terms of the i-onlract. You had a rijiht to <leliver in parcels, and we lind a richt to e.xpect thc' stipulated quatitlty wonlil be delivered until the time was ui» in which that was possible, lioth deliv- ering and rcr'eivlnn were thus far condi- tional on there beinj; thereafter complete •lelivery in due time and of the stiiiulated article. On the assnm|)lion that this time had arrived, and that you had ascertained that yon did not inteinl to, (»r could not, make any further deliveries for the Febru- ary and Marc-h shipments, we Rave you the notice that we declined occeptluR those deliveries. ,\s to .Vfiril, It Is too plain, we suppose, to reipiire any remark. If we are mistaken as to onr oblii;ation for the Februai'y and .March shipments, of course we must abide the consequences; but if we are rijiht, yon have not per- formed your contract, as you certalidy have not foi-theApiil shipments. There is then the very serious and much debated (ineslion, as we are advised, whether tin failure to mnke the stipulated shipmentM in Februjiry or .March has absolved na from the contract. If it does, we uf course will avail ourselves of this ncl vanta;re. " On .May istli Fttlnc wrote to the rlcfend- ants, insisting on their liability for both past and fut.ire shipments, and sayiuK. amontf other thiiiiis: "Iti respect to the objection that there had not been a com- plete delivery in due time of the stipulated article. I bei; to call your attention to the fact that while the contract is for live thousand tons, it expressly stipulates that deliveries may be made ilurin« si.x mouths, and that they are only to be at the rate of about om' thousand tons per month." " .\s to .\pril, while it seems to ivic ' too iilain to requii-e any remark.' I do not see ho« it can seem so to yon. unless vou intend to accept the rails. If you object to taking all three shipments made in that month, I shall feel authorized to deliver only two of the carjroes.orfor that matter, to" make the delivery of precisely one thousand tons. Hut I think I am eii- titleil to knowdcliuilely from you whether von intend to reject the A|>rll -hipments. and. if so, upon what ground, and also wheMier vou are decided to reject the re- nuiiiiintr shipments umler the contract. You sav In your last paragraph that you shall avail yourselves of the advantUKe. if vou are "alisidved from the contract: but, as yon seem to l>e In donnt whether vou can set up that claim or not, 1 should like to know detiuilely what is your Inten- tion. " 596 NORRINGTON^ v. WKIOnT. On May 19tli the defeiidniitd replied: "We do nut read the contract as you do. Wercad it as stipulating forniontldy ship- meiits of about one thousand tons, begrin- ning in February, and that the Mix months' clause is to secure the completion of what- ever had fallen short in the five months. As to the nieanins of ' about,' it is settled as well as such a thin;^ can be; and cer- tainly neither the February, March, nor April shipments are within the limits. As to the proposal to vary the notices for April shipments, we do not think you can do this. The notice of the shipments, as Boon as known, you were hound to irive, and c'lnnot afterwards vary it if they do nut conform to the contract. Our rifiht to be notilied immediately that the ship- ments were known is as material a provision as any other, nor can it be changed now in order to make that a performance which was no performance within the time required." " Von ask us to determine whether we will or will not object to receive further sbipnients be- cause of past defaults. We tell you we will if we arc entitled to do so, and will not if ■we are not entitled to do so. We do not think ynu have the riuht to com- pel ns to decide a disputed question of law to relieve you from the risk of deciding it yourself. You know quite as well as we do what is the rule and its uncertainty of application." On June ]Oth Etting offered to tlie defendants the alternative of deliv- ering to them one thou.-^and tons strict measure on account of the shipments in April. This offer they immediately de- clined. On June 15th Etting wrote to the defendants that two cargoes, amounting to 2'2\ tons, of the April shipments, and two cargoes, amounting to imO tons, of the May snipmeuts, (designated by the names of the vessels.) had been erroneous- ly notified to them, and that about 1)00 tons had been shipped by a certain other vessel on account of the May shipments. ')n the same day the defendants i-eplied that thenotification as to April shipments could not be corrected at this late date, and after the terms of the contract had long since been broken. From the date of the contract to the time of its rescission by the defendants, the market priceof such iron was lower than that stipulated in the contract, and was constantly falling. After the arrival of the cargoes, and their tender and refusal, they were sold by Et- ting, with the consent of the defendants, for the benefit of whom it might concern. At the trial the plaintiff contended (1) that under thecoutract hehad six months in which to ship the 5, OIK) tons, and any deficiency in the earlier months could be made up subseiiuently, i)rovided that the defendants could not be required to take more than 1,000 tons in any one month; (■-') that, if this was not so, the contract w a.s a divisible contract, and the remedy of the defendants for a default in any month was not by rescission of the whole contract, t)ut only by deduction of the damages caused by the delays in the ship- ments on the i)art of the plaintiff. But the court instructed the jury that if the defendants, at the tiuie of accepting the delivery of the cargo paid foi', had no no- tice of the failure of the plaintiff to ship about 1,000 tons inthemonthof February, and immediately upon learning that fact gave notice of their int.?ution to rescind, the verdict should be for them. The plain- tiff excepted to this instruction, and, after verdict and judgment for the defendants, sued out this writ of error. Samuel Dickson and J. C. liullitt, for plaintiff in error. Richard C. Mc.Murtrie, for defendants in error. Mr. Justice (iRAY, after stating the facts as above, delivered the opinion of the court. In the contracts of merchants, time is of the essence. The time of shipment is the usual and convenient means "of fixing the probable time of arriv:il, with a view of providing funds to pay for the goods, or of iullilling contracts with third per- sons. A statement descriptive of the sub- ject-matter, or of some material incident, such as the time or place of shinuiont, is ordinarily to be regarded as a warranty in the sense in which that term is used it) insurance and maritime law, that is to say, a condition precedent upon the fail- uie or non-performance of which the party aggrieverl maj' repudiate the whole con- tract. Behu V. Burness, 3 Best & S. 751 ; Bowes V. Shand, 2 App. Cas. 455; Lowber V. Bangs, 2 Wall. 728; Davison v. Von Lingen, 11:3 U. S. 40, a !Sup. Ct. Rep. alC. The contractsued on is a single contract for the sale and purchase of 5,000 tons of iron rails, shipped from a European port or ports for Philadelphia. The subsidiary provisions as to sliipping in different months, and as to paying for each ship- tnent upon its delivery, do not split up the contract into as many contracts as there shall be shipments, or deli vcries of so many distinct quantities of iron. Mersey S. & 1. Co. V. Naylor, 9 App. Cas. 434, 439. The further provision that the sellers shall not be compelled to replace anj'i)arcel lost after shiptnent, simply reduces, in the event of such a loss, tne quantity to he de- livered and paid for. The times of ship- ment, as designated in the contract, are "at the rate of about 1,000 tons per month, heginning February, 1880, but whole contract to he shipped before Au- gust 1, 1880." These words are not satis- fled by shi|)ping one-sixth I'art of the 5,000 tons, or about 8;i'J tons, in each of the six months which begin with February and eiiil with July. But they require about 1,000 tons to be shipped in eacli of the five months from February to .Tune inclusive, and allow no more than slight and unim- portant deficiencies in the shipments dur- ing those njimths to he made up in the month of July. Thecoutract is not one for the sale of a specific lot of goods, iden- tified by independent circumstances, — such as all tho.se deposited in a certain ware- house, or to be shipped in a particular vessel, or that may be manufactured by the seller, or maybe required for use by the buyer, in a certain mill, — in which case the inentiim of the quantity, accompanied by the qualification of " about, " or "more or less," is regarded as a mere estimate of the probable amount, as to which good i NOUItlNGTON' 0. WI!IG!IT. 5117 (iiitli iR all that iH reiiiiireil of the [)iirty iimkiiiK it. I'lit tlie contnift liefore uh viiincK within the ficniTjil riih-: "Wlien no Hiich iiiih|icii<l('nt ciniiiiiKtiii.fcH are rc- fiTPcil t'). (iiiil the (>iitC'iK''ii!<'Nt iH to fiir- iiiwli k<)0(1h of a certain i|iiaiity oroliurue- ter to a certain ainiiiint, tlie <|iinntlty Hjieclfied is material, and governs the con- tract. The addition of the <|tialif.vint; words 'altoiit,' 'more or less," and the like, in Hiich cases, is only for the pnrpofe of i)roviilin}i afrainst accidental variations ari.sinK from 8li.!;ht and unimportant ex- CCHHCH or tlcliciencie.s in number, mefiunre, or weight." liruwley v. United Slates. '.Hj n. .S. KiS, 171, 17-'. The seller is Ixinnd to deliver the quantity stipulated, and has no ri;ilit either to compel I he Imyer to ac- cept a less quantity, or to rciiuire him to select part of a greater qnantity; and when tlie K'xxls '"'e to he shipped in cer- tain proportions monthly, the seller's fiiil- ure to ship the recpiired i|iiantity in the first month jiives the Ijuyerthe same riy;ht to rescind the whole contract that he would have had if it had heen agreed that all the };oods should he delivered at (inre. The plaintiff, ioHtead of shippinK About I.IMK) tons in February and about l.OUO tons in March, as stipulated in the con- tract, shippeii only 400 tons in February, nud >1N.". tons in March, llis failure to ful- fill the coiitriutoM his |iart in respect to llieselirst two iTistallments just itie<l the de- fendants ill rescinding the whole contract, provideil tli"y distinctly and seasonably Ji.Nserted the ritrht of rescission. The ile- fendants, immediately after the arrival of the .March sliiiiments, and as soon as they knew that the (piantities wiiich had been sliipped ill February and in .March were less than the contriiet calleil fur, clearly and positivel.v asserted the rij^ht to re- scind, if the law entitled them to do so. Their previous acceptance of the sinjjrle car>;o of 400 tc.ns sliipped in February was no waiviT of this ri^iht, because it took Place without notice or means of knowl- edge that the stipulatecl (juantity had not been shipiied in February. The price paid by them for that carj;o beinu above the market value, the plaintiff suffered no in- jury by the omission of the defendants to return the iron; and no reliance was piMceil on that omission in tliecorres[)ond- ence bet wei'ii the parties. Tlie case wholly cliffers from that of Lyon V. H(>rlrani, I'O How. 1-1'.), in wlii(di the bu.Ncr of a specific lot of ^^oods accept- ed and used part of them with full means of previously ascertaining whetlier they conformed to the contract. The plaintiff, denying the defendants' riflht to rescind, and assei'tinir that the contract was still In force, was bound to show such per- formance on his part as entitled him to dcmaiKl perlormance on their part, and, haviuK failed to do so, cai:iiot maintain this action. For these reasons we areol opinion that the jud;;ment below should be aflirmed. 15ut MS much of the arKuim nt at the bar was devoted to a discussion of the recent English casis. and as a diversity in the law, us administered on the two sides of the Atluutii-, concerniii); the interpreta- tion anil effect of commercial contracts of this kind, is ^rently to lie deprecated, it is proper to arbl that upon a ciireful e.xumi- nation of the cases referred to they do not aiipear tons to establish any rule IncuD- sistent with our conclusion. In the leadiuK ease of lloare v. ICeiinle, 5 Hurl. & N. 10, which was an action upon a contract of sale of (107 tons of bar irr.n, to be shipped from Sweden in .1 une, .1 uly, AuKUst, acid September, and in about equal portions each month, at a certain price payable on delivery, the declaration alleued that the plaintiffs perlormed all thin;;s necessary to entitle them to ha>e the contract pei-formed by the defendants, and were ready and willing to perform the contract on their part, and in June shipped a certain portion of the iron, and within a reasonable time afterwards of- fered to deliver to the defendants the por- tion soshipped, but the defeiidunts refused to receive it, and ^ave notice to the plain- tiffs that they would not accept the rest. The defendants pleaded that the shipment in .June was of about JO tons only, anci that the plaintiffs failed to complete the shipment for that month according to the contract. Urion deuiurrer t<i the pleas, it was argued f<ir the plaintiffs that the shipment of abint one-fourth of the iron in each month was not a condition pre- cedent, and that the defenilants' only remedy for a failure to ship thai i|uantity was by a cross-action Itut judgment was uiven for tlie defendants, Chii-f Haron I'ollock sayin;;: "The defendants refused to accept the lirst shipment, because, as tlu'y say. It was not a performance, but a breach of the contrnct. Where parties have made an OKreemeiit for themselves, the courts oiiKht not to mnk ■ another for them. Here the.v say that, in the events that have happened, one-fourth shall be shipjied in each month, and we cannot say that they meant to accept any otiier quaii- tity. At the outset the plaintiffs failed to tender the (|Uhntily according to the con- tract,— they tendered a much less (]uan- tity. The defendants had a risiht to say that this was no performance of the con- trnct, and they were no more bounil to ac- cept the short quantity tlinn if a sinnle delivery had been contracted lor. There- fore the pleas are an answer to thea''tion. " .') Ilurl.& .N'. J->. So in t'oddiii^ton v. I'ale- oloKO, Ij. H. '2 Exch. r.l."., while there was s division of opinion upon the question whet her a con tract to supply i;oods, "deliv- ering on .\pril 17th, comjdete sth May," bound the seller to b(>;in deliveriiiK on April I7tli, all the judges a;rrceil that If It did, anil the sellei made no delivery on that day, the buycrmlKlit rescind the con- tract. On the other linnd. In Simpson v. (^rip- pin. L. U. S Q. n. 1-t, under a contrnct to supply from fi.OOO to S,000 tons of coal, to lie taken by the biiver's wajrons from the seller's colliery in ecpial monthly quanti- ties for I'J months, the buyer sent wai;ons for only l."iO tons during the lirst month: and itWas held that this did not entlllo the seller toannul thecontract and decline to deliver any more coal, but that his only reme.lv was by an action for dainH;;es. And ill Bramlt v. Law rence. I ii. U. I)iv.a44, 598 NORRINOTOX v. WRIGHT. in which thecontract was for the piirchnse of 4,r)0() (luarterw, 1(1 per cent, more or less. of Russian oats, "shipment l).v steamer or steamers during February." or, in ease of if-e preventing sliipuieat, then immedi- ately upon the opening of navigation. and 1 139 quarters were shipped byonesteamer in time, and 3,3()1 quarters were shipped too Inte, It was hehl that the buyer was bound to accept the 1,139 quarters, and was liable to an action by the seller for re- fusing to accept them. Such l)eing the condition of tlie law of England as de- clared in the lower courts, the case of, Bowes v.Shand.after conflicting decisions | in the (jueen's bench division and the court of appeal, was finally determined by the house of lords. 1 Q. B. Div. -170; 2 Q. B. I Div. 11;-': -' App. ("as. 4.">. In that case,] two contracts were made in I^ondon, i each for the sale of 30i) tons of "Madras rice, to be shipped at Madras or coast tor this port during the months of March '",■ i April, 1874, per Rajah of Cochin. " The (iOU | tons filled S,200 bags, of which 7,120 bags : were nut on l>oard, and bills of lading j Bignedin February ; and for the rest, con Bisting of 1,030 bau-s put on board in Feb-; ruary, and no in March, the bill of lading was signed in March. At the trial of an action by the seller against the buyer for refusing to accept the cargo, evidence was given that rice shipped In Fel)ruary would be the spring crop, and quite as good as rice shipped in March or April. Yet the house of lords held that the action could not be maintained, because the meaning of the contract, as apparent upon its face, was that all the rice must be put on board in March and Aiiril, or In one of those mouths. In the opinions there delivered tlie general principlesunderlying this class of cases are most clearly and satisfac- torily stated. It will be sufficient tociuote a few passages from two of those opin- ions. Lord Chancellor Cairns said: "It does not appear to me to be a (luestion for your lordships, or for any court, to con- sider whether that is a cimtract which bears upon the face of it some reason, 8<ime explanation, why it was ninde in that foim, and why the stipulation is made that the shipment should be during these particular months. It is a mercan- tile contract, and merchants are not in the habit of placing upon their contracts stip- ulations to which they do not attach some value and importance." 2 App. Cas. 403. "If it be admitted that the literal mean- ing would imply that the whole quantity must be i)Ut oil board during a specified time, it Is no answer to that literal mean- ing.— it is no observation which can <lis- pose of, or get rid of, or displace, that lit- eral meaiiiug,— tosay that it imts an addi- tional burden on the seller without a cor- resi>onding benefit to the purchaser; that is a matter of which the seller and pur- chaser are the best judges. Nor is it aiiy reason for saying that it would be a means bv which purchasers, without any real cause, would frequently ol)tain an e.\- cuse for rejecting contracts when prices had dropped. The non-fulfillment of any term in any contract is a means by which a purchaser is al)le to get rid of the con- tract when prices have dropped; but that is no reason why a term which is fo;iiid in a contract should not l)e fulfilled." Pages 465, 4()r>. "It was suggested that even if the construction of the contract be as I have stated, still if the rice was not put on board in the ijarticular months, that would not lie a reason which would justify the aiipellants in having rejected the rice altogether, lint that it might afford a ground for a cross-action Ity them if they could show thai any particular damage resulted to them from the rice not having been [)Ut on board in the months in ques- tion. V.y lords, I cannot think that there is any foundation whatever for that argu- ment. If the construction of the contract 1)6 as I have said, that it bears that the rice is to be put on board in the mouths I in question, that is part of the description [of the subject-matter of what is sold. I What is sold is not :300tons of rice in gross 1 or in general. It is liOUtons of Ma<lras rice i to be put on board at Madras during the particular months." "The plaintiff, who I sues upon that contract, has not launched ! hi.s case until he has shown that he has I tendered that thing which has been con- tracted for, and if he is unable to show that, he cannot claim any damages for the non-fulfillment of the contract." Pages 4()7, 408. Lord Blackburn said: "If the descrip- tion of the article tendered is different in any respect, it is not the article bargained for", and the other party is not bound to take it. I think in this case what the par- ties bargained for was rice, shipped at Madras or th.e coast of Madras. I'^pially good rice might have t)een shipped a little to the north or a little to the south of the coast of Madras. I do not quite know what the boundary is. and probably equallvgood rice might have been shipped In February as was shijjped in March, or equally good rice might have been shipped in Mayas was shipped in April, and I dare say equally good rice might have been i)ut on hoard another ship as that which was put on board the Rajah of Cochin. But the parties have chosen, for i-easons best known to themselves, to say: We bar- gain to take rice, shipped In this particu- lar region, at that iiarticular time, on board that particular shli>; and before the defendants can be compelled to take anything in fulfillment of that contract it must be shown not merely that it is equally good, but that it is the same ar- ticleas they have bargained for, otherwise they are not bcnind to take it." 2 App. ('as. 4S0, 4S1. Soon after that decision of the house of lords, twt) cases were determined in the court of appeal. In Heuter v. Sala, 4 C. P. DIv. 2:!9, under a contract for the sale of "about 25 tons (more or less) black pepper. Oc toiler and November shipment, from Penang to London, the name of the vessel or vessels, marks, and full particulars to be declared to the buyer in writing within 00 days from date of bill of lading," the Keller" within the GO days, declared 25 tons by a particular vessel, of which only 20 tons were shipped in November, and five NORRIXGTOX v. WRIGHT. 599 tons in Dcccniher; and it was held that the buyer liad the rljihl to refuse to receive any part of the pepper. In Honcl< v. Miil- ler, 7 U. B. Div. 92, under a coritrnet for the sale of 2,000 tons of pig-iron, to be de- livered to the buyer free on board at the niaker'H wharf "in November, or equally over November, December, and .lanuary next," the buyer failed to take any iron in N'ovenilier, hut demanded delivery of one-third in December and one-third in .lanuiiry; audit was held that the seller was juHtificil in refusins to deliver, and In civiHK notice to the buyer that he consid- ered the contract as canceled by the buy- er's not taking any iron in November. The plaintiff in the case at bar greatly rclie<l on the very recent decision of the liouoe of lords in Mersey Co. v. Naylor, !) App. ('a8.4.'!4, affirming the judgment of the court of appeal In il. B. Uiv. ()4S, and fol- lowing the decision of the court of com- mon pleas in Freeth v. Burr, L. I'. !) C. P. 20S. But the point there decided was that the failure of the buyer to pay for the Hrst installment of the goods upon delivery does not, utdcss the circumstances evince an in- tention on his part to be no longei bound by the con tract, en title the seller torcscijid the contract, and to decline to make fur- ther ileliveriea under it. And tlie grounds of the decision, as stated by Lor(l Chan- cellor Selborne in moving judgment in the house of lords, are )i|>plicable only to the case of a failure of the buyer to pa.v for, and not to that of a failure of the seller to deliver, the first installment. The I,ord Chancellor said : "The contract is for the nurcliase of .").000 tons of steel blooms of the company's manufacture; therefore, it is one contract for the purchase of that (|uantity of steel blooms. No doubt, there are subsidiary terms in the contract, as to the time of (lelivciy, — 'delivery 1,000 tons monthly, comencing January ne.xt.' — and as to the time of payment, — ' pa.v- ment net cash within three days after re- ceipt of shit)ping ilncuments,' — but that does not split up the contract into as many contracts as there shall be deliveries for the purpose of so many distinct (]uan- tities of iron. It is (luile consistent with th<' natural meatiing of the contract that it is to be vine contract for the (lurchase of that (piantity of iron to he delivered at those times and in that manner, and for which payment is so to l)e made. It is perfectly clear that no particular payment can bo a condition precedent of the entire contract, because the delivery under the contract was most certainly to precede pnynient: and that being so, I do not see how, without express words, it can possi- lil.v be made a condition precedent to the subsecjuent fultillment of the nnfultilled part of the contract by the delivery of the undelivered stei'l." '.) App. Cns. 4:!'.l. Moreover, althuugl) in the court of ap- peal dicta were uttered tending to ap- I)rove the decisii>n in Simpson v. Crippin, and to disparage the decisions in Iloare v. Rennie and llonck v. .Mulli-r, above cited, .vet in tlie house of lords Simpson v. Crip- pin was not even referred to. and Lord Blackburn, who had given the leadlnK ofiirdon in that chhc. aH well as Lord Bramwell, who had delivered the lendlnK opinion in Honck v. .Muller, distinguished Uoare v. Rennie and Honck v. .Muller from the case In judgment. 'J .App. Cas.4-t4, 44t>. Upon a review of the Knglish declsionH, the rule laid <lown in the earlier cusch of Iloare v. Hennie and ''oddlngton v. I'ale- ologo, as well as in the later cases of Rou- ter V. Sala and Honck v. Muller, ajipean) to us to be supported by a gnwiter wel>cht of authority than the rule stated in the intermediate cases of Simpson v. Crlppln and Brandt v. Lawrence, and to accord better with the general principles nflirmcd by the house of lorils in Bowes v. Shnnd, while it In nowise contravenes the deci- sion of that tribunal in .Mersey Co. v. Naylor. In this country there Is less judi- cial authority upon tiie question. The two cases most nearly in iioint that have come to our notice are Hill v. Blake, 97 N. Y.21li, which accords with Howes v. Shund, and King Philip Mills v. Slater, I'J R. 1. S2, which approves and fcdlows Iloare v. Rennie. The recent cases in the supreme court of Pennsylvania, cited at the bar, support no other conclusion. In Shinn v. Bodine, f.O Pa. St. 1S2. the point decided was that a contract for the purchase of SOO tons of coal at a certain price per ton. "conl to be delivered on bo.ird vessels as sent for during the tnonths of .Vugust and September," was an entire contract, under which nothing waf paj-able until delivery of the whole, and therefore the seller had no right to rescind the contract upon a refusal to pay for one cargo before that time. In Morgan v. McKee, 77 Pa.. St. T2X, and in Scott v. Kittanning Coal Co.,y) Pa. St. 2:J1, the buyer's right to rescind the whole contract upon the failure of the seller to deliver one installment was de- nied, only liecause that right had been waived, in the one case by unreasonable delay in asserting it, ami in the other by having accepted, paid for. and used a pre- vious installment of the goods. The de- cision of the supreme judicial court of Massachusetts In Winchester v. Newton, 2 Allen, 402, resembles that of the house of lonis in Mersey Co. v. Naylor. P.eing of opinion that the plaintiff's fail- ure to make such shipments in Kebruary and March as the contract required pre- vents his maintaining this action. It la needless to J well upf)n the further objec- tion that the shipments In .\prll did not comply with the contract, because the de- fendants could not be compelled to t«ke about l,00(t tons out of the largeri|uantlty shl|)ped In that month, and the plnlntlfT, after once designating the names of vom. sels, 08 the contract bound him to do, could not substitute other vessels. See lUnk V. Spence, 4 Camp- •'!2".i; Ciraves v. I^egg, E.xch. 7011; Renter v. Sala, above cited. Judgment affirmed. The CllIKF JCSTICt: was not present at the argument, and took no part in the docison of this case. OLIVKK 0. IIC.NTING. 601 OLIVKR V. HUNTING. (44 Ch. Div. 205.) Chancery Division. Feb. 2,3, ISOO. In AuiiUHt, 18SM, KmiiiH Oliver, n ninr- ried woiiiun, poHHPHHeil of considerable H.-p- unitecHtute, noKotiated wit!) ji Mr. Hunt- inn f<"" the iiureliase of a freehold projjerty liiiown aH tile Flettori Manor l!o\iHeeKtnte. Kveiiliially »Uo agreed to purchase it for i;j:!7-"i, and on tlie 7th of Se])teinl)er, ISHS, he HiKned tlie foIlowiMK <locnnient : — " .\iernoraiidiini of ternn of aKreenient heween .Mr. lliintinK and Mth. Oliver: Price ,i;2:J7.'). Vendor to make K'>od title. PurchaHor to [jayfor her own conveyance. Fixtures included in purchase. Purchase to be HOttlcd as soon aw possible. Pos- scRHi.in on L'.'itli .Se|)teniber. Deposit to be paid on the lUtli. " On tlie 12th of September, 18S8, Mr. Huntin;^ wrote and sent a letter to MrH. Oliver in the following words: "I bi'K to aclinowledKe receipt of cheijue value £.n~) on account of the purchase ijionej- for the Fletton Manor House es- tate." Mr. Hunting; havins refused to com- plete, Mrs. Oliver commenced this action acninst liim.cjaimintc specific performance of the contract of the 7th of iSepteinlier, InSS, and allcKiuK in her stntemeiit of claim that In pursuance of the said con- tract she. on the 10th of September. ISSS. paid to Mr. Hunting; the sum of i£:!7.j as a deposit and in part payment of the said purchase-,inoney, and sulunittinjr that the memorandum of theTthaml the letter of the l:.'th of September, IssS, formed a valid contract and n euflicient memorandum within the statute of frauds. Mr. Hunting, by his statenipnt of de- fence, did not admit any of the allef;ations in the statement of claim, and relied on the statute of frauds. Issue was joined. This was the trial of the action. Mrs. Oliver in her evidence deposed tliat she sent i he cheiiue of .S;:!7.">, mentioned in the letter of the 12th of September, on ac- count of tlie purchase-money of the Flcttrin -Manor House estate. It was jiurt of the .£2:575. No other money was payable by her to the defendant. The £;J7.'> was the balance that Mr. Hunting t^as to receive, because the .E2000 was to be paid over to a iiiortjiaKee of the property. Her solicitor, Mr. Law, was going to lind the £2000 for her. Neville, Q. C, and DunninK, for plaintiff. WarmiiiKton, Q. C, and Swiafen Kady, for defendant. KKKKWICH, J.: The elementary prop- osition about which there is no doubt is this — the nieniorancluni to be signed by the parly sought to be charged, so as to bring a particular case within the statute of frauds, need not be on one piece of paper, nor need it be a complete docu- ment, signed liy the party at one and the same time. It may be contained i;; two or more pieces of pajier, but they must be BO connected that you can read them together, so as to form one iiieniorandiim of the contract between the pailies. Di- rectly you get beyond that, you Ret Into didiculty. One can illustrate that in a simple manner. An inlendiiig purchnMer accepts an offer made by a proponini: ven- dor thus: " In reply to your letter of the ]4tli instant." (^an one annex to that reply the letter of the 14th instant? Sure- ly one cannot, without in<|uiring what letter it is; unless tlie purchaser has, with unusual priiilciice, completed the reference by saying, " In re|ily to your letter of the 14th instant, a copy of which Is on the other Bide." In the absence of any such complete evidence as that, one niiiMt In- quire what the letter of the 14th instant was, because non constat, it may have been n reference to any one ol half a dozen different letters; and so, from that very simple illustration, one can go tliroiiRli a large variety of more complex ones. It is not for me to say that the old rule was better or worse than the present rule; but that it was a different rule, not wlthstond- iiig the criticisms in the cases which Mr. .^'eville has given me. I have no doubt. I lake the old rule from the original edition of Lord lUacUburn, on the contract of sale, which is cited — I have not the orig- inal work before mo— by Williams, .1., ia Uailway Co. v. Peek,' where, after refer- ring to Hinde v. Whitehouse,* and Ken- worthy V. Scholield.s he says: "The prin- ciple of these eases seems to me to lie well st;iteil in the same work by my [Jrother lUackburn. as follows: "If the contents of the signed paper themselves make refer- ence to the others so as to shew \)y In- ternal evidence that the papers refer to each other, thoy may be all taken to- gether as one memorandum in writing'" (as in the case which I have meniioned of a letter referring to a previous letter, of which the copy Is anncxt'di; "'but it it is necessary, in order to connect them, to give evideiice of the Intention of the par- ties that they should be connected, shewn by rircuin-itaiices not apparent on the face of the writings, the memorandum Is not all in writing, for it consists partly of the contents of the writings and partly of the ex|iression of an intention to unite them, anil that expression is not in writ- ing.'" The oM case of lioydell v. Driini- mond,' and some other cases, might lie consistent with that rule; but certainly of Intea diflennt rule has been introduced, and it is a rule, to say the least, consist- ent with the convenience v)f mankind, be- cause if you were to exclude partd evi- dence to explain such a doubtful reference as " the letter of the 14th inslant," or It might be simply "your le'ter. " the result niiglit In a large number of cases l)e gross injustice. Now 1 take it to be quite set- tled that in a case of that kind you moy i;ive parol evidence to shew what the doc- ument referred to was. I take It that yoD iiiMV go further than that, and that if you tinii a refcieiice to something, which may be a conversation, or may be a written document, you may give evidence to shew ' E. B. & E. 1001. «7 Eiist, .">.">■*. •3 B. & f. <Mh. Ml Eiisl. 14'i 602 OLIVER V. HUNTING. wliether it wjis a conversation or a writ- ten docLiment ; am), havinjj proved that it was a written document, you may put tliat written dooiiinent iu evidence, and S(» connect ic witli the one already admit- ted or proved. ISo far there is no ditti- cidty. That was applied in the case of Hidgway v. Wharton," where the ques- tion was on tlie intanin^ of instructions which did not by any means necessarily point to a written document; l)ut later tlie cases linve gone furtlier than that, and it scenis to nie that Long v. Millar," followed hy Field, J., in Cave v. Hastings,'' does estal)lish a very much larger series of exceptions. In Long v. Millar I pro- fess myself rather embarrassed by the judgment of Thesiger, L. J. — that is to say, I am unableqiiiteto understand what he means by the passages on p. 4ri6, which seem to me rather inconsistent; but see- ing that I have the juilgments of Bram- Wfll and Baggallay. L. J. J., without the slightest doubt or embarrassment, and that Thesiger, L. J., concurred in their judgment,! think I may put any difficulty of that kind aside. Bramvvell, li. .1., gave a judgment which, beyond its reference to the particular case, is exceedingly useful as illustrating this branch of law; be- cause he gives an illustration which seems to me to go to the root of the matter. The illustration he gives is thisS; "Sup- pose tliat A. writes to B., saying that he will give £10(10 for B.'s estate, and at the same time states the terms in detail, and suppose that B. simply writes back in re- turn, ' I accept your offer.' In that case there may be an»identilication of the doc- uments by parol evidence, and it may be shewn that the offer alluded to by B. is that made by A., without infringing the statute of frauds, sect. 4, wliich rc(inires a note or memorandum in writing." If that is sound, which I tal<e it to be, ac- cording to other cases, and according to the convictions of judges in older cases which are introduced into the old law, it is (litticult, perhaps, to say where parol evidence is to stop; but substantially it never stops short of this, tliat wherever parol evidence is recjuired to connect two writtfn documents together, then that parol evidence is admissible. You are en- titled to rely upijn a written document, whicli requires exiilanation. Perhaps tlie real principle upon which that is based is, tl)at you are always entitled in regariling the construction and meaning of a writ- ten document to inquire into the circum- stances under which it was written, nit in order to find an interpretation by the writer of the language, IJut to ascertain «6H. L. C. 23S. •4 C. P. D. 450. '7 Q. B. D. 125. •Long V. Millar, 4 C. P. D. 4.'4. from the surrounding facts and circum- stances with reference to what, and with what intent, it must have been written. I think myself that must be the principle on wliich parol evidence of this kiiid is admitted. Turning to the case before me, I tind a letter of the TJtli of September, IS^SH, written by the defendant to Mrs. Oliver; and in that he says: "I beg to acknowledge receipt of cheque, value £375, on account of the purchase-money for the Fletton Manor House estate, for which I thank you.'" I have two things here per- fectly clear, that there is a property called Fletton Manor House estate, wliich con- stitutes the subject of a purchase, and, therefore, the subject of a sale. I have also that £37.j is part of the purchase- money for that house; but, beyond that, I have no terms of a contract. I am enti- tled to consider the circumstances under which the letter was written, in order to give any meaning that 1 properly can to it— not to add terms to it, but to tind out what the meaning necessarily must be, having regard to the facts and circum- stances — and, having got the evidence which I have in this case, the conclusion is inevitable that it refers to a previous memorandum of terms of agreement un- der which Mrs. Oliver becomes the pur- chaser of this particular projierty for the price of £2375, on account of which the cheque for £375 was sent. Having got that evidence in, having got the connec- tion between the two documents, I have then enough to enable me to read the two documents together, and, reading them together, I have a distinct memorandum of contract, specifying all the terms, the second one supi)lying what the first one omitted to give, namely, singularly enough, the property which was intended to be purehahcd and sold. That being so, the objection that there is no memoran- dum within tlie statute of frauds fails. I have not referred to the late case of Studds V. Watson," before Mc. Justice North, because 1 am not quite sure how far that learned judgeintended to go. If I 1 am right in my view of his judgment, that he only allowed the parol agreement to be proved to see whether it connected the two written docuuients, and then, having got it in evidence, found that it did, and so was able to connect the two docu- ments— if that is the right view, which I believe it to be, of what lie intended — then it really follows Long v. Millar, i" and Cave V. Hastings, 11 to both of which he referred in his judgment. Under these circumstances, I think the plaintiff is entitled to judgment for spe- cific performance, and, of course, to the costs of the action. '28 Ch. D. 305. '»4 C. P. D. 450. " 7 Q. B. D. 125. Olt.MliOD V. IIUTII. 605 ORMROD V. UUTH ut aL (14 Mees. & W. Gol.) Courts of Exchequer Chamber. June 18 & Ifl, 1845. In error on a hill of exceptions from the c-ourt of o.xclii'iincr. (,'iiHu for a IuIhp representation. Tlie (Ipc-laration Htated, that the plaintirr, to wit, on, iVrc, at the riMitieHt ol the (tcfeiid- ants, hjM-Kaiiieil with the (lefendiintx t(j liny of thcni divers, to wit. 142 liales of eoltoii ol (hem (he defendaiitK. and f(>r a eertaiii price, (o wit, (lie price or Kiiin of t:iii4(i l.')H.; and the defentlant.s then, dur- ing such liart;aiiiiiiK. falnely, fraudulently, and deceitfully e.xhil)ited to the plaintiff (livern, to wit, 142 parcelH of cotton, and falsely, fraudulently, and deceitfully repre- sented and held out to the plaintiff, and Midiiccd the [)laintiff to helieve, that the satne parcels Weri^ samples of the said cotton 8o bargained for, and were fair samples theieof, and that the said cotton was e(iual to and of the same description with, and of e(|ual ami like quality with the said parcels ho exiiiliited as ufcjresaid ; and thereupon the plaintiff, heretofore, to wit. on tlieBumeday and year, conhdin;; in and r.->IyinK upon the said i)arcels ao ex- hil)itei|. and the said repri'sentations and indncemeuts of the defendants so made as aforesaid, at the rc(iuest of the defend- ants, was induced to buy and did buy the said cotton of the dclenilants, at and for thesaid larne price orsnmof, to wit, tllijti 1.5s., and afterwards, to wit, on the same day and year, |)ald to the defendants the same sum of money for the same; where- as, in truth and in fact, at the times of tlie said IxirKiiinitin and sale by the defend- ants, the said parcels of cotton were not fair sainples, nor wore they samples of the said cotton so baruained for. nor was the said cotton ecpial to and of the same description with, and of ecjual and like quality with thesaid parcels, l)ut of in- ferior and much worse description and quality, and of much less value. .Vnd the plaintiff in fact says, that the defendants, by means of tlie premises, on the day and year aforesaid, falsely and fraudulently deceived the plaintiff in the sale of the said cotton as aforesaid, by means whereof. &c. Fleas, first, not K'lilty : secondly, that the plaintiff was not induced to buy, nor did lie buy thesaid cotton or any part thereof, niodo et forma. The rei)lica(lon took issue upon both pleas. At the trial, before Coltnian, .J., at the I<iverpool sprint; assizes, ls4;i, it niipeareil that (lie plaintiff, a cotton-spinner, had. thidiiL;!) a broker, bought several bales of cotton from the defendants, who were merchants at Liverpool. The usual method of ptirchasinn cotton l.-i by bro- kers. The selliiiK broker always has sain- I)lcs by wliicli he sells. Inspection from the bulk is quite unusual in iiurchases of cotton. The samples are drawn from a silt in the bale; and if any part of the bole proves to lie of an Inferior ((uality to that found in the slit, it is s;ii4l to be false- ly packed, and is i^nmerchnntable on (hat I account. It is usual for the buyinK broker to have sumplesdrawn by his own people from the bale, which redrawn sam- ples lie compares with thosi- by whjcli be has bouKlit. In the present cose, forty-five of the liales which were purclnised by the plaintiff were found to be falsely packed. Cotton is packed in layers, ho that the edKcs are visilde only at the top and bot- tom, and alon^ the narrow side. From the way in which the cott<»n Is packeil, you Can only take the sainide from the louK narrow slile. In this case there were two, tiiiee, or more layers of Rood cot- ton like (he sample; but In the inner part the cotton was liad : In some instances there was not more than one layer of «ood, and the rest bud. A witness stated that this must have been done by de- si«ii. aiHl that the bales must have been falsely packed when purchased; but there was no evidence to show that the ilefendanis were co;.'nizant of the fraud. It was proved that the cotton had come strait-lit from the ship (o the defendants' warehouse, and they were the consiRnees; but whether (hey were (he coiislKiiees oti their own account or for othei-s did not ap|)enr. Upon this evidence, the defend- ants' counsel insisteii (hut there was no case to ;;o to (liejnrv on which they could firiil for the plaintiff on the llrst issue, in- usinuch as neither the defeudnnts nur their brokers were proved to have had any knowledge of the ulleRed misrepre- sentation belns false, or of the false pack- ing, or to have acted In any respect auainst Rood faith or with any fraudu- lent purpose. The plaintiff's counsel, on the other hand, maintained, that the d^- liver.v of samples not correspondint; with the bulk, was a false representation of the quality of the cotton, which must be considereil in point of la w as fraudulent, as beiu); the statement of a fact which the party makiu); it did not know to be (rue. anil which in fact was not (rue, and which induced (In- buyer (n make (he pur- chase. The learned judtte directed (he jury, that, unless they could see urounds for Inferrintr that (he defendniUs or their brokers were ac(|uainteil with the fraud that had lieen practised in (he packing, or had acted in the transaction auainst flood faith or with some fraudulent pur- pose, the defendants were enddeil (o the verdict on the first issue: whereupon the plaintiff's counsel excepted (o (lie direc- tion of (he learned jmlne. and insisted that proof of (he defendants or their bro- kers beliiK acqnainteil with the fraud that had been iiractised In the packlni;. or of their hiiviiiK acted airalns( (jooil faUh. or wi(h some fraudnhiit purpose, was not necessary to be Klven liy liim on that issue, and tendered a bill of exceptions ac- cordinuly. The jury found a verdict for (he defendants on the first Issue, ami were discharged by consent as to the other Issues. .\ writ of error havluK been brouRlit, the case was now ar;;ned liy Cowlintr. for plaintiff In error. Cromp- ton, for defendant in error. TINOAL, <\.I. We think the direction of the learned judjie was perfectly correct. 606 ORMKOD V. IIUTH. The action is brought tor a false anrt fraudulent representation, alleged to have been made b.y the defendants, on the Kale of certain cotton to the jilaintiffs, that the cotton was of the same description, and of equal and like <]ualit.v with the sample by them exhibited, whereas in fact it was not: tlie action not being brought upon an exi)ress warranty, nor any ex- press allegntion being laid in the declara- tion, that thedefendants knew at the time that the bulk of the cotton did not e(iual in description or quality the sample wtiich had been so exhibited. Upon the trial, the learned judge direct- ed the jury, that, unless they could infer that the defendants or their brokers were acquainted with the fraud that had been practised in the packing, or had acted in the transaction against good faith, or with some fraudulent purpose, the defend- ants were entitled to the verdict; and we think this the proper direction. The rule which is to be derived from all the cases appears to us to be, that where, upon the sale of goods, the purchaser is satisfied without requiring a warranty, (which is a matter for hi.= own considera- tion,) he cannot recover upon a mere rep- resentation of the quality by the seller, unless he can show that the representa- tion was bottomed in fraud. If, indeed, the representation was false to the knowl- edge of the party making it, this would in general be conelofiive evidence of fraud ; but if the representation was honestly made, and believed at the time to be true by the party making it, though not true in point of fact, we think this does not amount to fraud in law, but that the rule of caveat emptor apjilies, and the repre- sentation itself does not furnish a ground of action. And although the cases may, in appearance, raise some difference as to the effect of a false assertion or represen- tation of title in the seller, it will bcfound, on examination, that in each of those cases there was either an assertion of a title embodied in the contract, or a repre- sentation of title which was false to the knowledge of the seller. The rule we have drawn from the cases appears to us to be supi)orted so clearly by the early, as well as the more recent decisions, that we think it unnecessary to bring them forward in review; but satisfy ourselves with saying, that the exception must be disallowed, and the judgment of the court of exchequer affirmed. Judgment afhrraed. PAGE V. MORGAN. 609 PAtiE V. MORGAN. (15 Q. B. Uiv. 32S.) Court of Appeal. June 10, 1S85. Appeal from the jiid^inent of the qiiei-n'H lieiK'l) tlivinioa refuHlii^ nn apiilii-atioii for a new trial, or to enter jiiilKiiient for the (lelenilaiit. Till- action wiiH for the price of wheat, or in tlif alternative for daniaKes for non- aice|itaaco of the wheat. Tlic statement of defence denied the con- tract of [jnrchaHC, allefie<l that the wheat was Hold by 8aini)]e, and the liulkwaonot eijiial to the Huniple, and Het up non-coui- jiliance with the statute of frandH. The case was tried Ix'fore ISnlwer, Q. C, Hittinp as conirnisHioner at tlie riielmBford smnnier assizes, iHHi, when the facts were as follows: — The defendant, H miller, bought of the plaintiff bv oral contract thron;;li the plaintiffs anent eijjhl.v-eiiiht quarters of wheat. The sale was by sample. The wheat was shipped by the plain tiff'saiient on a liartie for carriage to the defendajil's mill, which was upon a na\ livable canal. The liarRe ai-rived at the mill on the even- inn of 'I'uesday the L'.'.th of March, and at S o'clock on the mornint; of the itith some of the sacks containing: the wheat were, by direction of the defendant's foreman, hoisted uj) out of the barRe on to the mill andeAamined by him. After twenty-four sHclis liad been hoisted up and examined the foreman sent for the tlefcndant, who came to the mill and inspected the con- tents of the sacks already delivered, and ordered some more t(j be sent up for e.\- ninination. and aft'-r liavinn examined thirty-cjjijht sacks in all, he at !» o'clock told the l)ar{>einan to send up no more, as the wheat, he said, was not equal to sample. The defcMidant then on the same day went off to see the plaintiff's asent at a neifjlitionriiiK market town, and told him that the wheat was not equal to sample, and that he should not take it. Some ibiys afterwards, the e.xact interval, how- ever, was not stilted, the wheat taken in- to the mill was returned by defendant's order to the barite, which reinaiiu'd at the defendant's niill with the wheat in it, the plaintiff refusing to take the wheat away, for seven weeks and until alter action was Itrouarht, when tin- wheat was sold by the order of a judjie at chambers, and the proceeds paid into court to abide the event of the action. The learned conimiRsioner directed the jury, on the authority of Morton v. Tib- bett'and Kibble \ . 'GoukIi.s that there was evirlence of an acceptance l)y the de- fendant snllicient to constitute a contract within the 17th section of the statute of frauds, althonjih the defemlant was not precluded from rejeclinir the wheat if not equal to sample. The jury found that the wheat was equal to sample, and that the defemlant had accepted it withia the meaninir of the 17th section of the statute of frauds, and accordingly anve a verdict for the plaintiff. ' !."> Q. B. 4-.'8. ■•'3s L. T. (N. S.) '.'(M. LAW .sAr.i:s — 39 A rule for a new trial, or to enii-r judjj- ment f(ir the defendant, was moved for on the jrroiind that there was no evidence for the jury of an acceptance of the wheat liy the defendant t<» satisfy the Htatute, but the iineen'H bench division (Lord Cole- rid^e, C. .1., and Cave, J.) refused the ap- plicution. Morten. (Murphy, t). C. with him. I tor defendant. I'hdbrick, Q. ('., and It. V'auKhan Williams, for plaintitf, were n<it called upon to arRue. BHICTT, .M. n. It seems to me that the case of Kiblde v. GouKh" lays down the KoverniuK princi|)le with reganl to the question whether there is evhience of an accei)tance to satisfy the 17tli secliun of the statute of frauds. It was there point- ed out that there must lie under the stat- ute both an acceptanceand actual re<-elpt, but su<h acceptaace need not lie an aliso- lute acceptance; all that is necessary is an acceptance whicli could not have been made except upon admission that there was a contract, and that the >to<ids were sent to fultil that contract. Cotton. L. J., in ;;ivia^ jud;;ment in that rase, said : "All that is wanted is a receipt aad such an acceptanc" of the koimIs as sliews that it has regard to the ccmtract, but tliecoii- tract riMiy yet be left open to objection : HO that it would not precluile a man from exercisin;; such a ixiwer of rejection. I think that in this case enough hail been done to satisfy the statute." Now what had been done In that case'.' Tin- nonds had been taken into the defendant's ware- house and kept for some time, thouuh nut so lonj^ as to make it unreasonable that the defendant shduhl exercise his rlirht of rejection if tlie kooiIs had not been nccord- iiiK to contract, and the defendant hud inspected tlie goods. They therefore had licen delivereil. and actual possession of them had been taken, and they had lieen dealt with by the defendant for the piir- poseH of the roatr.-ict. It was held that under those circumstanceB what had been done in respect to tlie jioods liy the defendant must lie considered as havintr been done witli regard to a contract for the purchase of the goods, and as amount- ing; to a recognition of the pxintence of such contract, and that therefore, though the defendant iniglit still have a right to reject the goods if not equal to sample, there was evidence on which the jury might lind that the defendant had accept- eil till" goods within the meaning of the Htatule. Tliat lieing tin- law as laid down by tliat decision, what was the evidence oil the question of ncreptance in tlie pres- ent case'.' The wheat was sent tothedi^ fendaiit's mill in a barge, which wan brought under the mill in tlieevening. The next inoniing a considerable quantity of wheat was taken up by the defemlant's servants into the defendnnt's mill and remained there some time more or less until the defendant had opened tlie sacki* and examined their contents to see If they corresponded with the sample. How could the defendant have tliese HackH • asL. T. cN- s.) •:(>*. GIO PAGE c. MOKGAX. taken into liis mill and there opeiieJ ami examined witliout a lecoaiiitiori of tlie ex- istence of a contract entitling liini ho to deal with them? How could any reason- al)le n)e;i come to any otiier conclusion from hiss dealins with tliem tlian that lie had made a contract of purchase with re- yard to them, and that the Koods were <lelivered to and received by him under •such contract, and exaniined by him to see if they were according to thecoutract? It seems to me clear that under these cir- cumstances there was evidence for the ju- ry of an acceptance within the meaning of the statute. I can conceive of many fasps in which what is done with regard to the delivery and receipt of the goods may not afford evidence of an acceptance. Suppose tliat soods beini; taken into the defendant's warehouse by the defendant's servants, directly he sees them, instead of examining them, lie orders them to be turned out or refuses to have anything to do with them. There would there bean actual delivery, but there would be no ac- ceptance of the goods, for it would be quite consistent witn what was done that he entirely repudiated any contract for the jiurchase of the same. I rely for the XJurposes of my judgment in the present case on the fact that the defendant exam- ined the goods to see if they agreed with the sample. I do not see how it is possi- ble to come to any other conclusion with regard to that fact than that it was n <lealing with the goods in volving an ad- mission that there was a contract. It ap- pears to nie that, having regard To the case of Kibble v. Gough, which is an au- thority binding on us, there was clearly evidence in this case for the jury of an ac- ceptance, anil that upon such evidence there was only one conclusion to which tliey reasonably could come. The counsel for the defendant placed reliance on the case of Rickard v. Moore.* Jt is alleged that in that case Lord Bramwell doubted the correctness of what he had said in the previous case of Kibble v. Gough. How- ever that may be, it is quite clear tliat that casecannot overrule Kibble v. (Jough. For tliese reasons I am of opinion that this appeal must be dismissed. nAG(iALLAY, L. J. I am of the same opinion. It has been decided inthecasesof Morton v. Tilibett-'"' and Kibble v. Gough that there may be an acceptance within the statute though it is not such an accept- «.SS L. T. (N. S.) 841. ' 15 Q. B. 428. ance as to preclude the defendantfrom ob- jecting subsequently that the goods are not according to the contract, and reject- ing them on that grourid. Different opin- ions have been expressed as to the true grounds on which Morton v. Tibbett was based, but it seems to me that the case of Kil)b!e v. (lough has made the effect of the former decision clear. IJeliance wits placed liy the defendant's counsel on the case of Rickard v. Moore. But when that case eonies to be examined there are various points of difference which are adverted to in the judgments, and there is also the most important distinction adopted iiy Thesiger, L. J., in giving judgment, viz., that, whereas in Kibble v. Gough the juj-y found that the goods were equal to sam- ple, in Rickard v. Moore the jury found that they were not equal to sample. The only ()uestion we have to consider is whether there is evidence of an acceptance in this ease within the principle laid down in the cases of Morton v. Tibbett and Kib- ble v. Gough. It seems to me clear that there was such evidence. BOWEN, L. J. This case appears to me to be governed by the decision in Kilitile V. (iough. That decision would be bind- ing upon me whether I agreed with it or not, but it seems to me that it is based on the soundest sense. The statute says that the contract shall not begood unless, among other alternative requisites, there has been an acceiitance and actual receipt of some part of the goods. Having r-e- gard to the mischiefs at which the statute was aimed, it would appear a natural conclusion that the acceptance contem- plated by the statute was such a dealing with the goods as amounts to a recogni- tion of the contract. That, accordingly, was the view taken by this court in the case of Kibble v. Gough. In Rickard v. Moore there was the distinction that has been pointed out by my Brother Baggal- lay. In Kibble v. (Jough the goods were found to be equal to sample, and it there- fore became necessary to decide in that case whether tliere was an acceiitance within the ITtli section; in Rickard v. Moore the goods were found not to be ecjual to sample, so it was only necessary to decide whether they were rightly reject- ed. I do not think that Lord Bramwell, by his remarks on what had thus become a by point, can have intended to overrule the previous decision of tliis court. In an.v case we are bound by the decision in Kib- ble V. Gough. Appeal tiimnissed. PALMER c. HAND. 613 PALMER V. HAND. (13 Johns. 4.S4.) Riiprcmo Court of New York. Oct. Term, 1S16. Tlii'i wiiH an action of trover, trU'cl bo- fort- .Mr. .Justice Spencer, at the Albany circuit, in Ajiril. ISKJ. The plaintiff wan the owner of a raft. coMHistin^ of ))lank, joiht, and l>onnlH; anil whilst coming <lown tlie North river, in the autumn of the year 1M.">, witli the raft, oni' I'otter eanie upon the raft, and offeri'il to buy it: the price was agreed upon: it was also ajrreed, that the plaintiff should <leliver it at one of the <locks in .Mbany, and be at the expense of takinc it out of the water. I'otter then applied to the defendant, who kept a lumber yard, in Albany, to i>urchase the lumber wliiih the plaintiff had agreed to sell him; l)ut I'otter and the defendant not lieinu able tosettlc the bar^^ain. i t was ajireed that the defendant sliouM take and sell the lumber. The plaintiff ar- rived w'ith his raft, the ne.vt day, and brought it to the defendant's dock, and there inquired of one of the witnesses in the cause for Potter, and asked if I'otter was not to have more hands to take out and pile the hunber, and said that he had sohl it to I'otter. He then left the raft, and went into the city, and at 4 o'clock in the afternoon, at which time all the raft was taken out of the water, and nearly all piled, a few cnllins pieces excepted, the plaintiff returneJ and forbade any more to be piled, sayintr that Potter had none off. The defendant, on the same day, ad- vanced to Potter, on account of the de- posit of lumber, lOOdollars; and also gave him an order on Wilder & Hustings, for 150 iloUars, in goods, which were, in the oveniuK of the same day, delivered to him. There was no formal delivery of the lum- ber to Potter, who, it was conceded, was a cheat, and had absconded. The plaintiff proved a demand on the defendant to restore the lumber, or pay for it, and a re- fusal. Tile jury found a verdict for the plaintiff, subject to the opinion of the court, on a case containing the above facts. Van Vechten, for plaintiff. Henry, con- tra. PLATT, .J., delivered the opinion of the court. This is an action of trover, for a quantity of plank and scantling. It ap- pears that the plaintiff was owner of a raft of lumber, and while descending the river opposite to Lnnsingburgh. he con- tracted w-itli one I'otter for the sale of the lumber, to be delivered to Potter, by the plaintiff, on one of the docks, in Albany, at a price agreed on, to l)e paid on deliv- ery. Potter then went to the defendant, "ho keeps a luniber-vaiil and dock, at Albany, and agreed to delivei- to him the lumber of that raft, to be sold by the de- fciidjiut, on comniission, for Potter. Nc\t morning, about sunrise, the plain- tiff arrived witli the raft, and fastened it to the defendant's dock. The plaintiff then told the workmen employed there, tlint he had sold the lumber to Potter. One or two men began immedlatelv to |)ile the i)lank, &c., on the d.'tendant's dock, and the plaintiff "asked if Potter was not to have more hands til take out and pile the lumber." The plainliff then went Into the city, and did not return ai.'ain till 4 o'clock P. .\I.. at which time the lumber was almost all piled on the de- fendant's dock. Tlie pliintiff then for- bade the (lilitig of any more, saying that I'otter had absconded. While the men were piling U|> the lum- ber, about in or II o'clock A. M. of that day, the defendant advanced to Potter 101) dollars, and, also, gave an order for l.'id dollars' woi-th of goods, in favor of Potter, on account of the deposit of lum- ber. The plaintiff, afterwards, demanded the lumber, which the defendant refused to deliver. There is no doubt that, upon u contract to sell goods, where no credit Is stipu- lated for, the vendor has a lieu ; so that if tlie goods be actually delivered to the vendee, and, upon demund then made, he refuses to pay, the proi)erfy Is not changed, and the vendor may lawfullj' take the goods as his own, because the delivery was conditional. .\s between the vendor and vendee, in this case. I incline to the opinion that the property in the lumber was not so vesti'd in the vendee as that the vendor could not legally have resumed it when he came, in the afternoon, and forbade the piling of any more of it. The contract with Potter was for the whole raft, to be delivered on the dock. Till- vendor, therefore, had no right to demand payment for any part until the whole was delivered; anil it appears that he came to tlie place of ilelivery. at 4 o'clock ill the afternoon of the day on which the raft arrived at the dock, whilst the lumber was still in the course of deliv- ery, and signilied his determination not to consider tlie sale aa absolute. He said that Potter had absconded, and ordered the men not to pile anymore of the plank. &c. Ah between Palmer and Potter there was no such delay or acquiescence on the part of the vendor, as would be evi- dence of .'1 credit given for the money. If the vendor was there, and dem.-indeil pay- ment, as soon as the whole lumber was plied on tlie dock, that was enough to preserve his lien; and such, I think. Is the fair construction of the evidence. The plaintiff, in this case, seeks to en- force his lien against a person wlio has bona tide received the property ns a |)leilge for money and good.-* mlvanced to Potter, to nearly the amonnt of its value. Tlios" ailvances were made bv tlie <Iefi'nd- ant while the lumber was In a course of delivery on the dock, and before the plain- tiff assi'rted his claim to it. Hut there Is no evidence that the plaintiff had any kiuiwledge of the negotiations between Potter and the defendant, in regard to the lumber, until after the plaintiff had made his election to rescind his contract with Potter. This is a contest, then, between two honest men, who shall be the dupe of 014 PALMER v. HAND. n swindler. The strict rule of law must, therol'oro, l)p applied ; and the defendant caiMioc be allowed to stand in a more favorable situation than Potter would have been in if he him.self had withheld the possession of the liinibor, without payiTiK the price when demanded. We are, therefore, of opinion, that the plaintiff "is entitled to judgment. Judgment for the plaintiff. PARKER 0. PATRICK. 617 PARKER V. PATRICK. (5 Term H. 175.) Court of King's Uench. April 22, 1793. Oil tho trinl ol thJH iiution of trover for ;ri)()iln at the lust Sittings, it Hppenrcd tluit the troiiilH in riucMtioii had bt'cn oli- tained from tlie defendant l)y falwe pre- tcnreH. and afterwards pawned to the Iilaintil'f for a vahiiiblo conHiderution, wKliout iiotiee of the fraud : that the per- Hon olitainiiiK them had lieeii convicted liy the defendant, on which tlie latter not DOHHeHHion of the ^ooils anicin; and now tliis action was liroUKlit by tlie iilalntiff, the pawnliroker, to recover them from the defendant. Tlie del'endant'H connHol prcHsed for a non-Huit, contendinir that the (iiiestion inunt he conwidered to he the Haine aH if the j^ood.s had been felonioii.^ly Htoleii from tho defendant; and that the plaintiff, who derived litle tliroii;;h a fraud, thouuli ho himself were innocent of the fraud, was not eiititleil to recover airaiiiBt the ilefendant, who was the true owner: but Lord Kenyon thought that it was not like the case of felony, and the plaintiff obtained a verdict. Conste aniJ Bayley now renewed the same objection in u motion toenter a non- suit; urKiiiK that in this respect there was no difference between the obtaining of Koods by fraud or felony, for that the rea- sons given in tho latter case were equally applicable to the former. In a case In 13 Kd. 4. 1). recot;nizcd in Kel. s|, k2, where one hiirKained witli uiiother to carry some packs of noods to .Southampton, and delivered the goods to the currier, who carried tlieni to another plac;-, and there opened the packs, and took the goods, and disiiosed of them to his own uhp, it was held to be felony " because his subse- nnent act of currying the goods to an- other place, and there opening them, and disposing of them to his own use, declared that his intent originally was nut to take the goods upon the agreeii eut and contract of the party, but only with n de- sign of stealing them. " Accordingto which doctrine the subsequent act of tlie person who obtained these goods upon false pre- tences shewed that he did not take them upon the contract with the defendant, hut by fraud; and consequently he could not I make a title of them to the plaintiff. But ! PI:R CURIAM. This is distinguishable from tlio c.-ise of felony; for there by a po.-iitive statute 1 the owner, in rase he prosecutes the offender to conviction, is I entitled to restitution : but that does not extend to this cuse, where the goods were obtained from the defendant by a fraud. Rule refused. '21 Hen. S. c. XI. Vid Horwood v. Smith, R. 7.W. iTerm PAUL c. \IEEU. 619 PAUL V. REED et ol. <h2 N. H. 13«.) Supreme Judicial Court of New Hampshire. Sul- livan. June. InT'J. Action by A/.or I'liul asriiinHt Dexter O. Hceil. (lefiMiilant, nixl Uiiiiii U. .Mooilv, triiKtci'. The triiKtee wiis held liiihle on the (liHcloHure. iinil ilircnilant took e.xcep- tioMs. ExceptiouH KWHtaiin'il. The disclosure of .Moody, the trustee, showed that hesiu-ceeded defendant. Iteeil. us tenant of a lioardinc house, and when he wan tiikinK possession, and Heed was moving out, he a^jrecd to purchase from Heed a ho^, some svmar. and other ai'tl- cles. The agreed price of tlie articles was as follows: One ho^, S1(t..")U: Hour, $7; butter, SIU: l)edstead, f I ; suuar and salt, 51. Ml. Heed made a nieniorandnni of the articles with the price carrie<l out, and, as he was addin;; it up, the sheriff served the trustee summons on .Mood.v. 'IMie hoji had already been removed by Moody to another pen, and the sugar had been placed with .Moody's other sufrar. Wiien the summons was served. Moody held the money in his hand, read.v to ])a.v (or the articles us soon as the aiiionnt was ascer- tained. .Vfter service of process. Heed asked .Moody to give the articles up, sa.v- in}r,"\Vpcan call It no sale, and I can take my stuff," Kivinn as a reason that they were not yet |)aid for. .Moody replle<l that ho woidd take counsel, and. if it was safe for him to do so, he would jiive them up. Me was advised to let the matter stand, as there would be a (juestioii as to his liability to be tried. Defendant, Heed, claimed the property, but the court held Moody to be charnealile with the ?:!(). :J0, and defenilant excepted, and the (|uestlon was reserved. Howers, for plaintiff. S. H. Edes, for defendant and trustee. HELLOWS, C. J. I'nlesH the principal defendant had anotherliot; and other pro- visions or fuel, so that the value of his provisions and fuel exceeded twenty dol- lars, all the articles sold to the trustee were exempt from attachment. .As there Is no proof that he had another hoy:, or more provisions, or fuel, the court cannot lind that he had sudi ; anil, therefore, unless the title in these floods had vested in the trustee so that he became inilebted for them, the trustee must l)e dischariied. The <|uestion then is, whether the jjoods were delivered so us to vest the title In the trustee. The proof tends to show that the sale was for cash, and not on credit: — so the trustee testilies, and this is just what would have l)een intendeil had no time of payment lieen stipulated, l! Kent's Com. 'A'.m, •4117; Story on Con., § 7!i('); Noy's Maxims M; Insurance Co. v. De \V(.ll, l' Cow. 10."). riie c-ase. then, stnmls before us as a contract of sale for cash on deliv- ery: in such case the delivery and luiy- nient are to be concurrent acts; ami therefore, if the poods are pnt into the pos.session of the buyer in the expectation that he will immediately pay the price, and he does not doit, the seller is at lib- erty to rr^ard the delivery as conditional, and may at once recl/ilin the ;;ooi]h. Iu such a case tin- contr;ict of sale is not ron- snmmated. anil the title does not vest In the buyer. The seller, may, to be sun-, waive the payment of the price, and ui;ree to postpone it to a future day, and pro- ceed to comrilete the delivery: in which case it would be absolute, and the title would vest iu the buyer. I'.ut in order to have this effect, it must appear that the Koods wi-re put into the Ituycr's posses- sion with the intemion of vestinK the ti- tle In I'.im. If, howeviT, the delivery and payment were to he simultaneouH, and the Koods were ilelivered in the expectation that the price would lie immediutely paid, the re- fusal to make payment wouM be such a failure on the part of the liuyer to perform the contract as to entitle the seller to (lut an end to it and reclaim the goocjs. This is not only eminently just, but It Is in accordance with the ^reat current of authorities, whicli treat the delivery, un- der such circumstances, as eonditionul upon the immccliiite payment of the [irice. L' Kent's Com.*4'J7; Chitty on Ci>n., '.•th Amer. Eil.. *:!.")(). note 1 and cases; Storvon Con.,§§ 7'.m;,S04; rainier v. Hand, 13 . 1 (dins. 4:14; .Marston v. Hahlwin. 17 Mass. tiO.'i; J/<'ven V. Smith, I Denio ."ii:!. and cases cit- ed. So the doctrine was fully recocnired in Hussell v. .Minor, I'l' Wend. ti.V.l, where, on the sale of paper, it was a;;reed that the buyer slxiuld cive his notes for it on ilelivery, and the delivery was in several parcels. On rieliver.v of the lirst, the seller asked for a note; but the buyer answered that he would ulve his note for the whole when the remainder was delivered, and the parcel now delivered could remain until* then. When the rest was delivered, the defendant refused to pive his note; and tlu' court held that till' ilelivery of all the jioods was conditional, and tliMt the seller iniKlit maintain replevin for all the jjoo.ls. TheKcneral doctrine is fully recoirnized in this state in Luey v. linndy. '.t .\. II. L".»s. and more especiall.v in Ferguson v. Clif- ford. :!7 .\. II. Mi. where it is laid down that if the delivery takes place when pay- ment is expected simultaneously there- with, it is in law made upon the condi- tion precedent that the price shall forth- with lie paid. If this condition be not |KT- formed, the delivery is inoperative to pass the title to the property, and it may be instiiutly reclaimed by the vendor. I'he niicstioii then is, whether the deliv- ery here was absulute, intending; to pass the title to the vendee and trust him for the price, or, whether it was made with the expectation that the cash would be paid immediately on the delivery. This is a ipiestion of fact, but it Is nubmlltrd to the court forilecision. Ordinarily it should be passed upon at the trial term: liut where the (luestioti Is a mixed one of law and fact, as it is here. It may not he Irreij- nlar, if the jud;:c thinks it best, to reserve the entire iiueslion for the whole court. Assnmint: that the qu'stions both of law and fact are reserved, we lind that the Kiiods were sold for cash, and of course that tlie delivery of the uoods anil the payment of the price were tobo slmultune- 620 PAUL V. KEED. ou." , iitul nccordiiifily, when a part had been (lelivered, and the seller wan tiRuring up the anidunt, and the hiiycr hud taken out his money to pav the price, the act was arrested by the serviceot this jirocess. The evidence relied cpon to prove the delivery to be absolute and intended to l)as8 the title at all events, is simply and solely the changinff of the hop: into an- other pen, and niixing the sugar with other 8U(jar of the buyer. Without this mixinii of the sugar, the case would be just tiie ordinary one of a delivery of the goods with the expectation that the buyer would at once pay the price; and We think that circumstance is not enough to show a purpose to make the delivery ■■ibsolute, btit rather a confident expecta- tion that the buyer would do as he had agreed, and pay the price at once. The case of Henderson ". Lauck, 21 Pa. St. '^7)'.), was very much like this. There was a sale of corn, to be [laid for on the delivery of the last load : and as the loads were delivered, the corn was placed in a heap with other corn of the buyer, in the i)res- ence of both parties. On the deli very of the last lot the buyer failed to pay, and the Seller gave notice that he claimed the corn, and brought replevin, which was held to lie, — the court regarding the de- livery as conditional, and the plaintiff in no fault for the intermingling of the corn. It is very clear that the intermingling of the sugar does not, as matter of law, make the delivery absolute; and I think, as matter of fact, it is n(jt sufticient to prove an intention to pass the title abso- lutely. When th<! buyer declined to pay the price, the seller at once reclaimed the goods, and so notified the bu.ver, vvho did not object to giving up the sale if he could safely do so. Jn respect to the question now before us, it is not material for what I'eason the buyer declined to pay for the goods, al- though the service of the trustee proc-.ss might shield him from damages in a suit by the seller for not taking and paying for the goods. For the purposes of this (jues- iion, it is enougli that the buyer did not pay the price, and thus gave the seller a right to reclaim the goods, which he did at once. The goods themselves were ex- empt from attachment; and the fact that the trustee process was designed to inter- cept the price of those goods, could not affect his right to reclaim them when the buyer declined to pay the price. The exception must therefore be sus- tained, and the Trustee discharged. I'Kiujcv c. i;al< II. 623 PEKLKY V. H.\I-CH. (23 ['ick. ^S!. ) Supreme Judicial Court of Massucliusetts. Es- sex. Nov. Toi-Di, ls;i'J. A.sHiiniD.sit on n proiiiiHmir.v iioU'. At the triiil in the court of foinnion pIciiH. before WilliiniiH J., the (Icfeniliiiit iiitro- diiL-ed evidence tending to prove, that the con.sideriition of the note w.ih the Hale of an ox hy the plaintiff to the defendant, with a wfirrnnty. that the o.\ would fat- ten i\» well as any one the defemliint then had; that one eye of the ox, which >vas then aii[)arently defective and diHcaHcd. wan falsely "nd frandulently represented hy the i)laintiff to have l)een hooked ont, whereas, in fact, it hii<l l)een destroyed hy a cancer; and that this disease was incur- ahle, and rendered the ox incapahle of lie- inK fattened and entirely worthless for any other purpose. It did not appear, that the defendant had returned or offered to return the ox to the plaintiff, or had ever notified to the plaintiff, that he was dissatislied with the contract, until after the coniinence- inent of this nction, which was several years after the sale. The defendant kept the ox in his pasture, &!■. for several months, and was at some troulile to as- certain whether it would answer his ])ur- rxisp. It did not appear what liecHuie of the ox afterwards. The defendant also offered evidence tend- in}; to show, that he purchased the ox for the sole purpose of fa tteniuK it. and that this was known to the i)laintiff at th:' time of tlie sale; and he contended, that, upon these facts, then was an implied warranty on the part of the plaintiff, that the ox should he reasonahly 'it for that purpose. The judRe instructed the jury, that no -such implied warranty arose frc.on thi'se tacts; that if they wei'e satlstied that the plaintiff warranted, that theox would fat- ten OH well as any one which thedefendant then liad. and that the warranty was false, or if they were satisfied, that the plaintiff falsely and fraudulently repi-esent- ed the eye of tlit" ox to have lieen hookeil out. whereby the defend;int was induced to |)urchase it, and if they were further satislied. that the ox, if it liail been re- turned to the plaintiff in a reasonable time, would h?ive been of no pecuniary value to him, the <lefendant would be en- titled to a venlict; biit that, otherwise, their verdict should be lor the plaintiff. The jury returned a verdict for the plain- tiff; and the defendant excepted to the in- structions to the jury. Lord, for plaintiff. Perkins. f<ir defend- ant. MORTON. ,T. The Instruction, that there was no implied wnrrant.v, is not now rouii)lained ot, and is undoubtedly correct. See lOmerson v. ISriKliani. 10 .Mass. R. I'.tT; Shepherd v. Temple, :t N. (lamp. R. l.V). Kvery sale of ch.it tels con- tains an implied warr-anty. that the prop- erty ot thcni is in the vendoi'. I!ut It is well settleil by authority as u {icneral rule, that no warranty of the tinnlitv, Ih ini|)lied from the sale. Themaxlin.cavent emptor, Koverns. L' Kent's Com. 47s ; Chlt- ty on Contr. IX!; ('!ian!pion v. .Short. 1 , Campb. .-.:!; I'.raKK v. Cole, li Moore. 114: Stuart V. Wilkins, 1 houjj. -.i); I'arkinHon V. Lee. 2 Kast. :!I4; Mockbee v. (ianlner, '2 Mar. & (iill, Uti. But the learned justice of the common r»leas further Instructed the jury that If there was a fraud in the sale, or an ex- press warranty and u breach of It, In ei- ther case, the defendant mi>;ht avolil the contract, by returninK the ox within n reasonable time; or. if theox would have been of no value to the plaintiff, then witliout returnini: him. Whether the jury found their verrlict upon the Kround, that no fraud or express warranty wasproveil, or that the ox was of no valui', does not appear. If therefore any part of the In- structions was incorrect, thedefendant Ih entitled to ii new trial. Where the purchaser is indin-ed hy the fraudulent misrepresentationH of Iheseller, to make the |>urchase, he may, within ii reasonjilile time, l)y restorintc the seller to the situation he was in before the sale, re- Hcinil tlie contract, and recover back the consideration paid, or, if he has driven »i note, resist the pavment of It. Here wnH no return of th3 property purchased . but if that property was of no value, whether there was any frauil or not. the note would l)e nudum pactum. Theilefendant's counsel, not con trovertin;; the general rule, obji'ctsto the (inalilicntion <jf it. lie Ka.vs, that tlie ox, thou>;h valueless to the defendant. mii;ht be of value loth" plain- tiff, and so the dcf'.'ndant would b. uonnd by his contraet, nlthon;;h hea''i|aired niith- iiitr by it. liut a damage to the promlHee Is as Kood a corisideration as n beueflt to the (iromisor. ITa chattel he of no value to an.v one. it cannot be the basis of a liar- ;j:ain: lint if it be of any value to either party, it may be a tjooil considerntlon for a promise. If it is benelicial to the pur- chaser, he certainly ou;;ht to pay for it- If it Ilea loss to the sellet. he is entitled to remuneration for his loss. Itut it is apparent, that a want of con- sideration was not the principal ground of defence. The defeiiilaut mainly relied upon fraud or a warranty. .\nd to ren- der either available to ;ivoid llienote.it was iudispeusable, th:it the property should be returned. Ilecannot resrind the contract, and yet retain any portion of the consideration. The only cxceptinn Is. where tlie pnipertv is entirely worthlettM to both parties. In such case the return would be a useless ceremony, which the law never reipiires. The purchaser can- not derive an.v benelit from the purchase and yet rescind the contract. It mast be uulliiied in toto, or not at all. It cannot be enfiirced lo part and rescinded In part. .\nd. if the property would be of any ben- elit to the seller, he is equally bound to return it. He who would rescind a con- tract, must put the oilier party in as good asituati<in as he was before; otherwise he cannot do it. Cliitly on Contr. L'7»i Hunt V. Silk. ."> Kast. AA'.t; Conner v. Hen- derson. 1.'. Mass. R. :tl'.l. The facts relied upon by the defendant 624 PERLEY V. BALCH. to defeat the note, might, If proved, be used in mitiKfltioii of damages. If there was a partial failure of consideration, or deception in the quality and value of it, or n breach ol warranty, the defendant may avail himself of it to reduce the damat;es to the worth of the chattels sold, and need not resort to an action for deceit, or upon the warranty. Chitty onContr. 140; <Jern!aine v. Burton, 3 Starl;. R. 32; Bas- ten V. Butter, 7 East, 480; Poulton v. Lat- timore, !) Barn. & Oessw. 2.")'.); Buyley on Bills, (2d Amer. Ed.) 531, and cases cited. But he is not bound to do this. He may prefer to bring a separate action, and he has au election to do so. The present judgment will not bar such an action. But however this nia.v be, it does not ap- pear, that anj' instructions were given or refused upan this point. The value of the property to the defendant would have been the true rule of damages. And had he desired it, doubtless, such instructions would have been given. But as heilidnot request them, he cannot complain of their omission. Judgment of the court of common pleas affirmed. PETERS V. FT. MADISON CONST. CO. C2: PETERH et aL v. FT. MADlbON CONST. CO. et al. (34 N. W. Rep. 190, 73 Iowa, 405.) Supremo Court of Iowa. Oct. 5, 1887. Appeal from circuit court, Lfte county. Thie is iin tipi)eul by plaintiffH from n Hnal order made t)y the circuit court in a sujiplemental proceediuK for the enforce- ment ol n jiidKiiient. The facts are Htated in the opinion. James H. Anderson, for appellants. D. N. SpraRue and H. C. Steniple, for ap- pellees. UKKP, J. In February, 1M79. the Ft. Madison ("onstniction Company was in- corpornted, and soon aftersvnrds begnn the work of building a railroad, that be- in>! the oliject for which it was organized. The amount of its paid-up capital was J31,.')00, which was evidenced by ;il'.^ shares of stock of .Ifl.oao each, of which s'. ^vt j. (;. Atlee held five shares; .1. C. Atloe, live sliares; defendant (jeorse Schlnpp, 10 shares; N.(,'. Roberts, two shares; (,'harlo8 Uoerr, one share; A. L. CartwriKht, one share; Peters & Bernhard, three shares, and C. H. Peters four and one-half shiircs. After building; about 11 miles of roail. the corporation sold o\it to the Ft. Madison & N. W. Hy. Co., and ceased to do busi- ness. The consideration for the sale was $-ll),O()0 of tirst mortKaRe bonds of the pur- chasing company. At the time of the sale the corporation was indebted (in addition to its indebtedness to the stockholders for their payments to its capital stock I in the sum of fjl'. 542.7s. The greater part of tliis indebtedness was to the stockhold- ers for moneys advanced by them in addi- tion to their stock snbscriptiorjs, (or the benefit o( thecorporat ion. anil for liabilities assumed by some of them for it. I'.ut ?'I4.- .■)00 of the mort;;as:e bonds of the purchas- ing company was ever delivered, and that amount was delivered in various amounts to the individual stockholders. A suit in e(|nity was instituted for the windinK up of the business of the corporation, and for the distribution of tlie assets, after the payment of its debts, aiuouK the stock- holders. The judgment rendered in the action determines the facts enumerated above. It also determines tliat the morty:ace bonds in tlie hands of the stockliolder.s, together with the interest received by them thereon, were a.ssets of the corjiora- tion ; nn<l the receiver a()pointed by the court was ordered to collect the same, and ap|)ly the proceeds in payment of the debts of the company and the costs of the proceediUK. It also determines that de- fendant George Scldapp held Sll),0<.0 of the mortRace bonds, and that he had received as interest thereon the sum of .'?L'.-l(i.">. The hulebtedness of the corporation to indi- viduals was also determined, and It was determined that it was indebted lo Xchlnpp in the sum of ifL'.TlU.T.'i.and to him and A. L. Cartwriuht in the sum of ;?:(.- 23".). 4S; the latter sum beinj; thenmount of judgment obtaineci nsrainst Schlapp and Cnrtwricht for an indebtedness incurred by them for the benelit of the corporation. The judsment also contained the follow- ing provision: "It is further ordered that, if any of the parties desire, they may ap- ply the amount due thereon, respectively, upon their pro rata proportion of the charges as aforesaid against the property, and pay the balance, if any, in cash, and thereupon they may retain their pro rata amount of bonds, or be entitled to riHeive their pro rata amount of bonds from the receiver; anil, if the amount due them should exceed their pro rata amount of tlieir charges against the property, they may apply so much as Is necesHnry, aiid retain or receive their bonds, and be enti- tled to receive the balance from the IudJh in tlie hands of the receiver." That judgment was entered on the twenty-seventh of .March. KM. Di-fend- ant Schlapp did not deliver the mortgage bonds to the re<'elver, nor did he pay over to him thenmount of the money he had received as interest thereon ; and, on tlie twenly-si.xth of Febninry folhjwinii;, an e.xecution was issued on the judgment, directing the sheriff to collect from him the l)onds, and the amount of money re- ceived by him, but the exifution was re- turned unsatisHed. On the eleventh of .April, ISN.'), ti.e plaintiffs, who are stock- holders in the corporation, itistituted this proc-eeiling fur the pur[>ose of enfoicing the juilgment against Schlapp. They al- leged in tiieir petition that he had con- verteil the bonds and money in his hands, and that he was indebted to the corpora- tion in llie amount of their value, and tlu-y prayed that a moni'y judgment be entered against him for that amount, and the same be applied in satisfaction of the corporate debts. They also made .\Iarle .Schlafip. the wife t>f (icorge Schbip[i. a defendant in the proceeding, and sought to subject certain property, which they alleged she hcdds in fraixl of the rights of the creditors of her hUNb'ind. to the satis- faction of whatever judgment ndght be rendered against him. The circuit court, on the heariag, dismissed the petition an against .Marie Schlapp. It also entered an order or jinlgmeiu wliich deti-rmines that (Jeorge Schlapp holds the SHl.nu) iif mort- gage bonds as assets of the corporation, and required him to pay the same over to the receiver within L'O days from the ren- dition of tlie judgment, or pay to him the sum of :f4,ss().,',n,— the amount which It Is found woulil be due from him in case he retains the lnuids. It Is from this order that the present appeal Is presented. Uy an amendeil abstr.-ict theilefendant shows that since the rendition of the judgment he has ilellvered the bonds to the ri-ceiver. which delivery was made within the JO days allowed therefor by the jmlginent. anil that the circuit court has onlereil the receiver to sell the same, and apply the Iiroeeeds to the payment of the debts. This order, however, was made at a term Riibsennent to that at which the judgment was entered. 1. It is insisted by the Hpiiellnnls that. upon the facts, they were entitled to nn absolute money judgment for the amount which defendant ought to pn.v as his pro rata share of the debts, and we think this position must lie sustained. L'uder the 628 PETERS V. FT. MADISON CONST. CO. original judgment, defendant was re- quiri'd to pay over the bonds and money in liis hands to the receiver; but, under tlie provision of the jutlgraent set out above, he had the election to retain tliem, and pay to the receiver the balance re- niainins after deducting the indebtedness which the corporation was ovN'iug him. On the facts, he must be held to liave made this election. He retained the prop- erty when the supplemental proceeding was instituted. He refused to surrender it to the officer who souRlit to recover it on the e.xecution issued on the judgment, and he did not even offer to surrender it pending the supplemental proceedings. While lie did not in express words express an election to retain it, all his conduct in- dicated that he had determined to avail himself of the privilege accorded to him by the judgment to retain it; and, having made that election, he cannot now be permitted, after tlie circumstances have changed, and the valueof theproperty may have depreciated, to make a different elec- tion, and the circuit court erred in award- ing him a second election. We do not con- sider the matters shown by defendant's amended abstract. The records embt)died in tliat abstract relate to proceedings sub- sequent to theorderor judgment appealed from. Tliey do not relate to that judg- ment, and cannot be considered in deter- mining the questions of its correctness. The appeal does not bring tliera here for • review. 2. Having reached the conclusion that plaintiffs are entitled to an absolute money judgment against George Schlapp, we will inquire as to the correctness of tlie order (iisniissing the petition as against Marie Schlapp. The property wliich she claims to own is .fL'2,500 of United States bonds. These lionds for- merly lielonged to George Schlapp. It is claimed that lie, in 1879, made an absolute gift of them to his wife. Tlie proof is that he, being the owner of the bonds, and being about to go on a journey to a for- eign country, called liis wife's attention to them, and said to her: " I give these bonds to you, and I show you how to cut the coupons so you may know how to do it yourself, and use the money for your liv- ing. " He did not, however, deliver them to her, but took them to a bank, in the vault of which he had a drawer in which he kept his private papers. He placed them in the drawer, wliicli he locked, and the key to which he retained. During his aiisence his father had access to tlie drawer, and as the interest on the bonds matured, he detached the coupons, and delivered them to the bank for collec- tion, and as the money was collected it was paid to Mrs. Schlapp. When George returned from his journey, he assumed cuntrol of the drawer, and as the interest fell due on the bonds he would detach the coupons, and deliver them to the bank for collection, and when the money was re- ceived by the bank it was passi^d to his credit. The business was transacted in this manner for about two years; after which the bank, by George's direction, opened an account in the name of Mrs. Schlapp, in which it credited the interest as it was collected. He, however, continued to draw out money as he needed it, on diecks drawn on the bank by himself in liis wife's name. She has never had the bonds in her possession, nor has she ever seen tliem since the.v were first locked up in tlie drawer in tlie bank vault. It is very clear that she is not vested with the title to them. To constitute a valid gift of per- sonal property, there must be an actual delivery of the property, or some act must be done which in law is the equivalent of such delivery. Willey v. Backus, 52 Iowa, 401, 3 N. W. Uep. 431. Nothing of the kind was done in the present case. The title to the projierty remains in the husband. At his death it would descend to his per- sonal representatives as assets of his es- tate, and during ills life it may be subject- ed by his creditors to the payment of his debts. He claims to be insolvent, and said Ijonds are the only propertj' within tlie reach of bis creditors. The judgment will be reversed, and judg- ment in harmony with tliis opinion will be entered in this court, or the cause will be remanded for the entry of such judg- ment in the court lielovv. as the parties may elect. Reversed. PETERS BOX & LUMBER CO. v. LESH. C31 FETKIIS BOX &, LOMBEU CO. v. LESH ot al. (20 N. E. Rep. 291, 119 Ind. 98.) Supreme Court of Indiana. Feb. 21, 1889. Appeal from circuit court, Huntington county; Henry B. Snylcs, Judue. Action of rei)lovin jiKninHt tlie Peters Box anil Liin]t)er Company tiy VV. H. and J. A. LchIi, to recover certain liiinl)er. .ludK'nent for iilaintiffH, and defendant appeals. A. Zollars, H.Colcrlck, and W.S. Oppen- heini. for appellant. K. W. KawleH and T. E. Ellison, for appellees. COFFEY, J. Tills action was iirouRht by the appellees at;jiin.st the ai)pellant in the Allen circuit court, to recover certain lumber and logs di.'Kcribed in the com- plaint. The cause was put at issue by a general denial, and the venue was changed to the Huntitiuton circuit court. The cause was tried by a jury, who re- turned a verdict for the appellees, assess- iuK tlie value of the property at $'2~0. Motion for a new trial overruled and ex- cepted to, and juilKUient on the verdict. The errors assiKued in this court are: (1) That theHuntin«ton circuit court had nojuri.sdiction over the cause; (2) that the court erred in overruliuK the motion for a new trial. No point is made in the brief of counsel for the appellant on the first aHHinnnient of error, and, therefore, the same is waived. The evidence on the part of the appellees tends to prove that the ap- pellant is a corporation carryini; on a larKC saw-mill and lumber business at the city of Fort Wayne, Ind. ; that the appel- lees, in November, tss;(,had been and were opera tint; a saw-mill at Sidney, Kosciusko couuty, ind.; that a man calling; himself Milliard came to .Sidney, and represented to the appellees that be was the iiKent of the appellant, to buy lumber and Ions for it. The appellant had, before that, to the knowledRc of the api)ellee8, bought such property in that vicinity, and they sup- posed ho was such afj;eut. One of the ap- pellees went with the said Al'lliard to several places, where he bought Iii^h for the appellant, and they liiially sold him, as the agent of appellant, the property in question, for f2(i;!. By their agieement, it was to be measured, put on the cais, the measurement to be sent to the ajipel- laut and it to immediately pay the bill by a draft oil New York. The property was measurvd, sold, and shipped on Monday, and Milliard left Fort Wayne on Tuesday. The draft not comiiiK, one of the appel- lees wer.t to Fort Wayne on Tuesday, where he met Mr. I'apa, the n|)pellant's president, and asked liim to p'ly for said property. Papa denied the authority of Milliard to act for the appellant, and, after ilemaiid, refused to deliver the property, and also refused to say much ab-uit the contract of appellant with Milliard, ov to Hay how much he had been paid for the property. The appellant did in fact pay Milliard" .f rj."> for the property in contro- versy. Iiiiiiiediately after the delivery of the property to it by Milliard, the appel- lant coiumenced to saw up the logs and mix the lumber with Its own. up to tlilH point there seems t(j be no diHHKreement about the facts. It is claimed tiy the ap- pellant that bills of lading wpre mndp out for the property in the name of .Milliard, with the Consent of one of the appelleeii, but tills fact Is disputed by the appelleeii, will) claim that there was nothng made out at the freight olllce from which the property was Hhlp[ied except a receipt for the property. The court gave to the jury the following Instruction: ".Should you find from the evidence that the title and right to pos- session of the property In controvt-rsy la in the plaintiffs, and if yon further Hud that the defendant. In the purchase of Bald property, was in nofnult,then you sh<iuld (ind the value of said projierty at what you believe was Its fair market value in the condition and place it was situated when the plaintiffs demanded the same of the defendant. If such demand were made, exclusive of any expenses or labor the de- fendant may have invested in manufactur- ing the same into lumlier up to the time said demand was made, lint if the evi- dence shows defendant knew or ought to have known that Milliard was not the real owner, then you siiould not take Into consideration any expense or labor the defendant put upon said logs and lumber, ] but give the plaintiffs a verdict for the full value at the time and place it was de- manded, and in its condition then. " 'io I I he giving of this instruction the appel- I lant excepted. 1 The court had previously instructed the jury, substantially, that if .Milliard had : represented himself to the appellees as the agent of the n|)|)ellaiit. and ihey, rely- ing on such representation, solil him the |)roperty in controversy as such agent, without any intention of vesting the title in him, but Intending to vest it In the ap- pellant, when he was in fart not the agent of the appellant, such sale was void and vested no title in Milliard, and he could not by a suliseiiuent sale vest title to the property in the atipellant. This case comes clearly within the law as enunciated In the case of Alexander v. Swnckhanier, lO.^) Ind. M, ■« N. E. Kep. -133. and ,"> N. E. Rep. '.los. It Is there distinctly decided that in a case like this no title liasses to the fraudulent fiurcliaser, and that such purchaser cannot by any subse- (liient sale transfer title to another, for the reason that he has none to transfer. It must be true, then, that at the time (ho apiiellecH demanded possession of the property of the appellant, at l'"ort Wayne, the title was In them, as well as the right to the posses.sion. It was tlieiluty of the appellant to surrender to them such pos- session, and U|)on its failure or refusal to do so, what were they eiilided tori>'over? It is earnestly conteiiiled by the learned counsel for the appellant that, as the freight from Sidney to Fort Wayiii- was paid by the appellant, the meaKiire of the I appellee's damages was the value of the propertv at Sidne\ . lint It must be re- membered that the appillant did not pur- chase the property at .Shlney. It was j purchased at Fort Wayne; and the ap 632 PETERS BOX & LUMBER CO. o. LESH. pellant must be presumed to have taken into consideration the amount he would be compelled to pay to obtain possession of the property, in Bxing its value at the time of thepurchase. Iteertaiuly will not be contended that the appellant could refuse to deliver the i)ossession, upon de- mand, because it had paid the freight. Korean it be successfully claimed that Milliard, the fraudulent purchaser, euuld claim to have the freight refunded to him if he had been cauf^ht at Fort Wayne, be- fore he had disposed of the property. Sec- ti<jn 572, Rev. St. ISSl, provides that in ac- tions to recover the possession of personal property judgment for the plaintiff may be for the delivery of the property, or the value thereof in case a delivery cannot lie had, and for dama};os for the detention thereof. It is not denied that at the time of the demand the appellant had the prop- erty in controversy, and tliat it could have delivered it to the aiipellees. By re- fusing to do so, we think it became liable to the appellees for the value of siicli prop- erty at the time and |)lace of such demand and refusal, less any additional value it may have had by reason of labor be- stowed upon it, in )j;ood faith, before such demand was made. Mitchell v. Burch, 3G Ind. 529; Wells, Rep. !?§ 540,503; Cushint; V. Longfellow, 2fi Me. liOli. It is clainipd that in actions for trover the rule is differ- ent, but, as this is an action of replevin, we need not, and in fact do not, decide that question. It is earnestly insisted by the learned counsel for the appellant that as the ap- pellees permitted Milliard to take bills of lading in his name, and thus enabled him to sell the property to an innocent pur- chaser for full value, they are now es- topped from claiming the property in con- troversy in the hands of the appellant. Instructions were given by the court. and others asked by the appellant, and refused, which fairly raise this question. The court instructed the jury that if Milliard had the hills of lading made out in his own name as the consignor, to en- able him to fraudulently sell the same to the defendant, and the plaintiffs knew that the prcjperty was so shipped, and that Milliard's purpose in so shipping said property was that he might fruudulentlv sell the same to the defendant, then tlieir verdict should be for the defendant. In tlie case of Alexander v. Swackhamer, supra, this court, by Mitchell, J., says: "The appellee was not estopped on the ground of negligence in delivering the cat- tle under the circumstances disclosed. To constitute an estoppel the party sought to be estopped must have designedly done some act or made some admission incon- sistent with the claim or defense which he proposes t(j set up, and another must have acted on such admission with his knowledge and consent." If the appellees acted under the belief that Milliard was the agent of the appellant, and that they were selling the jjroperty to the appel- lant, basing such belief on the representa- tions made to them by Milliard, we do not think that they would lie estopped from claiming their property by reason of permitting the bills of lading to be made out in the name of the supposed agent. The instructions asked by the appellant ignore this phase of tlie case, and we think the court properly refused to give them. We are of the opinion that the instruction given by the court properly stated the law applicable to the case as made by the evidence. We flud no error in the record for which the judgment should be reversed. Judg- ment affirmed. Petition for rehearing overruled. PHILADELl'lIIA vV K. li. CO. p. WIltKMAX. 035 PHILADELPHIA & R. R. CO. v. WIREMAN. (SS Pa. St. 264.) Supreme Court of Pennsylvania. Jan. 20, 1879. Action by tlie Plilliidclpliia & lieadiii)^ Kiiilroad ("onipiiny u>iiiiii«t Jacoh Wire- man t<i recover the value of property niiH- (lellvered hy Hnid company to deleiidant. Verdict for defendant, and plaintiff ap- pealH. Atlirnied. SpauldiiiK & Son, of Kluurn, Hold certain DierciiandiHe to one l-isler. piiyment to be made in defendant's paper, Indorned l-y FiHler. The vendors delivered the k<'<>iI« to the Leliijih Valley Hailroad C(>nipany to be forwarded to defendant at plaintiff'H station in ['hilndelphin, at the Haine time Bending Finler their bill, the receipt of the railroad company, and a draft for defend- ant's acceptance an<l Fii^ler's indorsement. The sellers then hearing that Fisler and Wireman were not responsible, and fail- ing to get additional security from them, left orders with plaintiff's railroad not to deliver the goods to defendant. The goods having been transshipped to plain- tiff's railroad, th" latter delivered them to defendant on bis [)reseutatiou of the mem- orandum of shipment and the Lehigh Val- ley Itailroad ("ompany's receipt, which Spaulding & Son had sent to Fisler, and the latter had turned over to defendant. Spaulding & Son returned the paper of Wireman. and broucht suit in Eliniru against plaintiff railroad company for the value of the goods, and obtained judg- ment therein. Plaintiff paid this judg- ment, and then brouirht this suit Before SHARS\V()()1), C. J., and MEK- Cri!, (JOKDOX. PA.XSON, WOODWAHl), THU.NKEY, and STICKUETT, JJ. Thomas Hart, Jr., for plaintiff in error. Hufus I']. Shnpley,for defendant in error. STEHKETT. J. The pinintiff'si laini. as appears by the bill of particulars, was based on the unauthorized delivery of the goods consigned to the defendant Wire- man. Hence, the main question was, whether the latter had a right to receive them at the time they were delivered to him by the plaintiff's agent. To show that he hail not, the plaintiff mainly relied on the qualilication and direction con- tained in its way-bill, to "deliver only on the order of II. ('. Spaulding & Son, of El- mira." Kesting upon this alone, thedeliv- ery to Wireman. without the order of Spniddiiig A: .Son, would have been unnu- tliorizeil ; but the testimony ndiluced by the defendant tended strongly to prove that Fisler hacl purchasetl the goods from Spaulding & Son, to be delivered at Eliiii- ra, consigned to Wireman, and to be paiil for in the negotiable pai>er of the con- signee, endorsed by Fisler; that, piirsuant to agreement, the goods were delivered at Elmirn to the Lehigh Valley Kailroad Company, whose receil)t, for theirdelivi'ry to Wireman at Philadeljiliia, without any (lualilication or restriction, was taken by Spaulding & Son, and immediutely sent by them to Fisler In a letter, advising lilm of t^e shipment and enclosing ciraft for the amount to be accepted by Wireman, endorsed by Fisler ami remitted to the consignors: anil that on the arrival oftho goods in Philadelphia. Wireman. who had agreed to purchase them from I'lfler, ((re- sented the receipt of the Lehigh Valley liailroad Company, paid the freight anil received the goods. If these facts were found by the jury, as they doubtless were, from the testimony Hubmitled to tln-m, they constituted a complf te answer to the alleged want of authority in Wireman to detnand an<l receive theconsignment. The learned judge was therefore clearly right in receiving the testimony and submitting it, n.s he did, to the jury. The testimony fairly justified the Infer- ence thac after S[>aulding & Son had tak- en the receipt of the Lehigh Valley Itail- road Company, and mailed it to Fisler, they doiilitAl the solvency of Wireman and Fisler, and induced the company to restrict the delivery to the consignee, by adding to the bill of lading the words above quoteil, and when the goods were transferred to the plaintiff company, at Allentown .lunction. the <>..i::e direction ivas inserted in its way-ldll. IJut neither Fisler nor Wireman was a party to this change In the terms of shipnicnt, and were not bound by it. If the goods were pur- chased and delivered at Elmira. as con- tended by the defendant, the title had passed from Spaulding Ji .Son and vested in the purchaser. .After an uni|unlilied de- livery to the carrier at Elmira they were no longer at the risk or under the control of Spauliling & Son, and they had no right to say that, on reaching theirdestination. they should not be clelivered to the con- signee without their order. If the i>lain- tift company had refused to deliver the goods on presentation of the receipt and teiiiler of the freight by the consignee, he could have sustained replevin by proving the facts which the jury must ha\e found under the instructions ol the court in this case. There may be apparent hardship In the failure of tiie plaintiff to reco\er, after having been sued by the consignors, In the state of .New York, for misdelivery of the goods, anil compelled t<. pay the volue thereof; but with this we have nothing to do. It may lie that the right of the consignee to receive the goods, was not urged or sustained in that case as it was in this. Ill the present case, as we have seen, the action was based e.\clusively on the ground that the consignee had no right to reieive the goods without the or- der of the consignors, a position which the plaintiff failed to maintain. Perhaps the result might have been different if the ac- tion hud been in the name of the consign- ors to the use of the railroad company. .\8 it was, however, the case hingeil on the question of Wireman's authority to receive the goods. The facts were for the jurv, and the testimony, sulunltted to them with appropriate instructions, fully jusli'ied the venlict. Judgment allirmed. I'HILI.ll'S V. KEITZ. C37 PHILLIPS V. REITZ. (16 Kan. 396.) Supreme Court of Kansas. January Term, 1S70. Error from Jolinson district court. He[)l<-'vin, broiiKht by Perry Pliillipa, for the iiiidividi'd oiie-linlf intt-reHt in nine lieiKi of liorweH, one jdiaeton, tw<j huKKii'H, luirneHKeH, etc. PhillipH claimed to lie the owner, nnd entitled to the poHHCHtiion of the property, and ullcsed tlint it ha<l been wronKfiilly taken and was wrongfully re- tained l)y Vick Heitz. lieiti! answered, that the property in question was tlie i)roperty of one 1. N. Phillips, and not the pro|)erty of plaintiff; that defendant was sheriff of .lohnson county, and as such sheriff be lind received anil held a writ of execution to him duly issued and delivered, upon a juddmenl duly recovered in the .Jolinson county district court, liy li. A. I'eineinan & Co. as plaintiffs ajralnst said I. N. I'liil- lips as defendant, for $IGO.:i."i and cosls, April l.'ith ls74; that liy virtue of said writ of execution he ( Ueitz) as sheriff had levied upon Siiid pioperty as the prr>perty of said 1. .N'. I'hillips; that he found said I'roperty in the possession and under the control of said 1. ^. Phillips, and that he (the sheriff) had taken the same, and now held and retained the pc.ssession thereof as such sheriff, and by virtue of said writ of execution. Trial at the .\UKUst term 1S74. The evidence showed that I.N.Phil- lips and one Thomas Muir had l)cen part- ners, carry ini? on the livery business in the city of Olallio for a loiifj time; tliat the horses, cjirriaKCs, etc., levied on by Sheriff Reitz had been owned by said Philiip-f & Muir, and used in tlieirsaid business; tliat said 1. N. I'hillips, in March l.s74, was largely indebted, and suits were pending against him; that his iiomesteail, and all his real property except tlie undivided half of the livcry-stnlile lot was moi'tgaued ; that Perry IMiilliiis, the plaintiff, was his brother; that Perry icsideil on a farm tea ndles distant from Olatlii': tliat ontlie4tli of April hs74 said I. N. Phillips and one .\lc- Keever went to the residenc e of the plain- tiff, and there said I. N. I'hillips sold his interest in the livery Ktal)le and stock to the rdaintiff for f l,L'oo, for whicli sum tlie [ilRintlff executed his promissory note, which was immediately Indorsed to said McKeever as collateral security for the payment of the purcliase-m<mey of a farm sold by said McKeever to said I. N. I'liil- lips, upon which farm .McKeever held a mortgage niveii to secure said iiurchase- money ; that the livery stock and prop- erty was all at Olathe at the time, and the plaintiff did not go to see or take pos- se-ssion of it; that I. N. Phillips and Muir continued the livery business as partners, but one witness for plaintiff had testitied that plaintiff had employed him (the wit- ness) to take charge of the stock and at- tend tt> the iilaintiffs Interests in the liv- ery business. It alsoappenred tliat Feine- man & Co. Iiail recovereil a judgment against 1. N. Phillips, April ],'.th 1><74, and an execution thereon had been issued, as alleged in Keitz's answer; that Iteitz had levied said execution upon the property in controversy ou the lilUh of .\pril; that thereuiion I. .N'. P. dispatched a menBen^r for the plaintiff who immediately came to Olathe, and then (after said levy) said 1. N. P. went with the plaintiff to the livery stable, and undertook to make formal de- livery of the property to the plaintiff, but they were notified by Muir that the shcrlfr lia<l levied upon the property and had left it in bis (.Muir's) care, and that no de- livery or change of possession could be made; that after said levy .\lulr and I. N. Pliillilis had a settlement bet ween them- selves. Which Included partnership ac- counts in the livery business down to the day of the settlement. It olso a|ippared that I'erry Phillips had olitained posses- sion of the property, at thecommeni-ement of the action, and that at the time of the trial a part of the stock, and two of the carriages were in the iiossession of I. N. Phillips. Thematerial part of theinstruc- tions is copied Into the opinion. Infra. The jury found for the defen<lant, and as- sessed the value of the property at f7.'{2..")0. New trial refused, oud judgment on the verdict in favor of defendant Iteitz for a return of the property, etc. Phillips brings the case here on error. John T. BurrlH and John T. Little, for plaintiff. n HEWER, J. This was an action of tv- plevin, and the question was as to the va- lidity of a sale claimed to have been made by one I. .V. Pliillips to plaintiff. Defend- ant was sheriff of Johnson county, and uniler an execution against I. N. Phillips levied on the property. The property consisted of livery stock in the city of Olathe. Plaintiff was a farmer living some miles off in tlie country. The sale was maile at the farm of plaintiff. He was not from the lime of the sale to the time of tlie levy in Olathe, and I. .\. Phil- lips remained in theactual charge, though, as was claimed, as the agent of plaintilT. The errors alleged are in tlie giving of in- structions. The two propositions to which specific objections are mn<le are — 1st, "The unex|ilalued possession liy the vendor, after the sale, is conclusive evi- dence of fraud. " 2d, "The actual participation by the vendee In the vendor's fraudulent Intent, is not necessary to avoid the sale. It is enough if he knew of sucli intent, or of facts sutMcient to excite the susidcions of a iirudent man. and jiut him on bKiuiry." Tliat good faith is as essential to sup- port a sale like the one liefore us, as n suttieient consideration, will not be tpies- tioiied. Twyne's Case, ;l Coke, SO, 1 Smitli's Leaiiing Cases, 41;; Ha Id win v. I'eet, '2'2 Texas, 70S: Chandler v. Van Itoeder, L'4 How. (P. S.) •.•■J4; Pulliam v. Newtierry's Adin'r, 41 Ala. llVS. And that a continuance of posscsson is evidence of a want of good faith, as well as a want of BUlficlent consideration. Is settled by the statute, (ien. Stat., p. 5iM. § :<■ That (lossession iiiav be retained, and still then» be n valid sale, is also clear, anil so In un- mistakalde language the court instrucle<l the jury. And this instruction, as to the effect of an unexplained po-session, must be considered in reference to and as quail- 638 PIIILLU'S V. IIEITZ. fied by the other instructions. There has been a vaKt amount of controversy as to the effect ttf a retained possession lipun an alleged sale, when challenaeil by a cred- itor, or sul)8equent purcliaser. It is all based upon the idea that ijossession fol- lows title, and that where there is a trans- fer of title there should be a change of pos- session. In some courts it has been held, that a failure to change possession is so inconsistent with a transfer of title that it creates a presumption of law against thf alleged sale. Thisijresnaiption of law, noevidence of thegood faithof tiieparties, and of the payment of full consiileration, can overthrow. In others, such failure ro change possession is merely evidence against a sale, which may be ex[>lained. The presumption is one of fact, and like all presuinpti(jns of fact open to explana- tion by other testimony. It is like the presumption of guilt which flows from the possession of recently-stolen pro|)erty. It casts upon the possessor the duty of ex- planation. (See for a full discussion of this question and the authorities there- on, Twyne's Case, and notes thereon, in 1 Smith's Leading Cases, Hare & Wallace's notes, p. 47, and following.) Our stat- ute has accepted the latter construction, and provides in the section cited, that "Every sale * * * unaccompanied by an actual and continued change of pos- session, shall be deemed to be void, * * * until it is shown that such sale was made in gooil faith, and upon suffi- cient consideration." In other words, proof of actual good faith, and payment of sufficient consideration, does away with the presumption which fiows fron; a re- tained possession— shows that such pos- session does not imply a retained title, or secret trust — in short, explains the pos- session. Until It is so explained, it is evi- dence against the sale; and unless so ex- plained, it is conclusive evidence. To that extent, and only to that extent, do we un- derstand the instructions of the court, taken as a whole, to have gone; and in that is no error. See upon this, Ayres v. Moore, 2 Stewart (Ala.) 33(5; Peck v. Land, 2 Kelly (Georgia) 1 ; I'leming v. Townsend, () (Jeorgiu, 104; Beers v. Daw- son, 8 Georgia, ^57; Robinson's Ex'rs v. Robards, 15 Mo. 4.59. As to the second o'ojection, the court distinctly charges that the vendee must be a party tcj the fraud to avoid the sale, and then, in another instruction, appar- ently in explanation of what was neces- sary to make him a party to tlie fraud, charged that it was enough if he knew of the vendor's fraudulent intent, or of facts snfticient to put him upon inquiry. Is this error'? We think not. Knowledge of facts sufficient to excite the suspicions of a prudent man, and put him upon in- quiry, is, as a general proposition, equiv- alent to knowledge of the ul'imate fact. Garahy v. Bay ley, 25 Texas, (Suppt.) 294; Pitney v. Leonard, i Paige ("h. 461. And if the vendee knew of tlie fraudulent intent of the vendor, and bought with that knowledge, he can scarcelj- claim to be a bona fide purchaser, for he was knowing- ly helping the vendor to accomplish the fraud and do the wrong. There appearing no error in these rul- ings, the judgment must be affirmed. All the justices concurring. PITKIN c. XOVKS. 041 PITKIN et al. v. NOTES. (4H N. H. 294.) Supreme Judlciul Court of New Hampshire. Coos. Jan., ISG'J. AsHiimpMit by Saimiel P. Pitkin niidoth- iTK aKiiiiiHt .\na -No.vcr* lor ii(iii|iei'fi>riiiaiic(> of a CDiitract to ili'liviM- potatoes. Cam' I'everKC'd. Del'eixlaiit, in ISlili. inade a vcr- l>al aKi'efilitMit with plaintiffs' testator to raise tliree acros of potatoes, atiil deliver tlieni diiriiiK tlie year at testator's plaee of Inisiness, f<jr twenty eents a hnsliel; and. accordintc tosoniuof tiK'evidenee, tins aKi'eenient |)rovided tliat lie sliould do the same ill Isoi. Uefendaiit raised and deliv ered the potatoes in lsi;:j, Imt plaintiffs raised some ([uestion as to the price to he |)aid, claiiiiliifi that the previous a^ree- inciit was not hindiii^ because not in writ- ing. They (inally aitreed in .laniiary, 1S(;4, to pay twenty cents for the ls(j;i potatoes if defendant would raise and deliver the same ijnantity in ls(j4. This nctiun was brouKht for failure to deliver the potatoes for IS(;4. Ladd, for plain tiff.'*. Uay, fordefendant. liELLOW.S, .1. If the bargain in the sprint: of ls(i:' was for the potatoes of that year, and also for the year lsri4. it would be within the statute of frauds, as to the potatoes of the last year at least, as an ay:reenient not tt) be iieriorined in one year. Kniery v. .Smith. M't S. 11, l.")l. The (luestioii then is, whether a valid af;ree. meat for the crop of Istil was made in .lannary of that year; and we propose to inquire in the first place whether such a contract as is stated in the testimony of the plaintiff is to be rf'irarded as a con- tract for work, labor and materials, or a contract of sale of the crop of potatoes. If the foriiK r. it is not witiiin the statute of frauds, but if t he latter it is. It is nianilist fi'oin the natureof tlipcnse that it must be very ditlicult to draw a line of distinction between these two classes lit contracts. In some instances the distinclions must be very nice, and it is to be expected that wesli.juld find the authorities not alloKelher harmonious. It is now settled, however, that a con- tract for the sale of noods is not without the statute because it is executory, and it is well settled that a contract for vvork anil l.'iboraiid materials found is not with- in the slatnte. lu the early Enslish cases it was lield that a contract for the sale of articles to be afterwards manufactured and delivered was not within the statute; as in Towers V. Osborne. 1 Str. Iteii. ."idli. where defend- ant bespoke a chariot; and so of a coii. tract to deliver wheat m.-t then threshed, as ill ("laylon v. .\ndrews, 4 liiirr. '.'1(11. In both of these cases the dtcision went upon the )i>'<:uiid that the contract was execulory. I'.ut these cases weresoon aft- er (lualilied by decisions holding that con- tracts of sale thi>iii;li executor.v were with- in the statute. Koadeau v. Wvatt. •-' II. BIk. o:!, and Cooper v. Klston, 7 T. U. 14; and yet the results reached in Towers v. Osborne and Clayton v. Andrews have, LAW SALha — 41 been in some caHen reooKnlzed an correct, although upon a different );roiiiiil: name- ly, thai the articles were not exl».tln« at the time of the barKaiu, and so incapable of delivery and acceptance; as In (iruves V. IJuck, y M. \ S. 17s; 2 sturkie Evl. 008, and cases citid in note C. Hut in tiarbiitt v. Watson, 5 B. & AM. <il:i. it wa-i held that a contract to sell lUO sacks of flour, at a price fixed, to be nady in three weeks, was within the statute, thouKii the flour was not then ground. Of the sail, n character is Smith v. .Sur- man. ;» li. i C. .")iil. where it was decided that a bargain for certain limber tree* Krowinu o;) the owner's land al a fixed price p-r foot, was a contract for t be sale of Koods, and within thestiitute, iillliou;;li to be ;-ut afterwards li.\ the seller; liolil- iiiR that wlien cutting them he was doini; work fur himself and not for the buyer. Littledale, .1., holds that where the cori- trai tiiiir parties cont.-mplate a sale of Kooils. althoutfh at the time of making Ihe coiilract the subject mat ter does not exist as t^ooils, but is to be converted In- to that state by the eeller's lu'stowInK work and labor on his own raw materi- als, that is a case witliin the statute; and he says further th.it it is sullicient. II at the completion of the contract the siibjirt matter be Koods, wares and laerchnndiHe: and Parke. J., says the true <|uestioii In such cases is whether the contract be sub- stantially a con tract for tlie sale of ^ixxIh, or for work aud labor and materlalH found. These two last cases modify materially the doctrine of Groves v. I'.uck, and the earlier cases of Towers v. OsOorne and (,'layton v. Andrews, and hold that It is not essential that tlie K""'Is be capable of delivery at the niakiiii; of the contract, to brin;r it within Ihe statute. So the fart that the coods are to be traiisporteil to another place and there delivered iloes not take the case out of the statute. Kent V. lluskinson. 3 I!. & P. 2X!, and As- tey V. Kmery, 4 M. Ac S. 'Ji;!'. The weight of American authority Ik in accordance with the doctrine of (inr- buft V. Watson. .'> P.& Aid. id:!, and Smith V. Snnnan. '.I I!. & C. .■)(il, that the niei-e fact that the (joods are not. at the mak- ing of the contract, in the condition in which they are to be when delivered, iloes not take n case out of the statute. If. however, a person contract to m«n- ufactiire and deliver al a future time cer- tain >;i)ods. at prices then lixed, or at rea- sonable prices, the essence of the njiree. meat t)einK that he will bestow his own labor and skill u|ion the maiiiifucture, it is held not lo be within Ihe statute. If on the other hand the barKala be to de liver jroods of a certain description at n future time, and they are not exi»tla»r at the time of the contiact. but the seller does not sti,'inlate to maiiiifact ure them himself or procure a pnrlicubir person to do so, the contract is within the statute. The distinction Is that in the one ca»p tlie p.-irty sti|iulates that be will himselt manufacture the article and the liuyer h/iK the ri>;lit to rci|iiire him to dti It. and can- not be ciiiiipelled to take one as Kood or even better if made by aaolher, while to r>\2 PITKIN 0. NOYES. the other case the Heller only afrrees to Mfll and deliver the article, and Ih nnder no obligation to make it hiniseif, but may jniri'liase it of another. This in tlie doctrine laid down by .Shep- ley, J., in llinlit v. Hipley et al., 1!) Maine livp. 187, wliere the distinction between tlie cases is well ex|)laiued. and the doc- trine has been since followed by the Maine courts, Abbott v. (Jilchrist et al., :iS Maine 2(i(); Fickett v. Swift. -11 Maine (iS; and Ed- wards V. Grand Trunk Hallway Co.. 4S Maine ail). Tliis doctrine of Higlit v. Kijjiey is recosniited as sound by Prof. Parsons in his work on Contracts, '2il vol. ;i;W, where in a note the authorities are col- lected. This distinction is also recosnized in Massachusetts. In Gardner et al. v. .loy, a Met. ITi), Shaw, ('. .!., lays it down thus: "If it is a contract to sell and deliver Koods, wlietlier they are then completed or not, it is witliin tlie statute. But if it is a contract to make and deliver an ar- ticle or (juautit.v of Koods it is not within the statute." Here the contract wa.s for one hundred boxes of candles b.v a manu- facturer, and although the candles were not then made it was held that the con- tract was within the statute, there beiiiK no stipulation b.y the manufacturer to make them. In Mixer v. Howarth, 21 Pick. 205. il was held that an agreement by defendant to build a carriaf^e for the plaintiff, or to finis!) one for him from materials partly wrought, was not within the statute; 1) being lield b.y Shaw, C. J., that a contract to sell an article then e.xistins, or which the vendor nsuall.v has for sale in the course of bis business, is within the stat- ute: but it is otherwise if the agreement by a workman be to [lut materials togeth- er and construct an article for theem- plo.yer, whether at an agreed price or not. The saLne general doctrine is recognized in Spencer v. Cone et al., 1 Met. 28;J, hold- ing that an agreement to make certain machines for another at a specified price is not within tlie statute, but an agreement for labor and materials. The distluction is also recognized in Waterman v. Meigs et al., 4 Cush. 4'.)'.), and in Lamb v. Crafts, 12 Met. :^5(i. In New York the distinction is fully rec- ognized between an agreement fortlie sale and deliver.v at a future day of articles then existing, and an agreen^ent to sell and deliver articles not thus manufactured, but to be'made afterwards, holding that the latter are contracts for work and la- bor and materials found, and not within ithe statute; but the N"W York cases do not appear to maik the difference between tlie contract, of a party to manufacture and deliver an article, and his contract to deliver it merely, whether made l)y himself or another. A contract of sale though ex- ecutory is held to be within the statute. Bennett v. Hull, 10 .lolins. :W4 ; Jackson v. Covert, ;') Wenil. 141. The cases that hold that a contract to make an article is not within the statute are Crooksluink v. Burrell, IS Johns. .5s, which was an agreement to make the w^oodwork of a wagon; Sewall v. Fitch, S Cow.2l."i, which was a contract for nails of a particular manufacturH, but not then made; Robertson v. Vaughn, 5 Sandford, 1. which was a contract to make and de- liver one thousand molasses shooks at a fixed price, which was decided not to be within the statute, upon the authorit.v of Sewall v. Fitch. Duer, J., who ga ve the opinion, thought the case to be within the niisehiefs of the statute and was disposed to question the earlier eases. So in Bronson v. Wiman, 10 Barb. 406, where it was lield that a contract for flour to be ground from wheat, bargained for, but not then received, is not within the statute. So in Donovan v. Willson, 20 Barb. l:W, there was a contract to deliver at afuture day an article to be nianufactureil b.v de- fendant, and it was held not to be within the statiite. So is Parker v.Schenok, 28 Barb. 38, and Mead v. Case, 33 Barb. 202, where the agreement was to finish a monument, with the inscription, and dtiliverit to tlie other (lart.v. In most of the cases the part.v himself agreed to manufacture the goods, and that would bring them witliin the doc- tiine of Higlit v. Itiple.v, 1!( Maine, 1:17, be- fore cited, although the distinction does n(jt seem to be adverted to. In Itovvtis V. Itoss, 2:i Wend. 270. a con- tract for the sals of seven hundreil bushels of wheat, part of which was yet to be threshed and the rest to be cleaned more thoroughl.v, and all to be delivered in six days at a price fixed, was held to be a contract for the sale of goods, and within the statute; Covven, J., dissenting upon the ground that the (juestion wjis settled b.v the early English and New York cases; but sa.ying that were it an o|jen ques'ion he would not deny that a contract to manufacture and sell woulii more correct- ly be considered a sale within the statute. Tills ease falls within the princi(de of (larbutt V. Watson. .5 B. & Aid. (ii:!, and Smith v. Surinan, '.) B. & C. .'')(;l, before cit- ed, where something was to be done by the seller to perfect the goods before deliv- ery In Connecticut it was held that an agree- ment to deliver to a part.v one hundred sewing machines of a certain description, at a time and place (Ksignated, on condi- tion that a part of them not then com- pleted were finished in season b.v a third person who worked in stller's shop and with his material.-i. was acoiitract of sale, and not for the manufacture of the ma- chines, but even if it i\ ere otherwise as to the part not completed, sixty -four in num- ber, still as the contract was entire and as it was clear that in respect to the thirt.v-six it was ;> sale, the whole it was said must be regarded as within the stat- ute. Atwaler v. Hcmgli, 1".) Conn. .')0S In Phippsv.McKarlane.;! Minn, lol), ((iil. ()1,) there was an agreement to fiir.iish materials, and fit them fo:- a steam mill, wiiicli was portable: and it was held that it was not a contract of sale; but it blends together the price of the thing, and compensation for work and latior and materials, and is not within the statute. In our own courts in Oilman et al. v. Hill, 30 N. H. 31 1, vv'here there was a con- tract made in .\ugust to sell to the plain- tiff all the sheep pelts taken off by the riTKIN c. XOYE.S. 643 Heller who wbh n butolier, between the Hrst of .liilv niicl the (irHt of (k-toher. it waH helil thiit in ri'spect to till, ati well those not then taken off aH those that were ready for delivery, it w;ih a contract of Kale of };ooiIm, and not for work and l)>- iior. and wan within the Ktatntc. 1:: 2 Kent's ('i)innientarloH 004 and 511, note b, the earlier lOiiKli^h doctrine is rec- ognized th'it if the article sold existed at the time in solido, and was capable of delivery, the contract was within the statute; bnt otherwise if it was to lie aft- erwarils inannfaitiired or prepared for ile- livery liy work and labor. And much the same is Story on Con. sec. 787, and note. In Browne on Frauds, this subject is well considered, and the conclu- sion reached is e.xpressed in section ■Mix, that if the contract be essentially a con- tract for the article manufactured or to he manufactured, the statuteapiilies toil: but if it is for the manfncture, for the work, labor and skill, to be bestowed in produriuf; the article, tiie statute does not ajiply. L"iion the whole we are satisfieil that if the contract lie substantially for the Koods. it is within the statute, whether they are then manufactured or not : but It is otherwise if the contract be to manu- facture and deliver the noods, that is, if the labor and skill of the seller is stipulat- ed for and makes pai-t of the contract. It is (piite obvious that the labor and skill of a workman may be bargained for in this way as well as in any other— his compeusation beinji' in the price of the ar- ticle he makes; and the only (|uestioii in the [larticular case is whether the skill and labor of that workman was especial- Ij' contracted for, so that the employer was entitled to that, and could be obliged to take no other. In ainny cases, then, there could be !io diliiculty in determining whether the la lior and skill of the particular pers<in was of the essence of the coritiaet,or whether it was, in the conteiii illation of the par- lies, substantially a sale. If an artist contract to paint the por- trait of another, 'lU.houKh he is to find the canvas and paints, it would readily be cor.ccded that the substance of the con- tract was for the skill and labor of the particular artist. .So if a printer contract to print a book lor an author, tliou;rh he is to furnish the paper an<l ink. as held in (lay V. Cates, 1 11. & N. ?:!. .Soifarar- pentcr a^ree to erect a bnildiiiK for anoth- er upon his land and tind all the materials, it is a contract for work and liibor .ind materials, ("ourtriuhl v. Stewart. I'.l I!arb. 4.V>. .So it would lie if a person carry cloth to a tailor who agrees to make a coat for him, oven if the tailor is to find the tiiiniiiiiiy,s. The contract may be for work and labor simply, for work and labor and materials, or for the sale and delivery of uoods, wares and merchandise. In resp-ct to the two last till- line of seiiaration must often be indistinct aul dillicult to trace; and we are not alile to discover any estab- lished rule or criterion by which to dis- tlnuuish them rcMdily. Tlip rule estalilished in New York, name- ly, that, if the floods contracted for are not then in existence but are still tube manufactured, it is to be considered as a contract for w<irk and labor. orii;inated at an early period in a diHp.jHiti<in of the KiiKlish courts to liaiitthe operation of the statute of frauds, and miiHt olivlouHly exclude from the operation of that statute a larne class of cases that are within Its mischiefs, and at the same timt- are, in substance, contracts of sale. On the other hand the doctrine o( Llt- tledale, .1. in Smith v. Surmun, '.) H. & C. ."itil, is that if the parties contemplate a sale of Koods, although the subject mat- ter at the lime of making thecontruct doed not exist In uoods, lint is to be converted into that state liy the seller best.iwinj; work and lalior on his own raw materi- als, it is a case within the statute — hold- inir that it is siillicient, if at the time of the completion of the contract the subject matter be (joods, warps anil merchandise; and thi-i i;t-iieral doctrine seems to be rec- oRuized in Watts v. Friend. 1(» H. & C. 446. per Lord Tenterdeii. So in he*- v. (iriflin.l IJest & Smith. Kxcheii. liep., 27-'. {T-i I.'. .S. 1)1^. 277.) it was held that a contract to make a set of artitlcial teeth, and lit them to the mouth of the other party who iliel before they were con.pleted, was a cnn- ti-actfor the sale of goods and within the statute. This doctrine of Littledale, J., lirinKs us rounil to the i|uesti<in whether in thecon- templatliin of the parties the contr.-ict was substantially a contract for the sale of goods, or for work and labor. In Massachusetts a distinction is made between a contract for the sale and deliv- ery of articles which the seller is habitual- ly making, and a contract to make an ar- ticle pursuant to the agreement, the for- mer tieing regarded as a contract of sale, but the latter n<it. Lamb v. Crafts. 12 Met. :i."i:!. 'I'his must be because it was supposed to bear on the i|Uestioii whether the stipulation that the party tiiinself should make the goods was of the essence of the contract, and so a contract for work anil labor. As a rule of law.howcTpr.it does not strike us as afftirding a very satisfactory distinction between a contract of sale, anil a contract for work, lal'or and mate- rials. If it be of the substance of the con- tract that the niauufactnrer shall himself apply his own labor and skill to the nian- i.facfure of the goo.ls for the buyer, who is n.it lioiind to receive any other, it can make no difteivnce whether the goods art* habitually made by such manufaclurer or not. If he does habitually make such goods for sale, he may nevert lieless con- tract to bestow his own lalmr and skill in making them for a particular person, and the real iiniuiiy is whether in a given in- stance he has done so or not. In the absence of explicit and ilistlnct terms, the circumstances may be such as to indicate cleat ly that the lalior and xklll of the particular artist was especially stipulated for. as in the case of an »grp«>- ment to paint a portrait, to execute a mar- ble statue, or any other work of hiKh art. In such cases, and especially where the mateiials used in the work are of slicht importance compared with the la- bor and skill of the artist. It might well 644 PITKIN V. NOYES. be mi|iposp(1 that the skill and labor was of the esseiiite of the contract, and auch seems to have licen the uphiiou of Pollock, V. B. in Clay v. Yates. 1 H. & N. 73, before cited. On the other hand If tlie contract bs for goods which arc usually in the market, and there is nothing in the terms used or in the nature of the case to indicate that the labor and skill of tlie contractor was stipulated for especially, it must be deemed a contract of sale and within the statute. If the article to be manufactured or the crop to be raised is not a marketable c«)nimodity, but of value chielly to the one who contracts for it, that circumstance has l)een supposed to indicate that the la- bor and skill of the other was bargained for. Browne on Statute of Frauds, sec. SOS, citinK Cason v. Cheely, G Geo. Hop. 5,i4, which is based upon such a distinction. Whether such a distinction asa ruleoflaw is well founded or not, it certainly pre- sents a strong equity in favor of holding such cases as not to he within thestatute. In the case before us the (luestion is whether the essence of the contract was a sale of the expected crop of potatoes at twenty cents a bushel, or a stipulation for defendant's work and labor and mate- rials in producing them. The proof is of an agreement bi' defendant to raise three acres of potatoes in ISGI, and deliver them at the plaintiffs' mill at twenty cents the bushel; was it. then, an essential part of the contract that the defendant should himself raise tlie potatoes? If it was, it would seem from the principles stated that the contract cannot be regarded as a sale. In the case of Gardner et al. v. Joy, 9 Met. 177, the plaintiffs inquired of the de- fendant what he would lake for sperm candles, and upon being told, said they would take one liundred boxes, which was assented to; defendant « ho was a manufacturer then said they were not then manufactured, but he should or would manufacture and deliver them in the course of the summer. The court held this to be a contract for the sale of goods within the statute; and that what was said as to the suiisecjuent manufacture hud reference only to the time of delivery, and that the ilelivery of good merchanta- ble candles of another person's manufac- tu7'e would have been a compliance with the contract. In the case before us was the defendant bound himself to raise three acres of pota- toes, or only to deliver good merchanta- ble potatoes in quantity equal to the or- dinary product of three acres? Or in oth- er words was the stipulation in respect to the three acres introduced only to de- termine the quantity to be delivered, and not to oblige tlie defendant to raise them ? It is obvious that the plaintiffs might have an interest in stipulating that de- fendant should himself raise the potatoes, and as the terms of the contract arc ex- l)licit that he should do so, we cannot be justified, as the evidence now stands, in holding that thi.s is not an essential part of the agreement. We are aware of the case of Watts v. Friend, 10 B. & C. -14(1, before cited. There A. agreed to supply B. with a quantity of turnip seed, and B. agreed to sow it upon his ovvn land and sell the crop to A. at £1, Is. per bushel, and it was hold that in good common sense tliis must bo consid- ered as substantially a contract for goods and chattels for the thing agreed to l)e de- livered would at the time of delivery be a personal chattel. Tl'e reason assigned here for this deci- sion would apply to all cases where the labor and materials employed were to re- sult In goods anil chattels, the price oi* which was to be the measure of comjien- sation, and without regard to the ques- tion whether in the contemplation of the parties labor and skill were especially con- tracted for or not, and for the reasons al- ready suggested, we are not prepared to assent to that view. Upon the whole our conclusion on thi» point is that as the question is a mixed one of law and fact. It will be projjer to leave it to the jury, in view of all the cir- cumstances of the case, to lind whether the contract was essentially for the work and labor and materials of the defendant in raising the potatoes, so that he was liound himself to raise them ; or whether it was substantially a sale of potatoes, which he might raise himself, or procure by purchase or otherwise. If it was the former it would not be within the statute of frauds; but if the latter it would l)e. Another question raised is in regard to the coDsideration for defendant's agree- ment. If the i)laiiitiffs agreed to take and pay for the crop of i)otatoes at the price fixed, that of course would be a sufficient consideration. We are of the opiLiion al- so, that the cnmpromise of doubtful and conflicting claims is a good and sufficient consideration to uphold an agreement. I Parsons on ('on.;3G4: Chitty on (\)n. sec. 42, and note 1 and cases; Longridge v. Dorville, r> ii. & Aid. 117; Crowther et al. V. Farrer, 15 A. & E., N. S., Queen's Bench Rep. 677; Barlow v. Ocean Ins. (.'o., 4 Met. 270: Tuttle V. Tuttle, 12 Met. 551; Craus V. Hunter, 2S N. Y. .389: Gates v. Shutts, 7 Mich. 127; Union Bank of Georgetown V. (Jeary, 5 Peters 99; Fleming v. Ramscv, 46I'enn. St. Rep.. 252; Parker v. Wav, 15 N. H. 45; Burnham v. Dunn, 35 N. H. .560. The law indeed highly favors the com- promise of doubtful claims ; but the sur- render or discharge of a claim which is utterly without foundation uud known to be so, is not a good consideration for a promise; Kidder v. lilake, 45 N. H. 330, and cases cited : but it is otherwise if the claims are doubtful and so understood by the parties, and in such a case the consid- eration will not be defeated by showing that in fact no valid claim really existed. In the case before us it does not appear that there was any doubt about the con- tract for the first year, and if not, an agreement to perform it would be no valid consideration i<.;v a new promise. What the evidence on that point was, however, we do not know and the only questioa here is as to the law in such cases. Case dii-'C barged. II M I'OPK c. ALUS. 647 roPE Gt al. T. ALLIS. (G Sup. Ct. Ucp. «9, 115 U. S. 303.) .Supiciiu' Cciurt of llic liiiti'il States. Nov. 9, 18S.J. In error to the circuit court of the I'littoil States for the eu.sierii district of WiHcoii- .sin. Tlie fnctH fully niipoar in the following Htatciiicnt liy WOODS, J.: Kdwjinl P. Allis, the defeiMlnnt in error, was the plaiiitifl in the circuit court. He brouirlit liis suit toreiover from the de- fendants 'riioinas .1. I'i)|)e and .laineH K. I'ope, now tile plaintiffs in error, the suin of f IT.NJit, tlie price of ."jlin tons of pi;r-iron, which liealleKed lie liad hou^'it from tliem and paid for. iiut wliicli lie icIuhimI to ae- cei)! because it wasnotof theiiiiality which thedefendants had agreed tofurnisli. The plaintiff also denianiied .fl.T.'iO freight on the iron, which he alleged he had paid. The (acts appeariiiir upon the record wi're as follows: The plaintiff caniecl on the business of on iron-founder in .Milwaukee. Wisconsin, and the defendants were bro- kers in iron in the city of New York. In the month of January. INM), by corre- Bpondence carrieil on b.v mail and lele- ;;rapli, the ilefendan ts agreed to sell and deliver to the plaintiff .')l)0 tons of No. 1 p.xtra American and "(M) tons No. 1 extra (jlensarnock (Scotch) ])i:;:-iron. The Aniericaii iron was to be delivered on the cars at the furnace bank at ('oiday, I'enn- Bylvania, and the Scotch at the yard of the defendants in .New York. I'.y a subse- quent correspondeiicebet ween the plaintiff and the defendants it fairly appeareil that the latter asrrced to ship the iron for the ])laintiff at Klizabcthport, New .Jersey. It was to be shipped 'is early in the spriii}; as cheap freiii:lits could be had, cousiuucd to the National ExchaiiKe liank at Mil- waukee, which, in behalf of the plaintiff, astreed to pay for the iron on receipt of the bills of lading. Th;it quanlity of Ainericjin iron was landed at .Milwaukee and delivered t<i the plaintiff about .July l.'ith. Before its arrival at Milwaukee the plaintiff had not only paid for the iron, but also the freiuht "from C'oplay to Mil- waukee. Soon afrer tl.e arrival in -Mil- waukee the plaintiff examined the :'>(M) tons American iron, to which scdely the con- troversy in this case referred, ami refused to accept it, on the ground tliatitwas not of the tirade called fur by the eon- lract,aiid at once frave the defendants no- tice of the fact, and that he held tlie Iron subject to their order, and brought this Biiit to recover the price of the iron and the freiji'ht thereon. The defenses relied on to <lefeat the ac- tion were (ll that the iron delivered liy the defendants to the plaintiff was No. 1 extra .\iiiirican iron, and was of the kinil ami (]iiality re(|uired liv the contract ; and C-M that tiie title liavinj; passe<l to tlie plaintiff when the iron was shipped to him at Kliznbethport. he could not after- wards rescind the contract !ind sue for the tirice of the iron and the freight uhich he had palil. but must sue for a breach of the warranty. It was conceded upon the trial that if the plaintiff was entitled to rerover at nil, his recovery should be for *2-.',31.">.-l<). The defendants pleaded a counter-claim forf.">.- •Tl, wliiih was admitted liy the plaiiillff. The jury returner] a verdict for the plain- tiff for *ir,..-d:i.ll, for which sum and eostH tlie court rendered a judK>i>ent <i|;ninHt the defendants. This writ of error liroufjlit that judgment under review. W. TV Lyiiile and Geo. 1'. .Miller, for plaintiffs In error. Kppa llunloii, Jeff, ('haniller, unU J. G. Jenkins, for dilendnnt in error. WOOns, J., after statiuK the facts an above, delivereil the opinion of the court. 1. The first assignment of error relateH to nine exceptions to the adir.ission of evi- dence by the court aKaiiist the olijectlon of the plaintiffs in error. The complaint huviiiK allei;ed that the contract betwec-n the parties was for the delivery of the iron al ^lil waukee, tlie plaintiffs in error ob- jected to the introiluc'ion of eviilence of- fered by the defendant in error wliiidi tend- ed to show a contract for the rlelivery of the iron ut ('opla.\ or Klizabelhport, be- cause the iiroof offered did Mot support the avei'iuents of the complaint, and Hie court liavin;; overruled their olijeclionH and admitted the evidence, they now con- tend that the judgment should for that reason be reversed. Iiut it is clear that, under section ".'lii;'.! of the Kevised SlatuteH of Wisconsin, which constitutes a rule for tlie >;uidance of the fedeial courts in that state, this assi);iinieiit of error is not well taken. The section mentioned proviilps: ■■ .No variance between tlie alle^jations In pleadin;; and the proof shall be deeincc) matei'ial unless it shall actually mislead the adverse parly to his prejudice in main- taining; his action or defense on its iiierltH. Whenever it shall be aliened that a party has been so misled, '.he fact shall be proved to the satisfaction of the court In what respect he has lieeii misled, and thereupon the court may order the plenil- iuK to be amendfd niioii such lernis ait may lie just. " The answer <if the plain- tiff.s in error denied that the contract pro- vitled for the delivery of the iron In .Mil- waukee, anil averre<l that the iron was to lie delivered at I'oplay. We do not think that evidence offered by the defendant In error, which teiKled to establish the aver- ments of the answer rather ihaii of the comiilaint. was such a variance ns could mislead the plaintiffs in error to their prej- udice in maintainini; their defense upon the merits; bill, if they lia>l been really misled, tliey should have proved the fact to the satisfai-tion of the court upon the trial. Iliivins iie;:l"cted to do this, they cannot now complain. It is char that, under the statute of Wisconsin, the plaln- tilfs in error had no just ground of e.xre|»- tlon to the admission ijf the evidence ob- jected to. Homier v. Home Ins. Co., 13 Wis. fiTT; Leopold v. Van Kirk. •.".> Wis. ."i:t; (iiffert v. West. :'.:! Wis. tilT. These eases show that the dIsirepMnry I etween the pliiidiim and the proof wa< a vari- ance within the meaaiiii: of the stnliite of Wiscou-iii. an<l that the s-ction cited l» applicable to the (|Uesllon in hand. 6-18 POPE V. ALLIS. 2. The next contention of the plaintiffs in i>rror is that evidence was improperly admitted ti.v Mie circuit court to show tlint tile iron landed at Milwaul<ee was not of tlie quality rc(iuir?d l)y the con- tract; the de/eodant in error not liaving shown, or offered to show, as the plain- tiffs in error insisted, that it was the same ir(jii which the defendant in error liad purchased, and wliich had Ijeen Hhii)ped at Klizahetliport. And on the eronnd tliat tlie identity of the iron was not shown, tlie plaintiffs in error insist that the court erred in rel'usinj;; to charge the jury, as requtsted l)y them, to return a verdict in theirfavor. Wethink theassisn- nient of error is not supported by the rec- ord. The defendant in errordid introduce evidence, and, as it seems to us, persuasive evidence, to show tliat the iron shipped for the defendant in error at Elizaheth- port was the iron landed and delivered to him at Milwaukee. The testimony in- troduced tended to prove that one Haz- ard, on whose dock, at Klizabethport, New Jersey, iron belonging; to the plaintiffs in error was stacked, shipjied lietween April ■2Sth and May 12th, at Klizabethport, on five canal-tioats, wliose names are jiiven, 500 tons of American iron, consiKiied to Thomas J. Pope & Brother, care National Exchange Dank. Milwaukee, Wisconsin, and to be transported to Milwaukee by the river, canal, and lakes; that about the same time there was shipped to the same consignees, and to tlie care of the same bank, the aoo tons of SScotch iron which had been sold liy the jjlaintiffs in error to the defen<lant in error. It was further shown that, on June 9th and l.")th following, ^00 tons ofiron,.'JOO being American an(l oOO Scotch, weretrans- ferred from the dock at Buffalo to two schooners, and the bills of lading given by the schooners stated that the ."JOO tons of American iron were the cargo of cannl- boats of the same name as those on which the iron had been s!)i|)i)ed at Elizubeth- port, and it apiieared that both the Amer- ican and Scotch iron transferred to tiie schooners was consigned to Thomas J. Pope & Brother, care National Exchange Bank, Milwaukee, Wisconsin. It was fur- ther shown that, about .luly 1.5tli, the two schooners al)ove mentioned landed at Milwaukee 500 tons American iron and 300 tons of Scotch iron for the consignees mentioned in the bills of lading, and tlie iron was delivered to the defendant in error, and it was conceded that the :!00 tons of Scotch iron was the same which had been sold by the plaintiffs in error to the defendant in error and shipped to said consignees for liini. In addition to this evidence, the defend- ant in error introduced the deposition of James E. Pope, one of the plaintiffs in error, in which he testified as follows: "There is a suit pending between my firm, as plaintiff, and the Coplaj' Iron Com- pany, as defendant, relating to the Amer- ican iron shipped to E. P. Allis & Co." As an exhibit to this deposition there was a copy of the complaint in the suit, sworn to by James E. Pojie, from which it ap- peared that the action was brought to re- cover of the Coplay Iron Corapan.v dam- ages for tHe breach of a contract by which that company warranted that a cert.iiii r)00 tons of iron, sold by it to the plaintiff in said suit as .No. 1 extra iron, was of that (|uality; and it clearly ajipeared, from the complaint referred to, that one of the facts on which the cause of action was based, was that the 500 tons of iron sold and shipped by the plaintiffs in error to the care of the National Exchange Bank, for tlie defendant in error, as No. 1 extra American iron, was the identical iron delivered for him to tlie bank at Mil- waukee, and which he had purchased and paid for. We therefore repeat that there was persuasive evidence offered to show that the iron ship|>ed at Elizaliethport, for the defendant in error at Milwaukee, was the identical iron landed at Milwau- kee and received by him. The assign- ments of error, based on the contention that there was no such evidence, must therefore fall. 3. The bill of exceptions shows that the complaint above mentioned in the suit of the plaintiffs in error against the Coplay Iron Coniiiany was sworn to by James E.Pope; that it contained an averment on information and belief touching the (jualily of tlie iron in controversy in this suit; and that the plaintiffs in error asked the court on the trial of this case to charge the jury that such complaint was n^.t evi- dence of aii.v facts therein stated on infor- mation and belief. The court refused the charge, but instructed the jury that, in de- termining what weight a-< an admission the complaint should have, they might consider the fact that the allegafion in relation to the quality of the iron in ()iios- tion was made on information and belief. The plaintiffs in error, having excepted at the trial, now assign as error the refusal of the court to give the charge request- ed. We think the court did not err in its refusal. When a bill or answer in equity or a iJleading in an action at la wis sworn to by the [larty, it is competent evidence againsr liiin in another suit as a solemn admission by him of the truth of the facts stated. Studdy v. Sanders. 2 Howl, & R. 347; De Wheljidale vMilburn, 5 Price, 4S5; Central Bridge Corp. v. Lowell, 15 Gray, lOG, Bliss V. Nich'ds. 12 Allen, 44:i ; P^lliott V. Hayden, 104 Mass. INO; Cook v. Barr, 44 N. Y. 156; Tayl. Bv. (Tth Ed.) S 175:!; Greenl. Ev. §§ i"»2, 5."5. When the aver- ment is niade on information and lielief, it is nevertheless aimissible as evidence, though not conclusive. Eord EUenbor- ougli in Doe V Steel, 3 Camp. 115. The au- thority cited sust.-iins the proposition that thefact that lliea verment ismade on information and belief merely detraet.s from the weight of the testimony. It does not render it inadmissible. The charge given by the circuit court on this point, therefore, deprived the plaintiffs in error of no advantage to which they were en- titled. 4. The assign aient of error mainly relied on by the plaintiffs in error is that the court refused to instruct the jury to re- 'turn a verdict for the defendants. The I legal proposition upon which their coun- sel based this re(iuest was that the piir- I chaser of iiersonal iiroperty, upon breach 4 POPE V. ALLIS. 610 of warruntv of quality, ciinnot, in tlio nh- Henue of fi-auil, iCHciiid tlic contract of piir- clinHc and sale, ami sue for tlic recovery of til" price. .\nil tl;ey contended that, aH tlie iron waw delivered to defendant in errtir eitlior nt ("oplay r)r lCii/.al>etlip()rt, and (lie Hale wa.s completed tliereliy. the only remedy i)f the defeudaiil in error whm by a suit upon the warranty . It did not appear that at the date of the contract the iron had iM'cn tnaniifactnred. and il was sliown l)y tlie record th.-it no partic- ular iron wan He^reKated .Mnd appropri- ated to the contract liy the plainlil'lH in error unlil a Khort time tiefore itH MJiip- ineat. in till' latter part of April and tlie eiirlj part of May. Tliedefeiidant in error had no oppoitiinity to inspect it until it arrived in .Mil wauUee. and conHeci'iently never accepted the particular iron appro- priated to till the contract. It was eslati- iislicd liy the verdict of the jury thai the iron shipped was not of the i|uality re- quired li.v the coiitra<-t. I'lKler these cir- cumstances the conleiition ol the |ilain- tiffs in error is that tliedefeiidant in error, althoiiKli llie iron ship cd to him was not what he liuu^ht, and could not he used in his liusiness. was hound to keep it. and could onl.v recover the difference in value hetween the iron for vvliicli In; contracted and the iron wliicli was delivered to liim. We do not tliiiiU tli;it sui-h is tlie law. When thcKUl>ji'''t-ni'i"'''" of a sale is not In existence, <ir not ascertained at the time of the contract, an unciertakiii};' that it Hliall, when existiii^i or ascertained, pos- Kess certain i|ualities. is not a mere war- ranty, liut a condition, the performance of which is jirecedent to any olilination upon file vendee under tlie contract; because the existenco of those (|iialilies hein>r [lart of the description of llie tliiiK^ sold be- comes essent i.il toits identity, and the ven- dee cannot lie obliired to receive and pay fora thin;; diffcreat from that forwhich lie contracted. Chanter v. Hopkins. 4 .Mees. & \V. JII4; r.arr v. (iibson, :! .Mees. & W. :!!)0; (iomperlz v. liartlett. L' Kl. & 151. Sl!»; OkcU V. Smith, 1 Stark. .\. P. Ih7; notes to Cutter V.Powell.'.' Smith, Lead. ("as. (7tli Amer. i:d.) :!7 ; Woodle v. Whitney, :':? Wis. :V>; Itoothby v. Scales, 'J7 Wis. (1L'<! ; Kairlield v. .Madison Maniif'a: Co., :>s Wis. :!•!(). See, also, Nichol v. (;o(lts, 10 Excli. 1!M. So. in a recent case deciiled by tlii.-' court, it was said by .Mr. .1 ustice (iray: ".'\ Htalement" in a mercantile coiitract "descriptive of the suliject-matter or of Home material incident, sucli as the time or place of Hhipment, is ordinarily to be ret;arded as a warranty in the sense in which that term iH used in Insurance and maritime l.aw; that ia tOHuy, a condition precedent upon thefnihire or non-perform- ance of which the party aKurieved may repudiate the wiml- contract. " .NorrlnR- ton V. Wriuht, 11.'. I'. S. IsH, C, Sup.Ct. Itep. ^2. See, also, Filley v. Pope, ll.", V. S. L'i:j. li Snp. C». Ilep. 111. Anil HO. when a con- tract fill' the saleof ;;oodH Ih made by HBin- ple, it lunountH to an undertakInK on the part of the Heller with the buyer that all the KoodK are similar, both in nature and i|uality, to those e.xhiliited. and If they do not correspond the buyer may refUHu to receive them; or, if received, he iiiiiy re- turn them in a reaHonable time allowed for examination, and tliiis rescind the contract. Lorvnier v. Smith. 1 I'.arn. & C. 1 ; Ma«ce v. I5illlnirHley, :! .Ma. r,7!l. 'the authoriticH cited Hiistain this prop- osition: that when u vendor sells i;ooiIh of a Hpccihed quality, liut not In existence or aKcertained, and uiidertakes to ship them to a distant buy«r. wln'ii made or ascer- taineil. and deliviTH them to the carrier for the purchaser, the latter Ih not bonnd to accept them withoutexamlnation. 'I'lie mere (lelivrry of tlie;;ooils by the vendor to the carrier docs not iieceHsarlly bind the vendee to accept tliem. On their ar- rival he has the riu'it to inspect them to nscertain wtietlicr they conform to tlie contract, and the riuht to In-^pect implieH the rijjht to reject them if they are not of tlie qualit.v reijuired by the contract. 'I'lie nillnKs o( the circuit court were in accord aiice with these views. We have been referred b.v the plaintiffs in error to thecases of Thornton v. Wynn, lLM\'lieat. 1N4. and T-yon v r.eftram. LM How. l-l!l, to sustain the proposition that the defendant in error in tliis case could not resciiiil the contract and sue to re- cover back the price of the iron, liut the cases are not in point. In the first, there was an absolute sale with warranty and delivery to the vendee of a Hpicillc chat- tel, namely, a race-horse; in the second, tlie sale was of a specilied anil desiKiiated lot of Hour which the vemlee had accept- ed, and part of which he had iiHed, with ample means to nscertain whether or not it conformed to the contract. The cases we have cited are conclusive against the contention of the plaintiffs in error. Tlie jury has found tliat the iron was not of the quality which the contract required, and on that irround the defend- ant in error, at the lirst opportunity, n-- jected it, as he had a riRlit to do. IIIh suit to rei'over the price was, therefore, well brou',ilit. Other errors are assigned, but. In our opinion, they present no ^rouiid for the reversal of the jud;iment. and do not rc- (|Uire discussion. Judgment alllrmed. KANDALL c NEWSON. rni RANDALL v. NEWSON. l (3 Q. B. Div. 102.) Court of Appeal. Jan. 22, 1877. St.Ttenient of rluim. that plnintiff l)()ijulit of defend a 111. ii I'lirriajre miiiiufac- turcr, n phaeton for two lii;v.><eH, the pole made and wupplicd for whic-li \\nn ho care- lessly aiKl iiegiiKently made, ai.d of hucIi had anil linpropir wood, that while the plnintiff was drivin;; the phaeton the polo broke and eaused 'he horses to run away, and the horses were daniafjcd. Defence, denying that the pole was care- lessly or iiestlinently made, or of had or improper w.ood ; and not admitting; that the pole hroke hy reason of any ilefect in the wood, or that the di'fi'iidaiil sold the phaeton under such ciieunistanceB as to render him lia hie for tli(> eonse(iuence.s of a latent defect. Issue joined. At the trial before Archibald. . I., at tlie Sliddlesex Hilary sittiii^s, IST'l, it appeareil that the plaintiff bouiiht of the ilpfeiidaiit, who was a cairiaf;e builder, a iihacton. in Aimust, 1^74; it was only fitted with shafts for one horse, and the plaintiff ;;ave or- ders to the defendant for a pole and splin- ter-bar to be made and fitted to it. The pliaeton was sent home with the pole and splinter-bar. and while the plain- tiff was driving it with two horses In Oc- tober, Is".), the horses swerved and the pole broke short off at the carriage. The horses in coiisei)ueiice became restive and were much danumed. There was much contradictory evidence ns to the causeof the breaUinj^ of the pcde, the plaintiff's witnesses savin;; it was of bad wood, while the defendant's stated that the wood was jierfectly Kood. The value of a new pole was agreed at f:!. and the plaintiff nave evidence that his horses were (laiDa;;e(l to bet ween SKJO and £14li. The learned iudine expressed it as his opin- ion, that it tlure were no ne;;li;;ence on thejiartof tlie (<efeiidaiit in inakiuK the pole, or in the selection of the materials, the plaintiff could not recover more than the £:}; and he left to tlie jury two ques- tions: 1. Was the i)ole reasonably lit and proper for the carria^ie'.* '2. Was the de- fendiiiit ;;uilty of any neglisence'.' And he asked the jury also to assess the conse- ciucntial dama;j:e8, in case they should be- come material. The learned jud^e was obliH:Pil to leave the court, to attend a meetiiiK I'f the judges, before the jury had returned their verdict. The jury answered both questions in the negative, and as to the damages, said they understood from tlie juilj;e that i:! was all they could HikI. On these findings, the verdict and judg- ment were entered for the plaintiff for €•'!. with leave to move to enter judgment for the defendant. The defendant Rave notice of motion ac- cordingly; and the plnintiff obtained an onler for a new trial on the >;i"ound of misdirection by the learned judge as to the measure of damages. 1S7G. Feb. 11). Sills, (Cave, Q. C. with him.) for defendant. • iates, Q. C., and Edward Pollock, for plaintiff. Tril-: (OirUT (BKA(KnrnN and Ll'.SH.JJ.i ordered judumeiit to be en- tered for the ilefendaiit. on the urniind that the answers of the jury amounted to a tiiiilinc of a latent defect" In the w<iod of the pole, which no care nor skill could discover, and thai the principle of the fle- cision in Headhead v. llailway Co.' ex- tended to the sale of an urtiile (or a spe- cilic purpose. The plaintiff appealed. Nov. 17. Gates, t^. C. and It. V. Wil- liams, (ICdward Pollock with hlin,) for plaintiff. Xov. 18. Cave, Q. C, and .SIIIm. for de- fendant. The judgment of the court (KKF.LY, C. n.. .MliLLISH. U. J., and HIIKTT and AMPHLETT, J J. A.) was delivered by ni!KTT,.I. A. This case was tried upon the footini; that it was an aclion brought against the defendant, a coach- buililer, to recover damageH in respect of injuries to the plaintiff's liorses and car- riage, b.v reason of the defendant having supplied to the jilaintiff a defec 1 1 vi- car- riage pole. The jury foiiinl that the pole was not reasonably lit and proper for the use of the carriage; but that there was no negligence on the part of the de- fendant (including, of course, his servants or agents) in supplying the pole. The price of a new pole was i;i. The damage done to tlie horses and carriage was inurh more. Hut the only damages found by the jury were £'-i. t'pon these lindiiiKS th<- court of queen's bench, applying to this contract the principle laid down iu Headhead v. Kailway Co.- gave judgment for the defendant. No dispute was made at the trial, or in argument, as to the nature of the order given and accepted; the r|uestions argued were whether the de- fendant was liable at all. ami wh:it was the extent of damages to which lie might be subjected, if he was liable at all. Now as to these questions, it is to be taken, al- though nothing specitic seems to have been said, that the order given and accept- ed was not merely for a pole in general, but tor the siipiily of a pole for the plaiu- tiff's carriage; and tiiat the contract therefore was lor the purchase and sale, or supply, of an article for a specilic pur- pose. In other words, the subject-matter of the contract was not merely a pole, but a pole for the purchaser's carriage; or, to state the proposition in an .quivnlent form, the thing, which would, if Hie con- tract were formally drawn ui>. beilesi-rlbeil in it as tlie subject-matter of it. would not be mer"l> a pcde generally, but a pide to be purdiaseil for a specillc purpose, namely to lie used in the plaintift's car- riage." The question is, what, in such a contract, is the implied undertaking of the seller as to the ell'ciency of the pole? Is it an absolute warranty that the pide shall be reasonably lit lor the purpose, or is it onlv partially to that effect, limited I to defects which miglit be disctivered by care and skill? I > L. R. 4 Q. B. :t79. 1 'L. U. 2 y B. 412; in error L. R 4 VJ. B. 378. €52 RANDALL v. XEWSON. In order to fificido this question it seems advisable to ascertain the primary or rov- erninji; prineiple on wliiili the earlier cases were decided, and to see wlietlier the jirin- ci|)l9 on which they were decided ouRlit to be niodilied by tlie decision in Ueadliead V. Railway t'o. The earliest ease seems to be Parkinson v. Lee.'' in ISUl'. It is suffi- cient to Huy of it that, either it does not determine the extent of a seller's liability on the contract, or it has lieen overruled. Neither can the case of Fislier v. Samu- da,t in ISOS, be said to decide anythiny;. The first cases of im|)ortance are iJardiiier V. Gray,''' and Laing v. Fidgeon." in Isl.^. In Gai'diner v. Gray the contract was for the i)nrcliase and sale of "woste sDU.'" The silk was inip<irted, and the Ijulk had not been .seen either by the ilefendant, the seller, or the plaint^iff, the buyer. Lord ICIlenborough, said : "I am of opin- ion that, under such circumstances" (i. e. Ji sale of silk as waste siik ) " the [lurchassr has a right to expect a saleable article, answering the description in the contract. AVitbout any particular warranty, this is an implied cei'ui in every such contract.*' The contract was for the purchase and sale of a commodity described generally, not described to be ordered or supplied for a particular purpose. The description of it was that it was waste silk. From that it is implied that it is, or in other words it is assumed that it might lie, specitically described as saleable waste silk. The de- cision, therefore, is that the commodity offered and delivered must answer the de- scription of it and be saleal)le waste silk. The principle is that thecommodity offered must answer the description of it in the contract. Laing v. Fidgeon is to thesame effect. In (iray v. Cox,'' in ISi."), the case was dtciderl on a variance; but Abliott, C. J., stated that he was of opinion. " that if a person sold a commodity for a partic- ular purpose, he must l)e understood to wariant it reasonably fit and proper for such purpose." The commodity offered was copper for sheathing the ship Coven- try. It was proved that no detect could l)e discovered by inspection of the article, and it was admitted that the defendants were ignorant of the defective i|uality of the copper. It is olivious that Lord Ten- terden did not consider the seller relieved by reason of the defect being latent. This ruling of Lord Tentenlen was ado|)ted in thedecision of Jones v. Bright, s in ISSt. The contract was for copper sheathing for a ship. The question pro- posed liy Ludlow, Serjt., ri argument was, "wliether the law will, according to the dictum of Lord Tenterden, in Gray v. Cox" lay upon the seller or manufacturer an obligation to warrant in all cases that the article which he sells shall be reason- ably fit and proper fur the purpose for ■which it is inttnded.and render him re- »2 East, 314. n Camp. 190. '4 Uamp. 144. « B Taunt. 108. '4 B. & C. 108, 115. T) Bing. .533, 540. '4B. & C, at p. 115. sponsil)le for all the consequence.s which may result, if it shall he found not to an- swer the purpose for which it was de- nigned, and that, on account of some la- tent defect of which he %vas ignorant, and which shall not be proved to have arisen from any want of skill on his jiart, or the use of improper materials, or any accident against which Ir.iman prudence might have been capable of guarding him." Here, therefore, the whole proiiosition, with and without limitations, was plainly laid before the judges for their coiisidera- tion. The answer given by Best, C. J., was: "I wish to put the case on a broad princi- ple. If a man sells an article he thereby warrants that it is merchantable. — that it is ht for some purpose. If he sells it for that particular i)Ui|)ose, he thereby war- rants it fit for that purpose. Whether or not an article has been sold for a particular purpose is, indeeil, a ques- tion of fact; but if sold for such purpose, the sale is an undertaking that it is tit. . . . The law then resolves itself into this, — that if a man sells generally, he un- dertakes that the article sold is fit for some |)'irpose; if he sells it for a particu- lar purpose, he undertakes tiiat it shall be fit for that particular purpose." Nothing can be more clear than that the rule is ad- visedly enunciated as a warranty without limitatiiui. Brown v Edgington'o is to the same effect. In Wieler v. Schilizzi.n the contract was for "Calcutta linseed." Jervis, C. J., told the jury that the (luestion for them to consider was, "whether there was such an admixture of foreigii sul)stances in it as to alter the distinctive character of the article, and prevent it from answer- ing the descri|)tion of it in the contract. " Cresswell, J., said, "They wei'e to say whether the article delivered ieasonal)ly answered the description of Calcutta lin- seed." Crowder, .L, said, "The jury in effect found tliat the article delivered did not reasonably answer the description in the contract." Willes, .J., said, "The pur- chaser had a right to expect, not a perfect article, but an article which would tie salealilo in the market as Calcutta linseed. If he got an article so adulterated as not reasonably to answer that description, hedid not get what he liargained for." In this case it is to lie observed that all the judges adopted the form of stating the principle which was used by Lord Ellen- borough in (iardiuer v. (Jray.i- In Nlchol V. Godtsis the contract was for "foreign refined rape oil, warranted only equal to samples." The oil offered was equal to samples, but both samples and oil were adulterated. Parke, I!., told the jury "that the statement in the sold-ncte as to the samples related to the quality onl.v of the article, and that acL'ording to the contract the <lefendant 'vas en- titled to have rape oil delivered to him." Piatt, B., in banc, said : "1 under- stand that the oil to be deliveri^d was to "'2 M, & G. 370. " 17 U. B. 010, 633; 3.5 L. J. (C. P.; 89. '=4 Camp. 144. "10 Ex. Ifll; 33 L. J. (Ex.) 314. RANDALL c. M:\VSUX. 6j;} bt'equnl to the HtiinpleR in (niiilily. I'.iit ' piirciiiiHe niiil nn]o must nnswer the ile- tlie ilefcn.lant (li<l not refiiHP to ncccpt tlii" Kc-ilptioii of it wliiili Ih <oii t;iliifi| In wonlH oil t('iMl< ri'il to liiiii oil tlie nioiinil that it In tin- rontruct, or which would In- ho con- (liil not i<|iinl the Hainplus, iMit on accouMl tiiincil if tho contrnct were ucc-uratcly of itH not l)( in;; forciun relined nipc oil at iliawn out. Anil If that he the RovernlUK all. And the learned judye told the jury piincipic. there Im no plnc-e In It for the that if they KhoMid thinli that waH MO. the Hii^Kested llniitation. If the nrtkle or defendant wan not hound to accept it. coniinodity offereil or didivered doew not Tliat direction was perfectly correct. If In fact anHwer the dcHCi Ipthm of It in the tho jury had found that the article which contrnct. it doen i,i>l ilo ho more or lexH the plaintitf tendered was known In the i)ecauHe the defect in it Ih patent, or la- market under tlie name and cicMcriptlon tent, or discovcrRhle. .\nd accordlncly of foieinn reHned rape oil, the plain tiff there Ih no HiiirtreHtion of any mucIi liniita- woiild have lieen entitled to Hucceeil ; l)ut f-ion in any of thejud^rnentH In caniH re- the (luestion wa.4 put to the jury, and latini;to conti-acts of purchiiHe and Hole, they were of opinion that it wbh not Inlen.-*. theicfore, there Ih Home Idiidinjc known as hucIi." And I'arke. I!.. Haid ' authority to the contrary, we oujjlit not "the evidence went to hIiow that the oil now to introiluce hy Implication a liiultu- offered <lid not answer the description of tii>n into contractn'of purchanp and nale the arti<'le Hold." which linH never been Introiliiced before. This form of Htating the rule wan dis- , ItisBaidthat the case of Hcadhead v. tinctly adopteil in Josliiij; v. Kinnsford.' * Knilwuy Co.'" in error is such a l)lnding IiyEile, ('..I., and Willi's,.!. Krle, C. .1 . I authority. liiit in answer to the cuseH told the jury"tliat the defendant could ' cited of the implied nnilertakin;: in con- only perform his part of tlie contract by tractH of purchase and nnle. .Montague delivering that which in commercial laii- .Smith. .!., says: "The connHid for the (■uuse miiilit properly be said to come un- pl;iinl iff referred to some of the cusch in dertlie dcnoinination of oxalic acid ; and wliicli it had licen held tliat in contracts that if they should be of opinion that the foi- the supply of kooiIh for a particular article delivered i)y the defendant as ox- purpose, there is an implied wananty that alio acid diil not properly fullil that de- t he noods Hiipplied shall he reasonaldy lit scriptioii tliey should liiid for theplaiiitiff. " forthatpurpo.se. . . . Hut the n;;ree- I have cited these cases, and the priuci- men t to sell and supply for a price which pies laid down in thcin, in order clearly to maybe assiiincd to represent their value ascertain what is the iirimar.Nor ultimate is a contract of a different nature from n rule from which the rules which have liiH'n contract to carry, and has essentially dif- applied to contracts of purchase and sale ferent incidents attachiim to it." It is of somewhat different kinds have been de- true that the learned jiidiie afterwards duced. Thosedifferent rules, as applied to says : " ICven in the cases of contractu to such diffei-ent contracts, are carefully eiui- snpidy f^ijods it iiriy be a iiiiestion, on mcratedaiid recognized in .loncs v. .lust.'-' which it is not now necessary to eXprcHg 111 Home contracts the under tali in;; of the an opinion, how fa rand to what extent the seller is said to be only that the article vendor would be liable to the vcinlee In tho shall lie iiierchaiitable: in others, that it case of a latent ilefect of the kind existing shall be reasonably lit for the purpose to in the present case which no skill or care which it is to lie apnlied. lu all, it seems could prevent or detect." Hut it seeuis to lis. it is either assumed or expressly impossible loj;ically to hidd that n case.— stated, that the fiiiidameutal iindertaUiiii: in whiih tlie court declined to follow the is, that the articleolfered ordelivered shall decisions on contracts of purchase anil answer (ho description of it contained in sale, on the Kronnd that those contractB the contract. That rule comprises all the are of a different nature and have essen- iilhers; they are adaptations of it to par- | tially different incidents from the contract ticular kindsof contracts of purchase and to carry, which was in discussion in that sale. Yon must, therefore, first determine I case,— can be fairly bindiiiK on this court, from the words used, or thecircnmsfances, ho as 1o oliliKe it to iiilrndiice a purlieu- what, in or accordiiiK to the contract, is lar limitation into a coiitri.ct of purchiiHe the real mercantile or business descrip- | and sale, because, in that case, it was lii- tion of the tiling which is the sultjcct- ' troduced into o contract to carry passen- mntter of the liar^ain of purchase or sale, | jjers. or, in other woi-ds, the cuntrai t. If that Thecase of Francis v. Cockrell'' Is basj-d subject-matter be merely tlie commercial npoii Iteadhead v. Kaihvay Co. and is arlicie or commodity, the undertakinii is. therefore of itself no more a liiiidli.c an- that the thin;; offered or delivered shall tliority on us in t his case llian theollnr. answer that ilescription, t ha t is to say. It is true, however, that the lord chief shall he that article or commodity, salea- baron. uoin« further than the doubt ex- ble or merchiintable. If the subject-mat- pressed by Montague .Sinilh. .1 .. docs rec- tor lie an article or comiiiodity to lie used otfuiie the limitation as applicable to ron- for a particular purp. ISO. the tliiiii; iiffereil tracts of purchase and sale."* Hut the or delivered must answer that descrip- statement of the learned judce was not tioii, that is to sav, it must be that arti- necessary, and therefore Is not bliidinit. rle or commodity, and reasonably tit for tliou«h of courHe invitin;; a careful con- tlie particular purpose. The <iiiveiniii;; siileradon of the older cases. After such principle, therefore, is that the thin« consideration, for the reasons before offered nntl delivered under n coutract of I '• I.. R. 4 0- W- 3^. !*S«. "13 C. B. (N. S.) 447; Si L. J. (C. P.) t'4. " b- K. 5 Q. B. M\. rm. " L. R. 3 y. B. VJ7. I " b R. 5 g. U. at page W3. €5i RAXDALL V. NEWSOX. given, we are of opinion that the under- taking of the present (ietendant was not restricted by the limitations applied to tlie contract of carriage in Readliead v. Railway Co., and that so long as the ver- dict in this ease stands it inii)oses a liabil- ity on the defendant. We are, therefore, of opinion that the jndgnient of the court of (|ueen's bench directing the judgment to beentered for thedefendant was wrong. In theconrt of (lueen's l)ench across rule had been oljtained on behaU' of the plain- tiff for a new trial, on the ground of misdi- rection as to the n,easnre of damages. In consequeupe of the decision that the de- fendant was not liable at all, it became useless to argue the point. But Mr. Gates lias renewed it before us, and has asUed for a new trial on tlie ground of such mis- direction, desiring to have such new trial confined to the ijuestion i>f damage only. We think that a (juestion should have been left to the jury similar to that which was left in Smith v. <lreen.i9 namely, whether the injury to the horses was or was not a natural consequence of the de- fect in the pole. There has been a miscar- riage in this respect at all events. We are asked to contine the new trial to the question of damages, but considering that » 1 C. P. D. 92. the real question is not whether the pole was perfect, but only whetlier it was rea- sonably fit, we cann(jt thiidi that the find- ings of the jury as to the (luestions left to them in order to determine the liability of the defendant are so satisfactorj- as to authorize us to confine the question to be raised on a newtrial to thedamages only. We think that the judgment of thecourt of (jueen's bench should be reversed, and that the order should be for a new trial generally, if the plaintiff elects to have a newtrial at all. If lie does not, the ver- dict and judtiuient for the jilaintiff for £0 will statu!. The plaintiff has succeeded on the ap- peal, and should therefore have the costs of the appeal. KEI^LY, (J. B., in assenting to the judg- ment of the court, observed, that, if the language imputed to him in Francis v. (-'ocki-ell-o l)e correctly reported, he must have expresseil himself inaccurately, and he had no intention to apply the doctriue in I{eadhead's i'ase-i to a contract for the sale and purchase of an article to be ap- plied to a specific purpose. .Judgment reversed. -0 L. R. 5 Q. B. at page 503. " L. R. 4 Q. B. 379. RODLIFF o. DALl.INGEK. 657 RODLIFF et al. v. DALLINGER. (4 N. E. Rep. 805, 14t Mass. 1.) Supreme Judicial Court of Massachusetts. Suf- folli. Jan. U, isse. Excrptions from wiipprior court, Suffolk county; Knowlton, .ludtie. ThiH waH ail action of replevin to recov- er poHHCSHion of L'O bans of California wool. The i)laintiflH were woijldealerHin 15onton, and on or about November 1.'), 1SH2, deliv- ered Hiiid wcjol to one Henry ClementHon, a wool dealer and broker in Boston. The defendant was a public warehouHeman in Boston, and received tlie wool on storaKe from Clenipntson about November l.'j, ISSL', not knowintr where he obtained it, and iHHued a wiirehouso receipt fortliewanie on the day after the delivery of the wool. Clementson ap[)lie(l to the MasHachusettK Loan & 'I'rust Company, of Boston, for a loan of $-,001) on tlie wool in the wnre- honse, and, after an examination of the article, the loan was made; thetrustconi- pany takina the warehouse receii)t from ClenientHon, having no knowledtce where Clementson obtained the wool, his Htate- ment beiny that he purchased the wool to sell; and the trust company, beinp; the real party in interest, defended the suit. Dpon tlie foreKoiuK facts the court in- structed the jury that there were three possible views of the transaction: (1) That they misht find it was an ordinary sale to Clementson: or ('_') that it wasnot a sale to Clementson, but was a delivery to ('lementHon as a broker, with a view to his selliuf; it to some customer, whom he expected afterwards to negotiate with, and with whom to consummate a sale; anil if they found this, then there was a special provision of the statute which protects parties dealing in uood faith with a broker havintr property in that way, so far as they make advances t)r loans upon property in (iledRe. in jjood faith, to per- sons who have custody of property as brokers, witli authority to sell or dispose of It; or (;i) tlinl it was not a sale to Clementson, ora delivery to liim as broker with authority to sell, but that it was a delivery to ('leuientson u|)on his represen- tation that became from a iturcliaser rep- resentint; him, with an offer for it,— a pur- chaser he did not disclose,— and that tliese goods were delivered to liim as the a^jcnt of that pun-haser, — as a sale to that pur- chaser; and if that was the fact, that the phiiTitiffs were entitled to the proper- ty, not withstnndinK it was subsetiuently pledged to the Massachusetts Loan & Trust Company. The ((nirt also further instructed the jury upon tlie third view "that if this was a transfer upon a false representation made by Clementson. — a representation that he came with an offer irom a third person whose name he did not wish to disclose, — and the goods were delivered to Clementson as a sale to him as the agent of this third person, whose offer he was bearing, with the view that the proiierty should pass at the time to that third person, and thus constitute a sale to that third iierson, from whom payment was LAW SALES — 42 to be made Bulisequently, anil the pay- ment to be brought back by Clementson as the agent of that third person, that Clementson had no right afterwards to deal with that property at all. lie got it into his [losseHsion liy fraud, and he got it into his posHession without any au- thority to make any subseiiuent sale or I to do anything with it. It was wrongly in his possession from the start, and any person who saw lit to ailvan<e money ui)on it or to buy It, however honestly, and in perfect good faith, would be the loser, and plaintiffs could jiiirsue the prop- erty, and get it wherever they could find it, whenever the frnu<l practiced upon them should come to their knowledge." rpon the foregoing facts and rulings, the jury found for the plaintiffH. and the defendant, having duly excepted to the third instruction of the court, being so much of the judge's rulings as authorized the jury to find for the plaintiffs, prays that these his exceptions to said rulings may be allowed. .\lfred llemenway, for plaintiffs. Henry D. Hyde, for defendant. HOLMES, .J. The plaintiffs' evidence warranted the conclusion that they re- fused to sell to Clementson, the broker, but delivere<l the wool to him on the un- derstanding that it was sol<l to an undis- closed manufacturer In good credit «lth plaintiffs. This evidence was not objected to, and was admis.Hible, notwithstanding the fact that the sale was entered on the plaintiffs' books as a sale to Clementson. and that a bill was made to him. Com. v. Jeffries, 7 Allen, .'>4S, ,',(;}. It was admitted that Clementson in fact was not acting for such an undisclo.'<ed principal, and it follows that, if the plaintiffs'evidenco was oelieved, there was no sale. There could not be one to the supposeil piincipal, be- cause there was no such person : and there was not one to Clementson, because none purported to bemadetohira; but, on the contrary, such a sale was expressly refused, and exclude 1. Edmunds v. Mer- chants' Despatch Transp. Co., 135 Mass. iS3; .\born v. Same, Iil. It was suggested that this case differed from the one cited, because there the prin- cipal was disclosed, whereas here he was not, and that credit could not besupposed to have been given to an unknown person. We have nothing to say ns to the weight whicli this argument ought to have with a jury, beyonil observing that the plain- tiffs had reas<in, in Clementson's repre- sentations, for giving credit to the sup- posed manufacturer. I'.ut there Is no rule of law that makes it impossible to con- tract with or sell to an unknown but exist- ing party, and if the jury linil that such a sale was" the only <Mie that purportod to have been made, the fact that It falliMl does not turn it into a sale to the party conducting the transaction. Schmaltz v. .Wery, li. y. B. r..">.">, oidy de- cided that a man's ilescriblng liiim-elf In a charter-party as "agent of thefrelghter" is not sullicient to preclude liim from al- leging that he is the freighter. It does not hint that the agent could not be ex- 658 RODLIFF 0. DALLINGER. eluded by express terms, or by the de- scription of the principal, although insuffi- cient to identify the individual dealt with, as hai)pened hin'e; still less, that, in favor of third persons, the agent would be pre- sumed, without evidence, to be the undis- closed principal, although expressly ex- cluded. The invalidity of the transaction in the case at bar does not depend upon fraud, but upon the fact that one of the sup- posed parties is wanting, it does not mat- ter h(jw. Fraud only becomes important, as such, when a sale or contract is com- plete in Its formal elements, and therefore valid unless repudiated, but the right is claimed to rescind it. It goes to the mo- tives for making the contract, not to its existence; as, when a vendee expressly or impliedly represents that he is solvent, and intends to pay forgoods, when in fact he is insolvent, and has no reasonable ex- pectation of paying for them; or, being identified by the senses, and dealt with as the person so Identified, says that he is A. when in fact he is B. But when one of the formal constituents of illegal transac- tions is wanting, there is no question of rescission,— the transaction is void ab ini- tio,— and fraud does not impart to it, against the will of the defrauded party, a validity that it would not have if the want were due to innocent mistake. The sale being void, and not merely voidable, or, in simpler words, there having been no sale, the delivery to Clementson gave him no power to convey a good title to a bona fide purchaser. He had not even a defective title, and his mere possession did not enable him to pledge or mortgage. The considerations in favor of protecting bona fide dealers with persons In posses- sion, in cases like the present, were much urged in Thacher v. Moors, 13t Mass. 156, but did not prevail. Much less can it be allowed to prevail against a legal title without the intervention of statute. Ex- ceptions overruled. ROSS V. DRAPER. 661 ROSS et al. v. DRAPEa (55 Vt. 404.) Supreme Court of Vermont. Franklin. Jan. Term, 18*5. Replevin. Heard hy the court on the report of a referee, .Septetnl)er term, 1S.S2, Royce, (". J., preHlilinK. .Jurlgment for the defendant. Farrinuton & I'oHt, for plaintiff.H. .John I. (ileed, for defeoddut. ROSS, J. I. ThiH ia an action of re- plevin for a piano. The case was referred and came to the county c€)urt on the ref- eree's report. Such a juilKraent was then to he rendered upon tlie facts reported as any legitimate amendment of the declara- tion would admit of. An amendment al- leKintr that the plaintiffs were huHlinnd and wife, and that the piano was the property of the wife, would neither add a new cause of action nor n new [larty to the suit, an(i would bo permlssilde. The cause of action wouhl he the piano hoth before and after the amendment, and the right in controversy would he that of the two plaintiffs to recover it. If the |>ian() is the sole property of the wife, in an ac- tion at law the joinder of the husband as H co-pluintiff would be necessary. The bond was conditioned upon the right of the plaintiffs to have the piano delivered to them as against the defendant who had attached it as the property of a third person. Under the decisions of this court in regard to judgments on referees' re- ports, holding that the cause of action or subject-matter in controvei-sy is the foundation of the judgment, if the i)leail- ings can be so amended legally as to con- form to the facts reported, we entertain no doubt of the right of the plaintiffs to maintain the action, if the facts rPi)ortcd entitle the wife to the possession of the piano. 11. The controlling facts found by the referee are that in ISOi the wife's father bought the piano for her, and, in two or three months after, on the occasion of her attaining her majority, gave her a birthday party, and in the presence of the asMeml)le(l guests, took lier to the piano, toUI her tliat was her birthday present from him and that he gave it to her; that thereafter the family always spoke of it as lier property anil that she used and treated it as such ; that she re- mained at home until her marriage in IStJT; that she then went awa.v from home to live, and left the piano in her father's house, and never removed it therefrom, as 8he never had a suitable place to put it: that she visited her lather's house from time to time, stopping three or four months seven or eight years ago, and had been living in her father's family for the last three years and more, ami on all these occasions used and treated the piano as her own ; that the piano remained all this time in the house of her father: that her husband always treated It as her sepa- rate property; that in 1S77 it was at- tuchedandsold by theconsent oi herfather as his property unbeknown to her. but was not removed from his house. There la no fact found, save his cousent to lt« sale, that after the gift the father ever exercised dominion over the piano further than to store it In his house. The only question submitted by the referee to the court is whether these facts constitute a valid gift of the piano from the father to the plaintiff wife. We entertain no doubt on this i|uestion. The language used, as : well as the occasion, indicate :i clear In- tention of the father to pass the title of I the piano to the daughter, and as clearly her intention to accept the gift. There was, therefore, the making and accept- ance of the gift. He spoke of it, as did the family thereafter, us her property. .She useil and treated it as her property. This must mean that sheassumed and exercised the dominion of an owner, took and re- tained such pcissession us the nature of the pro[)erty admitted of, if capable of be- ing locked, took possession of the key, locked and unlocked it, used It heixelf. and dictated in regard to its use by others. It matters not that the property was of such a nature that she could not take it into manual possc-isiou, as shs couhl hare a watch, ring, or set <if jewelry. If the gift had been of eitlier of the last- named articles, and the referee had found that thereafter the daughterever used and treated it as her property: that the father and family so treated and spoke of it, although it had been kept in her father's house, and on her marriage and leaving the home of her childhood, because she had no suitable place to keep it she still left it there, coulil there be the least doubt It would be a i)erfected gift, that the owner would be the dnuuhter both as against the father and his creilitors? We think not. The law recognizes the fact that all species of personal property are not capable of the same kind nf pos- session, and it only requires the i>urcliaser or donee to take such possession as the character and nature of the property ad- mit of. in order to protect it against at- tachment by the creditors of the vendor or donor. Sanborn v. Kittreilge. '.11 Vt. (!:Jl': Hutchins v. Gilchrist. '.•;! \t. S'J; llirgo v lidgeiton. •J>< Vt. l.".U ; Fitch v. lUirk. :i.S Vt. r.s;!: sterling v. Haldwin. 42 Vt. :!ll. The property in contention was of that hulk.v character that forbids manual pos- session. The only possession its nature admitteil of consisted in its use and treat ment The treatment of an owner In- cludes acts of dominion and control. The property itself was such as is much more generally used by females than males unil for that reason more likely to be owned by the former. The occasion when the gift was made, especially in a country town, would give notoriety to the trans- action equal to a sale In market overt. It is to lie remembered that in these days it is not an uncommon thing for the wife and the chililren. while living at hon)e, each to have and ke<>p separate property in the common home of them all. It is not a matter of course, and no creditor has the right to assume, that nil the per- sonal property in the house belongs to the husband and father. It Is not uncom- mon for the ilnughters to have roouis sot apart lor their special use. furnished with 662 KOSS V. DRAPER. furniture purchased by, or giveu to them, nor for them to own Hewing machines or musical instruments. The facts reported do not show a joint possession of the piano by the fatlier and daughter during the two or three years she was at home after the gift and before her marriage, nor after tier marriage. Ho allowed it to be kept upon premises owned hy him. This was the extent of his use, control and acts of ownership, save alone his consent- ing to its sale on his debt some twelve or thirteen years after he had given it away, and this act was not known by the daugh- ter until long after it transpired. The attaching creditor, who was the pur- chaser at the sale, never took possession of it. The defendant attached it as the property of such purchaser. He found it not in his possession hut on the premises of the father, and in the possession of the daughter. He was bound to take notice of the fact that tlie property he was at- taching was not in the possession of the debtor, and was bound to inquire ot those I on whose premises and in whose posses- sion he found it, for whom they had the ] piano in store and in possession. Hild- ireth v. Fitts, .")3 Vt. GS4. lieing bound to I inquire, he and the creditor for whom he i was acting were affected by all the knowl- j edge that would be gained by such in- quiry. He would have learned of the gift, of the notoriety that accompanied the I making of it, that thereafter the father I and family spoke of and treated it as the I property of the daughter; that she al- I ways so used and treated it, and for over I two years before her marriage had it in I her personal possession, so far as the na- I ture of the property was capable of per-* ; sonal possession. The transaction was I natural, honest, notorious, and of long ! standing. There was no fraud in fact in- I tended or attempted. The property was j not in the possession of the debtor, hence no fraud in law. Judgment reversed, and judgment ren- dered for the plaintiff to recover nominal I damages and costs. ROWLEY V. HIOi:r,()W. 665 ROWLEY et al. v. BIGELOW et al. (13 Hck. 307.) Supremo Judicial Court of Massachusetts. Suf- folk and Nantucket. March I'J, 1S.'J2. Trover for Gl.'7 biislielH of yellow corn, valued ut ;">,") cents a IiuhIioI. At the tiial, before Wilde, .1., it vva.s jjroved by the plaintiff.s, that on the 24tli of May, ls:!IJ, the corn belonj^ed to them and waH in their imishpskIoi), in tlicclty of New York, on board the sloop Milnn, of which S. iJiuininy:, one of the pInintiffH, was master, and that it was ni(>aKun-d and delivered onboard the schooner Lion. They alle^^ed that one William N. Martin, a merchant there, fraiidnlontlv' obtained po.<)session of it by pretending to (nrchase Itfnrcasli; and it was proved that on the 25th of Afay he shipped it on board the Lion, consif;ue<l to the defendants at Bos- ton, and that thevessel sailed in the after- noon of that day for HosKjn. On the 2(ith, DnnniriK, havins ineffectually de- luandcil payment for the corn, at .Martin's countinK-hoiise, proceeded to Hoston to reclaim it. He reached Boston before the arrival of the Lion, anil <>ii tlie "J'.tth jji'^'e notice to the defendants, to whom by Martin's orders the corn was to lie deliv- ered, that .Martin had frandnlently ob- tained it from the plaintiffs, and that they intended to repossess themselves of il. On the :iOth. when the Lion had arrived in Boston hailiour, DnnniiiK boarded her and demanded of the master possession of the corn. Riving him notice that .Martin had obtained it fraudulently from the plaintiffs. The master notwitltstanding delivered it to the defendants ; after wliich DiinninR demaniled it of tliein and ten- dered them any freight or charnes w hich they had paid. They refused to deliver the corn, and thereupon the suit was com- ] nienced. j In order to establish the fraud on the' part of Martin, the plaintiffs r?lied on the; dei)ositions of (". A. .lackson and others, merchants in New York, who testilied that ' Martin had inacie similar pnrehases of them about the same time, and under cir- cumstances tending to show that he was insolvent, and that he knew it and had no reas()nal)le expectation of paying for the merchandise according to liiscontraet. The defendants objected to the admission of these depositions, but the Judge permit- . ted tliem to be read to the jury. ' The defendants, to establish their right to hold the corn against the i)laintiffs, of- fered in evidence a bill of lading, dated May 17th, In;1(), signed by the master of the Lion, purporting to tie for "Jdiill linshels of yellow c<irn shipiied by Martin and con- signed to the defendants ; iilso an invoice coiresponiling to the bill of biding and purporting to be for 20(Hi bushels of corn consigned to the defendants for sale on the shipper's account, and signed by Mar- tin: also a letter from Martin to the de- fendants, dated May ITtii (to which the bill of lading and invoice were annexed) advising that he v.'ilued on them in favor of Henry Beniien for .« lOiH). at ten days' i sight, anil tlirectiiig them, if he had valued toomueh on this shipment, to charge it to | some previous one. there being an exJHt- Ing account lietween .Martin anil the de- fendantH. And it was proved that a bill drawn accordingly by .Martin, wan ac- cepted by the defendants on the Ltjtii of May and paid by them at maturitv. There was no evidence that the" defend- ants had any knowledge of the fraudulent conduct of .Martin, but it appeareil that they ri-cBived the bill of lading and invoke and accepted the draft in the UHUal courHC of business. Upon this evidence the Judge ruled, that the defendants had a good title to the property notwithstanding the fraudulent conduct of .Martin, and notwithstanding the liill of biding had been signed before the corn was shipped; to which the plain- tiffs e.vcepted. A verdict was taken for the defendantB by consent; and if the whole court should be of opinion that they had a valid title to the corn, under the invoice and bill of lading, judgment was to be rendered upon the verdict; but if the court should be of oiiinion that the ruling was wrung, the verdict was to be set aside and the defend- ants defaulted, unless the court should also be of opinion that the depositions above mentioned were improperly admit- ted ; in which case a new trial was to be granted. Fletcher and W. . I. Hubbard, for plain- tiffs. Curtis, for defendants. .SH.WV. C. .1. The first i|uestlon arlRlng in this cause is, wliether the depositionH of .lai'kson and others, under the circum- stances, ought to have been admitted aa coni|ietent. These were generally persons, of whom Martin had made Himilar pur- chases, of like articles, abont the same time, and under circumstances tending to show that he was insolvent and had no reasonable expectation of paying (or the niercliandise according to his contract. The objection to this evidence is placed on two grounds, first, that these persotiH ha ving similar claims of their own, some of which are pending here, they have an interest in estnblishlng the fraud which they are called to prove; and sccimdly, that the transactions being res inter alios, have no tendency to prove the fact in la- sue in this particular case. But in our opinion, the ol>jectlon cannot be sustained u|ion either ground. ;\h Io tile lirst, it is unite clear, that the verdict and judgment in this case would not lie evidence in either of theirs; tliat their in- terest is in tiie iiiiestion and sulijivt mat- ter and not in tiic event of the suit, and therefore that the objection, such as it is, goes to the credit and not tothecompe- tenc.v of the witnesses. .\s to the other objection, we think tills evidence has a direct and material bearing uiuin tlie fact in issue. It tends to sliow. that at the time tills ostensible purchase was made, .Martin was insolvent, that he knew he was insolvent, that he had no rensonalile ground to lielieve that he could pay the cash and did not expict or intend to pay the cash for the merrhandi-e wliicii he pur- chased, and so that he olitained the goods by false pretcnccH. Thefact of insolvency. 666 EOWLET V. BIGELOW. of his kiiowledjie of his insolvency, and that he liad no expectation or intention of paying for the corn in question, is a mate- rial fact and the princi|)al fact in contro- versy on which this case rests, and is ma- terial to the issue. The evidence iK'ars upon tlie question quo animo, the Intent, the fraudulent purjiose.i :.'. It is next contended on the part of the plaintiffs, that no property passed by the fraudulent purchase of Martin, from the plaintiffs to him, so as to enable him to make a title to tlie defendants. The evidence clearly shows that there was a contract of sale and an actual de- livery of the goods, by their being placed on board a vessel, pursuant to his order; and tills deliver}- was unconditional, un- less tliere was an implied condition aris- ing from the usage of the trade that the delivery was to be considered revocable, unless tlie corn should be paid for, pursu- ant to tlie contract and to such usage. This contract and delivery were sufficient in law to vest the property in Martin, and make a good title, if not tainted b.y fraud. But being tainted by fraud, as between tlie immediate parties, the sale was voidable, and the vendors might avoid it and reclaim tlieir property. JJnt it depended upon them to avoid it or not, at their election. They miglit treat the sale as a nullity anil reclaim their goods; or affirm it and claim the price. And cases may be imagined, where the vendor, notwithstanding such fraud, practised on him, might, in consequence of olitaining security, by attaclui.ent or otherwise, prefer to affirm the sale. The consequence therefore is, that such sale is voidable, but not absolutely void. The consent of tlie vendor is given to the transfer, but that consent being induced by false and fraud- ulent representations, it is contrary to justice and right, that the vendor should suffer by it, or tliat the fraudulent pur- chaser should avail himself of it: and upon this ground, and for the benefit of the vendor alone, the law allows him to avoid it. The difference between the case of prop- ert.v thus obtained, and propertj' ob- tained by felony, is obvious. In the lat- ter case, no riglit either of property or possession is acquired and the felon can convey none. We take the rule to be well settled, that where there is a contract of sale, and cin actual deliver.v pursuant to it, a title to the property passes, but voidable and de- feasible as between the vendor and ven- dee. If obtained b.v false and fraudulent representations. The vendor therefore can reclaim his property as against the vendee, or any other person claiming under him an<l standing upon his title, but not against a bona tide purchaser ■without notice of the fraud. The ground of exception in favor of the latter is, that he purchased of one having a pos- session under a contract of sale, and iSee Bottomlev v. United States, 1 Storv R. 13.5; Bradford v. Boviston F. & M. Ins. Co. 11 Pick. IB'J; Rex V. Hough, i Russ. & Ry. 120; Rex v. Ball, ibid. 132; Rex v. Dunn, 1 Mood. Cr. Cas. 14(i; Rex v. Hunt, 3 Barn. & Aid. 566 ; Phillips & Amos on Evi. (8th Lond. ed.) 494. with a title to the property, though de- feasible and voidable on the ground of fraud; but as the second jiurchaser takes without fraud and without notice of the fraud of the first purchaser, he takes a title freed from the taint of fraud. Parker V. I'atrick, 5 T. R. 175. The same rule holds in regard to real estate. Somes v. Brevver, 2 Pick. 1S4. 3. Another ground is, that the plaintiffs had « right to stop in transitu, and exer- cised that right, in sufficient season, by demanding the goods of the master on his arrival at Boston, and before the goods readied the hands of the defendants. The right of stoppage in transitu is nothing more than an extension of the right of lien, which by the common law the vendor has upon the goods for the price, originally allowed in ecpiity and subsequently adopted as a rule of law. By a bargain and sale without delivery, the property vests in the vendee; but where, by the terms of snle, the price is to be paid on delivery, the vendor has a right to retain the goods till payment is made, and this right is strictly a lien, a right to detain and hold the goods of an- other as security for the iiayment of some debt, or performance of some duty. But when the vendor and vendee are at some distance from each other, and the goods are on their way from the vendor to the vendee, or to the place by him appointed for their delivery, if the vendee become in- solvent and the vendor can repossess him- self of the goods before they hare reached the hands of the vendee or the place of destination, he has a right so to do. and thereby regain his lien. This however does not rescind the contract, but only re- stores the vendor's lien ; and it can only take place when the property has vested in the vendee. ^ Without considering what would have been the effect of the bill of lading in de- feating the vendor's right tostop in tran- situ, had the place of destination been Boston, we are of opinion that upon an- other ground, the right did not exist in tlie present case. What does or does not constitute a journey's end, and the termination of the transit, may, in man.v cases, be a question of difficulty and has often been a subject of discussion. But here we think it very clear, that a deli\ery of the corn on board of a vessel apiiointed by the vendee to re- ceive it, not for the purpose of transporta- tion to him, or to a place appointed by him to be delivered there for his use, but to be shipped b.y such vessel, in his name, from his own place of residence and busi- ness to a third iierson, was a termination of the transit, and the right of the vendor to stop in transitu was at an end. Noble V. Adams, 7 Taunt. 59.3 4. It is contended that the defendants 'See Clay v. Harrison, 10 Barn. & Cressw. 99; James v. Griffin, 2 Mees. & Welsby, 632; Edwards V. Brewer, ibid. 379; People v. Haynes, 14 Wend. 566. 3 See Bolin v. Huflnagle. 1 Rawle, 9; Allan v. Gripper, 2 Crompt. & Jervis, 218; Foster v. Framp- ton, 6 Barn. & Cressw. 107; Townley v. Crump, 5 Kev. & Mann. 606; Buckley v. Furniss, 15 Wend. 137 ; Newhall v. Vargas, 1 ShepL 93. UOWLKY c. BIOKLOW. 667 were not purchoserH for a valuable conxld- ] eratioi) mid bona fide, ho hh to he entitled to the l)crii'lit of the e.\ce[)tion in their fa- vor. I5ut we are (jf o|iinioii tluit they do Btund in that relation, ami are entitled to the benefit of it. It appearH that they ad- 1 vaneeil, either in ea.sh or liy the accept- 1 anee of Niartin'n draftH in favor of third pernonH, to an amount e(iual to tlie value of the RoodH, and that after having heen (uriiLslied with liill of lading ami invoice ; and in flit; ordinary courwe of Idisincss. TlieKround upon which tlie plaintiffn rely [ iB, that at the time the hill of lading waH ' Bitined, the corn was not on lioard, and in fact, as appear.s by a coniparinon of datcH, had not been purduiHcd of the pluintiffH. This wan undoubtedly irre;;- ular; and if done by eollu.slon between Martin and the master to enable the for- mer to net money or credit on the bill of i ladins;, waH a Krcs.s fraud upon any iier- 1 son deceived l)y it. But it is not perceived ; how tlie plaintiffs can avail themselves of this, Bupposing it to be a frautl. A hill of Indins is a contract of carriage for hire, by which the master enjiajjces to deliver the !;oo(ls to the shipper or his order, and BO is <iuasi ucKotiable. It operates by way of estoppel anainst the master and also against the shipper and indorser. The hill of lading acknowledges the goods to be on board, and regularly the goods ought to be on hoard before the hill of lading is signed. But if, through inad- vertence or otherwise, the bill of lading is signed before the goods are on hoard, upon the faith and assurance that they are at hand, as if they are received on the wharf ready to he shipped, or in the shipowner's warehouse, or in the Bhip|)ur's own ware- house, at hand and ready, and afterwards they are placed on l)onrd, an and for the gooils embraced in tlie bill of lailing, we think, as against the shipper and inaHter, the hill of lading will operate on theHe goods by way of relation and by CHtoppel. It is asked, how lung after the Higna- tiire of the bill of lading property may be delivered on bo'ird, so as to he bound by it and become the subjirt on which It shall operate. We (lilnk. at any time whilst the vessel is taking in her cargo for that voyage, as describrd in the bill of lacling, and before she sails u|ion It. Here there was a time, when the bill of lading might have been [iroperly signed liy the master, namely, after the corn was <lellv- ered and before the veHsel sailed; and It is admitted that this was ri'ceived asand for thecorn mentioned in the bill of lading. And it can make no difference to the plaintiffs, whether the hill of lading was signed after this shipment, or a few days before. In an- ticipation of snch shipment. Supposing, then, that when the goods were bhipped, as against the shipper and master the bill of lading operated upon this property and would have bound the master to ileliver It to theconsignec, as we think It would, then by the uniform course and jiractice of mer- chants, the hill of lading repre*ents the property, and any bona fide title for valu- able consideration obtained liy a trans- missioii or negotiation of the bill of lad- ing, gives as valiil and effectual a title tu the goods, as could he obtained by an ac- tual delivery of the goods themselveu.* The defendants have shown such a title, and therefore the order of the court must be Judgment on the verdict. •See Allen v. Williams, 12 I'iik. 297. k HUllL V. CORNER. 669 RUUL et al. v. CORNER et ul. i gui-Ht of the 24th t<. Bend as a cur witboat (63 Md. 179.) Urnft to ((jver the niurt;mH on Hhl|iineDt8 now oil hiind. " Court of Appeals of Maryland. Feb. 12, IS8.V Corner nays in the tcHti'nonv he Hohl the Before ALVKY, C. .1., an<l YELLOTT. "''m, ".',!. ''"'/*''', '" t'^'-ru'Ty. ulthouKh STONE. >!ILLi;i{. HOIUN.SON, 1I{VIN(J. " V VVi J' '. """"fy '"'' "^'".'^ ^'*-"'"'"V niwi UKVAM II '"^ ""'' recelve'l no offerH, an<l iJoeH not '^" • npi.riHe him of a uale until the 4th of \V. Irvine Cross and John K. Cowen, for March, appellants. Joseph C. France and John The hill of ladinj;, though ismied on the J'reiitiHH Poe, for up|>eHee. ."lOtli of January, was dated back to the 21st of January to correspoml with the mVI.NG, J. the appellee l)einK a com- actual Hhipnuiit. This bill of ladiiiK in fii- mission nicrcliant In lialUmore. between vor of liuhl ii; .Son, with draft on tlieni for the inontli of AuKust, Ixsl, and the month ffil."., was presented bv .Merlon to the Se- of January, lSs2, received consiKninentrf curity Dank of .MiniKHota. and the draft of Hour from Oliver Merion, of MInneapo- was cuslied by the bank, which sent both lis, .Minnesota, for sale upon commission, bill of Inilin;; and draft to the Bunk of Upon the 21st of January, lsv.>, Merion Commerce in lialtimore, at which bank shipped to Corner & Co., without order, 1 Ruhl & .Son paid the draft and received In a car-load of "Cliampion" Hour, beiiiK one consiileration of such pa vment, via., the hundred and twenty-live barrels, by Mil bill of IndiuK tor the flour. AscertainlnB waukee and St. Paul Hailroad and Haiti- the tlour had been received bv Corner, ap- more and Ohio Railroad via Chicago. On pellants in the latter part of ivi.ruary, or the same day he wrote Corner & Co. ad- early in March, demanded pavnient for visiiiK of this shipment, and naininfr a the same; and the Haltimore and ohlo price at which Corner, his factor, should Railroad also in .March demanded the sell the same. No bill of lading was sent flour. to Corner & Co.; but at the time of the Cpon this state of facts the qucHtian shipment a shipping receipt was taken arises, who was entitled to this flour— the from the railroad for the flour, and that appellants, or the appellee? It is conceO- witli a draft on Corner & Co. for five hun- ed that no bill of UkHiiii or invioce was deed dollars was placed in bank for trans- ever sent to or received by Corner; where- mission to Baltimore, but was 8ul)se- as it is equally well established and not tiuently withdrawn, and was never sent, denied, that Ruhl <3c Son did receive a bill Sul)se(iuent to the shipment to Corner & of lading, and did pay n draft on them for (,"()., Merion received an order tor Hour ?til."i on it. from Conrad Rulil & Son of Baltimore. The appellants insist, that although the and decided to change the sliipment and flour was originally shipfied to Corner & to send to Kuhl & .Son this car of C.ur Co.. it was sosliipiied without their order, on their order. Accordingly, on the JJth and that afterwards, and while it was in of January, 1^S2. the railroad linvinn been the power of the shi|iper to doso. the con- noti(i(Ml, its atient at .Minneapolis tele- si;;iiinent was chuuKed. and the flour was graphed the CliicaRo agent to hold the car si Id to Ituld & Sons, to whom a bill of of flour, as Merion wished to clian«e the ladin;; and ilraft were sent, ani who (laid consignment to Ruhl & Son. On the :Wtli theref<ir. 'i'hey claim that title never of .laiiuary, the original receipt was Hiir- passed from .Merion to Corner ic Co., but rendered to the railroad agent at Minue- that it did pass to Ruhl & Son. The ap- apolis, and a bill of lading for the Hour pellants further and si rongly relied on the was taken out to Huhl & .Son. Tne agent act of lS7(i. chap. 2('i2. in respect to bills of on the 24tli had taken steps to hiive the lailiiig, and the effect of tin- possession address of Corner >V: Co. removed from the of such bills of lading upon title. But the car, and tt) have that of Huhl & Son sub- decision of this case does not involvean.v stituted. lie telegraphed to ("liicugo di- consideration by the court of thei'ffwtof rccting this change to lie made, but It was the net of isTG or what constructl:)n shall neglected, and the Hour came through to be given it: for there are well settled prln- Balliniore labeled for Corner i*i Co., and ciples establisliefl and acted upon In very was delivere<l to them; the Baltimore many cases, which will control the deci- agents of the railroad not being advised sioii of this case irrespective of any act of of the change ot destination, and Corner assembly. & C(». as yet, liaving received no informn. It is the well-settled law, that the ilellv- tlt)n of Merlon's change of purpose, unci ery of goods to a common carrier for one the actual consigninent, by bill ol lading, who has purchased and wlio has ordered to Ruhl & Son. The proof shows, that them, is a delivery to the purchaser, on the 21th of .lanuary. three days after though it does not amount t<i an accept- the shipment spoken of. but before Corner mice of them. I Benjamin on Sales, pp. knew of it, he wrote to Merion ad vising 1S2 and HI.".. But it is equally well settled, against furtkier shipments unless .Merion that where goods have lieeii shipped to cho.se to ship a ear of "Clematis" Hour, one who has not ordered them, title doP8 without draft, as the margins on the Hour not jiass to the consignee by delivery to still on hand were exh.nusted. On the the carrier, and the r'ght to change the 2(lth of .laiiiiaiy. Corner acknowledged consignment and destination during the the receipt of the letter telling him of the transportation reinaiiiH in the shipper: shipment of "Champion." promising it ami this is so far the manifest reason that should lie sold for the best prices. and say- there is a want of the essential element ing, " we note you havenot made draft on of mutual assent to constitute a contrnct this car, as if" in anticli ation of our re- ol sali-. So that in all rases w here goodn 670 RUHL V. CORNER. are shipped upon the account of, juid at the risk of, the shipper, this right remains in him. The Francis, (Boyer, Master.) 5 Cranch, 418; Mitchel vs. Ede, et al., 11 Adolphus & Ellis. SS8; Scothorn vs. The South Staffordshire Railway Co., 8 Exch., :U(); 3 Condensed Rep. U. S., L'4."), and notes; Elliot vs. Bradley, et al., 23 Ver- mont, 217; Hodses & Co. vs. Kimhall & Fariisworth, 4!l Iowa, 577; Hutchinson on Carriers sees. 134 and 337; Blanchnrd, et al. vs. Page, et al., 8 Gra.v, 285; and Walter vs. Ross, 2 Wash. Cir. Ct. Rep. 28(i. In this last case of Walter vs. Ross, the subject was fully considered, and .ludse Wasliington says, "the factor has no in- terest or property in the goods beyond his commissions, and, of course, cannot con- trovert the right of his principal. If, in- deed, ho be a creditorof the shipper, he has a contingent interest in virtue of his right of lien which the possession would give; but for the perfection of his right he must acquire and retain an actual possession of this property — constructive possession will not do." The same principles a re declared in Gros- venor & Starr vs. Phillips, 2 Hill, (N. Y.,) 147, and in Bank of Rocliester vs. Jones, 4 Comstock.500. In Boiiner, et al.vs. Marsh et. al., 10 Sm. & Mar., 37G: Chaffe vs. Miss. 6 T. R. R. Co., m Mi.ss., 185; Woodruff vs. Nashville and Chattanooga R. R. Co., 2 Head, 87, and several other Tennessee cases, the law is laid down more strin- gently, as against the factor, than the weight of authority justifies. There can be no doubt, upon the weight of authority , that if the factor havecluims foradvances against his principal, and it be expressly agreed, that goods shall be 8hi|)pfd to the factor to pa.v tho.se advances, tlien, in such cases, the law makes the delivery to tlie carrier a delivery to the consignee, though a factor; and the appellee's counsel en- deavor to bring the appellee within the operation c^f this rule as laid down in Bai- ley and others vs. Hudson River Railroad, -1!) N. v., 70, and Straus vs. Wessel, 30 Ohio State Rep., 211. But those cases are not analogous to the present one. In Bailey's Case it was decided that title had passed. The court said that the plaintiffs in that case "occupied the legal position of vendees after having paid the purchase money and received delivery uf the goods." It is true, the court says, in ad- dition, that it is not necessary to hold in that case that the plaintiffs occupied the position of vendees strictly; but still the decision is wholly based on the ground that "the actual agreement and transac- tion proved by two members of the firm, and uncontradicted, i)revailed." It was because of the agreement expressly proved that title was held to have passed to the consignee on delivery to the carrier, and in that way the shipper's right to change ctinsignment and destination was lost. The court say in that case, the goods were not sold outright to the consignee at specihed price, but they were by agree- ment sent to him for sale, and that the proceeds should be aiiplied to the payment of tlie debt ; creating thereby the quasi re- lation of trustee, to whom, for the pur- poses of the trust, the title passed. In Straus vs. Wessel, 30 Ohio Slate, 211, the advances had been made on the partic- ular lot of pork to be shipped, which, by express contract, was shijjped to pay the indebtedness; and it was held, that under these circumstances, the delivrr.y to the carrier was a delivery to the consignee, who, the court say, in sucli case, is in the 'position of purchaser, having paid for the I goods. If the present case by the proof, meas- ured up in its facts to these last consid- ered cases we should think the delivei'y complete so as to pass title unless the act of ls7li interposes an insuperal)le l)ar- rier to such a view, which the necessities of this case do not require us to consider. ! According to the facts of the case, which are undisputed, we think it very clear that there was no intention in the orig- inal shipment to pass the title out of the ' shipper , which. Judge Church says, in Bailey's Case, already considered, is the true test to l)e ajiplied. There was cer- tainly no contract that the flour should be shipped to pay the margins or advances on account of the goods still in Corner's I hands and unsold. The flour was snipped ' without order from Corner & Co. Thelet- ter advising Corner of the shipment and naming the price at which he was to sell, bears evidence of its being an unsuggested shipment, and that Corner had been writ- ing despon.lingl.v of Hour prosiiects. Not a word was said in the letteral)out de- signing that shipment to pay former ad- 1 vances; and we are warranted in suppos- ing he did not know that the margins on I the flour still in his factor's hands were ex- i hausted ; for it does not appear that Cor- : ner & Co. ever informed him, until he did so by the letter of the 24th of January, at which time the flour was on its way to Baltimore, and could not be received until some da.vs afterwards. In fact, the prr)of shows that Merlon thought a considera- ble balance was due him from Corner & j Co. on the previous shipments. Ah al- ' read.v stated, when the flour was shipiied to Corner & Co., a draft for $'>{)i) was : drawn and put in bank for transmission : to Baltimore for presfntation to ('orner 1& Co., but it also appears it was subse- (piently withdrawn and was never sent, because Merlon had received an order from C. Rnhl &: Son for flour, and deter- mined to change the consignment, and send this tlour to Ruhl & Son instead of to Corner & Co. The Chicago railroad agent was telegraphed by the .viijima/io- I lis agent to hold the flour for this cliange to be made Itefore C.)rner & Co. sent their letter of the 24th of January, suggesting there was an exhaustion of margins, and if any Hour should he shipped, tliat it t)e shipped without draft. It is clear, there fore, there was no mutual assent between .Merlon and Corner «& Co. to the flour be- ing sent by Merlon to Corner & Co. to iiay for previous advances on former orilers. Without such assent, of course there was no contract. Unfortunately, the carding of the car, by the neglect of the railroad or of Merion, was not changed, and the flour came thi-ough to Baltimore, and was delivered to Corner & Co., and this complication has produced all the RUHL V. COKNEU. 671 trouble. If the fluur whh Morion'B when CoruiT received it, of coin-He (Vomer's lienH for previoiiH iiilvniices would at once nt- tacli, and Merion would have to pay them to releaHc the flour; but if, on the other hand, Merion had, while the Hour waHin transitu ami at IiIh risk, parteil with the title, and the Hour waH no lon;;er IiIh, the lieuH of Corner & Co. would not and coulil not attach. We have seen that when the Hour waw Hliipped it wmh went to Corner without order, and the carrier whh Merion'H ajjent and not Ciirner's; anil that nothintr afterwardH occurred to chaiiKe the relation of the carrier and nialie it the a«ent of Corner & Co. iH clear; for the sale to Hiihl ic .Son was made be- fore (,'oriier & Co. had ever made their propoHition of the LMtli of .Januiiry. Sup- poHe, iiiHtead of the Hour beiiit; received by Cornel' & Co., it had been received by lUihl & Son. could Corner & Co. have niiiintaine<l replevin or trover for the tlonr? It certjiinly could not lie contend- ed, upon the proof that the.v could. Il'not, then Corner & Co. had no title, iuid Itnlil & .Son hacl acipiired title and the ri^ht to Hue (,'orner & Co. If Corner <Sc Co. have been niiwled to their injury, they must look elsewhere for redress. What the law or c()uit.v would do, if the controversy woH between Merion and Corner & Co., must not l)e considered todivert the mind from the rights of Huhl »t Son. The court below erred in trrnntinj; the defendant's prayer. It is entirelj' at vari- ance with the law of the case, as we have declared it. The first prayer of the plain- tiff wascorrect in principle, but it omitted some of the facts necessary for thejur.y to find. It oiiKht to have submitted to the jury to find the fact, that tlie oriiiinal shipment to the defendant was without Ills order, and was sent without bill of huliuK and actual draft on Corner & Co., and that before Corner & Co. received the flour from the carrier, the sale was made to Kuhl it .Son. When these elementH are incorporated in the prayer.it will lierisrht. The second prayer was correctly refused, for it submits u question which, under our view, the jury hod nothing todo with, inasmuch as the factor's authority wa» revoked by the sale to Kuhl & Son. It was unuPcesHary. The third prayer waH correctly .-r-Iused, forit clnirnM as the meaH- ure of (lamaKCH that which bebrnKS to the action of trover, and not to the form of action adopted liy the plaintiffs. In the action of assumpsit, in the alisence of proof of actual sale of the (fooiN to the defendant the plaintiff can only recover for the moiwy had and received from the sale of the Hour to the use of the plaintirf. The prayer was therefore InconslHtent with the form of ocllon. 'I'he iiueslion raistMl by the first Idll o( exception needs no discuMsion. The proof tenilered was wholly Immaterial, and witlwjut bearing upon the issue. 'I'he pre- vious admission of irrelevant testimony, without objection, did not render its re- buttal competent. There wns, therefore, no error in its rejection. The objection which has been raised by the appelle(>'s counsel, that the llrst and second bills of e.xceptionnrenotsiilllclently connected, l>y apt InnKuaKe, to entitle the court to look at the evidence in the firat bill of exception, for the purpose of deter- mining; upon the correctness ni the court's rulings upon tlie instructions, cannot bo maintained. .Ml the evidence was In, and the prayers wore not Intemled to be mere abstractions. They were offered with ref- erence to the proof, as their lorin shows. The most appropriate laiiKuatre Is not used for connecting tlie two bills of excep- tion, but we regard it asentirely siiHlclent. The case is simibir to and covered by Hal- tiinore and Ohio l!ailroa<l Company vs. State, usi' of Fryer, .'iO .Md., -17. The Inn- jruaf^e used is. "all the testimony beiiic In. the plaintiffs offered the fcllowlnR prayers." Heference to the testimony re- cited is manifestly made. It is eipiivalent to sayiuK " tlicre bein« no othi-r testimo- ny," or "this being all the testimony." The intention is too plain to he dlsrc- ijarded. .Judgment reversed, and new trial awarded. RUI'I.KV V. DAOCKIT. 673 RUPLEY et al. v. DAGGETT. (74 111. 351.) Supreme Court of Illinois. Sept. Term, 18T4. Replevin LroiiRlit l)y John F. DdKRett OKJiinHt Aliriiiu Itupley and .Iiiciil) liupley ti) recover a mare wliicli tlie defenilanl.s clainuMl tliey liail b(>ii»;lit of the pluiatiff. At the first con ver.siition about tlie mare, Hiiplcy asked tlie piice. the plaintiff swear- ing' that he icplled fKif.. while the defend- ant testilied tliat he said *(;.'i. Inthescc- ond conversation Itupley Hays lio told DaKKett that, if the mart! whh as repre- senti'd, they would f^ive ¥(i."i, and DaKKett said he would take liim down next morn- ing to see her. Dajmett testified tlial lUipleysaid toliim."l)id I understand yon Hi.\ty-live'.'" and tha; he supjiosed Itupley referred to the fraction of tlie $101), and meant $!(!.') as named at the previous in- terview. He ansvvered, "Yes, sixty-live. " Hotli parties theu supposed tlie jiriee was ti.xed, Knpley supposing it was .IKir), and ItaKnett KupiiosiiiK it was $]ii'). The iie.xt day Hupley siiw tlie mare, and took lior home. Jiidguient tor plaintiff, and de- fendants appealed. lA'llowsA: Leonard, for appellants. Hill & Diliell, for appellee. St'OTT, .1. It is very clear, from the evi- dence in this case. tlier(> was no sale of the property niiderstaiidia;;ly made. Appel- lee supposed he was sellint; for .^Uir). and it may lie appellant was eijually honest in the belief tliat ho was buyiiiK "t the price of .UI'm. There is, however, some evidence tendliiK to show that apiiellant Ifnpley i did not act with ontiro y,ood faith. Ho ' was told, before he removed the mare frtim appellee's farm, there must be some mistake as to the price he was to pay for her. There is no dispute lliis information was given to him. Ho insisted, however, ' the [irico was $6"j, and expressed his belief he would Ueei) her if there was a mistake. I On his way home with the mare in his' LAW SALES— 43 [losBession, he met appellant, bnt never intimated to him he had been tidd there iiii«ht be a misun<letHtaiidlnK us to the price he was to pay lor her. TIiIh he ouKht to have done. HO that. If there had been a misiinderstaiidbit; between tlierii, it eonld be corrected at oni.c ]f the price was to be ?l(;."j, he had niver agreed to pay that huiii, and was iinib-r no sort of obli);ation to keep the property at tlint price. It was his pri\lle;;e (o return It. On the contrary, appell-e had never agreed to sell f.ir ?r..'.. and could not bo compelled to part with his proiierty for a less sum than he chose to ask. It is ac- cording to natural justii'c. where there Im a mutual mistake in n-;;,ird to the price of an article of jiroperty, there is no sale, and neither party is liounil. There has been no meeting of the iiiinds of the con- tracting parties, and hence there can be luj sale. This princi[>le is so elementary it needs no eitatimi of authorities In its sujiport. .\ny other rule would work In- justice and might compel n person to part with his property without his consent, or to take and pay for property at a price he had never contracted to pay. There was no error in refusing Instruc- tions asked by appellants. Therourt was asked to lidl the jury if they lielieved.froni the evidence, ai'pi llee had "sworn wlll- fnlly and corruptly false in any material portion of his testimony, then they are nt litierty to disregard his entire ti slimony. except so far as it may l>e corroborated by other evidence In the case." '"onced- ing this instruction states a correct ab- stract principle of l,iw, tliere was no ne- cessity for giving it under t!ie facts proven in this case. The verdict was right, and appellants were not prejudli'ed by the refusal of the court to give it. .Ml that was pertinent to the Issues in the other refused instrnetions was con- tained ill others that were given, ond there was no necessity for repeating It. No material error appearing in the rec- ord, the judgment mnsl be allirmcd. .ludgnienc atllrmed. .>. I SAFFOIil) V. McDOXOrCH. 675 SAFKORD et ul. v. McUONOUUU. d'iO Mass. 2'J(i.i riupreme Judiciul Court of MuBsachusetts. Suf- folk. May 6, ItsiG. T. H. SweetHer and B. F. HnyeH, for plaintiffrf. S. A. U. Abbott, for (Ic-feiidiiiit. MOUTON. J. TliiH is nn actliiii of con- tract to recover the price of a i|iiaiitity of Icatli'T, C'XCcediiiK lil'ty i|i>llar.s in value, alleged to lune lieeii sold l)y tlio plaintiffs' to the defendant. There w.iw no ineii-.D- randum in writing of theconti'act, and the purchaHcrdid noty;lve atrvthinj;' la earucHl to bind the barnnin or in pai't pay inent. It appeared on fhe trial that the defend- ant on -May 17, IsTl', went to th" plain- tiffs' Ktore and auroed to purchase the lenthi'r at the price nanieil, to he paid for l)y a satisfactory note. On the thirty-lirst <lay o! the Hnaie inoiitli, he a;;ain went to the plaintiffH' Htorc, exanuned the leather, had it weifilieil, marked with the initials of his name, and |)iled tip by itself, to be taken away by him upon ;;ivinK a satisfactory note for the pi ice. or the payment of the price in money, but not otherwise. He never complied with the terms of the ajj;reem"nt. The i)laintiffM refused to al- low him to take the leather from their Mtore without such compliance, claiming; a lien upon it for the price due. U remained In their store till November',), ls7i>, when it was burnt with the store. Fpon this evidence the presiding' justice of the supe- rior court ruled that the leather had not been so accepted and received by the de- fendant as ti> take the contract out of the statute of frauds, and the plaintiff ex- cepted to such ruling. It should be kept in mind rlint the ques- tion is not whether, if a valid contract of sale upon the terms above named had been proved, the title in the property would have passed to the defendant so tliat it wonid be at his risk. In such a case, the title would paps to the pur- chaser unless there was some agreement to the contrary, but the vendor woidd have a lien f<<r the i)rice, and could retain |)ossession until its payment. Ilaskins v. I Warren, ll.'i Mass.,')14. Morse v. .Sherman, lot) Mass. 4;!(l. Townsend v. Ilar)»raves, 118 Mass. 325. But thequestion Is whotlierj the defendant had acce|iled and received the Koods, HO ns to take the case out of the statute of framls, ami thus complete and make valid thcoral contrail relied on. rnless there was such acce|)tance and receipt, there was no valid contract by virtue of which the title to the >;ooiIh would pass to the defendant. To constl- tiite this, there UHist be a delivery by the seller, and Home uneiinivocal acts of inpii- erhhip or control of the (.'ooiIh on the pait of the purchaser. Kiduht v. Mann. lis .Mass. U:!, and cases citnl. In till' caKe at bar. there was no actual acci'ptance and rei-cipt of the ^o^ids by the defendant. They w<-re never In IiIh poH- session or control, but ririiained in the possession and contnd of the idalntlffs, who refused to allow him to take tlicni, claiming a lien for the price. If they had and asserted a lien as vendors, this Ih in- consistent with the delivery of posHeHsioii and control, necessary to constitute an acceptance anil receipt by the vendee. In Haldey v. Parker, L' W.ic V. :f7, 44, Molroyd, .).. says; "Upon u hhIu of specific kooiIh for a specific price, by parlin;; with the possession the seller parts with hiH lien. The statute contemplates such a parting with tlie possession, and therefore, uh lor!;r as the seller prcHerven his contrrd over the kooiIs, so as to retain his lien, he prevents the vendee from acceptini; and receiving them as his own within the meanini; of the statute." Benjamin on .Sales. (.\n). edl l."d, and cases cited. lii'owiie on St. ol Frauds, J :tl7. It is tr\ie there may be cases in wlilch the h;ooiIs remain in the possession of the vendor, and yet may have been accepted and received by the vendee. But in such cases the vendor holds possession of the jioods, not by virtue of his lien as vendor. I)ut under some new contract by which the relations of the partien are changed. • 'nsack V. Hobinson. 1 B. & S. I'l'J), .■(1)8. Castle V. Sworder. ti H. & N. 828. Dodaley V. Varley, 12 A. & K. Ii.t2. In the case at bar, the vendors refuaed to permit the vendee to take possession or control of tlieKoods. but claimed and na- serted their lien as vendors for the price. We are Hierefore of opinion that the rul- xna of the superit)r court was correct. Exceptions overruled. KNDICOTT and I.ORD, J J., absent. I SALTUS V. EVEIIETT. 677 SALTUS et al. v. EVERETT. (20 Wend. 267.) Court of Errors of New York. Dec. 1838. Error from the supremo court. • Everett Urounlit nii action of trover in the Hiipcrlor court of linv of the city of ,\c\v-Y()rU a^uiuMt Muhhth. SalluH, for u quiuitity of leu<!. In Au;;ust, ISL'.'i. liriclKe & VoHe, luerchantH al New-Orh-aiis, shipped 17!) piKH of lead on lioai-il tlie UriK IJove, ot whicli Wllliain ("ollin.s waH iiiaH- ter, consi;:iieil to .MesHrH. TiiflK, ICieieth. & IJ;irrell, of .New- V(irl<, on account and riyk of OtiH ICvcrett, the plahitilt, to whom they were rcferreil for instructions. The Dove put into Nctrfolk'in diHtress. and part of tlie lead was sold to pay e.\pen«es, and the residue was transferred in Decem- ber, 1.S2.'), I)y an ;i(jrent of ('apt. Collins, to the schooner Dusty Miller, Captain .lohn- Hou, wlio sinned a liill of lading', acUnowl- edKinj? tiic lead to have been shipped by F. M., uKent for William Collins, and promising to deliver the same in New- York, to order, on payment of freight. The Dusty Miller met with a disaster on her voyage to Xew-York, and on her ar- rival there, the lead, by the order of ('apt. Collins, was delivered to the hrm of Collin & Cartwrijjcht, who paid the freijiht, and $7-'.n7, the averajic contribution, eharKed upon the lead, for the loss occasioMe(l by the disaster to the Dusty Miller. On tlie '.ith March, ISl.'!!, Collin & Cart Wright sold the lead to the Messrs. .Saltus, the defend- ants, for «."j4l'.74, and received payment. Tlietreisht of the lead from .New-Orleans to New-Vork, amounted to.'J14.72. Everett broiijrht an uction against Collin .Si Cart- wri!j;iit, to recover the value of the lead, but was nonsuited, in failinf; to prove that before suit lrouKht,he offered to pay the freiiiht, average and charges to which the lead was liable, and which had been advanced by .Messrs. Collin & Cartwri«ht, and this court, on application, refused to set aside the nonsuit. (See (> Wendell, (iUo.) In October. iNIil, the plaintiff den.anded the Icail of the Messrs. .Saltus, and offered to pay any la w fill demands they had on the same; to which they answereil. they would have no further communication on the subject. It was proved that in March, ISL'C, one of the linn of Tufts, Eveleth, i^i Ituirell demanded of the Messrs. Saltus, the lead, or its value, and receiveil for an- swer, that they had bought the leail, ami paid for it, and would not do anythiriK about it. Upon this evidence the jilain- tiffwasn^ain nonsuited. Wher-.Mii)on ho sueil out a writ of error, removiiifi the record into the supreme court, where the judgment of the superior court was re- versed. See opinion delivered in the su- preme court. (!.") Wendell, •17.'i, ct sei).) The defendants then removed the record into this court, where the cause was ar- Kued by T. T. Payne, for plaintiffs in error. T. Sedawiek,".Ir., and S. I*. Stai)les, for de- fen(Iunt iu error. By the CHANCICl.EOH. The plaintiffs in error were not entitled to the goods in question on the ground, that they were the [ purchasers thereor without notice of the rights of the real owner; they were In the same situation in this respect us every other purchaser of goods from n person I who hail no authority to hi-II. If the owner of the goods hiitj caused the bill of lading to be made out in the nnmo of Col- lids.sd as give him o jirinia facie right to tho gooils as owner, or coiiHigntH? for his own benelit, Ji bona fide purchaser might liavo been entitled to prutectlon. The principle adopted in the case of .Mi)wrey v. Walsh, (S ' 'o wen, L':{S), might be applicaole tosurh a case; but here the change of the lilll of hilling itself was u fraudulent act on the [i.irt of the iiiMster of the vessel, or liis agent, and could not deteat the right «if the owner ot the goods svho had not au- thorized any such change. 'I'lie hill of lad- ing is, by the custom of inerchantM, trans- ferable, so as to vest in the assignee tho title to the goods which the assignor lind in tliem ; but if a person without author- ity from me ships my goods jiiid takes u bill of lading in hi-i own name, lie cannot, liyassigniig that bill of lading to another, ilivest my title to the property. If by tho perils of the sea, or otiierwise, the master of the Dove was unable to continue the voyage, and he was obliged to send on the cargo by another vessel, he liad no right to change the consignee of the iioods; and if lie wished to retain a lien upon the goods for the freight pro rata itineris, he should have done sn by n special clause in the new bill of lading. In this case tlie umiuthorized sale of the goods in the port of .New-York, liy the master of the Dove, was probably such an act as would now be a felony, under the provisions of the Uevised Statutes proliil.iting carriers of goods, delivered tothein to lie transported for hire, from embezzling the goods orcon- vertiiig the same to their own use: and even at the time when this tran.saction tool; [dace, no rights cnuld be acquired by thill) parties, as against the owner of the goods, liysuch a fraudulent act ot the car- rier to whom they were entrusted for carriage or transportation mcn-ly. The question does not arise on this writ of error whether tlip Messrs. Saltus by the pui'idiase were sulistltiitcd in the place o( Collin & Cnrtwriglit as to the Ilea upon the goods for the freight iiald by tlieni to the master ot the Dusty .Miller. II there had nor been an actual conversion of the goods liefore the coininencenient of the suit, the question would arise whether there ever was a lien which the pur- chasers from Cntlin & Cartwright cnuld claim the benelit of; and, if such Hen ex- isted, whether it had not been waived by putting their cinlni to retain the goods upon other grounds. It appears, how- ever, by the evidence, that the plainlifTs in error hiid actually converted the goods, bv selling them on the d;;y of their pur- chase; and if they once had a lien which wouhl have reliutted the presumption of n conversion, from the meiv fact of n-fusinK I to deliver on demand, when the amount of the lien WHS not tendered or offered to ! be |iaid, a tender aftir they had put It out ' of their power to receive the money and I deliver the goods, by an actual sale, would linvc been a useless ceremony, and was 678 SALTUS V. EVERETT. not necessary to enable the owner of the ' prcjods to recover hi nn action of trover. In HiK'h a ca.se, if there was a valid lieu in favor of the defemiarits liefore the conver- sion, tliey would be entitled to be re- couped in the dnmase, to the extent of such lien : but they coulil not deleat the plaintiffs' action altogether. The l)ill of ladins signed by Collins at New-Orleans was only [)riiua facie evidence that the consignees were the owners of the pro|ierty, and the letter of Bridge & Vose, the shippers, which was sent to the consignees with the bill of lading, was sufficient to rebut the [jresumption and to show that the [iroperty really belonged to Otis Everett of Roston, in whose name the suit was brought. Hcsides, oue of the consignees was examined as a witness, and iH'oved that Everett and not the con- signees at New-York, was the real owner of the goods. I have no doubt, therefore, that the judgment of the supreme court was i-orrect, and that it ought to be affirmed. By Senator VERPL.\N("K. This cause, though of small magnitude as to the amount of property in question, has lieen contested in various forms through all the courts to this tribunal of last resort. The spirit of contentious litigation ought to find little favor here; yet in this instance, I think, the parties have de- served well of the public, because the main question in thecase Is of great importance, and must frequently arise in a commercial community. It ought, therefore, to be distinctl.v settled on principles of general application. That those principles are not very clearly settled in our state, we need no higher evidence than the manner in which the cause now comes before us. Thesui)remecourt havereversed the unan- imous decision of the superior court of law of the city of New-York, and on the broad principles governing the questions which we are now to decide, there is a direct contrariet.v between the opinions of our highest court of common law and those of our most eminent commercial tribunal, as delivered by their chief jus- tice, vvho was formerly chancellor of this state. The main question depends upon and inv<»lves the general rule that ought to govern, bet ween the conflicting rights of bona tide purchasers of personal property, bought without notice of any opposing claim, and those of the original owner, divested of the possession or control of his property by accident, mistake, fraud, or misplaced confidence. The original owner now claims his lead against purchasers who bought for a fair price, in the usual ' course of trade, from jiersons holding the usual evidence (»f such property, (a bill of lading endorsed to them,) and in actual possession of the goods. Of these two in- nocent parties, which of the two is to bear the loss arising from the wi'ong do- ing of the third? [ The universal and fundamental princi- ple of our law of pc'sonal property, is, that nt) man can ne divested of his prop- j erty without his own consent; and, con-' sequently, that even the honest purchaser under a defective title ca.nnot hold against the true proprietor. That "no one can transfer to jinother a better title than he has himself;" is a maxim, says Chancellor Kent, "(ilike of the .■omnion and the civil law, and a sale, ex vi termini, imports iiothing more than that the bona hde pur- chaser succeeds to the rights of the ven- dor." The only exception to this rule in the ancient English jurisprudence was, that of sales in markets overt, a custom which has not been introduced among us. "It has lieen frequently held in this coun- try that the English law of markets overt had not been adopted, and consequently as a getieral rule, the title of the true owner cannot be lost without his con- '-ent." r2 Kent's Comni. 324, and cases there cited.) To whatever and however numerous es- ce[)tions this rule of our law may be sub- ject, it is unqucstionahy the general and regulating principle, modilied only liy the absolute necessify or the obvious policy of human affairs. The chief justice of the superior court has said, in his o|)iuion on this case, that "it must be conceded that a purchaser for a fair and valuable con- sideration, in the usual course of trade, without notice of any conflicting claim or any suspiciouscircumstances to a v\ aken inquiry, or to put him on lii.s guard, will, as a general rule, be protected in his pur- chase, and unaffected by any latent claim. But there are exceptions to this rule." Now, 1 cannot agree with thelearned chief justice that this is the general rule. On the contrary, I think it obvious that it is hut the broad statement of a large class ol exceptions to the operation of a much aroregeneral principle, and that statement of exceptions is subject again to many limitations. I havestated thegeneral and governing law; let us now see what are precisely the exceptions to it. The first and most remarkable class of these exceptions relates to money, cash, liank bills, checks, and notes payable to the bearer or transferable by delivery, and in short whatever comes under the general notion of currt^ncy. It was decid- ed by Lord Chief Justice Holt, at an early period of our commercial law, that money and bills i)ayableto hearer, though stolen, could not be recovered sifter they had passed into currency; and this "by rea- son of the course of trade which creates a property in the holder." "They i)nss by delivery only, and are coiisiilered as cash, and the possession always carries with it the property." (Anon., 1 Salk. IL'6.) A long series of decisions, beginning with Millar V. Race, (1 Burr. •452.) has now set- tled the law, that possession of such paper is presumptive proof of property, and that he who recei\ed it in the course of trade for a fair consideration, without any reason for just suspicion, can hold it against the (rue owner, and recover on it against the drawer, maker, and other par- ties, even if the paper had been stolen from or lost by the former holder; such lormer holder retaining all hisoriginal rightsonly against the thief or the finder, or whoever received the p'aper from them under sus- picions circumstances. These decisions have lieen argue<l upon as authorities (at SALTUS V. EVEUETT. 679 IcHHt in tlie way of analofi.v t both at Imr and ill opiiiioriH of tlip coiirtH. in cnscs iii- volviii;r tlu; sniuc <jiit'Hti<jii hh to kooiIh or utliur iiiovtilile inopcrty. Hence, it ivas Inferreil that jiooiIk lioimlit or received " in til? cuui-HU of IrucJe, island on tlie Hiiiiie footins: witli hank iiotew or clieckH ro re- reiveil." But an exaniiiiation of the caueH will hIiow tluit tlii« part of tlie law of ne- Ifotiahle paper rests on uroiindH quite pe- culiar to itseli, for tlic folio wiiiji reaMiiiK: 1. The protection oi the liona fide holder of reaper, transferalile liy delivery, extends even to cases where the paper has been lost or Htoleii. lint it has l)een often de- cided that loss by accident, theft, or r(d)- bery.does not divest the titleof the owner of lioods. nor nive a title in them to a fair after piirdiaser. '2. The rule is jmt by all the authorities on the express and sepii- rate Kronnd of the necessity of sustaiiiiu'; the credit and circulation of the currency. Thus Lord t'hief Justice llardwicke: "No <lispute oimht to be niaile with tlie holder of n cash note, who came fairl.v by it. for the sake of currency, to which discreditiiiu such notes woulil be a Kreat ilistiirbance. " See, too, the reasoniiif^ of Lord Mansfield, in »\l cases on this head decided before him. Thus, says he, in the case of a stolen Hole, Peacock v. Uliodes, ( l' l)ou;i. (!:{i; : ) "An assignee must take tlie thiiiK assigned, subject to all thoe(jiiity to wliicli the oritJ- iiial party was subject. If this rule was applied to bills, it would stop theii' cur- rency." Similar reasons are assigned for the same decision by .American jinli;es. ;j. The analogy between notes and movables or poods, is expressly denied in the lend- ioK I'ases on this head. Thus, in rnply to an arfiiimeiit founded on that siiuilarit.v, l>oril Manstielil answers, (.Miller v. Kace, 1 I'lirr. 4.')7 : 1 "The whole fallacy of tlie ar- cuiiient rests upon conipariii}; bank notes t<i what they do not resemble, and what they oufilit not to be comiiared to, viz., Koods, or securities, or documents for debts. Now, tliey are not sjoods. nor se- curities, nor similar to them; they are treated as cash to all iiurposes,' &c. Setting wholly aside, then, this part of the law as to cash, l)aiik n<jfes, and bills to liearer, as founded on the peculiar ne- cessities of curreiic.v and traile. and regu- lated by rlecisions and iisa^res peculiar to itself, what rules do we liiid to obtain in other instances of conllict between the ritfhts of ori;;iiial owners and those of fair purchasers? .After a careful examination of all the English cases and those of this state, that have been cited or referred to, 1 come to this H;eiieral conclusion, that the title of propert.v in ttiinns movable can pass from the owner only liy his own consent and voliinlary act. or l)y opera- tionof law; liut that the honest purchaser who buys for a valu.-ildi' considt ration, in the course of traile, without notice of any ailverse claim, or any circuii:staiices which niiiiht lead a prudent man to suspect such adverse claim, will be protected in his title auaiiist the original owner in those cases, and ill those oiil.v. where such owner has by his own direct voluntar.v act conferred upon the person from whom the liona tide vendee derives title, the apfiarent right of property as owner, or of disposal asanoppnt. I llnl two dlntlnct cliissen of cases under tliis head, and no more. I. The lirst is. when the owner, with the intention of sale, has in any way parted with theaclual property of his poods, with his own consent, thoiiph iimler such rlr- ciimstances of fraud or error, as would make that consent revocable, rescind the sale, and authorize the rei-over.v of tlie poods as apaiiist such vendee. liut It the pr<u)erty passes into the liun<ls of honest purchasers, the lirst owner must bear the loss. Thus, to take an iiistunce from our own reports, where goods were obtained by a sale on credit, under n forged reconi- mendatioii and guaranty, and then sold to a bona tide purchuser in the customary course of trade, the second buyer was pri>- tected in his posseshlon against the de- frauded originalowner. ( Mowrey v. Walsh, H t'Dwen. iM:!.) So. again, where the owner gave possession aiKl the iip[iarent title of property to a purchaser, who gave his wortliless note, in fraudulent contem- plation of immediate liankrnptcy, a fair )>urcliase from the fraudulent vemlee was held to be good against tlie tirNt owner. (Hoot V. French. 1:5 Weii.lell. .VJ. .See, also. .Mct'arty v. Vickery, 12 Johns. K.,:t4s. ) In all such cases, to protect the new pur- chaser, there must be a full consent of the owner to the iransfi'r of property, though such consent might he tempi.rary only obtaiiieil by fraud or mistake, and there- fore revocable against such unfair pur- chaser. II. The other clnss of cases in which the owner loses the right of following and reclaiming his property Is, where lit has, b.v Ills own voluntary act or consent, given to another such evideticeof the right of selling his goods as. accoriliiig to the custom of trade, or the coir.inon under- standing of the world, usually accompa- nies the authority of iiinposal; or. to use the language of Lord Kllenborough. when the owner " has given the e.xteriial indicia of the right of disposing of his property. " Here it is well settled that, however the possessor of such external indicia may .'iliiise tlie conlideiiceof his principal, a sale to a fair purchaser divests the tirst title, and the authority to sell so c<rnferi-ed, whether real or apparent, IH good against him who gave it. 1 lius, the consignee, in a liill of lading, is furnished by his consignor with such evidence i>f right of disposal, according to the custom and law of traile. so that the bona tide hoMerof the bill endorseil liy the consignee is entitled to all the rights of property of the consignor in those gooiU. if bought fairly in the course of buKlness, although the actual consignee, uinler whose endorsement he holds, has no rijjht to the goods as ng.'iinst the formerowier. H such gooils were not paid tor. they niiglit liestopped intraiiHilii b.v theowrer, unless his consignee has iiln-ady assigne<j his bill of lading; but that assignineut divests the owner of his right of btoppuge against such assignee. The famous series of decisions In the varioas courts in the case of Lickliarrow V. Mason. {.•- T. H. iVl; :.• H. Dlack. K. I'll; ,tT. It. :tr.7,l which led to the estalillsh- nientof the doctrine uf this qualllkHl nci;u- 680 SALTUS V. EVERETT. tiability of bills of lading, njemorable alike in lesal anil commercial history, strongly illustrateH the whole question before lis. There, HiiUer antl his associate judges, trained up at the feet of the great father of Iiiris'lish commercial jnrispniilence, main- tained and established the law as we now hold it, under the influTice of Mansfield's genius upon his reasoning and on his au- thority, against those of Lord Loughbor- ough and others, tlie most learned law- yers of their times. .Ml the arguments and admissions of l)oth sides thow how deeply the general i)rin( iple is root(Ml in the law of England, that (to use Lord Lough'iiorough"s words) "mere posses- sion, without a just title, gives no prop- erty, and the person to whom such pos- session is transferred by delivery must take the hazard of the title of its author." It is only as an e.\|)ress exception to this rule that it was maintained, and finally established, that the custom of merchants, evidenced and sanctioned by legal deci- sions, and fonnded on those conveniences of trade, so admirably stated i>y Buller, had compelled the courts to consider the owner as giving his consignee evidence of the iiower of disposal, which it was not for him to dispute when the goods had fairly passed into other hands, on the faith of that evidence. But there is no case to be found, or any reason or anal- ogy anywhere suggested in the books, wliich would go to show that the real owner could be concluded by a bill of lad- ing not given by himself, hut by some third person, erroneously or fraudulently, as in this present case. The assignment of the bill of lading conveys, not an absolute right to goods, but the right and title merely of the actual consignor, who alone is bound by it. Again: the owner ma.v lose the right of recovering his goods against purchas- ers, by exhibiting to the world a third person as having power to sell and dis- pose of them ; and this, not only by giv- ing a direct authority to him, but by con- ferring an implied authority. Such an authurity may be implied by the assent to and ratilication of prior similar dealings, so as to liold such person out tt) those with whom he is in the habit of trading, as authorized to buy or sell. It ma3' be inferred from the nature of the business of the agent, with lit accompanying circum- stances- "If a man," says Bayley, J., in Pickering v. Busk, (1.5 East, 44,) "puts goods into another's custody, whose com- mon business it is to sell, he confers an ira- plieil authority to sell," and the cause was decided on that ground. But this implied authority must arise from the natural and obvious interpretation of facts, according to the habits an<l usages of business; and it never applies where the (diaracter and business of the person in possession, do not warrant the reason- able presumntion of his being em])owored to sell propertj' o! that kind. If, there- fore, to use an illustration of Lord Chief Justice Ellenborough, in the case just cit- ed, a person entrusts his watch to a watchmaker to be repaiied, the watch- maker is not exhibited to the world as an owner or agent, ami credit is not given as such, because he has posse-^ision of the watch, the owner, therefore, would not be bound by his sale. When these excep- tions cease, the geiitral rule resumes its sway; and the law is therefore clear, that an agent, for a particular purpose, and under a limited i)owei', cannot bind his principal if he exceed his power. " Who- ever deals with an agent constituted for a special puri).>8e, deals at his iieril, when the agent passes the precise limits of his power." ("J Kent's Coium. Glil, and the authorities there cited.) Beyond the precise exceptions I have above stated I think our law has not car- ried the protection of the fair vendee against the defrauded or unfortunate owner. It protects him when the owner's misplaced confidence has voluntarily given to another the apparent right of property or of sale. But if the owner loses his prop- eity, or is robbed of it, or it is sold or pledged without his consent b.y one who lias only a temporary right to its use by hiring, or otherwise, or a (jualitied pos- session of it for a specific purpose, as for transportation, or for work to be per- formed on it, the owner can follow and re- claim it in the hands of any person, how- ever innocent. Among the numerous cases to this effect, 1 will cite only that of Hoare v. Parker, (2 T. R. :!7(j,) which I select not only on account of the strong and unhesitating manner of the decision, but because it was pronounced by the very judges who, in the case of Lickbarrow v Mason, had carried the protection of a bona tide purchaser under a bill of lading far beyond tlie rig(;r of the ;Kicient la w. There, plate had been pawned by a widow who had only a life interest in it under her husband's will, of which fact tlie pawnee had no notice. It was not doubted that the lien for the moneys advancecl on such pledge was void against the remainder- man, after the widow's ileatli. "Per curiam: This point is clearly settled, and the law must remain as it is, until the legislature think it tit to provide that the possession of such chattels is proof of ownersliip." J n order to decide in such conflicts between the claims of equally meritorious sufferers by the wrong of a third party, pul)lic policy must draw an arbitrary line somewhere, and ihegreatest merit of siicli a rule must be its certainty and uniformity. The rule of our law, as I nuderstand it, is perfectly consistent with the equity be- tween the parties, as far as such equity can apply; and it serves the great inter- ests of commerce, in a state of such exten- sive foreign and domestic trade as ours, by protecting the property of thestranger, as well as of our own citizens, against the possilile fi-auds of carriei's by sea, or by internal transportation, whilst it throws uiion the resident merchant the responsi- bility of taking care with whom he deals, and teaches hitu a less(jn of wholesome caution. It is no mean proof of the wis- dom of the rule, that it agrees in substance with the provisions of tlie Napoleon Code. The Code, like our la^v, hohis as a general rule, that the sale of goods by any but the true holder, is a nullity; "La vente de la chose d'aiitrui est nulle." (Code Civil III. SALTUS V. EVERETT. 681 art. LIOO.) It conliiieB the nuthority of tlio H|ii'rijil aRi'iit ur niaiida tiiire to the Htrict limits of hin power; anil in naloH, thi- power must always bo Hpecial anil ox- preHH. (Code Civil, art. '.ils'J.) It allowH the ri^ht of revetiilication or Ktojipajje In traii.silii aKaiiiKt the insolvent or rraiiilu- lent parchaser or eoiisiKneo; hat that rif^ht eeasPH, as Willi us, ai;ainst the con- signee, when the kooiIs have been fairly sold aceorilhiK to the hills of ladinf;; "ven- dues sans frauile sur factures et oonnaisse- ments. " (Code de Commerce, Liv. 111.. art. .07G, .177, .">7S.) The Seotili law, as 1 gather from Itell's Commentaries, lays down a different rule, that "a purelinser, in the cour.se of trade, should he protected in the imrehase of floods from any one who has them iii lawful possession." Tills agrees with the doctrine of our supe- rior court, and miiiht he a safe enough rule if •;< iierally adopted and nndcrstooil. r.ut it is not the rule of our own law, j which is perhaps nuito as wise, as well as certainly founded on a much larger and wider commercial experience. Let us apply these conclusions to the present case. Collins, the person whose sale it is asserted must divest the ori)>inal owner of his rlKlits in favor of the l)oua tide purchaser, stands, it is said l)y the su- perior court, in a double relation of "a mas- ter, who is at the same time the consignee of the fj;oods, and who himself filled the character of shipper, and has thoi'eforo an undoubted power to sell, and his bona fide transfer will he effectual to purchasers a;;:.iiMst any secret trust for others with which his apparent title mitfht be aflect- cd." Had the lead been cousiHned to Col- lins from the intermediate port, l)y the owner or his aKent, this would be true. Hut it isshii)iieil by Myers, of whom neither the owner, nor any one with full power to represent him in this matter, had any knowledge as an a^ent, and under whose care the vessel and car;io were placed by Collins, so that he appeared only as his representative, and tlius he styles himseif in the bill of lading- 'Ihe plaintiff below comes in no wise within the rule I have stated, lie has neither siven to Collins documentary and mercantile evidence of property in a bill of lading from himself or his own aui'iit with comi)etent power, nor the evidence customary in business, such as to Ixdil him out as anag<-nt authori7,eil to change the title of his property in his goods. 'l"he assumed authority of ship- ping goods in his own name arid to his own order, at Norfolk, and the documen- tary evidence of it in the bill of lading, can have no more effect as to the title of the pri)t)erly, than if he had forged such a bill of lading at New (Orleans. Neither does the selection of a ship and Its master vest in the master any implied authority to sell the ship, or any part of her cargo. His business is to carry the goods, and no 'more, with some other clearly delined and very limited powers, to lie exercised only in cases of abs<dutenc-i cessity. He stands In the same legal rela- tion to his cargo with the watchmaker, in the case supposed by Lord Kllenborough, who has in his hands a watch to be re- paired. He is not exhibited to the world ; as the owner, or agent for Belllnii: and If he does sell it, the sale is void agalast the true proprietor. 'Ihe law of shlpiilng Ih well known to the commercial world, to declare that the master has no authority to sell the cargo, or any part of it, uuIchh under circumstances of pressinj; necessity abroad; and of that absolute necessity, the burden of proof rests on the pur- chaser, and the presum|)tion Is against It. .Vs.ludge liayley states the law. ( .Morris v. Roliinson, 3 Uara. & Cress. l'J4;.i"The caplain has no right to act as agent for the owner of the goods, unless in absolute necessity. The purchaser obtains no, irup- erty liy the act of his professing to sell." And this was held where the master acted in perfect good faith. How much stronger is the case of u probable fraud! 'i'hus again, in Freeman v. East India Co., (5 Harn. & Aid. Ol'J,) Abbott, Ch. J., savH, "a Rale of a cargo, or any part of It, by the master.can conferno title, uidess there was an absolute necessity ," and the rea- son of the rule is thus assigned by.ludge Best in the same case: " .\ carrier by sea and by laud stands in tl.esnuie relation to the owner of g Is to be carried. Their duty is to carry the goods, and the authority only such as is necessary. The purchaser, knowing that necessity alone can justify the sale, and give him n title to what he bu.vs, will assure himself that there is a real necessity for tlie sale liefore he makes the purchase; and caution on his part will prevent what has Irei|uently happened, the fradulnent sale of ships uiid cargoes in foreign i)orts." Such. then, be- ing the well-settleil ami generally Unown law, the selection of a master or any other carrier, by sea or land, does noth- ing to exhibit such carrier to the world .ns having theiiowerof disposiiigol thegoods he carries. The owner does nothing to enable him to comuiil a friiud on third persons. He gives merely a qualilied pos- session, and if that ia turned into an as. sumed right of ownership, it is tortious conversion, and will not divest the own- er's title. It is true that the rule will aoinetinies. as was urged by Chief Justice .Jones, "in- volve purchasers in great perils;" hut that i)eiil can scarcely he called "unrea- sonable, " since there is a reason of public policy of at least eiiual weight to counter- balance this inconvenience. It Is the same which is the ground of the ahsidute pro- hibition ton master or carrier to sell the goods he transports except under Insur- mountable necessity ; It is to prevent. In the language of the court in the case just quoted, (.") iSarn. vt .Mil. t>l';l.) "fraudulent sales of ships and cargoes ia foreign ports." .Now the fraudident consign- ments or change of the apiiarent evidence of property for the purpose of selling else- where, is but another form of the same evil. I may add that this same ride, how- ever rigid and occasionally hard in its op. (■ration, is no small safeguard to the prt)- teetlon of the owner's rlgiits In goods and other (iroperty, in active coiunierce nei-es- sarily pl.-iced linder the temporniy control, and in the legal though (lualilled posses- sion of .'igents. sailors, carriers, boatmen, servants, and clerks, as well as of those 082 SALTUS V. EVERETT. who may have them stored for safe keep- ing, ami their clerks, porters, and serv- auts. On the other question, as to the right of the defendants below to stand in the place of their vendor, and to he protected to the extent of the charges on the lead for freight, as claimed by Collins, I need say but little. The right of lien in such circumstances, (if any right exists here.) depends upon actual possession by the factor or carrier, or his immediate agent. When the goods are sold and delivered to a third person, the lien, as such, expires with the possession. This is the distinc- tion between the present case and the for- mer suit against Coffin & Cartwright, who were immediate agents or bailees of Collins. The two courts below have agreed in deciding against the validity of the objec- tions to the evidence raised on the trial of the cause, and I have nothing to add to the reasons they assign; to all which I fully assent. The importance of the principles and rules not only of decision but of active business involved in this cause, especially in relation to that vast and busy com- munity which I immediately represent in this body, has lead me to examine this whole head of law with an interest and at a length wholly disproportioned to the amount of value in controversy. If the views I have been able to present shall in any way, directly or indirectly, tend to settle the law on this head, or make it more clearly and correctly understood, the study 1 have given the subject will have been well bestowed. I am of opinion that thejudgment of the sui)reme court, reversing that of the supe- rior court of New-York, be affirmed. Judgment unanimously affirmed. I SANBORN V. FLAGLER. 685 SANIJORX et al. v. FLAGLER. (9 Allen, 474.) Supreme Jmlirial Court of &las.sachusetts. Nov., 1SG4. Contract hrnuclit t)y plnintiffn, who were pnrtncrH under the firm u( Siinlioin, HicharclKoii & Co., iiK"iiiHt .John H. Fhiyiler and llcjidune, uh partners under the llrm of lloldtinu & Co. The writ wmh Herved only upon Klau'er. The plnintirtH alleged that the defendants had refused to deliver to them fifty tons of hewt relined iron, in areordanee with a written agree- ment etilereil into between them. The de- fendant wet up amouK other defeuHes the statute of frauds. One of the |)laintiffs was called to the stand, and iirodueed to be offered In evidence a paper, of which the followiuK is a copy as nearascan beniade: •■ Will deliver S. K. & Co. best rehned Iron 50 tons within 90 days — at .'i ct p lb 4 of cash. I'lates to be 10 to 10 inches wide and 1) ft to 11 louK- This offer j^ood till li o'clock Sept. 11, 1802. .1. U. F. .1. U. R." The defendant objected that the paper wasnot a suflicient memorandum in writ- ing of the aliened bargain signed by tin- party to be cliary:ed, and that parol evi- dence was not ndmissibleso as to make it such a memorandum as co\ild be admitted. Thejud^e ruled that the paper was a sudi- eient memorandum, and would bind the defendant if he was a member of the firm of Holdane & Co. The witness then testi- fied that the a^reenjent was wiitten by him, and that he and the deleiidant si;;ne(! their initials, the defendant writing tin- initials ".I . II. F., " and he the initials".!. U. H. ;" and that before the defendant left the plaintifl's ollice, and before 1' o'clock. he accepted the proposition, and so stated to the defendant verbally. The witness testitied that he sijrned his initials on be- half of the plaintiffs, and that he under- stood the defendant to si>;n for the firm of Holdane & Co. This evidence was not denied by the defendant. The ,iud;ie ruled that said paper, with the exiilanation given, if Richardson w;is believed, was a Blitlicient note or men)orainhim, and was binding o" the <lefendant if the jury found him to be a partner as alh'Ked. The jury found a verdict for the plaiutiffs. and the defendant alleged exceptions. A. A. Ranney, for plaintiffs. C. T. Rub- sell, for defendant. DI(iELt)\V,C. .1. The note or memoran- dum on wliicli the plaintiffs rely to main- tain theiraction contains all the reiiuisites essential to eon-ititute a binding contract within the statute of frauds. It is not de- nied l)y the defendant triat a verbal ac- ceptance of a written offer to sell mer- chandise is sufficient to constitute a com- plete and obligatory agreeiiicnt. on whii-h to charge the i)erson by whom it is signed. In such case, if the memorandum is other- wise sullicicnt when it is assented to by him to whom the proposal has been made, the contract is consummated by the meet- ing of the minds of the two parties, and the evidence necessary to render it valiil and capable of enforcement is supplied liy thesigaature of the party sought to be charged to the offer to sell. Indeed, the rule being well settled that the signature of the defendant only is necessary to make a binding Contract within the pro- visUjns of the statute relating lu saleH of merchandise, it necessarily fi>llowri that an offer to sell and an express iigreement to sell stand on tne same fooling, iaari- tiiucli MS the latter, until it is accepted liy the cither |»arty, is in effect nothing more than a proposition to sell un the terms indicated. Tlie acceptance of the contract by the parly seeking to enforce it may al- ways l)e provetl by evidence aliunde. The objections on which the defendants rely are twofold. The hrst is that the note or memorandum does not set forth upon its face, in sucli manner as to lie un- di-rstood by the court, the essential ele- ments of a contract. Rut tills position is not tenable. 'I'he nature and ilescription of tli<- merchandise, the i|nantity sold, the price to lie paid therefor, the terms of payment, and the time witliln which the article was to lie delivered, are all cl"-arly set forth. But it is urged that the paper does not disclose which of the parties is the purchaser and which the seller, and that no purchas<>r is in fact named in the pa- per. This would be a fatal olij'-ction if well founded. There can be no contract or valiil memorandum of a contract which does not shew who are the contracting parties, liut there is no such defe<-t in the note or niemoran<ium lielil l)y the plaintiffs. Tlie stipulation is explicit to deliver mercliannise to S. R. A; Co. It cer- tainly needs no argument to demoiistr.ite that an agreeiiipnt to deliver goods at n li.\ed price and on si ecilied terms of pay- ment is an ngreeinent to sell. D?livfry ol goods at a stipulated price constitutes a sale; an agreement for sucli delivery Is a contract of sale. Nor can there be any doubt raised as to the intrinsic import of tin- memorandum concerning theeharac- ter or capacity in which the parties are intended to be named. A stipulation to deliver merchandise to a pers<in clearly in- dicates that he Is the purchaser, because in every valid sale of goods delivery must be macie by tlie vendor to tlie veiidet-. We can therefore see no ambiguity in the in sertion of the name of the purchaser or seller. Tlie case is much stiongcr in favor of the validity of the nii'moiii:nliiin in this respect tlian "that of Snlinon Falls Maiiiif. Co. v. (ioildard. U How. 440. There only the names of the parlies were Inserted, withiilit any word to indicate which was the Imyer and which was the seller. It was this uncertainty in the memorandum which formed the miiin ground of the>ery able dissenting opinion of .Mr. .lustice Curtis ill that case. So in the leading ease of iSailey v. Ogden, :i .Itihns. ;i"JU, there was not fling in the memorandum to shew which of the two parties named agreed to sell the merchandise. Hut in the case at bar. giving to the paper a reasonalile lii- terprelation, as a brief document drawn up ill the haste of business and Intended to express in a few wonls the terms of H bargain, we cannot entertain a doulit that it indicates with siiltlcieiit clearness that the pliMiitiffs were the purchasers, and the dch-ndant the seller of the iiier- 686 SAXBOUN V. FLAGLER. cliandise, on the terms therein expressed. Indeed we can see no reason why a writ- ton agreement by one party to deliver goods to another party does not as clear- ly shew that the latter is the pnrchaser and the former the seller as if the agree- ment had been in express terms by one to sell goods to the other. The other objection to the memoran- dum is that the name of the party sought to he charged does not appear on the face of the paper. If by this is meant that the signatures of all the persons who are named as defendants are not affixed to the memorandum, or that it is not signed with the copartnership name under which it is alleged that the persons named as de- fendants do business, the fact is certainly so. But it is not essential to the validity of the memorandum that it should be so signed. An agent may write his own name, and thereby bind his principal; an<\ parol evidence is competent to prove that he signed the memorandum in his capacity as agent. On the same principle, a (lartner maj' by his individual signature bind the firm, if the contract is within the scope of the business of the firm, which may be shewn by extrinsic evidence. Soames v. .Spencer, 1 D. & R. 32; Long on Sales. 38; Browne f>n Statute of Frauds, !j :!(;7 ; Higgins v. Senior, S M. & W. s;j4; Williams v. Bacon, 2 Gray, 387, 393. Be- sides, in the case at bar, the action is in effect against Flagler alone. He only ha.=i been served with process and appears to defend the action. Whether he signed as agent for the firm or in his individual ca- pacity is immaterial. In either aspect he is liable on the contract. It is hardly necessary to add that the signature is valid and binding, though made with the initials of the party only, and that parol evidence is admissible to explain and apply them. Phillimore v. Barry, 1 Camp. 513; Salmon Falls Manuf. Co. v. Goddard, ubi supra; Barry v. Combe, 1 Pet. 640. Exceptions overruled. SANGER V. WATEKBUUr. 689 SANGKll et al. V. WATERBURY et al. (•,"•: N. E. Rep. 404, 116 N. Y. 371.) Court of Appeals of New York, Second Divis- ion. Oct. 22, 18*9. Appeal from jiuigment of the general term of tlie supreme court, in the second jmliciul department, entered iijion an order made De- cember 14, 188G, wliieli aliirraed a judgment in favor of llio defendants, entered upon a verdict directed by the court. This was an action of replevin brought to recover the possession of 238 bags of coffee identilied and described in the complaint as follows: "89 bajis, marked Xo. G, II. L. U. & Co., D. 15. & Co.; 32 bags, marked No. 8, H. h. IJ. & Co., D. B. & Co.; 14 bags, marked No. 10, II. L. H. & Co., D. 13. & Co. ; 2'J bags, marked No. 12, II. L. 15. & Co., D. 15. & Co.; 68 bags, marked No. 14. II. L. IJ. & Co., D. 15. & Co.; 6 bags, marked No. 1(3, II. 1,. 15. & Co., U. B. & Co." The complaint alleged, and the answer atlmitted, "that on or about the 22d day of July, 1885, the said goods * * * were sold by the plaintiffs to the defendants John K. Huston and James E. Huston, * * * on the credit of sixty days for one-half thereof, and of ninety days lor the balance Iheieol." Itappeared thai the plaintiffs, on the tjth day of July, 1885, pur- chased of Boulton, Bliss & Dallett 005 bags of coffee, then stored with E. 15. Bartlelt & Co. On the 22dday of July the plaintilfssold the 238 bags of coffee hereinbefore referred to to J. K. Huston & Co., of I'hiladelidiia. That (irni, on the 24th day of .luiy, up- on the security of the coffee thus purcliaseJ, borrowed from the defendants AVaterbnry i^- Force .$2,300, and then transferred thecoffrc to llieiii. On .luly 27lli following, said (irni failed, making a general assignment. On the next day, the plaintiffs commenced this action, by means of which the < offee was taken from the poss"ssion of Waterbury & Eorce. The coffee then w;is, as it had been from the time of the purchase by the plain- tiffs, actually deposited in the warehouse of E. 15. Barllett <& Co., and had not iisyet been weighed. William W. Goodrich, for appellants. Ed- ward N. Sht/iard, for resiwndents. Paukeu, J., {after stati..g the facts as iibore.) The appellant contends that the title to the coffee in controversy did not pxss to J. K. Huston & Co., and that therefore the trans- fer to Waterbury & Force di 1 not vest in them the title or the possession. The sale is admitted; but as the cotTee had to be Weighed, in order to ascertain the amount to be paid to i)laintilTs, it is insisted that the title remained in the plaintiffs. In aid of this LAW SA Lies— 44 contention is invoked the rnle that where something remains to be done by tlie seller to ascertain the identity, quantity, or quality of the article sold, or to put it in the condition which the contract requires, tlie title remains in the vendor until the condition be complied with. The appi.-IIant cites a number of au- thorities which, he urges, so apply this rule as to make it appl, cable to the case here pre- sented. It is said in Groat v. Gile, 51 N. Y. 431, that this "rule has reference to a sale, not of specific property clearly ascertained, but of such as is to be separated from a larger quantity, and is necessary to be identilied be- fore it is susceptible of delivery. The rule or principle does not apply where the number of the particular articles sold is to be ascer- tained for the sole purpose of determining the total value thereof at certain specified rates, or a designated fixed price." This distinc- tion is recognized and enforced in Crofoot v. Bennett, 2 N. Y. 258; Kimberlv v. Patchin, 19 N. Y. 330: Bradley v. Whee'ler, 44 X. Y. 495. In Crofoot v. Bennett, supra, the court say: "If the goods sold are clearly identified, then, although it may be necessary to num- ber, weigh, or measure them, in order to as- certain what would be the price of the whole at a rate agreed upon between the parties, the title will pass." This expression of thecourt is citeil with approval in Burrows v. Wliita- ker, 71 N. Y. 291, in which case, after a full discussion of the authorities, the court ap- proved the rule as laid down in Gro.it v. Gile, supra. Now applying that rule to the facts in this case, nothing remained to be done in order to identify the goods sold: be- cause while, out of u larger lot, 23S b.igs of coffee were ilisposed of, nevertheless, as ap- pears from the complaint and the testimony adduced, the bags were so marked that there was no ditficulty about identifying the par- ticular bags sold. There remained, there- fore, nothing to be done except to weigh (he coffee for the purpose of ascertaining the pur- chase price; for whether the 2^38 bags of cof- fee should prove to weigh more or less than the parlies anticipated was not of any con- sequence. Whatever should prove to be. for that number of pounds J. K. Hus- ton & Co. had agreed to pay. This case, therefore, does not come within the rule con- tended for by the appellants, but. insiead. is governed by the principle enunciated in Groat V. Gile. Having reached the conclusion that the title and the possession passed to J K. Huston & Co., it becomes unnecessary to consider any of the other questions discussed, for the plaintiffs are without title upon which to found the right to maintain an action. The judgment appealed from should be af- firmed. All concur. SAWYKK 0. DKAX. 691 SAWYER V. DEAN. (31 N. E. Rep. 1013, 114 N. Y. 469.) Court of Appeals of New York, Second UivisiOD. June 4, 18(59. Chas. A. Clfirk, for appellant. Win. P. Cantwell, for respoiiUent. PoTTEit, J. This is an appeal by the de- fendant from a jiulgraent of tlie (general term of the Foil rLli (iejiartment, allirining a judgment agaiiust liiiii on a trial before llie court at si)ecial term. The action is brought to recover damages alleged to have been sus- tained by Franklin Sawyer, assignor of the plaintiff, in conse'iuence of tlie neglect and refusal of the defiiidant to accept and pay for a car-load of ."lOO liidcs that ho had or- dered and purchased of said assignor, and di- rected to be shipped from Chicago, where said Franklin Sawyer resided and where the hides were, to Owego in the state of New York, where the defendant had a tannery in which lie was conducting, on a more or less extensive scale, the business of tanning hides into leather. The bargain for the hides was made through corres])ondence l)y letter and by telegraph coininunicatioiis between tlie parties. Alter the arrival of the hides at Owego, and some correspondenc ■ bv tele- grams and by letter, and the sending an agent by the plaintiff to Owego to see the defendant, and after an interview with the gentleman so sent by the plaintiff with de- lendant's assent at C)we-;o, the defendant linally refused to receive the hides unless he had an opportunity of taking them from tlie depot to his factory, and tliere opening and examining, if not testing and proving, them. This the plaintiff reliises to allow the de- fendant to do, and gave liim notice, at the proper time and manner, that unless he ac- cepted the hides in accordance with the con- tract, and especially if he refused, after the offer which had been made, to examine the hides at the railroad station, upon a |ilatform or in a car, the hides wouUl bo relumed to the seller in Chicago on account of tlie re- fusal to receive and pay for the same, and would there be sold for the best price that could be obtained for them, and defendant would be charged with the difference be- tween the price brought on the sale at Chica- go and the price agreed upon, together with the necessary expenses growing out of send- ing the hides to and return from Owego, and otiier incidental expenses occiisioned by the refusal of the defendant to receive and pay for in accordance with the contract. This action is brought to recover that difference and those expenses, — that is, the difference between the contract price and the price at which they were sold at Chicago, — and this re- covery is based upon that difference in the price and these expenses. This correspondence by telegram and by letter commenced on or about the 20th day of October, 16B2, and was carried on for a few ilays, and culminated, as the trial court found, in an agreement to purchase, on the part of the defendant, the .5U0 hides, specify- ing the price per pound and quality of the hides; and that, in pursuance of such con- tract and purchase, the plaintiff's assignor shipjied the hides on the 4th of November to his own order, accompanied by a draft on the defendant, sent through a bank at Owego; the hides to be delivered to the defendant upon payment of the draft, ami the carrier of the railroad company was directed to de- liver them accordingly. When the hides ar- rived at Owego on or about the 11th of No- vember, 1882, notice was given to the agent or person in charge of the defendant's tan- nery that they had arrived. And at this point the question in controversy arises whether the defendant was hound, under the contract ma<le between him and plaintiff's assignor, to take the hides, and pay the draft, w ithout any examination or inspection of them, or wheth- er under the contract he was entith?il to an insjjection of the hides before accepting the draft, or paying the draft, or acceptance of the hides. There had been nothing said in these negotiations or correspondence between the parties until alter the hides were shipped on tlie -Ith of Noveniher, as before stated, in res[)ect to the time or manner of payment for the hides. The trial court found that this contract wjls consummated, and found the contract, by a inodilication or waiver, re- sulted in giving to the defendant the right that he claimed, namely, to an exainiiiatioiiof the hides hefort- an accei)tance of them, or acceiiting the draft and paying it. The court should, 1 think, from the evidence have found the correspondence between the ; hiiuiilf's assignor and the defendant, commencing with the letter of inquiry on the 20ih of October and the actual shipment on Novem- ber 4th, that the defendant ordered of plain- tiff's assignor .">IM.) hides, the quality of which was specilied in tliecoi respondence, at prices named per pound for the hides, and the same were to be selected by plaintiff's asi^ignor for the delendant, and the plaintiff's assignor did ship the hides accordinjily in his own name; and the same were received at the railroad station near defendant's tannery in good order and in due time. The law arising upon such finding is that the defend- ant had no right to test or prove the hides, and was not entitled to the possession of them for that or any other purpose until they were paid for. Upon the ordinary agreement to sell and to purchase personal property, in the absence of any agreement or provision in the agree- ment as to the lime or manner of p.iyment, delivery and payment are simultaneous acts; and, as a tender is equivalent in law to per- . forniance, a Iciuler of delivery or payment j by one person to llic other gives the person i making the tender the right to enforce the I performanceof the contract against the other. I llayden v. Demets, 0;i N. Y. 420, 428. Al'i. In the case under consideration, defendant 692 SAAVYER V. DEAN. ninde no objection tluit tlie IiiJps were not of good quality or of tlio quality speuilied in the terms of purchase, or" in the number of hides. He simply insisted that he had a right, under the contract, to an examination ot the hides before acceptance and payment. Under such a contract, as I think the trial juilge might have well found from the evi- dence in this case, it results, as in the case of lliggiiis V. Murray, 4 Hun, 565, and as was in the opinion in that case expressed by Judge Daniels, the plaintiff by sliip- ping in his own name, was simply keep- ing the possession of the property, as he liad the right to do, until it had been accepted and paid for by the defendant. By shipjung in that manner he retained and kept the lien of possession as his security for the payment of the property. The effect of the contract •was to transfer the title of the property from plaintiff's assignor to the deferiduut, sidjject only to the right of the assignor to retain possession until payment should be made, as long as no credit was to be given, or had been provided for, by tlie terms of the agreement. After the making of the con- tract he became the agent of the defendant, save in retaining possession of the property as security for the payment of the purchase money, while title to the property was vested in the defendant. To the same eflect is the case of liank v. Pfeiffer, 22 Hun, 327. Also the case of iMorey v. iMedbury, 10 Hun, 540. If the law in this case is not as above stated, the effect would be that a person who under a valid contract has sold his property, sent it to a distant place to the manufacturing es- tablishment of the purchaser, has received no payment, and has parted with the pos- session of the property and that means of securing payment, must rely upon the re- sponsibility of the purchaser, and his dis- position to pay for the jjrcjpertv. If this is not satisfactory to the jjurchaser, he should have made a different bargain. He could have done as he was advised by the plaintiff's assignor, viz., have appointed a hide broker or expert to have made the selection. Then both the buyer and the seller would have been bound by the selection made, — the buyer to accept and pay for, and the seller to de- liver. J5ut the defendant chose to make the seller Ins aj;ent to select, and he must abide by the selection made for him, especially in the absence ot any evidence that the hides were not just what he ordered. Indeed, the defendant did not base his refusal to pay U))- on any allegation, much less upon any [iroof that the hides were not in accordance witli his specification and order, but upon the sim- ple pretext that he wanted to examine them, and that, too, after he had authorized the plaintiff's assignor to select the hides for him. Wiiile the trial court might, and I think .5hould, have found as above indicated, it has found substantially in that way, but with the qualification that the plaintiff's assignor gave the defendant the right to examine the hides before accepting them. This light the learned trial court bases upon expressions in tlie letters of October 27th and November 4th, and which, I think, were subseijucnt to the correspondence which constitutes the con- tract between the parties. The examination referred to in those letters is not to be an ex- amination which should determine whether tlie defendant shouM receive these 500 hides, but the examination of this lot was to deter- mine whether he was so well suited with this lot that he would make further anil larger or- ders; besides, it seems very plain that the plaintiff's assignor did not mean to change the terms of the contract for this sliipment, but at all times, and upon the stand as a wit- ness upon the trial, he insisted that tlie de- fendant was not entitled as a matter of right to an examination before an acceptance of the hides. There was no consideration for such change of contract, or "waiver" as it is called by tlie trial court, and it therefore imposed no new or different obligation upon tlie philntiff than existed under the former contract. Hut the trial conrtmadealiiuling that the contract was so modilied as to allow the defendant an examination before acceptance. The trial court also found that plaintiff's assignor had offered to defendant an opportunity to exam- ine the hides, outsideof the car in which they were contained, upon the platform or in the store-liouse; that such opportunity was a just and reasonable one; and that defendant re- fused, and thus defendant broke the contract; and that the plaintiff's assignor was justified in the course he pursued thereafter. I can See no error in this tiiuling or conclusion. It would afford a fair and reasonable opportu- nity for llie defendant to determine the quality of the hides. None could be better for the purpose of an examination, unless they should be taken to defendant's tannery and there be worked as well as examined. Of course bus- iness of this kind could not be practically oi succ; ssfnlly carried on in this way; certainly not to the vendor of hides living hundreds, if not thousan Is, of miles away, and receiving many, if not the most, of tlie hides he sells from dealers and butchersliving and carrying on business as many more miles from the plaintiff's assignor. We come now to not ice the exceptions taken by the defendant. These were first as to the proof of a custom existing in Chicago forthe seller of liides to ship and consign to himself at the ]>lace of destination, with directions to the carrier to deliver to the vendee upon his accepting a draft for the purchase price. We do not think that the jiroof of such custom could have harmed or prejudiced the defend- ant in any way. Whether the contract was to acce]it the hides, and sign a draft for pay- ment upon notice of their arrival by the car- rier, or to do so after reasonable opportunity to examine the hides and refusal by the vendor to avail himself of such o|iporl unity, can make no difference with the legal rights and obli- gations of the parties to tlie contract. It was the clear right of the seller, when no other mode or time for payment is provided in the SAWVKll c. DKAN. (•)9:3 contract, to retain possession of his proi)erty until he was paid for it. Tlio defenilanl has no ri<;lit or ground for complaint that the piaintilf insists upon such ri<?lit. Tlic iltd'cnd- ant in this case orilercd hides to be sent to Owcgo. Hides such as he vv.mted and had ordered weie lirniiirht :ind tendered to him at the railroad station at Owego, one <if the usual routes and points of shipment. No other route or pmul iiad heen indicated by the defendant when tiie liiiies were shijiped. We do not perceive that the defendant's rights have been interfered with, or what just ground of complaint or of refusal to accept thegoods the defendant would have had if llie goods had arrived in the personal c;ue or pos- se.ssiou of the seller, and without any bill of lulling or shipping bill wliatsoever. The sell- er has the right to retain his possession until he has received, or is tendered, payment of the price. This mode of doing business is entire ly legitimate, and i?i many cases it istheoiih way of securing payment. Hank v. PfeilTer, 22 Hun, i'H. It certainly would not seem to beany just ground of complaint, upon the part of the defendant that the plaintilT, instead of delivering the goods to the vendee at (Chicago by an absolute consignment to him, as he was authorized to have done under the contract m question, took the risk upon himself of the payment of the transportation, and of their ar- rival in good order and condition at thei)lace where the defendant desired to use and man- ufacture them into leather. Iliggins v. Mur- ray, supra. Our conclusion is that this proof of custom did not change or affect the legal relations of the parties to the contract in ques- tion, and was not at all necessary or service- able in the decision of the question in this case. Whether this proof of custom was in or out of the case, the decision must have been the same, and so the defendant has no just ground of complaint, or for another trial with- out such proof. Wo do not think there was any error in al- lowing proof of the acts of ISond, plaintitf's agent, and Upton, defendant's agent. There can bo no doubt of their agencies upon the evidence in the case, outside of any state- ments made by the alleged agent that he was agent. IJeing the agents of the parties, Iheir acts and statements, whihi performing acts for their piincipals, in the offers and ef- forts for an opportunity to examine the hides, and to obviate objections and reconcile dilTer- ences between the parties, were competent evidence. The defendant, upon the argument, dis- cusses another kind of evidence received up- on the trial, viz., the letters and telegrams sent by the seller to the purchaser, and tlie Qndiugs which may in a measure be based upon such evidence. An effectual answer to that argument is that this evidence was received witliout objection; and the defend- ant, when examined as a witness after this evidence was thus received, does not deny that lie received them; and 1 think, when a response iloes come from the defendant touch- ing the points in the letters and telegrams, it ;3 pretty plain that they were received by the defendant. Xordo I think that the letters introducing Hond, agent for plaintilT's ;tssignor, to, and informing, defendant's agi-nt, Upton, and .Mr. Piatt, casii.er, and to the railroad agent, ob- jectionable. They proved but the authority of iSond to act. and could not until he had acted alfect the rights of the parties; and the elfect of his action would depend upon his au- thority, and hence the necessity for proving his authority. 1 think we have examined, closely and carefidly, the lengthy and exhaustive points furnished by the defendant's counsel upon the argument; and I do not perceive any substantial error on account of which there should be a new trial granted in this case. The case seems to have been thoroughly tried by the court without a jury, the jury having been waived at the close of the evidence, and a consent given that the case be decided by the court. There were numerous incidental and unimportant questions raised and ruled upon during the trial, and exceptions taken in some instances, and in others not taken. I refer to the depositions of witnesses taken under commission, and the rejection of an- swers or portions of answers, and the ques- tion of variance and ameudmeut; but they do not seem to me to be important, and many of them are clearly within the discretion of the court. Such were the statements made to witnesses in identifying the hides sold in Chicago. 1 do not understand from the de- fendant's points that any serious contention is made as to the right of the plaintilT to re- call the hides, and to sell them at Chi ago, the great hide market of the country, after notice to the defendants that that course would be pursued if the defendant refused to accept and pay for the hides in accordance witli the terms of the contract. The plaintiff, in the (ontingency just stated, had the right to ])ursue this course. 1 think the sale was properly made by the plaintiff at Chicago, and that he adopted the best means to got the highest price and occa- sion defendant the least loss, and that the sale, etc., was conducted in entire good faith by the plaintiff's assignor, and that the amount of the recovery did not exceed the plaintiff's right or the defendant's obligation after he had broken the contract. Uustan v. McAndrew, 44 X. Y. 72, 74, 79. We think judgment should be aflirmed, with costs. All concur, except Follktt, C. J., not sitting. SCOTT t>. LAUMAN. 695 SCOTT V. LAUMAN. (104 Pa. St. 593.) Supreme Court of Pennsylvania. Jan. 7, 1884. Feitrned iHsue between George R. Laii- man, udminiHtrntor of Williiiin Scott, ile- cenHcd, ns jiluintiff, and Aiidrow Scott, an defendant, to dctcnniDO the rialit to a certain fund. .JudKnient for jjlaintiff, and defendant hriiifi" b'T"!'. .Mlirnied. Dei'eaHed, Williuni Scott, had a certifi- cate of depoHit in a l)ank, on whicli certill- cate in liiw laHt siclincHH lie wrote an an- Hidmnent to defendant of part of tlie <le- poHit. Ho delivered the certificate ko en- dorHed to IiIh attorney, telling him to "talceit wltli him, and put it in his wafe; tliat it was for Andrew Scott ;" and the attorney retained tlie certificate in liiH oflice tiil tlic death of deceased, wlien he banded it to defcMilant. Uefore Mi:i{('f;i{. C. J., and (JOHDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent. A. M. Brown and Jolin S. Ferguson, for plaintiff in error. .1. Nf. Stoner, for de- fendant in error. PER CURIAM.— To constitute a vnlia gift, tliere must bo a delivery of the (irop- erty to the donee, or to some person for his use. A gift is a contract executed. The act of execution is the delivery of posseH- sion. Without delivery, it Is only a con- tract to give, not bindlni; for want of consideration: CampbeH's Estate, 7 Rarr 100; Withers v. Weaver, 10 Id. .TJl ; Kidder V. Kidder, 9 Casey L'fis; Trougii's Estate, 25 P. F. S. 115; Zimmerman v. Streeper, Id. 147. In the present cose tliere was no deliv- ery to the tionee, nor to any person for his use. The donee placed in the hands o( his own attorney the certificate of de- posit, and the order to jiay a i>art of the sum therein sjiecitied to Ihedonee. lie did not instruct his attorney to deliver It to the donee. The latter had no knowledge of any act of the donor relating to the In- tended gift. Without delivery the whole evidence was insufhcient to support the paper as an executed contract. Judgment atlirmed. SCOTT c. WELLS. 697 SCOTT V. WELLS. (6 Watts & S. :)57.) Supremo Court of Pennsylvania. Dec, 1843. AsHuniiiHit hy Daniel WcHh aKDliiHt HukIi Sciitt for the value of n riift of boarrlH Holil and (k'livcnMl to (Icfcmlaiit. .lu'ltc- niciit for [ilaiiitiff, and dufi/ndant appeals. .Mlirtncd. L. \. Siott, for plaintiff in error. J. .\L Read, contra. GIBSON. C. J.— The ninterial queHtion is, whether tlie property paHHed hy the Hflle and delivery in the lirHt instance. Tlie faets were not eonteHted. KIdred, the vendorV a^ent, sold a raft of hoanls to TfiHtin, the pnrchaser'K at;''nt, at a eer- tain rate the thousand feet, and delivered it to a person employed by tin? latter to take it, at the purchaser's expense and risk, from Kichiiiond on the Delaware to a place on the Schuylkill, where it was afterwards moored. Thedeliverv was un- conditional, pursuant to the contract and complete: wliy then did it not pass the property and put it at the [lurchaser's risk? Itecause, say tlie purchaser's coun- sel, the nnmher of feet cont.-iined, or the suui total of the price, was not settled by the terms of the contract; and the c<»nse- qiicnce attempted is, that the sale was im- perfect in its tneml)ers. Had there been no delivery, or a con<litioiial one. the pur- chaser would not perhaps have lii'ei! bound till the number of feet and entire price had been ascertained; but the par- ties evinced, by taking the last step, that notliln;^ rem.nined to be done in order to perfect the contract. If I deliver a chattel in execution of an aRreenient to sell it in lerniH to be lixed ^ubsetiuently, tin own- ership and risk of the pi-operty doubtless remain with nie in the mean time; but Huch delivery is conditional, and after an ineffectual effort to perfect the sale, no de- livery nt all. On the other hand, it is n rule, perhaps without an exception, that whenever then; has been an absolute de- livery pursuant to n bargain perfect in its members, or capalile of beiuj; made ho by reference to something; else than supple- mental conditions by the parties or an arbiter appointed by them, the owner- ship of tile property is vested by it. I ;:rant that a sale may be fatally defective In its members ; and that, by the civil as well as the common law, the s|iecifica- tion of a price is necessary to constitute it. Itut there is abundant authority to show that it may be supplied by arl>itrament, where tlii're is a provision in the contract lor it; ■•ind why not by calculation where the contract furnishes a basis for it? Surely the price is certain eniMmli when the sum of it can be olitained bj cou'.puta- tlon. l'"or instance, I sell my fat l)ullocks grazinK in a p.artlculnr liehl, at so much the head; there are tivo of them, but the number is not specified in the contract ; they are delivered and driven away, but rush over a precipice and lirenk their necks: surely it will not be sni<l that I am to lose the price of them, because the a;i- Kreirate amount of it or the nunilier was not specitied by the terms of the bargain. Yet the principle Ih iicceHsarily the saine, whether the number be llveOr (Ive hun- dred, lint I would be bound to liear the loss, were the number, however InconHid- erabU'. determinable by a proresH pro- viileil in the contract. I'ut where no such process is provided, may not a (nrmer i>ell his Krowin« croi) by the bushel, so as to chanjte the ownership of it in the mean lime, without lixiuK the iinantlty by an estimate liefore it is threshed? To sell by tl'.e bushel anil fix the c|uantity would, In effect, be to sell for a round sum. Mad, In- deed the atients oi the parlies before UH made it a condition that the number of feet in the raft shonlil be counted <jr esti- mate:; by a particular person, the sale would have been incomplete, and the jirupcrty at the vendor's risk till that was done, insomuch that hcmit^ht havepassed the title to another, leavlni; the prior vendee to his action (or u tirench o( the contract; but by the barLcaIn nctunlly made, the vendor sold just so many feet as the raft actually <-ontained. There Is no process pointed out to ascertain the number; and why roay he nut recover in [)roportion to the number ascertalneil by the evidence? A sale is Imperfect only where it is left open lor the adililion ut terms necessary to complete It, or where it is delicient in some imiispensable int;rc- dient which cannot be supplied from an extrinsic source. I!ut when possession is delivered pursuant to a contract which contains no provision foradditional terras, the parties evince, in n way not to be mis- taken, that they suppose the liari;ain to be eonsuminated. Kven where actual possession ha« not been taken, the owner- ship and risk pass by the contract, if noth- ing remains to be done to the property liy the veinlor. such as counting, mensur- iu>;, weitfliinsi or lilliiiK up. to ascertnin the number, iiuantity or weight. Thus in HuiX'j: v. Minett, 11 Kast. L'lu, turpen- tine had been sold at so much the hundred wei;;ht in casks, to be taken at the marked quantity, except two out of which the others were to be tilled up before delivery: and those two were sold as containing In- delinile quantities. The buyer employcKl a person to do the Iillin«, but before be completed it, the warehouse, with its con- tents, was destroyed bv lire; and it was held that the property In those tilled up had passed to the buyers, btvause noth- ing remaineil to be done to them by the vendors. Now the number of them, like the number of fti't in this raft, couUl be ascertained only by extrinsic proof ; and the case, therefore. IS in point. In peifeot consistence with it is Za^ury v. Fiirnell, i Camp. -4(1, in wliicli a sale of i-oat skins by the bale, containing a specitied num- ber, was held not to pass the property, because the usa«e of the trade, which was consequently a part of the contract, made it the iliity of the seller to count the skins in each bale before they were delivered. So in Hanson v. Meyer, i\ Kast CU. an agreement to sell all the vemlor's starch in a particular warehouse, nt so much the hunilretl weitrhf. the number of hun- dreds to be ascertained betore delivery, did not presently pass the ownership. I There Is no lack of authority for the prln- G98 SCOTT V. WELLS. ci|)le, that while anythinp; remnina to be iloiie by the terms of the contract, to ms- certain the entire price, the property re- mains at tlie risk of tlie vencior; anil in Withers v. Lyss, 4 Camp. 287, the sale of an unascertained quantity of rosin in a particular warehouse, nut taken away, hut requested to be kept in the names and at the disposal of the purchasers, was held not to have been completely deliv- ered ; but it certiiiidy would have been otherwise had the actual custody of it been chantjed. In that event the sale would have been perfect, provided the quantity could have been ascertained by proof. In the case before us, the raft was actually delivered; and, in the absence of stipulation to the contrary, the deliv- ery evinced that no more was to be done by the seller. Had he beeu unable to prove the number of feet which were con- tained in it, the sale would have liecn incomplete, and he could not have recov- ered. As he was able to satisfy the jury on that head, we must take it that the title passerl to the vendee. Did the subse- quent transactions reve«t it? The jury were left to judge of the au- thority given to the agents as a question of fact; and as there was evidence to found a conclusion that their powers were general, we must treat the case as if tlie fact were so; and we must say that Eldred was competent, with the assent of the other party, to rescind the sale, re- vest the title, and make a conditional sale to the same vendee on terms which would leave the property at his principal's risk till the conditions were performed. Was that done? It certainly was not intend- ed. When he first met .Scott, the pur- chaser, there was no proposal on either side to recede from the bargain or alter its terms. On the contrary, .Scott ex- pressly ratified what had been done, and in addition, proposed to fix the number of feet by an estimate, to which Eldred ac- ceded, and H day was appointed to meet at the raft and make it. This new agree- ment, it will be remarked, was not only an independent but a conditional one, and lieing itself imperfect, was of no foi'ce be- ing unexecuted. At the day appointed, Eldred, and Tustin came and met, not Scott, but a person on his part, who said that Scott would attend; but he came not, and nothing was done. Eldred then sought him, found him, and agreed with him to have the raft taken out of the wa- ter and counted at a day named. Eldred again attended and Scott did not, so that the second agreement turned out to be as abortive as the first, and both became as inoperative as if they had not been made. Moreover, it is ol)vious that neither of them was intended to impair or alter tlie sale. The object, a distinct and independent one, was to relieve the pur- chaser from the alternative of taking the agent's word for the number of thH feet, or taking the trouble to ascertain it for himself. To hold that this turned the previous absolute sale into a conditional one, out of which the l)uyer could creep by refusing to co-operate in what was further to be done, and thus leave the property on the vendor's hanils at a place remote from the market, would he not only unreasonable but inconsistent with the evident purpose of the parties. As to the declarations of Scott, on the one hand, that he had once considered himself the owner of the raft, and the con- sent of Eldred to remove it to Harding's landing, on the other, it is enough to say that these, though indicative of tlie un- derstanding of the contract by the par- ties, were not conclusive of the title, and that they were properly left to the jury. What is conclusive of it, however, is that the terms of the sale were unconditional and BUfhciently certain to pass the prop- erty in the first instance; that there was no evidence of an act done to rescind or alter it, and that when the subsetjuent negotiations failed, they left the contract where they found it. It is impossil)le to imagine an objection to the comi)etency of Eldred as a witness. The suggestion is that he may have in- curred liability to his principal for negli- gence or misfeasance, from which he would be exonerated by a recovery in this action; the answer to which is, that there was no evidence of negligence or misfeasance, and that, in the atoence of proof of it, the law presumt's against it. Besides, exposure to the possibility of an action is one of those contingent interests which go only to credibility. Such were the principles that ruled a similar point in M'Credy v. Navigation Co., 3 Whart. 424, and which rule the point before us. Judgment affirmed. SCHANTOX V. CLAKK SCRANTON V. CLARK. (39 N. Y. 220.) Court of Appeals of New York, March Term, l^tiS. Appi'"' from order rcvprsiiitr a judgment for (lefi'iiilaiit and iirdcrin^ a new trial. Action on a promissory note. L. S. Cliutlield, for appellant. JanicH Emott, for reHpoiidentH. r.ACON, J . It the chnrKe of the li>iirnc<l jiidKc upon tlic trial lind Htoppi'd iit the (irst proposition ennnelated Uy liiin, it is poHHlhle the verdic-t nilKht he upheld, he- cause it may perhaps he said ilmt there is some evidence from which th(! juiy iniKht possibly have found that .leronic was the owner of the note in iN^s, when it is ciHiihed that he sold it to Ueliind. 'I'he uncontradicted and indeeil overwheliiiinn evidence is that in Decen.her, is.")", the note in controversy was sold and deliv- ered to Kdwin C. Litchfield, who held it as ownei from that time until August or Septemher, IMiO, when he sold ancl trans- ferred it to Jerome, who soon after dis- posed of it to Klislia 15. Lilchlield, from whom the plaintiffs derive their title. It is quite likely that in the transaction be- tween .leronie and Leland, which occurred in the fall of lNr)>S, both parties supposed that this note wasainonfi the humlle of securities that were traded off for the wild land, liut it is as nearly certain, as it can well l)e rendered by testimony, that .lerome had not then either the possession or ownership of the note, and it can hard- ly lie claimed that the jur.v, if that naked |')roposition had been left to them upon the testimony, could have found any such tact. The utnxist that can he insisted the testimony conduces to prove is, it seems to me, that Jerome agreed to sell this note, with others, in exchanKP for the lands; that the other notes were handed to the clerk of Jerome, or to Jerome him- self, who held them as the dei)ository of Lel.'ind, but that this note was not anions the number and was never in the posses- sion of Leland or tuat of his ajient. Ass'imin;; this to be the state of the case, the jury were instructed, that if they believed that Jerome sold, that is, in effect asreed to sell, this note to Leland, al- thouirh he was not the owner at the time of this aL:re(in.'nt. yet as he afterward be- came the owner, his a;j:reenient implied a warranty of title, and this subseciucntly- ac<)uired"title inured to the benellt of Le- land, his vmiilee, am] payment to him ex- tiiiKUishes the note. I'pon tlii-i proposi- tion the jur.v were authorized to lind, as they did, a verdict for the defendant ; and the (piestion is, whether the proposition is sound Inlaw; in other words, is there an implied warranty of title in the sale of a chattel where the owner is not in pos- session ? It is to b» assumeil that there was no express alllrmat ion of title l)y .lerome to Leland. There was, on the one hand, a sale of Willi lantls, ami on the other, a sale and transfer by delivering of certain notes, and an airreement to sell another note, t)ut of which no assiunnient or delivery waH maile. and no written trunsfer exe- cuteil [inrportitiK to convey a present In- tert St, or one in fnturo. On this precise iiuestion, as to the impli- cation of a warranty on the sale of a chattel ncjt In iiossesslon i>f the vi-ndor at the time, Ciiancelliir Kent, in his Com- nientarles, sl;ites the doctrine, without i|ualilieation. to be. that the ruieofraviat emptor applies, iinil the party bu.\s at hU r)eril. •_' Com. 47n. lie lulds! that If the seller has posseHsion of the article, and sells it as his own. an<l not as airent for another, anil for a fair [irlce, he is under- stood to warrant the title. In support of the rule as thus stated he citen two or three old cases In the KukHsIi biKikrt. The first m the remark of ■I'anlield, Chief Bar- on I'in Cr'). Jac. r.t7>), 'o the effe<'t that If one sells lands, whereof another is in poH- sessii'U, or a horse, whereof another Im possessed, without covenant or warranty for the enjoyment, it is at the peril of him wlio buys, and it is not reason that he should have an action at the law, where he dill not provide for himsi-lf. In Medina V. Slouuhton, 1 Salk. L'lo. Ilult. Ch. J., de- cided that where one having; possession of a chattel sells it, the afhrmation that It iR his amounts to n warranty, biit aliter where the seller is out of posHesslon, for there may be room to (juestion tlie Heller's title, and caveat emptor, in such case, to have either an express warrantv. or a UimmI title. These canes RPein to have set- tled the law in Knuland. in coiiforinlt.v with ihe iirinciple laid down by Kent, and we have been cited to no authority doubtia^or (juestioidriK them, unless such an inference may arise from the remark of I5nller, in I'asley v. Freeman. S T. H. .">s, which however is merely to the effift that if tlie seller allirms the chattel not in his p<)ssession to be his. he is bound to answer for the title ; for in such case the vendee has nothini: else to rely upon. This places the liability upon the ground of an allirmation, BinonntinK to a war- ranty, and is not at all inconsistent with the principle enunciated in thetwoeaseH on which the rule as slated by Kent Ih founded. In this state the same iim-stion waa presented, and is very fully discussed both on principle and authority in the case of .McCoy V. .\rtclier, :i I'.arb. :!'..':i. The effect uponthe iiuestion of warranty of title up- on a sale where the property is in or out of till- Dossession of the vendor Is there considered, and the propositions are es- taldished that possession by a venilor of chattels is eiiuivalent to an allirniation of title, and in such case the vendnrls held to nr) implied warranty of title, even althouirh nolhiiiy: be said on the subject between the parlies. Hut if Ihe property sold be at the time of Ihe sale in the pos- session of a third party, and there be no alflrnnition or assertion of ownership, no warranty of title will he Implied. In those circumstances. In order to attach anv liability to the vendor upon n sale, there must be an ailirmntlon which will amount to a warrnnly of the title. The principle establlslietl by this cane !• ' Roswcl V. Vaughan. 702 SCRANTOX 0. CLARK. followed aud approved in Edifk v. Crini, 10 Barb. 445, where the court cite the case in Oo. Jac. 1!I7, and say t lie general rule is that the vendor of a chattel impliedly warrants the title, yet wlien the chattel is not In the vendor's posae^'sion,blIt in that of another, tliis rule does not prevail. In Hopkins v. Grinnell, 28 Barb. 533, where the sain3 point arose, the decision was to the same effect, and the proposition in the terms laid down by Kent, was reiterated and upproved. It i.i not important to cite authorities from other states, several of which are quoted in tlieoi)inion of the court in the case of McCoy v. .\rtcher, and are to the same effect. These cases in our own courts settle the doctrine with us, from which there has been no dissent from the earliest case to the present time. The effect of thene decisions is so'ight to be evaded by the assertion of the defendant's counsel, that in these cases the vendor never had possession of the thing sold, either before or after the sale, while here Jerome not only had possession before he sold, but afterward. It is not perceived how this fact, conceding it to exist, can vary the principle. The counsel, in this part of his argument, also insists that Jerome was the owner, and had i>osses- aton of the note when he sold. If this were conceded, the argument would be at an end, and the proposition of law we have been discussing would be immaterial, lint it is to be remarked that the weight of evidence is entirely otherwise, and in the pro[)ositiou laid down by the court in this case, the judge assumes that Jer- ome was not the owner of the note at the time of the alleged sale (as he undoubted- ly was not in fact), but that it was his subsequent acquisition of the title that inured to the benetit of the vendee so that ho could hold the vendor upon an implied warranty, vvliich as we have seen, the law does not create, but expressly repudiates. In the case of McCoy v. Artcher, supra, the note, which was the subject of thesale, was potentially in the possession of the defendants, being held by an agent, for their l)enetit,some time prior to the trans- action, by which they were sought to be charged. It is said l>y the defendants' counsel, that the certificate of Jerome to Clark es- tops hira from making any claim on the note against Clark, and this estoppel fol- lows the note into the hands of those de- riving title from or through Jerome. It is quite questionable whether this certifi- cate was properly admitted hi evidence, tlie effect being, if it had any, to iuipeacli the title to a chose in action in the hands of another party, after Jerome had [lart- ed with it. But it could not operate as an estoppel, for the simiile and obvious rea- son that it was given long after the time that Clark had dealt with Jerome, and had profpssedlj- bought the note, and he was induced to no action whatever upon the strength of that certificate, or of any representation made in it. It lacks all the elements of a legal or equitable estoppel, and should properly have had no influence in the case. I think the judgment of the general term should be affirmed, and judgment in ac- cordance with the stipulation rendered for the plaintiffs for the amount of the note and interest, with costs. All concur except MASON, J. SCUDDEU P WOKSTKH. 705 SCUDDEU V. WORSTER et al. (11 Cusb. 573.) Sii]in'iiie .TmiicinI Court of MaRsacIiusetta. SuftolU. Nov. Term, 1853. TliiK wiiH nil nution «if reiilcvin. for IfiO hunclM of pork, to which the <l<-ffiiiJiintH pltfiiilccl only the ut'iu-rnl isHue. It wkh Buhiiiilteil to this court on an iifjrefd 8tnt(>iiieiit of facta. H. A. ScikIcUt, for pluiiitiff. \V. U. Ruh- 8ell, for Ueft'iiilaiils. DKWICY. J. TlilHcnHeis Hiib:;)itti-(1 up- on an iiKi'i'fd HtatcMDi'iit of facts, upon which the coui't are to enter ju<l;;tneMt. Tlie lirst (luestion presented, that of proper plefulinjrH anil wpecificaticin of de- fence, would have lieen more properly raised, liail the case taken the ordinary course of n trial hy jury. l!y niakin;; a Htatenienl of facts and asking the judjr- nient of this conrt thereon, the narticH are understood to have waived all (luestions an to the formal pleadiiiKs. unless those questions are in direct terms reserved. Kor oiivious reasons, this ought to he so. OH the opportunities for amendments of the pleadings would he much jii-eater, an<l thc.v could be more conveniently allowed in the earlier stages of tlie case. The pre- rise objection taken by the idniniiff as to this matter is, that the defendants liy pleading the general issue without a spcci- ticalion, nllefrinjj the property in tliem- Helves in the articles replevied, admit the propert.v in these articles to be in the plaintiff, and deny only the taking of the Name. If this were HO, yet in a case when the riKht of pr-operty was in fact the real mat- ter in controveisy, and the defendant had throuKli siinie misappreliensioii omitted to set forth his claim of i-ight of property, nil aiiieiidiiient ouglit to be allowed to that effect, upim proper terms, if on trial l>elon' a jury, or tiie fac*^s discliaiv-ed and the case sent to trial, if the case were siib- niitted to the court upon an agreed state- ment of facts, if it were necessary to si-- cure the deteiidanl a hearing upon the merits of the <'ase. I!iit in the present ease we think the riglit of the defendants to as.sert theii' property in the articles re- plevied, is not concluded by the form of the pleadings; (irst.for the reason already n«sigiied, that the parties have made a case upon a statement of facts, ami thus waiviMl the ol>jeciion as to the form of the pleadings; and secondly, liecause under our statute of I.SIIG, c. 1.'7:!, aliolishing s[)e. fhd i>li'ading, and allowing no other plea than the general issue, that was properly plea<led, and no call having been made for any specitication of defence, and no objec- tion taken to its omission, until the argu- ment was heard here upon tlie statement of facts, it was too l.'ite to raise the point. Miller v. !^U>eper, 4 Cusli. ;!t;!). .Nor can the plaintiff aid Ids case by reference to his writ commanding the idlii-er to replevy I.'pO barrels of pork, "the property of the phiinllff." and the return indorsed thereon by the ollicer that " he had replevied the within nrentioni'd property." \n oltlcer's LAW t<Ai-b;s — 45 return, however conclnHlvo as to the serv- ice of process, settles nothing of the right of propert.v of the partlcK. 'I his case iniiHt be deciiled upon the result we hIimII come to upon the principal Muesllon no fnllv ar- gued, whether llie propeitv In the l..o" bar- rels of pork ev.r pa-sed from the v.-ndorn by a sale HO far con.plcie a« to autliorlze tlie idalntlff to maintain his action of re- plevin for the same. It appears iroiii thp facts slated, that on February Itl. IvV), ii contract was made l»y the defemlantH I with Secoinb, Taylor, & Coinnaii v. to sell jtliem :;,-,(( barrels of pork briind"ed " ^Vo^- | cesler & Hart ; " thatnliillof sale of the poik was made and delivered to them, an I they gave the defemlanls their nego- tialile promissory notes of hand therefor, f.ayaMe in six niontlis; that It was fur- ther agreeil t hat the (lork should remoin in dffendants' cellar on stornge, at the risk and i'.\pen8e of the purchasers ; thiit Secoinb, Taylor, & t'oin|iany, on the l:ith of .May, 1.s.'>ll. solil lliit bcrrels of the fiork to one Lang, who received llK'sameof the defendants upon the orderof Sec. imti. Tay- lor. & Company; that on the •.'Tlh of May, Is.Vt, Seconili, Taylor, & ('oni|iany solil tlie pbiintiff l.">0 barrels. «lth an order on tlie defendants therefor. The next da.v the ))laintlff gnve notice to the ilefciidantH of tliepurchase, and recpiested them to hold the Hame on storage for him to which the defendants assented. On the L'.'dh oi .lime, SecomI). Taylor, iV ('onipany became In- solvent, and on the same day the plalnlirr called upon the defendants for the pur- pose of receiving the l.'iii liarrels of p.irk, tint tlie defendants refused to allow lilin to do so. On the next day a more fonniil demanil. ai-conipanied by an offer to pay storage, was made, which lii'lng refused by the defeiitlants. nil action of repli'vin was instituted, and l.M) liarrels of pork, the same now in controver-y. were taken and removed from said cel'nr, and deliv- ered to the plaintiff. The furtherfact Isstated In the case. and it is this which raises t!ie<|niwt ion of prop, erty in the plaintiff, that the pork liar- gained anil sold in the manner aliovp slated was in the cellar of the delciidanlH, and n parcel of a larger niiantity ol the same brand, and also with some of a dif- ferent brand, and so contiii'ied jiarccl of a larger quantity of similar liraml. n|i to the tiiee of the suing out of the |daliilif('H writ of replevin: though this fact was not at the time of the sale stated to the piiri'hasi'i's, or to the |)laliitirf when he ipurchased of .Srcoinli. Taylor, \ Cniii- paiiy. Mad these 1.V.0 barrels of pork I n a separa'e parcel, or had the parties di-s- igiiJ.ted them liy any visible mark, distln- guishiiig tlieni from the residue of the viui- dors" stock of pork, the sale would clearly have been an alisolute one. and the prop- erty would at once have pas^-ed to tlifl (lurchaser. There was nothiiiK reqiilriMl to have been done but this separation from the general mass of Ilk'- kind, lo have placed the sjile bevniid nil question or doubt as to Us validity. The rnses cited liy the plaintiff's counsel fully establish the position, that what was done in this case would have traoH- leriod the property in the pork, If the 8Ule 706 SCUDDER V. WORSTER. had been of all the pork in the cellar, or of juiy entire parcel weparateil froiu the rewi- (liie, or if the '2'>i) barrels hafl some dt'Scrlp- tive mark distinitnishiiifr them from the other barrels not sold. The djthcult.v in the case is, in maintaininK tliat in the al)- nence of each and all these circumstances, distinsuishing the articles sold, tlie partic- ular barrels of pork selected by the officer from the larger mass when he served this process, were the [)ropert.v of the plaintiff, or had ever passed to him. In addition, however, to the numerous cases cited to estal)li.<h the general principles contemled for on the part of the plaintiff, and which would hnve been decisive, if it had been a sale of all the pork in the cellar, or a par- ticular parcel, orcertaiii barrels havingde- scriptive niarks which would enable the vendee to separate hi.s own from the resi- due, were cited several more immediately bearing upon the present case, and where property not separable has been held to pass to the vendee. The leading case re- lied upon is that of Pleasants v. Pendle- ton, (i Kand. 17."). This was an action by the vendor to recover the price of 110 bai-- rels of flour sold to the defendant. .\'o other objection existed t(j the validity of the sale, except that the 119 barrels were a parcel of 123 barrels, all of similar kind, in the same warehouse. There were cer- tain brands or marks on the entire 1.3 barrels. The fiour was destroyed by fire while on storage, and the vendee refused to pay for the lUl, upon the ground that the sale was ni>t perfected for want of sep- aration from the lL':5 barrels. The court refused to sustain the defence, and ga»'e judsment for the plaintiff. In i-eference to this case, Grinike, .1.. in Woods v. Mc(Jee, 7 Ohio, 127, says; " It is impossible to di- vest ourselves of the impression that the small diflerence between the aggregate maps and the quantity sold, the former being 123 barrels, and the latter Hi), may have influenced the decision. It was a hard case, and hard cases make shipwreck of principles. " .lackson v. Anderson, 4 Taunt. 24, was an action of trover to recover for tlie ecu- version of 19('>!) Spanish dollars. It ap- peared that the ainouiit had lieen ttans- milled t<i a consignee for the use of the l)laintiff,but they were in a parcel of .f 4i)IS, all of which came into the liands of the defendant. Among other points raised at the argument, was this, that there was nothing to distinguish the $!!)(!() from the entire mass; that there had been no sepa- ration, and of course the plaintiff had no property in any particular i)ortion of the money. The point, it seems, was not made at the trial before the jury, but sug- gested by the cfsurt during the argunicnt before the full court, and this is stated by the reporter; the court interrui)ted the c(»unsel, anvl intimated a sti'ong doubt, as there was nothing to distinguish the ^liKil) from the remaining contents of tlie barrel, wiiether the action could lie. At a future da.v the court eave judgment for the plaintiff. The objection was over- ruled upon the ground th;it the defend- ant had (li-<p()sed of all tie <lollars. conse- qnently lie hail disposed of those belong- ing to the plaintiff. The case of Gardner v. Dutch, 9 Mass. 427, is apparently the strongest case in fa- vor of tne plaintiff. The case was replevin against an officer who hail alta< heil goods as the property of Wellman & I'.opes. The plaintiff liadseven ty six bags of coffee, to which he l>ecame entitled as owner, upon an adjustment of accounts of a voyage he had [>erforined for Well- man & Hopes, but the bags belonging to the plaintiff were in no way distinguished by marks, or separated from the other coffee of Wellman & Ropes. The plaintiff on Ills arrival at Salem, from his voyaue. delivering the entire coffee to Wellman & Ropes, taking their receipt "for sevent.v- six bags of coffee, being his adventure on board schooner Liberty, and which we hold subject to his order at any time he may please to call for the saire. " The point taken in thecase was that the plain- tiff had not the side property, l)ut only an undivided interest, and so could not main- tain replevin. The court ruled that the plaintiff was not a tenant in common, but might have taken the number of liags to which he was entitled, at his own selec- tion, and might maintain his action. This case, on the face of it, seems to go far to recognize the right of one having a definite nnml)er of barrels of any given articles mingled in a common mass, to se- lect and take, to the number he is entitled, alth(/ugli no previous seiiaration had taken |jlace. It is, however, to lie borne in mitid in reference to this case, that it did not arise between vendor atid vendee. The interest in the seventy-six bags of coffee did not originate by purchase from Wellman & Ropes. They becanie the spe- cific propert.v of the plaintiff in that ac- tion on an adjustment of an adventure, the whol? proceeds of which were in his hands; and separated with the possession, only when he took their accountalde re- ceipts for sevent.v-six bags, held by them <m his account. It did not raise the ijues- tion, here so full.v discussed, as to what is necessary to constitute a delivery, and how far it was necessary to have a sepa- ration from a mass of articles, to constitute a transfer of title. Perhaps the circum- stances may well have warranted that decision, but we are not satisfied that the doctrine of it can be properly hpiilied to a case where the party asserts his title, claiming r)nly as a purchaser of a specific number of barrels, there having been nt> possession on his part, and no separatiini of the same from a larger mass of articles similar in kind, and no descriptive marks to designate them. On the other hand, iri support of the position that this sale was never perfected for want of sucl. se()aration of the partic- ular barrels on account of the plaintiff, or some designation of them from others of like kind, there will be foutid a strong weight of authority ; and to some of the most prominent cases 1 will briefi.v refer. Tlius, in the case of Hutchinson v. Hunter, 7 liarr, 140, which was an action of «s- sun.psit to recover payment for 100 bar- rels of molasses sold to the defendant, the sa me being parcel of 12.t barrels, and the v.hole destroyed by fire while on storage, and before separation or designation of SCUDDEH c. AVORSTER. 707 any particular Itarrels, It was held that the plnititiff coiilil nut rerovcr. the Hiih- never \ii\\'\u}i Ixcii rorisiiii.'inatcil. Itutrci-. J., Ka>H: '"'I'he liiniliiniciital rule wliiili a|iplli'H to thiH ciise iw, that the parties niUHt be agreed aw to the KptcKic koo<I« on wliieli the coiitraet is to attach before there can be a liarKalii and Bale. The goods iiiUKt be aHcerlained, deNiunated. and separated from tlie stocli or quantity willi which they are mixed, before the pro|ierty can paKs." He considers the case of I'ieasants v. Peiidleton, <i Hand. 47."i, as decided un erroneons prineifiles. The case of Hutchinson v. Hunter pre. sented a case of a sab-contract or sale like the present, and it was urged that this differed the casefroni what it niidiit other- n isp have been, as respects the original vendor. I'.ut the court held that this did Dot vary the cas-e In the matter of the ne- cessily of a se|iaration of the article sold from the urea ter mass. So in Golder v. Ogden. 1.') I'enn. St. (;i Harris,) .")L'H, where a contract was made for the sale of L'OOO pieces of wall |>aper. the purchaser jtiviim Ills notes therefor to the vendor. an(l tak- iuK away with him loou pieces, and it was URreed that the other 1000 pieces should remain until called for by the purchaser, upon a (lUOKtion of [)roperty in the re- maining 1001) pieces between the assignees of the vendor and the i)urchaser. it was held that these loOOpieces not having been selected by the buyer, or separated, or set «[iart for him. but remaining minp.leil with other pa|>er of same description, did not become tlie property of the alleged buyer, as against as assignment for the benefit of the creditors of the vendor. The principle advanced in that case seems to be the sound one: "That the property cannot pass until there be a specific iden- tification in some way of the particular gooils which the partv bargains for. The law knows no such thing as a floating right of property, which may attach itself either to one parcel or the other, as may be found convenient afterwards." The case of Waldo v. lU'leher, 11 Iredell, c.o'.l, was the case of a sale of corn by a vendor, having in his store aiOO bushels of corn, and selling INoo bushels of the same, l)Ut the LNtKpiiushels were never separateii from the:!loo, and the whole was. after the sale, destroyi'd by (ire; and it was held that the property in the L^Oo bushels <lid not pass to the vendee, though it would have been otherwise liad it been a saleof all the corn in the crib. The ground of the deci- sion was, that there had been no separa- tion, that it could not be ascertained which corn was the property of the ven- dee until it was separated. The purchaser could not bri:;g detinue, because he could not dcKcribi' the particular thini;. This would be ecpiallv so as to replevin. The case of Merrill "v. Hnnnew?ll. l:M'ick. '.'l.-t. ' hears strongly upiin the ((Uestion before [ us. H was a sale of nine arches of bricks in a kiln containing a larirer number, but not separated from the residue, or specif- ically designated. .\fter the vendor had.! by other sales, reduced the quantity on hand to IcFs than nine vrchts. upon « Mnehlion of property between ihe\en.l«e and au attaching creditor of the vendor, it was held the (lurchaser took no prop, erty in the bricks, the sale being of part of a lj;rge niass. not delivered nor specitlcally <lesit'nati(l, Itlackburn. in his Treatise on .Sal'-». p. I'O. piespiits the law on this subject thus: "Until the ()arties are agrei'd /is to the si.ecilic Identical goods, the contract can be no more than a contract to su|iply goods answering a iiarticular de»iriiition. and since the vendor would fullil his part of the contract by furnishing any parcel of goods answering that deHcrlpti'on. It Is clear there can be no intention to transfer thepiopi'rty in any partiiular lot of goods more than another, until it is ascertained which are the very goods sold." E.xamluing the facts in the case before us, and applying the principles of therases last cited, and the appioved elen entary floctrine as to what is necessary to coimtl- tute a sale of property not separated friira the massof like kind. or designatecl liy any descriptive marks, the court are clearly of opinion that the pro|ierty in the spiH-illeil ir)0 barrels of pork taken by the (dalntiff. under his writ of replevin, had never passed from the vendors, and therefore this action cannot be maintained. In the argument of this case on the part of the plaintiff, the case was put as u case of intermixture of goods, and It was ar- gued that such intermixture having taken place, the [dalntiff might, for that cause, hold the |)roperty an bis. Itut. in fact, there was no sucli case of intei nil.\ture. The entire property was always In the de- fendants. It was also urged that the ilefendants were estopped to deny that the I.Vi liarrels of pork were the properly of the plaintiff, having given a bill of sale of tli" same, and under the circumstances stated In the stalementOf facts. Had this been an ac tion to recover damages for the value of l.'O barrels of pork, this position niiulit be tenable, and tin' defendants estoppeil to deny the property of the plaintiff in suth l.'iO "liarrels. Thiswouhl be so if an ac- tion had been brought agaiast the defend- ants as bailees of l.'iO barrels of pork, and for not delivering the same. r.ut the dintinction between the case of an action for damages for not delivering l.'.U barrels, and that of replevia, com- niandini; the otficer to take from tlie pos- session of the defendants l.'iO liarrels. and deliver the san'p to plaintiff as his prop- erty, is an obvious one. To sustain the forn\er.it is only nere>sary to shown right to l."iO barrels generally, anil not any spe- cil'c l.'iO barrels: but to maintain replevin, the plaintiff must be the owner of some speci'ic ro barrels. If bought, they must lif specitlcally set apart, or designated In some way as hU. and not InterminRleil with a larger mass of like kind owned by the venilor. .Indgnient for the defendants. SEITZ 0. BREWERS* REFRIGERATING MACH. CO. 709 BEITZ V. BREWERS' REFRIGERATING MACH. CO. (12 Sup. Ct. Hep. 46, 141 U. S. 510.) Supreme Court of the United States. Nov. 9, 1891. In prror to the circuit court of the Unit- ed States for the eastern district of New York. Action by the Brewers' Rcfrifteriiting Macliine Company uRaiiiHt Michael Seitz. There was judK'nient lor i)laintiff on a ver- dict directed iiy the court, and defendant brings error. Judunient adirnied. Staieincnt liy Fuller, C". J. This was an action brou;iht by the Brewers' Be- fr'^eratinK Machine Company a;<ainst Michael Seitz ui)on the following con- tract: "Tliis agreement, made this lltli day of January, A. L). IST'.). between the Brewers' I{efrigerating Machine (.'ompany of Alexandria, Va., party of the first part, and Michael Seitz, of Brooklyn, N. Y., par- ty of the second part, witnesseth : That the party of the first part hereby agrees and contracts to supply tlie party of the second part with a No. 2 size refrigerating machine, as ciinstructed by the said party of the lirst part, by tlie l.")th day of .March next, or as soon thereafter as possible, the machine to be delivereiJ at the depot f)r wharf in I'hiladelphia, Fenn., and to be put up and put in operation in the brewery of the said party of the second part at L'.'iN-2(;4 Maujer street, at Brooklyn, E. U., N. Y., under the superintendence of a competent man furnished I)y the said party of the first part. The party of the second [lart hereby agrees and contracts to pay to the <aid party of tlie lirst part for said ma- chine the sum of nine thousand four hun- dred and lifty dollars (.ti'.t.4.'i().ilU) in manner as follows, namely : Four thous;ind seven hundred and twenty-five dollars ($4,- 725.00) on the da.v when the ninehine is put in operation at the l)reweryof thes;iid party of the second part, and the balance of four thousand seven hundred and twen- ty-live dollars ($4,7l'')) in three et|ual in- stallments: that is to say, oni' thousand five hundred and sevenly-live dollars (?!,- 57.").0l)i for each installmi-at, payable, re- spectively, in one, (1,) two, (2,) and three (3) months after the day when the machine is put in operation at the bi'ewery of the said |)arty of the second part, for which installments (he said party of the second part agrees and contracts to give his notes on the day last mentioned." The complaint, after setting forth the execution of the contract on tlie 11th of January, .\. I). lf<7!l, alleged compliance therewith in every respect bj- the plaintiff, and breach of the promise to i)ay the pur- chase price. 'l"he defendant stated in his answer, among other things, "that the niacliine placed in defctidant's brewery was worthless, and incapalile of op?rat- ing to produce the results represented by plaintiff to this defendant as an induce- nienl to enter into the aforesaid agree- ment; that sai<l machine has not lieen ac- cepted by this defendant, nor operated, or at tempted to be opera ted. by defendant, his agents, employes, nur any other per son aetiiig liy or under his authoiity, and did not i);iss"(.ut of theeoiitrol of theplain- lii'f: nor has the said machine lieen useil by him in his said brewery, because said machine was worthlesB, nnil Incnpablp of serving any iisefid piiriiose tliiTcln. " AnO defendant also averred, by way of coun- ter-claim, that he had susliiined' daniagea by reason of false and frauduh'nt repn-- sentutions by plaintiff as to what thi- ma- chine would accomplish. In reliance upon which he had permitted his brewery to be subjected to the action of said miieldne. and suffered loss accordingly, f'pon the trial before the circuit judge and a jury, plaintiff proveil thatn No. 2 nlze refrigiTnl- ing machine, as constructed by the lirew- ers' Befrigernting Machine ('oiiipany, was supplied defendant, and put up and put in operation in his bn-wery by it in accord- ance with the terms of the contract. Iie- fendant thereupon aBke(l to amend his an- Bwer. "toset up that delendntit entered Into that contract by reason of fraudulent representations on the i)art of this '-om- pany." The amendment was nllnweil. and was in substance that plaintiff repr<>- sented that tiie machine was capable of cooling certain rooms in the brewery which had lieen examined by piaintiff; but the machine, when set up and operat- ed, was n<^t so capalile. and failed to per- form the work for which, upon the n-pre- sentationsof theplaintiff. the machine had been contracted for by defendant: that defendant contracted to purchase the machine upon the giiarant.v byplaintlfl to defendant that it woulii cool certain rooms, an<l it was u|ion that gu.iranty alone that defeiid.int entered into the eon- tract: that defendant entered into the contract upon the representations <if the plaintiff to tlie effect that the No. 2 iiiii- chine referred to in the contract set forth in the complaint would c«iol and was cap- able of cooling a space of l."iO,aoii cubic feH of air continuously to a temperature snifl- cientl.v low for the purpose of bP'Wing or manufacturing beer in the defendanfs brewery or premises, that is to say, to a temperature in the neighborhood of 40* Fahrenheit: and that the plaintiff kni-w, at and beftire the time when the con- tract was niaile, that the representa- ti<ins n):ide to tlie defendant werefalse and unfonndi'd, and knew that the said \o. 2 machine was no*^ callable of perfdrming the work which plaintilf represented It uti being capable of performing, and knew that the machine would be worthless to the defendant for the purposes for which defendant contracted for it and Intenili-d to use It. Kvideiice on defendant's behalf wnstlieii admitted, tending to show that, pritir to the execution of the cmitract, plaintiffs agents had represented that the ma- chine would cool 1,->0.(MI0 cubic feet to 40^ Fahrenheit : that ih'f. mlaiit bad been cooling his lirewery with Ice, and wished the machine to cool the rooms to about the same extent; and that the machine did not cool the rooms as desired. On cross-examination of the dctendanfn agent, it apiieared that on January 13, IsTO. he wrote to the secretary of the re- frigerating company: "In speaking t«i Mr. .M. Seitz to-day he said that your agreement was very unsatisfactory to him: in fact, that bcl.iie he would gi-t the machine that he wanted a written gnar- aatvfrom von that you woulil cool his building, which you huvosceu, to 3)» 11., no SEITZ V. BREWERS' REFRIGERATING MACH. CO. and keep it at that all the time; other- wise lie would not have the machine, as he would have no. use for it, as he would liave to put himself to great expense and •.jreat risk at the same time." To which plaintiff respimded, January 2t)th : "I regret to hear tliat Mr. Seitz fecJs dissatis- faction with the contract made with him. The guaranty he now asks for in addition it would not lie proper for us to give, as Mr. Seitz himself will see on further reflec- tion, we think. The maintenance of a certain temperature in his rooms is not solely dependent upon our machines; in fact,\here are a great many other things entirely beyond the ccmtrol of the machine which influence tliis temperature. The mode of working tlie rooms, the water used for washing, the fermentation, and many other things might be mentioned in this connection as matters which we can- not control, and which nevertheless are most important considerations In the maintenance of a given temperature. We are confident, from the experience with the Portner machine during last summer and fall, that the machine sold to .\Ir. Seitz will not only give him the desired low temperature, but will, in addition, give him what he never before had in the warmer montlis, namely, pnre and dry air. The machine we are building for him is in many respects far superior (aside rom sizel to the Portner macliine, and when he has had it a year we believe he would not part with it for any money, if lie could not replace it. That we must de- cline to guaranty what Mr. Seitz asks for is sim])ly for the reasons stated. There are too many side considerations entirely beyond the control of the macliines. We would add that we have not in anj' in- stance been asked for such a guaranty a.s a condition of sale, but tliat all the par- ties to whom we have sold bought on our representations, and what they have seen and hoard of the working of the Portner machine." On January L"l, 1.S7!), defend- ant's agent telegraphed plaintiff: "Will you defend any infringement suits against Mr. Seitz for usiiigyour machine?" and on January 23, 11S7U, wrote: "The machine sold to Mr. M. Seitz is all right, and can be sent at any time that it is ready. " On the Kith of March he again wrote plaintiff: " Mr. Seitz would like to have you to com- mence at once i)utting up his machine." The defendant having rested, the court, on motion, directed a verdict for tlie plaintiff for the amount claimed. The circuit judge remarked to the jury that the only defense worthy of consideration was that the machine was sold to the de- fendant under fraudulent representations by the plaintiff's agents, but that there was no evidence of fraud whatever in the case; that there was evidence to show that the machine did n(jt work satisfac- torily, and the jury were doubtless au- thorized to infer that it did not have the capacity of cooling 15(i.(iOO cubic feet to the degree stated, but that there was a written contract in the case, which con- tained no warranty, and, consequently, if the machine did not fulhll the expectations of the defendant, or if it did not fulfill verbal representations made at the time the contract was entered into, nevertheless defendant had no defense; that there was no evidence that false or fraudu'ent representations had been made; that the machine had been built and put uj) pursu- ant to the written contract ; and that the defendant could not be iierniitted, upon the general theory that the machine was not a satisfactory article, to defeat the plaintiff from recovery. The verdict hav- ing been rendered as directed, and judg- ment entered thereon, the cause was. brought here on writ of error. Esek Cuwen, for plaintiff in error, .liilin H. V. Arvnld, for defendant in error. FiiLr.ER, C. J. If the defense were solely that the defendant was induced by false and fraudulent representations to enter into the contract in question, it is conced- ed that the circuit court did not err in directing a verdict for the [ilaintiff, as there was no evidence of fraud in the case. It is earnestly contended, however, that, under the answer as amended, the defendant was entitled to avail himself of the breach of an alleged contract of war- rant.v or guaranty collateral to the con- tract of purchase and sale; or of an im- plied warranty that the machine should be reasonably fit to accomplish a certain result. Assuming the sufficiency of tlit pleadings to enable the questions indi- cated to be raised, we are nevertheless of opinion that the direction of the circuit court was correct. The position of plain- tiff in error is, in the first place, that the evidence on his behalf tended to show an agreement between himself and defendant in error, entered into prior toorcontem- poraneousl.v with the written contract, independent of the latter and collateral to it, that the machine purchased should have a certain capacity, and should be capable of doing certain work ; that the machine failed to come up to the re()uire- nients of such independent par<d contract; that this evidence was competent; and that tl.e case should therefore have been left to the jury. Undoubtedly, the exist- ence of a separate oral agreement as to any matter on which a written contract Is silent, and which is not inconsistent with its terms, may be proven by [larol, if, un- der the circumstances of theparticularca.se, it may ijroperl.y be inferred that the jiar- ties did not intend the written pajjer to be a complete and final statement of the whole of the transtiction between them. But such an agreement must not only he collateral, but must relate to a subject distinct from that to which the written con- tract applies; that is, it must not be so clcjsely connected with the principal trans- action as to form ]jart and parcel of it. And when the writing itself upon its face is couched in such terms as import a com- plete legal obligation, without any un- certainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the par- ties, and the extent and manner of their undertaking, were reduced to writing. 1 (ireenl. Ev. § 275. There is no ijretense here of any fraud, accident, or mistake. The written con- tract was in all respects unambiguous and definite. The machiue which the compa- SEITZ 0. BREWERS' REFRIGERATIXG MACH. CO. 711 ny sold, and wliieli Scitz boiiglit, was a [ rule.nscuprcssed in tlic fcx*-l>ook««n<I»iiii- Nil. 2 size rcfriKcr.itiiiK iiiacliine, ok eon- | tainr-il by nutlmrilv. tlwit « luTt- a kni>wii. Hlnictcil l)y the coinimiiy, and kucIi wjih , described, and ddinitc article Ih unlered the inacliine wliicli wa^ ilelivercd. put up, i uf a inanufacUiier. altliou-li It Ih BtutuU and opeinted in the brewery . A warrauty by tlie purchaHer tu be re.pilred for a par- cir Kuaranty that tliat machine Hliouhl re- tieular purpoHe. kIIII. ir llie kiunvn, ile- duce tlie temperature of tlie brewery to , Berieic.l. and deHnite thinw be ai-tuallv i.up- 4[p Fahreniieit, vvliiie in itself C(dlateral to , plied, there in no warrantv that it' hIiiiII the Hale, wlilcii would be eoniplele with- nnstver the particular purpoKe Intemled out it, would be part of the dcscri|>tioii, bythebuyer. IJeuj. SaleH. j t;:>7 ; Add.Coiit. anil essential to the identity of the riiin;; i bk. -J. c. 7. p. *<>■;■;■, Chanter v. HopklnH. 4 Kold : and to admit proof of hucIi an en- Mces. & \V. :!!•'.); Ollivaiit v. Ha vlev. .". l^. jraKi iiicnt by i)arol would be to add an- 15. I'ss; District of Colundda v. CUphanp, other term to the written eontraet, con- 110 U. S lil'J. 3 Sup. ft. Itep. .".tis; lUhlKi) trary to the settled anil salutary rule Co. v. ilaniilton. Ill) IJ. S. li»s, :i .Sup. Ct. upon that subject. Wliether the written Rep. ."):!7; Hoe v. Saidioni, -Jl .V. V. .ViL'; contract fully e.xpressed the terms of the lJeinin;r v. Fosler, -ll' .\. II. lii.'i. agreement was a question for thecourt. In theeaseat barthe machine purchased and since it was in this instance complete wasspecilically ileHi;;nated in Ihecoiitract, and perfecton its face, withoiitainblfiiiity, and the machine so desiu'uateil wa-i dellv- anil embracinti the whole subject-matter, ered, put up, and put in operation iti the it obviously could not be determined to brewery. Tlie only impliiiilion in regard be less comprehensive than it was. Ami to it was that it would perforin the work this conclusion is unaffected by the fact the described machine was made to do, that it did not allude to the capai'ity of and it is notcontended that there was any the particular niMchiiie. To hold that failure in such performance. This is no"t mere silence opened the door to jiarol evi- the case of an allejied delirt in the process deuce in that regard would be to beg the of manufacture known to the vi-iidor. but whole question. We are clear that evi- not to the purchaser, nor of presumptive denee tenilinK to show the Jilleiicd inde- and justifiable reliance by the buver on pendent collateral contract was inadmis- the judRuient of the vendor rather than silde. .Martin v. Cole. 101 U. S, 30; (Jilbert j his own, but of a purchase of a spicille ar- V. I'liniirh ('o..ll'.l U, S. J!)l, 7 Siq). Ct. Rep. tide, manufactured for a partiiular use, ;;o."); The Dilaware, 14 Wall. IJ7!t; Nnuin- and fit, pro|ier. and ellicacious for that herd V. Youns;.^-! -'^- ■' Law, :{:!! : Conantv. u-;e, but in respect to the operation of Rank, I'-'l Ind. :!.;>. ".'l' N. K. Rep. LTiO; .Mast v. which, in ])roducin;j a desired result under Pearce, 5S Iowa, .")7'.i, s N. W. Rep. r>:i2, and particidar circumstances, the buyer found 1:; .\. W. Rep. .5!)7; Thompson v, Lihby, 84 ] himself disappointed. In short, there was Minn. 874, 'J(') N. W, Ri'i). 1 ; Wilson v. Deen, no express warranty that the machii:o 74 .\ . Y. .5:51 ; Robinson v. McNeill, ;">! III.L'iV would cool I."i0.it00cublc feet of atniosidiore FailluK in respect of the alleged e.xpress to 40° Fahrenheit, or any other temper- warranty, plaintiff in error ccmtends, see- ature, without referinice to the construc- ondly, that there was an implied war- tion of the particular lirewery or other ront.v, arising from the natureof the trans- surroundinsr circumstances, and. It there actiiin. that the machine should be rea- were no actual warranty, none coidd he sonably lit to accomplish certain results, imputed. We may add that, in the light to effect which he insists the purchase was of all the evidence in the record, treated as made. It isargued that the evidence tend- competent, we think no verdict could be I'd to establish that the plaintiff knew that permitted to stand which proceeded upon the defendant had been cooling his brew- the ground of the existence of such a war- cry with ice, and that the object of obtain- raniy as is contended for. The alleged an- ing the nuichine was to render unneces- tecedent representations as to whether sary tlie expense of iiurchasing ice for that the machine possessed siillicient refrigerat- piirpose, and that unle.-'s the machine ing l>ower to cool this brewery were no would cool it to the same extent, or about more than expressions of opinion, confes!*- the same, as thy ice did, it would be edly honestly entertained, and dependent worthless, so far as he was concerned. It upon other elements tiian the machine Il- ls not denied that the machine was con- self, concrrning which plaintiff In error structed for refrigerating purposes, and could form an opinion as well as defend- that it worked and oiierated as a refriger- ant; and the conduct of plaintiff In error ating machine should; but it is said that in demanding, twodays after the contract it did not HO refrigerate as to reduce tlie was executed, a written guaranty that temperature of the brewerv to 40"Fahren- the machine coni|>any would cool hisbnlld- lieit, or to a temperature which would Ing to :!S," Reaumur, (or 4ii- Fahrenheit.) enable defeiidanl to dispense with the pur- and keep it at that all the time, ami in nc- chase of ice. The rule invoked is that quiescing in the company 's refusal to give where a manufacturercontracts to supply the guaranty for reasons stated, and In an article which he manufactures, to be thereupon afterwards ordering thecoin- applied to a particular purpose, so that pany to go on with the work, as exhllilt- the buyer necessarily trusts to the judg- ed in the correspondence bet wivn rti<- par- ment i")f the inanufne'turer, the law imitlies tics, seems to us to jiistifv no otliercon- n promise orundertaking on his part that elusion than that reached by the ver- the article so manufactured and sold by j diet. The judgment of the circuit court Is him for a specillc |)iirpose, and to be used nfflrmed. In a particidar wav, is reasonably lit and liroperfor the pnrijo.se for which he pro- Ruai.i.kv and «. hay, .1.1, were not ppeii- lesses to make it", and for which it is ont at the argument, and took uo part In known to be required; but it Is also the I the Ueclaiou of this case. SEWELL V. BUHDICK. in BEWELL et al. v. BDRDICK et al. (10 App. Cas. 74.) English House of Lords. Dec. 5, 18S4. Appfiil liy till- ik'fendnntH from an order of till- I'inii-t of iippuol' i-fiversinjl h ileci Kidii of Kirld .1. Till- factH an- fully Ht-t out ill the jiiilj;ii;ciit of Field J.- lirielly they were hH fnlluWH • — In Si'ptcinher Isso NereeHsiantz Hliip))ed ciiiicliinciy on the rewpoiideii I'h ship to lie eiiiilcd Iriiiii Loiiilon to I'oti in the liliiek hcii, under l)illM of Indiii;; wliereliy the jroodH were nuide deliveriildi- t<j the Hliip- per or iisKl;;nri, treiii'it. primage, un<l din- l]iii'He:nentH to bo p.iid at deHtinution, In ilcfivult the ownerH or a^ients to have /in aliMohite lien on the noodw and liherty to Ki'll liy auction and retain fn-inht and all eh irnes. Tlie bill.s of ladinsr indorHeil in Maiik were in November ISMI rlcposited by NiTeeHsiantz with tlie apiiellantH, bank- ers iu Manchester, UR seeiirity for a loan of tUH) advaiieeil by them to NercesHiMntz. The HJiip mean while liad ariived at I'oti in September, and the yoodw were laii<led niid \vareh<>use<l at the Uiissian ciiHtom- lioiise in October. NerccKniantz diwap- priired. and after a year the j;oo<ls in ac- cordance ivitli l'u.«Kian law were .sold to pay eustoni-liou.se <luty ami eliarnes, and rcaliy.eii uo more than enough for that purpose. Meanwhile the appellant.s hurl indorsed tlie bills of l.idiiiy; to their aRents a t 'I'itlis with instruitions to pro- tect their interestH, and had Informed the Hliipowners that if the ^('odH were sohi to pay trciuht, etj., the ai'pellaiitselaimed all the proceeds over and above the amount due to the shipowners for fivisrht etc.. but the appellants never claimed de- livery of tlie j;oods. The resjiondent liav- Int: brought an action for €174 ss. Dd. for frelulit and charges, a^jainst the appel- biiits as indorsees of the bills of lading:. Field .1. who tried tile case without a jury cave judgment for the defendants."' TTie court of appi'al ( Hrett, .\1. K., and Ba«- Kallay. L. .1., Iloweii L. J. diHsentinc) «et aside this jiidnmeiit and^ave jud^iinent for the plaintifi lor the amount claimed. + The ilcfeiidauts appealed. Sir F. Ilerschell, S. (i., ( DanckwertH, with him, I for appellants. C. Hall, Q. C, and ICilwyn Jone.s, for rec|)oudent. Karl of SKLUOK.N'i:, !>.('.:— My lords this appeal raises llie iiuestion whellier under tlii' bills of ladins^ act of \<>'> 1 1N\- I'.l Vict. c. Ill) every holder of a bill i>i lad- in>r, indorsed in lilank. who has taken il by way of security for an advaiiceof mon- ev (and has not afterwards parted with It) is liable, by reason of such indorsement only, to an action for freight by the ship- owner; although he may not have ob- tained delivery of the^oods orderivedany other benelit from his security. The SToodH in this case were, by the terms of the bill of ludinii, delivHral)le at ' 13 Q. B. D. ir)9. "UIQ, H. 11. ,1(13. "1(1 g. H. I). :!(•>:(. « 13 (J. 13. 1>. 159. I'oti, a liuKsian port on the Itlark iien,iiiid had liccii landed and warelioiised (lu-relD a public warehouse ( no one appearini; to claim or take cliarwe of tln-in | before the date of the inilorseiiient. This was their position when the prisent action wnn broui;lit liy the respondent, the rihipown- er, against the appellants, who were bankers at ManeheHtcr, anil who had ii'l- vanced t;!(i,i to the shipper upon the secu- rity of the bill of lailiii^. In hisHta teuient of claim the plaintur alN-u'ed that the Koods still remaini-d at I'otl umler I he v.irt_- of the Russian authoritii'M: that the plaintiff hail under Kiissian law ni> power of selling; them for the purpose of paylni; hliiiKelf the amount claimed 111 the action (tl7t Ss. 'Jd. and intcrcsti; and that the Itiissiau authoriticH were about to sell the same tor a sum barely suitioient to cover the customs duties and Koveranient chari^i'S thereon. Tlii-y were, in tact, sold by tlie itiissian autlmrilii'S, and did not realise more than the amount of those du- ties and charKCH. Fuller theseclreiimstaneeH, Field .J ( who tried the case without a jury ) ita ve jiiiIk- nient for tlie defendants (the appelbintH here.) That jiidp;nient was reversed by n majority ( Ilrett M. K. and Ha;:);anay L>. J.) of the Jud);es in the court uf aiipeul. liowen L. .1. dissentinjr. The difference tietween thOHe learned judues mainly (if not nltoRetherl turned npoii the question, whether, accordlnir to the aiithiirities from IJckbarrow v. .Ma- son' downwards, the effect of an Indorse- ment and deposit of a bill of lading, while the ;;oods are in transitu, l>y way of si-rn- rity for a loan, in to pass the whole leKal title to the (joods. or only to pledge tlieui, passin;; at law a "special properly " and lea\iiiir »he"t;eueral [iroperty " in the ship- per. TTint nuestion was much deba led in (Myn .Mills & Co. v East and West India Dock Company,"' where l<rett \t. .1. ex- pressed the same opinion on whiih he acted in the present case, liramwell I,. .1. takiut; the opposite view. .My uolile friend Lord Hlaekburu. in hix opinion on that ca.se, when it readied this house ad- verted to the point but thought It unnec- essary to express any opinion upon It." In the present rase the true i|iiestion Ih whether "the property" in the coods "passed to the indorsee upon or by reason of the iudoisemeut," within the meiiiiiuK of thos"! words, as used in the bills of lad- in;; act of l>>:i."i? It »vas considered by llrett M. K. and Ha^^jallay L. .1. that It the effect of the iiiibirsemeii t and deposit was (as they thoiiuhl) to pass the whole heal title tothe jroods to the appellants as in- dorsees, leavinir an equitable interes; on- ly ill tliesliippei-.it was a necessary eonse- queiice that "the property passed" to them within the ineaniiitt of the statute, and that the respondent, the shipowner, was entitled to recover un.ler the statute in this action. They clearly used the words "lesal" and "equltatile" In that technical sense which they have acqulreJ in Enulisb law. • 1 Sm. L. C. 753, 8th ed. •B Q. B D. 4r.V '7 App. Ciis. IWHJ. 714 SEWELL V. BURDICK. I am not in.VMolf sntislipfl that this con- sequence is necessary ; Imt 1 ailinit that there are dirticnlticH in the way of the con- trary view; an there are also ditticnlties (arisins from the strong and unciualified lansiiage used by judges of great authori- ty, from the time wlien Lickliarrow v. Mason** was decided downwards) in the way of the opinion that an indoraement auii deposit of a l)ill of lading in a caselike the present oi)erates by way of pledge, and not as an assignment of the whole legal title to the goods. The facts her(< are sinip.ly an indorsement in blank and tietiosit of the bills of lading, so indorsed, by way of security for money advanced. There "are no special circumstances, ex- cept that the indorsee never did obtain, and that it was never possible for him (in fact) to obtain, delivery of the g.)ods. I should not feel greatly embarrassed (if there were no other authority) by the mere terms in which the custom of merchants was found in Lickbarrow v. Mason ;* namely, that "bills of lading are after the shipment, and before the vo.vage perforin- eil, negotiableand transferable by theship- per's indorsement and delivery, » » * and that by such indorsement and deliv- ery the propert.v in such goods is trans- ferred." This, it maybe said, is the lan- guage of the bills of lading act. But I do not understand it as nece8saril.v meaning more than that "the property " which it might be the intent of the transaction to transfer, whetherspecial orgeneral.iiasses by such an indorsement, according to the custom of merchants. The finding must be reasonably understood ; it cannot (lor instance) mean that the propert.v will be transferred when thereisnoeonsideration. But, although the custom as tound seems to nie to beconsistent with the view taken by Field J. and Bo wen L. J. in the present case, I have more diliicult.y in say- ing that the language of Buller J. in the earlier stages of Lickbarrow v. Mason" is HO. And, in some later cases, other great judges have not only followed, but have even gone beyond that language. The court of queen's bench, in Ke West- zinthus,io held that a right of stoppage in transitu might be exercised ag.'oinst the interest remaining in the shipper subject to the security created by an inilorsement and dei)oHit of the bill of lading, but they did so on the ground, not that the ship- per retained any legal title or interest, but that he had an equity of redemption, of which theformin which the question then arose enabled the court to take notice. And, although it is true that in Harris v. Birchii the court of excheciuer, then composed of Barons Parke, Alderson, Gur- ney, anil Rolfe, decided a question of Rtamp <lut,v ur>on the ground that an in- dorsement and dp|)osit of a bill of lading by way of securit.v operated as a pledge, and Coleridge J. in Jenkyns v. Browne- considered it to pass a special property only to the indorsee, leaving the general «.5T. R. 683. n Sm. L. C. 75.3, 8th ed. '».5 B. & Ad. 817. "9M. & W. 591. " 14 Q. B. 503. property in the shipper, and in Meyerstcin V. Barber'3 oil the judges of the comuicui pleas and in the excheiiuer chamber con- curred in that view, — yet, on the other hand, when Meyerstcin v. IJarbercame to the bouse of lords (where the judgments of those courts were affirmed), I^ord llath- erley and Lord Westbury used strong lan- guage of an opposite kind. Lord Hather- ley said: " I( anything could be supposed to be settled in mei'cantile law, I appi'i'- liend it would be this, that, when goods are at sea the parting with the bill of lading is parting with the ownership of the goods;" and afterwards, "I a|)pre- hend that it would shake the course of proceeding between merchants, as sanc- tioned by decided cases, if we were t(» hold that the assignment of the bill of lading, the goods being at the timeat sea, does not pass the whole and complete ownership of the goods, so that any per- son taking a subseciuent bill of lading, be it the second or be it the third, must be content to submit to the loss which would arise from the state of facts." These words are hardly, if at all, qualified by the context, "so that," etc. although in a later sentence (as to which see the re- marks of Lord Blackburn in 7 Appeal Cases page 0114), the ijroposition is less absolute: "'When the vessel is at sea, and the cargo has not yet arrived, the part- ing with the bill of lading is parting with that which is the symbol of proi)erty, and which for the purpose of conveying a right and interest in the property, is the prop- erty itself. "It Lord Westhury's language is similar, perhaps stronger: "No doubt" (he said) "the transfer of it" (the bill of lading) "for value passes the absolute property in the goods." He quoted some words of Erie C. J to which 1 shall afterwards refer, as having the same sense; he spoke of tlie first holder for value of the bill of lading as having "the legal ownershi|) of the goods," "the legal right in the pro]ierty," "both the right of property and the right of possession passing by a symbol, ihe bill of lading, wliich is a I once both the symbol of the property and the evidence of the right of jtossessiim. ">5 To reconcile these expressions with those used in the same case by the judges of the common pleas and in the exchequer chamber is scarcel.v possible, and yet no dissent from the views of those learned judges was expressed in this house; on the contrar.v their reasoning, and espe- cially that of Willes .1., was referred to with apparent apiirijval, particularly by Lord Ilatherley and Lord Chelmsford. In such a contiict, not of decisions but of judicial phraseology, if not doctrines, it becomes important to remember that it is often dangerous to infer, even from very strong words, when used diverso intuitu, con- clusions on other subjects which if they had Iteen pi-escnt to the minds of the speakers, might perhaps have led to their being more guarded or qualified. None of the cases to whic-li I have referred arose "Law Rep. 3 C. P. 3S, B61. » Law Rep. 4 H. L. 325, 326. " Law Rep. 4 H. L. 335-337. SEWELL 0. BUUDirK. 715 ■npon the stntiito with wliieli yiiur loril- HliiiiH have now Id ileal, tlii'.v iclntcil, Home ti) llic rii;lit of Htoiipa^in In transini. Home to roiii|ictiMi; claliiiM hetlveen hold- erH for value of 'liftei-eal parts of the Harne net of liill.s of lailiajj. It may well he that, as a^alast ali Hueli elajniH. anil against partleH Metlinir up interentH ailveiHe to the title of the InilorHee for value, siieh wonls iiH "the li'Kal ownerHliip," "the le^^iil rijilit," "the rif;ht of property In the KooiIh," mi(iht be nHeil, anil the property whieh pawseil to the Indorsee nii>rht lie ile- suriheil as " aliHolute" in a sense Hiihstan- tially true, even thouKli Hiich (iroperty ml;;lit, as lietweeii the inilorsee reeeiviun anil the shipper depositing (he hill of lad- ing by way of secniity.he speelal only anil not }xeneral ; and thon^ih the most apt term for a si-iintilie delinition of the trnns- action as het weeii the borrower and the lender, mav be, not nssiKninent or Irnns- fer, hnt pledge. It) HiK'ii a state of authority it is impor- tJint to see how the matter Htands in prin- ciple. In principle the custom of merchants as found in I.icl<harro\v v. .Mason seems to he as much applicahle and available to jiass a speci.il projierty at law by the in- doi'senient (when that is the intent of the fransnetion) as to jiass the general prop- erty when the trnnsaction is, e. k., one of sale. In principle also there seems to be nothing in the nature of a conlrMct to cive seiiKlty by the deliver.v of a bill of ladlnir liidorHcd in blank, which reipiires ii;ore in order to tcive it full effect, than n pleily:e accompanied by Ji power to obtain delivery of the Koods when tliey arrive, and (if necessary) to realize them for the purpose of the security. Whether the in- dorsee when he takes delivery to himself may not be entitled to assume, and may not I.e helil to assume towards thesliip- owner, the (losilion of full proprietor, is a different (|uestion. lint, so Ions at all events as they;oods are in transitu, there Heems to be no reason why the shipficr's title should be displaced .■my further than thenntiiie and intent of the transaction requires. This is not inconsistent with what was said by ICrle, (". .1. in .Mcyerstein V. Barbel', '•' that "the inilorscmeiit and delivery of the bill of Indinir while tlie ship is at sea, operate exactly the same as the delivery of the u;oods themselves to the ussisnee after the ship's arrival would do." 'l'lu> learned judi^e cannot have meant lluit piissession of the symbol isfor every purpose the same thinjj as actual possession of the floods : what he did n\ean was. that the indorsement and de- livery of the bill ofladinir by way of pledge (which he considered to be the effect of the transaction in that case) was ei|uivalent, and not more than enuivalent. to n deliv- ery by way of pledge of till' ;;oods them- selves. Lord Hard wii'ke'" thonjiht that there was a difference between an indorse- ment of a bill of ladini; in blank and a per- sonal indorsement, and (for some pur- ]>oseH) I think there is much reason for that o|iiniun. It, from a personal inilorsc- "baw Hop. 2 C. P. 4.-1. "Siico V. Prcscot. 1 Alk. 249. ment. thf- inference ml;;ht pro|)eily ho ilr.iwn that a title liy assignment, as dlH- tin^uislicd from pled;;e, wiih meant to pass to the Indoi'see, It would not, in my opinion, follow that the same inference ouKlit to be drawn from an indorsement in l)lank. J'art of tlie custom of mer- chants, found in Lickbarrow v. .Mason,''* was that "IndorHementH of bills of lading in blank may be tilled up by the person to wliom they are delivered or t rnnsinitted, with words ordering tlie delivery of kooiIh to be made to sucli person : and, accord- inu: to the practice of merchants, the Huir.e when lilled uj) have the same opera tlon hh if it had been done by tlie sliipper." Whether it is or is not usual in practice to (ill up the Idaiik with any name before takin;t delivery, it Ih certainly not lo lie implied from the custom as thus found tliat the operation of the Indorsement, while it remaias In blank, Is necessarily to all intents and purposes the same as if It were lilled up with the holder's name. So loan as it remains in blank It may iiusH from hand tu hand by mere delivery, or it may be redelivered to the shipper witliont any new transfer or indorsement, whirh would not be the case if there were a per- sonal indorsement. It would bestrani^e if the bills of lailin;; act has made n per- son whose name has never been upon the bill III ladiiiii:, and who (as between him- self and the shipo wnei) has never acted upon it, liable to an action by the ship- owner upon a contract to wliich he was not a parly. I am not however sure, thai, for the de- cision of the present ajiiienl, it is really necessary to rely, either upon any differ- ence between a personal indorsement and om- in blank, or upon the distinction be- tween siich a form of secuiity as (in Eng- lish lawl miiiht lie lielil t-> pass the whole le;;Ml title, and a simple pledi-e. The statute with which your lordships have now to de.-il is introdnced by a pre- amlile, the material part of which Is, that "by the custom of merchants n bill -if lad- Ins of (loods beinj- I ransfernbleby indorHe- ment the property in the >;ooils may there- by pass to the indorsee, but nevertheless all riulits in respect of the contrnct con- tained in tlie bill of bidini; continue in the oriirinal shippiT or owner, and it is expe- dient that such riiilits should pass with the property." The 1st section enacts, that "every consiuiiep of );<>"<ls named in a bill 111 ladinu. and every indorsee of a bill of lailiiij: to whum the properly in the Roods theicin nientioiied shall pass, upon orhyriasoa ol sucii cm slunment or in- dorsement, shall have transferred to and vested in him all riiihls of suit, and hesnb- ject to tlie same liabiliiies in respect of such iroods as if the contract contained In the bill of ladlnK had been made with himself." The "Jnd section |irovides that "nothinir herein contained shall prejudice or affect any rlKht of stoppaire in transi- tu, or any rijiht to claim freight against the orisinal shipper or owner, or any lia- bility o! the consignee or indorsee by ren- ,8011 or inconseipienceof his beliiK suchron- al>;nee or Indorsi-e, or of his nvelpt of the '■5T. R. I1S3. 716 SEWELL 0. BURDICK. floods lij' reason or in consequence of such consitinnient or indorsement.'' Tliere is notlilnK else niaterinl in tliat act. The statute contemplates the passing of "the i)roi)erty in the }jooil><" by the in- dorsement of the bill of lading, as a tliinn which may, or may not, happen, ac- cordint; to the nature and intent of the conli-.ict or d«*aliiis', for the purpose of wliich that indorsement is made; and it seen)s to provide for those cases only in which tlie property so passes, as to make it just and convenient that all rishts of suit under the contract contained in the Ifillof I ad int; should be" transferred to" the indorsee, and should not any longer "con- tiuue in tlie original shipper or owner." One test of the application of the statute may perhaps lie, wliether, according to the true Intent and operation of the con- tract between the shipper and the in- dorsee, the shipper still retains any such proprietary right in the goods, as to make it just and reasonalile that he should also retain righis of suit (the word is suit, not action) against the shipowner, under tlie contract contained in the l)ill of lading. If h-^ does, the statute can hardly be in- tended t() take from him those rights, and transfer tlicm to the iadorsee. If they ore not transferred to the indorsee, neither is the indorsee sulijected to the shippers liabilities. It is very difflcnlt to conceive that vvhen the goods are still in transitu, when the substance of the contract is not sale and ])urchase, but borrowing and lending, and when tlie indorsement and deposit of the bill of lading is only by w ay of security for a loan, it can be the intention of either party thereli.y, without more, to divest tlie shipper of all tirojirietary right to the goods, and to take from him and transfer to the indorsee all rights of suit under the contract with the shipowner. That some proprietary right (his original right, sub- ject only to the creditor's security) re- mains in him is indisputablB. If that proposition needed illustration from au- thority it would be found in the cases of Re Westzinthus,i» Spalding v. Itnding.^o and Kemp v. Falk.^i Can it be that he is by the statute dei)rived of all remedies, legal and e(]uitable, under the bill of lad- ing, as long as it remains in the liands of the secured cre<litor'? The creditor, in the ordinary course of tliines, will do nothing until the time for payment or delivery of the goods .nrrives. Can it then be mate rial whether the proprietary right, thus remaining in the shipper while the goods are in transitu, is legal orequitable? The statute relates to a subject of general mer- cantile law, in which not Englishmen (inly but foreigners also may lie, and often are, C(mcerned. Foreign as well as British in- dorsements of liills of lading by way of se- curity for advances (which may be made abroad, perhaps in countries notgoverned by English laws) are lialile to be affected by it, whenever recourse must be had to British courts. It seems to iiie to be in- conceivable that the construction of the words "the propert.y in the goods," in such a statute can liave been intended to depend upon an.y such rechnical distinction as that made in English law (but by no means in the laws of all other countries in which the customs of merchants prevail) between legal and equitable titles. It is to be observed furtlier that the statute contemplates beneficinm cum onere and not onus sine lienelicio. It may be rensoiialilo if the indorsee has the benefit (as he would if he wore a purchaser out and out, or it under his title as in- dorsee of the bill of lading ho obtained' delivery of the goods to himself), that he should take it with Its corresponding bur- den, quoad the shipowner. But it would lie the reverse of reasonable to impose upon him such a burden, wlien he h»s neither entered into any contract of which it might be the natural resnli, nor (hav- ing taken a mere securit.y) has obtained any benefit from it. This oliservation is fortiheil by the fact that the statute does not ajipear to distinguish betwien in- dorsements subsequentund those anterior to its enactment. On the other hand it seems impossible to suiiiKise the legislature to ha ve jiassed this statute without some reference to the custom proved in Liickbarrovv v Ma- son, and to the law (whatever may lie- the true view uf it) estal)lislied on the same suliject by later authorities in the English courts. And if (as I think) it ought to lie understood with some refer- ence to that custom and to those author- ities, I cann<it [lersuade myself that Its operation is altogether restricted to cases of out and out sale, or that an indorsee of a bill of lading by way of security, who converts his synilKdical into real posses- sion liy oiitaiuing lielivery of the goods, ought never to ileriva any benelit from it. The authorities decided upon tlie statute itself appear tome to be most easily recon- ciled witli its apparent objects, mid with e;?ch other, by a view whioli, if hardly consistent with expressions to be found in some other cases, nevertheless seeins to me to have a real and substantial foundation in reason and good sense; viz. that the indorsee by way of security, though not having "the property" passed to him alisolutely and for all pmiioses i>.y the mere indorsement and delivery of the bill of lading while the goods are at sea, has a title tiy means of wliich he is en- abled to take the position of full pro- prietor upon himself, with its corres|iond- ing burdens, if he thinks fit; and that he actually does so as between himself and the sliiriowner, if and when he claims and takes delivery of tlie goods by virtue of that title. The authorities decided upon the statute are Fox v. Nott^a, .Sinnrth- waite v. Wilkins23, The Figlia MaggioreSi, and The Freedom^-"). Another case, Hhcrt V. Simpson^", was also cited during the argument at vour lordships' bar. In Fox V. Nott lA. D. I8«l) the only "5 B. & Ad. 817. »6 Beav. 376. '■ 7 App. Cas. 573. =2(1 H. &N. 637. =»11 C. B. (N. S.) S-47. " Law Rep. 2 A. & E. 108. " Law Rep. 3 P. C. 504. =« Law Rep. 1 C. P. 24S. SEWELL V. BURDICK. ^17 qiu'Htidn (letertnineil was, that the Hhiii-' uwinT rctaiiind IiIh renioily liy acliori jijiiiiiiHt tlR" Kliippcr. after thn inclorHciiicnt <if llie liill (jf ladiiiji (a oasi" providt'd for liy till- 'Jnd Hf>cti(iiii: lint Home (jf tlip leai'ML'il jiidH;cH exiiresHfd upinluiiH ln'Mriiit; ii|ioii the general construction of tl'eHtat- iite. I'ollocl; (.'. I?. Maid. "Tlie indopKce of the bill of liidiiiK xiay lie Kiied under the HtMtiile, liecauKc liy taking the ;?oodH he aJHo takeH the lialillity to the frei^^ht." Miirlin I!, said, " The Htatntc meauH an actual vestin^r of the property an liy ha r- Kain anil .sale;" anil Wilde 15. Kaid. " 1 a)iree with my Urotliei- Martin that the , act applies only to an alisoUile iransfer of the K""'l^. and was never in tended to deprive a pcismi who made advances on the HiTurity of the liiil of lulling of the liemlit of the oriuinal ciintract of the Hhipper to pav the freijiht." In Smurthwaite v. WilUins (A. D. 1S(;2) the indorsee oi a iiill of lading, who liad indorsed it over to a third party, was held not to lie lial.le to the Hhipowner. Erie L'. J. said. " Tlie eonteniiiin on the part of the plaintiff is, that, the property in the jXKO'ls passing to the defendants l).\ the asHignmeiit of the liill of lading;, under tlie act, they are liable tor the freight, al- thouK'i they never received the goods. • * * Th? contention is, that the con- signee or assignee shall alwa.vs remain liable, liUe the cunsignor, although he has parted with all interest and property in the goods bj- assigning the bill of lading to a third iiarty, before the arrival of tlu' goods. The lonsiiini'iii'i's which this Would lead to are so monstrous, so mani- festly unjust, that I slniuld pause before I consented to adopt this construction of the act of parliament. The person who received the goods was always consid- ered liable for the freight: but that was not by virtue of an original liabilit.v as a contracting party, but on a contract im- plied from his acce|itaiice of the goods. Looking at the whole statute, it seems to nie that the obvious meaning is, that the assimiee it/jo receii-i's the airf^o" (the italics are in the report) "shall have all the rights and liabilities of a contracting party; but that, if he passes on the bill of lading by indorsement to another, he passes on" all the rights and liabilities which the bill of lading carries with it." Sir ]•;. Vaughan Willianis agreed. " Loo'-c- ing"(hesaid "at the preamble, and at the general scope and intention of the statute, I can entertain no doubt that the view presented by my lord is the true one:" and he explained the effect of " the general scope" of the act to be, "that, where the right of property leaves the party, tlie rights ami liabilities under the contract leave him also." .\ case like the pri'sent, of a security on an indorsed bill of lading, not acted upon (and which, in fact, never could be ncte;l upon) by tak- ing delivery of the goods, but at the some time not transferred to any other per- son, differs (in speoie) from that of a man who has transferred the bill of lading by indorsing it over to another. Hut I can- not see that it would tie more reasonable to make the holder of such a security, which he has never realized, and never can realize, liable under the statute, than if he had parted with the bill of ladiiii; to somebody else. The cases of The P'lglia Maggiore and The Freedom weredeterinined in the court of adinii-alty under nnotherHtatutc, wlilcl. (as l>r. Lushinuton and his succcHHor, in my opinion, rightly held) gave that court jurisdiction when, and only when, there was. Independently of that statute, n right of action or suit; and. In those par- ticular cases, it appears to have buen held, that there was no such right of ac- tion or suit, unless it was given liy the bills of lading act. In both of Iheiii the [ilaiiitiffs. indorsees by way of security of bills of lading, had claimt-d and obtaineil delivery of the goo'ls, and then hail brcnght actions against the shipowniTH for damages wiiich they had su^taine<l through breaches of the contracts cun- taineil in the bills of lading; and they were held entitled to recover. Ihis wad right if an indorsee under such circ-uin- stances may rightly he hcldentilled t<i the benefit of the statute, as having elected to complete hin potential and inchoate title by taking possession of the goods, and so placing himself towards the ship- owner in the [losition of proprietor. .May It not be said tliat"the property in the goods" then (if not before I " passes" to him " by reason of the indorsement"? The Iirinciple of the liability, which umler some "ircumstances was held, even before the statute, to nttach to the indorsee tak- ing dsliver.v, was regarded by ICrle ('. J. in Snuirtliwaite v. Wilkins as elucidating the iiolicv aad the objects of the statute itself; and both he, and I'ollock C. It. In Fox V. Xott 8|)oke of " taking the goods, " and "receiving the cargo," as the test of its r.pplication. The nuthorities on that suliject iJesson v. Solly ;2" Stindt v. Itob- erts;-8 Wegener v. .Smith ;2" Chappel v. Comfort^" seem from this point of view to deserve conshleration. The decision in the court of ndiniralty in the case of The Freedom was allirined liy her majesty in council, upon the advice of the judicial committee, and nltlnuigh it was on a point as to which the admirnlty had only a statut.iry jurisdiction concur- rent with the courts ol common law, and thoimh in all Kiiglish admiralty cases the appeal now lies to this hoiist , still this, as the decision of a court of linal appeal, ought not, in any later case, to be lightly departed from. The case of Short V, Simpson^' <lid not really require anything to be decided aa to tlie effrct of the statute, and nothing was in fact so decided. It was there hi hi that.nuocnniiue moilo. whether under the statute or Independen'ly of the statute the shi|)per. to whom a bill of lading which he had indorsed and delivered to his creditor by way of security was reln- dorseil and redelivered ui>on payiuent of tlie loan, was remitted to his original rights. «'4 Taunt. 53. »1TL. J. (Q. B.) 166. » 15 C. B. 285. »1(1C. B. (N. S.) Si>3. >' Law Ucp. 1 C. r. 243 718 SEWELL V. BURDICK. Uijon the wliole I cnnnot diHsenilile that thi.s case api'ears to nie to t)d utteiuleil with some coiisideralile difficulties. But tliose (litficulties are mainly technical, aris- iiiS out of a comparison of the lanKiiase of tlies til lute witli various ami not always cousiMtent forms of exjiression found in authorities not decidud witli a view to any such eonsetitiences as those which tlie statute would produce. 'J'liey deal with questions between unpaid vendors of Koods comprised in l)ills of lading and bin\a fide indorsees of the same hills of ladins; for value, or between compciins and adverse claimants toiiriority as bona tide liolders for value of the bills of lad- ing tliems(>lves. The statute, on the other hand, deals with questions between ship- pers and indorsees of bills of lading; claini- injj; under them, and lietween indorsees and sliipowners. The i)reponderance of princii)le and reason appears to me to be against the jtroposition, that, as between those parties, it can liave been intended by, or can he the effect of, the statute to make the creditor of the sliipper liable (in effect) as his surety to the shipowner (with whom he was never t)rousl't in coii- tact), by reason onl.v of the deposit with him, by way of security, of a bill of lading indorsed in blank; his rijiht under tliat deposit, being (whether at law or in eq- uity) special and not general, and the shipper retaining ( whether at law or in equity) the real and substantial property in the goods, subject to the security. It had not, until the present case, been di- rectlj' or indirectly determined b.v any authority that such is the effect of tlie statute. My conclusion is, that the appellants ought to be exonerated by your lordships' judginent from the respondent's ncti(jn ; and that the order of the court of appeal ought to he reversed, with costs. Lord BLACKBURN :-My lord^, the jugdnient of Field J. was reverse<l by tne order now under ap|)eal. The case was tried l)efore liim witliout a jury, and I think it is necessary to see what he had to determine. There was no question be- tween vendor and vendee, nor of stoppage in transitu, raised, for there was neither a vendor nor a stoppage. The law and de- cisions as To stoppage in transitu might he relevant in construing tlie statute IS & 19 Vict. c. Ill, but did not otherwise affect the rights of the parties. It will be seen bj' refeience to the state- nientof claim and of defeucethat it wasnot suggested that the defendants were, at the time tlie goods were shipped, in any way interested in thegoods; nor that tlie.v were, either as undisclosed principals or other- wise, parties to the contract in the bill of lading until it was delivered to them, after the ship had sailed and the goods were iu thehand of theshipowners to becarried un- der the bill of lading and were not yet de- livereil, with an indorsement in blank by Nercessiantz, the consignee named in the bill of lading. ] ilo not think that,eitherat the trial or on the argument, it was at all disputed tliat at common la w the remedy of the ship- owner under a bill of lading was by en- forcing his lien upon the goods, or bv liringing an action on thecontract against any one who, at the time when thegoods were shi|iped, was a party to the bill ol lading, eitiier as being on the face of it a contracting party, or as being an unilis- closed principal of such a party. In either of these cases he might be sued as having been from the beginning a party to the contract. Some attempts had been made to say tliat the contract in a hill of lading might, under some circumstances at least, be transferred to an assignee in a manner analogous to that in which thecontract in a bill of exchange was transferred by the indorsement of the bill of exchange; but I think since the decision in Thomp- son V. Dominyss jn ]s-l.'), it has been undis- puted law that under no circumstances could any one not a party to the contract from the beginning sue on it in his own name. Any action on the contract at common law must be brought in thename of an original contractor, and no action could be brought on the contract against one who was not liable to be sued as an original contractor. Batten years later the IS & 19 Vict, c. Ill, was passed. The preamble states this as one of the objects which the legisla- ture had in view, " Whereas by the custom of merchants a bill of lading being trans- ferable by indorsement the propert.v in the goods maj' thereby pass to the in- dorsee" (which I think for a long time be- fore the 18 & 19 Vict. A. D. ls.i5 was undis- pute<l),"but nevertheless all rights in re- spect of the contract contained in the bill of lading continue in the original shipjier or owner" I this, it is to my mind clear, refers to Thompson v. Dotniny )3-, "and it is expedient that such rights should pass with the property." The moiie in wliich the legislature carry out the ol)ject thus expresseil in the pre- amble is b.v sect. 1 : P^ver.v consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such con- signment or indorsement, shall have transferred to and vested in him all rights of suit, and lie subject to the same liabil- ities in respect of such goods as if the con- tract contained in the bill of lading had been made with himself." The case made on thestatement of claim was that "the" projierty had passed upon or b.v reason of the indorsement to the de- fendants. Not that they were before that a party to the contract in the bill of lad- ing, biit that by virtue of the act IS & 19 Vict, when the property passed they be- came subject to the same liabilities as if the contract contained in tlie bill of lading had been made with themselves. It is not disputed that the delivery of the bill of lading to the defendants with the indorsement of the consignee on it in blank was an indorsement, nor that whatever interest then passed to them still remained in them. What was in issue ivas whether upon or by reason of that indorsement "the" p'-operty passed. = 14 M. & W. 403. SEWELL V. BUR DICK. 719 The firHt niid most important (inestiun to be <leciil('(l in tliis cane Ih, what jh Hit- true conHlnK-Uon of 18 &• 111 V ict. c. HI '.' l)(iPK"tlrc iiroperty " In the goodn there mciin any lej;iil property in tliej^oodH: ho uH to lie KiitiKlieil l)y proof that n leiial property pashed accompanied liy u rl^rht of poKseHsion ho i\» to entitle the trans- feree to maintain trovei-, tlioutrh it was Intendeil l).v tlie partieM. and w uh as be- tween tlieni, to l)e l)y way of Hecurity oidy, the traiiwferor retaininir a rislit of redemption either l)y way of a eonimon law retention of the fieneral property, thon^h tlie iiledjtep had a ri^lit to the pOHscHsion and a property as pled;ieo. a rijiht exceeding a lien: or the wi)ole prop- erty at law liuvinf; passed l)y way of mortuMfie the transferor retaining an (•(liiity of redemption, »vhieli in iN.'i") was an e(|nital)le rij^ht, ei)foreeal)le only in a toiirl of einiily '.' I thinit tiiat all the jixlRes below were of opinion that if the litcht reserved was the Keneial riy;ht to the property at law, what was transferred beiiijr only a idedae (conveying no doiil)t a ri^ht of properly and an immeiliate ri(;lit to tlie possession, ho that the transferee would be entitled to brin;; an action at law against any one who wron^fnlly interfered with his ri»;lit). thonj^h ".•(" property, nn<l "a" property a^iiinst the indorser, passed "npon and by reason ot the indorsement," yet the prooi'rty did not pass. And 1 a);ree with them. I do not at all proceed on the Ki'onnd that this Ix'iiiK an indui-se- ment in l)laiiU followed by a delivery of the l:ill of lading; so indorsed, had any different effect from what wonld have lieen the effect if it lia<l lieen an indorse- ment to the appellants by name. The case of The Freedom was cited, and 1 thinii there are expressions used in the jiidKiiicnt delivered in that case by Sir .lo.seph .Napier which indicate tliat the judicial committee were not of that opin- ion. It is said (Law Ke|>. 'i P. C p. .'lilll), "The plaintiffs were consimieps for sale; but as part of the transaction a bill of ex- chanjie was ilra wn by t he consi^jnors for nearly the fall value of the K'>ods, the bills of liidinfr were indorsed liy them and for- warded to the plaintiffs, by wliom the draft of the consignors was accei)ted and paid in due course." If that was the transaction (siiid whether it was so or not, the judicial committee prt)ceeded on the assiiniptlon that suth was the trans- action), the plaintiffs in The Freedom were in exactly the iiosition of Clinrch, in the case of Newson v. Thornton'''', the case to which I shall ha ve to refer nftsr- wurds. Church had th? 1)111 of ladiiiK in- tlorsed to liiin as a factor, or consignee for sale, and hail therefore a ri>rlit to iKdd the Koods as against the indorser as a security for all IiIh ad vances, and he had aiithorit.v at common law t<i sell the Koods, and before the arrival of the ship to transfer the bill of IndlnK in further- ance of a sale, but he had no authority to pledge either the goods or the hill (if lad- ing. It is true that by the factors' acts tlie plaintiffs in The Freedom would hove had a power, which Church had not, to pledge the bill of ladinu, but as they did not exercise thai-, power it could make no difference. 'Ihe juilKment then proci-eds: "Thelecal title to the property In the goods Hpecitied in the bills of lading was thus transferred t(j and vested in tlie plaintiffs; the riiiht of suing upon the contract in the bills of lading was transferred to tluin by force of the statute Is & l!l Vict. c. 1 1 1. " The juilgment then proceeds to shew, I think correctly, that the dictum of .Martin 11., reported in Fox v. Nott was nut neces- sary for the ilecision in Fox v. Nott, and goes on: "Their lordships are sallslied Hint it was intended liy this act that the rlKht of suing upon the contract nniler a bill of lading should follow the property in the goods therein specitied ; that is li) say, the legal title to the goods as against the indorser." It certainly seems to me that their lordships thought that "Ilie" property passed witliin the meaning of IS & 1'.) Vict. c. Ill, if any legal right to hold as against the indorser passed. The statute which their lordships had to construe was the L'4 Viet. c. 10 s. C. which is in these terms, "The hi;:li court of odmiraltv shall have jurisdiction over any claim by the owner" (1. e. of the goods) "or consignee or assignee of any bill of lading of any goods carried Into anv port in England or Wales in any ship, (or damage done to the goods or nny part thereof by the negligence or mis- conduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is sliewn to the sati.sfaction of the ccurt that at the time of the institution of the cause any owner or (inrt owner of the ship is domiciled in Fngland or Wales." It is not necessary to put a construction on I'-l Vict. c. HI s. fi. 1 tliirik there are very good reasons for contending that n person who has pos- session of an indorsed bill of lading witli- oiit any rit;lit at all to hold it against the indorser, without being owner of any In- terest in tlie gooiis, is not an "assignee" within the meaning of this enactment, and conse(iiiently that what 1 understand to lie the actual decision of Dr. I.nshing- ton in The St. Cloud'", that such a person could not sue umler the admirnlly act. may have been rielit enough. It Is not necessary to decide that. Itut I agree with what was said in The Nepoter"". that it is contrary to all rules of construc- tion to interpolate nny reference to the bill of lading act into llie ndinirally act. I think, therefore, that the actual point decided in Tlie Freedom-'"' might be quite right, for the plaintiff in that action had a property, and a very sub«tan»ial prop. erty,in thegoods.nsairainst theinilor-Jers, anil every one else, and was In every sense an assignee of the lilll of lading. The opinion expressed on the constructiou ol the is & lit Vlct.c. Ill, that in tliat act the 'GEiist, 17. " Brow. 4 Lush. 4. » Law Hep. J .^. & K. 370. -UkW Rep. 3 P. C. 694. 720 SEWELL 0. BUUUICK. proporty nicant a le^al title as against tho iiidoiHer, was iK'i'liai's iiuutce.ssary, and. 1 tliiiik, not wound. 'I'lie words used in the statute are not suel) as prima fucie to express sucli an in- tention. No one, in ordinary language, would say tliat when soods are pawned, or money is raise(] by morfgase on an estate, tlie property, eitlier in tlie goods or land, passes to the pledgee or mort- gagee, and I cannot tliinli that the object of the eiiaetment was to enact that no security for a loan should be taken on the transfer of bills of lading unless the lender incurred all the liabilities of his bor- rower on the contract. That would greatly, and I think unnecessarily, hamper the business of advancing monei' on such securities which the legislature has, by the factors acts, shewn it thinks ought rather to be encouraged. It is not uncommon to reduce into writ- ing the agreement between the banker and his customers as to the terms on which the bills of lading deposited by them as securities are to be held. Such was the case iu Glyn v. East and West India Dock ('ompanyS'?, as to which I shall have more to say hereafter. When there is such a writing, it is, in the absence of fraud, conclusive as between the par- ties as to wliat they intended. And I do not in the least question that such a writ- ing may be so expressed as to shew that between the parties the transfer was a mortgage, though of goods, in the man- ner with which ever.vone is familiar with regard to lands. The equity of redemp- tion in such a case was an equitable estate only, and in 1S55 enforceable in equity, not at law. Where there is neither a symbolical de- livery by a transfer of a bill of lading, nor an actual delivery of the goods them- selves, there may be (though there seldom is) a substantial difference in the rights of tlie lender according as the transaction is of the one kind or the otlier. In Howes v. Baliss, Ball sold and de- livered a coach to John Howes (since de- ceased) under an agreement in writing, in which there vras this clause, "And furtiior I, John Howes, do agree that Thoiuas Ball do have and hold a claim upon the coach until the debt be duly paid." John Howes ilied vvitliout having paid the debt. Ball, after his death, seized the coach, for which seizure the action was brought by the executor. Had that agreement amounted to a mortgage by John Howes to Ball, I take it there could have been no doubt that the mortgagee would have had as much right against the executor of John Howes as he would have had against John Howes himself. But it was held that it did not amount to a mortgage, but only to an agreement that Ball should have a right of hypo- thec, and, there having been no delivery by Howes to Ball, the decision was that though so long as .John Howes lived and held the property in the coach I'.all might have justified the seizure, as against hira. "5 Q. B. D. 139; 6 Q. B. D. 475; 7 App. Cas. 591. »*7B. &C. 481. he could not justify a seizure as against the representatives. In Flory v. Denuysa where the agreement was "as an addi- tional security f;ir a loan to assign all the ilebtor's right and interest in a chattel, " it was held to be a mortgage, and to op.er- atescias to transfer the property, with- out any delivery, as a bargain and sale out and out of the goods would, though an agi-ecnient to create a pledge would, jiccordiug to Howes v. Ball, have con- veyed no property of any kind in the goods without a delivery. But where the goods are at sea, and there is a transfer of the bill of lading, there is a delivery of possession. syiMliol- ical, it is true, but all that can be given. The question whether there was a mort- gage or only a common law pleilge, or h.vpothec. it being accompanied by deliv- ery, might affect the question what was the court in which those riglits were to be enforced, but does not affect the sub- stan e of the rights. The borrower if ready and willing to pay the money, might in the one case be able to liring iin action at law against the lender who re- fused to allow him to redeem, and in the other have to sue in eqnitj', but as it would e(iually be a pledge bis rights would be the same in substance. 1 am therefore strongly inclined to hold that even if this was a mortgage there would not have been a transfer of " the" prop- erty within the meaning of 18 & 19 Vict. c. 111. This IS contrary to the opinions not only of Brett M. R. and Baggallay L. J., but of Field J. also. Bowen L. J. who agreed with Field J. in thinking that this was not a mortgage but only a pledge, did not express any opinion as to what would have been the law it it liad been a mortgage. 1 believe all the nolilc and learned lords who heard tbeargument areagreed with him in think- ing that in this case it was only a pledge. I do not therefore intend toexpress a final decision that an assignee of a bill of lad- ing by way of mortgage is not as such lia- ble ti) be" sued under 18 & 19 Vict. e. Ill ; but only to guard against its being sup- posed that even if Brett M. R. and Bag- gallay L. J were right in holding this a mortgage', I, as at present advised, shoiilfl agree in their conclusion that the defend- ants could l)e sueiJ. I now proceed to consider the question on which the court of appeal were divided in opinion, but the majority made tho order now appealed against. The ques- tion is stated by Brett M. R. to be "Does the indorsement of a hill of lading as a security for an advance, by a necessar.y implication which cannot be disproved, pass the legal property in the goods named in the bill of lading to the in- dorsee witli an equity in the inilorser, the borrower, to redeem the hill of lading by |)ayment, or to receive the balance, if any, on a sale?"*" Field J. had held, and Bowen L. J. agreed with him, that it might so oper- ate, if so intended by the parties at the »»T Ex. 5S1. « 13 Q. B. D. 161. SEWELL c. 3U1{L)ICK. time, ')iit (lifl not so opernte if it vvoh iii- teii'lcil to Ix' no nioi'c tliiin ii pleOKo uh iIIh- tlnfiiiiHJifd Iroiii ii niortt;iit;e. J do not iindiTstiiiid tliat nny one of tlio "jndKCH '>''low dlHputcd that if it wjih a (iiii'Ktioii of intention dcpcndint; on the evlilencc, tin' finiliiit: of Fii-Id .1. wjih riKl't; but till' ninjorlty in tlic court of fippotil proceeded on the prini-ipiew I'Ufl down l)V Brett L J. in (Jl.vn v l';n8t and West Indiu DocU ('(jnipiin.v." In that caHe tlie terniH on which the hill of lading waH delivered to Gl.vn >fc Co. were reduced to writins, and the question therefoi'e whether It wan Intended to deliver it h.v way of i)ledne only, or hy way of a tnortt;a>;e, depended on the constrnction of that writlnc. Whether lirett L. J. tlioniilit that on the conHlrnction of tlie written inHtrument it WMH intended to l)e a inortf?"(ii' I do not kni)w; I do not think he proceedeil on that i;roiind. He naid it was a inort- (Xiitiv. and that the effect of the Htatute l.'i & 11) Vict. c. HI wa.s to tranHfer the rijjht to Hne and the Iial)ility to be sued to tJlyii & Co. Lord Brainwell, then BrannvcU L. J., woH of aj) opposite opinion on l)Oth points. He 1honf;;ht that (ilyn & Co had a special property and a rif^lit of posses- sion anil no more. In the honse of lordfl I said, " I do not think it necessary to express any opinion on a (|nestion much discussed li.v Hrett [>. .)., I mean w het lier the property which the batdiers weri' to linve -was the whole let;al liropery in the ^oods, Cottaiil iV Co.'s in- terest lioiny; equitable only, or whether the liankers were only to have a special I)roperty as pa wnees. Cottain & t"o. ha v- inir the lenal Kcneral property. ICither way the bankers had a le^al propert.v, iirid at law the rinlit to the possession, subject to the shipowner's lien, and were entitled to maintain an action a;;ainst any one who, wilhont justitication or legal excuse, dc'iirived them of that rijiht."'- All the noble and learned lords agreed in this. I think therefore the de- cision of this honse is a strong authority in support of the position which I have before advanced, that the rights of a mortgagee having taken a hill of lading, and the I'ights of a pawnee having taken n bill of lading, are in substance the same. I (lid not think It necessary to point out that the question which the house in Cilyn V. Kast and W.-'st India Dock Com- pany had to decide. -and did decide, woulil liave been just the same if is & 1<| \ict. c. Ill had never been i)assed or had been re- penlcd, and cons-Mjuently that it was un- necessary to express any opinion on the c(tnstrnction of that act, but it obviously was so. liefore proceeding further I wish to point out what in my opinion isagreatmis- api)reliensinn as to the effect of the de- eision <>f this house in Lickliarrow v. Masoir'''. and as to the weight to I)e given to the opinion of liuller .1. delivered in this house and reported in a note to (i IChs(. "BQ. B. D. 47.5. *«" App. Cas. 5'Jl, «0C. "6 East, 20, n. LAW SAI,I-:S — to I have already said thiit In thiH case there is no sale, no vendor, and no ven- dee, utid no stoppage in traiiNitu, mo that (his inisapprehenHlon, us I think It Im, Ib not MO material us it might be hi Hume other cases. A demurrer on evidence, as is pointed out by Kyro C. .1. In delivering the unani- mous opinion of the judges in (iibson v. Hunter,'' not (Iibson v. .\llnet, as is by mistiike said in the note in li Kast, though not familiar In practice, was u [jroceedbiK known to the law. He explains it, und states his very conhdent expeotationH (which liave been justitieil by the result) that no rleiiMirrer on evidence would again be brought before the house. It may be well to point oi;t the dated. The demurrer to evidence in IJrkbarrow V. .Mason'-' was in 17s7. The only caMe of !i demurrer on evidence In what were then recent times, was Cocksedge v. Kan- shaw,'o on which j.xlgment had been given In this house In 17^:^. Neither In the king's bench nor in the excheciuer cham- ber was any ((uestion raised in Lickbnr- row v. .Niason as to the mode In which the questions iliscnssed ivere raised. In 1790 the writ of error from the decision of the exchccpier chamber was brought liefore the house of lords. The law peers lit that time were Lord Thurlow. Lonl Lough- borough, and Lord Kenyoii. When it was argued does not ap|)ear. but It was ar- gued, anil the same question as had been asked of the judges In Cocksedge v. l-aii- shaw was asked of the judges. Sixjudgen (inclnding all the survivors of tliose who had joined in Lord Loughborough'M judg- ment in the exchequer cliamber) answered In favour of the restiondent. The three judges who had given judgment in the king's bench answered in favourof the ap- Iielliint. This house delayed giving itH opinion till 17'.Kl. In the meantime, In I7'.I1, there was a demurrer to evidence in (iib- son V. Hunter, which was brought before this house. The case in this house Is re- imrted, 1' H. I!l. 1S7. On the 7th of Kebrn- ary 17!io this house gave jinlgment award- ing a venire de novo- One week after- wards, on the 14th of February \''.n, this house delivered judgment in the long pending case of LIckbarrow v. .Mason, awarding in that case also a venire de no- vo. Lord Loughborough wan himself at that time lord chancellor. 1 should have thought, if anything was (dear.it was that this house did not de- ride anything, exce|it that on that demur- rer to the evideine no judgment could be given: certainlv the last conclusion that I should lira w is that stated bv Field J., that the house ill wliiidi Lord Loughbor- ough was chancellor decided "presuma- bly" on the (qiinion delivered by liuller. I. against the judgment of Lord l.ouglilior- ough, which six judges to three had thought right. .Neither cai\ 1 at all agree in the opinion expressed by Field .1. that the opinion of liuller. 1. has always been taken as the law. and been adopted and followed as the law up to thepresentduy. "2H. Bl. '.'0.5, 206. "5T. a ti>>3. "1 Doug. ll!i, 134. 722 SEWELL V. BUUDICK. It never was publislicd till ISlto in a note to (i East 20. 1 have for many years been of opinion, anfl still remain of opinion, that niueli of what Buller J. exprcssoK in that opinion as to stoppaf^e in transitu was peculiar to himself, and was never adopted by any other judge, and is not law at the present day. But it is not nec- essary to pursue the subject further, as I agree wi til Bowen L. .J. that neitlier the statement of the custom of niercliants in the special verdict in Lickbarrow v. Ma- son, nor the opinion of Bullei' .J., justifies the inference that the indorsement of a bill of ladiua for a valuable consideration must pass the entire legal property, what- ever was the intention of the parties. In Lickbarrow v. Mason, Turing was an unpaid vendor to Freeman. He had in- dorsed the bill of lading to Frecnian, and had not therefore any right, except that of stopping the goods while in transitu if Freeman became insolvent without having paid for the goods, and that right he had, though the inilorsed bill of lading had been sent on to th? vendee, so long as that bill of lading remained in the vendee's hands. But before any such stoppage Freeman, for valuable consideration, indorsed the bdl of lading to Lickbairow, who wheth- er as mortgagee or pledgee, had a legal property acconii)anied by a right of pos- session. The point which I understand to have been decided in Lickbarrow v. Ma- son was, that on the transfer of the bill of lading to Lickbarrow the goods ceased to be In transitu, the shipownerfrom that time no longer holding them as a middle- man to carry the goods from the unpaid vendor, Turing, to Freeman his vendee, but holding them as agent for Lickbar- row. It was held, first in Re Westzin- thus-f? and then in Spalding v. Ruding.'s that where the transitus was thus put an end to by what was in reality only a pledge, the stoppage might be made avail- able ill equity so far as the rights of the pledgee jjid not extend. I thought, and still think, that the reason why the stop- page could not be made available at law was because the shipowner no longer held the goods as a middleman, as the trans- feree of the bill of lading for valiiable con- sideration and bona tide so as to give him a security whether by way of mortgage or by way of pledge, had a legal property in the goods which he could enforce as against the shipowner. Such being my view of the law, whether it was right or wrong, I expressed myself accor<lingly in Kemp V. Falk,*" so as to shew that I thought so; lint there wasnothiiigin that case to call for a decision on the point now before this house. In Nev.'sou v. Thorntons" Lord Ellen- borough says: "I should bo ver.v sorry if anything fell from the court which weak- ened the autliority of Lickbarrow v. Ma- son as to the right of a vendee to pass the property of goods in transitu by indorse- raent of the bill of lading to a bona fide holder for a valuable consideration and « 5 B. & Ad. 817. "6 Beav. 381. «7 App. Cas. 573. "6 East. 40. without notice. For as to Wright v. Campbell, 3i.though that was tlie case of an indorsement of a factor, it was an out- right assignment of the property for value. Scott, the indorsee, was to sell the goods and indemnify himself out of the |)roiluce tlie amount of the debt for which he had made himself answerable. The factor, at least, purported to make a sale of the goods transferred by thebill oflading.and not a pledge. Now this was a direct pledge of the bill of lading, and not in- tended by the [larties as a sale. A bill of lading, indeed, shall pass the property upon a bona fide indorsement and delivery where it is intended so to operate, in the same manner as a direct delivery of the goods tliemselves would do if so intended. But it cannot operate further." Lawrence J., at page 4;i, says, speaking of Tiickbarrow v. Mason : "All that thatcase seems to have decided is, that where the property in the goods passed to a vendee, subject only to be devested by the ven- dor's right to stop them while in transitu, such right must be exercised, if at all, be- fore the vendee has parted with the prop- erty to another for a valual)le considera- tion and bona tide, anil by indorsement of The bill of lading given him a right to re- cover them." And Le Blanc J. says that what they then determine " will not lireak in at all on the doctrine of Lickliarrow v. Mason that the indorsement of a bill of lading upon the sale of the goods will pass the properly to a bona tide indorsee, the property being intended to pass by such indors»nient." In Glyn v. East and West India Dock Co. ,52 Brett I... J. says (speaking of an opinion of Willes J.), "To say that an indorsement of a bill of lailing for an ad- vance is only a pledge, seems to me to be inconsistent with what has always been considered to be the result of Lickbarrow V. Mason, namely, that such an indorse- ment passes the legal property, "by which I understand him to mean tlie whole legal property. But neither in that case nor in the case now at bar does he refer to any authority to that effect. Expressions used by judges have been cited which, 1 think, only shew that tliey did not carefully consider their language, where no ques- tion of the kind before us was under dis- cussion. And, as far as 1 know, there is no decision subsequent to I/ickiiarrow v. Mason which proceeds on such a ground, whilst Newsom v. Thorntonss proceeds expressly on the ground that the indorsement of a bill of lading, when in- tended to be a pledge only, is ncit valid if made by one who has no authority to make a pledge. 1 do not know that 1 am justified in saying that it is a decision that, if it was made by one who had au- thority to make a pledge, it would be good as such, though I think that ap- pears to have been Lord EUenborough's opinion, and I do not think any authority was cited on the argument at the bar to shew that such is not the law. No case was cited at tlie barnoram I aware of 'H Burr. 2047. '=6Q. B. D. 480. '3 6 East, 17. SEWELL V. BUHDICK. 723 any in which It hiiH l)een helij tliat a triwiKfcr o( tlie hill of lailiiiK f<>r viiliic iicc- eBHiirily, wliatover iiiiKht l)i' flio intention, paHsed the whole IckjiI property. The raaHter of tlio roll Hayn: — "If the general underHtandintt of nierflinnts had not tieeii in accordoncc with tlie verdict of tin- jury in Lickbarrow v. Mason, ''^ accepted in its larKest sense, there would, one wonld Ihlnlf.liave l)een e-ines In tliebooks raising the (iiiestioii."''^ With siit)niisslon to the master of tlio foIIh, 1 tliink no weight can l)e>;lven to this al)sence of authority un- til it is shewn that there have Ijceii cases in which it became material to consider whetlier an indorsement intended to lie and o|)eratinji as a pledge at law had a less eff(!Ct than an indorsement operrttlnp; against the intention as a nuirtgage. I have already given m.v reasons for think- ing that ill substance the rights would l)e the same. Without, therefore, (lecidln;r the question whether a mortgage would render the mortgagee liable under 18 & 19 Vict. c. 111. I decide that, mainly for the reasons given by Uowen L. .1., this transfer did not operate as a mortgage. I therefore am clearly of opinion that the order made by the court ol appeal sliould be reversed with costs, and tlie judgment of Field J. restored. Lord B1{A.\!\VELL:-My lords, I con- cur. This action would not have been maintninalde at common law. Is it main- tainable under is & 111 Vict. c. 111? Tliiit depends ujion whether tlie appellants are indoisees of the bill oflailing"to whoni the propert.v in the goods therein men- tioned has passed iijion or liy reason of such indorsement." It is found as a fact, and rightly fonn<I, as is ailmitted. that all that was intended in the transaction was a pleilge. This would give the appel- lants a [iroperty, but, as i>nt by Howen L. .1., not " the" property. .\s 1 under- stand the master of the rolls, if tliis could lie, then the appellants are right; but he thinks it could not lie— tliat IJcUbarrow V. Mason, or rather the opinion of liuller J., shews that when a bill of lading is in- dorsed to give any title to the transferee the entire property is passed, and that in such a ease as this notliing but an e()uita- ble right to redeem remains in the trans- feror. It is for those who assert this to prove it. I cannot prove the negative that it is not so: and logically and rea- sonably I might content myself witli say- ing that it is not proved to me: that I see no reason and no authority In BUi)|)ort of it. Hut I go further: 1 think that au- thority aiiii reason are against it. Tlie cases do not, in m.v opinion, justify the contention. 1 will not discuss or examine them in detail; that has been done by the lord chancellor. I understand his con- clusion to be that the expressions of learned judges which have l)cen relied up- on should be reail and interpreted secun- dum subjectam niateriani. I agree. In no case has the present matter been under consideration. .\8 to the reason and prin- ciple which should govern, I ask why " 1 SiB. L. C. 753, Sth ed. » 13 Q. B. D. 103. I should the transfer of the bill of lading have a greater effect, contrary tii the par- tics' intention, than the handing over ol j the chattels themselves? They could be pledged if <in shore, but belni; at sea nu I actual delivery, which is necessary to u common law pledge, can take place." There • can, however, be u symbolical delivery bv transferring the bill of lading. Why should the effect be different? Then consider the inconvenience of hold- ing that the |)le(lgor has only an e(|uitu- ble right: that he may repay the loan at the (lay apiiointed, but tlierc-by acquire no legal title to the possession of the goods: that the pledgee may sell and pasM the entire property ro one not having no- i tice of the ecpiilable title. Consiiler what dillicultios would be put on those who lend on such securities if tills action whh niaintainable. The banker who lentmon- e,v on a bill of lailing for goods which ar- rived in specie, but dnmageil by iierils of the s'.'as so as to be worthless, might lose 'the money lent and the freight. .Another conse(|ueiice would be that the transferee I of the bill of lading, though only interefit- ! ed to the amount of the loan on it, would be the |>erson to bring actions on the con- tract to carry. It is true that unless be I can do so in all cases, he can in none, even I where hisinterest is to theexlent of the full value of the goods. Either tliis was not tliou;;ht of li.v the le;;islature, or, if It was, they thought that no case could be in- cluded unless all were, and tliat it was better to incluile none than all. It is to be observed that the st;itute In its pream- ble says that liy indorsement the property "may" pass. It is to be reniemberetl also, as pointed out by my lord chancellor, that this law bears upon forei«ners out of the kingdom. lam the more surprised at this conten- tion on the ])art of the master of the rolls, as he has always so aldy and powerfully contended that mercantile la ws. contracts, , and usages should be free as possible from technicality. I am of opinion that the a|>- peal should be allowed. I cannot truly say that I have any doubt on the matter, i take this opportunity of sayini; that I think there is some Inaccuracy of expres- sion in the statute. It recites that, " by the custom of merchants a bill of lading being transferable liy indorsement the propert.v in the goods may thereby pass to the indorsee." Now the truth is that the (iroperty does not pass by the indorse- ment, but by the contract in pursuance of which the indorsement is niaile. ll a car- go alloat is sold, the iiroperty woulil pass to the vendee, even though the bill of lad- ing was not Indorsed. 1 do not say that the vendor might not retain a Hen, nor that t!ie noii-iiidorseiiieiit and non-hand- ing over of the bill of lading wouhl not have certain otherconseqiiences. .\ly con- cern is to shew that the pri)|ierty passes l>y the contract. .So if the contruet was oiie of security — wiiat would lie a pledge if the property wa-i handed over— a con- tract of hypiithecatlon, the property would lie bouml by the contract, at least as to all who hail notice of It, though the I bill of lading was not handed t>ver. There U, 1 think, another Inaccuracy in 724 SEWELL V. BURDICK. the statute, which indeed is universal. It speaks of the contract contained in the bill of lading. To my mind there is no con tract in it. It is a receipt for the goods, stating the terms on which they wei'e de- livered to and received by the ship, and therefore excellent evidence of those terms, but it is not a contract. That has been made before the bill of lading was given. Take for instance goods stripped under a charterparty, and a bill of lading differing from the charterparty; as between ship- owner and shipper at least the charter- party is binding: Gledstanes v. Allen. ^8 These distinctions are of a verbal char- acter, and not perhaps of much conse- quence; but I am strongly of opinion that precision of expression is very desirable, and had it existed in such cases as the present there would not have been the contradictory opinions whicli have been given. Lord FITZGERALD:— My lords, Field J. in the court below came to the conclu- sion that the tJ'ansaction under investiga- tion was intended by the parties to oper- ate us a pledge onlj-. There can be no doubt that the inference thus drawn by "12 0. B. 202. the learned judge was correct in fact. It seems to follow that the pledgees acquired a special property in the goods with a right to take actual possession, should it be necessary to do so for their protei'tion or for the realisation of their securitj'. They acquired no more, and subject thei-e- to the general property remained in the pledgor. 1 am of opinion that the delivery of the indorsed bill of lading to the defendants as a security for their advance did not by necessary implication transfer the proper- ty in the goods to the defendants. They were not therefore "indorsees of a bill of lading to whom the property in the goods passed by reason of the indorsement," so as to make them without more "subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with them." The judgments which have been just de- livered are so very full, and so able and sat- isfactory, that it would be mere affecta- tion on my part to attempt to do more than express my concurrence. Order appealed from reversed. Order of P^ield .1. restored. Respoadent to pay the costs in the court below and in this house. Cause remitted to the queen's bench division. 8IIAW1IAX c. VAX NEST. SHAWHAN V. VAN NEST. (25 Ohio St. 49(1.) Supreme Court of Oliio. December Term, 1S74. Motion tor leave to file a petition in error. Action by Peter Van Nest aKiiiiiHt Keaisin W. Sliiiwluin to r('(;over on a contract by wl)icli lie auri-ed to iiiaki- for Sliawhan a carriase in acconJance with hi.s (lirectionn for IJFTOO, anil have the same reaily for di-- livcry at lii.s Kliop ()ctol)er 1, IsTI, in con- Bideration whereof Shawlian aurcecl to ac- cept the cnrriaKe at the shii|) and pay the af;;''ef<l price, lie alle^ted the tender of the carriaKe October IhI, and the refn.sal of 8huwhan to accept or pay for it. The ev- idence establishccl the alh'fjations (jf the complaint. The court i'i«tnicted the jury tliat, if they found thr- iwnucH for the plaintiff, they should uive him a verdict for the contract ])rice of the carriage, witli IntercHt from the time the money shonlil have l)een paid. Shawhan requested the court to frive to the jury the following Ki)eeial instructions: (l| "If, in this case, the evidence shows that the defendant or- d( red the plaintiff to make for him a car- riage, and agrceil to take or receive it, when liiiislie<l, at the plaintiff's shoji, and to pav a reasonable price therefor, and the plaintiff did, in pursuance of such or- der and agreement, make such carriage, of the value of seven hundred dollars, and have the same in readiness for delivery at his sliop, of which the defendant had no- tice, and the defendant then failed, neg- lected, anil refused to take, receive, or pay for said carriage, though rciiuested so to do by the plaintiff, these will not author- ize you to render a verdict for the plain- tiff for the price or value of the carriage. " IL') " If the plaintiff has proveil the mak- ing of the carriage for the defendant, and the refusal of the latter to receive and pay for it, as alleged in the petition, then he can only recover tor the damages or losses he lins actually sustained by reason of this refusal of the defendant, which is till' difference between the agreed price and the actual value." These instruc- tions the court refused to give, and .Shaw- han e.xcepted. 'i'he jnry found for Van Ni'st, and gave him the contract price of the carriage, with interest. W. I'. N(d)le, for plaintiff in error. U. E. Seney, for Uefeudant in error. (ilLMORR, .T. The only (luestion to be determined in this case is : Did the court err in refusing to give to the jury the spe- cial instructions reiiiiested by the defend- ant on the trial below? The authorities cited liy counsel for the parlies respective- ly, aie not in harmony with ea'di other on tli's (ju'-stion. Some of those cited by the plaintiff in error (d(>fcndant below I show clearly that under the pleadings and prac- tice at comm')n law, there could be no recovery nnder the common counts in assumpsit, for goods sold and delivered, or for goods bargained and sold, where no dejiverysulliciei.t to pass the title from ♦ he vendor to the vendee had been made. And further, that in this foiin of action. proof of a tender of the goodH by the ven- ilor to the vendee, or leavinK them with him against his remonstrance, would not constitute such a delivery as would pass the title and enable the vendor to recover. While these may l)e regarded as setding the rules of t)leading and evidei in tin- trial of particular cases, and theri-lore not decisive of the iinestiun when raised under issues soformed as to present it freed from the tichnicaliticsof pleading. Rtill thereare other cascM cited on tlie same side, which declare the rule to lie as followH: Where an action IS hrouglit by the vendoragaiiiHt the vendee, for refusing to receive ni.d (iiiy for goods purchased, the measure of diiin- nges iH the actual Ions riiistained by the vendor in consei|uence of the vendee refus- ing to taki- and pay for the koimIh, or, in other words, the difference lietw-en the contract price and the market price at the time and place or delivery. In the author- ities cited by tlie plaintiff in ern.r, no ills tiiiction is drawn, or attempted to l)e • Irawii. between the sale of gnods and chattels already in existence, and an agreement to furnish materials and iniin- ufacturn a specilic article inn particular way, and according to order, which is not yet in existence: the theory being, that in neither case would the title pass, or prop- erty vest in the pnrchaser, nntil there had lieen an actual delivery, and that natll the title had passed, tlie vendor's remedy was liiniteil to the damages he had suf- fered by reason of the breach of the cun- tract liy the vendee, which were to be measured by the rule above Mlated. In this case it is not necessary to determine whether or not n dlstiiiction, resting npun principles of law. can lie drawn between ordinary sales of goods in existence and on the market, and goods innde to order in a particular way, in pursuance of a con- tract lietween the vendor and vendee. The case here Is of the hitter kind, and the <|Uestion is. whether the plaintiff l>elo\v was entitled to recover the contract price of the carriage, on proving that he hni) furnished the materials, and made and tendered it in imrsiiance of the terms of the contr;ict. Counsel for thedefendnnt In eri-or( plain- tiff below) has cited a nninber of authori- ties, in which the (luestions presented and decided arose n|ion facts similar to those in this case, nnd upon issues presenting the (|iiestii>n in the same v« ny ; and ns the conclusions we have arrived at, are based npon this class of authorities. Home of them niav be parlicnlarlv noticed. laltemeiit v. Smith, l.'i Wend. -I'.i:!, thede- fendnnt employed the plaintiff, a carriage- maker, to build a sulky for him. for which he promised to pay eighty dollnrx. The plaintiff made the sulky according to r<in- tract, and took it to the residence of llie defendant, and told hinr he delivered It to him, and deiiiiinded |iaynient. in pnrsn- ance of the tei nis of the contract. Tlit defendant refused to i-cceive It. Whereup- on the plaintiff told him he would leave it witli .Mr. He Wolf, who lived near; wlilch he did. and commenced suit. On tlie trial It was proved the sulky was worth eighty dollars, the contract price. The court charged the jury, that the tender of the 726 SHAWIIAN V. VAN NKST. corriuue was substantially a fulfillnienl; of the contract on the part of tho plaintiff, and that he was entitleil to wustain hi^ action for tlie price aj;rec(l upon between the parties. The defendant's counsel re- quested til? court to charge the jury that the measure of damages was not the sulky, but only the expense of taking it to the residence of the defendant, delay, loss of sale, etc. The judtje declined to so charge, and reiterated the instruction that the value of the article was the measure of damages. The jury found (or the plain- tiff, with eiphty-three dollars and twenty- six cents damages, l)eing the contract price with interest. The charge to tlie jury was sustained by the supreme court of New York. In Hallentine et al. v . Robinson et al., 46 Penn. St. 177, an agreement was made between the plaintiffs and defendants, whci-eby the plaintiffs were to provide materials, and construct for the defenrl- antsa six-inch steam-engine, with boiler and Gifford injector and heuter. in consid eration whereof tlie defendants were to pay plaintiffs five hundred and thirty-five dollars in cash on the completion thereof. The plaintiffs conii)lied with and complet- ed the contract in all resjiects on their part, but the defendants refused to pay according to contract. On the trial, the plaintiffs proved the contract, and the jier- formance of it on their part, and that the engine was still in their hands. The defendants' counsel asked the court to Instructthe juri' "that the proper meas- ure of damages in this case is ihe difference between the price contracted to be paid for the engine and the market price at the time the contract was broken." The court declined to charge as requested, and instructed the jury that the measure of damages was the contract price of the engine, witli interest. There was a ver- dict for the plaintiffs for the contract price. The case was taken to the supreme court, and the error assigned was the re- fusal of the court to give tlie instructions requested by the defendant. The sui)reuie court atfirined the judg- nient in the case below. It will be seen that these cases aie very similar, and pre- j senteil th.e same question, and in the same manner that the question is presented in this case. Graham v. Jackson, H East, 498, decides the |)oint in the same way. Mr. Sedgwick, in his work on Damages, side page I'SO, in speaking on this subject, says: "Where a vendee is sued for non- performance of the contract on his part, in not paying the contract i)rice, if tlie goods have been delivered, the measure of damages is of course the price named in the agreement; but if their possession has not been changed, it has been doul>ted whether the rule of damages is the price itself, or only the difference between the contract price and the value of the article at the time fixed for its delivery. It seems to be well settleil in such cases that the vendor can resell them, if he sees fit, and charge the vendee with the difference be- tween the contract price and that realized at the sale. Though perhaps more pru- dent it is not necessary tliat the sale should beat auction; it is only requisite to show that tlie [troperty was sold for a fair price. But if the venilor does not pur- sue this course, and, without reselling the goods, sues the vendee for his breach of contract, the question arises ■which we have already stated, whether the vendor can recover the contract price, or only the difference between that price and the value of tha goods which remain in the vendor's hands; and the rule appears to be that the vendor can recover the con- tract price in full." In Hadly v. Pugh et al., \A' right, 554, the action was "assumpsit on a written ngree- nient between the parties, for the defend- ants to take all the salt the [ilaintiff man- ufactured between the '2t] of June, 1X31, and the 1st of January, 1.S3L', to be deliv- ered at the landing in Cincinnati, from time to time, as the navigation of the Muskingum and Ohio should permit, and to pay forty-tive cents a bushel." The plaintiff proved the agreement, and the offer to deliver to the defendants three hundred and fifty barrels of salt, which the defendants refused to receive. Tliere was an issue in tliecHBe,a8 to whether the contract had been previously fulfilled and abandoned by the parties. The court (Lane, J.) charged the jury that if the contract had not been "fulfilled or aban- doned, and the plaintiff tendered the salt under the contract, which was refused, he had a right to leave it for the defendants and recover the value." The only case I have examined in which the authorities on this point are reviewed, is that of Gordon v. Norris, 4!) N. H. 370. The case is too lengthy and complicated to attempt to give an abstract of it here, but the point under coiisiileration was in- volved ; and although the learned judge criticises the law as laid dcnvn by Mr. Sedgwick, and even shows that the au- thorities he quotes in suiiport of his posi- tion do not sustain him, for the reason pointed out, yet he says that there is a distinction between the case of Bement V. Smith, and the ordinary cases of goods sold and delivered — viz.. " the distinction bet ween a contract to sell goods then in existence, and an agreement to furnish materials and manufacture an article in a particular way and according to order, which is not yet in existence." He recog- nizes Benient's''ase and others of thesame class as exceptions to the general rule whicli is to be applied in the sale of ordi- nary goods and merchandise which have a fixed market value; and in the syllabus of the case, the distinction is kept up and stated as follows : " When the vendee refuses to receive and pay for ordinary goods, wares, and mer- chandise, which he has contracted to pur- chase, the measure of damages which the vendor is entitled to recover is not ordi- narily the contract price for the goods, but the difference between the contract price and the market price or value of the same goods at the time when the contract was broken. "But when an artist prepares a statue or picture of a particular person to order, or a mechanic makes a specific article in his line to order, and after a particular measure, pattern, or style, or for a partic- SIIAWIIAN V. VAN NEST. 729 ular uHe or purpose— when he has fully perfDi'mcfl his purl of tlio contract, iiinl tendered or offered to deliver the article thus moiiufactured according to i-ontruct, anil the vendee refuses to receive and pay for tlie same, he may recover as daniaKes, in an action against the vendee for breacii of the contract, the full contract price of the manufactured article." As has been said, we arc not called upon now to determine whether the distinction as drawn in the clauses quoted, is sound on principleor not: but bethat as it may, we recognize the law applicable to the case before us as being correctly stateil in tbe clause last quoted. Judge Swan, in his excellent "Treatise," (loth ed. 7H0), in speaking of the effects of a tender upon the rights of fl-.e buyer and seller, and of the damages in such case, says. "The general rule in relation to the rights of a seller, under a contract of sale, where he has tendered the property, and the buyer refuses t<i receive it, is this : The seller may leave the property at some se- cure place, at or near the place where the tender ought to be and is made, and re- cov-er the contract price; or ho may keep it at the buyer's risk, using reasonable dil- igence to preserve it, and recovt-r the con- tract price and expenses of preserving and keeping it; or ho may sell it, and recover from the buyer the difference between the contract price and the price at which it fairly sold." The rule as thus laid down was first published in ls;jG, two years after the decision in Hadly's Case, above re- ferred to, which was substantially fol- lowed by .Judge Swan in laying it down. It does not appearthat either the deci.sion or the rule as laid down hoR ever been questioned in Ohio. It will be pi-rcelved that .Jud^e .Swiin lays down the rule gen- erally as applicable to all sales of chnttels in the ordlnari" course nt trade, without intimating any such distinrtion as that drawn in Gordon v. Norris. We sanction and n[»ply the rule In the determination of the particular (•a^le before iis. Whc-n the Iilsinlift below had completed and ten- dered the carriage in strict pcrfijrmance of the contract <in his part, if the defendant below had accepted it, as he agreed to do, there is no (luestlon but that he would have been liable to pay the full contrnct price for it, and he can not bo permitted to place the plaintiff in a worse condition by breaking than by performing the con- trnct according to its terms on his part. When the plaintiff had completed and ten- dered the carriage in full performance of the contrnct 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 damagi's for the breach of the contrnct by the defendant. Or, at his election, he could have sold the cirriage for what It wouhl have brought at a fair sale, and have recovered from the defendant the difference between tbe contract price and what it sold for. The court behjw did not err In refusing to give to the jury the special instructions requested by the defendant below. Motion overruled. McIlvV.MNH. C. .7., and WELCH, WlIITt:, and HKX, .TJ., concurred. SHELDOX V. CAl'liOX. 731 SHELDON et al. v. CAPRON. (8 R. I. 171.) Supreme Court of Rhode Island. Sept. Term, 1855. Heplcvin by Slielilon & Bart«ri nuninst Cliarle.s S. ('apron. Verdict for plainliffn, and (Iffeiulaiit exrepts. ExceptiuiiH over- ruled. PlaintiffH were nucfioneers, and in De- cember, ]s.'>:}, Hold at aiictioii a Inrjre i|iihii- titj of jewelry, arrantred for sale in boxes and packaKeB numbered fr<jin 1 to ."Jli. Printed cutaloKues were distributed, and the packanen and boxes, as siieees«ivel.v offered for sale by auniber, were exhibited. Hox No. L'4, eontainiifj; 14 1-0 dozen liard solder rinus, worth $:!,:;.") (ler dozen, were struck off to Mathewson & .Mlrn ; and No. L'.'),coiitaininj;; s l-d dozen soft solder rinfis, was struck (jff at $2.S7 per dozen, to (le- fendant. After the sale, plaintiffs' clerk, by mistake, delivered to defendant box No. L'4. which defendant paid for as beiUK the box on wliicli he bid, and there was some eviilence that the hox passed around at the sale as No. I'.'i wf.s that which plain- tiffs claimed to have been No. :.'4, struck off to Mathewson & Allen. Plaiiitiffs broHt;ht this action on defendant's relusal to return No. '_'4 and its contents, they tenderint; him No. "J."!. The court charged the jury tliat if they were Butisfied that. throuKh a mistake at the sale or in the delivery, defendant obtained the wi-onft box, and thus jjot more than he payed for, or a superior article, ami that he, on de- mand for box No. 24 and a tender of box •Jo bein^ made, had refused to correct the mistake, plaintiffs wereentitled to recover. Laphnm, for jjlnintiffs. .James 'i'lllin^- hast, for defendant. STAPL.EIS, C. J. — We see no error in the charij;o of tlie court which will justify us in directing a new trial to be hud in this case. It the plaintiffs handed out box No. J.'i, which did contain s l-G duz. tilled ami chased soft solder rin;r'<. and put It up at auction culling it No.lM which did contain 14 1-6 uozens Idled and chased liard solder rinus, and it was bid upon and finally struck off by them to ilathewson & .Mien, it cannot be pretended that the purchasers would be recpiired to take it as their bid. The minds of the parties never met. No contract was made between tliem. Tim plaintiffs were sellinK one thiaK atid Ntnth- ewson & .Mien purchasiiiK or rather bid- dint; upon anolhcr. So, too. if plaintiffs did set up h«)x .No. 2.") and strike it off to .Mnthewson 4 Allen at their bid for it, tl'i-y could not compel M. & A. to take box No. -.'4, and that sim- ply iKK-ause .\I. & A. never bought It, unJ never l)iil anythinu for It. The HUpposcd purchasers in both iUHtances. would deem it very hard to be compelled to take what they did not purchase nor bid for, nor want, an article of inferior ({uallty and value to that contained in box .No. 'l.>4. If thatsupposed purchasercould not becom- pelled to fulfil his supposed liarKain under these circuniHtances, neither <-ould the plaintiffs, where box No. L'4, the box o( ;rreater value, was by mistake substituted for box No.L'."i. oneof less value. The same reason would govern both casi-s. and that is one mimed in the chnr>;e excepted to by the defendant, the mistake of the par- ties. When the plaintiffs set up box No. 24, it was box No. 24 un their catalogue, the sale beini; by catalogue and the number having referen<'e to it. It was No. LM with the contents describeil In No. 24 on the cat- alogue. II box No. Jj on the same cata- logue were exhiltited as box No. 24 and so bid upon anti purchascil. still the pur- chaser would have a right to box No. 24, and no other. That was the box which tlie plaintiffs set up at auction, and that till' <ine the purcliasers bid upon and bouiiht. If any other box should after- ward be delivered or offered to the pur- chaser, he would of riclit turn to his cata- logue and lequire the liox .No. 24 of the calaUjgue Willi its contents, as he would not be bound to take as liox Ni>. 24, one which was «)f h-ss value and contained different articles from f liecntnlogue.No. 24. So he could not legally keep them. If they proved of greater value. II on calling for his purchase the plaintiffs shoulil offer him the trueb>)X .No. 24, which they sold, but wliii-h in fact was not the box nhicli iliey exhibited, and which hebid forand boimht as box .N'o. 24, he could refuse to ri-ceive it on the ground of mistake, as he supposed he bought one and the plaintiffs suppose*! they had sidil another. Neither the one nor tlie other was sold, but the title to each remained unchanged. New trial refused. SUEinvooD c WAI.KEU. 733 SHERWOOD V. WALKEK et al. (3:t N. W. Rep. 919, 66 Mich. 50^.) Supremo Court of Micbigau. July 7, 18S7. lOrror to circuit court, Wayne county ; .loiiniHon, Juil^c. C. J. Reilly, l«r plaintiff. \Vm. Ail^miin .Jr., (D. C). Holhrook, of couhhcI,) for de- , fendantH and appolliintH. MOHSlC, J. Itoplcvin for n cow. Suit j coinnicnccd in juHtioo's court; ju<l(^iiit'iit for plaintiff ; appealed to circuit court of Wayne county, and verdict, and juiljiuii-nt for plaintiff iu tliat court. Tlieilcfeiidants briug error, and set out 25 aHHiRnnientH of the Hanie. The main contr4)verHy depetnlH upon the construction of a con tract for the Hale of the cow. The plaintiff claims iliat tlie title pa.ssed, and linseH hi« action upon Huch claim. The defendnntH contend that the contract was executory, and liy itM terms no title to the animal was aciiuireil liy plaintiff. The defendants reside- at Detroit, l)ut are in husiness at WalUerville, Ontario, and have a farm at Greenfield, in Wayne county, upon which were some blooded cattle supposed to he liarreu as breeders. The Walkers are importers and breeders of polled Aukum cattle. The I)lalntiff is a banker living at I'lymoutli, in Wayne county. He calk-il upon the de- fendants nt Walkerville for the i)urcliase of some of their stock, but fouud none there that suited him. Meeting; one of the defendants afterwards, he was informed thattliey had a few head uiion this (Jreen- lield farm. He was asked to Ko out and look at them, with the statement at the time that they were probaldy barren, a. id would not breed. May r>. isso, plaintiff went out to (jreenfieUl, and saw the cat- tle. A few days thereafter, he called u|ion one of the defendants with the view of purchasing a cow, known as " Kose ".'d of riberlone." After consiilerable talk, it was agreed that defendants would tele phone Sherwood nt his home in (Mvmouth in rc^feience to the price. Thesecond morn- ing alter ttiis talk he was called up by tele- phone, anil the terms of the sale were linally agreed upon. He was to iiay live and one-half cents per pound, live weight, fifty pounds shrinkage. He was asked how he intended to take the cow home, and replied that he might sliii) her from King's rattk'-yard. He reiiuested defend- ants to conlirin the sale in writing, wliicii tliev did bv sending him the following letter: "Walkerville. May !.">. IS-ti. T. (;. Shei'wood, President, etc.— Dear Sir: We confirm sale to yon of the cow Kose '2i\ of Aberlone, lot ')« of our catalogue, at (Ive and a half cents per pound, less (ifty |)()unds shrink. Wo in.dose herewith or- der on Mr. (Iraliam for the cow. Yon might leave (diecli with him, or mail to us her(>, as you prefer. Yours, truly, Itlram Walker & Sons." The order upon (ira- ham inclosed in the letter read as follows. "Walkerville, May l.">, 1^>^I",. Ceotge (irahnm: You will pleasedeliverat King's cattle-yurd to Mr. T. C. Sherwood, IMyni- nnth. the cow Kohp '.'d of Aberlone, lot iV; of our cntaiogiie. Send l.alter willi the cow, ami have her weighed. Yours trulv. Hiram Walker & Sons. " On ihe twenty- first of tlie same month the |ilaintirf went to ilefenilanls' farm at (Jreenlield. and presenlerl the order and letter to liralinin, who informed him that the ib-fendantH had instructed hini not to deliver the row. Soon after, the pl;iintjff tendered to Hiram Walker, one of the derenilnatH, $•>(). and demanded the cow. Walker relnseil to take the i ley or deliver the cow. The plainlilf then instituted this suit. After he had Mccured pohm'shIoii of the cow un- der the writ of reiilevin, the plaintiff caused her to be weighed by the constable who served the writ,nt a placeother than King's cattle-yard. She weiuhed 1,4J0 pounds. When the plaintiff, upon the trial in the cir<-nit court, had sulimltted his proofH showing the above transaction, defend- ants moved to strike out niKl e.xcbiile the t<-stirnony from the case, for the reason that it was irrelevant and did not lend to show that the title to the cow passed, and tliat it showeil that the contract of sale was merely executory. The court re- fused the motion, and an exception was taken. The defendants then Introduced evidence tending to sliow that at the time of the alleged sale it was believed by both the plaintiff and themselves that the cow was barren aii<l would not breed; that she cost $s."il), and if not barren would lie worth fioiii *7.'(l to ?l.(l(lu; I lint after the date of the letter, and the order to (ira- liani. the defendants were inrorine<l l»y said Graham that in liin judgment tliecow was with calf, and therefore they In- structed hini not to deliver her to l)laintiff. and on the tweniietli of May, IsMi. telegraphed to the plaintiff what Graham thought about the c>iw being with calf, and that coiiHciiuently they could not sell her. The cow had a calf in the month of October following. On the nineteenth of .May, the plaintiff wrote Graham as follows: " I'lymouth, .May lit, Is.sd. Mr. George Graham. Greenfli-ld — Dear .Sir: I have bought Itose or I ucy from Mr. Walker, and will be there for her I'riday morning, nine or ten n'idock Do not water her in the morninir. Yimrs. etc.,T.t'. Slierwooil." IMaintiff e.vpbiineil the mention of the two cows in tlils letter by testifying that, when he »■ rote this let- ter, the Order ami letter of ilefendiints were at his house, and, writing in a hurry, and being uncertain as to the nniue of the cow, and not wishing his row wn- leved. he tli<iuglit it would ilo no harm to name them both, as his bill of sale would show which one lieliad purchased, riain- tiff also tcKtilled that he axked ilpfendants to give him a price on the lialance of their herd nt Greeiilleld, as a friend thougli: of buying some, and riH-eived a letter dated .May IT. l>v*«i. in which they named the price of live cattle, including I. ucy. at f'.K». and Kose I'd at ?mi. When he received the letter he called d.fcmlanis np by tele- phone, >ind iixked tlicMiwhy they put Kose ■_M In the li-l. as he lia<l iilready | iin-hnsed lier. They replied that they knew he hod. 734 SHKRWOOD D. WALKER. but thoiiRl-.t it would make no difference if plaintiff and his friend concluded Intake the whole herd. The (oretcuinK Is the substance of all the testimony in th(! case. The circuit judse instructed the jury that if they believed the defendiints, when they sent the order and letter to plaintiff, meant to pass ilie title to the cow, and that the cow was intended to be delivered to plaintiff, it did not matter whether the cow was weighed at any particular place, or by any particular person; and if the cow was weighed afterwards, as Sher- wood testified, such weiKhinji would be a sutiicient compliance with the order. If they believed that defendants intended to pass the title by the writing, it did not matter whether the cow was weighed before or after suit brought, and the plaintiff wouhl l>centitled to recover. The defendants submitted a number of re- quests which were refuted. The substance of them was that the cow was never de- livered to plaintiff, and the title to her did not pass by the letter and order; and that under the contract, as evidenced l)y these writings, the title did not pass until the cow was weighed and her price there- by determined; and that, if the defend- ants only agreed to sell a cow that wouhi not breed, then the barrenness of the cow was a condition precedent to p^issing title, and plaintiff cannot recover. The court also charged the jury tliat it was imma- terial whether the cow was with calf or not. It win therefore be seen that the defen<lants claim that, as a matter of law, the title to this cow did not pass, and that the circuit judge erred in submitting the case to the jury, to be determined by them, ui)on the intent of the parties as to vvhetlier or not the title passed with the sending of the letter and order by the de- fendants to the plaintiff. 'J'his (juestion as to the passing of title is fraught with difticulties, and not al- ways easy of solution. An examination nf the multitude of cases bearing upon this subject, with their infinite variety of facts, andat least apparent conflict of law, oftimes tends to confuse ratlier than to enlighten the niind of the Inquirer. Jt is best, therefore, to consider always, in cases of this kind, the general principles of the law, and then apply them as best we may to the facts of the case in hanil. The cow being worth over SiJd, the con- tract of sale, in order to be valid, must be (jne where the purchaser has received or accepted a part of the goods, or given something in earnest, or in part payment, or where the seller has signed soraenoteor memorandum In writing. How..St. § (ilSli. Here there was no actual delivery, nor anything given in payment or in earnest, but there was a sufficient memorandum signed by the defendants to take the case out of the statute, if the matter contained in such memorandum Is sufficient to con- stitute a completed sale. It is evident from the letter that the payment of the purchase price was not intended as a con- dition precedent to the [.assing of the title. Mr. Sherwood is given his choice to pay the money to Graham at King's cattle-yards, or to send check by mail. Nor can there be any trouble about the delivery. The order instructed (Jraliam to deliver the cow, upon presentation of the order, at such cattle-yards. But the price of the cow was not determined upon to a certainty. Uefore this could be as- certained, from the terms of the contract, ! the cow liad to be weighed: and, by the I order inclosed with the letter, Graham I was instructed to have her weighed. If the cow had been weighed, and this letter i had stated, upon such weight, the expiess I and exact price of the animal, there can I be no doubt but the cow would have I passed with the sending and receipt of I the letter and order by the plaintiff. Fay- ; meat was not to be a concurrent act with the delivery, and therein this case differs from Case v. Dewev, 5o Mich. Il(j, L'O N. W. Kep. S17, and 21 N. W. Hep. Ull. Also, in that case, there was no wiitten memorandum of the sale, and a delivery was necessary to pass the title of the slieep; anil it was held that such delivery could only be made by a surrender of the : possession to tlie vendee, and an accept- ance by him. Delivery by an actual traus- : fer of the property from the vendor to the vendee, in a case like the present, w here the article can easily be so transferred by ;a manual act, is usually the most signifi- [cant fact in the transaction to show the intent of the [larties to pass the title, but it never has been held conclusive. Neither the actual delivery, nor the absence of such delivery, will control the case, where the intent of the parties is clear and mani- fest that the matter of delivery was not a ! condition precedent to the passing of the title, or that the delivery did not carry ■ with it the absolute title. The title may pass, if the parties so agree, where the statute of frauds does not interpose wlth- I out delivery, and jiroperty may be deliv- ' ered with the understanding thsit the title shall not pass until some condition is jier- formed. And whether the parties intende'l the I title sliould pass before delivery or not is ! generall.v a question of fact to be deter- mined by the jury. In the case at bar the question of the intent of the parties was submitted to the jury. This submission Was right, unless from the reading of the letter and the order, and all the facts of the oral bargaining of the parties, it Is perfectly clear, as a matter of law, that the intent of tlie parties was that the cow should he weighed, and the price thereby accurately determined, before she should become the property of the jjlaintlff. I do not think that the intent of the i)arties in this case is a matter of law, but one of fact. The weighing of the cow was not a matter that needed the presence or any act of the defendants, or any agent of theirs, to be well or accurately done. It could make no difference where or when she was weighed, if the same was done upon correct scales, anil by a competent person. There is no pretense but what her weight was fairl.v ascertained by the plal!!tiff. The cow was Bpeclticall.v des- ignated by this writing, and her delivery ordered, and It cannot he said, in ray opinion, that the defendants intended that the weighing of the animal should be SHERWOOD V. WALKER. 735 done bpfore the delivery even, or the pbhr- ' ins of the title. The order to GrahHm Ih to deliver her, ami then followH the in- struction, not that he xhnll wei^h her hiniHelf, or weiKh her, or even have her weitilied, before delivery, tint Hiiuply, ".Send halter with the cow, and have her weighefJ. " It is evident to my mind that they had perfect confidence in the integrity and re- HpouHibility of the plaintiff, and that they considered the sale perfected and com- pleted wlien they mailed the letter and order to plaintiff. They did not intend to place any cotiditions precedent in the way. either of payment of the price, or the weiKhiiifT of the cow, before the passinj; of the title. They cared not whether the money was paid to Graham, or sent to theui afterwards, or whether the cow was weiRhed before or after she puuHed into the actual manual Krasp of the plaintiff. The refuhul to deliver the cow frrew en- tirely out of the fact that, before the plain- tiff called upon Graham for her, they dis- covered she was not barren, and therefore of greater value than they had solJ her for. The following cases in this court sup- port the instruction ot the court below as to the intent of the parties RoverninK and controlling the question of n completeil sale, and the passing of title: Linghain V. KKgleston, 27 .Mich. 324; Wilkinson v. Holiday, 33 Mich. 3S(;; Grant v. Mer chants' & Manufacturers' i'.ank, 3.1 Mich. r)27; Carijcnter v. Graham, 42 Mich. l'.)4, 3 N. W Rep. !>74: Brewer v. Salt .Vss'n, 47 .Mich. .'■)34. II N. W. Rep. 370; Whitcomb v. Whitney, 24 Mich. 4><6: Bvles v. C'olier, ,54 Mich. 1. 1!) N. W. Rep. 5(ir»; Scotten v. Sutter, 37 Mich. 527, 532; Diicey Lumber Co. v. Lane. .iS Mich. .520, ,'125.25 N. W. Rep. .5GS; Jenkinson v Monroe, fil Mich. 454, 2S N. W. Rep. 663. It ai)pears from the record that both partie.-( supposed this cow was barren and would not breed, and she was solil by the pounil for an insljinilicant sum as com- pare<l with her real value if a breeder. She was evidently sold and purchased on the relation of her value for beef, unless the plaintiff had learned of her true condition, and concealed such knowledge from thede- fendants. Before theplaintiff secured pos- session of the animal, the defendants learned that she was with calf, and there- fore of great value, and unilertook to re- scind the sale by refusing to deliver her. Tlie question arises whether they had a right to do so. The circuit judge ruled that this fact did not avoid the sale and it made no difference whether she was barrt-n or not. 1 am of the opinicm that the court erred in this holding. I know that this is a close (piestion, and the dividing line between the adjudicated cases is not easily discerned. But it must he considered as well settled that a party who has given an afiparent consent to a contract of sale may refuse to execute It, or he may avoid it after it has been cv»m- pleted, if the assent was foumled, or the contract made, u|>ou the mistake of ji ma- terial fact, — such as the subject-matter of the sale, the price, or some collateral face materially inducing the agreement; and this can be done when the mistake is ma- tual. 1 Henj. Sales, 55 (;05, OWJ; Leake, t'ont. :«U; Story. Sales, (4th Kd.)§J3r7, 14S. See, also, <"utts v. (Juilil, 57 N. Y. 220; Harvey v. Harrln, 112 .Mass.. ■J2; <Jurd- ner v Lane, 9 .\llen. 4'JJ, 12 Allen, 44; Ilnthmacher v. Harris' Adm'rs, .3s Fa. St. 4'.»l : liyers v. thapin, 2s Ohio St. 300; Gib- son v l'elkii-.:!7 .Mich. 3SI». ond cnse!* cited; -Mien v. Haniraond, 11 I'et. ^'{-71. If there is a difference or ndsapprehen- sion as to the substance of the thing bar- gained for; if the thing actually dellven>d or rei-eived is different in snbhtnnce from the tiling bargained for, and inten'led to be Bolcl,— then there is no contract; but 1( it be oidy a difference in some quality or accident, even though the niistake may have been the iictuating motive to the purchaser or seller, or both of them, yet the contract remains binding. "Tlie dldi- culty in every case is toiletermine whether the mistake or mlsa|>prehensio!! is n8 tu the substance of the whole contract, go- ing, as it were, to the root of the mat- ter, or only to some pcdnt, even though a material point, an error as to which does not affect the substani'e of the wbide consideration." Kennedv v. I'annma. etc., .Mad Co., L. R. 2 Q. "R. .5M(. 5s7. It has l)een held, in accordance with the prlti- ciples above (Stated. th;i t where a horse is bought under the belief that he is sound, and both vendor and vendee honestly believe him to l)e sound, the purchaser must stand Ity his barg.iin, and pay the full price, uidess there was ji warranty. It seems to n)c'. however, in the case made by this record, that the mistake or uiisapitrehension of the parties went to the wlude substance of the agreement. If the cow was a lireeder, she was worth at least $7.50; if barren, she was wortli not over $s(i. The fiarties would not have made the contract of sale except upon the nnderstandingund Ix-lief thatshe was iuca|)able of breeding, and of no useas a cow. It is true she is now the identical animal that they thought her to be «vhen the contract was made; there Is no mis- take ns to the iih'Utity of the creature. Vet the mistake was not of the mere qual- ity of the animal, but went to thi- very nature of the thing. A liarren cow is onli- stantially a different creature than a breed- ing one. There is as much difference be- tween them for all purposes of use as there is between an ox anil a cow that iscapal>le of brc'ding and giving milk. If the mu- tual ndstake had simply related to the fact whethe" she was with calf t)r not for one season, then it might have been a good sale, but the mistake affected the char- acter of the animal for all time, and for her present and ultimate axe. She wan not in fact the aniiual. or the kind of ani- mal, the defi'ndantrt intentleil to sell or theplaintiff to tiny. She was not a bar- ren cow, and. if this fact had tiei-n known, there would have been no i-ontract. The mistake affected the substance of the whole cimsideration, and It mustbecon- sidcred that there was no contract to sell or sale of the cow as she actually was. The thing sold and bought had in fact uo 7:56 SHERWOOD V. AVAI.KER. f existence. She was sold aa a beef crea- ture would be sold ; she is in fact a breed- ing cow, and a valuable one. The court shoulil have instructed the jury that if they found that the cow was sold, or con- tracted to be sold, upon the understand- inn of both parties that she was barren, and useless for the purpose of broedinji, and thnt in fact she was not barren, but capable of breeding, then the defendants had a right to rescind, and to refuse to de- liver, and the verdict should be in their favor. The judgment of the court below must he reversed, and a new trial granted, with costs of this court to defendants. CAMPBELL, C. J., and CHAMPLIN, J., concurred. SHERWOOD, J., delivered a dissenting opinion. SHIELDS V. PP;TTIE. 73J SHIELDS et al. v. PETTIE el al. (4 N. Y. 123.) Court of Appeals of New York, 1850. AsBumpsit to recover a quantity of plj? iron. Tlie contract between the partiea waw in these wofiIh: "New York, July 1», 1847. Sold for MesKTH. Georije \V. Shields &Co., to Mchhi-s. Petteo & .\liuin, one hundred and fifty tons (Jurtslierrie pig iron, No.l, ut $2!) per ton, one-half at six months, one-half cash, lesB four per cent., on board Siddons. "ThoniuH Ingham, Broker." On the arrival of the ".Siddons" tlie de- fendants received sixty or seventy tons of tlie iron, but on ascerlnininK its inferior quality, declined to accept and pny for it, or the residue, as of the qualiti' required by the contract. Tlie plniutiffs offered to deliver the residue, which was declined, and then demanded payment for the por- tion delivered at the contract |)iice, which was also refused, as was a demand torthe return of the iron delivered. The price of No. 1 iron liad by this time advanced about $:iS)i) per ton above the contriict price. The defendants had parted with a portion of the iron before its return was demanded. The jury were instructed that under the circumstances the defenilants were liable by an implied contract to pay for the iron received at its then market value. Tlie plaintiffs had judKnient on a verdict for $2,197.3!). Thedefendants brouj^ht this ap- peal. W Hall, for appellants. N. Hill, Jr., for respondents. HORLBnT, .1. In my judcment the contract was not a sale but an agree- ment to sell, which was not executed, and which could only be required to be execut- ed upiiU the arrival of the ship with the | iron on board. The arrival of the vessel without the iron would have put an end to the contract, which was conditional as a sale, to arrive. The vessel was at sea at the time, this was known to both par- ties, and neitlier could be certain, either of her arrival or of her brinjiln^^ the iron. If j a |)art only had arrived, the plaintiffs! would not have been bound to deliver norj the defendants to accept it. There was no warranty, express or iniplied. either! that any iron should arrive, or that arriv-j inn. it should be of a iiartlcular (luality. One hundred and lifty tons of (iartsherrie \ pifi iron of the quality denominated No. 1 was expected to arrive by the "Siddons." and the contract was to the effect, that if that (juaiitity and quality of iron did .so arrive, one party should sell and the otli- er should receive it at a certain price per ton. The Iron called for by the contract I did not arrive, but iron of a different iiual- 1 ity, and I think the contract wna at an end. ( IJoyd v. Siffkln. 'J ("amp. N. 1' '.vy<: Alcwyn v. Tryor, 1 Kyan & .Moody, 4()(i; Lovatt V. Hamilton, .'> .Mees. & Wels. C.ii'.t; Johnson v. Mucdouald, l) id. GOO; Hussell V. NicoU. 3 Wend. 112.) The jury were instructed that, under the circumstances of the cobc, the law implied a contract on the part of the detendantH to pay for the iron which they receive<l at the then value of the same In the market, and they found accordingly; which, in effect compelled the defendants to pny for an inferior article a grenterprlce than that stipulated for In the contract. This arose from the circumstance of a riseln the mar- ket, intermediate the contract and the time ofilelivery. Hut this ought not to affect the rule of damages which cannot b<-nd to an accident of this nature, but must re- main the same in a case like the present, whether the commrjdity rise or fall, or re- main stationary in the market. Where, upcjn a sale of goods, there is no agree- ment as to the I, rice, the law implies a contract on the part of the buyer to pay for them at the market value. The (>reii- ent case cannot be excepted from the oper- ation of this rule. There was no error In the charge of the learned judge, (irovided the law iniplieii a promise on the part of the defendants to pay any thing whatev- er for the iron which they received. This they had taken in good faith. Hupposlng that it answered the contract, anil intend- ing to pny for it nccurdingly : but finding it to be of an inferior quality, they de- clined to pay the contract price, and upon a denian<l of the iron were not in a conili- tion to restore it, us they had parted with a portion of it. They, however, had re- ceived (he iron rightfully, in the character of vendee.-*, and up to the time of the de- mand liy the plaintiffs, the ca^e exhibits notliing In the nature of a tort, but sa- vors altogether of contract. .After the de- mand and refusal, tlie case was so far modified u.<to assume, tcclinli'ally at least, the comfilexion of a tort, so (hat trover might have beeti maintained by the plain- tiffs. Hut although they might have done so, were they boimd to bring their action in that f-irm. or were they at lib- erty to disregard the tort and to treat the defendants as still retaining their oriuinal characters of purchasers of the Iron and to charge them accordingly? I perceive no reason why they may not be permitted to do so. The goods were neither wrong- fully taken, nor do the defendants claim title to them. The case rested originally in contract, and the only difference be- tween the iiartles related to the price of the article delivered. If the (ilaintiffs had brought trover, the rule of damages would not liave been more fa vorable to thedefendants than the on<> lai<l down at the trial, anil I am unable to perceive In what respect the\ can be injured by the present form of action. In general It woulil be the most favorable to thedetend- an(. Iti Young v. .Marshall (S Iting. 43), Tindal, Cli. J., declared that no party was bound to sue in tort, when by converting the action Into one of contract hedocsnot prejudice the defcmlnnt. Itis not necessa- ry to go this length, nor as far as the court went in Hill v. Davis (3 N. H. :IS4). (or th.? pur|)ose of determining tlie ques- tion before us; nor Is the point presented in the last case of much importance, since the distinctions which obtninecl at com- mon law in the forms of action have been abrogated In this state. I, therefore, al>- 740 SHIELDS V. PETTIE. stain from expressing any opinion upon it. It is cnousb for our present purpose, that, in the case 'oefore us, the cause of ac- tion arose out oi an imperfect sale anJ delivery ot Roods, and not out of a wrong- ful tafung of them by the defendants; that the tortious feature in the case is scarcely one ot substance, but is rather of a technical character; that in effect the parties must be deemed to hape agreed as to every thing except tlie price of the goods; and that this being so, the plain- tiffs were at liberty to disregard whatev- er might savor of tort, and require the de- fendants to respond in their substantial characters as purchasers ot the iron for what it was worth in the market. The judgment of the superior court ought to be affirmed. Judgment affirmed. SHUFELDT c. PEASE. 743 SHUFELDT v. PEASE et aU (16 Wis. 659.) Supreme Court of Wisconsin. January Term, 1863. Appeal ■from the circuit court for Rocli county. Action against Pen ho & BiiUou for tlie recovery of personal property unlawfully <ietaineil. A verdict was rendered for the |)laintiff. and the defendantH apponled. It was claimed on the part of the plaintiff that the defendiint Ballou, Ueintt inwol- vent, fraudulently purchaned the Rood.s with tlie intention of not fiayingfor them, and that he Hold and delivered them to tlie defendant I'eane in payment of a pre- existinu debt which he owed Pease, and that Pease therefore wa.s not a purchnHer in pood faith. The circuit court instruct- ed the jury, amon« other thlnes, "that a person who receives goods in i)aynient of a precedent debt from a fraudulent ven- dee who has jjurcliased them with a i)rc- coiiceived design of not paying for tliern, being inRolvent at thetime, could not hold them HH against the vendor of such fraud- ulent vendee, and that a person who takes such goods in fiavment of a i)rior indelitedneesls not a bona tide purchaser. " B. B. Eldridge, for appellants. Bennett, Cassoday & Gibbs, for rosjiondent. PAINE, .1. The court instructed the jury, among other things, " that a person who receives goodsin fiaynientof a preced- ent debt, from a fi'audulent vendee, that is, from a vendee who has purchased them with a preconceiveil design of not paying for them, being insolvent at the time, can- not hold them as against the vendor of such fraudulent vendee; thata person who takes such goods in fiayuient of a |)rior indelitedness is not n bona tide purchaser, " Assuming that the fraudulent vendee who obtained the goods in the m;inner specified in the instruction, would be guilty of a fraud that the wale might be avoided as between him and his vendor, we still think the instruction erroneous in holding that a purchaser in good faith from such fraudulent vendee, who took the goods in payment of a jjre-existing debt, was not a purchaser for value, with- in the rule entitling such to protection. This court has held that where negotia- ble paper was taken in good faith In pay- ment of a pre-existing del)t, and the pur- chaser surrendered a prior security, he I was a purchaser for a value within the rule; Stevens vh, Campbell, V.i Wis., Xio. 1 There i.i, however, a distinction l)etwe<-n a case where the purchaser surrenders a former security, and a case wherehe mere- ly receives the profierty on a verltal agree- ment that it shall be in |>uynient of a prior debt. In the former case, he changes hiB position, and gives up something of value to him on the strength of the property he recoives. In the latter case he docs not, that is, assuming that if Ids title should fail by reason of his vendor's fraud in get- ting the goods, his debt would still remain unsatisfied. I( therefore the rule protect- ing bona fide purchasers for value cf>uld be said to rest upon the fact that the purchaser has actually paited witli the value whieh constitutes theconsideration, solely on the faith of the gou'l^ received, there is a distinction between cases where the goods are taken merely in payment of a pre-existing debt, and those where the purchaser advances the consideration at the time of the sale, or surrenders prior I securities. There are several cases that have urged with great force, that in the former case, the purchaser is not within I the reason of the rule, ''odflington vs. Bay, 20 Johns, (i37; opinion of Walwortli, Chancellor, in Stalker vn. McDonald, 6 Hill, 93. But the authoritiea seem to have reject- ed the distinction and to have settled down by a decided pre|)onderance on the conclusion that such a purchaser is within the rule. Youngs vs. Lee, 2 Kern., .">.jI ; .Marbled Iron Works vs. Smith, 4 Uuer, .'tTli; Gould vs. Segee, 5 Duer, l'i;o : Boxbor- ough vs. Messick et al., Ohio St.. 452; Payne vs. Bensley, 8 Cal., 2<jU; McCnsky vs. Sherman, 24 Conn., GO,'); Blanchard vs. Stevens, 3 Ciish., 1G2. These Ciises relate mostly to purchases of promissory notes. But the question whether one Is a bona fide purchaser for value must he decided in the same way, ui)on the same facts, whether he purchases one thing or another. .'Vnd it i.s not disputeil that a bona fide imrchuser for value from a fraudulent vendee, who ac(|uired the goods through a note not void, but void- able only by reason of his fraud, will hold them against the original owni'r. The court having erred in holding that one taking such goods In payment of a pre- existing debt, was not such a purchaser, the judgment is reversed, and a new trial ordered. SIXCLAIIJ 0. MATirAWAY. 745 SINCLAIR v. HATHAWAY. (23 N. W. Rep. t'''*. •■>7 Mi.li. m.) Supreme <;!ourt of Mi(lii«au. May 13, ISSo. ' Error to Wa.vue; JeniiiHon, .Indite. Cha|)nnan & Stiiitli, for apl't^Hunt. Hclj- ert Laidlaw, f<»r apiifllee. CAMPBELL, J. Plaintiff sued defend- ant for a halance claimed to be dde for! breai). Defendant claimed that the ac- count had been balanced l)y bad bread re- turned, and by a sum (jf $111 paid in settle- ment of accountH. Plaintiff was u bal<er, and <lefendanf8 buHiness was to supply bread to ciistomiTH about the city. It appears that for a period defeniiant was employed l)y |ilaintiff to sell his bread, an<l make returns and iiuy for the bread furnished dally. Defendant claims tluit on several occasions the bread furnished was bad and unwholesome, and tliat he returned it to a sufficient extent to over- balance his payments, and that there was an understanding^ t(» that effect. The par- ties are directly at variance on the facts. There was a ^ood dealof testimcjuy show- ing that bread was often made unfit for use, and that plaintiff had to sell it for feeding animals. Jle swore there was never any such thing. The court below rightly excluded evidence of a Sunday contract l)efore the business was entered into. l!ut tliere was testimony of subse- <iuent dealings tending to prove the the- ory of the defense. Thecaee being an n()pcal from a justice, it was shown and seems to liave been ad- mitted that in the justice's court plaintiff swore tliat the amount due liim was only ?(>.■), wlule in the circuit he swore to :^l();i.7!), and recovered it. The court was asked to charge the jury that if plaintiff so swore below, anil so changed his tes- timony without explaining wh.v, that circumstance shoulil weigh witli the jury against the good faith of the claim. The court refused so to charge, l)ut in the charge the court made this remark: "De- fendant also states that tlie complainant only claimed $(i5 in justice court, but the complainant uadertakes to explain it li.v saying that he made a ujistake, as he did not have his bnokn of aronunt witli him at the time." This had a decided tendency to induce the jury to regard thr- point un of no consequenre. IJut It is not a small matter for a person who goes into court to swear to his claim, to [lay ho little re- gard to his oath as to take no pains to find out what is due. And beyond this, there is nothing in the pIcintiff'H testi- mony to show any Huch explanation given by him on oath. The error wuh material. The court also refused to charge that plaintiff was subject liy law to an implied warranty that tlie bread was wholesonip, and in the charge stated the defendant's objections to apply chiefly tr> itH market- able quality, anil to Its being sidled ex- ternally by getting ilirty on the door. There was, however, testimony from sev- eral sources that the bread was unlit for food, apart fi-om its external appearance. It was held in Hoover v. Peler^. IH .Mich. .51, that there is an Implied warranty of wholesomenesH in the sale of provisiona for direct consumption. This question Is not di.scussed In plaintiff's brief, ami wos left entirel.v out of view by the court, and the only reference to it was in connection with an express contract. In this case defeniiant was, as plaintiff claims, in his emph'.v as a peddler, bound to pay for his bread, at a discount, and his connection with the sales brings the case within the same principle. Defend- ant cannot l)e treated as apurchnscr from a wholesale dealer of articles sold in the market for purposes of commerce. Bread is an article sold for immediate consump- tion, and never enters into commerce, and as one of the prime necessaries of life is of no use unless it is good for food. Defend- ant, as a mere middle-man between the baker and the consumer, and actitig in his employment, had a right to expect bad bread to be made good, and the court should have so held. Mere externals he could see for himself, but bad quality would not always be detected without Ruch a minute examination as the circum- stances of such a business woulJ render it dillicult to make. The judgment must be revemed. and a new trial grante-i. The other justices concurred. SMITH c. FEKOUSON. 747 SMITH V. FERGUSON. (90 Ind. 223.) Supreme Court of India May Term, 1883. .1. M. La Hue, V. B. Everett, W. C. W'il- Hoii. nii<l J. H. AilaniH, for appellant. B. VV. Laiif^don, for uppclleo. IIOWK, J. — In liiH complaint in tills ac- tion, tlio appellant, the plai'itiff hcluvv, ulle»;i'(l in HuhKtuncc, that, as the adiiiiniH- trator of tlicostati- of Maliala T. .Shu w, OeccaHed, lie was the owner anil entitled to the pos.ses.sion of eifilit proruiHKor.v notes, each t""'t'<^'i'l'»''lv descrihed, anil all of the value ot $:.',.')0U; and that the appellee had possession of said notes with- out I'iK'it, and unlawfully detained the same from the appellant, at Tippecanoe county; wherefore, etc. The cause was put at iHsue and tried by the coui't, and a findint; was made for the appellee, the defendant helow: an, 1 over the appellant's inotion for a new trial, and his exception saved, the (-ourt rendered judgment on its linditJi'. !n this court the appellant has assij^ned as errors the followiiiK decisions of the trial court : 1. In overruling his demurrer to the tliiril paragraph of appellee's answer; and. U. In overruling his motion tor a new trial. In the third paragraph of his answer, the appellee alleged in substance, that Maliala T.Shaw, the appellant's decedent, on and befoie the day of .luly, 1^7.'l. was the owner and holder of eight prom- issory uotes, particularly describing them ; that on said last named day the said Mahala T. Shaw delivered and entrusted all of said notes into tht- hands and pos- session of the apiiellee; that contempora- neously with lier delivery jf said notes to hin.. the said Maluila declared t(j aad di- rected the aiipellee to take the said notes anil do the ' est he could with them, and furnish her, the said Mahala, with what means she needed to live on, and, after her death, pay what debts he knew she owed, and erect a monument for her like the one that had been ordered for her lirother. Sol- omon, and what was left was Clarinda V. Ferguson's, who was then and since the wife of the appellee, and that the appellee should give what was left to her, the said Clarinda. The appellee said that he then and there received and took possession of said notes from said Mahala, under the said declara- tion and terms; that afterwards, in March, 1S7(), the appellee e.xchangi'd one of the notes for live other notes particu- larly described; and that, in .lanuary, l.sTT, ap|)ellee surrendered Carr's note for $•)() to said Carr on account of a debt due him from said Mahala. The appellee further said that the notes described in the complaint were the notes described in hin answer; that afterwards, on the 7th day of October, isTT, the appel- lee was hobling, and in the possession of, the notes described in the complaint, and thesnid Mahala T. Shaw being then dan- gerously sick and ailing, nnd In the appre- hciiHion of her death, said to nnd charged the appellee to do with what was left o( the iioleH. or the prnceeds ihereiif, as she had told him when she delivered the uoten to liiin as aforesaid, on the day of .luli', ls7,">, us thereinbefore alleged, unil the appellee then and there [ironiised the said .Mahala that l:e would do ho; that afterwards, on the ^ith day of dctolier, 1^77, the said Mahala died of saiil sicKnesH. The appellee charged, that, by n iiHon of the iireuiises, he was entitled to said nolex to deal with them as best lieeuuld,to pay the decedent's lawful debts, and alter building the mnnuiiient, as thiTi-inbefore described, to give and deliver what might be left of such notes, or their proceeds, to the said ('l:irinda. Tin* appellee said that the note first described in the roiuplahit, he did not have or hold at the commence- ment of this action, nor at any time since; and that the estate of saiil .Mahala T. .Shaw, deceased, was solvent. Wherefore the appellee said that the appellant was not entitleil to said nod-s, and he prayed judmnent for his costs herein. We are of opinion that the facts stated in this paragraph of answer arc not sufli- cicnt to constitute a cause of defence to the appellants action. It is admitted in the paragraph tnat the notes in contro- versy were, on the day of ,luly. Is7.">. the notes of .\l-.hala T. Shaw, at the time she delivered and entrusted thi'in to the appellee; and it is not shown by any avei-ment therein, that she ever parted with I.er title to any ijf the notes durin;; her natural life. She made him her attent. with directions to do the best he could for her with the notes, and to furnish her with what means she needed to live on during her life. Her declaration and direction to the appellee, which must be assumed to have lieen veriial or oral, because they were not alleged to have been* in writing, went further anil provided that alter her death he was to pay what debts he knew she owed, and erect n monument for her like the one that had been ordered for her brother .Solomon, nnd what was led was Clarinda V. I'erguson's, the wife of the ap- iiellee, and that he should give what was left to his wile, the said Cbitinda. This is the substance ot what transpired be- tween the appellee and .Mahala T. Shaw, her declaration and direction, in relation to tlie notes in controversy, on tin day of ,lnly, ls7,'i. It is not shown there- by" as it seeu's to us, that on that day there was any gift, by or on the part of .Mahala T. Shaw, during her life, of the notes or any part thereof to the appellee, or his wife or to aii.v one else. There was no gift inter vivos of any of th« tes or of any |iart of the proceeds thereof. The dei'laration and direetions of Mahala T. Shaw lo the appellee in .luly, |s7.'>.as stat- ed in the answer, did not constitute or show a gift In pra-icnti. or durinu her life, of the notes incontroversy; hut they wer<> testamentarv In their tern)H, ami, without the form of solemnity of a will, attempted to make a ;.'i[t of whatever nii^lit be left, aftercertain things had Iuhmi done, to take effect as a gift only after her death. In Smith v. Dorsey. aS Ind. 4,'.l. this 748 SMITH V. FERGUSON". court said: "To constitute a valid sift inter vivos it is essential that the article given should he deliveri'd alisoliitely and unconditionally. The Kift must takeeffect at once and completely, and when it is made perfect and complete hy delivery and acceptance, it then becomes irrevocable by the donor. (Jifts inter vivos have no reference t<) the future, but ro into imme- diate and absolute effect. .\ court of equity will not interfere and jjive effect to a gift that is inchoate and incomplete." In Sessions v. Moseley, 4 (lush. 87, the su- preme court of Massachusetts held that a Kift inter vivos must be delivered in the lifetime of the donor, because, if delivered to a third person, with instructions to de- liver to the donee, the authority to deliver may bo revoked, and until delivery the donor retains dominion. 1 Pars. Con. 284; 2 Kent Com. 4:5S; Bouv. Law Diet., Til. Gifts inter vivos; Bedell v. Carll, 33 N. Y. 5S1; Irish v. NuttiuK, 47 Barb. 370; Dex- heimer v. Gautier, 34 How. fr. 472. It follows from what we have said, that the averment of appellee's answer in refer- ence to what was said and done by and between him and Mahala T. Shaw on the day of July, ISiit. of and concerniuf"; the notes in controversy, utterly fail to show a valid >j;iit inter vivos of the notes, or of any of them, or of any i)nrt of the proceeds thereof, to the appellee's wife or to any other person. They fail to show that she parted or in tended to part during? her life with her title to or ownership of any such notes. If the title to the notes remained in her, if sUe continued to be the owner thereof, and if she mifrht have as- serted and maintained aRainst the appel- lee or the appellee's wife, lier rij^ht to the possession thereof during her natural life, it must be that upon her death her title to anil ownership of the notes, and her riKht to the, possession thereof, passed to and vested in the appellant, as the ad- ministrfitor of her estate. We have hith- erto considered only the averments of the answer in regard to what transijired be- tween the appellee and Mahala T.Shaw, concerning the notes in controversy in .Inly, 187."). At that time, it must T)e as- sumed, as nothinu' was alleged to the con- trary, Mahala T. Shaw was in gocid health, and we have reached the conclu- sion that the allea:ations of the answer did not show tliat she then made a valid Kift inter vivos of the notes to appellee's wife or to any one else. The question remaining for considera- tion is this: Do the averments of the answer show a valid uift cai.'sa mortis of the notes in controversy? A gift causa mortis is tlins defined : A donatio causa raortis is a Rift of a chattel made by a person in his last illness, or in periculo mortis, subject to the implied conditions that if the donor recovers, or if the donee die first, the Rift snail be void. 2 Schonl. Pers. Prop. p. 122, note 1. In 3 Bedf. "Wills, 320, it is aaid, inter alia, that thoi'e must be an actual delivery of the chattel to the donee, so as to transfer the possession to him, in order to constitute a Rood Rift inortis causa. In the third paraRraph of appellee's answer in the case in hand, it was uot alleged that on Octolier 7th, 1876, there was any actual delivery of the notes to the donee, or any transfer of the pos- session thereof. In theclose of hisanswer, the appellee alleged that cm the 7th day of October, 1877, the said Mahala T. Shaw being then dangerously sick, and in the apprehension of her deatli, charged the np- I)ellee to do with what was left of the notes, or the proceeds thereof, as she had told him when she delivered the notes to him in .luly. 187."i, vphich notes he was still holdiuR and in the possession of, and the appellee then ami there promised tlie said Mahala that he would do so. We do not think that these allegations weresufticient to show a gift then made, causa mortis, of what was left of tlie notes or (>f the pro- ceeds thereof. They show rather, as It seems to us, an unwritten will, whorebi' she attempted to dispose of whatever might be left after her death of the notes or the viroceeds thereof. The cliarRe of Mahala T. Shaw to the appellee on October 7th, 1877, in her last illness and in apprehension of her death, did not constitute a gift, either intei' vivos or causa mortis, of the notes or of what might be left of the proceeds thereof, to the ajjpellee's wife. It was simply an in- junction or direction that, after her death, the appellee, as her agent and the custo- dian of her notes, should carry out her wishes in relation thereto and dispose of the same, as she had directed in July, 1875; that is, he should pay whatever debts he knew she owed and erect a monument for her like the one ordered for her brother Solomon, and then he should give what- ever might be left of the notes, or of their proceeds, to his wife, Clarinda V. Fergu- son. In 2 Schouler on Personal Property, P. 82, it is said: "An agency is revokeil by the principal's death: therefore, the agent of one who intends a gift inter vivos must have performed what was incumbent up- on him to make the transfer complete during the donor's lifetime: otherwise the gift fails, as though the donor himself had failed to make a reasonable delivery. Nor can a gift inter vivos be sustained which contemplates a postponement of delivery by the agent or trustee until tlie donor's decease: for a gift of personalty made j after this fashion must stand, if at all. as a gift causa mortis, or else on the footing of a testamentary disposition, with all the formalities of a will." Sessions v. Moseley, supra; Allen v. Polereczky, 31 Me. 338; Phipps v. Hope, Hi Ohio St. 586. (.lonstruing together all the allegations of the third paragraph of appellee's an- swer, we are of opini(»n they wholly fail to show that Mahala T. Shaw parted, or intended to part, during her lifetime, by gift inter vivos or causa mortis, with her title to or right to the possession of the notes in controversy or the proceeds thereof. Notwithstanding all that was said or done by or between her and the appellee, of and concerning such notes or their proceeds, they remained her prop- erty and estate, we think, until and at the moment of her death, and as such the title thereto and the right to the posses- sion thereof passed to the appellant as the administrator of her estate, to be ad- ministered according to law. The alleged SMITH V. KEUOUSON. 749 solvency of her estate furniHlics nu ronHon whatever for tlie uppellet-'n (li'teiitiiiii of the noteH uh aji'iiiist her uclininiMtnitor. It seeniH to iin, therefore, that the eourt erred in overriilin;; the deiinirrer to the third piirnKraph of tlie Hppellee'M uiiHwer. This coiiclUNion renders it unnecessar.v for ua to consider or decide any of the questions arisin^i under the alleged error of the court in overruling the appellant's motion for a new trial. We may prop- erly remark, however, that the evidence in the record does not. in our opinion, sustain the averments and theory of the third paraKriiph of appellee's answer. The appellant gave in evidence a written receipt, executed hy the appellee to Ma- hala T. Shaw, in suhstance as follows: "Battle (Ground, Ind., March L'l'd. ISTC. Received of Mahala T.SIuiw the followint; notes, to be held in trust for her:" ( Here follows a description of the notes in con- troversy In this action.) (Sijined) " W. R. Ferjiuson. " It will be observed that this receit)t, from its date, was executed by ajipellee to Mahala T. Shnw, about eif;ht months after her declaration and direction to him, in July, 1S75, upon which the appellee I founded the third parat;raphof his answer. 1 If, by this rerelpt, the- appellee became the trustee of Mahala T. Shaw, and so held [ the notes, by the terms of the rec<'ipt he held them "in trust for her," as tlie solo cestui que trust, from and after the date thereof, and any prior parol trust. In re- I latiiin to the notes, was thereliy abro- trnted. It was shown by the evidence that this receipt was in the pocket-buok of ' Mahala T. Shaw, which pocket-liook waa I found under her pillow immediately after ber ileath. It may lie assumed, therefore. I as it seems to us, that the notes were held by the appellee under such receipt, at the time of the death of Mahala T. .Shaw, and the consequent determination of the trust thereby created. This beini; sr), the appel- lant as her administrator was entitled to the notes and the possession thereof, as aKxiust the appellee. The Judgment is reversed with costs, and the cause is remanded with instruc- tions to sustain the deniurrer to the third paragraph of appellee's answer, and for further proceedings not inconsistent wltb this opinion. Petition for rebcarin(r overruled. SMITH 0. LYXES. 751 SMITH V. LYNES et al. (5 N. Y. 41.) Court of Appeals of New York. July, 1851. ThiH was an action of replevin to recov- er certain pieces of caipetinc claimed by the iilaintiff as Mis property. Tlie follow- ing: facts were proved on the trial: The defendant I^ynes had coiitructed to purchase all the car|)et8 uianufactiin-d by the plaintiff with a certain number of looms during; a specified time, and to pay for the same, except $2,000 worth, with his notes indorsed by Thompson & Co. Tlie carpets were manufactured and de- livered accordingly, and notes tor a part were duly given. On the 7th of March, iNJs, Lynes' clerk nave the plaintiff a re- ifipt for nine pieces of carpeting, upon which a memoranduni was indorsed by Lynes as follows: " .\le.ssrs. Thorn pso.i & Co. are up to Thompson ville, but e.xpect to be down on Wednesday or Thursday,; and 1 will have them ready. B. L." Meaning, as he testified, that ha would have the notes ready. By an agreement between Tvynea and Thompson & Co., the latter agreed to take the carpets purchased frotn the plaintiff, and a part of those delivered to Lynos were by him deliver.^d to Thompson & (>>. On the 15th of March, 1S4S, the plaintiff called upon Lynes and demiinded of him the goods, or payment of his notes, which was refused. He also demanded of Thompson & Co. the goods in their pos- session received from Lynes, which was al- so refused. Thompson & Co. admitted tliat $.")00 or $000 worth of the goods had not been iiaiil for. A balance of over $2,- 800 was then due the plaintiff. On motion of the defendant a nonsuit was granted on tliefollowinggrounds: 1. That the delivery to Lynes was absolute and vested the litle in him. 2. That there had been no proper demand or refusal of the notes. 3. That the sale to Thompson & Co. vested the absolute title in them of such goods as were sold by L.-nes to them. An application to set aside the nonsuit having been denied the plaintiff brought this appeal. C. \V. Sundford, for appellant. B. W. Bonney, for respondents. PAIGE, J. Where gootis are sold on condition of being paid for on delivery in cash or commercial paper, or on condition of receiving on delivery security for pay- ment, on absolute and unconditional de- livery of tlie goods by the ver.dor without exacting at the time of delivery a perform- ance of the condition, or nttncliing any otiier condition to the delivery, is a waiv- er of the condition of the sale, and a com- plete title passes to the purchaser, if there is uo fraudulent contrivance <in the part of the latter to obtain possos.-iioii. Where there is a condition preceilent attached to a contract of sale and delivery, the prop- erty does not vest In the venilee on deliv- ery, until he performs thecuiulition. or the seller waives it. An absolute ami uncon- ditional delivery is rcKanled as a waiver of the condition. By an absolute delivery without exactini; the performance of tbe condition, the vendor Is preioiraed to have abandoned the security he had pro- vldeij for the payment of the purchase- money, and to have elected to trust to the pernonal security of the vendee. (2 Kent's Com. 4!l(>-'.i"; Chapman v. Lathrop, •J Cow. Uo. and Il.'i, notea; Lupin v. .Marie, Wenrl. so. iti error, .Marcy, .1.; Kurniss v. Hone, S Wend. 247, in error; Carleton v. .Sumner, 4 I'ick. rdO; Hussey v. Thornton, 4 .Mass. 40.J: Smith v. Denide, C Pick. 2fJ2; People V. Hnynes, 14 Wend. .'i(>2; in error, per Chancellor, ."jfiC, per Tracy. Senator; .Shindler V. Houston, 1 Denio, ."il, .lewett, .1.; Buck v.(irin)shaw.l Kclw.Ch. 144.) The vendor, to avoid a waiver of the condi- tion of the sale, must cithern-fuse todeliv- er thegoods without a ijcrformance o( the condition, or he must make the delivery at the time (|ualihed and conilitiiuiul. (Lupin V. Marie, Wend. Si. in error, Mar- cy, .1.; llussi'y V. Thornton, 4 .Mjiss. 4ito; 14 Wend. ."lOO, Tracy. Senator. I .lustice Nelson in Furniss v. Hone (S Wend. 2.'ii;), says, whether the delivery isabsiduteor conditional must depend upon the Intent of the parties at the time thegoods are i|e- livered. .\nd in Smltli v. Dennie (<! Pick. 20(1), Parker, Ch. .!., held, that this was a question of fact for the jury. He savH. "We do not think after a conditional bargain has been maile and a delivery im- meiliately takesplace upon the expectation that tlie" contemplateil security shall be produced, without an express din-laration that the delivery is also conditional, that the sale, ipso facto, lieconies absolute, be- cause there is an implied umlerstandinK that the vendee, "' etc., will furnish the se- curity," eti-., "as soon as he shall have an opportunity to procuie it." In that case the sale was on the express conditbin that the vendee should give an inilorsed note for the price, and the goods were delivered by the clerk of the vendor to the vendee without any express reference to the con- dition, anil Vemnined in the posseswion of the vendee for eight ilays, during « liich time no claim was made by the vendorfor the notes or the goods; and it was held that there was a waiver of the condlilon, and a verdict to the contrary was set aside by the court as against evidence. I'arker," Ch. J., in giving the opinion of the court, says, "There is nothing in the case from which an intention to hold on upon the condition can be inferred.no dec- laration at the time, which thouuli not necessary is important, and no call for se- curitv lintil it was forgotten or aban- doned, and perhaps never w.iuld have been recurred to if the goods hail not been attached." .According to this decision as well as the intimation of .Tnstice .Nelson In Kurniss v. Hone, and the language of Chancellor Kent lo his Commentaries (2 Kent, 4'.Mi), it does not siH'm to be neees- sarv to a i|ualilieil or conditional delivery, that the nualilicatlon or condition intend- ed to be annexed to the delivery, should at the time bediidared by the vendor in express terms. The delivery will be con- ditional, if the intent of the |inrties that it should be so can he infern'd from their acts and the circuiustances of the case. The learned Judge who tried this cause 752 SMITH V. LYNES. was evidently mistaken in the proposition advnneed bybini. that to moke u delivery conditional'it must be declared to be so in tionof theKOodsHold to the purchaser, and asked tlie latter for his note for the quan- tity delivered, and the purchaser rei)lied express terms. Where the delivery is ah- that he would give his note for the whole solute without any contemporaneous dee- ! when the remainder was delivered, and laration (lualifviiip; it, the onus of the: that the parcel then delivered could re- proof of the condition rests upon the ven- ; main till that time. The court of er- dor. If no such proof is offered, the deliv- 1 rors held that the delivery of the parcel ery will be deemed absolute, and the title j was conditional. Senator Edwards, with to the Roods will pass to the vendee. (S i whom the majority of the co\irt con- Wend. 2.'>(), Nelson, J. ; Buck V. Urimshaw, curred, put the question of waiver of the 1 Ed w. Ch. 140.) Every absolute delivery I condition of the sale on the intention of of soods sold on condition is presumptive I the parties at the time of the delivery; evidence of a waiver of the condition by j and trora the facts of that case, he came the vendor, and of an intention on his to the conclusion that neither party in- part to rely wholly on the personal seen- tended that the condition of the sale rity of the vendee for the paynient of the should be waived. Senator Wager took price of the goods. The cases cited by a similar view of the question. If the the counsel of the appellant do not con- memorandum indorsed on the receipt of flict with the forej^oin;^ propositions, in , the 7th of March tends to show a s.ate of the cases of Russell v. Minor i'2'2 Wend. ' facts which will bring this case within 659), and of Keeler v. Field (1 Paige, 312), j the princii)leof the case of Itussell v. Minor express conditions were annexed to the de- 1 (which 1 think quite clear), the nonsuit of livery of the goods. In Palmer v. Hand the plaintiff was erroneous so far as re- (13 Johns. 4o-l), the delivery of the timber ; lates to the goods delirered on the 7th of was not comi)!ete before payment was ' March ; and the judge who tried the cause demanded. In Haggerty v. Palmer (0 ! erred in not submitting it to the jury to Johns. Ch. 437), the delivery was held to determine whether the goods delivered on be conditional in accordance with a usage that day were delivered absolutely orcon- of the city of New York, known to the ditionally; that is, whether the plaintiff purchaser, and the validit.v of which was intended to deliver them absolutely and not called in question by the parties to the : thereby to waive the condition on which BUit. the sale was made. (6 Pick. 266-7.) In the case now under review, the goods There is no evidence in the case to show were sold on condition of being paid for that the goods found in the possession of (excepting f 2,000 worth), on delivery, by ; Thompson & Co., and replevied by the indorsed notes. The goods were delivered [ sheriff, were a part of the goods delivered in parcels at the purchaser's store on on the 7th of March. These goods they several days in Januar.v, February and purchased from B. Lynes, without any March. There is no evidence to show \ notice, for aught the case shows, of the that the delivery of any of these parcels : nature of the contract of sale between was in express terms made subject to any him and the plaintiff. As to all the condition. 'I'he delivery being shown, it goods, therefore, purchased by Thompson belonged to the plaintiff to prove that it & Co. from B. Lynes, and paid for by was conditional. No questirin can arise them, thsy are entitled to the protection as to any of the parcels except the one de- of bona fide purchasers without notice, livered on the 7th of March, i-ieveral par- even if the delivery to Lynes was condi- cels had been delivered previous to that ; tinnal. (6 Johns. Ch. 437; 1 Paige, 312, 1 day without exacting the delivery of the Ed w.Ch. 146. ) As it does not appear that indorsed notes stipulated in the contract, any part of the gooils taken by the sheriff As to these parcels the delivery must be ^ from the posses.siou of Thompson & Co. deemed to be absolute, and the condition ' were a part of the goods delivered on the regarded as waived. Tlie memorandum 7th of March, although a part of these indorsed on the receiptgivenfor the goods goods should not have been paid for bv delivered on the 7th of March, in which i Thompson cSf Co. to Lynes, they can, never- Lynes declares in substance, that on [ theless, justify under Lynes, whose title AVednesday or Tliur.-fday he will "have i to all the parcels delivered previous to the thera ready" (which Lynes swears re- 1 7th March is undoubtedly perfect, in conse- ferred to the note.s), tends to show a ! quence of the absolute and unconditional promise on the part of Lynes to procure delivery to him by the plaintiff of all such the mdorsed notes and deliver them to the parcels. The nonsuit was, therefore, be- plaintiff, and that the goods delivered on ' yond all question correct as to the defend- the 7th of .March were delivered on the : ants Thompson, Schoonmaker and Dean, condition of the subsequent delivery by I the members of the firm of Thompson & Lynes to the plaintiff of such notes. IftheCo. But, for the reasons before assigned, goods were delivered <m the faith of that ; it was erroneous as to Benjamin Lvnes. promise, and in expectation that it would 1 It must, therefore, be set aside, and the be performed, this ca.se resembles that of ! judgment (jf the superior court must be Russell v. jMinor (22 Wend. 062). [ reversed. In that case the seller delivered a por- I Ordered accordingly. SMITH 0. SMITH. 755 SMITH T. SMITH. (2 StraDge, 9."i5.) Court of King's Bench. At Nisi Prius. Michael- mas Term, 7 Geo. 2. The pluintiff'H lntPHtatel()(lf;i;(l at thede- fendant'H houBc, uutl had furiiiturft and plate there, and was proved to have snid, that whatever he broiiRht ii-to thoKc lodKinjrs he never intended to take away, but y;nvc directly to the defendiiiit's wife. And now in trover for the Koods which were there at the intestate's death, it was ruled, that a parol gift, without some act of delivery, would not alter the property, and that nuch an act waH neecHsary to establihth a donatio cauHa niortiH. I'poii tills opinion It came to the question, whether there was any delivery. And to prove one, the defendant nhewed, that the intestate, when he went out of town, used to leave the key of his rooms with the defendant: and that was insisted to be Htich a mixed possession, that the law will a<ljud(j;e the possession to be in him who has the riKht. And the chief justice ruled it so, aad the Jury found for the defcadaDt. SPOONER 0. CUMMINGS. 757 SPOONER V. CUMMINGS. (23 N. E. Rep. 839, 151 Mass. 313.) Huprume Judicial Court of Massachusetts. Middlesex. March 11, IbflO. Exceptions from STiporior court, Middle- eex county; P. E.moky Aldrich, Juiljjc. Keplevinof a horse. AnKwer.geneml de- nial. Plaintiff proved ownership prior to May 2(), ISSS, and identified the lioi-so as the one described a8"oue black horsecallod 'Jenks horse,' " delivered to I). F. Pojie, l)Ut never paid for, under the followinncon- tract: "Hudson, May -'(), Isss. deceived of L. R. Spuoner, this day, one gray mare, called 'Uorton mare;' one pray horse, called '.leaks horse;' oneblaclt liorse.called 'Jenks horse;' one white-nose liorse, called 'Boston horse;' for which I promise to pay said L. R. Spooner or order live hun- dred seventy-live dollars, one month from date, at City National P>ank, with interest at 7 per cent. Said horses and mare to be and remain the entire and absolute prop- erty of said Spooner until paid iu full l)y me. And I hereby agree to l<eep said horses and mare in good order and condition, as the same now are. And should said horses and mare die before said sum is fully i)aid, I herel)y agree toi)ay all sums due thereon. And should said horses or mare be returned to or taken back by said Spooner, I agree that all payments made thereon may bo retained by said Spooner for the use of said horses and'mare. DamklF. Popk. " Plain- tiff kept a livery and sale stable in Worces- ter, and had sold horses to Pope largely within the past three or tour years. I'lain- tiff asked the court to rule that under the answer defendant could only show that the contract relied on was not made, or j that the horse had been paid for; but the court ruled that defendant might show, I also, that plaintiff gave Pope authority, j express or implied, by the course of deal- ing, to sell the horse before he paid for it. Against his objection, plaintiff was re- quired to answer, in cross-examination, the following question: "What was the i course of dealing between you and I'ope in the year Isss, about May :.'iith, ami ex- tending back alittle and forward a little?" and the following evidence from plaintiff, in cross-examination, was admitted: "1 sold Pope fifty horses, perhaps, in the year ISSS. I supposed that Pope wouldn't use fifty horses in liis livery stable unless he sold some. He usually kept from twenty- five to thirty. Naturally he would want i to sell some that he had, or some other ones, to make room. I didn't expect he would sell any of mine until he paid for them. I would have made objections to his selling one of my horses, even if he sent me the money the next day. " Pope was permitted to testify that "the course of , dealing between plaintiff and me was Pd I buy horses and give these contracts, and [ Pd" send him money, and he'd apply it where he saw fit, on any of thesecontracts. I He used to urge mc to sell, that he hart a barn full. Sometimes Pdti-ll hltn I wanted a horse for a particular person. I told him this time I wanted a horse fora teairi- ster." J. A. Trull was permitted to tc»tlfy that about t he middle of June, ls«>i, Spoon told him to tell Pope that he had a ear- load coming, and to sell as many as he could. Hefendant bought this horxe of Pope, June 2, 18S8, and paid cash at tho time. C. \V. Wood and F. A. GnukiU. for plain- tiff. J. W. MeDvnuld, lor defendant. K.Nowi.To.N, J. Under the answer of the defendant, any evidence was competent which tended to contradict the contention of the plaintiff tliat the title to the horse and the right of possession were in him. Verry v. Small, 16 <iray, I"-':.'; Whltcher v. Shattiick. ;f Allen. Itl'J. The defend.iiit was not a party to the written contract be- tween the plaintiff and Pope, but clalme<I outside of it, and in support of his own title he might show by parol what was the real arrangemrnt betwi'en tlir-in, even if itdiffere<l from that contained in the writ- ing. Kellogg V. Tomiisiin. 141' .Mass. 70, (i N. E. Rep. SCO. If the plaintiff expressly or impliedly authorized the sale by Pope to him, he, liaving bought in good faith from the apparent owner, acfjuired a good title. It is immaterial whether his right dependsupon an actual authority to make the sale, or upon facts which estop the plaintiff from denying the validity of the sale. Rurbank v. Crooker, 7 <iray, 159; Haskins v. Warren, 11.') Afass. .514. 5US ; "Tracy V. Lincoln, 145 Mass. 357, 14 N. E. Rep. ll".'; Bank v, Bufiinton, 97 Mass. 4!»S; Fowler V. Parsons, 143 Mass. 401, 9 N, E, Rep. 799. The testimony as to the course of dealing between the plaintiff and Pope, involving a long series of transactions, all of the same kind, and conducted generally in the same way, was competent, a.s tending to show an expectation and understanding on the part of both that Pope would sell the horses which he bought of the plaintiff as he had opportunity, and that he was impliedly authorized to sell this horse to the defendant. Hubbell v. Flint. 13 <irny, 277; Bank v.(ioodsell,107MaB8. 149; Lynde V. McCiregor, 13 Allen, 172; Bragg v. Rail- road Corp., 9 Allen, 54. The testimony of Trull, as to the message sent to Pope by the plaintiff about the middle of June, was of a conversation so soon after the sale of June I'd to the defendant that the judge might well admit it in his disi-retion. It related to the general course of dealing, of which the sale to Pope of the hors"- n.'- plevied was a part. The jury were rightly permitted to lind that theplaintiff Impli.Hlly authorized the sale l)y i'ope to the defend- ant, and that he was estoppe*! to deny tlie validity of the title which the defendant acquired, relying on I'ope's possession and apparent ownership. Exceptions over- ruled. SPOON ER V. HOLMES. 759 SPOONER V. HOLMES. (102 Mass. 503.) Supreme Judicial Court of Ma.ssachusetts. Plym- outh. Oct. Term, 1869. Tort to rerover the value of certain in- terest cou|)oiiH of United .StnteH hunilH, payable to lieanM- in Kiild, iind ullf>;ed to have heen converted liy the defendant to hiH own use. The hill of exceptions states the case as follows: "The plaintiff's evi- dence tendeil to show that the coupons in ' question were stolen from the plaintiff by i a servant in his einploi', and by tliat serv- ant Kiven to her sister, who was a servant in the family af the cashier of one of the national banks in PljMiiouth; and that the defendant purchased the con|ions of the servant in tlie cashier's family, and under circumstances whicli would nat- urally e.xcitt' suspicion that they were stolen. The defendant'.sevi<leuce tended to show that they were handed to him merely to lift them changed, that there was no suspicious or unusual circumstances at- tenillntr the transaction, and that he was simply the agent of the servant. Amoni; the evidence introduce<l by the defendant was a letter received by him from Nova Scotia, i)urportlnK to be from the said ser- vant of the cashier, she havinj;, before that time, fione thitlier. In said letter were inclosed two of the coupons in ques- tion, which were sold by the defendant. The plaintiff objected to the introduction of this letter in evidence without proof of tlie handwriting; but the jnd};.? ruled it to be admissible without such prcjof, for the pur[)ose of showing the manner an<l circumstances of the defendanfs receiving tlie two coupons which it contained. Some of the coupons were sold liy the de- fendant to tlie I'lymouth National Hank, some were sold to brokers in Itoston, and one was sold to a personfrom Lynn, witli whom the defendant tra<led, and who happened to be at his shop in I'lynioutli, at the same price which he had received for others from the bank. Th,- evidence tended to show that the defi-ndant re- ceived pay for his ccjupon in j;oods from the Lynn man, anil paid the servant the price thereof in money. The judge in- Htructed the jury, among other things, as to the rules of 111 w applicable in cases of good.s an<l merchaiKlise stolen or other- wise lost, and coming into tlie possession of persons other than the true owners, in terms not objci'led to; but then ruled and instructed the jury tint the same rules did not apply to money or the currency of the country, and did not apply to such coniions as those in (lucslidii. which to some extent formed a part of the cur- rency; that the jury were to consider whe'tlipr the defendant purchased the cou- pons in question or wlietlier he merely rv- ceived them to sell for the servant, and acted in regani to tliiiii as her agent; th.it. if they found the former to be true, and that tlie defendant purchased thi'ni under such circumstances as would have put a person t)f orilinaiy pruuence on his guard, and woultl have led su'h .-i person to refuse them, they sliouM Iind for the plaintiff; that, if they found that the de- fendant was acting an agent merely, to get the coupons turned into money f<ir the servant, then the pl/ilntiff could not re- cover, unless lie satisfied the Jury that the defendant either knew that the servant had come dishonestly by tliem, or niiiiht so have known except for Ids grosH negli- gence; and that gross negligence was tlie carelessness of a very cari'lo'S periiou. The plaintiff requested the judge to In- struct tlie jury that paying out the ct)n- pons in his business, or exchanging tln-m for goods, was inconHlstent with agency, unless the articles receiv<'d In exchange were delivered to the prlm-lpal; and that, to entitle the defendant to the benefit of the defence of agency, if there were any sus|)icious facts or cIrcunislanceH which came to his knowledge, he mti.-^t have dis- clo.siii them or di.sclosed his agency. The juilge decliui'd to give either of these in- structions. The verdict was for the de- fendant, and the jury, in ri'ply to a qiies- tion of the juilge, said they found the de- fendant to have been acting uh agent." P. KimmonH, for plaintiff. L. W. Howe«, tor defendant. GHAY, J. This is an action of tort. In the nature of trover, for certniu coupons of United States bonds, alleged in the dec- laration to be the pnii'iTty of tl;e plain- tiff and to liave been converted by tlie de- I fendunt to his own use. The undisputed 1 evidence at the trial sliowed that the ' bonds liad bel'Miged to the plaintiff, and ! had been stolen from him, and delivered I by one who received them from the I thief to The defendant, and by him scdd and turned into money, which heisadmit- I ted to have paid over to his principal, j Hut the jury have found that in so doing the defendant acted only as agent of the person from whom he received them, and did not know, and was not guilty of gross negligence in not knowing, that tliat person had come dishonestly by them. It does not appear tliat the plain- tiff ever demanded of the defendant per- sonally either the coupons or their pro- ceeils,or that the delend.int personally derived ony benetil from his nets. The principal question in the case is, whether, under tliese circumstances, he is liable Id this action. This is nn iujportant ques- tion, and has received great coiisiderotlou from the court. 1 An action of tort for the conversion of I personal property, under our iiM^sent sys- I tem of pleading, requires such evidence to support it as w<iuld have proved a con- version in an action of trover at common law: and cannot lie maintained without proof that the defendant either ilid some positive wrongful act witli the Intention to appropriate the property to himself or to deprive the rightdil owin-r of It, or ilo- stroved the property. l"oiildes v. Wll- lougliliv, ^ M.vV:\V..".40. Ileald V. Carey, 11 ('. H. !>7T. (ieii.Sts. c. I •-'•.•. S SI. Hob- inson v. .\uston, L' tJrny. ."<>4. Loring v, .\Iiilcahv. :! Allen. .'>?.'>. Parker v. Lom- bard. 101) Mass. 4ii.">. In the last case. .Mr. .lustice Hoar says that If a bailee, being intrusted witli the possession merely, translers the possession according to lh« 760 SPOONER V. HOLMES. (lireotioua of the person from he received it, \vith(jut notice of any better title, and witliout nnilertalvins to convey any title, this does not appear to have been held any evidence of a conversion; and cites «tricl<lund v. Barrett, 2(1 Pick. 415, and Leonard v. Tidd, 3 Met. 6. So where chattels were delivered by the owner to a bailee, with the ri^ht to purchase thera by pavinfi a certain price, so that he had the actual legal and rightful possession, although he ha 1 not performed the condi- tion on which he was to have the abso- lute title, and he sold them to a third rier- son, who resold them before any demand made upon him and without notice of the agreement between his vendor and the original owner, he was held not to be lia- ble to the latter in trov3r. Vincent v. Cornell, 13 Pick. 294. See, also. Day v. Bassett, 1(12 Mass. 44.5. And trover will not lie against a servant for takMng goods by his master's command and for his master's use, when the command is nut to do an api)arent wrong, and the serv- ant's i)os8essiou is lawful. Bui. N. P. 47. Powell v. Hoylaud, G E.\ch. C7. In the case of a sale of goods, indeed, the purchaser is bound to look to his title, and, if he obtains them from one who is not the lawful owner or his authorized agent, cannot hold them against liim. 2 Kent, Com. (Gth Ed.) .324. Jf the goods have been stolen, the property does not pass by delivery and a person who de- rives his title from the thief gains no rights as against the lawful ewner, and if he either refuses upon demand to deliver them u]), or sells them and turns them into mone.v, or otherwise converts chero to his own use, he is liable to the lawful owner in trover. Pame v. Baldwin, S Mass. .518. Heckle v. Lurvey, 101 Mass. 344. Upon this principle, it is held that an auctioneer, who receives and sells stolen goods, not knowing nor having rea- son to believe that they were stolen; or a person who in good faith buys a stolen horse, and afterwards exercises dominion over him by letting him to a third person ; is liai)le to the rightful owner in trover, without a previous de- mand. Hoffman v. Carow, 22 Wend. 2S5. Coles V. Clark, 3 ("usli. 399. Gilmore v. Newton, 9 .\llen, 171. Yet even in the case of stolen goods, a mere naked bailee, who does no act, and has no intent, to con- vert them to his own use, or withhold them from the owner, and, before any demand upon him, delivers them back to the person from whom he received them, is not guilty of a conversion, although he knew that they were stolen. Loring v. Mnlcahy, 3 Allen, 575. But, in the opinion of a majority of the court, the coupons in question do not stand upon the same ground as chattels. They were negotiable promises for the payment of money, issued by the govern- ment, payable to bearer and transferable by mere delivery, without assignment or indorsement. They are therefore not to be considered as goods, but as representa- tives of money, and subject to the same rules as bank bills or other negotiable in- struments payable in money to bearer. VVookey v. Pole, 4 B. & Aid. 1. (Jorgier v. Mieville, 4 D. & R. 641 ; S. ('. 3 B. & C. 45. Commonwealth v. Emigrant industrial Savings Bank, 98 Mass. 12. The rule of caveat emptor does not apply to them. It is now well settled that the bearer of a bank bill which has been stolen from the bank may recover the amount from the bank, unless it is proved that he did not take it in good faith and for valuable con- sideration; and thathis knowledgeof sus- picions circumstances is immaterial, un- less amounting to proof of want of good faith. Worcester County Bank v. Dor- chester & Milton Bank, 10 Cush. 4.SS. Wyer V. Dorchester & Milton Bank, II Cush. 51. Kaphael v. Bank of England, 17 C. B. IGI. And, according to the great weight of au- thority, the same rule applies to bills of exchange or promissory notes payable to bearer. Goodman v. Simonds, 20 How. 343. The jury have found that the defendant took these coupons in good faith, without gross negligence, and as agent of his employer. He thus acquired a lawful pos- session of them, which was no evidence of a conversion He then, before any de- mand or notice from the rightful owner, transferred them by delivery, and ex- changed them for money, the amount of which ho paid over to his employer. This case does not present thequestion whether the defendant could have been held liable to the rightful ownerfor thecouponsor the proceeds while in his own hands, nor whetlierhecould beheld to have paid value for them. The single (juestion is, whether he has been guilty of a wrongful conver- sion , and, considering the natureof the in- struments, and the fact that thedefendant was acting in good faith, without gross negligence, as agent only, without himself receiving any benefit from the transaction, a m.ijority of the court is of opinion that neither taking the coupons by delivery, transferring them by delivery, nor paying over the proceeds to his employer, consti- tuted a conversion for which he can beheld liable in an action of tort in the nature of trover. .Addison on Torts, (3d Ed.) 317. The instructions to the jury were therefore quite favorable enough to the plaintiff. The letter admitted against the objec- tion of the plaintiff was competent evi- dence of the manner in which and the cir- cumstances under which the defendant received the coupons, although it did not of itself prove that it was written by his employer. Exceptions overruled. SPHAIGIITS V. H.VWI,KV 76» SPRAIGHTS V. HAVVLKY. (39 N. Y. 441.) Court of Appeals of New York. June Term, 1>)0S. Aftidii lo rt'i-ovor (lutnaKt'H (.•aused by u Hnlf of ccrtiiiii jewelry by (lefetidaiit bh agent of the owners, wlio had niortgaKed the jewelry to plaintiff. Geo. F. Com.Htoek, for a|ii>'.-llant. R. Wooaworth, tor respondent. WOODRUFF,.!. The facts in this ease show title in the plaintiff to the property in question, and a disposition thereof by the defendant avowedly and solely as agent for Eugc^iia Ashby, the former own- er anil one of tin- mortgagors. The defendant's answer avers that he acted ap such agent, vvilhout any interest or claim of interest in the same, or its proceeds. The referee lin<ls as u fact that lie acted simply as the agent of Charles Ashby, or of Charles Ashby and his said wife. The title of the plaintiff was valid, both upon the facts found, and upon the legal conclusions stated by the referee. It follows that the disposition of the proi)erty l>y Ashby and wife was a tor- tious conversion thereof, and so the ref- eree finds. No question of fraud in the mortgage to the plaintiff or otherwise, nor any failure to iiiace his mortgage on tile pursuant to the statute, was deemed by the referee or by the supreme court, nor by the counsel } for the appellant, to arise in the case; he- cause as against the mortgagors and their mere agent, the bona fides of the rr.ort- gage and the tiling thereof were regarded as wholly immaterial, and as against them the" mortgage was held valid, even though made to defraud creditors, and whether tiled or not. It is however more satisfactory to say that l)oth good faith and due filing, and renewal of the mort- gage, are facts in the case duly proved and found. The case therefore raises the single (|ups- tion, whether the possession of the mort- gagors is such evidence of ownership or of authority to make sale of the i)roperty, thai the defendant, acting in good faith as Iheir agent, in the belief that they were owners, is |)rotected thereby against the claim of the plaintiff to recover for a sale and disposition thereof. (Some stress was said upon tlie fact that this transaction was more than a year after the mortgage debt became payable, and the continued pos.'icssion of the mortgagors during that time is claimed to i)e hiclies on t he part of the plaintiff, warranting the de- fendant in trustiu'i to their apparent own- ership and e.xecuting their direction to sell the property. This reasoning, sought to he applied to this case, seems to nie to overlook the fact found by the referee, tliat for more than a year of that period the plaintiff had been in the actual prosecution of an action to enforce his rights against the mortgagors; and thefurthercircnmstnnce that the defendant is In nowise shown to have been affected by or to have had any knowledge whether the mortgagors hail been in the iiossession of the pro|.erty one year or one day. Me was not nii-N'iihito any trusting to a long-continued posReH sion. for it does not appear that he ever saw or henril of the property until the day on which it was brought to him for sale. I do not however attach importance to this, for I am not a ware of nny prin- ciple or any authority whii-h makes such mere possession, in the absence of fraud, amount to a jUHtltlcadon to tlie ug<-nt in u fraudulent cllsponlli<in of the property. It is placed by the appellants upon some general idea, that because the mortga- gors had i)ossession, and the defendant honestly believed they were owniTs, and in that belief, innocent of any wrongful In- tent, solil tiie property an<l paid over the |)roceeds, it is not just th.'it he should lie held responsible. In other words, it Is as to the defendant a hard case. Now all this would be very well l( it were true that mere possession of perscmnl pro|ierty was such evidence of ownership or of authority to dispose thereof, that all persons were at liberty to assume such ownership or authority, and act in reli- ani-e thereon. Lnfortun.'itely for the ap- pellant, this is not so. Indeed, the cases in which possession imports such author- ity are very few, and the mere fact of pos- session, unaccompanied by other circum- statices. giving it a specilic charucter. In- dicative of authority, never does. Inileed, every consideration which Is urged for the ijrotection of the defendant would have aiipealed as strongly in his behalf if it iiad appi-ared t nat .\shliy had stolen the pr()|)erty from the pWiintirf. Ashliy's possession would have borne the same aspect ol apparent ownership, and the defendant's sincere g I faith and in- nocence of wrong would have been equal, ly deserving of consideration. ' ' True, in such case, the possession of Ashby would have been against the will Of tlie plaintiffs; but even then, why should it not be said that the plaintlft should have taken care that his property be not stolen and not suiter the innocent defendant to become a sufferer? But take a stronger case : suppose the property had been loaneil by the plaintiff to .\shby; it would n4)t in that case lie claimed, any more than if stolen by the latter, that Ashby's possession woulil lirotect the delendant, and yet the hard- ship of holding him responsible would bo in all respects the same as in this casi-. I consider that it is hard .n one sense that the defendant should be compelled to indemnifv the pl.iintiff. It is so, because it is not easy always to be perfectly sate in one's dealing. Hut chattels are not neRotinble. Pr«- session is not, ns in the case of mercantile paper and money, assurance of title « r of authority to dispose of. The servant In- trusteil with the possession o( his master's Iproiiertv, does not thcrel>y give •luthorlfy , to sell it or to authoiiie anol her tosell it. I The borrower of a chattel or the ordl- nnrv bailee does not by his possession 764 SI'KAIGHTS V. HAWLEY. Rain any such power. And in short, the rule thiit no one can bo (Ipi)riv('(l of his ti- tle without Ilia own consent has no sucli flxception as is thought to be created in this cane. And tlie converse rule, that he who fissnnies to deal or intermeddle with personal proi)erty which is nut his own, must see to it that he has a warrant therefor from some one who is authorized to give it, has no such application. An- derson V. Nicliolas, 5 liosw. l:!l), and cases cited. If lie buys from or consents to act by direction of another, he must see to it that in tlis responsibility of such other he can find indemnity if his confidence is misplaced. All there is therefore of hardship to the defendant is that he has undertaken to execute a commis.sion for Ashby or Ashby and wife, and if, in consequence of actintr upon tlie fraud or misrepresentation, he is subjected to liability to the plaintiff, lie will have to look to them for indemnity. Perhaps the findins of the refereeindicates that Ashby is insolvent; if so, tliat makes the hardship. But even that is not a jie- <;uliar case; it is most common in the affairs of business; and having, as the ref- eree finds, heard that Ashby was insolvent when he undertook the commission, he might have known that his recourse to him for indemnity might fail. The doctrine of the cases cited in the prevailing opinion in the supreme court <loes not appear to be controverted by the counsel for the appellant, and yet they seem to me decisive in this case of the prin- ciple that the agent, in a tortious conver- sion of another's property, is liable when his principal is guilty of the tort; and even though the agent act innocently in good faith, relying on the possession and apparent authority (if possession bo deemed sncli) of his principal. Perkins v. Smith, 1 \v'ils. 3iS. An innocent clerk sold goods for the use of his master (Stephens V. L:iwall,4 M. & S. 2,")9) ; an innocent clerk received goods from his master's agent and sent them to his master abroad. In this case the (disprvati(jn of Lord Rllen- borough covers this whole case: "The only (]uesti(>n is, whether this is a conver- sion in the clerk which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance anil for his master's benetit when he sent the goods to his master, but nevertheless his acts ma.v amount to a conversion, for a person is guilty of a conversion whointermeddles Willi my property and disposes of it, and it is no answer that he acted under the authority of another who had himself no authority to dispose of it." Mct.'ombie V. Davies, 6 Kast, .i3S; Baldwin v Cole, 6 Mod. 212; Thorp v. Burling, 11 Johns. 2S5; Farrar v. Chauffetete, 5 Don. .527; Pearson v. Graham, 33 E. C. L. -IGS; Ever- ett V. Coffin, 6 Wend. 609; 22 Am. Dec. m\ ; •Spencer v. Blackman, 9 Wend. 167; Wil- liams V. Merle, 11 Id. >>0; 25 Am. Dec. (i04. .And these cases recognize and affirm the more general rule .-ibove stated, that he who intermeddles with personal property not his own must see to it that he is pro- tected by the authority of one who is him- self by ownership or otherwise, clothed with the authority lie attempts to confer. Recurring again to the able and ingen- ious argument in support of the appeal, and to the point that the plaintiff was guilty of laches, and that by suiiposing the mortgagors to be in possession he en- abled them to deceive the defendant and produce the result. This assumes that it is negligence in the owner of personal property to permit it to be in the posses- sion of another. I am not jiware of any warrant for such assumption. So long as it is true that a mortgage given in good faith and for sutticieut considera- tion is valid, notwithstanding possession may he in the mortgagor, so long such possession no more involves culpable neg- ligence or lachesin themortgage, than the possession of a servant, hirer, or other bailee, imports negligence in the owner. In truth so long as mere fiossession does not import authority to sell the negli- gence, if any, is on the part of him whore- lies upon it, and not on the owner who permits it. And the suggestion gains no strength from the observation that if the plaintiff had not supposed the mortgagors to bo in possession it would not have been in their power to deceive the defendant, and where one of two innocent persons must suffer by the wrong of anotner. the one who enables such other to commit the wrong must bear the consequences. How did the mere possession of the mort- gagorsenable them tocommit the wrong? Only by giving them physical i)ower to deliver the property. The maxim is not true in the sense in which it is sought to be here applied. If it were, then as in the other cases above referred to, whenever an owner suffers his property to go out of his manual keeping or presence, he is liable to lose it by the same means em- ployed here, and is exposed to the maxim here invoked for the defendant's protec- tion. It is only when the owner has part- ed with the legal title upon some secret trust or condition, or has done something calculated to mislead, upon which a third person has a right to rely, and on which he does rely as evidence of authority, that such maxim could have any application. And the attempt to apply it here begs the whole question. SeeCowen, J., in Ash v. Putnam, 1 Hill, 307. Mere possession of another's property is not such evidence of ownership or authority to sell, that third persons have a right as against the true owner, to rely thereon. They may act in faith thereof if they please, but they must rely uiion the fiarty with whom they deal, and look to him for indemnity if the title fails, or they be deceived or defrauded into a condition of responsibility This is the defendant'ssituation ; he has trusted the representations of Ashby. He has been deceived thereby, and he must look to him for indemnity. The order of the general term of the su- preme court granting a new trial should be affirmed, and in pursuance of the de- fendant's stipulation judgment absolute for the plaintiff must be rendered. All concur. STANTON 0. EAGER. 767 STANTON et al. v. EAGER. i (16 Pick. 467.) | Supreme Judicial Court of Massachusetts. Suf- folk and Nantucket. June 2, 1835. Trover to recover (JninaRi's for the tak- ing and conversion of a quantity of to- bacco pipes. I The parties stated a caBO. ' WillinmB, Putnam & Co., of Roston, In October IS!!;!, wrote to C. Morrall & Son, a houHo in Liverpool, reqnt-HtinK tlieni to Bhi]) tlie pi[)es in riin'stion to NVilliunis, Putnam & Co. and on tlioir account, by tliBHliii) Morea. In compliance with tliiH order, .Morrall & Son, on December 4, IH.i;), Bliipped the pipes on board the Morea, for th(! account of Williams, Putnam & Co., and the master Hi(;ned four bill.s of lading, in whicli he a>j;ree(l to deliver the pipes to Williams, Putnam & Co. or their assigns. .Morrall & Son addresseil a let- ter to Williams, Putnam & Co., dated December 7, ISo.'}, in which they stated that they encloHed an invoice and bill of lading of the pipes "at their debit," but in fact the bill of ladinjionly was enclosed. I This letter was retained and afterwards sent under cover of a letter to the defend- ant, dated December 23, 1)533, liereafter mentioned. On the 2l8t of the same December, Mor- rall & Son aKain wrote to Williams, I'ut- nani & Co., but without mentiouin^ the pipes. On December 23d, Morrall & Son wrote to the defendant as follows: "Inconse- quence of a very unfriendly letter just re- ceived from Messrs. WillijimH, Putnam & Co., we have withheld the invoice of pipes from them, and now enclose It with the bill of lading, to be delivered up how- ever on their paying yuu Hie amount by a bill on England; but should they decline to receive the pi()es on this condition, j'ou will please to sell them on our account, and remit us the proceeds. We have writ- ten to Messrs. Williums, Putnam & Co. to the above effect, .it the same time it is due to them to mention, that in the course thus adopted, we are solely in- fluenced l)y the very natural desire of self protection against hostile parties." In a postscript, dated on the '.Mth, the defend- ant was requested to insure the pipes, in case Williams, Putnam & Co. had not done so, and to add the cost to the in- v<iice in settling with them. In this letter was enclosed the letter of Morrall & .Son to Williams, Putnam & Co., dated Decem- ber 7, 1S33. It appeared, that in the letter of Wil- liams, Putnam & Co. which was referred to in the above letter, and which was dated November 21, 1S3:!, they stated, that they should hold .Morrall * Son re- sponsible for the difference between the net proceeds of the sale of a (piantity of cotton consigned by them to .Morrall & Son, and its value a short time after such sale, the sale having been made contrary to their orders. The defendant objit-ted to the admission of this letter in evidence. On .January 3, 1S34, Williams, Putnam & Co. became Insolvent, and assigued their property to the plaintiffs for the benefit of such of their creditors on ahoald, by becoming parties to the indenture of as- signment, release their demands. The in- denture declared the Insolvency of the as- signors, but [irovlded that they should be consulted in the dlspoRltion of the propr-rty. The pipes were described In a schedule which was anne.xed to the as- signment and which purfiorted to convey all balances In the hands of divers per- sons, naming .Morrall & Son, subjtvt to all such liens as they might have for ad- vances, &c. The definilant e.xeouled the assignment, as the attorney of .Morrall & Son. The letter of .Morrall * Son to Williams, Putnam & Co., date>l Dwember 7, 1S33, and covering the bill of lading, was handed by the defendant toWilllamH. Putnam & Co. with a copy of the envel- ope, on or about February 24, ls:il, Ht which time the pipes had not arrived. This bill of lading was immediately hand- ed by Williams, Putnam & Co. "to the plaintiffs, l)ut was not endorsed until after the commencement of this action. In the assignment, the assignors cove- nanter! to execute further asnurances, and to deliver all doeuments relating to the property assigned, as soon as they should receive them. The .Morea arrived on or about March 3, ls;i4, and was entered by the defendant, who was the sole owner and consignee of the ship, and also the agent of Morrall & Son. The |)i|ies were insured by the <le- fendant, and were enterecl at the custom- house by him. It being agreeil that this should be done without prejuillce to the rights of the. plaintiffs, and were taken to the defendant's store. The defenilnnt re- fused to deliver them to the plaintiffs when demanded; and they were after- wards sold by agreement, without prej- udice to the rights of any persons; hut the plaintiffs never (laid to the defendant, nor tenderi'd luiyment of their value. At that time Williams, Putnam & Co. were indebted to Morrall & Son In a much larger sum than the value of the pipes. On April !(), 1n34, Morrall & Son wrote to the defendant, confirming IiIb doings. The defendant could prove. If the court should ileem the facts ndmlsslbli' In evi- dence, that when he hanili'd to Willinins, Putnam & Co. the letter of December 7th, he informed them that he should retain the tiill of lading ami invoice, and should not deliver the pipes until the purchase money was paid; that he subsequently offerell to deliver to them the pipes if thi-y would l>ay the purcha^^e nione.v, which they ngreell to do, tint the plnlntirfs olr jected, claiming the pi|ies as their own by virtue of the assignmi-nt and bill of lad- ing: anil that the defendant subsequently wrote to the plaintiffs, sayltig that he should not deliver the pipes until the amount of the Invoice and expenses was l)aid. The plaintiffs objected to thcndniis- sion of tbesefaits inevldence. If the court should be of opinion, that the plalntlfTs were entitled to recover, judgment was to lie rendered in llieir favor for the value of the pliies at the time of Iheir arrival, with Interest; otherwise the ilefeudant was to have judgment for his costs. I The case was arguetl In writlnic- 768 STANTON V. EAGER. C. G. LorinR and F. C. Loring, for plaiu- tifls. Cooke, for defeudant. SHAW, 0. J. Until the parties to this suit are creditors, or representatives of the creditors, of an insolvent mercantile house, and the question is, which shall have the benelit of the small amount of merchandise, which is the subject of this action; and this question depends upon another, which part.v can estaDllsh the better legal title. It seems to have been thousht by Williaiiis, Putnam & Co., at the time of their assignment, that Morrall & Son were indebted to them; j'et it is now found as a fact in the case, that at that time a considerable balance, inde- l)endent of tliecostof the pipes, wasdue to .Morrall & Son. The facts appear sufficiently in the agreed statement, and it will not be nec- essary to reeapitnlate them. It was con- tended, on the part of the defendant, that by the shipment of the pipes in Liverpool, the bill of lading having never been deliv- ered or forwarded to the consignees, but retained by the consignors and forwarded enclosed to their own agent, the property never legallv vested in the vendee. But the court are strongly inclined to the opin- ion, that the orders of Williams, Putnam & Co. to ship the pipes for their. account, and the actual shipment of the goods, pursuant to surh order, on board of a vessel ilesignated by the vendees for that purpose, and for their account, and ob- taining from the master a bill of lading for the goods, making them deliverable to the vendees, constituted a good con- tract of sale, and a good constructive de- livery, so as to Vest the property in the goodM, in the vendees, and place them at their risk. This conclusion is founded, not upon the sui)posed specific effect of ex- ecuting or delivering a bill of lading, or the peculiar character supposed to be at- tached to a bill of lading as a quasi nego- tiable instrument, but upon the general principle of the common law, applicable to the sale of personal property. We are to understand, that the Morea was tor this purpose a general freighting ship, and the master was acting in regard to goods on freight, as a common carrier; and this being the case, the fact, if it were BO, that the vessel was for some purposes con.signed by the defendant, the owner, to the house of Morrall & Son, made no difference in regard to these goods. It then appears that the delivery of the goods on board the vessel was not condi- tional, and nothing was then done hy the consignors, to prevent the general prop- erty in the goods from vesting in the con- signees. The withholding of the bill of lading, and enclosing it to their own agent to be delivered only in case the ven- dees should pay for the goods, could not convert the absolute deliver3' into a con- ditional one, or divest the property in the goods, which liad vested by the delivery of them on board the vessel designated, pursuant to the order of the consignees. But though by these proceedings the property vested in the consignees, it was subject to the well established right of the vendors, to stop the goods in tran- situ, in case the goods are sold on credit, and the consignees become insolvent; and this right may be exercised at any time before the goods reach their ultimate des- tination and come to thepossession of the consignees. And the consignors have a right to judge for themselves of the dan- ger of such Insolvency, and to take meas- ures to guard against it by stopping the goods in transitu, should the insolvency occur before the goods come to the pos- session of the consignees. The effect of such stoppage in transitu is not to rescind the contract, or to revest the general property in the vendors, but to reinstate them in their lien and right to hold the goods in security for the price. The consignors might have exercised this rigi't at Liver[)ool,if they ha.l groimd to apprehend the insolvency of the con- signees before the arrival of the goods, and such insolvency had occurred accord- ingly; and perhaps the change of the des- tination of the goods, after the shipment, by enclosing the bill of lading to their own agent, with directicjns not to deliver the goods to the vendee, without receiving payment or security, might amount to such a stoppage. But it is not necessary to consider this point, because the court are of opinion, that the acts done by the :lefendant here, under the express author- ity and direction of tlie shijipers, especially as the defendant was the ship-owner and obtained actual possession of the goods before they could reach the hands of the vendees, or their assignees, was an effect- ual e.xercise of the right to stop in tran- situ, if it existed as against the plain- tiffs. And the court are of opinion, that the plaintiffs, in this respect, stand precisely In the place of the original vendees, and not in the place of bona tide i)urchasers. claiming under a bill of lading, without notice of any lien, set-off, or adverse claim. The plaintiffs were assignees, with full notice of the insolvency of the assign- ors. Had there been a balance due on general account from Morrall & Son, to Williams. Putnam & Co., at the time of the execution of the order, as it is said the assignees supposed there was, it would have presented a very different question. In that case, shipping the goods, pursu- ant to the order of the vendees, and char- ging them in account, would have l)een no more than an appropriation of their own funds, according to ttieir own order, and not a sale upon credit, and the right to stop in transitu would not have existed. But although the assignees so supposed and believed, and were entirely without any imputation of blaiue in taking a con- veyance of the goods, yet when it turns out, as upon the facts it appears to have been done in this case, that Morrall & Son were already creditors of Williams. Putnam & Co., that the goods were or- dered and put on board ship solely on the pei'sonal credit of the vendees, the right to stop in transitu is shown to be com- plete, against the vendees. And that right is equally perfect against all others, except a purchaser taking bona fide, by indorsement of the bill of lading, in the usual course of trade, without notice of STANTON t>. EAGEB. 769 the consignor's right to atop the goods in traiiHitu. In tlie tiresentcase tlu'HP con- (litioHH are all wanting. The plain tiffs did not tiiko under an indorsement of the liill of lading, the l)ill of lading not having been indorsed until after the action was commenced. It is aaid in answer, that at the time of the assignment, the (-(jn- signees had not received a liiil of lading, but they stipulated to indorse and deliver the bill (jf lading aa soon as they should receive it, and that they did It accordingly. This is all very true, but it does not an- swer the oljjection. It shows that the in- solvent house, in making their assignment for the l)ene(it of creditors, intended to make as good a title as they could make to these goods, with the rest of their prop- erty, and entered Intostipulations accord- ingly, 15ut it leaves the case as it wau before, that the assignees took aa as- signees all the interest which the assign- ors had in the goods, subject to all claims of lien and set-off, and not as indorsees of 11 bill of lading in the usual course of trade, or as purchasers, advancing money or giving credit upon the faith of such bill of lading. Indeed the consignors had taken effectual care to prevent thera from thus transferring the bill of lading by in- dorsement to a bona fide [jurchaser, by enclosing the bill of lading to their own agent, to be delivered to the consignees only on payment made or security given. Nor can the jilaintiffs be considered pur- chasers without notice. No money was paid for the goods, no new credit given, no new dealings had upon the faith of this shipment of goods. The plaintiffs knew that the consignees were insolvent; this is admitted, and indeed the whole pro- ceedings were founded upon that assump- LAW SALES— 49 tion, and they took the conveyance, aa that of a party declared to be Insolvent ; the.v knew that the consignors were de- scribed as creditors, in the same instru- ment under which they claimed: they knew that by the general mercantile law, if these goods had been shipped on credit, the vendors had a right to stop tht-m In transitu. This was <|uite sulMclent to I)ut them fully on inquiring, and to bind them to the state of facts, ns it should idtimately turn out. The effect Is, that they took all the title which the assignora had, and no more; that is, a title to the goods subject to the right of the vendora to stop the goods in transitu. And yet It was highly proper that these goods shouhl be included in the assignment. It might turn out, that there was a balance due from Morrall ik Son, and that tlie goods were not shipped on credit, within the meaning of the rule, or that the con- signors would not attempt to exercise their right of stop|)age, or might not have an oi)portunity to do so, or n)lght obtain security for the purchase money In some other wa.v. In any of these cases, these goods would proijerly have gone into the general fund, provided for the vendees' creditors. I'ut in the events that have happened, it appears, that the vendora had the right of stoppage, anil did sea- sonably and legally e.\ercl8e It; that un- der the circumstances. It was er]ually available against the aRsignees as against the original consignees; and therefore that the plaintiffs, without tendering pay- ment for the price o( the goods, could not take them out of the custody of the de- fendant, rightfully holding them for the consignors. Plaintiffs nonsuit. STATE OF VKIIMOXT v. O'XEIL. 771 STATE OF VERMONT v. O'NEIL, (two cases.) SAME V. FOUR JUGS OF INTOXICATINO LIQUOR, (NATIONAL EXPRESS CO., Claimant.) SAME V. SIXTY-EKiHT JUGS OF INTOXI- CATING LIQUOR, (NATIONAL EX- PRESS CO., Claimant.) (3 Atl. Rep. 5S6, 5S Vt. 140.) Supreme Court of Vermont. Rutland. Feb. 5, 1S8C. ExcuptioiiH from Rutland county. TlicHO four cnHt'H were licanl to^ftliPr. The tirHt two were proceedin^tH, com- menced before a justice of the peace, for the conli.scation of intoxicating li(|uorH Hhipped from several towns in .\ew Vorl< to Rutland parties, who had ordered them, and were marked "C O. I).," and which were seized at tlie otlices of the Na- tional Expres.s Company, in Hutlarx), and in Center Rutland, liy the slieriff of the county and one of his deputies, under tlie authority of No. 4:5 of the Acts of IKSJ, sec- tion 2 of which is as follows: "In all case.'i where now, b.v any of the provisions of said chapter, [Ki'J, Rev. Laws,] an offi- cer is authorized to seize iutoxicatint; lirj- uors, or the casks or vessels containing the same, Ijv virtue of a warrant therefor, he may seize the same without a warrant, and keep the liiiuors, cask.s, or vessels so seized in some safe place, and sliall forth- with prticure such warrant, and he shall thereuixin make return of his dolnits un- der sai<l warrant in the same manner >is he would have done had the issuinsi of the warrant preceded such seizure." The Na- tional Express Company n|)pearcd hefore the justice of the peace, and made claim to the several packages of li(iuor, claiiuluK that the sales in question were made in New York, where such sales were lawful, and that the seizure in (jnestion was a viidation of section s of tne I'nited Slates constitution; and several other claims, asapiiearin the opinion. .Judirment hav- ing been rendered against the express com- pany, upon their claim to the lifjuors, and the same having been ordered to becontls- cated, both before the justice and the county court, the express company took these cases to this court for <letermina- tion. The other two cases were criminal prosecutions begun liefore a justice of the peace, — one for keeping intoxicating li<|- uors in \'erni(jnt with intent to sell and furnish the same contrary to law. and the other for welling and furnishing intoxicat- ing liipiors in \'eiiiiont contrary to law. The respondent is a wholcsalt! licpior dealer in Whiti'liall, New York. The sales comjilained of were all upon orders re- ceived by OW'eil from parties in Rutland, and sent C. O. D. to such parties i;; Rut- land through the National Express Com- pany, where payment therefor was made to the express company. The respondent was founil guilty, on the complaint for keeping, of one offense as of second con- viction, the |)unisliment for which is S-h and one month's imprisonment, and, on the complaint fur selliug, of 3U7 uffenses as of second conviction, the punishment for which is f<;.Ul), (*:.'0 for each otlense, I together with one month's imprison- ment; an<l, in both tiises, if the line Is not pail) within '24 hours, the respondent is to be committed to the house of cor- rection for three times the number of ilayB us there are dollars of costs and fines, which alternative sentence is in addition to the month's imprisonment. The re- spondent claimed that the judgment shoidd be only as of the lirst con victioii. in which case the line is only ?ll) for each offense, without the month's imprison- ment, because the record of the lirst con- viction offereil in evidence was more than three years before tlio commencement of the present complaint, and the statute provides that all prosecutions for viola- tions of the liquor la w must beconimcnced within three years. J. C. Maker, for respondent. I'rout & Walker, for claimants. \V. C. 9unton and L. h. Tliompsun, for the .State. ROYCE, Ch. J. The first and most Im- portant question presented by these cases, is whether or not the intoxicating liquors in (juestion were (in the lirst two cases) in contemplation of law sold, or furnisheil, by the respondent in the county of Rut- land and state <if Vermont; or (in the last two cases) held and kept for the |>urpose of sale, furnishing, or ilistribution con- trary to the statute, within said county and state. The answer de|iends upon wliether the .National Express Company, by which some of said liquors were deliv- ered to the consignees thereof, and in whose possession the remaintler were found and seized before delivery, was in law the agent of the vendors or of the vendees. If tlie purclinse and sale of the liquors was full.v completed In the state of New York, so that upon delivery of them to the exi)res8 L-oin[)any for transporta- tion the title vested in the consignees, as in the case of a completed and uncondi- tional sale, then no offense against the laws of this state has b<>en committed. If, on the other hand, the sale by its terms could only become complete so as to pass the title in the li()iiors to the consignees upon the doing of some act. or the fulfill- ing of some condition precedent after they had reached Rutland, then the rulings of the county coiirt upon the <|uestion of the offense were correct. The liquors were ordered by residents of Vermont from dealers doing business in the state of .New Y'ork. who selected fiom their stock such (luantitles and kinds of goods us they thought propi-r in compli- ance with the terms of the onlers, put them up in packages, directed them to the consignees, and delivered them to the ex- press comi)any as n common carrier of goods lor transportation, acnonpanled with a bill, or invoice, for cidlection. The shiptuent was in each Instance, which it is necessary here to consiiler. "C. (). !>."; and the cases show that the effivt of the transaction was adircctiou by lheshlpi)or to the express company not to deliver the goods to the consignees except upon |>ay- meut of tlie omount specl'ied In the C. O. 772 STATE or VEP.MONT v. O'NEIL. D. hills, together with the ehiirses for the transportation of the packages and for tlie return of the money paid This direc- tion vvas understood by the express com- pany, which received the shipments coupled tlierewith. Wljotlier cr not, and when, the legal title in jiroperty sold passes from the ven- dor to the vendee, is always a question of tlie intention of tlie parties, whicli is U) be gatliered frtjm tlieir aets, and all tlie facts and circumstances of the <-ase taken to- gether. In order that the title may pass, as was said tjy Morton, J., in Mason v. Tliompson, IS Picli. ;iOu: "The owner must intend to part with liis property, and the purcliaser to become the immedi- ate owner. Tlieir two minds must meet on tliis point; and if anything remains to be (lone before either assents, it maybe an inchoate contract, but it is not a per- fect sale." The authorities seem to be uniform upon this point; and the acts of tlie parties are regariled as evidence by wliich tlie court or jury raa.y ascertain and determine their intent. Itenj. Sales, ss. ;!ll, :519, note (c). When there is a condi- tion precedent attached to the contract, tlie title in the projierty does not pass to the vendee until nerformance or waiver of the condition, even tliough there be an actual delivery of possession. Benj. Sales, s. 321), note (d). Tlie Vermont cases to the above points are referred to in Koli- erts's Digest, (JIO et se()., and need not be specially reviewed liere. In the eases under consi Jeratioii the vendors of the liiiuors shipped them in ac- cordance with the terms of the orders re- ceived, and tiio mode of shipment was as above stated. They delivered the pack- ages of liquors, properly addressed to the several persons ordering the same, to tlie express company, to be transported by that company and delivered by it to the consignees upon fultillraent by them of a spei-ihed condition precedent, namely: payment of the purcliase price and trans- portation charges, and not otherwise. Attached to the very body of the contract, and to the act of delivery to the carrier, was the condition of payment beforedeliv- ery of possessi'-.n to the consignee. With thisconditionunfultillcd and not waived, it would be impossible to say that a deliv- ery to the carrier was intended by the consignor as a delivery to the consignee, or as a surrender of the legal title. The goods were intrusted to the carrier to transport to the idace of destination named, there to present them for accejit- ance to the consignee, and if he accepted them and paid the accompanying invoice and the transportation charges, to deliver them to him; otherwise, to notify the consignor and hold them subject to iiis or- der. It is difficult to see how a seller could more positively and unenuivocally express his intention not to relinquish his right or property or [lossession in goods until payment of the purchase price than bv this method of shipment. We do not think the case is distinguishable in princi- ple from that of a vendor who sends his clerk tir agent to deliver the goods, or for- wards them to, or makes them delivera- ble upon the order of, his agent, with in- structions not to deliver them except on payment of the price, or performance of some otiier speciHed condition precedent by the vendee. The vendors made the ex- press company their agent in the matter of the delivery of the goods, with instruc- tions not to [lart with the possessitin of tlieiii except upon prior or contemporane- ous receipt of the price. The contract of sale therefore remained inchoate or exec- utory while the goods were in transit, or in the hands of the express company, and could only become executed and complete by their delivery to the consignee. There was a completed executory contract of sale in New York; but the completed sale was, or was to be, in this state. The aiitlioriti;^s upon the above points and principles are so numerous, and are so fully collated in the brief of the learned counsel for the state, and in the text and notes of 2 Benj Sales (4 Am. ed.i, that we refrain troin specific references in support of the conclusions at wliicli we have ar- rived. These are fully supported by the decision of the United States district court in Illiniiis in People v. Shriver, ;il Alb. L. J. l(i:!, 2'-'> Fed. Rep. 134, a case involving precisely the same question. Treat, J., says in the opinion : " In the caseof li(jiior sliipped by the defendant to Fairtield liy express, C. O. U., the liquor is received by the express company at Shawneeiown as theagentof theseller.and not as theagent of the buyer, and on its reaching Fairfield it is there lield by the company, as the agent of the seller, until the consignee comes and pays the money, and then the coiii[)ani', as tlie agent of the seller, ile- livers the liquor to the puichaser. In such case the possession of the express company is the possession of the seller, and generally the right of property re- mains in the seller until the payment of the price. An order from a person in Fair- field to the defendant at Shawneetown for two gallons of liquor, to be shipped to Fairfield, (_'. O. D., a mere offer by the per- son seniiing such order to purchase two gallons of lirjuor from the defendant, and pa.v him for it when he delivers it to him at Fairfield, and a sliipraent liy the defend- ant according to such order is practically the same as if the defendant had himself taken two gallons of liqnor from his store in Shawneetown, carried it in person to Fairfield, and there delivered it to the pur- cliasHT, and received the price of it. It would be different if the order from Fair- Seld to the defendant was a simjile order to ship two galliiiis of liquor by express to the [lerson ordering, whether such or<ler was accoirpanied by the nionej' or not. The moment the liijiior under such an order was delivered to theexpresscom- pany at Shawneetown it would become the property of the person ordering, and the possession of the express company at Shawneetown would be the possession of tlie pun-haser — the sale would be a sale at Shawneetown — arid if it were lost or de- stroyed in transit the loss would fall upon the pur-chaser. But in the ease at bar the shipping of theliqucjrto Fairfield. C. O. D., the defendant ma<]e no sale at Shawnee- town ; the right of property I'emained in himself, and the right of possession, as STATE OF VERMONT r. O'NEIL. 77:1 well aH the nctujil poHHeRHlon, rcmulnerl In liiin tliroiiKli lii>4 iiii'Hit- ilni] it been loHt or (leHtroyed in IrniiKit the Iohh would have fallen on hlniseir. lie simply acted ii|ii)n the request of the piinha.ser. and sent the li(|iior to Kairhi'ld liy IiIh own flKent, mill there effected a Hale liy receiv- inir tli(^ money anil d.'li vi-riiit; the liquor. " II. It Ih in«iHteil on the part of the clnini- ant in IhecuKeof the State v. (is .Iuj^m. &c., that Hce. 2 of No. -t.'i of the .\cts of l.ss:.', under which the liiiuoi-H in that case were Kei/.ed, Ih uiiconHtitutional. Concedinn the pointM eontendeil for liy the learned coun- sel for tlie claiinnnt, tliat there Ik a well rccoKid'-fd rinht of piopetty in inlo.xirat- ins' liiiuiirH, that thej' are not nialuni in He, and that their use Ih not liy law jiro- hihitiii to citizensof this Htate. tlieHe piop- ositioiiH are neverthelewH clearly wuliject to the nualification, that when kept and intended for unlawful ukc, hucIi liquors fall at once under the ban of the law, and become subject to seizure and contiHca tion by such methods as are provided by law in conformity with the couHtitution. That into.xicatinjf liquors, when once branded with thisuidawful intent on the part of till- owner or possessor, become sulijcit to cnnliscation by the f>overn- nieiil : and that the methods and means of their seizure and conilemnalion are with- in the poMce powers dele(;ated lotheley;is- lature by Art. .5, (lart 1. of the constitu- tion, is too well settled in this state and elsewhere to require extended discussion. iSpaldiuK V. rreston. L'l \"t. !l; Stale v. Oonlin, L'7 Vt. •.US; Id. rsi'.'.. :!.'"; State v. Ootnstoik, Id. :V.:!: (iill v. Tarkpr. 31 Vt. (ilO; I'ott. Dwarris, c. 14; Cooley Con. Mm. (led.) 714. 7L'7. This section tjives the officer the power to seize without warrant liquor found "under circumstances warrantiuir the be- lief that it is intended for sale or distribu- liiiii "■ contrary to the |)r(ivisionH of chap. I(i'.) U. L. It does not purport to confer the power of search; nor does anything appear to show that the officer assumed to e.\-ercis(> such power in this case. It simply provides for the seizure, without warr.-int previously issued, of soiiiethitijr which the law has declared siiliject to s-i- zure and condemnation, under the police power delejiated by the constitution, as an instrument iiiteiided by the owner or ]iiisse!.sor fill- a use unlawful by e.xpress statute, and dangerous to the peace, health, ami y;ood morals of the communi- ty. That the article in itself may be In- nocuous, may bo the subject of lawful owiiersliip, or may even be siisceiitible of beneficial use. can no more affect the ques- tion tlian could the fact, that certain tools were susceptible of lawful and benelicial use in mechanics, save them frmn becom- iiijj suliji'ct to seizure and conliscation, if intenilid hy their owner or possessor for use as the instruments for accomplishing a contemplated burglary; i.r theharmless charact'r of the nielal and its owner's ri^iht of priqierty therein protect his ownership when fashioned and intended for passinir as counterfeit coin. It cannot lie doubted in this state, since the case of SpaldiiiR v. Preston, lil Vt. it, and lins not been elsewhere, so far as we are aware, ' that articles or instrunieiitalltlcs once liti- pressed with the eharacteristii's of adap- tation and intended u.se for purposes pr<i- hibited by law and coiitri.ry to public peace, health, or morals, are subject to suniiiiary seizure under statutory or even general police ret'ulations. That the liq- uors in qiiesiion were intended for such use has been determined in this case as a (pieslion of fact by thetriliunal designated by law. and that adjudication Is conclu- sive. The scope and application of Art. 5, liart I, of the constitution have been tie- lined by this court in the cases above re- ferred to, and in In re I'owers. '2'i Vt. 2()5, which hasever since been rejrardeiJ as con- clusive against such application of that section of the bill of riuhts as is heie con- tended for bv the claimant. See (iill v. Parker, ;!l Vt.CKl: Stale v. Peterson. 41 Vt. .-,(14; State v. Intox. I-bv .V, Vt. sj In Massadiiisetts a statute practically idcii- tii-al with the one in question has beeii held not to contravene a similar consti- tutional provision. Jones v. Knot. t> Oray, 4;!."i; Mason v. I.athrop, 7 (irny. :154. The decisions in Maine are to the same effect. State v. McCnnn. .V.i Me. :iK;( ; State V. Howley, (')."> Me. Inn. HI. Concerninjr the claim that sec. S of the federal constituticm. conferrinK upon conjiress the exclu-jlve riiilit to re;rulate commerce amonir the states, has applica- tion, it is sufficient to say that no reRulfl- tion of or interference with inteistate commerce is attempted. If an express company, or any other carrier or person, natural or corporate, has in possession within this state an article in itself dan- frerous to the com muni t.v. or an art iile in- tended for unlawful or criminal use with- in the stale, it is a necessary incident of the pidii'e powers of the state that such article should be subject to seizuie for the [iiotection of t he community. It would certainly be a strangle perversion of laii- Kuaue to claim that if this express com- pany were to hold In possession within this state clothiiiK infected with the small- pox or yellow fever, or to(ds with which it was intended to oomniit a biinilary, the state fro^'eriiment should be powerless to protect its citizens by selzinK and ri-nder- int: harmless such articles, simply because they misht have been brought in Iheordl- n.'iry course of business from another state. If the express company h.'is In pos- session within Ihe state liqiinr, with In- tent to make unlawful use or disposition of it. then the rifiht to seize it and prevent such unlawful use attaches. If it were competent for persons or companies to become superior to state lau s and police reiiulntions, and to override and defy them under theshield of the federal consti- tution simpl.v by means of condnctins an interstate traffic, it would indeei! be a strange and deplorable condition of thin)j;s. The rijrht of the states to regu- late the trallic in intoxieatinii linuors has been settled by the I'liiled States supreme court in tlie License Cases. .'> How. .'■)77. 1\'. Proof of the formerconvlction In the rases of State v. O'Nell was properly ad- mitteil, notwithstanding the conviction a|>penred to have l)eeii more than three 774 STATE OF VERMONT v. O'NEIL. years before the trial. No provision of the statute requires that the former convic- tion must liavp been within three years, an<i we have no authority to add such a provision to the law, as it is plainly and unambiguously framed l)y the legislature. The reason for the limitation of prosecu- tions for the offenses charged in these cases to a period within tliree years from the time of commission, as for all similar limitations, is that a person should not be called upon to answer to a legal accu sation after such a long time has elapsed as would, in the estimation of the law, make it dillicult or impossible, by reason of the death or removal of witnesses, the loss or destruction of evidence, or the va- rious embarrassments likely to arise from a considerable lapse of time, for him to establish his innocence. This reason has no application to a case where the only proof that can be used on the one side or the other is matter of record. We should therefore have no justification, even if we deemed it within the scope of our power and duty, for making applications of a rule of limitation by analogy in these cases. V. The constitutional inhibition of cruel and unusual punishments, or excessive fines or bail, has no application. The punishment imposed l)y statute for the offense with which the respondent, O'Neil, is charged, cannot be said to be excessive or oppressive. If he has subjected himself to a severe penalty, it is simply because he has committed a great many such offences. It would scarcely be competent for a person to assail the constitutional- ity of tlie statute prescribing a punish- ment for burglary, on the ground that he had conuuitted so many burglaries that, if i)unishment for each were inflicted on him lie might be l<ept in prison for life. The mere fact that cumulative punishments maybe imposed for distinct offences in the same prosecution is not material upon this question. If the penalty were unrea- sonably severe for a single offence, the con- stitutional question might be urged; but here tlie unreasonableness is only in the number of offences which the respondent has committed. The iuevital)le deduction from what has been said under tlie first point is, that the respondent, O'Neil, by what he did in re- spect of the transactions in question, made the express company his agent; and as what was done by such agent in the exe- cution of the autliority and instructions directly given by him committed offences against the statute, O'Neil must beheld responsible. That he was innocent of any purpose or intent to break the law, and was unaware that what he did was contrary to la w, cannot avail him in de- fence. State V. Comings, 28 Vt. 508. The result is that in the cases of the State V. O'Neil, numbers 27 and 28, the re- spondent takes nothing by his exceptions; and in the cases of the State v. Intoxicat- ing Liquor, National Express Company, claimant, numbers 25 and 26, the judg- ments are affirmed. 8T0LLENWERCK v. TIIACHICa. 777 STOLLENWERCK et al. v. THACHER et aL (115 Mass. 2^.) Supreme Judicial Court of Massachusetts. Suf- folk. June 18. 1S74. Tort for the coiiverhion of 189 bnlcs of cotton. At the triul, Itefore Morton, J., the jury were dircctccl to (ind ii verdict for the plaiiitiff.s, and tho euHe \va» rc[)orted for tile consideration of the full court. S. I'.artlettand 1). Thaxter. f(jr plaintiffs. H. VV. Paine and U. I). Smith, for defend- antH. GRAY, C. J. Thi.s in an action of tort for the conversion of a number of hales of cotton. A verdict has been ordered for the plaintiffs, and the case reserved for till! determination of the full court upon a report containing an abstract of the evi- dence Riven at the trial, and a number of letters and documents. But the facts material to the decision, assuming all the controverted ones to be according to the testimony introduced by the defendants, are not many; and a l)net statement of them will tend greatly to narrow the dis- cussion of the principles of law by which the case is governe*!. The plaintiffs, being buyers of cotton in Mobile, made an arrangement with .Jo- seph I. Caker, a cotton broker in I'.oston, by which they agreed to pay him. upon such orders on them as he should obtain from lii.s custonii^rs here, fifty cents a bale, out of their own commission of one and a half per cent., furnish him witli types of their classification of cotton, and keep him advised at their own expense of the condition of the cotton market in iMobile; he agreed to procure and transmit the orders, and inform his customers of their acceptance or rejection; and the invoices were to be sent by the plaintiffs to, and the drafts for the price drawn upon, the customers, and the bills of lading at- tached to the drafts. In pursuance of an order given liira by (jorhain (Jrn.v & Company, linker tele- graphed to the plaintiffs to buy for them two hundred bales of cotton. The plain- tiffs replied, refusing to negotiate on any other basis than that the bill of lading should be att;u-lie<l to the draft. They bought the cotton in .Mobile, drew a bill of exchange on liray & Company a;;ainst the cotton, took the bill of lading in their own name, indorsed it in l)lank, attached it to the bill of exchange, procured th_> lat- ter to be discounted at a bank in Moliile, informed Baker of what they had done, an<l instructed him, on receiving the draft and bill of lading, to bold the bill of lad- ing until the draft was paid. Baker by telegram and letter assented to all this. The in voice sent by the plaintiffs totJray & Coiu|>any showed that the cotton was consigned to the i)laintlffs' order. The Mobile Bank transmitted the draft, with the bill of lading attache<l. to a bank in Boston, which presented the draft to (iray & Company for acceptance. Upon such presentment, (Iray & Company asked for the bill of lading, and were told that Ba- ker w;.s to receive it. (Jrny iVc Company then accepted the draft, the bank deliv- ered the bill of lading to Baker, and he att erwards delivered it to (iray and Compa- nj', who obtained the cotton from the car- riers, gave them a check for the amount of the freight from Molille to Boston, and pledged the cottim and dell vcreil the 1)111 of lading to the rlefendants as security for the payment of advances on the cotton. Gray testified that he accepted the draft upon Baker's assurance that he would hand him the bill of lading as soon as It came to Baker's possession, that Baker shortly afterwards delivered to him the bill of lading unconditionally, and that he transferred the cotton to the defendanta believing that lie owned it; and his testi- mony though contra<licted by Baker's, must lie assutned to be true for the pur- pose of deciding whether a verdict was rightly ordered for the plaintiffs. Baker and the plaintiffs were not part- ners as between t/icmselves. and (Jray & Company did not deal with Baker as a partner of the i)laintiffs. His relation to the i)laiiitirfs was that of a tjroker only. He looked to them, and not to the cott<jn, for tlie payment of his commiHsion. The case is not within tlie (Jen. .'^ts. (•..'>4.* Ba- ker was not a fiictor. or a general agent intrusted with the goods for the puriKise of sale; but a special agent, with p<jHitlve and restricted instructions to receive the liill of lading on the acceptance of the draft, hold the bill of lading and the cot- ton until the draft was paid, and then de- liver them to Gray & Comiiany. He had no right of possession of the bill of lading or the cotton for any other purpose, and no title in or lien on the cotton. Tins is not a case of 8topi)age in transitu. Gray i^c ("ompany were not naineil In the l)ill of lading as consignees of the c<itton. and the plaintiffs ha ve never been divested of their ])roperty in the cotton as agnlnst Gray & Con)i)any or any persons claiming under them. The nuraeroua case.4 cited at the bar diffi'r in their circumstances rather than in the statement of principles. \ hill of lading, even when in terms running to order or assigns, is not iicgotiable, like a l)ill of exchange, but a symbol or repre- sentative of tlic goods themselves; and the rights arising out of the transfer of a bill of laiiing correspond, not to those arising out of the indorsement of a nego- tiable promise for the payment of money, but to those arising out of a delivery of the property itself under sin. liar circuui- stances. If the 1)111 of lading is once as- signed or indorsed generally l)y the orig- inal holder, upon or with a view to a sale of the property, any subsei)uent transfer thereof to a bona tide purchi\ser may In- deed give him a good title as against the original owner. But so long as the bill of la<ling remains in the hnnils of the orig- inal party, or of an agent intrusted with It for a special purpose, and not author- 'Gon. Sts. c. 54, § 2, proviiie that, "Every factor or other agent intrusted with the pos>ci«»ion of merchandise, or a bill of Inding consicnlnc mer- chandise to him. for the purpose of siilo. shall be deemed to bo the true owner Ihoreof so far as to give validity to any bona tide contract mado by him with any other jwrson for the sale of the whole or any part of such merchandise, " 7V8 STOLLENWERCK v. THACHER. izptl to sell or pledge the goods, a person who f;et8 i)ossession of It witliout the au- thority of the owner, althotish with the assent of tlie a(?ent, ac'uiires no title as against the principal. National Bank of Green Bav v. Dearborn, 115 Mass. 219. (Jurncy vl Behrend, 3 E. & B. 622. 632. Pease V. Gloaliec, L. H. 1 P. C. 219, 228. In tlie present case, Baker, being a spe- cial agent authorized to deliver the bill of lading only up.on payment of the bill of exchange drawn against the goods and attached to the bill of lading, could not bind his principals by a delivery made withont such payment. To hold other- wise would be to allow a person, intrust- ed with goods merely for the purpose of oollecling the price and then delivering then), to sell them on credit. The author- ity of Baker, being special and limited, could not be enlarged by his own declara- tions. Mus.sey v. Beecher, 3 (Jush. .'ill. It follows that Gray & Corai)any, not having paid the draft, nor acquired pos- session of the bill of lading with the plain- tiffs' consent, had no property in the goods, and could convey none to the de- fendants, so as to defeat the plaintiffs' ti- tle. The plaintiffs are thereforeeutitled to recover. This is not an action in the nature of as- sumpsit for the proceeds of a sale of the propert.v, in which the plaintiffs might be deemed to have waived any tort, and be obliged to submit to a deduction of the expenses of the sale by which such pro- ceeds hud been obtained. It is an action in tlie nature of trover for the conversion of the goods, in which tlie jjlain tiffs are entitled to recover their market value at the time of the conversion by the defend- ants, and are not obliged to allow a com- mission to Gray & Company for doing an act which is not shown to have been for the interest or according to the intent of the plaintiffs. Bartlett v. Bramliall, 3 Gray, 257. But the amount paid by Gray & Compa- ny to discharge the lien which the carriers had against the jdain tiffs for the freight on the cotton enured to the benefit of the plaintiffs, and should he deducted from the market value of the goods. Adams V. O'Connor. 100 Mass. 515. Whitney v. Beckfonl, 105 Mass. 267. That amount must therefore, unless the parties agree upon it, he ascertained by an assessor, pursuant to the terms of the report, the verdict amended accordingly, and .ludgment rendered thereon for the plain- tiffs. WELLS, COLT, and DEVENS, J.T., ab- sent. STUAUS c. WESSEL. 781 BTRAU8 et al. v. WESSEL et al. (30 Ohio St. 211.) Supreme Court Commission of Ohio. December Term, 1S70. Error to superior court of Cincinnuti. H. H. WeHHcl, doiiiir buHiiiewH in <-'incin- iiati as H. II. Weasel & Co., aOvunced to Steplieiis & Bro., pork itackers in Jndiann, $.>,UOU, under uf;reeuient tliat tliu latttr would sliip to tliem all tliepork they would cut during the season to be 8(dd by H. H. Wessel & Co. on coinniission, the proceeds, after paying freight and commissions, to be applied on the indtbtedne.ss, and any balance to be pain to Stephens & Bro. ! Stephens & Bro. made several shi|)nients! to I!. H. Wessel & Co., but without send- ing bills of lading. The consiKuee, beinj;; well known, obtained the goods on their arrival In Cincinnati. March 24, 1S70, Steidiens & Bro. made a shipment to II. H. Wessel & Co., retaininj^ the bill of lad- ing, but sendinR the folio wing letter of advice, which was received March 2'!, 1S70. "Shoals. Ind., .March 24, INTO. Messrs. H. H. Wessel Co. — Gents: Shipped to-day car No. 761 : 7 tierces lard, No. 1 2,164 1 bbl. grease -00 4 bbls. cracklings 913 353 hoKs' heads, ( with the fat) 1.970 14:1 smoked jowls 74.5 rJO bacon hams 1,413 183 hogs' heads, (skinned) l,4tW 12S bacon shoulders 1,S05 "Tlie balance of meat we will ship when- ever you order. We think it best to holil the fard. I send you two kinds of hogs' heads,— one with fat on, tlieothcrskinned, which notice. We deliver you this load on our indebtedness. Do tlic best you can. Yours truly. Stephens & Brother. " On March 2.S, 1S7U, while in the posses- sion <if the railroad company at Cincin- nati, it was attached by . I. 1'. Straus & Co. on a claim aBainst Stei)hens & Bro. H. H. Wessi'l paid the freight bill in the usual way, and brought replevin against the sheriff and .J. P. Straus & Co.. an<l re- covered judgment, and defendants bring error. Stallo & Kittrcdge, for plaintiffs in er- ror. John Johnson, for defendant in er- ror. SCOTT, J. It is clear that the rights and interests of the iiiaintifJs in error, in the property which they, as creditors of Stephens & Bro., caused to be attai-hed. can be no greater than those of their al- leged debtors, Stei)h"'ns A: Bro. They could attach only the interest of their debtors, in the prop"rty. and in this con- troversy must stand in theirshoes. Now, for whom was the (xirk in question held by the carrier at the time of the levy of the attachment? It had bc<'n delivered by Stephens & Bro., to the carrier for trans- portation to Cincinnati and delivery to the consignee, 11. H. Wessel & Co. By the express terms of their bill of liiding.it was the duty of the carrier to deliver it oidy to the consignee named therein. By the invoice and letter of advice sent to the coDHlgnees, iiunu'diately before the Rhlp- mcnt, it is very clear that the conBlgnurs had a|)propriated the pork shipiied and the net proceeds of its sale to the (lartial discharge of their indebtedness to the con- signees, for cash previously advanced. They expressly say: "We deliver you this load on out indebiednesB." The consignors of this shipment had not only the right, but, under their contract with the consignees, it was their duty ao to a|)propriate it. The relation of the parties to this Hhl|)- ment differed ;n no substantial respi-ct from that of the case in *'hich goods are shipped by a vendor to u purchaser, who has jjreviously ordered and paid for them. And iu such n case it is wellsettled that the delivery of goods to a common carrier for conveyance to the purchaser is equivalent to a delivery to the purchaser himself. The carrier is, in that case, in contemplation of law, tlie bailee of the person to whom, not by whom, thegoorls are sent; the latter, in employing the car- rier, being considered as the agent of the f.irmer for that purpose. Ueuj. on Sales, sec. J81, and the numerous authorities there cited. By the terms of the letter of advice, in this case, there can be no doubt that Stephens & Bro., by delivering the pork to the carrier, intended thereby t<i invest the consignees, Wessel & Co., with the full and rightful pcissession. and the absolute jus disponendi of the property, for the purposes of their contract. They intencU'cl to retain no interest even in tlie proceeds of its sale, other than the right to have the net amount applied In partial satisfaction oi their indebtedness to the consignees. .\nd to this intention a controlling effect must l)e given. Kro- erv's Sons v. Irving National Bank, 25 Ohio St. oGO. It is claimed, however, by rounsel for plaintiff in error, that. Irrespective of the intention of Stei)hens & Bro .in their slnp- inent of the pork, by taking the bill of lading in their own name, and retaining its pcssessicn, they rescrveil forthemselves ttie power to dispose of the |iroperty, and vest the title thereto in any bona tide pur- chaser by a simple delivery of Hie bill of lading, and that they, therefore, remained the owners of the property, in contem|ila- tion of law, until It came to the actual possession of the consignees. But we think this position can not be maintained. A bill of lading, though transferable by delivery, like commercial pai)er. "is unlike commercial paiier in this— theassigneecan not ac(|uire a better title to the property thus symbolically delivered, than his as- signor" had at the time of assignment. " Kmery's Sons v. Irving National Hnnk, supra', p. y(i>>; BenJ. t>ii Sales, sec. StM. Hence, as Ste|d)ens & Bni.. uniler the circuuistnnces of this case, had parted with all right of control over the proper- ty in (jui-stion, they could confer no such right on anolher by n trniisfer of the bill of lading. We think the evidence in the rase shows tlirit at the time of the levy of the attach- ment, the property in (juestlon was con- structively in the possession of delendant 782 STRAUS V. WESSEL. in error, who had the full and sole power of disposition over it, and the right to re- tain the proceeds of its sale. The authorities cited by counsel for de- fendant in error fully sustain these views, and justify us in saying that the judgment of the court below must be affirmed. Judgment affirmed. STUAKT V. WILKINS. 785 STUART V. WILKINS. (1 Doug. 18.) Court of King's Bench. Michaelmas Term, 177S. The two first counts in the dccliirntioii in tliis CHBo were nH tolloWH:—" David Stuart cuniplaluK (if JanieH WilkinH lieinj;, &c. For tliat whrreaH tlic said .lami'.'*, on tlic (ii-Ht day nf Feb i' nary, in the year of our I-oril 177s, at llatlield, in the coun- ty of Ilertfurd, offered to Hell to t he Haid David, u certain niaro of him the naid JanicH, and wliereupon afierwarilH, to wit, on tlie (lay and year aforenaid. at Hatfield aforesaid, in the touniy afore- Haid, in consideration that tlietsaiil David, at tlie Hpecinl instance and re(|neHt of the said JanieH, would liuy of liini the waid .JaniCK, the said mare, at and for n certain lar;j;e priceor Kuni, to wit, tlie price or sum of j;:!l. IOh. of lawful money of (ircat I'.rit- ain, to he paid by tlicHaid I)a\ id. to tlicKaid .lanjCN, when he the said David HJiould he thereiint(j afterwards rciiuested; In- the said .lames undert(jok, and then and there faithfully promised the sain David, that the said mare was sound, and the said ])avid in fact saith, that he, conlidint; in the said i)r(in)ise and nndertakinK of ilie Haid .lames, ko hy him made a8 aforesaid, afterwards, to wit, on the same dn.v and .vear aforesaid, at llatlield aforesaid, in the county aforesniil, at the sfiecial in- stance and reiiuest of the said .lames, did buy of tlie said .James the said mare, at and for the said price or ■sum oi i;;Jl lOs. and did then and there pay to tin; said .lames the sum of t.'.") .">s. part of the said sum of iljl Ids. an<l <lid then and there un- dertake and faitlifully promise the said .lames to pay him the further sum of t'i ."is. residue of tlie said sum of VM Ihs. when he the said David should be thereunto aft- erwards reiiiiested. Yet the ssiid .lames, not reRardinsj his said promise and nuder- tnkint; so hy him made as aforesaid, hut eontrivinK, and fraudnlently intending to injure the said Daviil in this tiehiilf, did not regard his said piomise and undertak- ing so l(y him made asaforesaid, hutcraft- ily and snbtilely deceived the said David in this, that the said mare, at the time of the niakini: the said promise and iinder- takiiiK of Ihe sni<l .lan;es, was not sound, but, on tlie contrary thereof, was un- sound, and was atllirlecl with a certain mnliidy or disease, called the windyialls, to wit, at llatlield aforesaid, in the coun- ty aforesaid; whereby the said mare then and there became, and Is of no use or viiUh! to the said David.— .\nd whereas also the said .lames, afterw arils, to wit, the same day and year aloresaid, at llat- lield aforesaid. In the county aforesaid, in consideration that the said David, at the like instance and reiiuest of the said James, boufiht of him the said James, a certain other mare of him the said James, at and for a certain other larire price or sum, lo wit, the sum of .CM 10s. of like lawful money, and had then and there paid to the said James, the sum of V2T> ."is. in part of the said last mentioned sum of .V.n 10s. and had then and there undertak- en and promised to pay to the said James LAW SALKS — 50 the further sum of £(> 5s. residue of the Hald last mentioned sum ot £:)! lUs. when he the said David should be thereunto afterward* i'e(|uested, he the said .lames undertook, and then and there faithfully promised him the saiil David, that the said last nientioned mare was sound.— Yet the said James, not reKardinj; Ids said last men- tioned promise and undertakinuso by him made as lant aforesaii!, but contriving and fraudulently intcndliiK to injure the said David in this behalf, diil not retiard his said promise and undertaking ho liy him made as last aforesaid, but craltily and subtilely deceived the said Dutiil In this, that the said last inentluiii'd mare, at the time of the mnkiiiK the said last inen- tioudl promise and uudertakiim of the sail! .James, was not sound, but then was unsound, whereby the said last mentioned mare became, and is of no use or value to thesaid David." — To these wcie add-d a count for money laid out and expenih-d. and an(jther for money had and received. — The cause was fiiecl at the assizes at Hertford, before Lord Manslield. and a verdict found for the pluintift; but theev- idencetti%en beinKof an express warranty, and a doubt bein^ raised, whetrier, in such a case, this was a proper f(irm of action, the verdict was taken subject to the olilu- i(ni of tlie court on that (luestion. Cpon a motion for settimr aside the ver- dict, anil entering a nonsuit. Lord .Mans- tiild said, that it had been su«ueste(l, that the form of this deiliiration arose from a determination of his at the same place about twentv years niio, but that, he said, was a case of a clear fraud, and was declared on a." a fraud. Cause was now shewn ajjainst makiiiK the rule alisolute. Kenipe, Serjeant, and MorKnn. for de- feudnot. Lord M.\.VSF1ELD,— The declaration struck me as particular, in depurtinj: from the old rule of deelnrinK e.xpiissly on the warranty. A warranty extends to all faults known and unknown to the seller. Selling for a sound iirice without warran- ty nin.v lie a jj;ii>und for an assumpsit, buS, in such a case, it oujiht tn be laid that the defendant knew of the unsoundness, [n] I left it to the jury as on a warranty, sub- ject to the opinion of the court, whether a nonsuit should not be entered. I aiii told bv the learned judjies on my left hand (.\SIIIIFUST, and lULLKIt, Justices,) that this sort ot declaration, wherea war- ranty is to be proved, has been practised for twenty years, and that it Is made use of with a View to let in both proofs, if nec- essar.v. ASimrUST, Justice,— Whatever may have been the old form. 1 lielleve It liaa been lonn settled that this form of action is rlitlit: and. havini: lieen lonK estal)- lished. I am of opinion that it ouKhC to be supported. There may lie cases where tlie count for monev had and n-eeivcd may t>e of use to the plaint iff. and the warranty including a promise, u.ay btj declared oD as such. 786 STUART V. WILKIXS. BOLLER, Justice,— This mode bas been ID use ever Hinee I have known any thins of practice, and ray Brother ASHIIUKST remembers it much lonser. Tliere is no objection to It, in point of form, which could prevail even on a wppcial demurrer. Promises are not all executory. Uo not «II our books make a distinction between Ijroraisea executed, and promises executo- ry; — that in one you may traverse the consideration, in the other not? Because another action would lie, it does not fol- low that this will not. It was determined in Slade's Case, that there may be differ- ent actions for the same injury. i The rule discharged. >T. 44 Eliz. 4 Co. son. 2 East, 446. 1 b. See Williamsoa v. Alii- STUBBS V. LUND. 789 STUBBS V. LUND. (7 Mass. 453.) Supremo Judicial Court of Massachusetts. Cum- berland. May Term, 1811. Itoplevln of a (luaiitity of hhU and coals. TlKMli'fcnilant ploatlH inbartliat tliusaiil Halt and (M)alH were the iiropci- (;oo(ln and chattels of Letnucl Weeks ami Williain ('. WeckK. travePHi'M the properly of tlie plaintiff, and |)rn.v« a return to lie nd- jiii1i;imI him. with his ilaiiiaues and costs. — 'I'lie plaintiff tenders an issue on llie traverse, which Is j(iine<l \)y the defendant. This issue was tried before Tiia teller. .1. at an adjournineni of the last .May term in this county, and a verdict found for the plaintiff, aKreeatily to the ilirections of I he jtidue, to which directions the de- fendant tiled his exceptions, which were al- lowed hy the jiidjre. From the exceptions it appears that the Jionse of Losan, Lenox A- (Jo. nt Liverpool in KtiKland, of which the plaintiff was one, had shipped thecarjio of salt and coals on hoard the sliip Henry, .Joser>U Weeks master, on the credit, and on the acccnint ami risk of the said I^. A: W. C. Weeks, and consigned the same to them or their assif^iis. for which the nuister has Klxned hills of ladin;;: but hefore the ship had left the port of Liverpool, the shij)- I)ers, lieinK informed of the insolvency of the consisnees. refused to let the ship sail under the said sliipment of the car^o. Afterwards on the master's siKnintr other Mils of ladinu;, ackn<»wled!;inn the cari;o to be shipped by the siiine persons, con- filKiied to the plaintiff, the master was permit ted to sail. There was shewn in evidence to the jury an agreement between Lotran, Lenox & Co. and L. & W. ('. Weeks, by which the former contracted to accept t he drauirhts of the latter, or to advance them carjioes on credit, to a limited amount; — also a to|iy of an account current, in which the carno in (lU'-'stion was char;j:ed by the former to the latter. The defendant Is a flepufy sheriff of this county, and had at- tached the Roods in question as the prop- erty of the said L. & W. C. Weeks, nt the suit of Daniel Tucker, in an action brt)U{;ht Mlion seveial iiromissory notes. Tlie motion of the defendant for n new ti lal. iiroundi'd on the supposed misdirec- tion of the judne, was arj^ued by Whit- man and Hopkins lor the defendant, and Mellen and ICmery for the iilaintiff. The action was continued nisi, and the otiinlon of the court was delivered in llos- ton, at an adjournment of the last March term, by r.MSS'tN.S. (". .L The title of the |dain tiff is .idniitted to be K 1. '>" "le consi>;n- or.s hail umler the circumstances of this case, a rlulit to stop the <;oods in ((uestion in transitu. To this riy:ht the defendant has made two obie<'tions. 1. That the Kencrnl credit Riven to the original consignees by the consignors, whicli is stated ut large In the exceptions. had excluded the conslRnoni from the rlRht of stopping In transitu goods shipped and conslgneil pursuant to that agreement. — Hut In our opinion this ob- jection cannot prevail. That agreement cannot bind the consignors after the In- solvency of the consiRnees: the credit con- templated being |»redicated upon the sup- posed ability of the consignees to pay at the expiration of the credit. And a credit, given under such an agreement, can have no other effect on this i|uestion. than the credit given under the first bills of lading. L*. The i)tlier objection Is, that tie con- signees being either the owners or the hirers of the ship Hi'nry, as soon as the goods were received on board Hint ship, and bills of lading signeil by the master. there was no further transit, the goods being In the possession and custody of the consignees. And to support this olijec- ti<in, it was urged by theilefendant 'scoun- sel, that the right to stop in transitu ex- tends only to gufjds ship|ied on board u general ship. We tliink this objection cnnufit prevail. The right of stopping all goods shipiied on the credit and risk of the consignee re- niains until they c<ime into his actual pos- session at the termination of the voyage, unless he shall Iiave previously sold them bona tide, and endorseil over the bills of lading to the purchaser. And In our opin- ion, the true distinction is. whether any actual possession of the consignee or his assigns, after the termination of the voyage he. or be not provided for in the bills of lading. When such actual posses- sion, after the termination of the voyage, is so provideil for, then the right of stop- ping in transitu remains after the ship- ment. Thus if goods are consigned on creilit,and delivered on board a ship char- terecl by the consignee, to be importeil by him, the right of stopping in transitu ccn- tinues after the shipment [Hohlllngk v. Inglis. a ICast. :!S1] : but if the goods are not to be imported by the consignee, but to be transported from the place of ship- ment to a foreign market, the right of stopping in transitu ceases on the ship- ment, the transit being then completed : because no other actual posscsKMui of the goods hy the consignee Is provided for in the lulls" of lailing, which express the terms of the shipment [Hodgson v. Loy, 7 I), vt K. MJ.] The same rule must govern, if the con- slgm-e be the shipowner. If the goods are delivereil on board his ship, to be carried ■to him. an actual i)os(-cssion by him after the delivery is provided for by the terms of the shipment : but if the goods are put on board his ship to be transported to a forelirn market, he has on the shipment all the possession contemplated in the bills of lading. In the former case the transit continues until the termination of the voyage; but in the latter case the transit ends on the shipment. We think also Hiat the same distinction must exist In the case of a general ship.— If a ship sail from lids country to (Ireat Itiitain, with the intention of taking on board goods for divers persons on freight, tt) be transported to a foreign market, as 790 STUBBS V. LUND. the mercantile adventurosof different ship- pers—if goods are so shipped by tlie Bev- eral consiKiiorH, there is no triinsit to the consignees after the shiptuciit; and no right of stopping remains with tlie con- signors. But it is otiiprwise when several persons import goods in a general ship on their own credit and risk, for a future actual possession by them is provided for in the bills of lading. Upon the best view wo have been able to give the case before us, we are satisfied that the verdict is right, and that judg- ment must be entered upon it. STURTEVAXT v. OUSER. 793 eXURTEVANT v. ORSER. (24 N. Y. SaS.) Court of Appeals of Now York. June, 1802. Actinn to recover a (|iiiintiry of oil nt- taehed in the IuiikIh of a WiirehoiiHcinun l)y creditorH of tin; vendee. I'iniiitiif had u verdict for the value of the oil, the gen- eral term iillirined the judgment, and de- fendant appealed. W. IIMhh, for appellant. K. Terr^', for renpondent. SMITH,.!. The delivery of the oil on board the vendee's ship at New Bedford waH un(|nestional)ly « delivery to Wiiii;. and vested the proi>erty in him. 'I'lie IH'operty, it Ih trne, wan to be tranKported to New York for wale, hut it waw to lie tran.siported by the vendi e liiniHeK, who could have changed itH dcstina tiiin or Hold it aliKolutel.v on Khiplioard. After Kuch delivery it was not nnliject to Hto|;pajj;e in tranHltu. for it was not in tl)e handn of a carrier or iniddle-nian. (lngli.s v. Iwher- wood, 1 ICa^t. ."il"): Turner v. TruHteeH of Liverpool 1>oc1<h, (i Knu. Law & Ki\. .")15; ()y:le v. Atkinwon. .") Taunt. ".">'.».) But if this were not so, tlie vendee could not exercise the rislit "' stoppage in trans- itu, and the venilor made no utti'm|)t fo do so. (Story Cont., § nK;.) The plain- tiff's right to recover the oil must, there- fore, lie put upon other grounds to lie sus- tained. The case is quite parallel to that of At- kin v. Marwick (1 Strange, ic..".). In that case the defendants were mercers, living in London; and Cripps & Co.. the assign- ors of the plaintiff, were traders at I'cn- oyer, in Cornwall. On the 7th of April, 171."). the ilcfcndants, upon the order of Cripps iV: Co., sent them the goods in con- troversy, and gave lliem credit (intheii* books for the amoiinl. On the Istli of iMay.Cripps \- Co., without the knowledge of the defendants, deposited the goods with a third person for the use of the de- fendants. On the tith of .lune, Cripps \- Co. wrote a letter to the defendants, staling that theii- affairs were in a bad condition, and that, for that reason, they thought it not rciisunable that the last goods should goto other creditors; and that they had, therefore, not entered tlem in tlieii' liooks, hut left them with a .Mr. Penhallow, who had orders to deliver Ihcm to the defendants. On .Inne !tth a couimission of liankruptcy was issued against Ciipps & Co., and their effects as- signed to the iilninliffs. The letter of Cripps \ Co. to the defendants ivas not re- ceived by them till the l.lth of .lune, which was the first notice they had of the deliv- ery to I'enhallow; and they immediately Klgiiitied their consent to tr.ke the goods again. This case, in all its essential particulars, is like the present case. The good-i, as in this c;ise, were delivered to, and the title vested in. the vendee: they were deposited with a third person by the vendee for the use of the vendor before the riglits of the creditors at Inched, and w ritten noticeof RHch deposit and of the failure of the ven- dee slven to the vendor, and the Roods aetiinlly attached before the vendor at- tempted to reclaim Ihr-m. In the decision of the case of Atkinv. Uarwick. the chief justice hold that " the delivery to I'enhallow to the use of the ilefendants before the oct of linnkruptcy, and grounded on a good consideration, transferreil the absolute property to them." Fortescue, .1., said that payment in satisfaction of the debt was a good con- sideration, and "we will intend an accept- ance till the contrary appears." Ivy re, J., said: "The precerlent delit is a siillicient consideration, and it vests before notice [the title he means]; for, it being to his iienetit, a disagreement shall not be pre- sumed. " I have quoted this case thus fully be- cause it is a leading one, and. If good law, is quite conclusive of the case now under consideration. This case of Alkin v. Uar- wick has been mucii discussed and much questioned, lint not in any case overrulecL In Ilarman v. Fishar (1 Cowp. rj.")|. Lord Mansfield said of it, tliat. " with respect to the case of .\tkin v. Itarwick the judgment f.ecmed right, but the reasons wrong." In Neate v. Hall {2 ICast. Il7i. Lord Ken- yon discussed it, and said that Lord Mans- field had extracted the true ground on which that judgment, if it did not proceed, ought to have proceeded; naiuMly. that the trader, finding himsilf in failing cir- cumstances, very honestly did not accept the gooils. but relnrni'd them. I!ut this distinction is obviously unsound and un- tenalde. Tlie bankrupt had the goods In possession for some time. They were sent him the 7th of April, and were in his pos- session, and sent by him for deposit with a third person on the isih of .May, more than forty days after being delivered to the vendee, or to the carrier for him ; and were in his actual iiossession when so de- Iiosited. The title to them had alisolutely vested before s\ich deposit. They were not intercepted by the way, or the order of purchase countermanded before the actual receipt of the goods. Hut Lord Kenyon, and the whole court of king's liench. did recognize the case of Atkin v. Uarwick as sound law in Suite v. Field (.") T. K. I'll). Speaking of the case under consideration. Lord Kinyon there said: "I cannot distinguish this case from .Atkin V. lii.rn ick on principle; for in that case there hi.d been a d< livery of the goods by the seller, with the coticurrence cf all the |)artieB interested. liut the ugreen cut of the jiarties to rescinil that contract put an end to the siile. as if It had never taken place." Aslihnrst, .1., said : "The case lu Strange appli«'.s to the present case." Ituller, .1.. saiil • "The prineiiile on which the case of .\tkln v. Itarwick was ilecideil governs this." InSmitli v. Field (.'■ T. !{. Ai)'2) the same court again atHrmed the case ft .\tkin v. Itarwick. ami recogidzed it as sound law. The case has also been questioned in our courts. In Iti-rly v. Taylor (.'■ Hill, .'AD, Judge Hronson dis- cusses it, and. after referring to the vari- ous cases, says of it. that, "although It seems never to have been overruled. It would be ditlicnlt to suppoi't It ui)on prin- ciple without altering some of the facts " 794 STUKTEVAXT v. ORSER. But this was in a dissentius: opinion. Anfl ill the same case, Judge IJowen, who gave the opinion of the court, conHider.s and discusses the case. !uul decliires tliat It has never been overrnleil, adopts its reaH(inin<>;, and atlinns the p!inci[)le upon whifli il was decided, as the same leanied judtfe lia(i done liofore in Ash v. Putnam (1 Hill, 310), where there was no dissent to the decision oroi)inion. Speaking then of thecase of Atkin v. ISarwick, he says: "There was either a resale or rnscissinn, or a refusal liy the vendee to accept, fall it which .vou please, the effect is the same. In one case, the ijioperty is revested in the vendors; in the other, it was never di- vested." The difficulty in all the class of cases hke the present has been to Hx the point of time w lien the title of the vendor became revested. The right of rescission, or re- Hale, is undoubted; but the (luestion is, whether the rescission or resale is con- summated before the as«pnt of the vendor to such rescission or resale is actually given or expressed. The moment the minds of the vendor and vendee meet on the question, it is conceded, the contract is rescinded, or the jiroperty resold and the title revested. If the vendor was pres- ent at the same place with the vendee, delivery to him by the vendee in .-elinqnish meat of the contract c)f purchase would, of course, completely restore hiu) to his orig- inal rights of iiroperty; but when the ven- dor and vendee live in different places.it has been claimed in many cases that the purpose of the vendee to restore the prop- erty was ineffectual, till the consent of the vendor to the rescission of the contract was given, and that, intermediate that period, the title remained in the vendee, and was subject to attachment or est-cu- tion at the instance of his creditors. That is the precise question now presented in this case. rpon llie principles which apply to sales, it is abstractly true that no title can pass till the bargain is comi)lete, and that a contract is not consummated till the minds o! the parties meet; and. strictly, this sale must also apply to agreements for the rescission of a contract. It is only upon the doctrine of relation, in such cases, that the title can be held to pass at the time of the deliverj- of the goods to the tliird person. This doctrine is gen- erally alleged to apply in cases of trust; and it is upon this ground that the title can be held to iiass at the moment the trust is created, as with cases of assign- ments in trust. Lord Mansfield in Alder- son V. Temple (4 liurr. I'l'o'Ji, puts the case of Atkin v. Barwick on the proper ground. He said: "The court of chan- cery would have interposed and said ' the assignees should not have thegoods with- out paying the price.' I think the deter, mination was right; and there was an actual delivery to a person who became a trustee." The direction to hold in trust for the vendor, and to deliver to him, accompa- nied by a delivery to the warehouseman, as was done in this case, and that of Atkin V. Barwick, is a tarol transler or assign- meut of the property to the vendor, and vests the property. The doctrine of rela- tion in such case. Judge Cowen says, in Berly v. Taylor (supraj api)lics to a deliv- ery of goods in trust. The delivery was held, he says <if Atkin v. llarwick, to vest the property of the goods in then) (the vendors) immediately, sul)ject to lie di- vested by the dissent. This was on the ground that the trust was beneficial, and the presumption was allowed although the vendors at the time knew nothing of the transaction. This. I think, presents the true ground upon which the plaintiff's claim may se- curely resf. The <lelivery of the oil to Kelly, with directi<in to deliver it to the plaintiff, was a delivery by Wing to the plaintiff, and vesteil the title in liim, unless he expressly disaffirmed the trust in his favor. The trust was irrevocable by Wing. He parted with all claim in or title to the property. He ilid all in his power to restore the property to the ven- dor. He acted with an honesty which ought to be encouraged and commended, not overreached and nullified by any manner of teclmical rule at variance with equity and common justice. Rut tlie plaintiff's title to this oil can be sustained upon the narrow ground men- tioned by Lord Mansfield in Harman v. Fishar (1 C(j%vp. ]!'.">), and stated by Lord Kenyon in Neate v. liall (2 East, 124 1, that tlie vendee "did not accept the goods." Wing, in this case, before the goods ar- lived in New York, refused to take them upon the purchase, provided for their storage with Kelly and delivery to the plaintiff, and immediately advised the plaintiff of tlie fact. Wing then had the gdods under his personal control after they arrived at their place of destination. He restored them to the plaintiff in the only «ay practicable under the circum- stances. « I think the judgment below right, and that the same should be affirmed. DE.NIO, J. The law of stoppage in transitu has no application to this case. The oil was delivered to the purchaser on board his own vessel; and, moreover, supposing it had ever lieen in the hands of a carrier, it had arrived at its destination, and ha<J i)assed into tlie actual posses- sion, or at least had come under the abso- lute control of the plaintiff ; audit was in no sense on its passage to him. If the judgment can be sustainel, it must be either upon the ground of a rescis- sion of the contract by the mutual con- sent of seller and purchaser, or of a recon- veyance ami redelivery of the goods to hiui, or to a third person for his use, in pay .Tien t of the debt contracted by their purchase, and by way of preference in fa- vor of the plaintiff as acreditor; and I think it can be sustained on the first of these grounds. The statement of facts is not as precise as could be desired ; for it is not stated in it whether the plaintiff's clerk had or had not such a control of the business of his principal as authorized him to act u[)on the communication of Wing; nor what determination became to upon the r(»ceipt of Wing's letter; or what he said to Wing when he saw him on the STURTEVANT v. OU.SEK. 795 loth of July. If helind thegeneral author-' ity of a inanat;lii« clerk, in the ahHCiifi- of bin principal, anil if he inutu'iliatfly electeil to take back the Ko'xlft in (iiirHiiance of tlio offer of V'.'inji. ami cuniinunicuted that (leterniination to Win;?, and went ahout HccurinK the actual possi^ssion without unncoeHsary delay, I tliiiik that would he a HUllicient resiindiiiK of the Male. An the letter of Wins did not nicnliou the place where, or the perwon with whom, the oil waH stored, the only tiling which the clerk could do waH that which, in effect, he did do, namely, to Bee Wins, and «hcer- tain these necPHHary fact.s. 'I'lilHcould not he brought about in time to send to New York until after the sc^rvice of the attach- ment. l!nt if the clerk, with Mullicient au- thority, consented to receive back the oil, and comniuuicate<l such determination to Winjr on the 10th, when he went to Falmouth, I think the sale wa^ rescinded; and althou^ih the attaciiTuent was levied on the same day, it does not appear that it was ijrior to the interview with Wing. The cases of Salte v. Kiehl (5 T. H. L'll) and Smith V. Field (Id. 4(tL') are in point. By the application of the rules by which we examine cases brought here upon statements of facts, I think we ought to intend that the circumstances which I have suggested as necessary to a perfect rescission existed in this case. It is in- cumbent on the party apjieallng, to show that the judgiuent is contrary to law; and It is not sutlicienl that the case is so imperfectly stated that the law ui)plica- ble to it cannot be ascertained. If we ap- jilied to such cases the principles by which special verdicts are tested, scarcely a judg- ment which is brought before us could be sustained. In cases of special verdicts the inquiry is, whether facts enough are found to sustain the judgment. If not. It is re- versed. But in such cases as the present, the question is, whether, upon the facts stated, we can adjudge that the judgment is contrary to law. Unless we come to such a conclusion, the Judgment must be an uflirmance. The facts which arestated in this case are perfectly conslHlent with those which I have considered as essential to constitute a rescission of the sale. The clerk acted as though he hud authority to accept tlie offer of Wing, contained in the letter; for he sent a message to .New York to the plaltitlff's corrcsponilent to take possession of the oil as soon as he uscer- tained where it was storeil. He acted througliKUt as though cletermitied to ac- cept the offered abandonment of the pur- chase. It is not found, in so many words, that he told Wing that he woulil take the property hack ; but it is stated tlint the object of his journey to Falmouth, where Wing was, was to ascertain where, that is, in what storehouse, or with what per- son, tlie oil was storeil; and immediately on his return hedispatched theielegraphic message to New York to take the deliv- ery of it lor the plaintiff. Tlie idea that the message to those correspondents was to make a seizure under the law of stop- page in transitu is not found in the case; and it is itnprobable, upon the facts which are found. It would l»e ai)surd to 9t- temiH to make a seizure under the law of stoppage in transitu when the goods had reached the purchaser's hands at the place of destination, and he had placed them in the bands of a third person for tlie use of the seller, and hud given him notice to come and take lliein. The facts actually found being in harmonj- with the suppo- sition that the clerk notilied Wing that the plaintiff accepted his offer, it was the business of the defendant, if he would Im- peach the jiidgmenl, as being against law. to liave procured a statement which should have altlrmed the disputed fact to be such as he assumes it to be. For these reasons, and without examining the fur- ther questions ulluiled to, I am for the Htllrmnnce of the judgment of the supreme- court. All concur in the judgment. SWAN WICK 0. SOTHEKN. 797 8WANWICK et al. v. SOTHERN et al. (9 Adol. & E. S95.) Court of Queen's Bench. Hilary Term, 1839. Trover for Hii's buHholB of outn. PleaH. 1. Not Kiiilty 2. That the oiitH were not the (ironerty of the pliiiiitiffH in niiinnet JUKI form, iScc. iHsueH tliereon. t)n tlie trial l)efore I'attt'Hon, J., at the [..iverpiiol spriMK assizes, ls;!7, the material farts ap peared to l)e as follows. The [iliiiiitifrs were ciirn dealers at Manelie.ster ; the de- feadants carried on the hiisiriess of whurf- intters at the Duke's tjiiay, in the same town. The oats in (lUPKtion, beinj; in a warehouse of the defendants, were sold by Turner and Co.. the owners, to .John Marsden, anil the following delivery order Siven, addressed to tlie warehouse keeper. "Mr. \Vm. ICaton, Duke's 'iuay, deliver Afr, .I(din Marsden IOl's IL' 4.'i bushel oats, bin ■II). (). W., anil you will please wei^li them over and charne us the expense. Oct. od, ls:i(>. Joseiih Turner and Co." The warehouse keeper entered this or- der in his book: and on Oetolier .'ith he received the following order from John Marsden. "Mr. \Vm. Eaton, Duke's Quay. Deliver Messrs. .Swan wiek and Hall lO'JS rj-4.'ibtish- el oats in bin 4(1. (). Warehouse: and let them be wei;;heil over and send a note up: I will see it i)aid. Fr. and .Ino. Marsden, Manchester, 5tli Oct. ls:!i). " Swanwick and Hall, the plaintiffs, ac cepted a bill drawn, by Marsden, (_)etol)er 7tii, l.s:!(i, for the value of the oats, which was dul.v honoured. Eaton entered the order of October ."«th in his Ijook. and said to the party delivering it, that all would be right, and he woulil attend to the cir- der. The oats were transferreil to the plaintiffs in the defendants' books, but williont weighing over. There were no oats in bin -la but the iiuautity nientior.ed in the order. ICaton stated, at the trial, that from the .".th to the I'Jth of October the oats would have been delivered to the plaintiffs if reipiired. .Marsden hecom- iug ins(dvent. Turner, on October IL'th, gave the defendants notice not to part with the oats; and, on the 14th, the de- fendants gave them >ip to Turner on an inileninily. At that tia-.e, iuid not before, they were weighed over, and they were found to be two bushels short of the weight mentioned in the orders. It was proved at the trial that thedefendants did not consider themselves bound to weigh, and were not used to weigh, till delivery, when the grain was weighed to ascertain any loss of (inantity. The (IUl''*^""" ""'*• whether, without weighinj;, tlie property was sutliciently transferred to vest in the l)laintirfH: or whether, on Octolier 14th, Turnerstill had a right to stop in transitu. Potteson .1.. thought that, on the atmve state of facts, the plaintiffs were entitled to recover, but he gave leave to move for a nonsuit: and the iilaintiffs had a ver- dict. In Easter term, ls;!7, u rule nisi was obtained for u nonsuit or a new trial. In Hilary term, 18:il». CresHwell and Tomlinson showed cause. Wightman and \V. H. Watson, contra. Lord DE.V.MAN, C. ,J. The .luestion In this case turns upon th- construction of two delivery orders. [His lordship then rea<l the orders set out, p. IJl'l, ante.] The oats were all that were in bin 10. They were transferred to the plaintiffs In the defendants' books, but never weighed over. The plaintiris had accepted a bill for the price, which tln^y duly honoured. On Mnrsdcn's failure, .Messieurs Turner s.)iiglit to stop them; and the oidy ipies- tion Is, whether weighing over was in this case necessary, in order to ve.st the prop- erty In the plaintiffs and defeat the stop- page in transitu. .Neither of the conlraetg of sale were given in evidence. The cases on this subject establish the principle that, wherever any thing re- mains to be done by the seller, which is essential to thecomiiletion of thecoiit ract, a syniliolical delivery by triin^fiM- in the whartiimer's books will not defeat the right of stoppage in transitu as between liuyer and seller. Hanson v. .Meyer. fi East, f;i4; Sheplev v. Davis. ."> Taunt. (;17, (1 E. C. L. IC -Jll ;) "liusk v. Davis,:; .M. & S. :t".t7. abundantly show this. Therefore, if part of a bulk be sobi, so that weighing or sep- aration is necessaiy to determine the iden- tity or individuality (as Eord lOllenbor- ougli expresses it in I'usk v. Davisi of the article, or if the wh(de of a ?('.mniodity be sold, but weighing is necessary to ascer- tain the price, because the i|uantity is un- known, the weighing or nieasnrinir must lirecede the delivery; and the s.vmb<dical delivery withi>ut such weighing will not be sullicient. I!at where the identity of the goodHand the (|uantiiy are known, the weighing can oal. be for the satisfaction of the buyer, as was held In Hainmond v..\nder- soii, 1 New Kep. (HI; an<l in such case the transfer in the books of the wharlinger is sullicient. We are of opinion that the present case is of the latter description, and that this |tropert> passed as between buyer and seller. We have therefi)re no occasion to resort to the doctrine of es- toppel, which is Hti-oiigly enforced in Hawes V. Watson, L' It. A: C. r>40; but we do not iiiean. in so saying, to cast any doulit upon the authority ol that case. I'nder these circumstai.ces, the rule for a nonsuit must Ite dii-charjiod. Uule discharged. SAVIM 0. WILSON. 799 SWIM V. WILSON. (No. 12,0.34.) (27 Pac. Rep. 33, 90 Cal. I2H.) Supreme Court of California. July 1, 1891. In bank. Appeal from Riipcrlor court, city and county of San Francisco; Joh.v Hi; .NT, Judge. Wilson & Wilson, tor appellant. TilOeii & TUdea, for respondent. De Haven, J. The plaintiff was tin owner of 100 shares of stock of a niininr corixjration. issued to f)ne II. 15. Parsoiih trustee, and pi-ujierly imlorsed liy liin Tliis stock was stolen from plaintiff hy aii employe in his oltice. and (lclivere<l (or s;ili to the defendant, who was cnKa;;ed in tlu liusiness of buyiiiK and selling stocks oi commission. At the time of placing tli stock in defendant's possession, tlie thie represented himself as its owner, and the <leleiidant relyiiK ujion this represent.-i tion, in tcood faith, and without any no tice that the stock was stolen, sold tli same in the usual course t)f husiness, am' Knl)se(iiiently, still without any notice th,i the ])ersf)n forwhom he had acted in nial; iuf:: the sale was not the true owner, paii over to luni the net proceeds of such sale Thereafter the plaintiff hrou(?lit this ac tion to recover the value of said stock, al Iefj;inK that the defendant had convertei the same to his own use, and, the facts as atiove stated appeariim. the co\irt in which the action was tried save judt;ment against defendant for such value, and from this judsment. and an order refusing him a new trial, the defendant appeals. It is clear that the defendant's i)riiicipal did not by stealinc plaintiff's property ac- ipiire any legal rlnlit to sell it, and it is eciually clear that the defendant, jictinR for him and as his rijient, did not have any Rreator riiy;lit, and his act was there fore wholly unauthorized, and in law wji> a conversion of plaintiff's property. "Ii is no defense to an action of trover tliat the defendant acted as the nf^ent of an other. If the jirincipal is a wrouK-doer. the ay.ent is a wrong-doer also. A person is guilty of a conversion who sells the propei'ty of another without authority from the owner, notwitlistamling he act> under the authority <jf one claiming to hi the owner, and is ignor.Mut of such per- son's waiit of title." Kimliall v. Billing- .">r, Me. U7; Coles v. Clark. :$ Cash. :;'.i'.i Koch V. I'.raindi. 44 Mo. .''ill'. In .Stephen- v. IClwall. 4 M;iule i: S. L'.MI. this principli Was aiiulied where an innocent clerk re ceived goods from an agent of his em ployer, and forwarded them to such em- ployer abroad ; and, in renilering his de eision on the case presented. Lord Ki.i.i.N- Monoroil uses this language: "The only (piestion is whether tiiis is a conversion in the clerk, which nndoubtedl.v was so in the master. The clerk acted under an un- avoid;ible ignorance and fcjr his master's beiu'lit, when he sent the goods to his master; but, nevertheless. Ins acts may amount to a conversion: for a persiui is guilty of conversion who intermeddles with my property, and disposes of it. ami it is no answer that lie acted under the authority of another, who had himselt no authority to dispose of It." To hold the defendant liable, under the circum- stances disclosed here, may seem upon first impression to be n hardship ujion him. IJut it is a matter of i-very-<lny ex- perience that one cannot always be per- fectly secure from loss in his dealings with others, and the defendant hero is only in the iiositlon of a person who has trusteil to the honesty of anothr>r, and has been deceived. He undertook to act as agent for one who it now appears was a thief, and, relying on his represeiitatli;nH, aid- ed IiIh principal to convert the plain- tiff's property into niomw, and it is no greater hardsliip to reipiire him to pay to the plaintiff its value than It wouhl be to take the same away from the In- nocent venilee who iiurcdiased and jjaid for it. Ancl yet it is universally held that the purchaser of stolen chattel's, no mat- ter how innocent or free from negligence in the matter, aequireH no title to such property as against the owner, and thirt rule has been applied in this court to the case of an innoeent iiUTchaser of shares of stock. Harstow v. .Mining Co.,<)4 Cal. :}S>«, 1 I'ac. Itep. [H'.); Sherwood v. Mining Co., .'iOCal. 4i:(. The precise question Involved here arose in the case of liercieh v. Marye. !l Nev. :i\'2. In that case, as here, the defendant was a stockholder who had made a salt- of stolen certilicates of stock fvr a stranger, and paid him the procee<ls. He was held lia- ble, the court in the course of its opinion saying: "It is next objected thiit. as the defendant was the Innocent agent of the person for whom he received the shares of stock, without knowltMlge of the felony, no judgment should have been rendered against him. It is well settled that agenc.v is no defense to an action of tro- ver, to which the present acti'm is anal- ogous." Tlie sameconelusion was reaclu'd in Kimball v. Hillings, ."m .Me. 147, the property sol<l in that case by the agent being stolen goveriunent l)onds, payable to bearer. The court there said : " Nor is it an.v defense that the property sold was government bonds payable to beaivr. The l)oii;i tide purchaser of a stolen bond payable to bearer might perhaps defend his title against even the true owner. Hut there is no rule of law th.'il secures initnu- nity to the agent of the thief in such cases, nor to the agent of one not u bona tiijf holder. • • • 'rii,. rule of law pro- tecting hoitii tiilo purchasers of lost or stolen notes and bonils payable to liearer has never been extended to persons not linim lidf purchasers, nor to their agents. " Indeed, we discover no difference in prin- ciple between the case at bar anil that of Rogers V. Iluie, 1 Cal. ."I. in which case. IJk.wktt. .1., speaking for the court, said : ".\n auctioneer who receives and selKs stolen property is liable lor the conver- sion to the same extent as any other mer chant or individual. This is so both tipon principle and authority. I'pon principle, there is no reason why he should be ex- empted from liability. The person to whom he sells, anil who has paid the amount of the purchase money, would be compi-lled to deliver the property to the true owner or |>ay him Its full value; aud there Is no luure hardship lu requiring 800 SWIM V. WILSON. tlic auctioneer to account for the value of the floods than there would be in compel liiifl the right owner to lose them, or the lunrhasor from the auctioneer to i)ay for them." It is true that thin same case afterwards came before the court, and it was held, in an opinion reported in 2 Cal. ."iTl, that an auctioneer, who in the regu- lar course of his Ijusiness receives and sells stolen goods, and pays over the proceeds to the felon, without notice that the goods were stolen, is n<it lialtie to the true owner as for a conversion. This latter decision, however, cannot lip sustained on principle, is op])osed to the great weight of a\itliority, and has been practically overruled in the later case of Orkel v. Wateiman, (!:! Cal. 34. In that case the defendants, who were commission mer- chant's, sold a (luantity of wheat, suppos- ing it to bo the jiroperty of one Williams, and paid over to liim the proceeds of the sale before they knew of the claim of the plaintiff in that action. There was no fraud or bad faith, but the court held the defendants there liable for the conversion of the wheat. It was the duty of the de- fendant in this case to know for whom he acted, and, unless he was willing to take the chancfcs of loss, he ought to have sat- isfied hiniself that his principal was able to save him harmless if in the matter of his agency he incurred a personal liability hy the conversion of property not belong- ing to such principal. Judgment and or- der affirmed. Gahoutte, McFari.and, and Suahp- STEiN, JJ., concurred. Beatty, C. J., and Pathrso.n', J., dis- sented. Rehearing denied. TALCOTT V. IIENDKUSOX. 803 TALCOTT V. HENDERSON. (31 Ohio St. 103.) Supremo Court of Ohio. Dec. Term, 1877. Motion for leave to file a petition in er- ror to the (iistrict court of Cuyaliojra ccMiiity. 'llie original action wjih lire iiik lit ill tlic court of common pieaH of ('uyuliof^a loiinty liy .lames Talcott aKainHt John M. Henderson, nissiKnee of !)<! Forrest & Son, to recover the possession of certain Kootls. Tlie issue in tlie case was in relation t(j tilt! ovvnership of the Koods, whicli the court foiiiul to 1)0 in the defendant. On (letltion in error the district court uf- tirined the judgment of tlieconiinon pleas. The real (iuesti<in in the case is whether there was fraud in the jinrchase (jf the jfoods in controversy from the plaintiff l)y the defendant's assifjiiors, l)e Forrest & Son. The fiillovvin}; facts were proved: Ahout the middle of June, lN7:i, an a^reiit of the pluintiff ( who was a merchant in tlie city of New York) solicited an order for (ioods suitable for the fall trade from I)e Forrest & Son, in Cleveland. An order was Kiven for the floods in dispute to he shipped on or liefore th(? 1st of Septem- lier following;, to be paid for at four months from that date. Do Forrest & Son had kiiowlediie at the time of their insolvency, but the plaintiff was i^fnorant of it. No information was smi<;ht or Riven as to the responsibility of the pnr- cluiscrs. On the L':id of .July, shortly after the goods had been received, I)e Forrest & Son a!-siy;ned to the ilcfcndant, for the benelit of their creditors, all their prop- erty, and the goods in (|uestion, with other goods, were delivered to the as- signee. The stock of goods in the store delivered to the assignee was appraised at fNS.OOO. l)e Forrest showed that the condition of l>e Forrest & Son had not materially changed for 18 months jirevi- ous to the assignment. Their principal creditors were 11. 15. ( laflin & Co., of New Vork, who had extended to them during that period a line of credit to the amount of l|!-'(M),(K)(t, under an arrMngement that it would be continued as long as ('lalliii & Co. could use the paper of l)e Forrest & Son. Mr. De Forrest furthertestitied that, at the time of purchasing the goods in controversy, "my jiurpose was t<i comply with the terms of the purchase we maih' to )icy for them." "I liad no reasun at that time to think that we would not be able to do so. I knew, and had known for the last year, if Clatlin & Co. did not I continue the arrangement, we could not continue to buy; fell we wei'e carried by, a strong party, and I was in hones to see i the trade improve. I should think we were selling at the rate of half a million a year,— $J."),Ol)0 per mouth." Without previous notice, Clatlin & Co., on the L'lst of .Inly, l<S7;i, refused to extend the ar rniigenient with De Forrest & Son any longer; and, on the '2'Ml of the mt>ntli, the general assignnient waa executed as above stated. Hutchins & rnniplie'l. for the motion. Henderson & Klein, contra. .McILVAINE, J. Tlie contention of the plaintiff in error is, that the failure of De Forrest & .Son, at the time of making the purchase, to disclose the fact that their liabilities were largely in excess of the value of their assets, wa-«, in law, such a fraud upon the plaintiff as warranted iiini in a voidiiigthe contract, and reclaim- ing the goo(Js. An intention on the part of tlie pur- chaser of goods not tf) iiay for thens. ex- isting at the time of [lurchase, and con- cealed from the vendor, is, nni|Uestion- ubly, such a fraud as will vitiate the con- tract. I'.ut it Is as certainly true, on the other hand, that, where iii; such fraudu- lent intent exists, tin- mere fact that tlitt purchaser has knowledge that his debts exceed his assi'ts. though the fact lie un- known and undisclosed to the vendor, will not vitiate the purchase. Whether, therefore, a contract of r<ur- chase, where the purchaser fails to dis- close his known insulveiicy. is fraudulent or not. depends on the intiMition of the purdiascr; and \\lietlicr that intention was to pay or not to [lay. is a ijuestion of fact, aii'l not a (|uestlon of law. In thesolution of tiiisi|uestion, though it be one of fact, it is true, iiowever, that cer- tain presumptions arise which are entitled toconsideration and force. 'I'hus. while it may be said that fraud must be [iroved, and will not be presumed, there is a pre- sumption that every reasonable person anticipates and intends the ordinary and probable coiiseiiueiices ol known causes and conilltions. llnice. if a purchaser of goods has knowledge of his own insol- vency, ami of his iiiMliility to pay fur them, his intention not to pay sliould be pre. sunied. I would goastepfarther.and hold that an insolvent purchaser, without rea- sonable exiM'ctations of ability to pa.v. should be presumed to intend not to pay. Indeed, I would not deny that an intention not to pay might be inferred from the mere fact that the |)urchaser had uuUis- dosed knowlcilge ol his gross insolvency; but, in such case, the infereni'e may be re- butted by otiicr facts and circumstances. it is claimed that, in good morals, a liurchaser, knowing himself to be insol- vent, should not accept cre(lit from one ignorant of the lact. WlietluT this prop- osition be true or not, it is enough to sny that the law, in its practical morality, does not afford a remedy for the viula- tion of every moral duty. While, there- fore, a purchase of goods by an insolvent vendee, who conceals his insolvency, with intent to injure the vendor, is fraud- ulent and voidable, yet n purchase un- der like circumstances, save only that such intent is nnsent. is not, in law, fraudu- lent. If the rule of law be not as stated, and the intent to injure be not of the essence (if the fraud in such case, then it would be wlirilly immaterial whether the insolvency of the purchaser was known to hiiunelf; and the rule would lie that all sales to nn insolvent puri-liMser, where the insolvency is unknown to the vendor, are framlulent and volilable. For such a rule, no one would coutenil. .Ml would admit that knowledge by the purchaser of his own 804 TALCOTT V. HENDERSON. insolvency is necessary to establish the fraud. But such knowledge, of itself, is entirely innocent. It is only where con- nected with the eoncealnient of the frtct, that fraud is shown. The simple failure to disclose a fact, nowever, is not equiva- lent to Its concealment. The latter im- plies a purpose— a design ; the former does not. It, tlien, such kuowledKe on the part of the purchaser be necessary to make out a fraud, it is because it becomes the predi- cate of an intent— an intent to injure. True, the decisions of different courts upon this question are not uniform. The discrepancies, however, are not so much on the point whether a fraudulent intent on the part of the purchaser is necessary to avoid the purchase, as to the question of conclusiveness, under the circumstances ofeacli case, of the inference of fraudulent intent, from the facts that the purchaser had knowledge of his insolvency, and failed to disclose it to the vendor. There is no well-considered case, so far as I have examined the authorities, which holds that fraud is conclusively presumed from these facts alone. Where, in addition, it is shown that the appearance and circum- stances of the purcha.ser indicate solvency and wealth, thers are cases which hold the inference of fraudulent intent to be conclusive. Of course, we admit that if the appearance of solvency be assumed for the purpose of deceiving, as in Ford V. At water, 1 Root, 58, the e.\istence of fraud is actually shown; but, we think that where such appearance is entirely innocent, the question of the existence of fraud is still open to further inquiry. From these views, how stands the case liefore us? At the date of the contract, I)e Forrest & Son were largely insolvent. They had knowledge of the fact, and did not disclose it to the plaintiff, wlio was ignorant of it. They were also in pos- session of a large stock of merchandise, and were doing an extensive business. From these facts, it might well be inferred that they intended to obtain the plain- tiff's goods without paying for them; at least, that thej' had no reasonable expec- tation of being able to pay for them at the maturity of their promise. If thecourt be- low had so found, we would not disturb the finding; and, for aught that a|)pear8, thecourt would have so found, if no other fact had appe.-ired in the case. But there was other testimony, tending to prove that De Forrest & Son did, in fact, intend to pay for the goods, accord- ing to the terms of their agreement, and that, under all the circumstances, they might reasonably have expected to be able to do so. It is quite sure that they could not reasonably have expected to be able, at that time, to i)ay all their indebt- edness; but, in our opinion it was not essential to the good faith of the transac- tion, that there should have been reason- able grounds for the latter expectation ; it was enough, if they reasonably expect- ed to be able to pay for tlie goods in ques- tion at maturity. It is quite clear, from the evidence, that the appearances of wealth which sur- rounded the purchasers were entirely in- nocent. It may be that the plaintiff was misled by these appearances; hut, upon this ground, he can not complain of fraud. Where an insolvent merchant is engaged in an honest effort to retrieve his fortunes, the appearance of wealth indicated by his stock in trade is not equivalent to a repre- sentation of solvency ; and one who gives him credit, v;;thout inquiry, has no right to complain of fraud. It was the duty of the court of common pleas, discharging the functions of a jury, to weigh all the testimony; and having done so, and found that there was no in- tent to defraud in the transaction, we, as a reviewing court, can not say that the district court erred in not finding that the judgment of the common pleas was manifestly against the evidence. Motion overruled. • TALVER p. WEST. 807 TALVER et al. v. WEST. (Holt, 17S.) Nisi Prins, Common Pleas. Hilary Term, 1816. This was an action to recover the price of Hoinc trefoil sold by plaintiffs to defend- ant; the invoice delivered to the di'fend- ant was as lollows: " Bought of Talver and PrcHtwieh the halt quantity of four hundred sacks of trefoil, to be made up to twenty-seven tons, at £10 per ton." On the other side credit was given for Kome hops sold by the defendant to the plain- tiffs, and a balance stated to be due to them of £208. The hops were taken in part payment of the trefoil, which re- mained in the plaintiffs' warehouse; no sample or delivery was made of any part and no money was paid; but the invoice had been delivered to the defendant, who read it at the time of the sale. Some months after, the defendant came to the warehouse and asked for his seed ; It was at that time set apart for him in thestore, but it had no particular mark to denote to whom it belonged. Defendant took samples of it, and inquired if it had not bsen thrown down and mixed; he finally refused it. Best, Serjeant, and Comyn, for plain- tiffs. Vaa^han and Copey, tierjeanta, (or defendant. GIBBS, C. J. If the trefoil were Bold to be paid for in part by the delivery of the hops, the plaintiffs should have declared specially, and not for floods sold and de- livered ; but I consider this rase not with- in the statute. The delivery of a sample, which Is no part of the commodity, will not take the case out of the statute; but if the sample <leli\ered Is to be considered as part of ti.e thing sold, it then binds the contract. It is then an execution of the bargain. The sale in this case was com- plete when the invoice was delivered, and the defendant afterwards took samples. He took them for his own use; they were delivered to him as part of the bulk ; not as an ordinary sample to guide his judg- ment previous to a purchase, but in order to give him possession of the thing itself. The statute therefore does not apply. Verdict for plaintiff. TARLIXG V. BAXTEU. 809 TARLING V. BAXTKR. (6 Barn. & C. 360.; Court of King's Bench. Hilary Term, 1827. AHsuinpsit to recover back £145 paid by the plaintiff to the defendant'H use. The declaration containei] couiitH for money had and received, and the other common counts. Flea, general iKsuc, with a notice of Het-off tor kooiIs Hold ami delivered and bargained and Hold. .At the trial before Abbott C. J., at the Lon- don HittinKH after Hilary term, Isi'ij, a ver- dict was found for the plaintiff for £U.j, Hul)ject to the opinion of this court on tlie following case. On the 4th of January 1.S2.'), the plaintiff bouisht of the defendant astaclc of hay be- loajrinK to the <lef(ndunt, and then stand- iufj ill u liild b("l()n>;in« to the defendant's brotlicr. The note Hi^ned by the defend- ant, and delivered to the plaintiff, was in tlitse words: "I have this day agreed to sell James Tarlin^ a stacii of hay, stand- ins in Canonbury Field, Islinjxton, at the sum of one hundred and forty-live pounds, the same to be |)aid on the 4th day of Feb- ruary ne.\t, and to be allowed to stand on the jircmises until the first day of May next." And the following; note'was signed by the plaintiff, and delivered to the defendant. "I have this day agreed to buy of Mr. John Uaxter.a stacli of hay, standing in Canonbury Field, Islinjiton. at the sum of £145, the same to be jjaid ou the 4th day of February next, and to be allowed to stand on the premises until the lirst day of Maj' next, the same hny not to be cut until paid for. .lanunry 4th, 1><25. " At the meeting at which the notes were signed, but after the signature there- of, the defendant said to the plaintiff, " You will particularly oblige me by giv- ing me a bill for the anuiunt of the hay." The plaintiff rather objected. Tlie defend- ant's brother, S. liaxter, on the Nth of the same month of January, took a bill of exchange for £145 to the plaintiff, drawn upon him l>y the defendant, dated the 4th of January ISL'5, payable one inonth after date, which tlie plaintiff accepted. The defendant afterwards indorsed it to Geoige Haxter, and the plaintiff paid it to one Taylor, the holder, when it liecame due. The stack of hay remained on the same field entire until the 20th of .lanuary 1S25, when It was accidentally wholly con- sumed by fire, without any fault or neg- lect of either party. A few days after the tire, the plaintiff applied to the defendant to know what he meant to do when the bill becamedue; the defendant said, "I have paid it away, and you must take it up to be sure: I have nothing to do with it, why did you not remove the hay." The plaintiff said, "he could not, because there was a memoran- duin 'that it should not be removed until the bill was paid;' would you have suf- fered it to be removed?" and the defend- ant said, "certainly not." The defend- ant's set-off was for the price of the ha.v agreed to be sold as aforesaid. The ques- tion for the oiiinion of the court was, whether the plaintiff under the circum- stances was entitled to recover the sum of £145 or any part thereof. Chitty, for plaintiff. BAYLEYJ.— It Is quite clear that the loss must fall upon him in whom the property was vested at the time when it was destroyed by tire. And tlie (juestion is. in whom the property in this hay was I vested at that time? By the note of the contract delivered to the plaintiff, the de- fendant agreed to sell tlie plaintiff a stack of hay standing in Canonbury Field at the sum of £145, the same to be paid for on the 4th day of I'ebiuary next, and to be allowed to stand on thepreniises until the first day of .May next. Now this was a contract for an immediate, not a (iro- H[iectivesale. Then thequestlon is, in whom did the proiierty vest by virtue of this contiact? The right of property and the riglit of possession are distinct "from each other; the right of posKession may lie in one person, the light of propeity in an- other. A vendor may have a qualified riglit to retain the goods unless payment is duly made, and yet the property in these goods may be in the vendee. The fact in this ease, that the hay was not to be paid for until a future period, and that it was not to be cut until it was paid for, makes no difference, provideil it was the intention of the parties that the vendee should, by the contract, immediately ac- quire a right of property in the goods, and the venilor a right of property in the price. The rule <jf law is, that ivhere there is an immediate sjile. ami nothing remains to be done by the vendor as between him and the vendee, the property in tlie thing sold vests in the vendee, and then all the conse()uences resulting from the vesting of the propeity follow, one of which is. tliat if it be destroyed, the loss falls upon the vendee. The note of the buyer imports also an immediate, perfect, absoluteagree- meat of Rale. It seems tome that the true construction of the contract is, that the parties intended an immediate sale, and if tliat be so, the property vested in the venJee. and the loss must fall upon him. The rule for entering a nonsuit, must therefore be made absolute. HOLHOYD J.— I think that in this case there was an immediate sale of the linv, accompanied with a stipulation on the part of the vendee, that he would not cut it till a given period. Now in tlie case of a sale of gooils, if nothing remains to bo ilono on the part of the seller, as between him and the buyer, before the thing pur- chased is to tin delivered, the jiroperty In the goods iiniiitdiately passes to the liuyer, and that in the price to the seller; but if any act remains to be done on the part of the seller, then the property does not pass until that act has been done. I am of opinion, tlierefore. in this case, not only that the propert.v immediately passed to the buyer by the contract, but that the seller thereby immediately ac- (] Hired a riiilii in the price stipulateiito be paid for the goods, although that was nut to be paid until n future day. The 810 TAULIXG V. BAXTER. property having passed tf) t and liavinK been accidentally before tlie day of payment, tlie to tlie vendee, lly destroj'ed lie losa must lief(.. fall upon lilui LITTLEDALE J.— The parties on the 4tli of January stipulated for the sale and purchase of a stack of hay, to tie paid for in a month.— Thus the case would have Btood but for the note of the contract de- livered to the buyer, and iu that there was a stipulation, that the purchaser would not cut until the money was paid, but the property in the hay had already passed by the contract of sale to the pur- chaser, and the latter afterwards merely waived his risht to the immediate posses- sion. Then the property having passed to the buyer, the loss must fall upon him, and consequently, this rule for entering a nonsuit must be made absolute. Rule absolute. TERKY 0. WHEELER. 818 TERRY V. WHEKLER. (35 N. Y. 520.) Court of Appeals of New York. June Term, Action to recover tlie price of n quantity of luniher purchuKod by plaintiff's uswixnor. On the trial it appeared, that on the l'4th of AnRust, 1H,")4, the defendant sold to tine KImore, a quantity of lumber, at the price, and upon the terms set forth in the follow- ing bill of sale: "Troy,N. Y., August 24,1.S54. Mr. Lewis Elmore, Bought of E. B. Wheeler. (Terras — Three months from date of sale.) 4,lG0feetclear pine, $34 $141 44 4,779 " 4 " 24 114 l.'.l 7.319 " box " 20 146 3S J^ Inspection 2 03 GOO pieces boards, 17c 103 00 $506 54 Cr. By deduction for cash $ 5 00 Aug. 25. By cash 2.">0 00 Your note due Nov. 3S. .. 2.jl 54 $.506 54 "Rpc'd payment as above. E. B. Wheeler, Per Wni. A. Craig. To be delivered to the cars free of charge. E. I!. Wheeler, Craig. " The memorandum "To be delivered," etc.. was made after the completion of the sale. Before its delivery as agned upon, and within a short time after and on the day of sale, the lumber was, witl:out fault on defendant's part, accidentally consumed by tire. The trial court held that there was no i-ontlict in the evidence as to the delivery ; though re()uested to pass upon the credi bility of the witnesses declined so to do. Uefendnnt'.s counsel e.tceptcd to the find- ing of fact, conclusions of law. and to the refusal of the court to pass upon the creil- ibility of the witnesses. Plaintiff had judgment, the general term affirmed thesnme, and defendant appealed. William A. Beach, for appellant. Wil- liam L. Learned, for respondent. SELDEN, J. There may be some doubt whether the parol evidence in regard to the agreement to deliver the lumber was admissible, but if it were necessary to de- cide that question, I should regard it as admissible, on the ground that what is called the bill of sale was, in substance, a mere receipt for the purchase-money, and did nt)t purport to be a contract. (Dunn V.Hewitt, 2 Den.ri37; Blood v. Harring- ton. 8 Pick. .")."):.': FilUins v. Whyland, LM N. Y. 33S.) If the lumber had not been paid for, and the instrument, omitting the recpii)t. had been signed by the defendant and delivered, as a note or memorandum of the sale, it would then have been the evidence of a contiact, executory on one l)art at least, and not open to explana- tion by parol. I!nt looking at the whole instrument, I tliink it is to be regarded as n receipt, and not a contract, within tiie cases above cited. Of course, in this view, the memorandum at the foot of the hill is not regarded as a part of It; if it were, its character would be changed from a receipt to an executory contract, con- clusive ufon the parties, except 8o far an it was still a receipt. (Kgleston v. Knlck- erbacker, C Barb. 458.) The point which Is made upon the con- tradictory character of the evidence in re- latiiin to th" contract to deliver the lum- iKT <m the cars, and its sufficiency to e«- tablish such contract, presents only h question of fact which this court cannot review. Where f lie finding of a court or referee upon a question ot fact is anibigu- oiiH, the evidence may be refcrrccl to (or the purpose of removing the ambiguity, but not to revf-rse or modify a di.stinct finding, or to rstablish an inde|<endent fact not found. ( Hovt v. 'I'hompson's Ex'r.. T.< .\. Y. 210; Carman v. Pultz, 111 id. .'S.'O; Grant v. Morse, 22 id. .■!24 ; .Sanford v. Railroad Co., 2:5 id. ;J44.) We can no more review the decision of the court, that the testimony was not conllicting, than we can the conclusion that it was sufficient ; an<l we can do neither without making a precedent which would oiien to review here the details of the evidence in all cases. But in the view wliich I take of tiie re- maining question, it becomes Immaterial whctiuT there was a contract to ileliver at the cars or not. The lumlier had not been actually delivered, Ijiit remained in the possession of the vendor. In the ab- sence of any express contract to deliver, there was an implied one to deliver at the yard of the vendor, when calle(l for. In either case the lumber did not remain nt the risk of the vendor, if the title did not remain in him. The risk attenils up- on the title, not upon the possession where there is no special agreement upon the subject. (Tarling v. Baxter, (i liarn. 4: Cress. SCn ; Willis v. Willis, ti Dana. 41t; Ilinde v. Whitehonse. 7 Kast, .j.')S ; .loyce V. .\dams,8 N. Y. 21tii; 2 Kent Com. -J!t2, 41)0: Noy's .Maxims, 8S.) I entertain no doubt that uptm the facts found In thie. ease, the title was in the vendee. The lumber was selected by both parties and designated as the lumber sidd to KImore, except the six hundred pieces which were selected by the parties, and the jjrecise pieces sold designated with as much pre- cision as if the purchaser had marked ev- ery piece witli his name; that which was sold by meas\irement was inspected and measured, and the (juantity ascertained ; the price for the whole was agreed upon and paid and a bill of parcels receiiited and delivered to the purchaser. These facts, 1 think, vested the title in the pur- chaser, notwithstanding the agreement of the seller to deliver th<« lumber free of charge, at the cars. "The sale of a spe- cific chattel passes the property th'-rein to the venilee without delivery." (Chitty Contr. [sth .\m. ed.] .TJ2.) "It is a gener- al rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery , transfers the right of property, although the price has not lieen jiaid, nor the tiling sold delivered to the purchaser." (Olypliant v. linker. 5 l)cn.:^^2.) The authorities are numerous, where the expression is used that if any thing remains to be done by the seller, the title does not pass: but the caeeu which 814 TEKRY V. WHEELER. are refprred to to eiistoin that position, only K" tl't" length of showinj; that whore something is to he clone by the seller to ascertain the identity, quantity or qual- ity of the artlele sold, or to put it in tlie condition wliicli the terms ;jf the contract require, the title does not pass. (2 Kent Com. 4!)(i; Hanson v. Meyer, li East, (ji-l; Simmons v. Swift, 5 Barn. & Cress. S57; .Joyce V. .'Vdanis, 8 N. Y. 2!)1 ; Field v. Moore, Lalor's Siip.41S.) The list of cases to thi.s effect might be indefinitely in- creased; but no case has been referred to by counsel, nor have I discovered any, in which, where the article sold was perfect- ly identified and paid for, it was held that u stipulation of the seller to deliver at a particular place prevented the title from passing. If the payment was to be made on or after delivery, at a particular place, it might fairly be inferred that the con- tract was e.xeciitory, until such delivery; l(ut where the sale appears to be abso- lute, the identity of tlie thing fixed, and the price for it jmid, I see no room for an inference that the property remains the seller's merely because lie has engaged to transport it to a given point. 1 tliini: in such cases the property passea at the time of the contract, and that, in carrying it, the seller acts as bailee, and not as own- er. The questions which arise in such cases, as to sales, are questions of inten- tion, such as arise In all other cases of the interpretation of contracts; and when the facts are ascertained, either by the writ- ten agreement of the parties or by thefind- ing.s of a court, as they are here, they are questions of law. That the parties to the contract in this case intended to pass tlie title to the lumln-r immediately, appears very clear; nor do I suppose tnat any one would question it, were it not for the ap- parent hardship of the case to the pui- chaser. If the property, instead of being lumber, had been sheep or cows, capable of increase ( wliicli follows thoownership), and there had been a sudden, and large increase to the flock or drove, before they could be delivered at the point agreed up- on, I think no one would have said that tlie defendant could have discharged his obligation to deliver, aud yet retained the increase. Such, however, must be the conclusion, if the plaintiff's position is maintained. The judgment should be re- versed, and a new trial granted. All concur. THOMreOX D. GAIUJINEU. 817 THOMPSON V. GARDINER. (1 C. P. Div. rr7.) Common Pleas Division. June 28, 1876. Action for not acrupting butter pursu- ant to coiitrjict. Tile cause vva.s tried beforn Urett, J., at the luHt spriiifr flHsize at Liverpool. The contract was made by one I'rice actinR as broker for the seller, and he delivered notcH to both buyer and seller. Hi>;nin}' the note which he sent to the seller, but not that which he sent to the buyer. He, how- ever, entered the contract in his book, in wliiuh he signed both the bought and the si)l(l-note. Thedefendaiit kept thebought- note without complaint or remonstrance for two or three weeks; and, when culle<l ui)on to accept the butter, ho repudiated the contract, not on the ground that he had not entered into it, but on the ground that it was unsigned, writing to the bro- ker "You did not sign it." It was objected, on the part of the de- fendant, that there was no sullicient nienioranduiu of the contract within the Htatute of frauds. The learned judge ruled otherwise, ob- serving that, after receiving and keeping the bought-note, the defcntlant could not allege that Price was not an agent to make a niemoranduni ; and ho directed judgment to be entered for the plaintiff, liut gave the defendant leave to move to enter judgment forhim.if the court should be of o[)inion that there was no suHicicnt memorandum within the statute. Gully moved for judgment accordingly. T. H. .fames shewed cause. The judgment of the court (BRETT, (JKOVK, and ARCHIBALD, JJ.,) was de- livered by I5HKTT, J. This was an action for not accepting butterpursuant to contract. It was tried before me, and I directed judg- ment to l)e entcreil for the plaintiff. A motion has been made (o enter judgment for the defendant in ])ur8iiance of leave reserved by me for that ])urpose, on the ground that there was no evhletice of any nieaioranduni of the contract within the Htatute of frauds. The facts were these: — The contract was made with a person who must l<c taKcn to bo a l)roUer, anil who was acting for the seller only, and not for the buyer. The defendant agreed upon the terms of sale with the bi'oker. These terms were not disputeil. If there was a sullicient memorandum in writing signed by or on behalf of the party to be charged, the defendant had unjustifiably refused to accept the butter. 'J"he broker sent a note of tlie contract to the buyer and also to the seller. He signed the note which was sent to the seller, but he did not sign that which he sent to the buyer. He. however, entered in his broker's l)ook both the bought and the sold-nole, and signed them both. The butter was ten- dered to the defendant sometime after the note was sent to him, he having kept the L.\W SALIJS — 52 latter until then without complaint or re- mon-<trance. The reason he assigned for his refusal was, not that he had n<»t en- tered into the contract, but that the note sent to him was ncjt sigmd. I decline to enter into the terms of the two notes, as to which was the bought and which was the sold-note. The real (luestioii upon the notes on this point always turns on the person to whom the note Is sent. If the broker Is authorized iiy the buyer to make a contract, the note sent by him to the seller is the note which Is intended to be the bargain, and vice versa. The note which was to bind the defendant here, w;is the soldnote. Wo are not driven to rely on the notes In the broker's book, because the note delivered to the plaintiff (if the broker had authority to sign the memoi-;indum) bindshim. TheauthoritieH areconcbMive to show that the broker acting for one of the contracting parties, making a contract for the other, is not authorized by both to l>in>l both. liut the broker who makes a contract for one may be authorized by that person to make and sign a memorandum of the con- tract. That has frecjuently been held. The question here is whether there woe any evidence that the broker was so au- thorizeil. The evirlence was, that a note of the bargain was sent to the buyer; and that his only objection was, not "that the broker who sent it had no authority to send it, or that no such contract was made, but that the memorandum sent to him was not signed. That was ample ev- idence for the jury tli;it the dcfiiiilant rec- ognized the authority of the broker to sign for him. Luckily, however, the l)r(d<er did sign the note which was to bind the defcfidant, that is, the sold-note. Then, this further fact remains, that the l)roker kept a book in which both bought and sold-notes were entered and signed by him. 1 therefore think that, even if the signature to the note sent to the seller was not sullicient to bind the buyer, the signature in the broker's book was enough to satisfy the statute. The broker being a broker authorized to make a memoran- dum of the contract on the defendant'a behalf, the entry in his book was sutHcient eviilence of a memornmlum of the bar- gain signed by a duly authorize<l agent within the meaning of the statute of frau<ls to bind the defendant. .My Ill-other (irovo has doubts, and wishes me to say that, in his judgment, the fact of the defend;int keeping the note sent to him without objection was not sullicient to show an authority in the broker to bind him. Hut lit- thinks that, inasmuch as when the defendant made the ol)jectio!i heconlined it to saying" You did not sign it, " he therehy admitted the agency of tlie broker to make the contract on his behalf. He therefore airrees with me that judgment was rightly entered for the plaintiff. My Brother Archibald authorizes me to say that he concurs In the above judg- ment, and in the reasons 1 hare given. .ludgment for the plaintiff. THOMPSON V. WEDGE. 819 THOMPSON V. WEDGE. (7 N. W. Rep. 560, 50 Wis. 643.) Supreme Court of Wisconsin. Dec. 17, 1880. Ai)peal from Dodee county court. Replevin for a cow and calf. Tlie plain- tiff Hold a (juantity of property at pul)lic auction. The defendant hid off the cow and calf at Kuch sale for $:j7. The terms of sale W(Te cash for all jjurchases not e.\- ceedinfj five dollars, and approved [>aper for those exceeding; that sum. After the sale the defendant informed the plaintiff that he nad not sufficient money with him to|)ayforthe property, and retjuested permission to take it away. The [ilaintiff Kavesuch permission on defendant's prom- ise to pay a few days later, when the [ilaintiff should ro to Waupun, a few miles distant, whore the defendant re- sided. Nothing was said l)y the parties concerning security, but the plaintiff de- livereil the i)roperty to defendant without further stiiiulation or condition. The de- fendant failed to pay for the proi)erty when the [)laintiff called on him at his residence, tliree days after the sale, and afterwards refused to deliver it to tlie plaintiff when the latter made demand therefor. The cause was tried by the court. The county judge held, oh the above facts, that the title to the proiierty passed to the defenilant by such delivery, and gave judgment for a return of the property to him, or for its value in case a return cannot be had. The plaintiff appealed from the judgment. Eli Hooker, (C. E. Hooker, of counsel.) (or appellant. H. W. Frost, for respond- ent. LYON, J. The plaintiff delivered the property in controversy to the defendant unconditionally, and gave him credit for the price. He waived the security re- quired by the terms of the auction sale by making the delivery without requiring it. He did not expressly reserve to liimseK the title to the property until the pur- chase money should be paid, and there is nothing in the evidence tending to raise a presumption that he intended to do so. Neither is there any ground for claiming that the defendant obtained delivery of the property by fraud. Thus we have here the simple case of a sale of property on credit, and an absolute delivery there- of to the purchaser. Sudi sale and deliv- ery passes the title, and it is not divested merely because tile purchaser fails to pay for the property at the stipulated time. If authoiities are required to propositions so plain and well established, the cases cited in the brief of counsel for defendant, and many of those cited by counsel for plaintiff, abundantly sustain the doctrine. To these Uiay lie addeil the late case lu this court of The Singer Manufg Co. v. Snmmons, 4!> Wis. .•'.H;. ."> N. \V. Kep. 78s. TliJit was a stronger case for the plaintiff than fhis.yet we held that tlie title passed. .None of the cases in this court, cited to show that the title to the property here in controversy remained in the plaintiff, meet the conditions of this case, for in none of them was credit eiven for the price, and an un<|ualllie(l delivery of the property made to the purchaser. We think the ruling v.f the learned coun- ty judge, that the title to the cow and calf pa.ssed to the defendant by the delivery, was correct. We must, therefore, afUrm the judgment. TOWNE 0. COLLINS. 821 TOWNE V. COLLINS. (14 Mass. 500.) Superior Court of Massachusett3. Essex. Nov. Term, 1785. Tills was an action of trover for oxen. One Hutchins stole the cattle from the plaintiff and sold them to Collins, who was not privy to the theft, nor had any knowledge of their t)cinf; the property of the plaintiff. Hutchins was afterwards convicted of the theft, and sentenced, at theinstanceof the attorney general, to pay threefold damages to the plaintiff, accord- ing to the statute. Towne had no other agency in the prosecatlon, than procuring the arrest of the thief upon a warrant, and attending at the trial as a witness, upon being summoned. The question referred to the court was, whether the conviction and Bentence were a har to the plaintlfl's recovering in this action. PER CURIAM, viz. CDSHIXG 0. J. SAR- GEANT , DANA and SUM.NER. justices. There being no market iiEfjt here, and actual satisfaction of tlie threefold dam- ages not having been made to the plain- tiff; the conviction and sentence can be no bar to this action of trover. TUFTS V. GUIFFIN. 82-T TUFTS V. GRIFFIN. (12 S. E. Rep. 68, 107 N. C. 47.) Supreme Court of North Carolina. Oct. 27, 1890. Appeal from superior court, Bertie coun- ty : Wo.MACK. Judj^e. Action by Janics W. Tufts again.st J. S. Griffin on a note given by (iefendant for part of a purcliaise price of aKoda fountain purclia.seil by him of plaintiff. Uy tlie con- tract of Kale the title to the property solil was not to pasn until the entire price was paid. The property was destroyed before the note matured. Judjinient for plain- tiff, and defendant ai)i)eals. I). C. Winston, for plaintiff. W. L. Will- iams, for defendant. SiiKPHKRD, J. This is a case of the first impression in this state. We have here an absolute promise of the defendant to pay the plaintiff a certain sum, it beiiiKtlie bal- ance of the purchase money due the plaintiff upon the sale of a soda apparatus to tlie defendant. The sale was a conditional one, (see Clayton v. Hester, SO N. C. 27.".: Frick V. Hllliard,!l.")N.C. 117", and thecasoscited.) and, uiKler the contract, the defendant took the apparatus into his possession, and used it in all respects as his own. Without any negligence on the part of the defendant and before any default in the payment of the purchase money, the prop- erty was destroyed by tire. The question is, who shall bear the loss? The defend- ant insists that it should fall upon the plaintiff t)eca use the transact i<m amounted to nothing more than an executory agree- ment to sell, and that, inasmuch as the plaintiff cannot now perform the con- tract, the defendant should not be com- pelled to pay. It is very true that such contracts are sometimes called "execu- tory," (as in the case of Ellison v. Jones, 4 Ired. 4S,J and the vendee is also termed a "bailee," (Ferry v. Young, 10.5 N. ('. 4(jG, IJ' S. K. Hep. 511,) but it must be observed that these ex|)ressions are used in reference to the strict, legal title to the i)roperty, and they can therefore have no influence in the determination of the present (jues- tion, which is purely one of considerations for an absolute promise to pay. There- cent decision in Burnley v. Tufts, 66 Miss. 49, 5 South. Re[). 627, is directly in point. There, it seems that this same plaintiff sold a soda apparatus under a contract precisely similar to this, and the property was destroyed, as in this case, after some of the notes had been paid, and before the maturity of the others. The court decided tliat the plaintiff was entitled to recover the amount due upon the reuiaining notes. As we entirely concur in the reasoning up- on which the decision is based, we will re- produce a part of the language of the opinion. The court says: "Burnley un- . conditionally and absolntely promised to pay a certain sum for tlie property, the p<»ssession (jf which he receive<l fr<jm Tufts. The fact that the proiierty has been de- stroyed while in bis custody, and before the time for the |)ayment of the note last due, on payment of which only his right to the legal title of tlie property would have accrued, does not relieve him of pay- ment of the price agreed on. He got ex- actly what he contracted for, — viz., the possession of the property, and the right to acijuire an absolute title by payment of the agreed price. The transaction was something more than an executory condi- tional sale. The seller had done all he was to do except to receive the purchase price. The purchaser had received all that he was to receive as the consideration of his promises to pay. The incpiiry is not whether, if hchad foreseen the contingency which has occurred, he would have pro- vided against it, nor whether lie might have made a more prudent contract; but it is whether by the contract he has made his promise absolute or conditional. The contract was a lawful one, and, as we have said, imposed ujion the buyer an ab- solute obligation to pay. To relieve him from this ottligation, the court must make a new agreement for the parties, instead of enforcing the one made, which it cannot do." As is said in the foregoing extract, the vendor has done all tliat he was re- quired to do. and the transaction amounted to "a conditional sale to be de- feate<i upon the non-performance of the conditions. • • • The vendee hail an interest in the property which he could convey, and which was attachable by his creditors, and which could be ripened into an absolute title bv thejierformance of the conditions." 1 Whart. Cont. § 617. The vendee had the actual, legal, and rightful possession with a right of proiierty upon the jiayment of the money. Vincent v. Cornell, 13 Pick. 2'.)6. The vendor could not have interfered with this possession "until a failure to perform the conditions. " Newhall v. Kingsbury, i:!l Mass. 44.5. Having acquired these rights, under the contracts, and the property having been subji-cted to the risks incident to the exer- cise of the exclusive right of possession, it would seem against natural justice to say that there was no consideration for the promise, and that the loss should fall up- on the plaintiff. The case of Swallow v. Kniery, 111 Mass. 3.56. cited by the defend- ant, may, perhaps, be distinguished from ours, because it was agreed that, upon the payment of the jirice, the vendor was to execute a bill of sale to the vendee. How- ever this may be. we think that the prin- ciples enunciated in Burnley v. Tufts, su- pra, are better sustained, both by reason and authority, and we therefore atltrm the judgment of the court below. No ei- ror. I TUFTS c. SVL\'ESTEU. 825 TUFTS V. SYLVESTER. (9 At). Rep. 3.57, 79 Me. 213.) Supreme Judicial Court of Maine. March 1, 1887. On report from Biipreme judicial court. Friiiililiii county. Trover by tlie vendor of nicrcluindise aKuiiiHt the messenger of llif iiiHolvont veiidee. The opinion states tlie facts. S. Clifford rSe'eher, for plaintiff. H. L. Whitcoinb, for defendant. PETERS, C. J. The plaintiff sold a bill of goods to beshippe(lat 15<iKtou to the buyer at Farminjiton, in this stale. The buyer, becoming insolvent after the pur- chase, conntennandeil the order, but not in Hcasi>n to stop the goods. Before the goods came, he had gone into insolvency, and a messenger had taken possession of his property. An exiii-esa company bring- ing the goods tendered them to the buyer, who refused to receive them, but the mes- senger accepted the goods from the car- rier, paying his charges tliereon. Alter this, but before an assignee was appoint- ed, the seller made a demand upon both the carrier and the messenger, attempting til reclaim his goods. The (luestion, upon these facts, is whether tliegoods were sea- sonably stopped in transitu to preserve the plaintifl's Uen thereon. We think they were. The right of stoppage in transitu is favored by the law. It is clear that the goods did not go into the buyer's possession. He refused to receive them. lie had a moral and legal right to do so. Such an act is commended by ju- rists and judges. He in this way makes re|)aration to a confiding vendor. " He may refuse to take possession," says Mr. Renjamin, "and thus leave unimpairetl the right of stopi)age in transitu, unless the vendor be anticipated in getting posses- sion by the assignees of the buyer." Benj. Sales. § S5S. In (irout v. Hill, 4 Gray. JtOl, Slia w, C. J., says: " Where a purchaser of goods on credit tinds that he shall not be able to i)a.v for them, and gives notice thereof to the venilor, and leaves the goods in [nisseKhion of any person, when they arrive, for the use of the vendor, and the vendor on such noticeexpre.<sly or tac- itly assents to it, it is a good stoppage in transitu, although the bankruptcy of tho vendee ijitervene. " See same case at page .'!()!(; 1 Pars. Coat. •.V.ll!, and eases. The decision of the case, then, turns up- on the questioii whether the messenger could accept the goods, and terminate the lien of the vendor. Wo do not find any authority for It. A bankruptcy messen- ger iicts in a passive capacity ; Is Intrust- ed with no discretionary powers; acts under mandate of court, or does certain things particularly pres<-ribed by the law which creates the office; is mostly a keep- er or defender of property, — a custodian until an assignee comes; and hecnn nei- ther add to nor take from the bankrupt's estate. He is to take possession of the "estate" of the insolvent. These goods had not become a part of the estate. He was not at liberty to atlirm or disalflrm any act of the insolvent. The law im- poses on him no such responsibility. Chanceller Kent says that the transit la not ended while the goods are in the hands of a carrier or middle-man. A messenger has no greater authority, ex officio, than a middle-man, excepting as the insolvent law expressly piescribes. In Hilliard's Bankruptc3' (pajte 101 1 the otlice of a mes- senger is likeniMl to that of a sheriff under a writ. He becomes merely the recipient of propert.v. The title of tin- assignee, when appointed, dates ()ack of the ap- pointment of a messenger. ITntil ap- pointment of assignee, the liankrupt him- self is a proi)er person to tender money for the redemi)tion of lands sold for taxes. Hampton v. liouse, "J^ Wall. "Jli^. See .Ste- vens V. Palmer, ]•_• Mete. 4(54. The case cited by the plaintiff. Sutro v. Holle, 2 Neb. 1H(1. supports his contention. Defendant defaulted. WALTON, VIi{GIN, LIBHEY. EMERY, and HASKELL, J J., concurred. TUTIIILL V. SKIDMORE. 827 TUTHILL et al. v. SKIDMORE et aL (2r. N. E. Rep. 348, 124 N. Y. US.) Court of Appeals of New York, Second Division. Jan. 14, 1S91. ApiX'al from a jiidprnient of the Reneral term of tlie kccdiiiI jiKlicitil (iei>artriient aftiriiiing a juilK'neiit fur the plaiiitiffH en- tered on a verdict directed at circuit. Sep- tember 11, ISSG, llie (jlaintiffs. under tlirir tirm name of Ellswortli Tuthill & Co.. and Walter E. Lawton, doing buisinesH under Ilie name of Eawton I5ros., entered into the f()ll(j\vinf5 written contract: "Septem- ber 11, INSC. Sold for account of Messrs. Kllswoilli Tiitiiill & Co. to Messrs. Lawton r.rotliers. New Yoriv, five hundred tons Hellers' usual good malie platform-dried lisli scrap, not treated with acids, of this season's make, to be ready for delivery be- fore dose of sellers' works, at ?lN per ton, of L',(l(IO lbs., actual weight in bulk, F. O. 1?. sellers' factory, Promised Land, Long Island. Terms: Payment by liuyers' notes at four months, with interest added at a rate of si.\ per cent, per annum from date of delivery on i)resentatinn bills of lading, invoice, weigher's return, and StilUvell & (iladding's certificate of moist- ure. If scrap removed before closing sell- ers' factory this fall, or if scrap is not re- moved before such time, buyers are to give their notes, bearing same interest, for an approximate amount, bearing date of Buch closing. Buyers to have privilege of leaving scrap at their own risk, free of charge for storage, till opening of fishing tieason of spring, ISST, provided, if they re- quire any scrap between such closing and opening, buyers are to pay thirty-five cents per ton for loading. Scrap guaran- tied not to e.xceed twelve per cent, moist- ure. Stillwell & Gladding's analysis from samples drawn in the usual way. Scraps to be in good order andcon<lition. " From the <late of this contract to the date of the trial of this action, (October 2.5, IssT.) the plaintiffs, at all times, had on hand at their factory at I'romised Land. L. L, more than "HlOtons of fish scrap of the kind and quality mentioned in the contract, but neither the (|uantity sold nor any part of it was ever set apart for the vendee. November V2, ISMi, the vendee gave the vendors, towards the purchase price, three promissory notes, signed by the purchaser. and |>ayable to the order of the sellers, of the dates, for the amounts, and due, as fol- low s: Novenib T 12. ls86.. $.5,000 Foor i 19. •• S.M 00 26. " I $;i 000 nths Mnrch in. 18S7 The purchase price was $14,000, and, after deducting these notes, $1,000 re- mained, which was never paid, nor was a note given for it. These notes were all dishonored, and have never been paid, nor has any part of the purchase price of the property. About the 1st of December, 1S8(>, the plaintiffs sent the purchaser the following receipt: "Ellsworth Tuthill & Co., Manufacturers of Menhaden Oil and Ouano. Factory at Promised Land, L. I. Promised Land, \. Y., Nov. l'.', 1KS6. We hereby certify that we hold five hun- dred (oilO( tons o( platform-dried lish scrap, of good quality, and in good condi- tion, in bulk, subject to the order of .Messrs. Lawton Bros., in our factory ut Promised Land, Long Island, Suffolk county, N. Y., as per terms of contract. Dated Sei)tcnilier Ulh. Ei,i-swonin Tit- nil.l. & Co. " March 24, ls^7, .Joseph L. Morton began an action in the supreme court against Waller E. Lawt<jn for the recovery of money, in which an attach- ment was issued, by virtue whereof, March 2S, issT, the defendant Skidmore, as sher- iff, and the defendant Hand, as his deputy, levierl upon and seized five hundred tons (jf fish scrap then stored at the ])laintifrs' factory. The (juantity attached was not separated from a larger (luantity of which it was a part, and was never renioveil from the plaintiffs' premises. June 15, 1S.S7, Morton recovered a judgment against Lawton in that action for $22.020. Ofi, which was entered in the office of the clerk of the city and county of New York, a transcript of which was duly filed, and the judgment duly docketed June 27, ls.s7, in the ollice of the clerk of the county of Suf- folk. May l:!, 1SS7, the plaintiffs demand- ed of the defendants that they release the attachment, and surrender the property to them, wiiicli was refu.sed. and on the ne.Nt day this action in replevin for the re- covery of the property was begun. Upon the trial, each party asked that a verdict be directed in his favor, neither claiming that there was any question of fact for the jury. A verdict was directed for the i)lain- tiffs, upon which a juilgnient was entered, which was alHrmeil at general term. Ahram Kilns', for n[)pellant8. Thomas Yuung, for respondents. FoLLKTT, C. J., [after stntinf^ the fiirts as above.) It will be assumed that the title to the propert.v passed to the vendee, which is the most favorable view which can be taken of thecase forthe defendants. Permitting commercial jjaper to be dis- honored liy one engaged in commerce, and his property tobeattached in an action In which judgment is subsequently recovered by default, is evidence, and. if unexplained, is i>roof, of insolvenc.v. Brown v. .\Iont- gomerv, 20 N. Y. 2^7: Booth v. I'owers, .'>♦! N. Y. 22, .'52: Abb. Tr. Ev. OKI. Neither party asserting at the trial that I..awtou's solvency was a question of fact for the jury, the court was justitied in holding, as a question of law. that he was insolvent. When the price of goods sold on credit is due anil unpaid, anil the vende«> becomes insolvent liefore obtaining possession of them, the vendor's right to the property is often cilled a "lien." but it is grc'ater than a lien. In the absence of an express power, the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to oneha ving not ice of theexttiitof his right, but he must proceed by fori'clo^ure. When a vendor rightfully stops goods /// tr:itisltii or retains them be- fore tninsitiis has liegun. he can, by a sale made, on notice to the vendee, vest a pur- 828 TUTHILL V. SKIDMORE. chaser with a good title. Diistan v. McAn- drew, 44 N. Y. 72. His riRlit is very nearly that of a pledgee, with power to sell at pri- vate sale in case ot default. Bloxani v. Sanders, 4 Barn. & C. 941; Bloxani v.Mor- ley. Id. !).")!; Milgate v. Kebble, 3 Man. & G. 100; Andenreid v. IJandall, 3 Cliff, '.m, 106; Blaekb. Sales. (2d Ed.)44r>,454.459; Benj. Sales, (Corl)in's Ed.) § 12S0; Jones. Liens, § ,S02. The vendee having beeonie in.s(jlv- ent, and refused payment of the notes given for the purchase price of the prop- erty which reniaine<l in the vendor's pos- session, his right to retain it as security for the price was revived as against the vendee and his attaching creditor. Ar- nold V. Delano, 4 Cusli. 33; Hasl^ell v. Bice, 11 Gray, 240; Milliken v. Warren, 57 Me. 46; Clark V. Draper, 19 N. H. 419; Bloxam v. Sanders, 4 Barn. & C.941; Bloxani v. Mor- ley. Id. 9.")1; Hamburger v. Rodman, 9 Daly, 93; Beni. Sales, (Bennett's Ed.) § S25; 2 Benj. Sales, (Corbin's Ed.) § 1227; Story, Sales, § '285; Blaekb. Sales, 454. The plaintiffs allege in their complaint tliat tlieyown the pi'operty,and also that they "had a special property therein, — to- wit, a lien for unpaid purchase money," — both of which allegations the defendants specifically denied. It is now insisted, as it was at the trial, by the defendants that theallegation in respect to the special prop- erty is not a compliance with section 1720 of the Code of Civil Procedure, which pro- vides that when "the right of action or defense restsupoiia right of possession, by virtue of a special property, in which case tlie pleading must set forth the facts up- on which the special property depends, so as to show that at tlie time when the ac- tion was commenced, or tha chattel re- plevied, as the case may be, the partj' pleading, or the third person, was entitled to the possession of the chattel. " The de- fendants not having moved to make the complaint more definite and certain, and it attirniatively appearing that they were neitlier harmed nor misled hy the omission to set forth all of the facts out of which the special prt)perty arose, the judgment will not he reversed for this de- fect in the complaint. When the trial began, it was moved In behalf of the defendants that the plain- tiffs be compelled to elect whether they would seek to recover on the ground that they owned the property, or on the ground that they had a lien thereon for unpaid purchase money. To this request the court replied : "I will hear the eviden<-e first before 1 compel him to do that. " To this remark the defendants excepted. At the close of the plaintiffs' case, the defend- ants offering no evidence, both parties asked the court to direct a verdict. The object of requiring plaintiffs to elect be- tween inconsistent causes of action is to simplify the issues of fact, so that they may be intelligibly and fairly tried, but it is plain in this case that the defendants were not misled nor harmed by the refusal of the court to compel an election. The plaintiffs' allegation that they owned the property, and their allegation that they had a lien thereon for unpaid purchase money, areiuconsistent. Hudson v. Swan, 83 N. Y. 552. But when, as in the case at bar, the inconsistency plainly appears on the face of the complaint, tlie defendants should, before answering, move that the plaintiffs beeompelled to elect. Cassidy v. Daly, 11 Wkly. Dig. '222. If in such a case the defendant lies by until the trial, and then moves, the court may, in its discretion, wait nntil jiart or all of the evidence is taken before deciding the motion, (South- worth V. Bennett, 58 N. Y. (159,) and its de- nial is so far diseretionarv (Kerr v. Havs, 35 N. Y. 331, 336; People' v. Tweed, 63 N. Y. 194) that it will not be reviewed when it appears that the defendant was not harmed. It is also urged, on the authority ot Hudson v. Swan, supra, and the cases therein cited, that the plaintiffs, by alleg- ing in their complaint and asserting at the trial absolute ownership of the prop- erty, anil also a special interest in or lien upon it, waived theirspecialinterestorlien, if any they had, and cati no trecover without establishing ownership. In the case cited the facts alleged by the plaintiff to estab- lish ownership were inconsistent with those upon which he relied to establish a lien, which is not the fact in the case at bar. As has been shown, the plaintiffs' interest was more than that of mere lien- ors, and, there being no dispute about the facts, the inconsistency relating wholly to the legal conclusions to bedrawn from the agreed facts, the case cited is not control- ling. The judgment should be affirmed with costs. All concur, except Brown, J., not sitting. TWYXE'S CASE. 831 TWYNE'S CASE. I (3 Coke, 80.) Mich. 44 Eliz. In the Star Chamber. , In aninfurinntion by Coke, theeiueen'Hat- tornoy-jieneral, UKi>iiiNt Twyne, of llainp-j Hliire, in the Htar-cliunii)er,i for making anil publiHiiing of a fraudulent wift of CooflM. Tlie (rase on the ntat. of V.i liliz. c. .">, was Hucli : fierce was imlctitcil to Twyne in ,£-tO(), and wan imiehted alno to C. in tiillO. ('. l)rouKlit an action of del)t aeainst Fierce, and pending tlie writ, fierce, helnu; posHeHsed of goodH and cliat- tel.s of the value of H'MH). \n Hecret made a Heneral deed of sift of all his noods andj chattels, real and [lersonnl wliatsoever, to Twyne, in satisfaction of his debt; not- withstanding that fierce continued in possession of the said ;;oods, and some of them he sold ; and he sliore the sheeii, and marked them with his own mark; anil after wnrds(;. had judir men t against fierce, and had a fieri facias directed to the sher- iff of Sonthanipton, who hy force of the said writ came to make execution of the said goods; hut divers persons, by the command of the said Twyne, did with force resist the said slieriff, claiming them to be the goods of the said Twyne by force of the said gift; and openly declared by the commandment of Twyne, that it was a good gift, and niade on a good and lawful consideration. And whether this gift, on the whole matter was frauducnt and of no effect by the said act of^ 13 Eliz. or not, was the question. And it was re- solved by Sir Thomas Edgerton, lord kee[)er of the great seal, and by the (.'hief Justice fophatn and .\nilerson, and the whole court of star-chamber, that this gift was fraudulent, within the stat. of l;{ Eliz. And in this case divers points were resolved: 1. That this gift had the signs and marks of fraud, because the gift is general, without exception of his-' apparel, or of anything of necessity ; for it is commonly said, "quod* dolus versatur in generali- bU8. " •Chamberlain v. Twyne, Moore, 638; Rex v. Earl of Nottingham, Lane, 44, 45, 47: Co. Litt. 3b, 76a, 290a; Edf<bury v. Rosindal, 3 Keb. 259; See the Stat. 27 Eliz. c. 4. [ 'Oooch's Ca'<e,5 Coke, 60a, b; Packman's Case, [ 6 Coke, IHb; Case of Chancellor, etc., uf University of Oxford, 10 Coke, .50b; 3 Inst. 1.52; Co. Litt. 3b, 70a, 2y0a, b; 13 Eliz. c. 5; Crcswell i'. Cokes, 2 Leon, 8, 9; Pendleton v. Ounston, 1 Leon. 47; Stamford's Case, 3 Leon. 223; Carter v. Clavcole, 1 Leon. 308, ;i09; Case No. Si, 3 Leon. ,57; Turvil v. 1 Tipper, Latch, 222; Turbervill v. Tipper, 2 Rolle, | 493; Paston v. Lea, Palmer, 415; Brunkhorne's i Case, Cro. Eliz. 2:i3, 2:H; Darrel v. Wilson, Id. (H5; ' Bethel v. Stanhope, Id. 810; Hawes v. Loader, Cro. Jac. 270, 371; 3 Dver, 295, pi. 17; Creswell v. ' Cokes, Id. 351, pi. 23; Stone v. Grubham, 3 Bulst. I 220; Rast. Ent. 207b; Rex v. Earl of Nottingham, Lane, 47; Kitchin v. Calvert, Id. 103; Humbcrton v. Howgil, Hob. 72b; Id. KVl; Chamberlain v. Twvne, Mooro. 038; Doct. Plao. 200; Haws v. Loader, Yelv. 196, 197, 1 Brownl. & U. HI ; Co. Ent. IU2a. 'Whittle V. Weston, Godb. 398; Englefleld's Case, Moore, 321. 'Stone V. Grubham, 2 Bulst. 236; Doddington's Case, 3 Coke, 34a ; Warren v. Smith, 1 Rolle, 157. 2. The donor continued in posResBlon, and used them as his own; and by reason thereof he traded and traflicked with others, and defrauded and deceived them. 3. Jt was made in secret, "et dona clan- destinn sunt semper suspiciosa." 4. It was niadn pending the writ. 5. Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a crust, and a trust is the cover of fraud. <i. The deed contains, that the gift wa8 made honestly, truly and bona fide; "et cIhusuIu! inconsuet' semper inducunt ruh- picionem. " .Secondly, it was resolved, that notwith- standing Iiero wiis a true debt due to Twyne, anil a good consideration of the gift, yet it was not within the proviso of the said act of 13 Eliz., by which it is pro- vided, that the said act shall not extend to any estate or interest in lands, &c., goods or chattels, made on a good con- sideration, and bona fide; for although it is on a true and good eousideration, yet it is not bona tide, lor no gift shall be deemed to be bona fide within the said proviso which is accompanied with any trust. As if a man be indebted to five sev- eral persons in the several sums of .£20, and hath goods of the value of £'J0, and makes a gift of all his goods to one of them in satisfaction of his debt, but there is a trust between them, that the donee shall deal'' favorably with him in regard of his poor estate, either to permit the donor, or some other for him. or for his benefit, to use or have possession of them, and is c(»ntented that he shall pay him his debt when he is able, this shall not be called bona fide within the said proviso; for the proviso saith on a good consider- ation, and bona fide; so a good consider- ation does not suHice. if it be not also bona fide. And therefore, render, when any gift sliall be to you in satisfaction of a debt, by one who is indebted to others also; 1st, Let it l)e made in a public man- ner, and before the neighbors, and not in private, for secrecy Is a mark of fraud. '2nd, Let tlie goods and chattels be ap- praised l)y good people to the very value, and take a gift in particular in satisfac- tion of your debt. 3rd, Immediately after the gilt, take the possession of them: for continuaiieeof the possession in the donor is the sign of trust, .\iiil know, reader, that the said words of the proviso, on u good consideration, and bona tide, do not extend to every gift made bona fide; and, therefore, there are two manners of gifts on a good ci>nsiiler>!tion, scil., considera- tion of nature, of blood, and a valuable consideration. .\s to the lirst in the case before put:" If he who is indebted to five several persons, to each party in t"2u In consideration of natural affection gives all his goods to his sou. or roiisin. in that case, for as much as others siiould lose their debts, Jic, which are tilings of value, the intent of the act was, that the eou- sideration in such rase should be valu- •Grcsham v. Man, Gouldsb. 161. •Osborn v. Churchman, Cro. Jac. 1'27; Llioostoa V. Lloyd, Palmer, 214. 83-2 TWYNE'S CASE. ulile; for equity requires that such gift, which defeats others, should be made on as high and good consideration as tlie things wliich arc thereby defented are; and it is to be presumed that tlie fatlier, if he had not l)een indebted to otliers, would not liave dispossessed him- self of all his goods, and subjected himself to liis cradle; and tlierefore it shall he in- tended, that it was made to defeat his creditors; anil if consideration of nature of blood shouhl be a good consideration within tliis proviso, the statute would serve for little or nothing, and no creditor would be sure of his debt. And as to gifts made bona fide, it is to be linown, that every gift made bona tide, eitlier is on a trust between the parties, or without any trust; every gift made on a trust is out of this proviso; for that which is betwixt the donor and donee, called" a trust per nomen speciosum, is in truth, as lo all the creditors, a fraud, for they are thereby de- feated and defrauded of their true and due debts. .\nd every trust is either expressed or implied; an express trust is, when in the gift, or upon the gift, the trust by word or writing is expressed : a trust im- plied is, when a man makes a gift without any consideration, or on a consideration of nature, or blood only; and. therefore, if a man before the statute of "27 H. S, had bargained his land for a valuable consid- eration to one and his heirs, by which he was seised to the use of the bargainee; and afterwards the bargainor, without a consideration, enfeoffed others, wlio had no notice of tlie said liargain; in this case the lawimpliesa trust and confidence, and they shall be seised to theS use of tlie bar- gainee; so in tlie same case, if the feoffees, in consideration of nature or blood, had without a valuable consideration, en- feoffed tlieir sons, or any of their blood, who had no notice of the first bargain, yet tluit shall not toll the use raised oh a valuable consideration; for a feoffment made only on consideration of nature or blood, shall not toll an use raised" on a valuable consideration, but shall toll an use raised on consideration of nature for botli considerations are in iEquali jure, and of one and the saiue nature. And when a man, being greatlyindebted to sundry persons, makes a gift to his son, or any of his blood, without consid- eration, but only of nature, the law in- tends a trust betwixt them, scil., tliat the donee would, in consideration of such gift being voluntarily and freely made to him, and also in consideration of nature, relieve his father, or cousin, and not see him want wlio had made such gift to him, vide 33H.(i, 33.10 by Prisot, if the father en- feoffs his son and heir apparent within age, bona fide, yet the lord shall have the wardship of him ; so note, valuable con- sideration is a good consideration within this proviso; and a gift made bona fide is a gift made without any trust either ex- pressed or implied; by which it appears, that as a gift made on a good considera- ' Burrel's Case, 6 Coke, lib. •2 Rolle, Abr. 799. •2 Rolle, Abr. 779. "33 H. 6, 16; LilUngstou's Case, 7 Coke, 39b. tion, if it be not also bona fide, is not within the proviso; so a gift made bona fide, if it be not on a good consideration, is not within the proviso; but it ought to he on a good consideration, and also bona fide. To one wlio marvelled what should be the reason that acts and statutes are continually made at every parliament without intermission, and without end; a wise man made a good and short an- swer, both which are well composed in verse. Quasritur, ut crescunt tot magna volumlna leglsl In promptu causa est, crescit in orbe, dolus. And because fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole court, that all statutes made against fraud should be liberally and beneficially ex- pounded to suppress the fraud. Note, reader, according to their opinions, divers resolutions have been made. Between Pauncefoot and Blunt, in the exchequer chamber, Mich. 3.5 & 3(i Eliz., the case was: Pauncefoot being indicted for recusancy, for not coming to divine serv- ice, and liaving an intent to flee beyond sea, and to defeat the queen of all that might accrue to her for his recusancy or flight, made a gift of all his leases and goods of great value, colored with feigned consideration, and afterwards he fled be- yond sea, and afterwards was outlawed on the same indictment ; and whether this gift should be void to defeat the queen of her forfpiture, either by the common law, or by any statute, was the question. And some conceived that tiie common law, wliichU abhors all fraud, would make void this gift as to tlie (jueen, vide Mich. 12 & 13 Eliz. ; 3 Dyer.T-i 295; 4 & 5 P. & M. IGO. And the statute ofJS 50 E. 3, c. 6, was considered; but that extends only in re- lief of creditors, and extends only to such debtors as flee to sanctuaries, and other privileged places; but someconceived that the Stat. ofi*3 H. 7, c. 4, extends to this case. For although the preamble speaks only of creditors, yet it is provided by the body of the act generally, that all gifts cf gfjods and chattels made or to be made on trust to the use of the donor, shall be void and of no effect, but that is to be in- tended as to all strangers who are to have prejudice by such gift, but between the parties themselves it stands good. But it was resolved by all the barons, that the Stat. 13 Eliz. c. 5'5, extends to it: for there- " Fermor's Case, 3 Coke, 7Sa. "Fermoi-'s Case, 3 Co. 78a, 78b, 3 Dyer, 295, pis. 8, 9, 10, &o. ; Rex v. Earl of Nottingham, Lane, 44. " Co. Litt. 76a. "Ridler v. Punter, Cro. Eliz. 291, 292; Rex v. Earl of Nottingham, Lane, 45. '5 Co. Litt. 3b, T6a, 290a, 290b ; 3 Inst. 152 ; Goooh's Case, 5 Coke, 60a, 60b; Packman's Case, 6 Coke, ISb; Case of Cbancellor, etc., of University of Ox- ford, 10 Coke, 56b; Co, Ent. 162a; Pendleton v. Gunston, I Leon. 47; Carter v. Clay cole. Id. 308, 309; Creswell v. Cokes, 2 Leon. 8, 9; Stamford's Case, Id. 223; Case No. 83, 3 Leon. 57; Turvil v. Tipper, Latch, 222; Turberville v. Tipper, 2 Rolle, 493; Paston v. Lea, Palmer, 415; Brunkhorne's Case, Cro. Eliz. 233, 234; Barrel v. Wilson, Id. 645; TWVNE'S CASE. 833 by it is enacte I and declared, that all feoffinentH. RiftH. grantH, &c., "to delay, hinder or drfrmid creditors and (jtlierH o[ their jiiKt iuid lawful actions. suitH, dehtH, nrcr)untH, dmnaKCH, penalties, forfeitureH, heriotH, mortuaries and reliefs," shall bo void, &c. So lliat this act iloth not ex- tend only to cre<litors, but to ail others who had cause of action, or suit, or any penalty, or forfeiture, &c. And it was resolved, that this word "forfeiture" should not be intended only of a forfeiture of iin ohliyation, recogni- sance, or such liUe (as it was objected by some, that it should, in respect that it comes after ilartiano and penalty), but also to everything winch shall by law be forfeited to the kinj^ or subject. And therefore, if a miin, to prevent a forfeiture for fi'lony, or by outlawry, makes a gift of all his Roods, and afterwards is at- tainted orou tla wed, these Roods are'" for- feited, notvvithstanding this Rift; tlie >ame law of recusants, and so the statute is e.\pounde4l beneficially to suppress fraud. Note well this word''^ "declare" in the act ot l.'i liliz., by which the parlia- ment expounded that this was the's com- mon law before. .\nd according to tliis resolution it was decreeil, Hil. 30 Eliz., iu the exchci|ui'r chamber. Mich. 42 & J."! Eliz. in the common pleas, on evidence to a jury, between .Standeu'" and Bul- lock, these points were lesolved by the whole court on the stat. of L'7 Eliz. e. 4. Walmsley, J., said that Sir Christo- pher Wray, late C. J., of England, rejiort- ed to him, that he and all his coii:|)anions of the kluR's bench were resolved, and so directed a jury on evidence before them ; that where a man had conveyed his land to the use ot himself for life, and after- wards to the use of divers other of liis blood, with a future power of revocation, as after such feast, or after the death of such one; and afterwards, and before the power of revocalicjn bep;an, he, for valua- l)le consideration, bargained and sold the land to atiother and his heirs; this bar- Rain and sale is within the-'^ remedy of the said Stat. For nItliouRh the stat. saitli, "the said first conveyance not by him re- vokeil, accordiuR to the [)ower by him re- served,'" which seems by the literal sense to be intended (4 a present po«cr of revo- cation, for no revocation can be made by force of a future power until it comes in esse; yet it was held that tlie intent of the net was, tlint such voluntary conveyance which was oriRinally suliject t<j a power of revocation, be it in prjesenti or in (u- tnro, should not stanil aRalnst a pur- chaser bona tide for a valuable consider- ation : and if otherconstruction sliould be made, the said act would serve for little or no purpose, anil it would be no dilli- cult mutter to evade it: so if A. liad re- served to himself a pctwcr of revocation with the assent of li. and afterwards A. bnrRained and sold the land to another, this barRain and sale is Rood, and within the remedy of the said act; for otherwise the Rood |>rovision of the act, by a small adtlition, and evil invention, would be de- feated. And on the sainereason it wasadjudged, :iS Eliz., in the common pleas, between Lee and his wife, e.v<'cuti-ix of one Smyth. plaintiff, and .\Iary-' Colshill, executrix of Thomas Colshlll, defendant in del)t on hd obliRation of lOOO marks. Hot. 17117. The case was, Colshill, the testator, had the ollice of the queen's customer, l>y letters patent, to him.an<l his deputies; and by indenture between him and Smyth, the testator of the plaintiff, and for £i;()0 paid, and £100 per ami. to bo paid duriuR the life of ('(dshill, made a deputatioti of the said ollice to Smyth; and Colshill cove- nanted with .Sruyth,that if Colshill should die before him. that tlien his executors should repay him £:!(!(). And divers ci>ve- nants were in thesaiil indenture cimcern- iiiR the said ofhce, and the enjoy iiiR of it; and Colshill was bound to tlie said .Smyth in the said obliRation to perform the cov- enants; and tlie breach was aileRcil in the non-jpnyment of the snid £:!(I0, forasuuch as Smyth survived Ccdshill; and althouRh the said covenant to repay the iliOO, was lawful, yet, forasmuch as the rest of the covenants were aRainst the statute of^z .'i E. 0, cap. 10, and if the addition of a law- ful covenant shouhl make the obliRation of force as to that,-'' the statute would serve for little or no purpose; for this cause it was adjudRcd that the obliRa- tion was utterly void. M. It was resolved that if a man hath power of revocation, and afterwards to the intent to defraud a purchaser, he lev- Bethel V. Stanhope, Id. 810; Hawes v. Leader. Cro. Jac. 270: Stone v. Grubham, 2 Bulst. 2JG; Humborton v. Howgil, Ilob. "i; Id. 106; Uawes v. Loader, Yclv. 190, ]!)7, 1 Hrownl. & G. Ill : 8 Dvcr, 2!!.-). pi. 17; Creswell v. Cokos. Id. ."!.il, pi. 23; Rastal, Fraudulent Deeds. 1 Rast. Knt. 20rb; Rex v. Earl of Nottingham, Lane, 47; Kitchin v. Calvert, Id. 10.3: C'hauiboi-lain v. Twyne, Moore, 63S; Doct. Plac. 2(HI. '•Co. Litt. 2fl0b. "Co. Litt. 70a, 290b. '•Jenkins v. Kemishe, Hardr. 397; Standen v. Bullock, Toth. 71. '"Digges' Case, Moore, 00.5; Bullock v. Thorns, Id.015; fiarthv. Ersfeild, Bridg. 23: Gooch'sCase, .5 CoUe, Odb; Llinaston v. Lloyd, Palmer, 217; St. Saviours in Southwark, Lane, 22; Builerv. Water- house, T. Jones, 95. Trodgers v. Langham, 1 Sid, 133. LAW SALES — 53 "2 And. 5.5, Id. 107; Norton v. Symm, Godb. 21.3; Leo V. Coleshill, Cro. Eliz. .Vi;!; Norl.ia v. Syms, Moore, b57; Bishop of Chester v. Frceland, Ley, 75, 79. "Hill V. Farmer. Style, 29; Leo v. Coleshill, Cro. Eliz-.Vi9: Trevor's Case, Cro. Jac. 269; Humberton V. Howgil, Hob. 72; Co. Litt. 2,348; Trevor's Case, 12 Cok<>. 7-<; 8 Inst- 14.S, 1.54: Daws v. Pavnter, 3 Keb. 20; Ellis v. Nelson. Id. CwU. 000; W'elch v. Baden, Id. 717, 71s ; Williamson v. Barnslov. I Brownl. & G. 70, 71 ; Smyth v. Colshill, 2 And". .55. Id. 107; Rex v. Zakar, 3 Bulst. 91; :! Leon. 33; Warren V. Smith, 1 RoUe, 157; Southcottv. Adams, Id. 250; Gouldsb. ISO. M Smyth v. Colshill, 2 And. 50, 57. Id. lOS; Male- veror v. Redshaw, 1 Mod. 3.5, liO; Norlcm v. Simmos, Hob. 14; Pigofs Case, 11 Coke, 271); 2 Rollo, Abr. 28; Co. Litt. 221a; Bisliop of Carlisle v. WoUs, T. Jones, 9(1, 91 : Leo v. Coleshill, Cro. Elir. .529, ri30; Eliot V. Skvi>p. Cro. Car. '.Via; Norton v. Svmm, (Jodb. 212, 2i;!. 1 Brownl. & G. 04; Dive v. MiininR- haui, Plowd. BSb; Norton v, Syms, Moore. &50, 857; Bishop of Chester v. Freelaud, Loy, 75, 79. 834 TWYNE'S CASE. lea n^* fine, or makes a feoffment, or other conveyance to a stranijer, by which he ex- tinKuishes his power, and afterwards bar- gains and sells the land to another for a valuableconsideration, the barsaineesliall enjoy the land, for as to him the fine, fecffinent, or other conveyances l)y which the condition was extinct, was void by the said act; and so tin- tirwt clause, by which all fraudulent and covinous conveyances are inaile void as to purchasers, extend to the last clause of the act; soil., when he whoniakesthebar^ainnnd salehad power (jf revocation. And it was said that the Stat, of 27 Eliz. hath made voluntary es- tates made with power of revocation, as to purchasers, in equal degree with con- veyances made by fraud and covin to de- fraud pui'cliascrs. Between-" Upton and Basset in tre.s- pass, Trin. :17 Eliz. in the common pleas, it was adjudsed that if a man malies a lease for years by fraud and covin, and afterwards makes anotlier lease bona fide, but without fine or rent, reserved, that the second lessee should not avoid the first lease. For first it was agreed, that by the com- mon law an estate made by fraud should he avoided only by him who had a former right, title, interest, debt or demand, as 3:5 H. 6, a sale in open-s market by covin shall not bararight wliich ismr)reancient: nor a covinous gift shall not defeat execu- tion in respect of a former debt, as it is agreed in l'2 Ass. 72; bnt he who hath right, title, interest, debt, or demand more puisne shall not avoid a gift or estate precedent by fraud by the common law. 2d. It was resolved that no purchaser should avoid a precedent conveyance made by fraud and covin, !)ut he who is a-" purchaser for money or other valua- ble consideration; for altlu)ugh in the preamble it is said "for money or other good consideration," and likewise in the body of the act "for money, or other good consiileration," yet these words "good consideration" are to l)e intended only of valuable consideration, and that appears l)y the clause which concei-ns those who had power of revocation, for there it is said, for money or other good consider- ation paid or given, and this word " paid" is to lie referred to "money," and "given" is to be referred to "good consid- eration," so the sense is f<jr money paid, or other good consiileration given, which woi-ds exclude all considerations of nature or blood, or the like, and are to be Intend- ed only of valuable considerations which may be given; and therefore he who *< Albany's Case, 1 Coke, 113b; Digues' Case, Id 174a; Co. Litt.23ra; Sheffield v. Ratcliffe, Hob. 337, 33S; Diprges' Case, Moore. 605; In re Le Rov 3 Rolle, 3:jr; Sir Sheffeild's Case, td. 496; Oxford v. Goldington, Winch, 6.5. "Co. Ent. 6-6b. note 19; Rex v. Earl of Notting- ham, Lane, 4.5; Upton v. Basset, Cro. Eliz. 44.5. "Fermor's Case, 3 Coke, 7S; Wimbish v. Tail- bois. Plow. 46b, .55a; Fitz, Replic. 15; Br. Trespass 26; Br. Collusion 4; Br. Property 6; 2 Inst. 713- 14 H. 8, Sb; :« H. fi, .5a, b. *' Upton V. Basset, Cro. Eliz. 445. makes a purchase of land for a valuable consideration is only a purchaser within the statute, aud this latter clause doth well expounil these words "other good consideration," mentioned before in the preamble anil body of the act. And so it was resolved, Pasch. 32 Eliz., in a case referred out of the chancery to the consideration of Windham and Peri- am, Justices :28 between .John Needham, plaintiff, and Beaumont, serjeant-atla w, defendant, where the case was, Henry Babington seised in fee of the manor of Lit-Chnrch, in the county of Derl)y, by indenture, 10 Feb. S Eliz., covenanted with the Lord Darcy, for the advancement of such heirs male, as well those he had be- got, as those he should afterwards beget on the boily of Mary then his wife (sister to the said Eord Da re .v ), before the feast of St. Jolin Baptist then next following, to levy a fine of the said manor to the use of the said Henry for his life, and after- wards to the use of the eldest issue male of the bodies of the said Henry and Mary, begotten in tail, &c., and so to three is- sues of their bodies, &c., with the remain- der to his right heirs. And afterwards, 8 Mali, Ann, 8 Eliz , Henry Babington, by fraud and covin, to defeat the said cove- nant, made a leaseof the said manor tor a great number of years to Robert Heys; and afterwards levied the fine accordingly: and ()n conference had with the other jus- tices, it was resolved, that although tlie issue was a purchaser, yet be was not a purchaser in vulgar and coniniou intend- ment: also consideration of blood, nat- ural affection, is a good consideration, but not such a good consideration which is intended by the stat. of 27 Eliz.. for-9 a valuableconsideration is onl.v a good con- sideration within that act. In this case, Anderson, C. .I.,of the common pleas, said, that a man who was of small understand- ing, and not able to^o govern the lands which descended to him, and lieing given to riot and disorder, by mediation of his friends, openly convejed his lands to them, on trust ami eonfideuce that he should take the profits for his mainte- nance, and that he should not have power to waste and consume the same; and afterwards he being seduced l)y de- ceitful aud covinous persons, for a small sum of money bargained and sold his land, beins of a great value: this bargain, al- though it was for money, was holden to be^i out of this statute, for this act is made against all fraud and deceit, and doth not help any purchaser, who dotli not come to the land for a good consid- eration lawfully and without fraud or deceit; and such conveyance made on trust is void as to him who purchases the land for a valuable consideration bona fide, without deceit or cunning. And by the judgment of the whole court Twyne was convicted of fraud, and he and all the others of a riot. 2' Needham and Beaumont's Case, 1 And. 233. 2'Beverlv v. Gatacre, 2 Rolle. 3U5, 306. ™ Upton V. Basset, Cro. EI. 44.5. *• Upton v. Basset, Cro. El. 44.5. UNEXCELLED FIRE WORKS CO. v. POLITES. 837 UNEXCELLED FIRE-WORKS CO. v. POLITES. (18 Atl. Rep. 1058, ISO Pa. St. 536.) Supreme Court of PcoDsylvania. Jan. 6, 1S90. Error to court of common pleas, Lawrence county. Before Paxson, C. J., Steruett, Gukes, Clauk, Williams, McColluji, and Mitch- ell, JJ. \V. H. Falls, for plaintiff in error. D. Jameson, (with liim G. E. Treadwell,) for defendant in error. Clauk, -T. This is an action oi assumpsit, brouglit July 20, 1868, to recover the price of a certain lot of lire-works and celeljration (,'ooils, ordered by the defendant, George Po- ntes, from the Unexcelled Fire- Works Coin- I)any, of New York, in February, 1888. The first order, which was for liis store in Xew Castle, was given through tlie plaintiff's a^'ent, Alexander Morrison, and amounted to .S208.53; the second, sent directly to the plain- tiff, was for the defendant's store in Wash- ington, Pa., and amounted to S123.83. These orders were in writing, and were signe<l by the <lefendant. They specified, not only the j)articular kind and quality of the articles or- dered, but contained also a schedule of the prices to bo paid therefor. The goods were to he shipped in May, and were to be paid for on the lUth day of July thereafter. Upon re- ceipt of these orders the plaintiff transmitted by letter a formal acceptance of them. A contract was thus created, the obligation of which altai lied to both parties, and which neither of them, without the agreement or assent of the other, could rescind. On the 5th day of April, 1888, the defendant, by let- i ter, informed the plaintiff that he did not want the goods, and notified the plaintiff not to ship them, as he could do better with an- other company. The plaintilTs replied that they had accepted the orders, and had placed theui in good faith, and that tlie goods would be shipped in due time, according to the agreement. The goods were shipped within tlie time agreed upon, — the lirst lot to New Castle, and the second lot to Washington, according to contract; but on the arrival the defendant declined to receive them. The carrier notified the shipper that, owing to the dangerous and explosive ijuality of the goods, they would not retain them in their posses- sion. The ))laintiff thereupon received them back from the carriers, and placed them on storage, subject to the defendant's order. The plaintiff alleges that it is a manufact- urer and importer of such fire-works as are used in the 4th of July celebrations through- out the country; that it is not profitable to ' carry these goods over from one season to an- other, and that therefore the quantity manu- factured and imported depends upon the ex- tent of the orders received; that the defend- ant's orders entered into its estimates of goods to be made up and imported for tlie season of 1888, and that the goods ordered by the defendant were actually made up before the order was countermanded. The defend- ant testifies, however, that Mr. Morrison, the plaintiff's agent, informed him, at the time he gave the lirst order, that the plaintiff had some, at least, of the articles in stock, and that he did not order any, either to be manu- factured or imported on his account; that the transaction was sim|dy a bargain and sale of goods, and not an order for goods to be manu- factured or imported; and the evidence does not seem to conflict with this view of the case. It is plain that the notice given to the plaintiff by the defendant not to ship the goods was a repudiation of the contract. It was not a rescission, for it w.is not in the power of any one of the parties to rescind; but it was a refusal to receive the goods, not only in advance of the delivery, but before they were separated from the bulk, and set apart to the defendant. The direction not to ship was a revocation of the carrier's agency ' to receive, and the |)!aintilT thereby had no- tice of the revocation. The delivery of the ! goods to the carrier, therefore, w;is unau- thorized, and the carrier's receipt would not charge the defendant. The plaintiff itself made the carrier its agent for delivery, but the gools were in fact not delivered. A de- livery was tendered by the carrier, when the goods arrived at their destination, but they wore not received. The action, therefore, could not lie for the price, but for special damages for a refusaf to receive the goods when the delivery wa.s tendered. We think the statement was suilicient to justify a re- covery of such damages, as the words of the statement were clearly to this effect; but there was no evidence given of the market value of the goods as compared with the price. It does not appear that the plaintiff had suf- fered any damage. For anything that was shown, the goods were worth the price agreed upon ill the open market. While the manifest I tendency of the cases in the .Vmericau courts I now is to the doctrine that when the vendor stands in the position of a complete perform- ance on his part ho is entitled to recover the contract price as his measure of damages, in the case of an executory contract for the sale of goods not specific the rule undoulitedly is that the measure of damages for a refusal to receive the goods is the difference between ' the price agreed upon and the market value [ on the day appointed for delivery. Judg- I ment alllrmed. WALKEU V. DAVIS. 8:39 WALKER V. DAVIS. ; (18 Atl. Rep. I'JO, 0.5 N. H. 170 ) Supreme Court of New Hampshire. Merrimack. July 3t}, issa. On report of referee. j AsstcmpHt for not acceptintj and paying for a quantity of wood according to a con- ; trait. Facts found by a referee. j Daniel liarri'ird and Frank JV. Parsons, ' for plaintiff. Sanborn cfc Hardy, for defend- j ant. Clark, J. The contract for the sale of I the wood was an entire contract. Gault v. j Brown, 48 X. II. 18:3. Tlie first wood deliv- j ered was not pro[ierly sorted tlirough tlie 1 fault of tlie plaintiff's servants, and between ' 20 and 30 cords of a dilTerent quality from that contracted for were loaded on tlie cars at Grafton, and forwarded to the defendant at Franklin. The phiintilT, learning that the wood forwarded was not according to the contract, wrote to the defendant, stating how it happened to be sent, inclosing a bill for it in which a discount was made because it was not according to contract, and stating that the defendant could pay this bill, or sort the wood to conform to the contract, and charge the expense to him, and jiromislng to con- form to the contract in the future. The de- fendant, upon ascertaining that the wood was not according to the contract, notified the plaintiff that he did not consider himself nnder any obligation to take any more of tlie Wood, and that he sho'.iM not do so for the rea.soii th.it tlie plaintiff had broken the con- tract. The case finds that the defenrlant did not waive his right to rescind if upon the facts he could rescind. A jiarty to a con- tract is not bound to accept anything less' than a full performance according to it3 terms and conditions. The wood forwarded uj) to the time of the attempted rescission was not in compliance with the contract, and the defendant refuse I to accept it as such, and notified the plaintiff that he rescinded the contract. This he had a right to do. The wood delivered not being such as the contract called for, the defend mt was not bound to receive it. The plaintiff's letter, insisting upon an acceptance of the wood and a variation from the original contract, pre- sented the alternative to the defendant, either to accept the wood at a reduced jirice, or sort it to conform to the contract, charging the expense to the plaintiff. The defeiid:int was under no oblig.ilion to do either. If all the wood contracted for had been delivered at once containing the wood delivered up to tlie time the notice of the rescission w;is given, the defendant would not have been compelled to accept it. because it was not of the quality stipulated for. Judgment for the defend- ant. Allen, J., did not sit. The others con- curred. WALTER A. WOOD MOWING & REAPING MACH. CO. v. GAERTXER. 841 WALTER A. WOOD MOAVLNG & REAPING iL^CHTXE CO. T. GAERTXER. (SO N. W. Rep. 106, G3 Mich. 520.) Supreme Court of SIichi«an. Nov. 4, 188C. Error to Monroe; JuHlin, Judce. AHHiiinpsit. Defendant briii;^H error. Reversed. This action was brouRht to recover the contract price of a twine Helf-biiitlinK hnr- vewter, under an order of wliicli the follow- Ins is a copy : " Waller A. Woori Mowinjj; & ReapinK .Machine Co., SO Taylor Street, Cliicago, 111.: I lierel)y order one Walter A. Wood twine eclf-ldndinR liarvester, T< feet (i inches cut, to be delivered at Puters- burgh, Mich., care of O. M. Kiissfll, on or liefuro July 15, 1SS3, for which I u^ree to pay you the sum of $78 in .Junior reaper, and in manner as follows: The balance, 5147, caKh, with freight from Peter.sbnrKh, on or before September 2."}, 's;j, with inler- CHt at 7 per cent, per annum from the date of delivery of machine or commencement of harvest. If paid on or before maturity, no interest to be paid. Warranty: This machine is warranted to be well made, of good materials, and with proper raanage- raeiit, capable of cutting and binding in a workmaidike manner, doing the binding at least as well as is usually doneby hand. The purchaser shall lie allowed one day's use to give the machine a fair trial, and if it should not work well immediate written notice ronst be given to the agent from whom it was purchased, and reasonable time allowed to get to it and remedy the defects, if any, (the purcliaser rendering necessary and friendly assistance;) when, if it cannot be made to do good work, it shall be returned to the place where received free of charge, and the payments of money or notes will be refunded. Failure to give notice as above shall bedeemed conclusive evidence that the machine fills the warran- ty, whether It is kept in use or not. [Signed] Fred. r,acrtner. Purchaser." I. R. (irosvenor and A. B. Bragden, for appellant. O. A. Critchett, for appellee. MORSE, .T. This case lias been once heretofore in this court. The contract sued upon is set forth in the opinion of .Mr. Justice SHERWOOD in .-).-> Mich. 4r)4, 21 N. W. Rep. SN.j. We then held that it was competent for the defendant to show that it was a part of the consideration for wliich the order was given that the plaintiff should, at the time of the deliv- ery of the property ordered, furnish a man to set up the macliine, and make it work In the manner prescribed in the order. The defendant, upon the last trial in the circuit, introduced testimony fairly tend- ing to show that the consideration, in part, consisted of the agreement upon the part of plaintiff's agent thai the machine should be delivered ready for use on or be- fore the tifleenth day of July The con- tract for the purchase of the machine was on the tenth of that month, and made with the evident object and purposp for use in the harvest of that year, which was e.xpected to come closely upon the heels of the purchase. The evidence was undisputed that on tliefourteeuth of July, on Saturday, the machine, or boxes and packages supposed to contain the differ- ent parts of the machine, arrived at Pe- tersburgh. Mr. Russell, the local agent of the plaintiff conipaoy, helped defendant to load the boxes and packages, and de- fendant drew them to his home, a few miles from the station. In the forenoon of that day. At this time Russell told de- fendant that he expected an expert there to set it up. Russell swears he said the expert would be there Monday or Tues- day, while defendant tostilies that Itussell said the expert would arrive on the nft- ernoon train that day,— Saturday. De- fendant went to town in the afternoon of Saturday, for the exi)ert, who hail not arrived. The expert came to Petersburgb, Monday afternoon, and on Tuesday set up a niachine for another man, who had ordered a machine lijter than defendant. He went to defendant's on Wednesday morning, Jidy 18th. to set up the ma- chine. Defemlant, ha ving cut most of his wheat before this, commencing on .Mon- day, — as he claimed, because it was so ripe he could wait no longer, — refused to I take the machine. I It is admitted that Russell could not set I up the machine, and so informed defcnd- |ant. Defendant swears that he told Rns- i sell, Saturday morning: "I want that I niachine set up; that is, if there is any- thing like it in the boxes. I want that put ;.up, so I can run it. un<i cut my wheat, be- cause it is ripe now." Russell said he I "iliiln't know how to set it up. He ex- pecteil an ex|)ert for that work, and he thought the expert would be in that afternoon, on the .') o'clock train. " De- fendant went to town after the P. M. train, and was then told by Russell that the expert would be there Monday. Mon- day morning defendant went to Peters- burgh again. The expert not having ar- rived, he told Russell he did not want the machine, because his wheat was dead rii)e, and he must hire men, and cut It right away. This he proceeded to do. The court, after ciiarging the jury at considiTal)le length, finally said: "I may, in short, say to you : Fiml a verdict for the plaintiff, with the amount of this or- der, with interest to the present time, $"J(!.5. I receive the verdict." Instantly thereupon the court continued: "No; I will not. 1 say to the jury, if you find the niachine was delivered there on or be- fore the ].')th, then the company were to have a reasonable length of time after Mr. I (iuertner had drawn the machine home in which to set it ui), and give him an opportunity to test it. aii<l that by Wed- nesday was a reasonable lime, within the law; an<l that if you Und from the evi- dence that Mr. Uaertner said, ' I will not take it,' as early as Monilay, which was the next day after the time tlxed for Its delivery, and repeated it on Tuesday, and then on Wednesdjiy, '1 will not hlichonto it. and I ain not going to take it,' then the com|)ony need not set it up, nor test it, nor give him any op|)ortunity to ex- amine it at all, and he became liable for the machine at the contract price. Swear an olficer. " This was practically directing a verdict S42 WALTER A. WOOD MOWING & REAPING MACH. CO. o. GAERTNER. for plaintiff, and was errtir. Tlie machine could nut l)e considered as delivered until it was set up as a machine. The different parts, which none but an expert could put toReTlier and form into a machine, could not l)e callei] a macliine. as required liy the contract, until attached together, and forndnj;' a comi)lete harvester. Under all the circumstances, it would seem that both parties ccmteinplatpd that the ma- chine should be delivered in ;i condition fit for use on or Ijefore .July l.'itli. Certain it is that tlie whole tenor of defendant's testinxmy was to that effect, and he had a riiclit io go to the jury upon that the- ory. If the jury so found, tlie nuestion of reasonable time would be out of the case entirely. We are referred by plaintiff's counsel to portions of defendant'sevidence which are claimed to establish the plaintiff's theory that there was no arrangement that the machine should be set up on or before July loth. Be this as it may, the testi- mony of the defendant, as a whole, tended to support his theory of the contract, and the jury should have determined its weight and bearing. This they were not per- mitted to do. The judgment is reversed, with costs, and a new trial granted. The other justices concurred. WAHDc. SHAW. 845 "WARD T. SHAW. fldence in reposed, credit is given, and the ^7 •Wond d(u.\ property piisHeH. ThiH wfiH ho decided In U vvena. lift.) Cliapniun v. Lalhrop, B Cowen. 110, nnd 1b Siiprome Court of New Yorli. July Term, 1831. i supported by the caseH there cited, HuB- ,, , ^, ^ . ., Key V. 'rhoriitiiii, 4 Musb. 40.'i, Tooke v. l^rror from the Huperior court of the H„|iin,; worth, ,-, T. K. 232, and uIho by city and county of New Yorli. ^\ ard sued jj^rriB v. Smith, 3 Serg. & Ha wle, 20, 24, Shaw in an action of trover or two oxen and by Chancellor Kent, 2 Kenfs Com. lieuiK fat cattle, taken by hiin as sheriff g,,]^ But where part only of the property oiitof the possession of one (raw buck, by U,„a ,,ppQ delivert-d, without deinandins ?,','''.".*' °^,"" ''^^^■"""n in favor of one po„ .li^,,,.^ ^y^,, ^,,g condition, the ven- Platt. The o.xen came into the posses- ,jor may refuse to deliver the residue until sii.n of Crawbuck uiiiler these circum stances: he was a butcher and agreed to purchase tlieiu of Ward at §7.50 for each cwt., which the quarters should weijili wlien slautchtered, he to take the cuttle iiuo his possession, prepare them for slaugliterinfj, Blaushter them in the week in which the contract was made, and performance of the condition. Payne v. Shnilbolt, 1 Camp. 427. 2. If the vendor deliver the KOods, accom|>anieil with a ileclaration that hedoesnot considerthein sold until payment is made, nccordinK to a previous contract, the sale is condition- al, nnd the property does not pass by the delivery as between the parties to the when slaughtered take the quarters to , j,„,^. jiussev v. Thornton, 4 .Mass. 405; market, nei«li them, and pay for the cat- \,.,,.„j„„ v ' Baldwin, 17 Id. (iO(!. Two tfe the amount the weight of the quarters t|,j„^,„ „re essential to the transfer of the would come toat$7..')(lforeachcwt.. which ^jji^, t„,,ersimal property upon a cash sale: sum was to be received by Ward m full, ,,y„„.nt ,^^l„. ^.gtjjpy,,„,l actual or con- as well of another parts of the cattle ns^^^-y^.jj^.g jjeii^erv bv the ven.ior. The the quarters. Crawbuck took the cattle into his posses.sion, and on the same day they were levied upon under Piatt's execu- tion, which was issued on a judgment ob- tained previous to the contract between Ward and Crawbuck, and taken away first may lie waived by the vendor, and tlie cases above cited show that an abso- lute delivery is such waiver, but that a de- livery subject to the condition of payment is not. 'i. It is also a settled principle, that where any. thing remains to be done On the trial of the cause, the presiding ; ,,^, t,,e ^.gn,,,,^ ijefore the article is to be judge charged the jury, that the contract ^ ^ between Ward and Crawbuck, and the 1 '.",agyg^'""y,")'"in "tiie i delivery of the cattle to Crawbuck vested Meyer, 6 East, ()15, w the title and ownership in Crawbuck, and that they were subject to the execution. The plaintiff exce|)ted to the decision. The jury found for the defendant, and the superior court refused on motion to set aside the verdict ( Mr. Justice Oakley dis- senting. The plaintiff sued out a writ uf error. S. P. Staples, for plaintiff in error. J. (J. Grim and J. R. Whiting, for defendant in error. delivered, the right of property has not case of Hanson v. here a quantity of starch was contracted to be sold at a cer- tain price per hundred, the vendor gave the venilee an order, addressed to the keeper of the warehouse where the starch lay, directing him to weigh and deliver all his starch, it was held that the prop- erty did not pass before the weighing, whicli was to precede the delivery and to ascertain the price. The language of Lord F^llenborougli in that case is applicalde here: "By the terms of the bargain, two tilings, in" tlie nature of conditions or pre- By the court, SAVAGE, C. J. The ques- , liminary acts, necessarily preceded the ab- tion is whether Crawbuck liad an interest ! solute vesting in them (the purchasers) in the cattle which could be sold on exe- ! the property contracted for. The first of cntioii. The sheriff and the plaintiff in the i them is one which does so according to execution are possessed of the rights of 1 the generally receive<l rule of la w in con- Crawbuck and no more. Had Crawbuck ; tracts of sale: to wit, the payment of the sold the cattle to a purchaser for valuable price or consideration for the sale. The consideration, without notice of tlie terms I second, which is the act of weighing, on which he iiossessed them, other consid-i does so inconsequence of the particular erations might prevail; but in this case j terms ot this contract, by which the price no newcre<lit has been given to Crawbuck is made to depend upon the weight. The in consequence of his having the cattle In weight therefore must be ascertained. In his possession. Platfs debt ac-.-rui'd an- i order that the price may be known and tecedent to the transactions in (inestion, paid." Vide Cutwater v. Dodge, 7 nnd of course was not contracted upon Cowen. S6. the credit of this proiierty. If he fails, he i The sale being for cash, nnd by weight, is in no worse situation "than he was be- the vendor is not bound to deliver until fore the sale of the oxen. ; payment is made. Payment cannot he The question, then, is one between ven- nia<le until the price is ascertained liy the dor and vendee, and as between them cer- act of weighing. Should, therefore, the tain principleshnvebeen.-ettled. 1. Where vendee refuse to slaughter the oxen ac- no credit is agreed to be given for the cording to contract, and put them to price of an article sold, the payment and work on a farm, the vendor may retake delivery are concurrent acts. The v?ndor them. Should he refuse to pay, after ma V refuse to deliver without pavment; weighing the quarters, the owner may but" if hedoes ileliver freelvand absolutely, taki- possession <if his sljiughtered cattle, and without any fraud on the part of the for the property has not pa.ssed under vendee the condition of pavment simulta- such a contract, until payment is made or neously with the delivery is waived: ccui- waived. The terms of thi- contract in this 846 WARD c. SHAW. case forhid the ideu of a waiver of poy- meiit when the cattle were delivered to be prepared for slaughter. The rule laid down in llauson v. Meyer is, that the property does not pass when any thins remains to be done by the vendor; when the thinir to be done is necessary to ascer- tain the price, and tlie sale is for cash, it can make no difference whether that thing is to bi! done by the vendor or vendee. The property is not to pass till payment; the price must i)recede tlie payment, and until the price is ascertained, payment can- not be made or waived, unless by express terms; the acts of the vendor cannot be- fore that time be construed into a waiver. This case is unlike most of the English cases, where the pro|»erty was in n ware- house of a third person. I put the case upon its own circumstances; the delivery wan for a special purpose, not an abso- lute delivery to the vendee as such, but rather as bailee. There was an act to be done to ascertain the price. In general, the act of weigliing or measuring is to be done by tlie seller, but parties have a right to stipulate that the purchaser shall do such act. It is sufficient that the vendor has an interest in the act to he done, and has a right to l)e present; when the weight is ascertained, tlien, and not be- fore, can the vendor demand payment. If payment is then made or waived, the I)roperty passes absolutely, otherwise not. If I am correct in this view of the case, Crawbuck had no interest in the cat- tle which could be sold on Piatt's execu- tion. I am of opinion, therefore, that the court below erred,'and that the judgment must be reversed ; a venire de novo to is- sue by that court, and the costs to abide the event. WATSON V. UOODE. 849 WATSON V. ROODE. (46 N. W. Rep. 491, SO Neb. 204.) Supreme Court of Nebraska. St'pt. 17, 1890. Error to dislriut court, (iajre county; Mouiii.s, Ju(l;if. II. S. bibi) Hnd ./. E. Hush, for pluinliff in error. (Jiifms <t Itinnker nnd Uiizlvtt <f- lliites, for dtfi'iKlant in error. NonvAi., J. This action wns coni- mcncpil by OrnnsH A. Hoode to recover jlaiuaereK for an allcircl lireacli of warran- ty Riven hy .Tosepli Watson on the Hale l)y him to Roode of a Htallion. Tlie amend- ed petition alleges " tliat on tlie IStli day of Xovenilier, lss4, tlie defemlant, as an inducement to plaintiff to purcliase fi-oni him a certain ini]iorted black stallion, called 'Knialit of t'>e Sliiies.' for the sum of $2,000, -vvarrantecl the said horse to be a foal setter, and sound in every respect, except an enlargement of said horse's baj;, ■which was caused by a kick, and repre- isented the said horse as b(-ing then and there sound; that the title to the same was clear, and that the said horse was re^i.stered in theStud Book of England, as well as his sire and dam and would furnish the secretary's receipt for such pedigree; and plaintiff, relying upon said warranty and statements, purchased said horse from the (Kfrndant for the sum of .?!.'. IMMI. then duly paid. Plaintiff avers that said horse at the time of said sale was unsound in this: that the enlargement of said horse's bag was hernia at the time of said sale, and in no way was he free from diflieulty or trouble, and was of no value whatevei-: that one testicle of said horse was mashed and completely ruined, and was of no ben- efit to the said horse; and on account of said hernia, mashed testicle, and urethral gleet, all of which the said horse had at the time of the purchase, combined to cause the death of said horse, to-wit, on the ](;th day of .lune, issfi. Plaintiff avers that the pedigree of said horse was not as warranted by the defendant, and that the said defendant neverhas furnished the sec- retary's receipt for such pedigree, as agreed to have been done on the part of the de- fendant. Plaintiff avers that said horse was not a good foal getter. And by rea- son of above premises plaintiff has sus- tained dj'.mages in the sum of ?.').000. " The answer of the defend.mt ailmils the sale of the horse to the plain tiff, and denies all the other allegations of the amended petition. On the trial of the case to a jur.v, a verdict was returned for the plaintiff, assessing his damages at ?!.- 47(1. TiO. The defendant filed ;i motion for a new trial, containing :{2 assiginuenls of error, which motion being-overruled, judg- ment was rendered upon the verdict. Eight of the assignments arc based upon the rulings of the trial court, uiion the admission and exclusion of testimony The plaintiff upon the trial offeird in evi- dence the following instrument : " DilliT. Neb.,.\ov.,ls.s4. In consideration of $-.'.0iMi. receipt whereof is hereby acknowledged. I have this day sold my imporled black English draft-horse. -Knight of the Shires.' to O. A. R.iode, and hereby agree LAW SALKS— 54 to warrant and defend the title to said horse from all claims whatsoever, and I also guaranty s.-iid hor.-^e to be a foal get- ter, and I fnrt her state that Iheenlarge- nient of said horse's bag was caused liy a kick, . '11111 in no way troidiles him.aiid I fur- ther guaranty the said horse to be regis- tereil in the .Stud JSook of England; also his dam, as well as his sire; and will fur- nish the secretary's receipt for such pedi- gree. It is furtheragreed lhat,if said ()..\. Itoode is un.'ibic to pay a note liiarin^ even date w-ith this agreement from the proceeds of the first ye;ir'H services of said horse, he shall have the privilege of an- other year's time on ifL'iHI. .losKfil Wa'!- sr).\." 'I'he defemlant objected to the re- ceiving in evi( enee of this paper, as incom- petent, irrelevant, immaterial, and inad- missible under the pliMdings, which objec- tions wcie overruled, and the d"fendant took an exeejition. it will be oliserved that it is nowliere alleged in the amended Iietition that the warranty upon wliicli the action is founded was in writing, nor is a copy of the instrument attached to the i)|pading. It is cl.-iimed by the plaintiff in error that, as the [ileading does not aver that the warranty was in writing, thepresump- tion is that it existed in parol, and that it was incompetent to prove a written war- ranty. Theludiana cases cited bycounsel sustain that view, but they are believed to be contrary to the weight of authority. The rule as laid down in thedccislons, and in the works on pleadings, is that in an action upon a written contract it is not absolutely necessary that the plaintiff should allege in liis pleading that the con- tract was in writing; and tluit on the trial inder such a pleading the writing is adminsible in evidence. Maxw. PI. & Pr. '.»!); Steph. PI. 331: Abb. Tr. Ev. .".22; Tut- tle V. Hannegan. TA N. Y. listi; .Marston v. .Swett. li(i N. Y. L'Ot;. Where the contract is one that the law re(|uires to be in writing, and the ph'ading based tliereou is silent aa to whether it is in writing or not. the law presumes that a written contract w-as in- tended; but where the contract is valid, wluther it be in writing or in parol, there is no such presumi)tion. Under the alle- gations of the petition in this case, the written warranty wascompetent evidence. The defendant had an undoubted right, had he moved at the proper time, to have reipiired the plaintiff to make his petiti(<n more certain and siiccilic, by stating that the warranty wjis a w-ritten one, and by attaching a copy ther<'of to the petition. The i)laintiff. on rebuttal, introiluced in evidence tliefollowing paper, siirned liy the defendant, and marked" Exhibit 15:" -fSea- trice. .Veil. ..April •J4.1^^.■>. To whom it may concern: I. .loseidi Watson, upon honor, state that I have known the imported horse. 'Knight of the Shins." since he wa« imported in l"^'^•.'. by .Mr. 15. Holmes, of .Midine. III., and know him to be a good and sure foal getti-r. as compared with the best of horses, nnd any n-ports ti> the con- trary are without foumlation and mnli- lious. 111-! colt, owned by .Mr. Thomas Mc- Ennghlin. .Moliae. III., took first premium at the Kairiiury. III., fair, Mud I will deposit ten dollars with any man that he can 8-.0 WATSON V. ROODE. hIiow, lit tliP Gncoconnty fnir. five i)f lieKt colts Himl by any horse in tlie ruuiity. Josisi'ii Watson. " TlKMlefeiidaiit ohjeeted to tlie reeeivinff of tliis paper in evidence as liein;;- immaterial, irrelevant, and not proper rebutting- testimony. Tliis oljjec- tion was ovennled. No testimony had l)een introduced by tlie defendant that made this pajier competent rebuttins tes- liniony. It is urged by the defendant that, as. the writing was ni.-ide l)y the de- fend.-int an<l delivered to the plaintiff sev- eral months after the purchase of the liorse. it thereforecould not be relied upon by the plaintiff as a warranty of the hor.se, for the obviou.s reason that no new con- sideration ijassed for the giving of this writing. Had this paper been made the l)asis or foundation of tlie suit, the posi- tion of the defendant would be well taken, for the rule undoulitedly is that where the warranty of an article is given after the sale has been fully made, and the property deliv<'red to the purchaser, it must be based upon a new consideration. iJ Bcnj. Sales, § 'J:JU; Moreliouse v. Comstock, 42 Wis. (!2t;. But this jiaper was not claimed by tlie plaintiff to betlie warranty declared upon, nor was it received in e\ idence for that purpose. It was contended by the defendant on the trial in the lower court that tliemeauingof the term "foal getter," as used by the defendant in the written warranty given at the time of the sale, wasthat the horse was capable of produc- ing a foal, and did not mean, and was not so understood by the jiarties at the time, that tlie liorse was asure foal getter. 'I'he solo iiurpose and object in introducing this paper in evidence was to show what the defendant meant by the term "foal getter, "and to show what construction tlie defendant had given the terni used in the warranty. It should have been given in evideni'e in chief, and not on rebuttal. The horse was purchased for the stud, as the defendant at that time fully under- stood, and it is not reasonable to suppose that either pai'ty to the agreement at the time expected that the purchaser was pay- ing $J, 00 for a horse that was totally un- lit for the purpose for which he 'was bought. The horse, prior to the sale, had received a kick, whicli caused an enlarge- ment of the bag. The defendant, by his warranty, guarantied that this injury in no way troubled him ; in other words, that it did not injure him as a "foal get- ter. " The warranty, when read in tlie light of the construction subsequently placed thereon, by the defendant, and in view of the jmrpose for which the horse was purchased, and the price paid, is in effect a guaranty that the injury caused by the kick did not unfit the horse for the stud, and that he was capable of produc- ing the usual percentage of foals. The testimony fully establishes that the injury unfitted the horse for breeding purposes, and that he subserjueutly died on the 16th day of .June, 1MS(|. from the effects of the injury he bad n'ceived prior to the sale to the plaintiff. During the season of ISs.j, the horse was bred to some 80 mares, and out of the number only 1.5 mares were with foal, anil ))ut of these had living colts. The testimony likewise shows that the usual percentage of foals is two-thirds of the number of mares covered. The defend- ant insists that the defect in thehorse was plain and noticeable at the time of the sale; that it was of such a character as to require the plaintiff to take notice of its extent and effect; and, tliat the injury be- ing plain and visible to the buyer, the warranty did not cover such defect. It is true that the evidence discloses that the blemish on the horse was apparent, and was observed by the plaintifl' prior to tin' sale, yet it was impossible for him to tell whether the defect was of such a character as to injure the horse as a foal getter. The defendant, by his contract, warranted against this hidden imperfection, arjil he cannot e.scape lialiilit.v because the injury was one that left an external blemish plainly visible. While a general warranty does not usually extend to impeifectious known to both parties, yet it is eipially w-ell settled that the seller may bind him- self, as against patent defects, U the war- ranty is MO worded. Pinney v. AndruK, 41 Vt. (".1 ; Bank v. Grindstatf, 45 Ind. ISs. The contract of warranty in the case at bar expressly stipulates that " the enlarge- ment of the horse's bag in no way troubled him," and is a guaranty against the ex- tent of the injury. The defendant having, by his contract, expressly warranted against the defects of the horse, he cannot relieve himself from liability by showing that the plaintiff was aware at the time of the sale that the horse was injured. It was admitted by the defendant on the trial that the horse was not registered in the Stud Book of England. That the horse was warranted to be so registered is not denied. The defendant on the trial sought to escape the force and effect of this clause of his written warranty by at- tempting to show that, at the time of the sale, he informed the plaintiff that the horse was not registered. Upon the cross- examination of the plaintiff, Koode, he was asked b.y the defendant's counsel this question: "At the time the writing was made, [lieing the warranty in (juestion,] I will ask you to state to tliejury whether or not Watson didn't tell you that the liorse was not registered in the Stud Book of England." The iilaintiff's objection to the witness answering the question was sustained, and the answer was not taken. This ruling of the court is now assigi.ed as error. The testimon.y sou.glit to be elicited, had it been received, would have contradicted and varied the written agreement of the parties. It is too well established to recpiire the citation of au- thorities that i)arol testimony cannot be received to contradict or var.v a written contract. It is claimed by the defendant that the jmrpose of this testimony was to show that the defendant had knowledge that the horse was not registered, and that the defendant could not have relied upon the statement in the warranty that the horse was registered, and therefore no claim for damages can be based upon the fact that the horse was unregistered. While it is true that in a suit on a breach of warranty against defects In the article sold the seller may prove that the defects were of such a character that the WATSOX V. ROODE. 851 purdinser must ha vo known of their exist- ence, or tluit tlie l)iiyt'r Uiicw of tlii'ni prior to tlic Kiilc, for tlic i)uri)()se f)f wliowing tliat the plaintiff <li<l not rely upon the \vi\rriinty, vet it does not follow that it is Cijiiipctent to prove that tlie seller, during tin; iiegolialiotis Icadint; ui) to the sale, made representations to tlie pur- chaser directly contradictory of his writ- ten warranty snhseiiuently made. No case has l)een cited Ijy counsel for plaiitiff in er- ror lioldinK the doctrine contended for by him in tlii.s case, nor have we been able to find such a case reported in the bool<s. To permit such testimony to be received woidd violate the familiar rule of evidence above referred to. There was therefore no error in siistniniiiR the plainliffs ol)jcc- tion to the question propounded. After the defendant had closed his case, the plaintiff i)ut in evidence, over the ob- jection of the defendant, what purported to be a copy of a letter written li.v the plaintiff to the defendant, on the iMth day of Feluuar.y, ISSii. Among the olijectiona made by the defendant at the time was that no foundation had been laid for its introduction, and that no notice was served upon the defemlant or his attor- neys to pro<luce the original. Xo founda- tion was laid for the introduction of the copy. It does not ai)pear that the orig- inal could not have heeu produced at the trial, nor was it sliown that the paper offered was a correct copy of the original. Numerous other errors are assigned in tlie brief of counsel tortile plaintiff in error, based ujion the rulings of the trial court iifion the admission of testinion.v. which we will not take the time to notice, as many of them are disposed of by what we have said in tliis opinion, an<l the other errors are not likely to occur upon a re- trial of the case. Nine assignments in the petition in error are predicated upon the giving of certain instructions to the jur.v, but. as they are not referred to in the brief t)f plaintiff in error, these assignments are abandoned. The record, howeviT, discloses that no ex- ception was taken to any iiaragrapli of tlie charge of the court until after the verdict was returned into court. .\ party cannot wait until after he learns that an unfavor- able verdict has been received and then except to the charge of the court, and as- sign for error the giving of such instruc- tions. An exception must be taken when th(> instructions are given, in order to have the same considered by the review- ing court. The defendant requested 12 instructions to be given to the jui-.v, all of which were refused. These reciuests are (luitelengthy, and it is not deemed imiiortant that they should all be copiiMl into the opinion. The first and twelfth reciuests correctly stated the rule that the burdi'ii of proof was ujion the plaintiff. The substance of these requests is contained in the third paragrajdi of tlie charge given by the court on its own motion, and no error was committed in refusing them. The second re(iuest is as follows: "The court instructs the jury that if they believe from the evidence that the plaintiff. Or- ange A. Itooile, is a person of bad reputa- tion for truth and veracity In the neigh- borhood where he resiiles, then, as a mat- ter of law, tnis fact tenils to disereilit his testimony, and the jury may entirely dis- regard it, except in so far as he is corrob- orated by other credible testimony, or by facts and circumstances proved on the trial." The defendant introduced several witnesses, who testified that the plain- tiff's reputation for truth and veracity in the neigliborhood where he lived was bad. In view of this testinion.v, the jur.v should have been told what weight should be given to tli? plaintiff's testimony. The re- quest contained a correct statenient of the law, and, as it was not covered by the in- structions given, it was err(jr to refuse it. Tlie substance of the third request is that the warrant.v nuide by the delendant on the 27th day of .\pril."lss.^, after the contract of sale was concluded, being without consideration, is not binding on the defend.int. There is in the record no testinion.v tending to show that a war- ranty was made on that date. Doubtless the defendant meant Kxhibit B. that was made on .\i)ril 2-4th. As heretofore stated, this exhibit was in no way relied upon as a warrant.v, or made the foundation of the action, and the recjuest was not a|iplica- ble to tlie testimony. Request No. 4 was rightl.v refused. It, in effect, stated that, if the horse was ca- tiablc of producing a single foal, then there was no lireach of the warrant.v upon that point. The defendant was not entitled to St) favorable an instruction. The defendant's fifth prayer reads "that although the ilefendant warranted in writing the stallion 'Knight of the Shires.' to be registered in the Stud Hook of Kngland, also his ilani, as well as sire, jind that the defendant would liirnisli the sccretar.v's receipt for such pedigree, still, if the jury further believe from the evidence tliat at said time tlie defendant informed [ilaintiff that said horse was not regis- tered but simpl.v eligible to registry, and that said pl;iiiitiff knew that said horse was not registered, and did not rely on said warrant.v in making his purcluise of the s;iid hor.se, the plaintiff could not re cover for a breach of said warrant.v. as in law it wouhl be no warrant.v unless the plaintiff relied upon it in making the pur- cliase. " No testinion.v was given that the defendant informed the plaintiff that the horse was not registered. Such testi- mony was excluded, and we think rightly so. The sixth and ninth instructions re- fused, stated in substance that defects or blemishes which are known to the pur- chaser must lie expressly warranted against to make the seller liable for such defects. We find no fault with the state- ment of the law in these instructiima. The plaintiff did not seek to rixover for defects that were visible at the time of the purcliase. and that were not expn'ssly cov- ered by the terms of the warranty. The plaintiff claimed damages becau.se the horse was unregistered, and on account of the injur.v which the horse had nn-eived lirior to the sale. Roth of these matters weri>. expressly covered by the warrant.v. The eleventh request covers thequestion 852 WATSON V. EOODE. of roliance by the purchaser upon the war raiity. It is as follows: " (11) The court lartllor instructs the jury to entitle the plaintiff to recover in the suit it is not onlv necessary for the jury to find from the'evidence that the plaintiff warrant- ed the animal in question as alleged in the petition, but it must further appear from the evidence that tlie plaintiff relied upon said warranty in maliins the purchase of tlie horse, and was induced to make said purchase by said warranty, and it must also appear from the evidence that the horse was not as warranted at the time of tlie sale; and, unless all of these facts appear from the evidence, the jury should find for the defendant." The law un- doubtedly is, and has been so declared by this court, that the purchaser of personal property must have relied upon the statt?- ments of the seller as to the quality of the article sold, in order to make the repre- sentations a warranty. Little v. Wood- worth, 8 Neb. 2S1; Hallidav V. BrigRs, 15 Neb. 219, 18 N. E. Rep. 5.5. This instruc- tion stated the law correctly, and, not be- ing covered by any of the instructions given, should not have been refused. For the errors pointed out, the judgment of the district court is reversed, aud the cause remanded for further proceedings. The other judges concur. WELLS V. TUCKER. «5r. WELLS V. TUCKER et ux. (3 Bin. 300.1 Supreme Court of Pennsylvania. March 30, ISII. Tliis WHS iin antion of trover for two Ijondx, tried under the Keneriil iKHiie iit the nisi priiis in Fpltrunry last before .Mr. Justice' Yeates. Kroiii I lie report of liis honour, tlie evi- denee was in Kutjstnnue tliis: Andrew <'r,iiK, the intestate, had adopt- ed the will' of Tucker at a very early aire, and maintained her in liis liouse until lier lliarria^e. .\ftcr tliat event, he fre(]uently nuuiife.sted Inn kinilne.sH lo tier f.-iniily. and in one or two untinished wills which he left at his death, appeared to have de- fiij-ned a legacy of about tlillll) for her luis- lianil and children, lie died onihe:.'(lth August l.Sd.'i, intestate and without issue, leaving a widow, a lirother and sister, and some nephews anil nieces the cliildrtti of deceased Itrothers and sisters. His wid »vv, who by the law of Ni-vv .lersey where ho had livtd, was enlitled to half his personal estate, pi'ovcd upon the trial, that aixiut the irth of Ausrust Iso.^., her husband, having then a sUetch of a will in his hand, which he was too ill to linisli, said to In-r, " 1 have bonds against lii-n- janiin TucUei' (the defendant) to the amount of about flOdO, whi'li I nive to his children to be divided between them." He tiild her where they were, wrapped up in the pigeon-hole of a desk, oi which lu' delivered her the key, and recpiested her to tio and K'et them. She aceordlunly <iot them and locked tlieui up until after liis ileatli, when she delivered them to the defendants. .Vfter the delivery. Tucker, imprudently, but not with any dislmncst view, canceled them, and imluced the orijr- inal obligee, who had assij;ned them and a inortjrafie for securiiiK them, to the in- testate, to cuter satisfaction of reconl. .Indue Yeates charged tlie jur.v, that if Ihey believed the evidence of .Mrs. Craiii:. they ou;iht to find for the defendants, as lie was of opinion that the delivery of the bonrls to the wife for the children, made them a j;ood ilonatio causa mortis. The j\iry found for the Uefendaiits ; mo- tion for a new trial. lny:crsi)ll, for plaintiff. Hallowell and Ka wle, contra. TILtill.MAN, C. J. This is an action of trover for two bonds, which were the property of A. Crai;;, the plaintiff's inlcM tate. The defendants claim them as a donatio causa mortis inaile by .\ndrew CraiK in lbs last illness to tin- children of the defendants. Andrew ("raisr died intes- tate, and without issue, ami the jiitt was proved by Theodosia ("raiuc. his widow, who is entitled by law to one half of her liusband's |)ersonal estate. She swore, that the jiift was made by her husband about three days before his deatii, and the bonds delivered to her, to be liy her delivered over, and that she kept them locked up in her trunk till after the death of her husband, when she (rave ihiMii to thedefendants for the UHcof their children. The lirst le.ison offered for a new trial, is that the verdict was against evidence. But this docH not appear to liave lieen by any means the caKe; for the witness who proved the tri't was of irrepro;ichable character, anil sweariiiii ntraiiist her own interest. Her credibility was submitted to the jui-y, and I eunnot say that tliey were wron^ in believlntr her. Tlie secjud reason for a new trial is, tliat there was no deliver.v of the lionilH, wliieli is essi'iilial to a tiift of tins kind ; that a delivery to the wife, was. ia point ofluw.no delivery at all, and that the ju(l>;e who tried the cause erred in not chartrinir tlie jury aecordiu«ly. This i- the only point for consideration. .\ doniiiio causa mortis is a -rift of n personal ch;ittel. made by a person in liis last illness, subject to an implied condi- tion, that if the donor recovers, the Kift shall be \oid. So also it shall be void, if the donee dies b.-fore the i.'onnr. In this and some other circun.stanceh (bi'inir suii- ject to the debts of tlie donor, etc.. ) it is in nature of a legacy. It was introdiieeil into the common law from the Koinaii civil law, but not in the full extent in which it is rcciimiizcd in the latter. 'I'lie civil law t;ikes notice of tliree different kinds of donationes mortis cuiisr, to sou.e of which deliver.v is essential, hut not to all. It is unnecessary to ini|uire minutely into tlie civil law, because I consider it as settled, that to ^ifts of this kind, uh incorporated into the eomnion law. deliv- ery is necessar.v. The whole la w on this subject is fully laid down by Lord llard- wicke in Ward v. 'I'nrncr. 2 Ves. Sr. 4:il. It was formerl.v doubted, but is now estab- lished, (as conceded by the plaintiffs conn- sel) that a bond is a proper siilject of this kind of jrift. It is a wise principle of our law, that delivery is essential, hecausv delivery streiifrthenH the evidence of Ihe (lift. Too much care cannot be taken, in insistinj.; on the most convin'dnH: evidence in cases of this kind; for these donations do in effect amount to a revocation pro tanto, of written wills: and not beiiiu subject to the forms prescribed for nun- cupative wills, they are certainly of a dangerous nature. Now, let us consider the delivery which was made in tliis ease. In the lirst place, it was not to the donee, but to the donor's wife to be by her de- livered over. There is no objection to this mode of delivery. Whether made to the donee immediately, or to another for liis use. is immateria!. It was so decided in Drury v. Sniitli, 1 P. Wnis. J(i4. The cir- cumstance relied on b.v the plaintiffs coun- sel, is. that the delivery to tlie wile was in fact no chaiiiie of possession, because Ihe possession of Ihe wile Is the possession of the husband, and the wife beinir in the husband's power, he may at any time take back the possession, and thus a voiil the cift. To tfive this obserx ation its full force, it is conteinlfd on the part of the plaintiff, that a tclfi of this kind passes the property immediately, and is not subject to revocation li.v the donor. Without ab- solutely comniittinsr myself. I incline to theopbiion. that in this as in several otiier particulars, it partakes of the nature of a leiracy. and is revocable. .No rase lias been tiled e.\;ictly in ii> iiit : but it is laid down in .\yl. I'anil. :>.'!1, Ih.at It n.ay hi- 656 WELLS V. TUCKER. revoked by the donor's repentiiis; tiiereot; and in Jones v. Selby, Prec. Vb. 30(1. the Lord Chanc'-llDr, in delivering his o'linion, sni<l to tlie counsel, "voii a>;ree that a donatio causa mortis Ih revocable by the tPMtator. " It is true that in the argu- nn'nts of the counsel, as reported, no such concession ai)|)ears. One wouhl liardly Rupriose however, that the chancellor would have used those expressions unle.ss the fact had been so. But the case of Mil- ler v. .Miller, 3 I'. Urns. a.'iG. is strong to the point of delivery. Indeed, the argu- ment from that case is a fortiori; for there the donation was to the wife, and the delivery to the wife, and held good. There Is no weijjht in the remark, that in thatcase the testator delivered thechattel In the first instance to a servant, to be by hinidelivered tothewife; for she was pres- ent, and the delivery over to her was made in a short time and in the testa- tor's presence. There can be no reason why a delivery to the wife for her own use should be good, and yet not good if for the u.-e of another. Cpon the whole then this donation was i)erfect ; it was made in the testator's last illness, and accompanied witli the delivery of the bonils, which is all that the nature of the case admits of. lam therefore of opinion that the plaintiff's rule should be dis- charged. YEATES, J. There seems to me no ground whatever for asserting that the present verdict was contrar.v to evidence. It rested solely on the credibilit.v of Theo- dosia Craig, the widow of the intestate, of which the jurors were the sole judges. They were instructed to deliberate calmly upon her testimony, and on the one hand to consider the danger of such evideme. the necessary consequences of parol evi- dence in such cases in general, and the par- ticular i)repossesKions of the witness in this case towards her niece; on the other hand, the.v were told to recollect, that she testified against lier own interest as to one half of the demand, that the im- pulse of her husband's niin<l was favour- ably directed towards Mrs. Tucker his adopted child from early infanc.v, which was confirmed by the unfinished wills wherein he marks her husband and chil- dren as objects of his bounty, that the probability of her story, her character and manner of giving testimony, should also he taken into view, and a temperate decision formed on the whole. The jurv have atlirnicd the credibility of the wit- ness by their verdict, with wliich I am per- fectly satisfied. As to the conduct of Tucker in cancelling the bonds, and pre- vailing on Steidien Sicard to ai knowledge satisfaction on the record of the mort- gage, after he had assigned it over to the inttstiite, the jury were told that it was highly improper and reprehensible; but if the children independently of these acts were entitled to the benefit of these bonds, such acts would not defeat their interest therein. I think the evidence would have war- ranteil the jury to pronounce the gift to the defendant's children to be absolute in the first instance, and to take effect im- mediately, and- therefore irrevocable ir» its nature. Nothing was said or hinted at, of its being a conditional gift in case of his death; but he gave the bonds to Tucker's children equally to be divided be- tween them; and such might be a good present donatio inter vivos. Supposing however that the act was doueiu contemplation of death, and that it could only take effect as a donatio causa mortis, I think it ma.v heestahlislied as such. It is agreed on all hands, that in such cases the gift must he made in the party's last sickness, and lie accompa- nied by a deliver.v of the article to the donee, or some one in his behalf. The ob- jection made in this instance is, that the delivery to the intestate's wife was in- sufficient, because it still remained while in her possession suliject to bis control, and therefore revocable. The answer is. that a small matter will operate as a good delivery; such as a mixed pos- session, the delivery of the ke.v of the room in which the furniture given is, to the donee. Smith v. Smith. - Stra, U.j.'>. Besiiles, it is fully established, that a wife is capable of taking a donatio causa mor- tis from her husband, being in nature of a leiiacv, though it need not be proved as a will. Miller v. Miller, 8 P. Wms. :3r)6, 2 E(|. Ab. 356, pi. 24; Lawsou v. Lawson, 1 P. Wms. 441,2 Eq. Ab. 575; 3 Wotid. sect. 514. Now. what good reason can be as- signed, that the p<issession of the article by the wife is sutfitient to validate a gift made tiy her husband in his last illness for her exclusive benefit, and yet that a like possession as a.gent for another shall not be good? It is eqnall.v subject to coun- termand and revocation in both instances. She ma.y be attorney to deliver seisin to her husband. Co. Litt. 52a. Mortover we have the authority of the lord chan- cellor for asserting that a donatio causa mortis taking place in futuro, is revoca ble as a will duiing the life of the party. Jones V. Selby, Prec. Ch. 303. And the reason why it should not prevail against creditors, is that it is considered as a legacy. Drur.v v. Smith. 1 P. Wms. 40(i;. 2 P.la. Com. 514. .According to the lan- guage of the chancellor in tlie last case, a man certainli', notwithstanding his will, has a power to give away any part of his estate in his lifetime. He might in his lifetime, after the making of his will, givn away any part of his estate absolutely ; and by the same reason he might do it conditionally. The comlitional gift pre- supposes the power of revocation; were it not so, a gift bona tide in the lifetime of the party, wonld prevail against cred- itors after his death. Many of the observations of the jilain- tiff'.s counsel seem to nie I'ather re'erable- to the general state of the law. as now- settled, than as ohjections to what was done either b.y the court or jury in the cause before them. 1 feel the force of the remarks made, that a written will is at- tended with more security and certain- t.v, than a verbal gift of goods and prop- erty in the nature of a donatio causa mor- tis; and that fiauds and perjurie.'i may arise from parol testimony in the latter case, no reasonable mind can doubt. To- WELLS V. TUCKER. 857 thp court belongs the duty of deciJinB [ will fairly warrant the conclnslnn, that a upon the coinpetcncy of evidence; but tlie 1 ncfariouH Hchenie hnH been nieilitated to jury ultimately must decide upon the plunder the next of kin. I truHt it would credilvility of the witnesses. As to a Hoon lie reiidired iiborl ivi'. widow's oath iu cases of this nature, her On the whole, I aui of opinion, that judjr- interestfl will in senerul prevent her from ment on the verdict Mliould be rendered for acting' colliisively to the prejudice of chil- the defendants, dren, or collateral kin.smen. Should it un- happily prove otherwise. I know of no 1 r5BA("Kl!:XI{II)GI.;, .T., was of the same other safeguard than the intelligence of ijpinion. lnde|)endent jurors. If the circumstances' Judf^raent for detpodantB. WIIEELHOUSE v. PARU. 859 WHEELHOUSE v. PARR. (G N. E. Rei). 787. 141 Mass. 593.) Supreme .ludii'iiil Court of Mnssachusetts. .Middlesex. May 8, ISSG. Tlii.s wiiH an jiction of c<ir»tract to rf- cover .1t;4IO.i;i; for a lot of Iciitlici- K.ild todc- fciidunt. lleiiriiift- in the superior court, ■.vliieli loiind for tin" |)liiintiff, and tlie de- fendant (ipiii'Jiled. 'I'lie facts up[)ear in the opinion. F. \V. Qua and F. P Marble, for ])lain- tlff. Win. II. Anderson, for defcmlant. DEVENS, .1. When kooOh ordered an<l contracted for are not directly delivered to the purchaHer, but are to bi- sent to him by the vendor, and the vendor ileliv- crH them to the carrier, to be traMK|oite(l in the mode agreed on by the partien, or directed by the purcha.ser; or when no unieenient in made, or direction ;;iven, to be tiansijorted in the usual mode; or when the purchaser, lieiuf; informed of the mode <.-f trausportation, assents to it; <!r when there have been previous Bales of other y;oo(ls to the transportation of which, in a similjir manner, tlie purchaser has not objected, — the n(>oils. when ile- livered to tlie carrier, are at the risk of the |)urchaser, and the property is deemed to be vested iu him, subject to the ven- dor's risht of stoppaK*^ in transitu. This proposition assumes that propei- direc- tions and information are siven to the carrier .-is to forwarding the yoods. Whit- iiiR V. Farrand, 1 Cot'n. (IK; (iuiniby v. Carr, 7 Allen, 417; Finn v. Clai-U, 10 Allen, ■1!S4; Finn v. ClarU, I'J .\llen, .jJL'; Downer V. Tiiompson, '2 Hill, 1;J7; Foster v. Itock- well, 104 Mass. 170; Odell v. lioston & .\1. 11. K., 1(1!) Mass. itO; Wijrton v. Uowlev. 130 Mass. L'5-J. The defendant bad made a purchase cf leather in Novemljcr previously to the pur- chase of that the price of which is in con- troversy, under a direction to the plaintiff to "ship to care of D. and ('. Mclver, ship- piuK mercliants, Liverpool, as soon as l)ossible, for their next steamer to Hoston, direct." This shipment was ma<le .-is or- <lered, and on December l(>, isst, the de- fendant sent a fui'ther order sayiuK: "As regards the sliippinK of tho leather just received, you have done everytliin;; satis- factory. iSlup this order in lil<e m;inner." The directions liy which the plaintiff was to l)e controlled must be interiireted jit! re()uirin}j: him to forwar<l tlie floods to D. iV: ('. .\lclver, to lie transported by them by the Cuiinrd line, of which tliey were maniijiers an<I agents. The words "their ne.\t steamer" couhl not have meant any steamer which would accept freifi'ht from D.&C Mclver. Cases may be readily imaKbied where these words wouhl be of tlic liighest importonce; as if the defendant had nn open policy of In- Rurance [irotectlnt; his Koods wliicli" mii;ht be sent by the Canard line. It ii.itihf also be true that the defendant wi;iild not deem a policy of insurance neceHMar.v when Kooils were sent by n well-eslab- lished passcniier line, where greater pre- I'lintions miuht [irobably be taken for safety, whicii he would deem necessary when they were sent by a purely fieinht- injr steamer. The K'Jods were " actually forwarded to I). & C. Mel ver, x% itii instruc- tions in conformity with the diiecliims of the defendant, and, had the matter ended there, HO far as any dii citidiis to D. & C. Mel ver is coiicei lied, the plaint ift would he entitled to treat them as delivcied tti tli« defendant, and to reiiuire him to |ifiy the purchase money. If. on the other hand, while the KDoils were yet in the lianils of the carrier, and before transportation of them hadcomnieiiced, the plaintiff chaimed the directions niven to hini tiy the defend- ant, or autliorized the carrier to tranH- tiort them in a different mode from that directed by the defendant, and loss Iiiih thereby occurred, he cannot contend that ttiey were d.'livered to the defendant by him. liy contiiiuiii;^ to exercise dominion over them, and by tiiviaii a new direction, impliedly wilhdrawinn- t he directions pre- viously };iven, he cannot be allowed to assert tlint he had made a complete deliv- ery by his orifiinal act, if a loss has oc- curred by reason of that which he lina HUbseiiuently done or directed. The clianj.-e in the directionH >riven rela'eH back to and qualities the oriuinal deliv- ery The iilaintiff, in answer to a h'lter from D. & 0. Mclver, after the ^oods had reached them, imiuirint; wheli.er ihs-y were to keep the (joods "for our Hteanier, 14tli inst., or ship by the (iliiinom;aii, " or- dered them to be shippeil by the steamer airivinu out first, presuniablv the steamer which I). & C. .Mclver believed would be the first to arrive. The (>laiiiort;au was not a steamer of any line of \\ hicli D. & C. Mclver were owners or a«enls, and in no way answfis >he description of "their steamer" as applied to I). iV: C. Mclver. By neulectinjr to limit the authority of I). iV C. Mclver to send by a stejimer which could be thus described, and by directing them to send by the steair.er which «oulil first aiiive, the plaintiff had failed to comply with the orders of the defendant as to the shipment of iroods; and if cor- rect directions had oricinally been ;;iven, had withdrawn them, and substiluti'd others. When, therefore, exercisinir the authority thus «ivcn by the plainliff. D. iV C. .Mi'l ver send by the (ilamorKiin, aa beinfl. ill their jinl^rnent, the steamer likely to arrive lirst. and n loss occurs, it should not be boine liy the defendant, whose directions have not been followeil. Judgment for the defendant. WnEELWRIGHT v. DEPEYSTER. 861 WHEELWRIGHT v. DEPEYSTER. (1 Johns. 471.) Supreme Court of New York. Aug. Term, 1806. This was an action of trover, for a quantity of coffee. Tlie caune was tried at tlie New-Yorlv Sittings, tlie l.Stli day of April, ISOIj, liefore Mr. .Iiistice Spencer. At tlie ttiiil, the follovvinn facts ap- peared in evidence. Tlic plaintiffs were ownei-H of the schooner Pejijiy, of New- liuryport, aiicl of a greater part of the car- go, consisting of coffee in liogKlieadK, liar- rels and hagu, marked S. P., and tliey and the master were joint owiK-rs of another part of tlie rargo, lieing (ivehags of coffee, without iiiarkH. The scliooiier had sold her outward cargo at St. Marks, in the island of St. Doniingo, in Junnary, IMH. and took in lier homeward cargo, consist- ing cliietly of coffee, hclonging to the plaintiffs and otiiers. On her voyage llo::".eward to tlie United States, she was captured, the l.'ith of February, ls(M, by a French privateer, and carried into St. Jago de Cuba, where she arrived the 1st of March. The coffee in question was pur- chased, on acciinni of the defendants, of a Spaiiisli merchant, at St. .fago de Culia. atid tlie tliip I'wo Urothers, in which it was brouiiht to New-York, went along siile of the I'eggy, and took it out of her. The coffee came into posse.'^sion of the de- fendants, with the rest of tlie cargo of the Two r.rothers, in May, isiM, and a de- mand thereof was u'.iide by the plaintiffs on the L".)tli 'of May, which was reiused by the defendants. It further appeared, that the coffee in question had been iiurchased by the |ilaintiffs at St. Marks, which all the time was in [lossession of negroes, un- der the g(jvernment of Dessalines. and in « state of revolt from the French govern- ment. Great quantities of coffer are sold at St. Jago de Cnlia. but cliielly [iri/.e coffee. The master anil crew of the Tw o Brothers, when they took the coffee on lioard, had ikj knowledge of the plalnlilfs' claim, but believed it to have been the prcqierty of the vendor there. The defendants then offered in evidence certain proceedings of the agency of the French goveriinunt at St. .lago de Cuba, and the sentence of condemnation of the I'eggy anil her cargo by a French ndmi- rnltv court at St. Doniingo. 'I'liese docii- ineiits were admitted to be duly authen- ticated, and contained the wliole of the proci'edings. The facts which they dis- closed Wfre, that after a proces verbal and examination of the master and male, a survey of the I'egLry was ordered by the French agency of .-it. .lago de Cidia, and it being reportcci that she was leaky, and her cargo in danger of being spoiled, it was ordereil to be sold provisioiiall.v. and the proceeds to be dejiosited. to abide the liiidl decision; and the whide cargo was sold, under such order, to a Spanish mer- chant there; that, afterwards, on the Idlli of April, subsequent to the sale of the coffee to the defendants, a seiiteiue of con- demnation was pronounced oil the coffee at .St. Doniingo, grounded on a pnies verbal drawn up nt sen, and one at St. Jago deCubu, by the French agent there, I at the time the Peggy arrived aa a prize, and on the examination of the masternnd I mate. The cause of condeiiination os- i signed, was a contravention of the ar- I rest of the Frencli goveriiinent. as to the trade and interi-ourse with those parts of the island of .St. Domingo that were in posses>ioii of the negrocH. This evidence > was objecteil to by the plaintiffs, ami was overruled by the juilge. The defendants then offered to prove, that an agency of the French government for such purposes was estublisheil at St. .Jago de Ciiba, by permission of .Spain, with power to pro- ceed in the manner stated : liut the judge overruled the testimony. It appeared in evidence, that, at that time, Spain was not at war with any power. j The judge charged the jury, that the liroperty of the coffee remained in the plaintiffs, and had not been clianged, ei- ther by the purchase made l>y the defend- ants, nor by any of the acts and prm-eed- iugs of the captors, or the French triliu- nals; that in ascertaining the damages, they ought to take into calculation, not only the coffee, exclusively owned by the plaint iffs, but a moiety of that part also owned b.\ them jointly witli the master. The jury found a verdict for the plaintiffH accordingly. The defendants moved for a new trial, on the following ground.s. 1. That the piiqierly in tlie coffee liecnine vested <n tlie defendantH by the purchase; L'. That prize goods may 1ft wfully be solil liy the c.'iptors in a neutr.'il country, with the con-ent of the neutral power; .'!. That a neutral power may lawfully iicrmit a bel- ligerent to bring jirizes into its jiorts. and to proc?ed against llieni there for (.ffi-ntes against the laws of neutralit.v; 4. Tliut a prize carried into a neutral port, may be condemned while lying there, by the tribn- nals in the country of tlie captor ; .">. That prizes may be sold iirevious to a condem- nation, and a coiiileninaticm after such sale, by a court of competent jurisdiction, will devest the original owner of his prop- erty; G. That the proceedings and con- demnation in the present case ought to have been received in evidence, as they were conclusive, and formed a complete defenc(> in the cause; 7. That the present suit is a question of prize or no prize, anil belongs, therefore, exclusively to the jirize courts; S. That the judge misdirecteil the jury, as to the assessment of damages for the moiety of tlie coffee, which the plain- tiffs owned jointly with the master. llniison and I). A. Ogtien. for |>Iain- tiffs. S. Jones and Hoffman, for defend- ants. KKNT, Ch. J. delivered the opinion of the court. This cause was very alily ar- gued by the counsel, and the severnl points sutimil ted. have received, as they merited, the attentive consideration of the court. It was conteniled that a lionn fide p\ir- chase li.v the defendants nt St. .lago, for a valuable consideration, and without notice, was eiiuivalent to a purchase In market overt under the Fnglish law, and bound the property against th- party who had right. As no local law i> al- 862 WHEELWRIGHT v. DEPETSTER. IcReil, or proved, this (luostioii must be' Knveriied li.v tbf Kfiicral piiiicii.les of the law of sales, wliicli we areto presume, un- til the contrary lie shown, are received and adopted in all commercial countries, at j St. .laao as well as at New-York. It was | the maxim of the civil law that nemo plus juris in alium transferre potest quam ipse habet; and this plain dictate of common sense is considered by Pothiei'i and Er- 8kine2 as a fundamental doctrine of the con- tract of .sale in Fi-ance and Scotland ; and I there is good reason to conclude, that it | prevails in most of the countrie.sin Europe \ which linve felt the inHueoce. or obeyed the precepts, of the civil law. Loid Kaimes. in his Historical Law Tracts, tit. j "History of Properly," vindicates this principle in the transfer of chattels, anC observes, that when notions of property wereslijrht, a bona tide pnrchaseof stolen goods, gave a good title agiiinst the orig- 1 inal owner; but tliat in the progress of society, property ac(iuired such stability and energy, as to affect the subject wher- ever founci, and to exclude even an honest I purchaser, when the title of his vendor was discovered to be defective. It was! also a principle in the English common law, that a sale nut of market-overt did not change the property against the rightful owner, and the custom of the city of l<oiidon, which forms an e.xception to the general rule, has always been regard- ed and restricted by the courts, with un- usual jealousy and vigilance. (Comvns' Dig. tit. "Market,"' E.) The effect of such a i)uriha.se made here is not stiictly before us, but I have no difficulty in say- ing that I know of no usage or regula- tiim within this state, no Saxon institu tiou of markets-overt, which c<jutrol» or inteiferes with the application of the com- mon law. 2 The ))urchuse by the defend-, ants dill not. therefore, of itself, and with- out reference to the title of the vendor, give tliem an indefeasible right to the goods in (juestion. ^ The original title of the plaintiffs to the coffee being made out upon the trial, and not contested here, we are next to inquire, whether the power and proceedinns of the agent of the French government, estab- lished at St. Jago, were competent to authorize a sale of the coffee. This agen- cy would appear to have been a prize tri- bunal with limited and provisional pow- ers. There was a jiroces verbal received, and examinations taken by its authority,' and a survey, sale and deposit of the pro- ceeds ordered, and the agency is stated to have been established for such purpo.ses. It also appears, that nt the time of the bringing of the vessel into St. Jago as a prize, and at the time of the sale, Spain was a neutral power, and that there had not been any judicial condemnation of the cargo; but only an order of tliis agency for a provisional sale. I need not ques- tion a provisional sale in cases of necessi- ty.* under the orders of a competent 'Traite du contrat de vente, part 1. n. 7. 'Institute of the law of Scotland, vol. 2. 4S1. 'See Hiern v. Mill, 13 Vesey, jun. 121. < See Jennings v. Carson, i Cranch's Rep. 3. 16. court; but I deny the legality of the power exercised at St. .lago. The object of such tribunals in neutral ports, is probably to facilitate the sale, and increase the profits of prizes; but the object is not to l)e at- tained by such means. Ausis talibus istis non jura suljserviunt. Neutral ports are not intended to be auxiliary to the opera- tions of the parties at war, and the law of nations has very wisel.v ordained that a prize court of a belligerent captor can- not exercise jurisdiction in a neutral coun- try. All such assumed authorities are unlawful, and their acts void. This was so considered by the English court of ad- ruiralt.v in the case of Flad Oyen, (1 C. Rob. Adui. 135.) and by the court of K. B. in the rase of Havelock v. Rockwood. (S 'I'erm Rep. 26S.) Lan.predi^laysdown the same rule by saying that the judgment if condemnation ought to be rendered nut of the territory of the neutral power. The proper and regular court tocundemn, says the highly respected and authorita- tive Answer to the Prussian Memorial, is the court of that state to which the cap- tor belongs; and that questions of prize are, and can be, cognisable only in such courts, and, consequently, that the erect- ing ff)reigri courts, or jurisdictions el.se- where, to take cognisance thereof, is con- trary to the known [iracticeof all nations. o The Austrian ordinance of neutrality of the 7th of August, IMj:^, art. 17. refers to and admits as valid, condeiuna tions only by the judicial authorities of the countries of the captors; and the supreme court of the United States, in the case of (ilass v. The Sloop Betsey, (:J Dallas, 6.) declared^ that no foreign power could of right in- stitute any prize court, or judicature of any kind, within the United .'States, unless warranted by treat.v. Fruiu these cases, from the reason and fitness of the thing, and from the manifest inconvenience and abuse which would result to neutral rights, as well as to those of the powers at war, from the toleration of a contrary practice, 1 am satisfied, that the rule- which I have stated is correct and just, and supported by the soundest authority. The proceedings of the French agency at St. Jago are. then, to be put out of view, as being coram non judice. and we are to- consider the sale as made without any judicial sanction. Such a naked sale by a captor even of property professedly belonging to an en- emy, is void in law. and incapable of de- vesting the title of the original proprietor- It is requisite that a sentence of condem- nation be given by a court of the sover- eign of the captor, before a title to the prize can lie transferred. '^ This excellent rule has been long known and established in the English admiralt.v, as appears by 'De Commer-cio Neutrali, &c. sec. H. See also Azum's Maritime Law of Europe, vol. 2. p. 2.54. 'Findlay v. The U'illiam, 1 Peters's Adm. Decis. 27. Jolly V. The Neptune, 2 Peters's Adm. Decis. 345, 346. The Kierliehett, 3 C. Rob. Adm. Rep. %. See also, Donaldson v. Thompson, 1 Campbell's N. P. Cases, 429. ' See The Nostra de Conceiscas, 5 C. Rob. Adm. Rep. 294. The Falcon, 6 C. Rob. Adm. Rep. 194-19S. Case of The Falcon, 1 Bee's Adm. Rep. 93. Sas- portas v. Jennings, 1 Bay's S. C. Rep. 478. WHEELWRIGHT t. DEPETSTER. 863 the case of Therniolin v. SjukIr; (Corth. | 423, 12 Moil. 14:i.) anil it ni'enis now to lie equally ret'oKnifed on tlierontincnt hh part of the law and practice of nations. Cl'lie case of the Fhul Oyen. I ('. Koli. liiri.and of the Henrick & .Maria, 4 C. Holt. 4:!. Heinec. (le nav. oh. vet. nier. veh. coinn). hcc. 10. Azuni'H Maritinie Law, vol.2, p. L'42. ) Our own Kovernment, alsn, adopted llie rule during the revolutionary war, and liounil itself to observe it. With respect to the capture of neutral vessels under the |)re- teiice of a violation of neutral duty, or of contra venin)4 the decrees of n foreifjn government, as was the instance in the case before us, the necessity of a pi'evious ' trial and judKtnent is still more urjicnt and palpable, and that tiecessit.v is univer- sally admitted. We are next led to examine the effect of the sentence of condemnation at St. Do- mingo, subHe(iuent to the sale at St. .Iniro. This sentence was intended to act retro spectively, and to cure all defects in the I proceedinjis before the French agency, but it doe.s not appear, and from the case we cannot inteml, that the proceeds of the sale under the onler at St. .Jago were de- ■ posited in any other place than St. .lajto, and the admiralty at St. Dcmiinso pro- ceeded to e.xercise jurindirtion over tliecar- Ko, and to adjudue it In wfnl jiii/.c, when the subject matter of their sentence was within the territory of a neutral power. An important and delicate question then arises, whether we arc bound, in such cases, by the decision of a iirize court.** Such a court acts in rem only, and it can- not exercise a competent or efticient au- thority unless it have possession of the snl)jtCt. I'ossessiou must be essential to its jurisdiction. It is the duty of a pi-ize court to K'ive a prompt and fair hearing to all parties, and to restore instantly, if u()- on a summar.v examination tlieri'iloes not appear sulticient K''ounil to proceed. l!ut how can this hearing be liacl, and this restoration made and enf )rrcd, when the suliject matter ill controversy, and perhaps the captors and captureil, are in a foreisn country? The admission of a piactii'c so incompatible with the very constitution of a prize court would lead to the great- e^t confusion. Snpi)ose a foreijrn prize court should sustain a libel against a ves- sel lyinff within one of our own harbours, and shoulil iiroceed to try, condemn and scllthesame; would any person hesitate to say that such a jurisdiction was inad- missible? that such a proceedinii was coram iion judice? To sustain jurisdic- tion in such a case woulil be the liei;;lit of iniusticeand absurdity. Theold rule, nu'ii- tioned by Hynkershock. of allovviuir bel- ligerents to carry their iITizes into neutral ports, and to sell them there, was f,,unded on the doctrine that briuMiny: the pi-ize in- fra jiraesidia ilid of itself work a transfer of title. liut the alteration in the sense and practiceof nations, by re<inirinna judi- cial condemnation before a clunme of ti'le can take [dace, has done away the former Indnliience, as incompatible with tlie new Improvement; an improvement which "See Rose v. Himelv. 4 Cranch's Rep. 241-293. The Soptiio, C. Rob. Adm. Rep. 13*. has become on essential and most salutary control over the exercise of the rigilt of maritime capture. V'alin, who published his Commentaries in ITtiO. considered It then as havitiu become thelaw of natiuns, that prizes could not becarried intoa neu- tral port, unless in cases of necessity, with- out a violation of neutrality, and this prohibition was in one of the established ordinances of the marine. (f)rd. de la .Marine des Prises, art. 14. and Valln, ibid.) .VmouK the reRUlations of conjjfPSB upon this subject, in the year ]7>*1, they uckuowledjrecl their obedience to the law of nations accordinir to the (general usaues of Knrope; uad the.v undoubtedly de- clured their understandiu); <if tliuse usuKes, when, in the same year, they or- dered all prizes to be kept safe without sale, until they had been passed upon by a competent court, and that all prizes were to lie brou;:ht for a judicial deterniination before a prize court within the fniteil States, or within the dominion <.( an all.v of America. (.Jourrals of ('ont:ress. vol. 7. (iS. ISl). I The case cited from March, is interesting, inasmuch as it contains so early a recognition in ICngland. of the modern rule, that a jirize must bebroURht infra praesidin of the power by whosesub- ject it was taken, or the property would not be altered, and the sale would be void. Sir William Scott, in the case of the Henrick & .Maria, (4 V. I{oli.4.S.) ailmitted, that upon principle, and accordiuLr to the better opinion and practice, the prize ounht to be brought within tlie ports of the sov- ereign of the captor, or within those of an ally of such sovereign, and that [lossession founded the jurisdiction ; but he observed, that the Lnglish admiralty bad goiic too far in sanctioning condeiMiutions in ICug- land, of prizes abroad in a neutral port, to permit him to recall the vitious prac- tice of the court to the acknowledged principle. We are. fortunately, under no such embarrassntent in the present case; and though precedentshave controlled .Sir William Scott. ego tamen Scevolaeassenti- or:")!!!!! we are at litierty toconsider the condemnation at St. Domingo us void. for want of jurisdiction in tlie court over the subject.'" It has been strongly urged, that this court is concliideil by the sentence, and has no authority to iniiuire intt) its extent and force, because the question of prize, and all (luestions incident thereto, belong to the exclusive cognisance of the ailini- ralty courts. It Is a sullicient answer to all this, to observe, that we MFC not in(|ulr- ing in'o the (luestlon of prize. The plain- tiffs prove a property in the coffee, and the (lefendnnts justify under a capture, con- demnation and sale abroad; but before the defence can be received. It must .ip- pear that the condemnation was by a court having competent jurisdiction in the ease, and so far we have, ol necessity, •Cicero, Epist. ad fam. 7. 23. ">Soe The Sophie, (! C. Rob. .-Viim. Rep. MK>. note. i The liccision in the ca»i> of the Hciirick & .Maria ] was aflirnicd in the hiith court of appeals. The foinot, .T f. Rob. Aiim. Rep. 2V>. The Purissima I Conception, ti C. Kob. Adiu. Rop. 47. S. P. 864 ■WHEELWBIGHT v. DEPEYSTEU. an inciilcntal jurisdiction. It wriul'3 be a motiHtridis doctrine, to hold tliat we were I'OfK'liiilfil l)y every nssumed niitliority. \Vc are not to examine into tlie validity of tlie capture, l)iil we must look no far as to see^vliether the condemnation wasl)y a tribunal competent to pronounce it in tlie Riven case, and if that is once ascertained, a^ree that we must admit the <lel'eiice to be concliJsive.il In the case of Oildy v. Bovill, (2 East, -178.) a sii-nilar (juestiou arose, as to the lef;ality of a French prize court Hitting in Spain, and no objection was rai.sed as to the conijietency of the court of K. li. to sustain tlie inquir.v: an<l in the case of Havelocli v. Kocliwood, S Term H. i'«8, the .same court did not hesi- tate to declare, that the Krench court of admiralty at nnrKen was illegal. It is the practice of the courts of law in cases of insurance, to reject the decisions of for- eign prize court.-i, if it apjiear, that they proceeded ui)on local ordinances, or on trroutids contrary to the law of nations. ( Mayne v. Walter,:! Doug. 71), and Salucci v .lolinson, 4 Doug. UlM, cited in P.'irk, and admitted as valid in (ieyer v. Anuilar, 7 Term Hep. (i'.Xi. I I cunnotcn tertain a doubt but that we h.nve authority to in()uirp, and are bonni' to say, whether theforeign court was, by the la w of nations, com|)e- tent to pass the sentence in question, and having determined that it was not, that such sentence cannot avail lu the present case. Tlie only reniaiuiug i)oint in the case Is, whether damages ought to have been as- sessed for the moiety of the coffee which "See Rose v. Himely, 4 Cranch, 241. S. P. belonged to the plaintiffs conjointly with the master. This question admits of no difficulty. It appears to be settled In the booiis, that in actions of trover and tres- pass, the plaintiff may sue separately for his aliquot share or proportion of interest in a chattel, and that the defendant may give the joint interest of others in evi- dence, in mitigation of damages, but that he cannot avail himself of the omission of the plaintiff, t<5 unite the other tenanta in common with him in the suit, other- wise than by pleading it in abateme:;t. He cannot take advantage of it at the trial. (Dockwray v. Dickenson, Skinner, (i40. Addison v. Overend, G Term Hep.7(>(i. Sedgworth v. Overend, 7 Term Uep. 2ji0. Blo.xani V. Hubbard, .5 East, 420. Scott V. Godwin, 1 Bos. & Pull. 70-7.5.) The hardship of this case upon a bona fide purchaser is calculated, upon thetiist impression, to strike the imagination. It v,as contended by the counsel, that such inirchasers ought to have been favoured; I but, as an Englisl) judge has somewiiHre j oliserved, arguments upon the liardsliip 1 of a case are only quicksand.s in the law, I which, if admitted, would soon choak and destroy all estaSlished principles. A ! steady adherence to rule in these cases, by ' reijniring the purchaser of captured profi- ! erty to look at his peril to the title, and j to derive it iinder a con)i)etent sentence, will tend to check the intemperate avidity I and irregular proceedings of belligerent I captors. The oijinion of the court, therefore, is, that the defendants take nothing by tlieir motion. Judgment for the plaintiffs. WlirrcOMB V. WHITNEY. 867 WHITCOMB V. WHITNEV. (24 Mich. 4S0.) Supreme Court of Michigan. April 16, 1873. Error to Wayne circuit. D. B. & H. M. Diiffielfi. for plaintiff In er- ror. D. (J. Holbrook, for (lefeiidant in er- ror. COOLEY, J. The main facts inthiscase are undisputed. On tiie Bixteentli day of March, 1871, the jiarties made a contract evidenced by the folio wing writinj;: " Detroit, March IG, 1871. Received of D. Whitney Jr. five hundred dollarH on ac- count for all the upper ()ualiti(>s and select common and cutting up or line coiiiiiion lumber that I make at I{ock Falls in town of Sand Beach, Michiftan, this Keasoii, at fair price, what said Whitney can afford to pay; the lumber is to be delivered on rail of vessel when lumlier is ready toship, or when ve.ssel is ready to send for it. (Sinned) "Hiram Whitconib." The defendant from time to time ad- vanced moneys upon this agreement, and received one cnrno of lumber, in respect to whicli no question arises. (Jn September 22, 1S71, i)laiutiff wrote defendant as fol- lows: "I have all my lotrs now sawed: luml)er ready to ship. The sooner you send a vessel the better J would like it". 1 think there will be seventy M. or more. " On the receipt of this letter defendant sent an ins|)eetur to Rock Falls, who arrive<l thei'e about the fourth of October, and in- spected and approved of about si.\ly- four M. ftet of the lumber, actin;; for liuth parties in so doing. The lumber when inspected was at plaintiff's mill, but as fast as the inspection proceeded, it was haultd on the dock, some fort.v rods, to be ready for delivery on the vessel wlien one should be sent for it. The ins[)ertion was completed on the sixth of October, and defendant was notified thereof on the eleventh of the same month. Two days before the time last mentioned, however, the lumber was destroyed by fire, with- out any fault, neglect or carelessness on the part of the plaintiff, and when this fact came to the knowledge of defendant, lie refused to pay for the lumber, and this suit is brought for the value. The decla- ratkm contains a count for goods sold and ilelivered, and alsoa speci.il count set- ting out the facts; averring plaintiff's readiness and willingness to ileliver the lumber on the rail of the vessel when one should be sent for it, but that before de- fendant sent any vessel to take it, though he had aiuple time to do so, and to load and take away the same, the lumber was destroyeil by fire without the fault, neg- lect or carelessness of plaintiff, by means whereof the defendant became liable to pay a fair price tlierefor, etc. It does not seem to be necessary to set forth the various retjuests tochnrge which were made in the court below, nor the charges given ; the ijuestion in this court is simply this whether, under the tacts stated, the lumber at the time it was ac- cidentally destroyed had or had not be- come the property of the defendant so as to be at his risk. The circuit judue In effect held that it had not. In support of the ruling of the circuit judge we are referred to several decisions, some of which present <|uestions arising under the statute of frauds, and obvi- ously have no aiiplication here. Others were decisions upon contracts for the manufacture and delivery of s[>ecilic ar- ticles, under whicli no title could pass un- til the specific thing was completed and delivered, or in some manner identified and set apart by the act of the parties. Johnson v. Hunt, 11 Wend., l:i7, [iresented the (juestion whether lumber which was l)eing got ready by a Iniilder to |)ut into n house which he had contracted to put up for another, became the firoperty of his employer before it was actually built into the hciuse; and the court held that it did not. This was clearly correct, as up to that time the contract<ir had an un- doulited right to use it for any other imr- rxjse if he iileased. ('(iiiifort v. Kiersted, 26 Barb., 471', was th(! case of a contract for shingles to be manufactured, and which by the terms of the contract were to he the property of the vendees, at eight- een shillings a thousand, on the vendor'r. premises as fast as inanufnrtiircd : he, however, agreeing to deliver them at the store oi the vendees, and to be paid tliree ilollars a thousand at that [dace. The contiact fixed the amount to be delivered at 10(1 .M.. but with the privilege, on the part of the vendees, to increase It to l.")0 .M. The court held that the shiiigles did not become the property of the vendees until in some way designated and set apart so as to be capable of being identi- fied as their property. The sale was not of all the party might make, l)ut only of a specified quantity; an<l the court illus- trate their view of thecontra'-t b.v say- ing, the vendor might have made precisely such a contract with anotlier person. In which case the shingles " would have be- come the property of the one or the other of the parties to whom he had agreed to sell them, according to theirdesignation." This case differs from Comfort v. Kiersted in two important particulars: First, the purchaser here was to have all the lumber of certain kinds widch should be cut; and. second, the lumber coming within the terms of the contract was particuhtrly identifieil and designatcl by the act of in- spection. .Andrews v. Duiant. 11 N. Y., :jr), presented the(iuestion whether, under a contract for the building of a vessel of certain specitied dimensions, to be deliv- ^ ercd complete bv a <Iay named, for a cer- tain price, to be paid as tlie work i)ro- gressed. an.v property in the vessel passed liefore the vessel was completed; anti it was held it did not. That case also has very little liearing upon the one now un- I der consideration. I What is the case l-ere'.' Tlie contract Is [for the purchase of all the lumber of ccr- i tain grades that plaintiff shal' mnnufac- I fare at Rock Fallsduring theseason. The plaintiff could not have s(dd n foot of it to any other person without a distinct viol.ition of his contract obligations. From the time of its manufacture nothing 868 WHITCOMB c. WHITNEY. would neerl to be done to determine the riRtit to the defendant in any particular parcel, but to have it properly Hettled that it fell within one of the grades con- tracted for. An agent duly authorized bad determined that as to all the lumber in question, and had done what amount- ed to an acceptance of it on the part of the defendant. It had then been set ai)art and stored in a proper place for the de- fendant, and was subject to his order. Nothing remained to be done by the plain- tiff except to deliver it on the rail of the vessel; and that he could not do until the vessel was sent. Everything now de- pended on the action of the defendant, which might be expedited or delayed as should suit his own convenience. Had this been a contract for the completion of a carriage from specified materials, to be delivered when sent for, and had it been fully completed and accepteil, so that nothing remained to be done except to make the manual delivery when it should be called for, the setting apart of the projierty under the contract could not have been more complete and unquestion- able than it was here. Where the case is not within the stat- ute of frauds, manual delivery of the ar- ticle sold is not essential to the passing of the title unless made so by the under- standing of the parties. They may agree when and on what conditions the prop- erty in the subject of such a contract shall pass to the prospective owner. — Denio, ,1., in Andrews v. Durant, 11 N. Y., 42. Theii' intention must be the governing consid- •ration in every case. — Channell, B., in Tur- ley V. Bates, 2 H. & C, 211. The title may pass notwithstanding the price is yet to be determined.— Turley v. iSates, supra; Valpy V. Gibson. 4 M. G. & S., 837. In Olyphant v. Baker, 5 Denio, .382, it is said to be "a general rule of the common law, that a mere contract for the sale of goo.ls, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold de- livered to the purchaser." And of the numerous cases in which the expression is used, tliHt if anything remains to be done by the seller the title does not pass, Sel- den, .1., in Terry v. Wheeler, 25 N. Y., ,')25, says they only goto thelength of showing, that where something is to be done by the seller to ascertain the identity, quantity or quality of the thing sold, or to put it in the condition which the terms of the contract require, the title does not pass. And he, therefore, holds with the ap- proval of the whole court, that an agree- ment by the vendor of lumber to trans- port it to tlie cars and deliver it free of charge, did not prevent the title passing immediately where what was sold was selected and designated. Suppose thia lumber had not been de- stroyed and the defendant's vessel had called at the dock for it ; could the plain- tiff have refused to allow him to take the lumber away, and maintained replevin for it it he had done so? If the title had not passed, he could; if it bad, he could not. If it was still his property and at his risk, he might have sold and conveye<l a good title to a third person in the very presence of the defendant after his vessel had arrived to take it away; subjecting himself only to a liability to damages on his contract for a failure to perform it. But we think if he had attempted this, the defendant would not have hesitated to say: "This property is mine; it has been set apart specifically for me, by contract, by inspection, and by designation; by every act, in short, which the circum- stances admitted of being done; the ven- dor owes a service to me in putting it on the rail of the vessel, which he can either perform (ir be liable for the value of ; but if he performs it, it will be in respect to property previously identified as mine, and not at all by way of designation or measurement. Wlioever buys this lumber of him, Ijuys what has not only been pre- viously bought by me, but what has been set apart for me and placed at my dis- posal by the most unequivocal acts ; and I have therefore become vested with a title which 1 shall maintain and enforce." This is vvliat he would have been likely to say had the unfortunate fire not occurred ; and this the law would have justified him in saying. It follows that the plaintiff is justified in demanding payment from him on the purchase. The judgment of the circuit court must be revers>"d, and a new trial ordered. CHRISTIANUY, C. J., and CAMPBELL, J., concurred. GRAVES, J., did not sit in this case. WHITE 0. SPETTIGUE. 871 WHITE V. SPETTIGUE. (13 Mees. & W. 603.; Courts of Exchequer. Jan. 18, 1845. Trover for bookH; to which the defend- ant pleaded not guilty, and that tlie plaintiff wiiH not poHseHsed. At the trial before Holfe, B., at the Mid- dlesex Hittitigs In thin tonii, it appeared that the plaintiff, who was a Boheitor, had iniHsed from da.v to day several vol- unieH of the Statutes at Larpe, which he Buspected to have t)een stolen by a young man who was at that time a clerk in his office. The defendant, who was a book- seller carrying on business in London, heeanie pocsessed of the books by a i)ona fide purchase of them on different days, from a young man who brought them to his shop and offered them for sale. The defendant having sold the books, this ac- tion was brought to recover the value of them. On the above facts ap[iearing in evidence, it was objected for the defend- ant, that, as the plaintiff had done noth- ing to prosecutethe person who had stolen the books, he could not maintain the ac- tion: Gimson v. W oodtull. 2 Car. & P. 41; Peer v. Humphrey, 2 Ad. & Ell. 495; 4 Nev. & M. 430. The learned judge, however, told the jury that there was evidence to sliow who stole the books, and that the property in the goods, being originally in the plaintiff, could not lie taken out of him by any act oi a third party ; and he direct- ed them to tind for the plaintiff, unless they believed the defendant received the goods km)wing them to have been stolen, in which case the right would then merge in the felony, and the plaintiff would not be entitled to recover. The jury having found for the plaintiff, Merewether now moved for a new trial, on the ground of misdirection. The case of Gimson v. Woodlull is an authority against the correctness of the ruling of the learned judge. That was a case exactly similar to the i)reseiit. It was an action of trover for a mare, whiih was jiroved to be the projierty of the plaintiff, and to have been stolen from him, and itajipeared that the plaintiff had good reason to be- lieve that she was stolen from him by the person from whom the defendant bought her. Tlie [ilaintiff Iiad taken steps, both befoi'e a magistrate and otherwise with a view to get back the mare, but had done nothing towards bringing the thief to jus- tice. Best, t\ J., there says, "I am of opinion that the plaintiff has done noth- ing that he ought to have done, and I doubt if a stalenient of facts before a magistrate would be enough. But hegoes to get l)ack the property and not to |)ros- ecute the felon. If I were to hold that this action could be maintaine<l, under sucli circumstances, we should have no morecriminal prosecutions. I take it the law is this — .von must do your dut.vto the public before you seek a benefit to your- self, and then there is no necessity for a civil action. The decisions go not only to the case of an action against the felon, but as to actions against persons wlio de- rive their title under him. There is a case in the Term Reports which says that the property is in d<jubt till after pr<j8ecution. I cannot send this case to a jury, there be- ing no evidence of felony; I think the case should have gone to the grand jury." In Peer v. Humphrey, 2 Ad. & Ell. 4'J.'j; 4 Nev. & .\f. 4.30, the plaintiff was held entitled to recover stolen profierty, but there he had prosecuted the thief to conviction. And Littledale, .1.. says, "Tlie law is. that no action shall be brought, under particular circumstances, until the owner has done his duty by prosecuting. Even that has been done here. l!i Gimson v. Woodfull the pr<jpei-ty must have been changed by a sale in market overt; liesldes, in that case the party had done nothing towards bringing the thief to justice; here he has actually prosecuted him to conviction." [POLLOCK, C. B.— The case of Stone v. Marsh, 6 B. & Cr. ri'A, is a direct authority against the doctrine you are contending for. In that case Lord Tenterden says, "There is, indeed, anotlier rule of the law of England, viz., that a man shall not be allowed to make a felony the foundation of a civil action; not that he shall not maintain a civil action to recover from a third and innocent person that which has been feloniou.-ily taken fi'om him, for this he may do if there has not been a sale in niarket^overt, but that heshall not sue the TeTtTn ; anTT 1 1 may be admit ted, that he shall not sue others together with the felon, in a proceeding to whidi the felon is a necessary party, and wherein his claim appears, by his own showing, to be founded on tlie felonv of the defendant: Gibson V. Minet, 1 H. "Black. 012. This is the « hole extent of the rule. The rule Is founded on a principle of public policy, and where the puldic policy ceases to o|>er- ate, Ihe rule shall cease also. This point was very ably shown in the argument on the behalf of the plaintiffs. The authori- ties were quoted, and need not be repeat- ed ; audit was shown that the familiar phrase' the action is merged in thefehiny,' is not at all times, and literall.v, true. Now, public polic.v requires that offeniler« against the law shall be brought to jus- tice, and for that reason a man is not per- mitted to a))siain from prosecuting an offender, by receiving back stolen prop- ert.v, or an equivalent or composition for a felony, without suit, and, of course, can- not be allowed tomaintain a suit for such purpose. But it is not contended, that any such policyor rule is applicable to the present case; the offender has 8uffere<l the extreme sentence of the la w for another offence of the same kind. " That is a case precisely in point, and It is confirmed by the decision of the house of lonls in the case of Marsh v. Keating. 1 Bing. N. C. 1!)S; 1 Scott..'..] Those cases are distin- guishable from the present, for there the felon had been convicted and executed. Thejudgmeiit of Lord Tenterden caunot be intcndeil to be taken to the full extent o' the language used, for the jdaintiff Is. at all events, bounti to do his best to bring the guilty party to justice. POLLOCK. C. B — I am of opinion that no rule ought to be granted in this case. The court of king's bench correctly ex- 873 "WHITE 0. SPETTIGUE. plnineil the law in the case ol Stone v. Marsh, and the rule of public policy which prevents the Jissertion of a civil right in rcHpect of which a felony has been comrait- tnd, applies onlv to proceedinRS between the plaintiff and the felon himself, or, at the most, the felun and those with whom he must be sued, and does not apply to a case like the present, where the action is brought against a third party, who is in- nocent of the fclonioustransaction. More- over, the defence sought to be raised is not admissible under these pleas. PARKE, B.— I think there is not the least foundation for a rule in this case. In the first |)lace, independently of the point of law, there are neither pleadings to war- rant the defence, nor facts to support it. The only pleas on thfi record are not guil- ty which puts in issue the conversion, and not possessed, which puts in issue tbe plaintiff's title at the time of conversion. Secondly, the books in question in the ac- tion were not proved to have been the subject of a felony, nor, assuming a felony to have been committed, did it at all ap- pear that the thief was amenable to jus- tice. Thirdly, tlie cases which have been referred to, of Stone v. Marsh and Marsh V. Keating, are authorities, that the obli- gation which the law imposes on a plain- tiff to prosecute the party who has stolen his goods, does not apply where tbe ac- tion is against a third party innocent of a felony. Those cases are subsequent to that of Gimson v. Woodfull. ALDERSON. B.— I also think that these pleas do not warrant the proposed de- fence, and even if they did, I tliinli it would be no defence to this action. Assuniing that, under the plea of not possessed, a lien maybe given in evidence (with re- spect to which some difficulty might be raised,) still if you admit evidence of a lien, you cannot exclude evidence to show that it had ceased to exist at the time of the conversion. .So that, supposing the defendant had a lien on these books, and he should prove it under the plea of not possessed, the plaintiff would be entitled to show that the Hen had ceased at the time he converted them. The utmost e.^- tent of the defence set up In this case is, that the defendant was entitled to the possession of the books until the plaintiff had |)rosecuted the felon. He clearly had no right to sell the goods, as he had no property in them; he does sell the goods, and thereby puts an end to the lien, if any existed. I also think that this defence ought to be specially pleaded. ROLFE, B. — I am of the same opinion. I cannot agree to the law as, laid down by Best, V. .1., in Gimson v. Woodfull, that a plaintiff is bound, in the first in- stance, to do his duty to the public by prosecuting; and that if actions like tlie one he was then trying could be main- tained, there would be no more criminal prosecutions. I think that Is too general, and 1 cannot accede to the doctrine. I think the true principle is. that where a criminal, anil consequently an injurious act towards the public, has beeti commit- ted, which is also a civil injury to a party, that party shall not be permitted to seek redress for the civil injury to the prejudice of public justice, and to waive the felony, and go for the conversion. I think the law, as laid down in that case, instead of advancing public justice, would be pro- ductive of very great injustice. It funounts to this, that another person, who has got possession of my goods, uf whicli I have been robbed, may keep them until I prosecute some innocent person whom I may suspect or find out for that I)urpose. In this case there was no evi- dence that the plaintiff's clerk took the goods, and probably he did not, though he may have been cognisant of the rob- bery. I also agree, that the defendant has not pleaded so as to admit this de- fence. With respect to what I said at the trial, that if the defendant had been the guilty receiver of the books, he would be entitled to the verdict, I must retract that, and suspend my judgment on that point, as I entertain some doubt whether I was correct. Rule refused. WIIITKIIOUSIC V. FKOST. K75 WHITEIIOUSE ct al. v. FROST et aL (13 East, 614.) King's Bench, Trinity Term. July 6, ISIO. In trover to recover tlie vahie of Boine oil, the property of tlie Imnkriipt, which was tried at IjancuHter, in Miircli last, a verdict was found for tlic plaiiitiffH for £390, Huliject to the opiiiiun of the court on tlie following caHo: — 'I'he plaintiffs are nssianeoH of John Townseiid, late a merchant at Liverpool; the two Frosts are inerchants and part- ners in Liverpool ; and the other defend- ants, Dutton & Bancroft, are also mer- chants and partners in th(! same town. On the 7th of February, 1H09, Townsend purchased from the defendants, .J. & L. Frost, ten tons of oil, at £:!!) ijer ton. amounting to £.'!'.l(), for which Townsend was to Kive his accei)tance payable four months after date; and a bill of parcels was rendered to Townsenc; by the Frosts, a copy of wliich is as follows . — "Liverpool, 7th February, 1809. Mr. John Townsend, I'.onsht of J. & L. Frost, Ten tons Greenland whale oil in Mr. Stani- forth's cisteriis„at your risk, at £30 £390 Cr 1809. February 14. By acceptance £390 "For J. & L. F., Wm. Pemberton." The said ten tons of oil at the time of his purchase vvere part of fort.y tons of oil lying in one of the cisterns in the oil- house at Liverpool, the key of which cis- tern was in the custody of the other de- fendants, Dutton &, Bancroft, who had be- ft)re that time purchased from J. I{. & J Freme, of Liverpool, merchants, the said forty tons of oil in the .^ame cistern ; and upon such purchase received from the Fremes the key of the cistern. Afterwards Dutton & Bancroft sold ten of the forty tons they had so bought (being the ten tons in ()uestion) to the defendants, the Frosts, who sold the same in the manner before stated to Townsend. On the 7th of February, the day on which Townsend bought the ten tons of oil, he received from the defendants, l'"iosts. an order on Dutton it Bancroft, who held the key of such cistern, they having other inter- ests therein asaforesaid, to deliver to liini. Townsend, the said ten tons of oil; a copy of whi'-li is as follows: — " Messrs. Dutton & Bancroft, Please to deliver the bearer, Mr. John Townseinl, ten tons (Jreenland whale oil. we pur- chased from you Sth November last." (Signed) "J. & L. Frost." The order was taken to Dutton & Ban- croft by Townsend, and accepted by them upon the face of the order as follows: "1,S1)9. Accepted, Mth February. Dutton & Bancroft," Townsend according to the terms of the l)ill of parcels, namely, on the 14th of February, ls(l9, gave to the de- fendants, I'^iosts, his acce|)tanco for the amount of the oil, payable four months after date; but which acce|itiince has not been paid. Townsend never demandeil the oil from Dutton & Bancroft, who had the custody of it. The oil was not subject to any rent; the original im|)orter having paid the rent for twelve? months, and sold it rent free for that time, which was not e.\((ired at Townsend's liatikruptcy. On the '.'lid of May, 1S09, about three months after the |)urcliaHe of the ten tons of oil, a coBimission of bankrupt issued against Townsend. under which he was duly de- clared a liankrupt, anri the jilaintiffs up- pointed Ills as.sigiiees. .\t the time of the purchase, and also at tlie time of Town- send's being declared a bHid<rupt, the oil was lying in the cistern mixed with other oil in the same; and some timeafterwards the flefendants refused to deliver the same to the plaintiffs, notwithstanditig a de- mand was made for the same by the as- signees, and a tender of any chargr's due in respect thereof. When the whole of the oil lying In any o( the cisterns in the oil-house is sold to one person, the pur- chaser receives the key of the cistern , but when a small i)arcel is sold, the key re- mains with the original owner; and the purchaser is charged in proportion to the quantity of oil sold, with rent for the same, until delivered out of the oil-house, unless such rent be i)aid by the original importer, as was the fact in the i)resent case. If the plaintiffs were entitled to re- cover, the verdict was to stand; if not, a nonsuit was to be entered. 'i'here was a similar action by the same plaintiffs against J. H. Freme and J. Freme, Dutton, and Bancroft, the circum- stances of which were in substance the same. Jas. Clarke, for plaintiffs. Scarlett, coutra. Lord ELLENBORODGH, C. J. This case presents a difference from the ordi- nary cases which have occurred where the sale has been of chattels in their nature several, and where the transfer of the property from the vendor by means of an oriler for delivery aeidressed to the wharfinger or other person in whose keeping they were, and accepted by him, has been held to be eciuivalent to an actu- al delivery; the goods l)eing ot the time capable of being delivered. Here, how- ever, there is this distinguishing circum- stance, that the ten tons of oil till meas- ured off from the rest was not capable of a separate delivery; and the question is, whether that be a distinction in substance or in semblanc(> only. The whole forty tons were at one time the proi)erty of Dut- ton & Bancroft, who hail the key of the cistern which coutaiiie I them; and they sold ten tons to the Frosts, who sold the same to Townsend. the bankrupt, and gave him at the same time an order on Dutton A: Bancroft for the delivery to him of the ten tons. To that order Dutton & Bancroft attorn, as I may say ; for they accept the order, by wri'ing upon it "Ac- cepted, 14th of February, Iso'.i." and sign- ing their namesto it. From that nion-.ent they became the bailees of Townsend. the vendee; the goods had arrived at their journey's end. anil were not in transitu; all the right then of the sellers was gone bv the transfer, and they could no longer control that delivery to which tliev had 876 WHITEHOUSE v. FKOST. virtiinllv acceflerl by means of their order on Dutton & liancroft accepted by the lat- ter. The guostion of utoppins in transitu doea not arise, taking- the Frosts to be tlie original Hollers, as between tliem and the bankrupt; the oil had never been in the hands of the Frosts; they only as- sifined aright to it in the hands of the common bailees, which before had been assigned to them. GROSE, J. There can be no doubt that at the time of Townsend's bankruptcy the ten cons of oil in the cistern were at the risk of the bankrupt. All the delivery which could take place between these par- ties had taken place. Dutton & Bancroft, who had the custody of the whole in their cistern, had accepted the order of the sell- ers for the delivery to the bankrupt, and it only remained for Towusen<i, together with Dutton & Bancroft, to draw off the ten tons from the rest. LK BL.4NC, J. Dutton & Bancroft had sold the ten tons of oil in question (which was part of a larger quantity, the whole of which was under their lock and key) to the I'^rosts, who sold the same to Town- send; and there is no claim oo tlie'part of the defendants. Dutton & Bancroft, to detain the oil for warehouse rent. The Frosts never had any other possession of the oil tlian through Dutton & Bancroft; but tlieygave to Townsend an order on these latter to deliver it to him ; and after the acceptance of that order Dutton & Bancroft held it for his use. But some- thing, it is said, still remained to be done, namely, the measuring off of the ten tons from the rest of the oil. Nothing, howev- er, remained to be done in order to com- plete the sale. The objection only applies where something remains to be done as between the buyer and seller, or for the purpose of ascertaining eitlier the quan- tity or the price, neither of which re- mained to be done in this case; for it was admitted by the persons who were to make the delivery to Townsend, that the quantity mentioned in the order was in the cistern in their custody, for they had before sold that quantity to the Frosts, of whom Townsend purchased it, and had received the price. Therefore, though something remained to be done as be- tween the vendee and the persons who re- tained the custody of the oil, before the vendee could be put Into separate posses- sion of the part sold, yet as between him and his vendors nothing remained to per- fect the sale. BAYLEY, J. There is no question of transitus here; the goods were at their journey's end. When, therefore, Dutton & Bancroft, who were then the owners of the whole, sold ten tons of the oil to the Frosts, those ten tons became the prop- ery of the Frosts; and when they sold the same to Townsend, and gave him an order upon Dutton & Bancroft for the delivery of the ten tons purchased of them, the effect of that order was to di- rect Dutton & Bancroft to consider as the properly of Townsend the ten tons in their possession, which before was C3nsid- ered as the property of the Frosts; and by the acceptance of that order Dutton & Bancroft admitted that they held the ten tons for Townsend, as his property; and he had a right to go and take it, without the interference of the Frosts. Postea to the plaintiffs. i WHITMARSH o. WALKEK. 879 WHITMARSH v. WALKER. (1 Melc-. [Mass.J 313.) Supreme Judicial Court of Massachusetts. Sept. Term, 1840. AssiinipHit for money had and received, and on an aKrecment set forth with sli^lit variations in different counts, but in all of them in suDstance as follows, viz., that in September, I>iy8. the plaintiff at the defendant's request bouKliC of bini a great number of inulticaulis raulberry- trees at the rate of twenty-tive cents jter hill, to be delivered on the gronnd where they then were on <leniaii<l by tlie plain- tiff; that the plaintiff then paid 5510 in part of the |)rice, and promised to pay the residue of the price on the delivery of the trees; and that in consideration thereof the defendant then promised to deliver the trees to the plaintiff on demand. A demand by tlie plaintiff was alle;red, and also an offer of payment by him, and a refusal by tlie defendant to deliver. It appeared at the trial before Wilde, J., that the agreement declared on was made, but not reduced towritinn; that the price of the trees was more than f'tO, but that the plaintiff paid $10 as alleged in the declaration; and that the trees, at the time of the agreement, were grow- ing in the defendant's close, and were nursery tree.s raised to be sold and trans- planted. The defendant objected that the agree- ment was void by the statute of frauds. The judge <jverruled the objection, and a verdict was found for the plaintiff. New trial to be had if the judge erred. Huntington, for plaintiff. Wells, for de- fendant. WILDK, J. This action is founded on a parol agreement, whereby the defendant agreed tosell to the plaintiff twothousand mulberry trees at a stipulated ])rice; the trees at the time of the agreement being growing in the close of the defendant. It was proved at the trial that the plaintiff paid the defendant in hand the sum oi ten dollars in part payment of the price tliere- of, and promised to pay the residue of the price on the delivery of the trees, which the defendant promised to ddiver on de- mand, l)ut which promise on his part he afterwards refused to perforin. And the defence is that the contract was for the sale of an interest in land, and therefore void by the He v. Sts. c. 74, § 1. In support of the defence it has been ar- gued that trees growing and rooted in the soil appertain to the realty, and that the contract in (juestion was for the sale of trees rooted and growing in tlie soil of the defendant at the time of the sale. On the part of the plaintiff it was contended that the trees contracted for were raised for sale and transplantation; and like fruit-trees, shrubs and plants, rooted in tlie soil of a nursery garden, are not with- in the general rule, but are to be consid- ered as personal chattels. This question was discussed and considered in Miller v. Baker (1 Met. 27,) and we do not deem it necessary to reconsider It In reference to the present case. We do not consider the agreement set forth in the declaration and proved at the trial as a contract of sale consummated at the time of the agree- ment; for the delivery was postponed to a future time, and the defendant was not bound to complete the contract «)n his part, unless the plaintiff should be ready and willing to complete the payment of the stipulated price. Sainsbury v. Matthews, 4 Mees. & Welsh. :j47. Inde- pendently of the statute of frauds, and considering the agreement as valid an^ binding, no property in the trees vested tliereby in the plaintiff. The delivery of them and the payment of the price were to be simultaneous acts. The plaintiff can- not maintain an action for the non-deliv- ery without proving that he offered and was ready to complete the |)ayuient of the price; nor could the defendant maintain an action for the price without proving that he was ready nnd offered to deliver the trees. According to the true construc- tion of the contract, as we understand it. tlie defendant undertook to sell the trees at a stipulated price, to sever them fr<ini the soil, or to permit the plaintiff to sever them, and to deliver them to him on de. mand ; he at the same time piiying the *le- fendaiit the residue of the price. Am] it is immaterial whether the severance was to be made by the plaintiff or the <lefendant. For a license for the plaintiff to enter and remove the trees would jinss no interest in tlie land, and would, without writing, be valid, notwithstanding the statute of frauds. This subject was fully considered in the case of Tayler v. Waters. 7 Taunt. .■!74; and it was held thiit a benelicini license, to l)e exerci.sed upon land, may be grant- ed without deeil and without writing; and that such a license, granted for a valuable consideration and acted upon, cannot be countermanded. The sul)ject has also been ably und elaDor.'itely discussed by Chief . I usUee Savage in the case of .Mum- ford V. Whitney, 15 Wend. ;1M), in which all the authorities are reviewed ; and we con- cur in the doctrine as therein laid down, namely, that a permanent interest in land can be transferred onl.v by writing, but that a license to enter upon the land of another and do a particularaet or a series of acts, without transferring any inter- est in the land, is valid, though not in writing. .Vnd such is the license on which the plaintiff relies in the (iresent case. Chancellor Kent in his Commentaries, vol. ill. p. 4.'>2, .'Sd Kd., veri' justly remarks that "the distinction between a privilege or easement carrying an interest In the land, and recguiring a writing within the statute of frauds to support it. and n license which nia.v be by parol, in quite subtile, and it becomes ditlinilt in some of the cases to discern a substantial differ- ence between them." lUit no such dilli- culty occurs in the present case. The plaintiff claims no right to enter on the defendant's land by virtue of the license. It is admitted that he had u legal right to revoke his license. But if he exercised hi8 legal right in violation of his agree-, nient, to the plaintiff's prejudice, he Is re- 880 WHITMARSH v. WALKER. sponsible In damages. Wetliinkit tliere i future time, he was hound to sever them fore clear that, RiviiiK to the contract the from the soil himself, or to permit the construction already stated, the plaintiff plaintiff to do it; and if he refused to corn- is entitled to recover. If for a -valual)le ply with his agreement, he is responsible in oonsideration the defendant contracted to damages, sell the trees and to deliver them at a' Judgment on the verdict. WIELEU V. SCiriLIZZI. 883 WIELER V. 8CHILIZZI. (17 C. B. 619.) Court of Common Pleas. Jan. 15, 1856. This was nn action for an ollPtted breach of a contract for the sale of certain parcelH of linHced dcHcribed as Calcutta linHced. The first count of thedeclnration wtated, that, by aKrei'iueiit between the plaintiff: and tlie defendant, the defendant a^rreed to Hell to the plaintiff, and the idaintiff agreed to buy of the defendant, certain parcels of jjotxis by certain shipR, that is to say, aniotiKHt other Hhips, by the ships Gloriosa, Albatross, and Highlander, at certain prices, and l)y the said aKreement the defendant warranted the said Roods respectively to be Calcutta linseed; and that, althouRh before the suit the idaintiff did and performed all matters and condi- tions, and all matters and conditions happened and were performed, and all time elapsed, whieli resjiectively were nec- essary to be done or performed or to elapse in order to entitle the plaintiff to have the said nKreenient and warranty performed by the defendant before this suit; and altliou^h the defendant causetl to be delivered to the plaintiff the hai<l parcels of goods by the said three ships above speclHed: .vet the defendant, bnfore this suit, disregarded his prnmise, and broke his said warranty, in this, that the said parcels so delivered, to wit, parcels by the said ships Gloriosa, Albatross, and Highlander, respectively, were not Calcutta linseed, and were respectively in great part composed of substances other than and inferior in value to (Calcutta lin- seed, and the defendant never (lelivere<l to the plaintiff parcels of Calcutta linseed by or out of the said three ships nljove specified, or any of them, in pursuance of his said contract and warranty; and b.v reason of the premises part of theBaid grxxls so delivered were wholly valueless to and unsaleable by the plaintiff, and, as to and in respect of the residue thereof, the plaintiff was unable to (d)tain the same prices that otherwise he would have done, and was obliged to and did before suit sell the same at greatly reduced prices. There was also a count for money i)aid, money received, interest, and money due on accounts stated. The defendant pleaded, to the first count, that he did not promise or war- rant as alleged, and a denial of the breaches as alleged; and. to the second count, never indebted, payment, aii'l set-off. Tlie cause was tried liefore .lervis, C. .7., at the sittings in London after last term. The facts were as follows:— The defend- ants, who were merchants carrying on business at Calcutta and in Ijondon. on the ISth of Novomlier, IS.54. through their broUers entered into the following con- tract with the plaintiff: — "London, ISth November, 1S54. Sold for account of Messrs. Schilizei & Co., to Mr. W. Wieler, the following parcels of Calcutta linseed, viz.. Per Thalcstris, about 210 tons, bill of lading dated July last. Per Mersapore, about 100 tons, bill of lading dated July last. Per St. Abbs, about 18 tons, bill of lading dated July last. all at 65s. 6d. per quarter, and Per Gloriosa, about 100 tons, bill of lading dated Sept. last. Per Albatross, about 100 tons, bill of ladingdated Sept. last. Per Highlander, about 10 tons, bill of lading dated Sept. last. all at tjfis. per quarter, the cost, free on board, and tlie freight, insurance, and packnges to London included,— tale quale. The amount of each invoice to be paid in fourteen flays from each ship's reporting, by cash, less '2]i per cent, discount, in ex- change forsliipping docuraentsand freight release. Huyer is to have craft alongside each ship as soiin as each parcel of seed is really to discharge, or it is to remain at his risk and c.Npense. FJuyer is to pa.v to sellers on the L'lilh instant, in part pay- ment of tlie ;ibove-nained seed, a deposit of tUHio, which is to be a|iportioned and deducted from each invoice as follows, viz., us. per quarter on the July shipments, and the reniaimler in eciual pro|)ortions on the September shipments. .Should buyer fail to pay for the whole or aiii' part of the above-named seed on arrival, as stated, sellers are to beat liberty to sell such i)art, without further notice, at buyer's risk ; who is to make good any loHs that iiia.v accrue in conseijuence of such sale. Interest at the rate of 5 per cent, per annum to be allowed on the ileiiosit. Should any of the above-named ships be lost, the de|)osit on such parcels to be immediately returned, with inter- est, as stated. "Laing vV Campbell, BroKers. XIOOO paid 20 th Nov., ls.-,4." On the arrival of the seed, the buyer ob- jectecl to the (luality, complaining that it contained a large admixture of ra|)e and mustard seed, and therefore was not, in accordance with the terms of the con- tract, "Calcutta linseed." It apiieared from the evidence that no seed comes to market without some mix- ture, the average being generally about two or three jiercent.; but, according to the evidence of the idaintiff's witnesses, the linseed in question contained about fifteeii per cent, of tares, rape, and mus- tard. The defendants' witnesses, on the other hand, stated, that, though of some- what inferior (juality, the seed did answer the description in the contract. It further appeared, however, that the idaintiff bad sold it as and for "linseed :" and the crushers to whom it was sold proved that it had been used by them as such, and that the cake was sold as lin- seed-cake. On the part of the defendant, it was sub- mitted, that the contract, — which con- laine<I no warranty, but which distinctly intimated to the purchaser that he was to take the seed as It was, — was satisfied by the delivery of that which was known in the market as. and which in point of fact was, "Calcutta linseed." however interior in ((uality. and however adulterated. For tlie jilaintiff, it was Insisted, that, tu the estent of the mixture of foreign 884 WIELER 0. SCIIILIZZI. seeJs, tho nrticle delivered was not lin-| aeed at all within the meaning of the con- tract. ^, . ., In HubmittlMg the case to the jury, the lord chief justice told them, that the ques- tion for them to consider, was, whether the plaintiff got what he bargained for,— whether there was such an admixture of foreign substances in it as to alter the distinctis-e character of the article, and prevent it from answering the description of it in the contract,— more, in truth, than might reasonably he expected. The jury returned a verilict for the plain- tiff,— the 'amount of damages being by agreement referred. Montague Smith now moved for a nevv trial, on the ground of misdirection, and that the vertlict was against evidence.— The defendant was guilty of no breach of his contract, if he su])plied that which was known and usually sold in tlie market as Calcutta linseed. There was no warranty, and no fraud. No doubt it was of inferior (luality. [CRESSWELL, .1.— What was inferior,— the linseed, properly so called? orthecargo?] The cargo. [.JERVIS, C. J.— I left it to the jury, in substance, to say whether the article was so mixed as toloseits distinctive character, or whether it was such as to answer the description in the market, of Calcutta linseed. J His lordship went on to say, — and that is the direction complained of,— "was it (that is, the mixtureor adulteration) more iu truth than might reasonably be expected?" Now, there being no warranty, if this was Calcutta linseed of any quality, however inferior, the plaintiff got what he bar- gained for. The rule is well expressed by Lord Ellenborough in Gardiner v. Gray, 4 Camp. 144. That was the case of a con- tract for the sale of twelve iiags of waste- silk, witliout any warranty that it sliouM correspond with the sample. And his lordshi|), in leaving the case to the jury, said, — "I think the plaintiff cannot re- cover on the count alleaing that the silk should correspond with the sample. The written contract containing no such stip- ulation, I cannot allow it to be superadd- ed by i)arol testimony. This was not a sale by sample. The sample was not pro- duced as a warranty that the bulk should correspond with it, but to enable the pur- chaser to form a reasonable judgment of the comnfljdity. I am of opinion, how- ever, that, under such circumstances, the purchaser has a right to expect a saleable article answeiing the description in the contract. Without any particular war- ranty, this is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveatomptor doesnot apply. Hecannot without a warranty iu.sist that it shall be of any particular quality or fineness, hut the intention of both parties must be taken to be, that it shall be saleable in the market under the denomination men- tioned in the contract between them. The purchaser cannot be supposed to buy goods to lay them on a dunghill. The question then is, whether the commodity purchased by the plaintiff be of such a quality as can be reasonably brought into the market to be sold as waste-silk. The witnesses describe it as unfit for the pur- poses of waste-silk, and of such a quality that it cannot be sold under that denomi- nation." CRESS WELL, J.— I am utterly unable to discover any misdirection in this case. It is suggested that my lord was wrong in telling the jury that the question for them to consider was, whether the linseed delivered contained a greater admixture of foreign substances than might reason- ably be expected; and that he should have left it to them simply to say whether or not it answered the description of Cal- cutta linseed. But I tliink that what my lord meant, and what the jury must have understood, was, that they were to say whether tho article delivered reasonably answered the description of Calcutta lin- seed, that is linseed with a reasonable amountof adulteration only. My lord does not express himself dissatisfied with the verdict: and I see no reason wh.y we should be eo. I think there sliould be uo rule. CROWDER, J.— I also think there was no misdirection. Looking at the whole course of the evidence, it appears to mo that the jury were rightly told to consider whether the amount of adulteration was greater than the plaintiff might reasonably expect. That expressi(jn was not used, as Mr. Smith suggests, as a qualification of the rule of law. The jury in effect found that the article delivered did not reasona- bly answer the description in the eon- tract: and, as my lord chief justice is not dissatisfied with the verdict, I see uo ground for quarreling with it. WILLES. .J.— Thejury have in substance found that the linseed in question was so mixed with seeds of a different and inferior description as to have lost its distinctive character and prevent its passing in the market by the commercial name of Cal- cutta linseed. The purchaser had a right to expect, not a perfect article, but an ar- ticle which would be saleable in the market as Calcutta linseed. If he got an article so adulterated as not reasonably to an- swer that ('escription, he did not get what he bargained for. As, if a man buys an article as gold, which every one knows requires a certain amount of alloy, he can- not be said to get gold, if he gets an arti- cle so depreciated in quality as to consist ol gidd only to tl;e extent of one carat. JERVl.S, C. .1., concurred. Rule refused. WILCOX V. MATTESON. 887 WILCOX V. MATTESON. (9 N. W. Rep. 814, 53 Wis. 23.) Supreme Court of Wisconsin. Sept. 27, 1881. Appeal from circuit court, J?fferBon county. Statement by TAYLOR. .!.: TliiB actii)n was brou^l't to recover the amount of u promlHHory note Kiven liy the defendant to the deceaKed Iiu.sl)aud of the plaintiff, payal)le to his order, and in- dorsed by him in blanli. The answer de- nies the ownersliii) of tlie note by the plaintiff. The question of ownership was the only question litigated on the trial. The plaintiff claimed upon the trial that the note in question ha<l been Riven to her by her husband in his life-time. The only evidence tendinp; to prove such ownership was the followinR: Harriet Kdj;ar, a witness for th(' plain- tiff, testified that sheatteuded thedeceased liUHhand in liis last sickness, and that on the nisht of his death, and about three hours before liis decease, the deceased "told me that his pocket-book was under the feather lied, just under his shoulders, and for me to take it, and xive it to his wife when sliecame; that there was some money and papers in it that would lie of value to her, as she would need them. He afterwards died at 1 o'clock in the morninK- I continued there, remainint; with his corpse until about it o'clock in the morning, eifrht liours after he died, when Mr. Dyer Williams came into the room, and Mr. Williams turned the corpse over, and 1 took the pocket-book referred to out from under liis shoulder and niivc it to Mr. Williams, telling him that Mr. Wilcox requested me to give the pocket- book to his wife; and Mr. Williams took the pocket-book, saying he would give the same to Mrs. Wilcox if she came, and if she did not come he would sen<l it to her. From the time of his death until Mr. Williams came 1 had exclusive charge of the room in which the deceased lay, and was not out of the room five minutes dur- ing all that time. " Dyer Williams, a witness for the plain- tiff, testified that he saw Wilcox about six hours after he died. "When 1 arrived in the room where the corpse was. .Mrs. Har- riet Edgar, his nurse, told me that Mr. Wilcox the niglit before had reijuested her to give a certain iiocket-book under his shoulder to his wife, as he wanted his wife to have it, and that he wanted the nurse to see that his wife got it herself. I then moved the corpse so that the nurse could get the i)orket-book, and then she gave it to uie an<l requested me to give it to Mrs. Wilcox. I took the pocket-book and kept it in my possession until Mrs. Wilcox ar- rived, and then gave it to .Mrs. Wilcox be- tween S and 9 o'clock in the evening after her husband died, delivering the message the nurse had communicated to me con- cerning Its disposition— that it was a gilt from her husband." The plaintiff herself testified that tlie note in suit was in the pocket-book when it was delivered to her. and that it was indorsed by the deceased in his own hand- writing. She also testified that she had been duly marrie(i to the deceased, and that the deceased died without leaving any children or other lineal descendants. U(ion this evi(h'nce the learned circuit judge directed a verdict for the plaintiff. To this ruling the defendant duly except- ed, and he appeals to this court from the judgment rendered upon such verdict. Harlow Pease, (or apiiellant. R. B. Kirkland, L W. ^ (i. W. Hird, and Wm. H. Rogers, for resiiondent. TAYLOR, J., (after stating the facts as above.) Upon this apiical the defendant al- leges as error that the evidence produced on the trial shows allirmatlvely that the note upon v.-hich the action was brought was not owned l)y the [ilaintiff, but be- longed to the estate of her deceased hus- band, and that the evidence offered for the purpose of showing a gift of the same by the deceased to the plaintiff dui'ing his life- time failed to show such gift. We are con- strained to agree with the learned counsel for the appellant that there is no evidence in the case which shows any delivery of the p(jssession of the pocket-book anil its contents during the life of the husbarit) to the plaintiff, or to any other person, for lieruse. If weconstrue the language of the deceased most favorably for the plaititiff, and that his recjucst to the nurse Ldgar was that she should inimedjately, and before his death, take the pocket-book into her possession and keep it for and deliver it to his wife when she came as her prop- erty, still the evidence fails to show that the possession iiassed from the d'-ceasid to the nurse for the use of the plain tiff until after his death. The nursestales that she ilid nothing, after the deceased instructed her what do with the pocket-book, until several hours after his death. Admitting that the nurse might have received the possession of the property for the plaintiff in her absence, and that the actual receipt of it by her, in the life time of thedeceased, would have l)een effectual to pass the title to the plaintiff, the fact remains that she did not take possession during his life. If this can be upheld as a gift, then it must be upheld on the ground that the jiosses- sion of the property passed by force of the wt)rds of the deceased, expressing a desire that it should pass. We know of no case where a gift has l)een upheld when no act has been done tending to change the possession of the property which Is the subject of the gift from the donor to the donee. The pocket- book was in the actual jxissession of the donor at the time when the conversation l)etween him and the nurse took place, and it so remained until his death, with- out any change in its location, or any at- tempt to change the same. There is no doubt of the intent of the deceased to give the property to his wife. I)ut there Is an entire absence of proof of any act done either by him or l>y the nurse, standing in the place of ttie wife, which tends to show any surrender of the possession l)y the husband, or any taking possession thereof by the nurse, during the life of the 888 "WILCOX V. MATTESON. liusbancl. To make a gift perfect, all the CMScs holil that the possession of tlie sub- ject of the Kift must paw from the donor to the donee. ThiH lias been so decided by this court, and it is therefore unneces- sary to reaort to the decisiouB of other courts to sustain our rulinR in tliis case. See Wilson v. Carpenter, 17 Wis. .512; Resch V. Senn, 28 Wis. 2ts(!. In the first casecited, this court adopted the rule laid down by Chancellor Kent in his Commentaries, as follows: "Delivery in this, as in every other Ciise, must be according to the nature of the thins- It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum sub- jectum materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the pos- session, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment or someequivalent instrument, and the trans- fer must be actually executed." In the case at bar the subject of the pro- posed gift was of such a character that an actual delivery could have been made, but none was made. The possession remained in fact exactly the same after the direction given to the nurse as it was before, and so continued until the death of the donor. We think the evidence clearly shows that the title to the note remained in the deceased husband at the time of his death, and that the learned judge erred in airect- ing a verdict for the plaintiff. Upon the argument in this court the learned counsel for the respondent claimed that the judgment might be upheld upon the ground that the widow was entitled to the note under the provisions of subdi- vision 1, § 3935, Rev. St. 1.S78, which pro- vides that, upon thedeath of her husband, the widow shall be allowed certain speci- fied property, and, in addition thereto, household furniture not exceeding in value $2.50, and other personal property not ex- ceeding in value $200, to be selected by her. The difficulty with this claim is that the note in question is not one of the specific articles of property which the statute al- lows to her, and there is no evidence that she had selected the note as a part of the other property, not exceeding $200, to which she is entitled. In order to entitle the plaintiff to hold this note as a part of the property of her husband, which is given to lier by the section of the statute above quoted, she must show that it has been selected by her. In the absence of any proof on that subject, we cannot say that the plaintiff acquired any title to it under said section. See Resch v. Senn, supra. The judgment of the circuit court is re- versed, and a new trial ordered. I WILLIAMS V. ALLEN. 891 WILLIAMS V. ALLEN et al. (10 Humph. aiO.) Supreme Court of Tennessee. Dec., 1849. ARSumpsit in tbecircuitcourt of Sumner. Plea nDn-aHHumpsit. There was a ver- dict oiul jii(l«ini'iit for tbe defendant. The plaintiff appealed. J. C. Guild, for plaintiff. Baldridce and Head, for defendants. McKINNEY, .1. It appears from the bill of exceptions in this cbhc, that in the lat- ter part of the year 1S47, th(! plaintiff burKained witli the defendantH for thepur- chase of a (luantlty of corn. I'revious to tlie purchaHc, the corn had l)een i)ut in liens, on the hank of I'.ledsoe's treek near ils junotion with Ciimherland river. The barjjjain was for all the eorn in the pens at the price of $1 perbarrel ; and theijuan- tity, not beinfi then known, wa.s to be as- certained afterwards Ijy actual measure- ment. It does not appear that any time was fixed either foi- the measurement of the corn, or payment of the price. In the month of December, 1n47, before the corn was measui'ed, it was swept off by a flood, and wholly lost. It appears from the proof that, after the purchase, the plaintiff assumed to be the owner of suld corn, and torliade nn ollicer to levy upon It as defendants' proiierty, statin}; that It beliinsed to him, that he hail bought It and paid part of tlie price, and was to pay the i)alance on his return from market. On the other hand, there is proof that when the flood liesan to threaten the loss of the corn, the defendant, Robert .Allen, applied to some of the witnesses to aid him in savins it, "and called it his corn at the time." The witness, Mathews, heard a conversation between plaintiff and de- fendant, Robert Allen, some time after the contract for the pui'chaso of the corn. De- fendant " wished plaintiff to let him have a horse in part pay for the corn ; plaintiff told him that the corn was not measured and tlelivered to him, and he was not bound to pay until this was done, yet, to accommodate him, he would let him have the horse." It further appears from the proof, that between the time of the ontract ami the loss of the corn, plaintiff let the defend- ants have a horse, some pork, and a small amount of money, towards the payment of the price of stild corn, to recover back the value of which, the present suit was brouKht. On the trial in tlieclrcuit court, the jud-ie instructed the jury. " that if the pbiinliff boti'-rht .I parcel of corn from detendants, vvlilchwas in pens, separate and distin- guishable from all other corn, at the price of one dollar per barrel, and there was nothing to be done by defendants l)Ut to measure It with plaintiff, and deliver it, the property in the corn vested Miicondi- tionully in the plaintiff, and the risk was of course his." This instruction, we think, was Incor- rect. The general principle is well estab- lished, that no sale is complete, ^.o as to vest an immediate right of prorierty in the buyer, so long as anything remains to be done, as between the buyer and scILt. Whereeoods are sold by number, wwight, or measure, so Idiik as the specific i|uaD- tity or measure is not separated and iden- tilled, the sale Is not completed, and the Koods are at the risk of the seller. .Story on ("on. § son. The contract may be com- plete and bindlntr in other respects, but the property In the goods remains in the vend(*r, ami they are at his risk, if any act Is to be done by him before delivery, either to distinguish the goods, or ascertain the price thereof, t'hitt.v on ("on. '.il'i, notel. Though the subject-matter of the con- tract be clearly ascertained, yet if the price cannot be calculated until the parties have weighed thegoods. no property there- in passes to tlie buyer till such act bedone. }Simnions v. Swift,:") 15arn.<Sc ('. N")7; Cliitty on Con. :!77. Where several bales of skins (stated in the ronti-nct to contain five dozen in each balel were sold at a eertalsi sum per dozen; hut It was tin- duty of the seller to count over the skins, to see how many each bale actually contained, and hefore doing so, they were consumed by lire, Lorcl Ellenborough and Sir .lames .Mans- field held, that no action couhl be main- tained against the purchaser for the value of the skills, and that the loss fell entirely upon the seller. Zagury v. Kurnell, 2 Camp. L'4-'. See, also, Hanson v. .Meyer, fi Hast, CU: Ku„'g V. MInett. II East, 210; Simmons v. .Swift, ,"> Barn. & C. S.")7. .\nd a mere assumption of ownership, or control by the purchaser, will not be sutliclent evidence of a delivery. At most. It affords merely a presumption of ileliv- ery. which ina.v be repelled by evidence showing that the title remained in the vendor. The foregoing authorities which, we think, lay down the law correctly, dearly show, that the circuit judge erreil in di- recting the jury, that the property in the corn in nuestion was vested In the (ilnin- tiff, notwithstanding the (allure of the ile- fendants to measure ami deliver It. On the contrary, by p-ason of their failure to do so. th" right of property reninineil un- altered, and conseciueiitly the rl-k and loss were exclusively theirs. The judgment will be reverseil. WILLIAMS V. BACOX. 893 WILLIAMS V. BACOX et al. (2 Gray, 3.S7.) Siiprpme Judicial Court of Massacbuuctts. Oct. Term, 1854. Action of contract. The declnrulion iil- leiit-'d thut tlie ilcfoiHlaatK on or iilioiit the iKtof June, IS.j;!, contracted to sell anil ile- liver to the phiintiff, on board vcHnel at Philadelpliia. on (h'niand, 5(MI toMH reil i\n\\ egK and stove coal at the price of .f;!. 70 per ton; and .j(l() tons wliite ash coal at tlie following prices, namely, lOO tons ivliite ash esK coal at $:\.i:> per ton, 100 tons white ash stove coal at $:iA'i per ton, and 100 tons white ash lump coal at ^',',A>*) per ton: and that the plaintiff on the KUh of August, ls.'?:5, demanded said coal of the defendants at Philadelphia, hut they then and ever since neglected and refused to de- liver the same or any part thereof. The <lefenilants in their answer ilenied any purchase of coal by the plaintiff of the defendants, or any aRroement i>f the de- fendants to deliver coal; and also relied on the statute of frauds. At the trial in the court of common pleas, Male Keniinfrton, an a{;ent residing; at Fall Itiver, of the defendaists, who lived in Philadelphia. beinK calleil as a witness for the plaintiff, testified as follows: On the 3J of June, ]S.^:^, he made a verbal con- tract with the plaintiff at Taunton ; and on the same day, at Fall Hiver, his clerk by hi.s order entered in his book of sales, on a i)af;e headed "Sales on account of F. Bacon i& Company," the following niem- ornndum ( which was not sijrned) : "Sold to B. F. Williams of Taunton JlOO tons vkk and stove red ash; -JOO tons ejiK ?;i.70; :J00 tons stove f;j.70. Sold :;00 tons eprg and stove wliite ash; 100 lump $;!.(;0; 100 ejrjj; *a.45; 100 stove $:^.4.">." On the same day he wrote a letter to the defendants ( which was producetl upon the call of the i)lain- tiff), in which he said: "1 sold this niorn- infr to 15. F. Williams of Taunton, to lie shijiped to Dii;lituii, Mass., as follows: «:!.70 for H. A., and $:iA:> for W. A.; :i00 tons H. A. slove; ^00 tons IL A. e^K: 100 tons W. A. ejis: 10 tons W. A. slove; 700 tons, all to be delivered before .\u;;-iist 1st. You may ship it early in July, or before, if it suits" better to do so." On the II tli of July he received a letter from the plaintiff, askin«:for"a statement of our coal en- Katieineiit ;" to which he replied by the followiuir letter: — "Fall liiver, 11 July, 18.".3. Benjamin F. Williams, Ksi)., Tanntoii. DearSir,— Your favor of this date is before us. In reply woulil say that I have agreed to sell you 200 tons red ash stovecoal at f :i.70 ; :I00 tons reil ash eji^ at .If:!. TO; 100 tons white ash eijtr at !if;!.4.'); 100 tons white ash stove .f:!.J.".; 100 tons white ash lump :#:!.(iO. The above prices to be charjied deliverable on board vessel at Philadelphia. The coal is now ready for delivery, and you will please forward vessels as soon as you please, and we will put the coal on boa'd. Our people will use all exertion to pincure vessels at K<iins rates of freight, and i [ire- sume they will succeed. If not, you must send vessels for it. Freights are now $1.50 and $1.45 to Fall River. Coal is now [worth at Philndeliihia I.3.S.-), and I think the sooner y<iu Ket your coal the safer for you. Yours truly. Hale BeminKton." I On ilie Nth of .VMnnst he sinned and gave J the pliiintiff an order addressed to the de- fendants, and thus expressed : " Please de- liver the hearer, for B F\ Williams of Taunton. Mass., coal as he may order it from time to time,— red ash, egg or stove, as he may choose, .')00 tons; white ash, 200 tons, one-half lump, balance egg orstovp." And there was evidence that the plaintiff on the loth of August presented this order to the defendants, who refused to accept it. I'pon this evidence, lioar. J., ruled that the action couhl not be maintained, and directed a verdict for the defendants; and the plaintiff illeged e.Nceptions. E. H. Bennett, for plaintiff. T. D. Eliot, for defendants. MLIUJICK, J. The presiding judge ruled at the trial that the evidence ad- duce<l by the plaintiff was insutlicient to enable him to maintain this action, an<l <Iirected a verdict, which was thereupon returned, for the defendants. To deter- mine whether that ruling was correct, it is necessary to keep in view the distinc- tion between evidence of a contract and ev iilence of a compliance with the provi- sions of the statute o' frauds in relation to it; for the defendants in attempting to sustain the iiiling do net now deny that the testimony of Hale Beniinnton afforded adei|uatc proof of a verbal con- tract between tin; parties, whereby the plaintiff agreeil to purchase and the de- fendants to sell the <)Uiintity and various kinds of coal mentioned 'n the declara- tion ; but they insist that no note or niemoranduin in writing was ever made (if it and signed by themselves or by any aulhorizeil person in their liehalf. .And they contend that the let ter of Iteming- ton of the lltli of .Inly, IN.V!, which is re- lied on by the plaintiff as a suflicient cuiu- pliance witii the pr<ivisions of the statute to give validity t<i the contract and make it obligatory upon them, cannot proper- ly be alloweil to have that effect; first, because it was no part of the res gestre, and constituted no part of the negotia- tion between the parties, and is only a narrative of a past transaction ; a ncL sec- ondly, because it does not purport on its face to be, and is tmt in fact, signed by . them or liy any duly authorized person Id their behalf. A note or tnemoraiiduin in writing of an oral cintract is essentially different from a written contract. The latter su- persedes and takes the place of all preced- ing negotiati<ins, and is conclusive evi- dence of the stipulations and bargain be- tween the parties. But the former may be made at any time after the parties hnveentereil into engiigenients with each other bv a verbal agreement. Sieve- wright v. Archibald, 17 Ad. & Fl. .N. S. 107. 114. In the very nature of sucli trans- actions, the mcmorairdum must be jioste- ''. rior in point of time to the contract of [ which it is the reconl. .\tid It has accord- ingly often been determined that docu- ments and letters, though they were all 894 WILLIAiMS V. BACON. written subsequent to the concluHion of the haraain, iniiy be coupled tosether, if it apiieur that they nil bad relation to it, for the purpose of shewing that a written niernorand.nn of it was duly made and siKned liy tlie party to be charged. Allen V. IJennet, y Taunt. l(i!). The evidence produced upon the trial in the present case had a direct tendency to prov.' that a verbal contract for the sale of coal, as is alleged in the declaration, was made by and between the parties at Taunton, on the .-id of June, ISf).-!. In that negotiation rieniinKton acted for the de- fendants. Me was their duly constituted afieiit, and was authorized in that ca- pacity to sell or to contract for the sale of coal on their account. Such an agency im|)lled the riglit to do whatever act was necessary to make the engagements he entered inti), in the exercise of the power it conferred upon him, binding and obli- gatory upon his principals. He was there- fore legall.v competent; and it was lawful for him, after having verbally agreed with the plaintiff for the defendants to sell him j certain ()uantities of coal at stipulated prices, to make a written note or ineni- orandum of the bargain, and sign it For them and in their behalf. And this he might lawfully do at any time before his authority to sell, or to complete a con- Irnctof sale, was revoked or annulled. On the nth of July he was asked by the plaintiff for "a statement of ourcoal en- gagement;" to which re'iuest he replied in his letter of that date. A jury vvoulil l)e well warrnntel in inferring from the evidence in the case — and indeed we think they could justly arrive at no other con- clusion— that the request and auswerboth referred to the bargain which had been previously made by them on the .3d of June at Taunton. If so, the letter was a full and complete memorandum of the bargain. It states explicitly the agree- ment to sell, the price, (juantities, and de- scription of the different kinds of coal sold, the place where it was to be deliv- ered, and tha time when the payment for it was to t)e made. This memorandum therefore, contain- ing all the elements of a complete bargain, was HUfficient to meet the requirements of the statute, if it was signed in behalf of the defendants by a jjcrson thereunto duly authorized. The letter was signed by Remington; and he does not name his principals, or express in terms that in do- ing it he acts as their agent. But inter- preting certain expressions contained in it in the light afforded by a knowledge of the situation of the parties, there can be no doubt that he wrote it, not for him- self, but for them. There is nothing in the case having f.ny tendency to shew that he ever made any such bargain on his own account, or that he ever had any such coal of his own to sell; but it is certain that he did make such a bargain with the plaintiff on behalf of the defendants, and on the same day communicated to the de- fendants the fact that he had made it They resided at Philadelphia, and the let- ter obviously refers to them when the plaintiff is told in it that the coal is readv for delivery at that place; that "you will forward vessels as soon as you please, and we will put the coal on board. Our l)eople will use all exertions to procure ves- sels at going rates of freight, and 1 pre- sume they will succeed. If not, you must send vessels for it." These allusions could be to no persons but the defeiidant.s, who were thus distinctly pointed out as the party to be charged with the obligation of performing the contract referred to. The signature of a memoranduiu which is a sufficient conipliance with the jirovi- sions of the statute may be made by an agent, though he write his own name in- stead of that of his principal, if it was his intention that the latter should be bound bv it. 2 Parsons on Con. "iiM ; Trueman V. Loder, U Ad. & El. .W), and 3 P. & Da v. L'()7; White v. Proctor, 4 Taunt. L'09. There is a very slight variance in the statement of the terms of the contract be- tween the letter of the 11th of July and themenioranduni which Remington caused to be made of it on his book at Fall Riv- er. And in his letter of the 3d of June to the defendants, he omits to mention the 100 tons of lump coal which was embraced in it. But in reference to the question arising upon the bill of exceptions, these variances are unimportant. The plain- tiff made a verbal agreement witli the de- fendants for the purchase of a quantity of coal. He subsequently called upon their agent for "a statement of our coal engagement;" and the letter of the 11th of July was written in answer to this ap- plication. It was sent and was received as an authentic statement of the tsrms and provisions of the previous bargain. It is immaterial that itdoes not in all par- ticulars correspond with the items con- tained in the communication of Reming- ton to his principals under date of the 3d of June, or in the memorandum which he caused to be placed on his own book at Fall River. These latter are of impor- tance only as they serve to corroliorato the other evidence in the case adduced to prove that a verbal contract had in fact been previously made by the parties. But having been written without the knowl- edge of the plaintiff, he could not have rec- ognized whnt was thus stated to be true, or assented to it as correct, and of course is not to be bound by it. On the other hand, it cannot he doubted that in |)re- paring and furnishing to the purchaser, at his request, a written note of the verbal contract, the agent who made it would, with a vigilant and proper regard for the rights of his principals, be careful to fall into no error in bis representations. The letter which he wrote to the plaintiff pro- fes.sed, and purported upon its face, to re- cite with precision and accuracy the terms of the contract, and was received and ac- cepted, and has ever since been relied up- on, by him as a true and correct state- ment of it. Both iiarties having thus afiirmed it and assented to its correctness, the memorandum contained in the letter of the 11th of .July must be considered as conclusive evidence of the previous verbal bargain. Exceptions sustained. I WILLIAMS V. JACKMAN. 897 WIIJJAMS et al. v. JACKMAN ot al. (16 Gray, 514.) Supreme Judicial C!ourt of Massachusetts. Nov., 1860. Action of tort for tlie conversion of an unfini.shefl Kliip. .\iiH\v('r, proijerty in (lie defendtints as aBsi;;iiceH of CiirriiT & TownK(!i;(l, insolvuut ilcbtorH. The cast- waH Hubinitted to the jiidunient of the court, with power to draw such infer- ences aK a jury nil;;ht, upon an ayreed statement of facts, in Hul)stanco aa fol- lows: — On the 14th of March, 185G, an agree- ment in writing was made between the plaintiffs and Cnrrier & Townsend, by which the lattei- ufidertook to build, firi- isl), and complete, read.v for sea, for the plaintiffs, a first-idass copper-fastened slii|), to 1)6 ready for sea, at a wharf in Newlmryport, by the 1st of July, IS'iU; the plaintiffsagreed to i)ay to (furrier & Town- send, "from time to time, while said ship is building;. Hie sum of twenty to twenty- tive tliousand dollars, and when the ship m ready for sea, sut'li amount as shall make ultoKether the sum of fifty-ciHlit thousand dollars;" and it was ajirei'd that "no interest is to be charged on the amounts ad vanced " to Currier & Town- send by the plaintiffs. On the :22d of March, the plaintiffs fur- ther agreed in writing to pay Currier & Townsend, "till the amount of twenty to twenty-five thousand dollars is paid as per contract, one tliousand dollars every ■week, Saturday."' The making of the first aitreement was preceded by verbal negotiations, in the course of wliicli the plaintiffs iiiforineil ("urricr & Townsend that Captain Israel P. Williams would su|)erintend in their be- half the building of the ship, and Currier & Townsend gave their assent to this arrangement. Captain Williams had pre- viously superintended the bnilding of an- other ship by Currier & Townsend for the plaintiffs. On the l.-)th of .March, the plaintiffs addressed a note to Cunier & Townsend, stating tluit they had ea)- ploj-ed Captain Williams to superintend tlie building of the ship, and requesting that he might be considered tiieir agent in all things i)ertaiinng to such superintend- ence. This note was delivered on the same day by Captain Williams to Currier & Townsend at their place of business. .■\bout the same time, Currier & 'I'own- send began to build the ship, and carried on the work till the !)th of the following .Ma.v. Every day during this time. Cap- tain Williams was at tin? sliip-ynril where the ship was huildinir, giving directions, - making suggestions, talking with Currier & Townsend about the work, and devot- ing Ills whole time to superintending it; and the jilaintiffs paid him his expenses, and three dollars a day for his services. The jilaintiffs paid tliree thousand ilol- lars to (furrier & Townsend on the JJd of March, and one thousand dollars tin Sat- urday of every week thereafter, until the work was stofiped. This money wua LAW SALES — 57 paid on one occasion by one of the plain- tiffs, an'' on every otl)er occasion by Chi)tain Williams, who called ar the plnin- tiffd' iilace of business on Saturday of ev- ery Week to receive it, and at the same time reported to them the progress made in the work. Currier & Townsend signed re- ceipts for the money as paid on account of a ship building by them tor the plain tiffs. On the L'lst of .May, Currier & TowDsend petitioned for the benefit of tlie insolvent laws, and, ui)on due proceedings had, the defendants were chosen their assigneeH, and the shiii cuuie into tlu-ir possession as such. The difendants, upon notice of the pluintiffs' claim, refused to deliver the ship to them, and finished and sold her for the benefit ot all the creilitors. S. E. Sewall and S. H. Phillips, for plain- tiffs, n. K. Curtis and C. T. Kussell, for defendants. BIGELOW, C. J. Un.ler a contract for supplying labor and materials and mak- ing 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 pre- vail in all cases, unless n contrary intent is expressed or clearly implied from the terms of the contract. In the case at bar, no such intent ap- pears. The contract of the l)uilders was to finish the vessel, and have her ready for sea at a specified place on or liefore a day certain. The vendees were to pay a H.xed sum when the vessel was completed and ready for delivery. They were also to advance certain sums, from time to time, amounliiig to less than half the stip- ulated price, in anticipation of theconiple- tion of the work, but tlie sums so to be advanced were not graduated or meas- ured l)y the amount of work done or o( ma terials furnislu'd or the jirogress made towards the fiiud fuUilment of the con- tiaet. There was no stipulation to pay instalments at certain specilied successive stages of the work ; it was a mere agree- ment to make certain layments, by way of advance, which were lixed upon arbitrarily without reference to the extent of the la- bor and materials actually ex|)ended and used for the construction of the vessel at the time they were to lie made. Nor was there any right reserved to the vendees to control or direct the work, or to exercise any superintendence or control over it, during its progress. It is true that the agent of the vendees was allowed to be present in the ship-yard where the vessel was liuilding, tint this was by permission only granted by the builders. It was no part of the original contract, and the builders might, at any time, have revoked this i)erinission without violating any part of their agreement. The case at bar is clenrly distinguishable from the cases determined by the English courts, which have been cited in the argu- meut. To say the least, some of those decisions rest upon very c|uestlonnble grounds. They have been carefully re- viewed, and the validity of the reasons by WILLIAMS V. JACKMAN. which it is attempted to vindicate them has been impugned by approved text- vrriters, and ii: judicial decisions by courts In this country. The case of Andrews v. Durant, 1 Kernan, 85, contains an elabo- rate discussion of all the decided cases, and an exposition of the application of the rule of law to contracts for the build- ing of ships, adopted in the state of New York, and confirmed by subsequent de- cisions. Judgment for the defendants. \ WILLI AM^ 0. MEULE. 901 WILLIAMS et al. v. MERLE. (11 Wend. 80.) Supreme Court of New York. Oct. 1833. This was an action of trover, tried at the New-York circuit in Octoiier, \Ki\, lie- fore the lion. Ogdeu Edwards, one of the circuit judRes. About tlie first of November, ].s29, the master of a tow-boat took byiniHiuke4 barreis of pot-ashes from the warelioiise of tile plaintiffs, wlio, and t lie owners of tlie tow-boa ts.occupiL'd the same building in Albany. The master, on his arrival in New-York, having discovered the mistake, delivered the articles to a clerk of the agents of his principals, who said he would take the ashes to an inspector's office and advertise them. The clerk ac- coro'ingly took them to an inspector's office on the third of November, obtained a certificate of inspection, and on the sixth of November sold the ashes to the defendant, a produce broker, who pur- chased them for a Mr. Patterson, for a fair price, and received the inspector's certifi- cate. On the tenth of November, the de- fendant took theashes from the inspector's office, and shipped them to the order of his principal. About tlie first of Septem- ber, ]N:i(l, the plaintiffs demanded the ash- es of the defendant, who refused to ac- count for tlieni, saying he had purchased and paid for them a. year preceding the demand. The judge intimated his opin- ion that if the defendant had acquired the ashes bona fide by purchase, in the regular course of his business as a broker, and had disposed of them bona tide, pursuant to the instructions of his principal before suit brought, that the action would not lie; he, however, refused to nonsuit the plaintiffs, and the jur.v, under his direc- tion, found a verdict for the plaintiffs for the value of the ashes and the interest thereof, reserving tlie question as to the plaintiffs' right to recover, for the opinion of this court. S. Stevens, for plaintiffs. C. Graham, for defendant. SAVAGE, C. J. Thequestion is whether the plaintiffs are entitled to recover upon the facts of this case. Tliat they had title to the property does not admit of disiiute. Has that title been transferred to the de- fendant, and in what manner".' The own- er of property cannot be divested of it but by his own consent, or by operation of law. Morgan, who took the property by mistake, certainly ac(iulred no title. Shankland (thecleVk) surely had.no title. If the defendant has title, it cuhm^s to him from a person who had none. In the lan- guage of Mr. Justice Sutherland, in Ever- ett v. Coffin, G Wendell, 609, "The dispos- ing or assuming to dispose of another man's goods without his authority, is the gist of this action; and it is no an- swer for the defendants that they acted under instructions from another, who had himself no authority." This same I'rinci- ple was asserted by this court in Presrott V. De Forest, 1() .lohns. K. l.lst, where it was held that a landlord who distrained and sold the goods of his tenaut, conveyed no title to the purchaser, the distress being unauthorized. The court said, that if Satterlee (the landlord) had no riglit to distrain and sell tlie goods, it necessarily follows that the defendant, though a bona fide purchaser for valuable consideration, acquired no title. So far, then, as the de- fendant's title depends upon the purchase by him in good faith, and tor valuable consideration, it is still without founda- tion, so long as the seller had neither title nor authority to sell. The owners were not in fault; the property was taken without their consent or knowleilge. The maxim caveat emptor applies; the pur- chaser must look to the et-ller for indem- nity. The defendant's counsel contends, that the act of the legislature in relation to the inspection of pot and pearl ashes has placc<l that article upon a different footing from other merchandize. The act declares that the certificate of the in- spector shall be received as presumptive evidence of the fads contained therein; and that such ashes shall be sold in the city of New York by the weigh note of tlie inspector, except when sold iiy retail. 1 H. S. 54S. §§ tii;. 77. See, also, -J K. L. :M, § 3. This act (iocs not authorize the inspector to declare who is the owner; be gives the certilicate to tlie person in possession of the ashes, but nns no power to determine the questi<m of title. The certilicate is evidence of the facts of inspection and such other facts as he is re<|uired to state. He is to determine the quality ; to mark the weight and the fare, and some otherfncts, such as cruntings and scrapings; the damage appearing upon insjiectlon and the cause tiiercof; and as to these facts the certilicate is to be presnuiptlve evi- dence, but purely of uothiug more. The defendant stands in no better situ- ation than any other who purchases an article from u party without title or au- thority to dispose of such article; In such case, the purclinscr acquires no title. The true owner has a right to reclaim his property and to hold any one responsible who has assumed the right to dispose ofit. The plaintiffs are therefore entitled to juilgnieiit uiion the verdict. WINDMULI.ER c. POPE. 903 WINDMULLER et al. v. POPE et al.> (14 N. E. Rep. 430, 107 N. Y. C74.) Court of Appeals of New York. Dec. G, 18S7. Appenl fro in general term, Bupremc court, first (Irpartrneiit. Action brought by Louis Windinuller and Aifred Koell<er agninBt TliornuH J. Pope anfl Jnmps E. P<)()o to recover <lam- agcH from defeiulanta for tlie breacli of a written contract for tlie Hule anil de- livery on the piirt of plaintiim of about 1,1'Oiltona of old iron Vignol rails, to be shipped from Europe. Tlie cause wa.s . tried before Larroinore, J., and a jury, and upon verdict f"r plaintiffs judgment ren- dered for .'Slll.-lii'J, the amount of principal and costs. t)n !ipi)eul. the general term atlirmed the judgment against dcfend- aiits, and tliey bring the case to the court of appeals. Carlisle Norwnoil, Jr., and W. W. Niles, for appellants. Bernanl Roelker and Cephas lirainerd, for respondents. PER CDItlAM. We think no error is presented II [ion the record which requires a reversal of tlie judgment. The defend- ants having on the twelfth of .June, I.SSO, notified the plaintiffs that tliey would not receive the iron rails, or pay fur tlieui.and having informed tliem on the next tiny tlint if they brought the iron to New Yoili they would do so at their own peril, and advised them that they liiid better stop at once attempting to carry out tlie con- tract, so as to make the loss as small as possible, the |)laiii tiffs were justilied in treating the contract as broken by the de- fendantsat that time, and were entitled to bring the action immediately for the breach, without tendering the delivery of the iron, or awaiting the e.xpirntiou of the period of performance HximI by the contract; nor could the deftndaiiis re- tract their renunciation of the contract after the plaintiffs had acted upon it, and by a sale of the iron to other parties change their iiosition. Dillon v. Ander- son, 43 N. \. 231 ; Howard v. Daly, Gl N. Y. 302; Ferris v. .Spoouer.lOL' N. Y 12, ."> N. E. Rep. 773; Hochster v. De La Tour, 2 Kl. &l!I. G7S; Cort v. Railway Co., 17 .\dol. & E. (N. .S.) 127; Crabtree v. Messersniith, 1!) Iowa. 17'.); Benj. Sales, §§ 507, 508. The ordinary rule of damages in an ac- 'An extract from this opinion is reported in 107 N. Y. <>74: but the opiuion is here siTCn in lull, as iv|)orted in 14 X. E. Rep. 430. tion by a vendor of goods and chattels, for a refusal by the vendee to accept and pay for them, is the difference between the contract price and the market value of the property at the time and place of delivery. D.-ina v. Piedler. 12 N. Y. 40; Dustan v. McAndrew, 44 N. Y. 72; Cahen V. Piatt, Ol) .N. Y. :UH. The just applica- tion of this rule to the ci^cunl^tance8 Id this case requires that, in computing the damages, the defendants should be cred- iteil with the difference between the Ireight from Cronstudt to New York li,\ed liy the cliarter-party, less the sum which it cost the plaintiffs to be released from the char- ter, and also with any other expenses which tlie pliiintiffs would naturally liave incurred in perfurming tli'ir contract to <leliver the iron in New York. The con- tract price being known, and tlie market price of tlie iron in New York iit the time of the breach and sub.sequently having been proved, as also the sum which the plaintiffs paid for damages and expenses on account of the charter and the cus- tomary rjite of insurance, tlie computa- tion of the damages was a simple arith- metical problem. All these elements were before the jury, and the verdict doi-s not exceed, indeed it is less, than the sum wliich, on the view of the evidence most favorable to the defemlants, the pliiintiffs were entitled to recover. The plaintiffs* on the trial proved tlie market value of the iron at .St. Petersburg, where it was at the time of the brt-ach, and also that tliey sold it on the twelfth of .Tuly at a certain price. The plaintiffs also gave evidence of various exiienditures made by them, which it is unnecessary to recapitu- late. It is claimed tliat some of these items could not properly be considered In estimating the damages. Assuming that this may tie true, the fact remains never- theless that the verdict is fully warranted by the competent and uncontradicted evi- dence. Tlie amount of the verdict is justi- i lied, whether the market value of the iron in St. I'elersburg or New York is taken as a basis. The evidence also shows with- out contradiction that, on the resale, the iron brouglit its full market value. Irre- spective of storage, and it is not impor- tant to determiue whether the plaintiffs could llx the market price by a sale with- out notice to the defendants. There is no merit in the defense, and the exceptions are in the main tci-hiiicnl and frivolous, and none of ilieni, we think, re- quire a reversal of the judgment. The judgment is therefore atlirmed. All con- cur^ except R.\P.\LLO, J., absent. WINFIELD 0. DODGE. 905 WINFIELD 7. DODGE. (7 N. \V. Rep. UOO, 4j Mich. 3r..-..) Supreme Court of Michigan. Jan. I'J, l^Sl. Error to .Jackson. Hewlett Bros, and Austin Blair, for plaintiff in error. Tliouias A. WllHon, for defendant iu error. GRAVES, J. Tlio parties traded horses on .Sunday. Tlie cxclianKe was even and there was immediate delivery. The plain- tiff lipcanio (iissatished and wi^liin;^ to trade hack went the ne.xt niominu; to the defendant's place and made several offers of nioney to induce him to do so, hut he refused. After some bantering however thedefendant Ravothe plaintiff livedollara and a tobacco pipe, for the purpose, as explained at the time, of averting; ill foel- iriK. The plaintiff then returned home, but wishins on further consideration to unilo what had been done ho asain ealleil on the defen<lant and peremptorily insisted on trailin;j; t)ack and he offered to restore the money he had received and somotliiii};; more than the value of the pipe. The de- fendant refused to listen to any overture. The plaintiff then brought replevin be- fore a justice and obtained judumont and the defendant appealed. Thocircult judge, on the close of the evidence, took the case from the jury and ordered a verdict for the defendant. 'I'his rulinii went on the theory that the transaction on Monday ainounte<l to a new contract by which tlie title became established in defendant and that no room for any other view ex- isted. We think this was error. The case maile l)y the evidence was not necessarily of the character assumed. The transac- tion on Sunday passed no title. As a trade it was vdid, and the evidence of what took place on Monday was not con- clusive that there was anytliinc more than an attem|>t to ratify and validate tin' .Sun- day negotiation; and of course a ratifica- tion of that trade was impossiDlc; unless there was a new contract tlie plaintiff was entitled to reclaim his horse against the void neg(itiatiou. No new contract could Ik- made without a mutual assent of the parties, nn<l unless the plaintiff intend- ed to make une the title was not affected by the occurrences subsequent to the transaction on Sunday, ami whether there was such new contract was a question for the jury on the whole evidence under proper instructions. The judgment must he reversed with costs and a new trial granted. (The (jther justices concurred.) WING V. MEIifllAXT. 907 ■WT^G T. MERCHANT. (57 Me. 383.) Supreme Judicial Court of Maine. Middle Dis- trict, istra. On report. AnsiimpHit by the executoror Timothy Woodward, deceased, to recover Ifl'iKI left with defendant, for inveHtment,by deceased. Defendant claimed tliat the money was the pi-u|)erty of his wife, the daiishterof the<leceaKed. under a sift to lier by lier father about three years lielore Ids decease. There was evidence the. t in ls»;2 Timothy Woc)dward left with his daughter Mrs. Merchant some notes payable to him- self, a mount inc to a bout §200, for safe-keep- ing. She collected interest, and let her father have money, as he called for it, until about three years before he died, when, as Bhe testified, "my father Kavo tlie money to me. He said he did not think this would be any help to my insane sister. Mary, if he should save it for her snpjiort, and I h;id done more for him than all the rest of his children, and staid with him lontcer, and he jjave it tome. There was no one present when the notes were Riven to me. He was at my house at the time, in the siftinft-room. 'J'he notes were at the time in a box in a chest, and the chest in my sleepiiifrrooin. Do not know as father diil any thiiiK at the time any more than to tell me that he i;nve them to me for my labour, and what I had done for him." After the notes were uiven to Mrs. Merchant, her sister, becoming iuKane, was supported at the insanehos[)ital,and the money from th(! notes was paid by Mrs. Merchant for her support. A. Liliby, for plaintiff. S. Lancaster, lor defendant. BARROWS, J. Thecircumstances which oblige us in some cases to look with sus- picion upon a defense which asserts that propert.v claimcil by an executor or ad- ministrator in his representativecapacity, ha.-i passed by a Rift from the deceased to one of his heirs, are not found in the case at bar. Tlie defendant, with the consent of his wife to whom it is claimed the prop- erty wnsgiven, has appropriatcil it already for the benefit and support of on insane sister of the wife, a d«ut;hter of the de- ceased, and he is indemiiitied aj^ainst ulti- mate liahilit.v in thio suit. The testimony ';oraes free from selfish bias; and the naked <|uestion is, whether enough was said and done by Timothy Woodward, theplaintiff'stestator, toc(mstitutea valid gift. The money and notes, amounting to about $200, had l)een placed by the tes- tator, several years before hisdeath.in the liands of the defendant for safe-keepinu;; and for some time subsequently he was accustomed to call on the defendant and his wife for such little sums as he wanted on account of them, and the dpfendant kept an account of what was thus repaid. The wife personally had the char>;e of the notes and kept them in a box, winch was placed in a client in her sleeninjj-room.and she seems to have made most ot the small paym''nts to her father which he called for. While the matter stood thus, three or four years before the testator's death, as Mrs. Merchant, the defendant's wife testifies, he said, in conversation with her about the money represented hy these notes, that she h:id done more fur him than all the rest of his children; had staid with him longer; and that he nave it to her. The notes were then in tlie box in her sleepini^-room ; they were nut in- dorsed; they were payableto her lather. She says, '• i do not know as father did anything at the time anv more than to tell me that he Kiive them to me for my labor and what I had done for him. . . . After he y;ave me the notes he never called on me for any money." It would seem that tliere was no seltish solicitation for the jjift. but. on the con- tr;iry, that Mrs. Merchant, in this conver- sation, and the defendant in another talk with tlie testator about the same time, suffuestcd to him that it ou^ht to be ap- pr(»priated for the support of the insane sister, ami that when he Rave the notes to Mrs. .Slerchant, he saitl, njiparently in re- pl.v to these suKttestions. that he "did not think this would be any help to her if he should save it for her support. " Now it is insisted, on the part of the plaintiff, that hero was no indorseraeut of the notes, and no delivery ot them to .Mrs. Merchant at the tinieof ihe cinversa- tion, and coiiseciiiently no valid sift. lUit it has iieen settled, that a valid gift of a nei;otial)le promissory note may be I made, either inter vivos or causa mortis. j without indorsement or other wrilinc. (Jrover v. (Jrovei-. 21 Pick. 2til ; Borneman V. .Sideliimer, 15 .Me. -129. To perfect the sift in either case, deliv- ery to the donee or to some person for him is necessary , such delivery as tlie subject ofthejriftis capable of. But, in case of a sift, inter vivos, wliere the proiierty has passed into the possessiim of the donee, and has been held hy him in a manner in- dicating a change of the title to the prop- erty, and a recognition of the donee's title by tlie donor, proof of actual manual tra- dition at the time of makiii;j; the ^itt may well be dispensed with. No particular ceremony is necessary to constitute a delivery wlien there is actual possessijin by the donee, accompanied by satisfactory eviilence that the donor has relinquished all control uf, and claim to the subject of thej;ift,ir. her favor. I bor- row a book of my friend, anil, while it \a in my possession, he says. "I make you a present of it," and I hold it thereafter- wanls as mine; it cannot he essential to the validity of the fjift that I should lirst put it into his hands in order that it may be returned to mine. Lex non cogit ad vana sen inutilia. The actual transfer of possession to the donee whenever and however accom- plished, if supplemented liy plenary evi- dence of nn intentional release to the donee, on the (lart of the donor, per verba de pnesenti of any and all rij-ht or claim ever to resume the iiossessiun. or to de- prive the donee of it, will make a complete Kift inter vivos. It matters not whether the change of possession takes place be- fore or after, or at the time of the utter- ance of the words importing a gift, if there 908 WING V. MERCHANT. is a manifest design on tlie part of the donor that the flonee shoiihl theroafter- wards bold such possession ab.solulely as of his own property. Theuceforvvard, the possession and the ri^lit are concurrent in the same person, and tliegift is perfect and Irrevoeahie. These elements we find in tlie case at bar. The notes were already in the pos- spssifin of Mrs. Merchant, when the tes- tator, in conversation witli her respecting tlieui. used lanttna'-Te importing a pre-sent, absolute, unconditional gift, and a mak- ins over of all his interest in thcni toiler. From that lime during the remaining three or four years of his lil'e, he never called upon her or her husband for small sums on account of them, us he had before been accustomed to do. Th.e defendant exchanged the notes for others, and paid, not to the testator, but to Mrs. Merchant, such sums on account uf them as she called for. There is au essential difference between this case and that of Shower v. Pilck, 4 E.\ch. 47S, relied on for the plaintiff. There, though the silver plate was in the possession of the alleged donee, the language of the testator implied nothing beyond a promise to give in the future. Judgment for the defendant. KENT, WALTON, DANFORTH, and TAPLEY, JJ., concurred. APPEETON, C. J. I concur in the opin- ion. Delivery is essential to pass the title to a chattel by gift; but if, at the time, the don2e is in possession, as the donor's agent, he need not surrender it for a rede- livery; if the donor relinquislies all domin- ion and control, aud reci)gnizcs thedonee's possession as being in his own right, and the donee so accepts and releases posses- sion wih the donor's consent, it is suffi- cient. Tenbrook v. Brown, 17 Ind. 410. WINSOR V. LOMBARD. 911 WINSOR et al. v. LOMBARD et aU (18 Pick. 57.) Supreme Judicial Court of Massachusetts. Suf- folk and Nantucket. April 5, 1S36. Assumpsit on a warranty alleged to have been Riven, upon the sale of a quan- tity of mackerel by tlie defendants to the plaintiffs. Trial before .Shaw, C. J. The bill of parcels, which was receipted and wa.s dated Mu.v ~M, 1S34, net forth, that the plaintiff Winsor bmijiht of tlio defendants rj'J barrels and C'J liulf barrels No. 1 mackerel, and :!7l) barrels and 19G half barrels No. 2 mackerel. The plaintiffs introrluced evidence for the purpose of showing, that they were joint purclinsors; but havin;:; failed to prove that they were jointly interested in the purchase, their counsel moved for leave tlio strike out the name of I'ele<; Churchill, one of tiie plaintiffs. This was allowed, although objecteil to by the de- fendants; and the trial procet-ded as if the action had been originally commenced in the name of Winsor alone. The defend- ants excepted to this ruling. There was evidence tending to show, that the lish were damaged, but thut the dnniage proceeded principally from rust; that this is caused by the leaking out of the pickle, after the fish have been i)ackcd, inspected and branded ; and that although fish affected by rust are greatly deteri- orated, anil are never marked by the in- spector as No. 1 or No. 2, yet that they are not wholly unmerchantable, but are al- lowed to pass inspection as No. 3. All claim for damage arising from any other cause than rust, was expressly waived by the plaintiff. The jury were instructed, that, upon a sale by a bill of i)arcels, like that in this case, although the article sold was one re- quired, by the statutes of the common- wealth, to be Inspected by a public in- spector, and although the mackerel were inspected and branded No. 1 and No. 2, in pui'snance of the statutes, yet as to dam- age arising from causes originating after they were so inspected and liranded, there was an implied warranty, that the tish were in a good condition, and of a mer- chantable quality of mackerei of those brands respectively, at the time of the sale; and t!i;it, therefore, if the jury were of opinion, that the fish were damaged by rust, and that this was occasioned by causes originating after the mackerel had been inspecteil and branded, and further, if according to the kno>vn usage of the trade, uinckerel affected by rust are ni>t considered as No. 1 or .N'o. 2, though tliey may pass as No. 3, there was a l)reach of the implied warranty, for which the plain- tiff was entitled to recover damages. To this instruction the defendants ex- cepted. There was also evidence tenrling to show, that the lish in qiiesiion were packed, inspecteil and l)randtMl in the au- tumn of is:!:!; that the casks were then well filled with pickle; and that the sale tocjk place iu the following .May. In reference to this evidence, the j\iry were instructed, that if the damage arose from rust, and the cause of the rust was the want c)f pickle, commencing after the inspection and l)efore the time of the sale, it was one of those things against which the defendants warranted, even although thej- believed that the mackerel were, at the time of the inspection, what the brands on the casks Indicated, and that for aught they had known to the con- tr;iry, these br.'inils had been truly and faithfully applied, and that no alteration or change had happened witinn their knowledge. To this Instruction the defendants ex- cepted. If either of thise instructions was incor- rect, the verdict, which was for the plain- tiff, was to be set aside, and a new trial granted. Uexter and English, for plaintiffs. Washburn, for defendants. .SlIAW, C. J. The court are of opinion, thai the amendment iu striking out the name of one of the plaintiffs, was admissi- ble. lUit tlie main question arises upon the Buppoi-cd implied warranty, that the fish, at the timecjf Hie sale, were merchantable. This was a sale of inspected lish, and there is nothing in the bill of parcels im- porting an express warranty. Then the question is. whether there was an implied warranty triat the lish were merchantable or tree from ilamiige at the time of the sale? It was ruled at the trial, that there was, for the i)urpose of receiving the evi- dence, so that all the ()uestioiis might be brcjuglit before the court at once; lint up- on a revision of the case, the court are all of opinion, that the action cannot be uiaiiiliiined. The (dd rule upon this subject was well settled, that upon a sale of goods. If there be no express warranty of the quality of the goods sold, and no actual frauti, l)y a willful misivpi-esentation. the maxim, ■caveat emptor, applies. Without going 1 at large into the <loctriiie upon this sub- ject, or attempting to reconcile all the cases, which would certainly be very dilR- cult, it maybe sullicieiit to say thut, in this commonwealth, the law has under- gone some modilication, and it is now held, that without express warranty or actual fraud, every person who sells goods of a certain denomination or description, undertakes as part of Ids contract, that I the thing delivered corresponds tti the de- I scriptioii, and is in fact an article of the species, kind and quality thus expressed ! in the contract of sale. Hastings v. Lov- ering, 2 Pick. 214; llogins v. I'lympton. 11 Pick. !>7. Indeed this rule seems to be now well settled in lOngland. In an action for a breach nf warranty, a vessel was adver- tised and sold as a copper-fastened vessel, but sold as slic lay with :ill faults. It u|>- peared that she was only iiartially copper- fastened, and not wliat is known to the traile as a copper-fasteneil vessel. It was held that, " with all faults," must be uu- 912 WINSOR 0. LOMBARD. derstood, all faults which a copper- fasteneil vessel may have. Shepherd v. Kaiii.u I!arii.& Aid. LMO. The rule heius, that upon a sale nl goods I) v a written memorandum or 1)111 of parcels, the vendor undertakes, in the nature of warrantiUK, that the thiuK sold and delivered is that which is described, this rule applies whether the description be more or less particular and exact in enumerating the qualities of the goods sold. In applving this rule to the present case, the question is, what did the parties mutually unilerstand by their contract, as it was reduceil to writins. It purport- ed to be a sale of certain barrels and half barrels of No. 1, and others of No. 2 mack- erel. It is a familiar rule, that every con- tract is to be construed accordiu;; to the subject, and with reference to those cir- cumstances which are so notorious, that all persons conversant with the branch of trade, to whicli t!ie sale relates, must be presumed to be acquainted with thera. In the sale of mackerel, both parties must be presumed to be acquainted with the in- spection laws, both must be understood to know the season of the year when this species of fish are causlit, packed, and branded, and the species of damage and deterioration, to svhich tliey are liable, and that if mackerel aresold in the spring, they cannot be of an inspection more re- cent, than that of the preceding autumn. Willi these circumstances mutually under- stood, we have no doubt, that when thtsij fish were sold as No. 1 and 2, the under- standing of tlie parties was, that they were fisli, packed, inspected and branded as of those numbers respectively. It was in evidence, that fish infected with that species of damage called rust, a damage contracted by the leaking out of the pickle, after the fish have passed un- der the brand of the inspector, maj* be packed and Inspected as No. 3, but that iiowevergood in other respects, they can- not be considered or marked as No. 1 or '2. Upon this ground it was contended by the plaintiffs, that the effect of tl!e contract of the defendants was. that the mackerel were, at the time of the sale, fisli of the quality known as No. 1 and 2; that a.s they could not be of those qualities, if they were rusty, It was describing them by a quality which they did not then pos sess; and that this was a breach of war- ranty. But we are all of opinion, that this would be a forced and erroneous construc- tion of the instrument. Construed witfi reference to the subject matter, we think they must have understood, that the fish were inspected and branded as No. 1 and No. 2. In this respect the parties referred to the brand.'aad to this extent they acted upon the faith of it. Then, as there was no express warranty oftheir actual condi- tion, or of the manner in which they were kept and taken care of. after the inspec- tion, and from that time to the sale, and as there was no description embracing these particulars, it must be presumed, that both parties relied upon the faith of the inspection and brand. But if the plaintiff would hold the defendants re- sponsible, as upon a fraud, he must show that they knew that the brand was false- ly applied, or that after the ins[)ection and before the sale, they had become damaged by rust; but no such evidence being given, and no such case suggested, the action cannot be supported. It is supposed tliat a different rule ap- plies to the case of all provisions from that applicable to other merchandise. This matter is well exjilained by Air. .Justice Sewall, In Emerson v. Brighsm. 10 Mass. H. 1!)7. In a case of provisions, it. will readily be presumed that the vendor in- tended to reiiresent thera as sound and wholesome, because the very offer of ar- ticles of food for sale imi)lies this, and it may readily be presumed that a common vendor of articles of food, from the nature of his calling, knows whether they are unwhtdesome and unsound or not. From the fact of their being bad, therefore, a false and fraudulent representation may readily be presumed. But these reasons do not apply to the case of provisions, packed, insjiected, and prepared for ex- portation in large quantities as merchan- d'se. The vendee does not rely upon the supposed skill or actual knowledge of the vendor, but both rely upon the skill and responsibility of the inspector, as verified by the brand, for all <)ualities which the brand indicates; and for damage which may happen afterwai'ds, and against which, therefore, the brand offers no se- curity, the vendee must secure himself by the terms of the contract; and unless lie dt)es so, or unless he is deceived by a false representation of the present and actual condition of the commodity, on which he would liave, a remedy of a different char- acter, lie must be supposed to have been content to take the risk on himself. New trial granted. WOOD V. nOVNTON'. 915 WOOD V. BOTNTON et al. (25 N. W. Rep. 42, 64 Wis. 2C5.) Supreme Court of Wisconsin. Oct. 13, 1885. Appeal frura circuit court, Milwaukee county. Johnson, Rietbrock & HalHcy, for appel- lant. N. S. Murphpy, for respondentH. TAYLOR, J. This action was brouRht in the circuit court for Milwaukee comity to recover the posse.s.sion of an uncut diamond of the alloKed value of $1,()0(). The case was tried in the circuit court, and after heurlii;; all the evidence in the case, the learned circuit judne directed the jury to find a verdict for the defendants. The plaintiff excepted to such instruction, and, after a verdict was rendered for the defendants, moved for a ne%v trial upon the minutes of the judfre. The motion was denied, and the i)laintiff duly e.M'cpt- ed, an<l after judKmeni was entered In fa- vor of the (lefendnntH, appealed to this court. The defendants are partners in the jewelry business. On the trial it ap- peared that on and before the twonty- eiKhth of December, Ins:}, the plaintiff was the owner of and in the posses- sion of a small stone of the nature and value of which she was ignorant; that on that day she sold It to one of the defendants for the sum of one dollar. Aft- erwards it was ascertained that the stone was a roujrh diamond, and of the value of about ifTOO. After learninp: this fact the plaintiff tendered the defend-ints thci one dollar, and ten cents as interest, and de- manded a return of the stone to her. The defendants refused to deliver it, and there- fore she commenced this action. The plaintiff testified to the circuin- Btances attending the sale of the stone to Mr. Samuel B. B(»ynton,as follows: "The first time Boynton saw that stone ho was talking about buying the topaz, or what- ever it is, in September or October. I went into his store to get a little pin mended, and I had it in a small lio.'c, — the pin,— a small ear-ring; • • • this stone, and a broken sleeve-button wen; in the box. Mr. Boynton turned to give me a check tor mj'pin. I thought I woulil ask him what the stone was, and I to<di it out of the box and asked him to please tell me what that was. He took it in his hand and seemed some time lo(d<ing at it. 1 told him I had been told it was a topaz, and he said it might be. He says, 'I would buy this; wouhl you sell it?' I told liim I did not know hut what I would. What would it be worth? And he said he did not know ; he would give mo a dollar and keep it as a specimen, and I told hiiu 1 would not sell it; and it was certainly pretty to look at. He asked me where I found it, and I told him in ICagle. lie asked about how far out, and I said right in the village, and I went out. .\ftor- wards, and about the twenty-eighth of December, I needed money pretty badly, and thought every dollar would help, and I took it back to Mr. Boynton and t<dd him I had brought back the topaz, and he nays, ' Well, yes; what did I offer you for it?' and I eays, 'One dollar;' and he stepped to the change drawer and gave me the dollar, and I went out." in an- other part of her testimony she says: "Be- fore I sold the stone I had no knowledge whatever that it was a diamond. I told him that I liad been advised that it was prcdiably a topaz, and he said proltably it was. The stone was about the size of a canary bird's egg, nearly the shaiie of an egg.— worn pointed at one end; it was nearlystraw color,— a little darker. " She also testiHed that bef(jre this action was commenced she tendered the defendants $1.1 1), and demanded the re turn of the stone, wliiidi they refuseil. 'I'his is substantially all the evidence of what took jdace at anil before the sale to the defendants, as tes- tllied to by the plaintiff herself. She pro- duced no other witness on that point. The evidence on the part of the defend- ant is not very different from the version given by the pbiintiff, and certainly Is not more favorable to the plaintiff. Mr. Sam- uel B. Boynton, the defendant to whom the stone was sold, testified that at the time he bought this stone, he had never seen an uncut diamond; had seen cut dia- monds, but they are (juite different ironi the uncut ones; "he had no idea this was a diamond, and it never entered his brain at the time." t'onsiderable evidence was given as to what took place after the sale and purchase, but that evideiiL'e has very little if any bearing, upon the main point in the case. This evidence clearly sliows tliat the plaintiff sold the stone in (luestion to the defendants, and delivered it to tliem in De- cember, 1nn:j, lor a consideration of one dollar. The title to the stone passed by the sale and delivery to the d.-fendants. How has that title been divestnl and ag:iin vested in the plaintiff? The con- tention of the learned counsel for the ap- jiellant is that the title became vested in the [ilaintiff liy the tender to the Boyn- tons of the purchase money with interest, and a demand of a return of the stone to lier. TJnless such tender and demand re- vested the title in the appellant, she can- not maintain her action. The only ques- tion in the case is whether there was any- thing in the sale which entitled the vendor (the appellant) to resi'ind fhes;ile and so revest the title in her. The only reasons we know of for rescinding a sale and re- vesting the title in the vendor so that ho may maintain an action at law for the re- covery of the possession against his vendee are (1) that the vendee was guilty of some fraud ill procuring a sale to be made to him; (2>tliat there was a mistake madeby the vendor in delivering an article which was not the article sold, — a mistakein fact as to the identity of the thing sold with the thing delivered upon the sale. This last is not In reality a rescission of the sale made, as the thing delivered was not the thing sold, and no title ever passed to the vendee by such delivery. In this case, upon the plaintiff's own ev- idence, there can be no just ground for al- leging that she was Induced to make the sale siie did l)y any fraud or unfair deal- ings on tlie part of Mr. Boynton. Both were entirely ignorant at the time of the 916 WOOD V. BOYNTON. character of the stone and of its intrinsic value. Mr. Boynton was not au expert in unout dianionils, and hail made no ex- amination of the stone, except to ta lie it In hie hand and look at it before he made the offer of one dollar, which was refused at the time, and afterwards accepted without any comment or furtherexamina- tion made by Mr. Boynton. The appel- lant had the stone in her possession for a long time, and it appears from her own Btatenient that she had made some in- quiry as to its natiireand qualities. If she chope to sell it without further investiga- tion as to its intrinsic value to a person who was guilty of no fraud or unfairness which induced her to sell it for a small sum, she cannot repudiate the sale be- cause it is afterwards ascertained that she made a bad bargain. Kennedy v. Pan- ama, etc.. Mail Co., L. K. 2 Q. B. 580. There is no pretense of any mistake as to the identity of the thing sold. It was produced by the plaintiff and exhibited to the vendee before the male was made, and the thing sold was delivered to the vendee when the purchase price was paid. Kennedy v. Panama, etc.. Mail Co., supra, 587; Street v. Blav, 2 Barn. & Adol. 456; Gompertz v. Bart'lett, 2 El. & B1..S4'J; Gur- ney v. Womersley, 4 El. & Bl. 133, Ship's Case, 2 De G. J. & S. 544. Suppose the ap- pellant had proiluced the stone, and said slie had been told that it was a diamond, and she believed it was, but had no knowledge herself as to its character or value, and Mr. Boynton had given her ^500 for it, could he have rescinded tlie sale if it had turned out to be a topaz or liny other stone of very small value? Could Mr. Boynton have rescinded the sale on the ground of mistake? Clearly not, nor could he rescind it on the ground that there had been a breach of warranty, because there was no warranty, nor could lie rescind it on the ground of fraud, unless lie could show that she falsely declared that she had been told it was a "diamond, or, if she had lieen so told, still she knew it was not a diamond. See Street v. Blay, supra. It is urged, witli a good deal of earnest- ness, on the part of the counsel for the ap- pellant that, because it has turned out that the stone was immensely more valua- ble than the parties at the time of the sale supposed it was, such fact alone is a ground fur the rescission of the sale, and that fact was evidence of fraud on the part of the vendee. Whether inadequacy of price is to be received as evidence of fraud, even in a suit in equity to avoid a sale, depends upon the facts known to the parties at the time the sale is made. When this sale was made the value of the thing sold was open to the investigation of both parties, neither knew its intrinsic value, and, so far as the evidence in this case shows, both supposed that the price paid was adequate. How can fraud be predicated upon such a sale, even though after-investigation showed that the in- trinsic value of the thing sold was hun- dreds of times greater than the price paid? It certainly shows no such fraud as would authorize the vendor to rescind the con- tract and bring an action at law to re- cover the possession of the thing sold. Whether that fact would have any in- fluence in an action in eijuity to avoid the sale we need not consider. See Stett- heimer v. Killip, 75 N. Y. 287; Etting v. Bank of U. S., II Wlieat. 59. We can find nothing in theevidence from which it could be justly inferred that Mr. Boynton, at the time he offered the plain- tiff one dollar lor the stone, had any knowledge of the real value of the stone, or that he entertained even a belief that the stone was a diamond. It cannot, therefore, be said that there was a sup- pression of knowledge on the part of the defendant as to the value of the stone which a court of equity might seize upon to avoid the sale. The following cases show that, in the absence of fraud or war- ranty, tite value of the property sold, as compared with the price paid, is no ground for a rescission of a sale. Wheat v. Cross, 31 Md. 99; Lambert v. Heath, 15 Mees. & W. 487; Brvant v. Pember, 45 Vt. 487: Kuelkamp v. Hidding, 31 Wis. .503-511. However unfortunate the plaintiff may have been in selling this valuable stone for a mere nominal sum, she has failed entirely to make out a case either of fraud or mistake in the sale such as will entitle her to a rescission of such sale so as to recover the property sold in an ac- tion at law. The judgment of the circuit court is af- firmed. WOOD V. MANLET. 919 WOOD V. MANLEY. (U Adol. & E. 34.) Court of Queen's Bench. Michaelmas Term, 1839. TrespasHforljreakinK andenterine; plaiii- tiff'H clone. Pleo, (besideH otherH not mii- teriiil liere,) an to entei'injj the cloHe, that (Jerendunt, before the time when, &e., was lawfully poHHUHsed of a hiryre (luantity of hay, which was upon plaintiff'.s close, in which, &c., and that defendant, at the times when, &c., by lenve and license of tlie plaintiff to liim for that purpose lirst given and K'"antcd, peaceably entered the close, to carry off the said hay and did then and there peaceably take his said hay from and out of the said clcjse, as he law- fully, &c., which are the said alleged trcs- pasKcs, &c. Keplication, de injuria. On the trial, before Erskine, .J., at the last Somersetshire assizes, it appeared that the plaintiff was tenant of a farm, in- cluding the locus in quo; and that, his landlord havinj; distrainerl on him for rent, the goods seized, comprehencliiiK the hay mentioned in the plea, were sold on the premises; the conditions of the sale beinK, that the purchasers mitcht let the hay remain on the premises till the I^ady- day following, (ls;i8.) and enter on the premises in tlie meanwhile, as often as they pleased, to remove it. Thedefendnnt puichased the hay at the sale: and evi- dence was given to show that the plaintiff was a party to these conditions. After the sale, on LHUh .January, 1>^3S, plaintiff served upon defendant a written notice not to enter or commit any trespass on his, the plaintiff's, premises. In Febrnnry following. <lefendant served plaintiff with a written demand to deliver up the hay, or to suffer him, defendant, to luive access thereto and carry it away; threatening an action in default thereof. The plain- tiff, however, locked up the gate leading to the locus in quo, where the hai' was; and the defendant, on Ist Marcli, ISJS, broke the gate open, entered the close, and carried away the hay. The learned judge told the jury that, if the jdaintiff a.ssented to the conditions of sale at the time of the sale, this amounted to a license to enter and take the goods, which license was not revocable; and he therefore: di- rected them to find on this issue for the defendant, if they thought the plaintiff had BO assented. Venlict for the defend- ant. C'rowder now mov3d for a new trial, on the ground of misdirection. The learned jnilge appears to haveconsldered that this case fell within the principle laid down in Winter v. Brock well, S East, :!l)S, that a licenseexei-uted cannot be revoked. There the execntion of the license took place by the defendant building in pursuance of the jilalntiff's permission ; so that thedefend- nnt had incurred nn expense, upon the faith of the license, in doing the verj' thing which was licensed: ami the action was for the thing so done. But tills is not the case of a license e.xecuted before revocn- tion: the plaintiff rev(jked the permission before the defenilant acte<I upon it at all. On these pleadings, the only question is, whether tlie act done liy the plaintiff was licensed by the defendant. It may be that the defendant wasentitled to bring trover, or perhaps to sue for breach of the condi- tions: but the license was revoked before it was executed. [Lord DE.NM A.N, C.J. If a man buys a louf, and part of the bar- gain is, that he shall leave it at the liaker's Rhoi>, and cull for it, can the baker prevent liis entering the shop to take the loaf?] .Suppose a party agrees to sell nier- cliandiNe; if he afterwarrls refuse to sell, the buyer cannot take it. [Lord DEN- .MAN,C.J. But here the sale wa.s com- pleted.] The ruling of the learned judge, if correct, would show that every case of contract created an irrevocable license. [Lord OEN.MAN, t;. J. Here the question is o:: the fact of the license.] The revoca- tion of a license need not be specially re- plied : it may be shown under a traverse of the license. Besides, the replication here puts the whole plea in issue; and the plea alleges a quiet entri', which is nega- tived by the gate being broken. A right of way may, perhaps, in some cases be enforced by violence, but not a license. [PATTESO.V, J., referred to Tayler v. Waters. 7 Taunt. 3S4, [2 E. (". L. It. 40.i.)] The (piestion there wus, whether a license to use real [iroperty could be given with- out writing; and it was decided that it could. Liggins v. Inge. 7 Bing. (;S2, (20 E. C. L. R. 304, )i is to the same effect. Lord DE.NM \N, CI. Mr. t'rowder's ar- gument goes this length; — that, it 1 sell goods to a party who is, by the terms of the sale, to be permitted to comeand take them, and he pays me, I may afterwards refuse to let him take them. i'he law C4»untenance8 nothing so absurd as this: alicensethus given and acted upon isirrev- ocable. PATTESON, J. Tavler v. Waters, 7 Taunt. :^74, (2 E. C. L. K. 405,) shows that a license to use a seat at the opera-house, paid for and acted upon by sitting there, cannot be eounlermau'lcd. Here the con- ditions of sale, to which the plaintiff is a party, are, that any one who buys shall be at liberty to enter and take. .\ person does buy; part of his understanding Is that he is to beallowed to enter and take. The license is therefore so far executed as to be irrevocable etiually with tliat In Tayler v. Waters. The case (lut by Mr. C'rowder is different. I do not say that u mere purchase will give a license: but here the license is part of the very contract. WILLIAMS, J. The plaintiff, having assented to the terms of thecontract, puts himself into a situation from which he eonid not withilraw. COLERIDOE, J. The pleadings raise the issue whether, when the act com- plained of was done, the leave and license existed' it did exist if It was irrevocable; and I tliink it was irrevocable. Althout;li no one of the cases referred to is exactly the same as this, yet all procecfl on the principle that a man, who, by consenting to certain terms, induces another to do nn act, shall nut afterwards withdraw from those terms. Rule refused. ' See Bridues v. Blanchard, 1 A. & E. 53«, ('JS E. C. L. R 43.) INDEX. [the numbers rekkk to pages.] ACCEPTANCE. I. Within Statute of Frauds. what constitutes— sufficiency, 19, 63, 600. destruction of tbinj; sold, 349. II. Under the Conteact. what constitutes, 19, 61, 135, 221, 233. evidence of, 427. — - goods in possession of seller, 675. — - question for jury, 567. as shown by lapse of time, 567. sufficiency, necessity of separation, 105. of tender of acceptance, 105. necessity of, 73, 557. by agent of purchaser, 3, 403. within reasonable time, forfeiture of right, 419. rejection, effect of delay, 245. right to inspect goods, 245. selection by seller, 691. as affected by retention of vendor's lien, 507. of portion of goods bought, effect as waiv- er of right to rescind, 595. refusal of buyer to accept, 25, 47, 87, ItU. 487, 557, 691, 727. 837. delivery to carrier, 387. ACTIO.X. see "Ueplevin;" "Trover and Conversion." action for price, see "Remedies." action for damages, see "Kemedles." AGENT, see "Principal and .\gent." AGKEEMRNT, see "Memorandum." APPROPUIATION OF GOODS, by vendor, transfer of title, 473. delivery to carrier, 635. ASSENT, of purchaser, mistake as to goods sold, 731. mistake as to quality of goods sold, 733. as to terms, 673. nmtual assent, fraud of buyer, 391. ASSIGNEE, in insolvency, title from fraudulent as- signor, 249. AUCTIONEER, authority to sign memorandum, 549. AVOIDANCE OF CONTRACT, see "Fraud;" "Mistake;" "Rescission." BAILMENT, distinction between bailment and sale, 533, 5.35. confusion of goods, wheat stored in ware- house, detlciency, proportion of loss, 93. BANKRUPTCY, trover against assignee of bankrupt, 289. BARTER, or sale, what constitutes, 553. BILL OF LADIN(;, as transfer of title, 317. assignment after notice of stoppage Ip transitu, 577. effect of transfer, 43. liabilities of a.ssignee to carrier, 713. BON.\ FIDE PURCHASERS, who are. mortgagees in pos-scssicm, 497. creditors of fraudulent purchaser, 743. assignee in Insolvency, 299. rights of. 27, 29, 33. 43. pawnbroker making advances to fraudulent pun-haser, 617. purchase from fraudulent buyer, 237 275, 065. vendee of one purchasing on Sunday 435. from buyer of goods sold conditiomilly 541. having conditional posses.sion, 751 757. from one olitaining posses.sion by fraudu lent rcpre.seiilationi* as to identity. 657, purclia.se from trespa.sser. liability to true owner. ".Mil. of stiiU'U goods, liability to true owner, 7.">'.». 821. 871. rights as affectiHl by vendor's lien, 613. sale by carriers, title acquired. 677. title ac<iuired by void sale by prize court, 861. BREACH OF CONTRACT, see "Remedies." LAW SALES. (921) 922 INDEX. [The numbers refer to pages.] CARRIERS, as agents to receive goods, 1. delivoi-y to, 77, 463. transfer of title, 423, GG9, 7G7, 781, 859. liability for conversion, delivery after no- tice of stoppage in transitu, 481. remwlies against assignee of bill of lading for freiglit, 713. unauthorized sale by caiTier, rights of bona fide purchasere, 677. CAVEAT EMPTOR, nile as to, 139. duty of buyer to inspect, 559. implied warranty, reliance on brand, 911. taking rislt as to quality, 605. CHATTEL JIORTGAGES, sale by mortgagor, rights of mortgagee, 763. 0. O. D., delivery completed, 175. by carrier without payment, liability, 771. CONDITIONAL SALE, effect of performance, 61, 395. payment, by installments, transfer of title, 151, 20.3, 541. prepayment of price, 37, 71, 169, 293. property destroyed in possession of buy- er, liability for price, 823. reservation of title, validity as to third pei-sons, 541, 757. sale or retm-n, 545. sales C. O. D., when dehvery completed, 173. title in property, 133. CONDITIONS, see, also, "Conditional Sales." duty of buyer to inspect, 271. successive payments, transfer of title, 341. stipulations as to time, 539. time the essence of the contract, failure of seller to perform, 487. sale of specific chattels, weighing imd measuring, 173, 217. goods "to arrive," transfer of title, 147 739. to be satisfactory, 129. impossibility of performance, destruction by fire, 241. CONFUSION OF GOODS, see "Bailment." CONSIDERATION, faUure of, remedies of buyer, 353, 359. CONTRACTS, see, also, "Frauds, Statute of;" "Reme- dies;" "Sunday;" "Warranty." agent's authority to sign, 125, 159. CONTRACTS— Continued. at price to be afterwards determined, 531. consent of owner necessary, imauthorized sale by can-ier, 677. executoi-y contiucts, transfer of title, 845. delivery of goods shipped C. O. D. to carrier, 771. intent of purchaser, mistake as to goods sold, 731. mistake, effect of on contract, see "Mis- take." mutual assent, fraud of buyer, 391. transfer of title, 263. * of sale, or work and labor, 187, 509. place of performance, 355. to sell in future, 133. where time is of the essence, 487. CONVERSION, see "Trover and Conversion." DAMAGES, for breach of contract of buyer, 47, 903. warranty, 561. in action against buyer, refusal to accept before completion, 327, 437. refusal of buyer to accept upon com- pletion, 25. DECEIT, see "Fraud." DELIVERY, of gifts, see "Gifts." actual and constnictive, 47, 59. what constitutes, 7, 63, 99, 233, 341, 573. appropriation by vendor, 457. destruction of thing sold, 349. machinei"y in condition unfit for use, 841. weighing and measuring, 303, 799, 845, 891. simultaneous with payment, tight of seller to rescind on failure to pay, 619. demand and tender by buyer, 879. as afCectiug statute of frauds, 19. at specified place, 335. of vessel sold, what constitutes, 513. suflieiency to pass title, 77, 207, 503. as against a-editors of seller, 407, 453. to agent, 3. of buyer, weighing and measuring, 697. at intermediate point, right of stop- page in transitu, 43. to carrier, 77, 423, 463, 635, 767, 781, 859. refusal of buyer to accept, 387. of goods shipped C. O. D., 771. of order on warehouseman, transfer of title, 22.5, 581. of portion of a mass, 419. of part of goods sold, recovery of price^ 587. right of rescission of buyer, 595. INDEX. 923 [The numbers refer to pages.] DELIVERY— Continued. on sale on credit, transfer of title, efToct of delivoi-y, 819. order to buyer to take goods sold, revoca- tion, 919. reservation of jus disponendi, 99. rights of buyer to enter and take away, 337. when buyer entitled to, 73. when necessary to transfer title, 47. when to be made, forfeiture by delay, 197. with otlier articles by restaui'ant proprie- tor, 181. without transfer of title, 71, 77. effect on vendor's lien, 7, 307, 523. holding to buyer's order, 790. necessity, 91, 3.">0. on conditions, rights of bona fide r)i>r chasers, 1G9, 751, 759. by agent against instructions of principal, 777. by carrier through mistake, transfer of title, G09. by transfer note, 411. DONATIO CAUSA MOUTIS, see "Gifts." E. EARNEST JIONEY, effect of payment. 879. time of payment, effect on statute of frauds, 4G7. what constitutes, deposit with third per- son, 441. EXCEIANGE, or sale, remedies (or breach of contract, 553. EXECUTORY CONTRACTS, see "Contracts." EXPRESS WARRANTY, see "WaiTauty." FACTORS AND BROKKUS. see "Principal and Agent." power of sale, reservation of the jus dis- ponendi, 255. FALSE REPRESENTATIONS, see "Fraud;" "Remedies." FIRE, loss of goods sold by fire— liabilities of parUes, S09, 813. FORFEITURE, of contract by delay in acceptance. 197. FRAUD, see "Frauds, Statute of;" "lU'iuedies." FRAUD— Continued. as to creditors, continued possession by seller, 91, 037, 831. Of seller, misrepresentations as to value, 287. on buyer, ground for rescission, 515. on the seller, 27, 29, 33, 211, 233, 237, 249, 275, 299. sale by fraudulent purchaser, 27, 29, 33. FRAUDS, STATUTE OF, acceptance and receipt, 19, 03, 349, C09. delivery of part of the goo<ls, 807. to agent. 3. earnest money, time of payment, 4C7. memorandum, sufficiency, 207, 509. agents authorized to sign, 120, 159, 817, 893. signing by auctioneer, .'>49. brokers' bought and sold notes, 125, 159. names of parties, 125, 159, 207, 4C9, 085. neco.ssary contents, 125. different papers, 105, 001. time of Minking, (m. description of contract, 08.5. oral contract to rescind, consideration, 477. of sale exceeiling limit, 3. sale of promissory notes, 23. tender of part payment, effect. 279. what are goods, wares and merchandise, 23. shares in joint stock company, 443. what contracts within statute, agreement to raise potatoes. G41. purchase of growing trees, 879. sale or manufacture, 187. sale of promissory note, 23. GIFTS, inter vivos, consideration, 5.". delivery, 55, 591, 747, 7.V>. and possession, rights of donor's cred- itors, (!01. necessity, ret.aining control, 027. when doniH? in possession, '.K)7. rights of donee after possession ac- Q\iired, 370. evidi'uce of intent, 79. in payment of debt, taking possession, s:ii." donatio causa mortis, delivery, 117, 383, 415. change of possession, SS7. knowltvlge of donee, 005. to third person for donee, 855. GOODS, WARES AND MERCHANDISE, what are, 23, 187, (!41. growing trvi>s, ;j;{7, 870. shares in joint stoi-k company, 443. 924 INDEX. [The numbers refer to pages.] I. IDENTITY, fraudulent representations as to identity, 63. ILLEGALITY, of contract, ratification, 501. sale on Sunday, 43.j, 905. IMPLIED WARRANTIES, see "Warranties." INSOLVEXOY, as groun<l for rescission, see, also, "Reme- dies;" "Rescission;" "Stoppage in Trans- itu." of buyer, stoppage in transitu, rights of messenger in insolvency, 825. INSPECTION, riglit of buyer to inspect before accept- ance, 139, 245, 559, G05, 691, 911. INSTALLMENTS, payments by, transfer of title, 151, 203, 541. JUDICIAL SALES, riglits of purchaser under void order, 861. LADING, see "Bill of Lading." LICENSE, to enter seller's premises and cut trees sold, revocation, 337. LIEN, see, also, "Vendor's Lien." warehouse receipts, 229. M. MARKET OVERT, not recognized in United States, 821, 861. MEMORANDUM, under statute of frauds, see "Frauds, Statute of." MERCHANTABILITY, warranty of. 111, 289, 345, 483, 559, 745 911. MISREPRESENTATIONS, see "Fraud;" "Remedies." MISTAKE, as to terms of contract, effect, 673. as to goods bought, 731. as to quaUty of goods sold, right of seUer to rescind, 733. In deliveiy of articles, transfer of titie, 333. MISTAKE— Continued. right of buyer to rescind, 185. sale of furniture, valuables concealed therein, 445. property not existing in seller, 403. MORTGAGES, rights of mortgagees of buyer in posses- sion, stoppage in transitu, 497. MUTUAL ASSENT, see "Assent." N. NON-ACCEPTANCE, see. also, "Remedies." refusal of buyer to accept, 87, 3S7, 727, 837. P. PARTIES, see, also, "Bona Fide Purchasers;" "Prin- cipal and Agent." remedies of parties, see "Remedies." PAYMENT, and simultaneous delivery, demand and tender by buyer, 879. right of seller to rescind, 619. before delivery, when necessary, 613. by inst;illments, when title passes, 151. 203. during progress of work, transfer of title, 897. In specific goods, readiness to perform, 425. ol earnest money, 467. deposit with third person. 441. PERFORMANCE, see, also, "Deliveiy." impossil)ilitj- of performance, 241. partial delivery of goods sold, 587. PLEDGE, rights of pawnbroker making adrauces to fraudulent purchaser, 617. liability of agent of frauduleat mort- gagor to pledgee, 763. POSSESSION, retained by seller, loss by fire, liability of purchaser, 675. continued possession, fraud as to cred- itors, ni. pr(>sumptions, as to fraud against creditors, 637, 831. PRICE, see, also, "Payment." as affecting statute of frauds, 3. market value, what is, 503. reasonable price, what is, 503. to be afterwards determined, 531. prepayment on conditional sale, 37. when necessary, 71. IXDEX. 925 [The iiiiinlxTs refer to piiiros.] PUINCIPAL AND AGENT, acci'ptMiicc liy iiKi'iit, 'S. uuUiority of iigciit to sign iiioraoraiKluiu, 125, ir.O, 817, 893. agent of thief, liability to truo owdit, 75!>, 799. agent of fraudulent mortgagors of chat- tels, lial)ility to pledgee, 703. PROMISSORY NOTE, when sale of, within statute of frauds, 23. PROPERTY IN GOODS. see "T'itle to Property;" "Weighing and Measuring." PITRCHASER, eee "Bona Fide Purchasers." R. RECEIPT, see, also, "Acceptance." what is a receipt, 19, 59, 135. for portion of designated mass, transfer of title, 491. of carrier, transfer of title, 313. REMEDIES, I. Of Seller. a. Afiainut the Buyer. b. Againut tlic Goods. II. Ov BlIYEIi. I. Of Seller. a. Against t?ie Buyer, see, also, "Rescission." action for price, destruction of thing sold, 349. goods destroyed after setting apart for buyer. SC,7. loss of goods by fire, 809, 813. J — property destroyed in hands of buy- er, 82.-!. impli("d warranty of titncss, 700. transfer of title necessary, 327. on delivery of pai't of goods sold, 587. on refusiil of buyer to accept, 25, 47, 4S7, 5."«7, 837. on non acceptance before comple- tion, 121, 327, 4:^7. on refusal to accept after comple- tion, 25. 4S7, 727. refusal of buyer to accept, action for dam.ages, 25, 87. 091, .'-.37. insolvency of buyer, <leli%'ery of goods to third party in trust lor sellers, 793 against pUxlgee of fraudulent pm-chaser, 017. trover against a.ssigne«» of bankrupt buy- er, 289. delivery by agent against instructions, a<'tion for conversion. 777. fraud of buyer, action of trover, 391. REMEDIES— O.ntinned. resei.ssion by buyer, action for damages, 9(J3. death of buyer, contr.act of sale, or work and labor, 009. b. Againut the Ooods. see, also, "Stoppage In Transitu." lien on goods, see "Vendor's Lien." rcs.ile, 27, 73, 271, .539. fraudulent repri'sentations of buyer as to identity, recovery of goods, 031. sale on credit, delivery to purchaser, re- plevin of goods, 819. replevin against creditors of fraudulent buyer, 109. II. Ok Buyer. see, also, "Iteselssion." on faihire to deliver, 241. on failure to deliver all goods sold, re- scission, 595. forfeiture of right by delay, 419. on refusal of seller to deliver, 879. on failure to deliver in time, 841. damages, rejisonable price, 503. on deliciency in quantity, 3-3. for books stolen from owner, necessity of prosecuting tliief, 871. on failure of consideration, 3.53. 3.59. on false repre.seulatinns of vend( e, action for damages, 2S7, 005. on purcliase of property supposed to exist, 403. on return of property, defective qu.ality, 047. on replevin of portion of mass, 70.5. on brejich of warr.inty. 199, 251. 293, 849. as to (luality, 289, 303, 8.S;!. of title, 28.3. - — return of goods, 307. action of as.sumpsit, 785. on liri'Mch of ^niplie»l warranty, 37. reasonable lituess, damages caused by defect, 051. REPLEVIN, see, also, "Remedies." on fraudulent representations of bu.ver, 031. against creclltors of fraudulent buyer. 031. on failure to pay price, 631. by buyer of portion of mass sold, 705. RESALE, right of seller to res<'ll, see "Remi^dies." by Insolvent buyer, effect on right of stoppage in transitu, 11, 519, 005. RESCISSION, I. By Sei.ler- for fraud on seller, 29, 33, 211. 237, 249, 275, 2<.»9. fraudulent representations of buj-er 1 as to identity, 3l»l. 926 INDEX. [The numbers refer to pages.] RESCISSION— Continued. ot Uleg.nl contr.ict, rights of .seller, 905. of contract m.ide on Sunday, 005. on sale to bona fide ptircha.ser, 6(!5, 743. by creditors of seller for fraud, 831. for failure to pay price, 293, 539. on delivery, 619. for insolvency of buyer, 51, 449, 519, 707, 789, 793, 803. for inadequacy of price, 915. for mistake as to value, 915. as to quality of goods, 733. II. By Bdter. for failure to deliver all goods sold, 595. to deliver in time, 811. for false representations of seller, 5C1. for fraud, 515. for mistake, 185. defective quality, 8.39. return of property purchased, 023. RETURN, of goods sold, see "Rescission." by buyer, defective quality, 647. for breach of warranty, 023. REVOCATION, see, also, "Rescission;" "Stoppage in Transitu." by seller, of order for delivery to buyer of goods sold, 919. SAMPLE, sales by, warranty, 77, 83, 389. SELLER. remedies of, see "Remedies." SHARES, of stock of corporation, not goods, wares and merchandise, 443. SHEEP, right of buyer to wool, 375. SIGNATURE, of parties to memorandum, 409, 685. of agent to memorandum, 125, 159, 893. STATUTE OF FRAUDS, see "Frauds, Statute of." STOLEN GOODS, liability of purcliaser to true owner, 821. of agent to true owner, 7.59, 799. title of pm-chaser from thief, 871. STOPPAGE IN TRANSITU, nature of right, 519. against whom e.xercised, 51. Insolvency of buyer, 51, 449, 519, 767. 789. rights of messenger in insolvency 825. after delivery on buyer's vessel, 789, 793. STOPPAGE IN TRANSITU— Continued, after delivery to mortgagees of buyer In possession, 497. - — ■ and sale to bona fide purcliaser, 11, 519, 665. to agent at intermediate points, 43. of transfer note, 411. notice to carrier, 481. exercise of right, assignment of bill of lading after notice, 577. effect, restoration of vendor's lien, 665. SUNDAY, contract made on Simday, inability of seller to rescind, 905. Ulegalitj' of contract, ratification, 501. sale on Sunday, rights of bona fide pur- chaser, 435. T. TENDER, of goods, see "Acceptance;" "Delivery." by seller, of portion of mass of equal quality, 491. sufficiency to compel acceptance, 105. of specific goods, sufficiency, 105, 147. of performance by seller, 355. on rescission by buyer unnecessary, 903. of price, efCect on vendor's lien, 539. TITLE TO PROPERTY, implied warranty of, 701. what constitutes transfer, 15, 25, 309. sale of specific articles, 539. . .iroods "to arrive," 739. sale 0. O. D., 175. goods shipped C. O. D. and delivered to carrier, 771. intent, 545. sale of fm'uiture, valuables con- cealed therein, 445. mistake in articles delivered, 333. mistake as to goods bought, 731. goods set apart and subject to pur- chaser's order, 867. appropriation by vendor, 473. delivery to insolvent buyer, depo^iit with third persons In trust for seller, 703. before completion of work on prop- erty purchased. 897. sale on credit, 819. sale on conditions, 395. reservation on conditional sale, 133, 541, 757. prepayment of price, 541. • payment by installments, 151, 203. determination of price, 527, 531. fraudulent representations of agent, 657. fraudulent representations as to identity. 631. when delivery does not transfer, 7L necessary to transfer, 47. INDEX. 927 [The niiiubcrs rpfer to pages.] TITLE TO PKOPERTY— Continued, when passe.s by delivery, 207. delivery to e;uTier.s, 423, 7(J7, 781, 859. by carrier through mistake, GG9. assi^^nment of carrier's receipt, 313. shipment on buyer's vessel, 789. delivei'y of order on warehouseman, 581, 797 eflfect of bill of lading, 317. sale of specific chattels, portion of mass, 323. property part of mass, necessity of sepa- ration, 491, 705, 875. sale of gfX)ds not specific, weighing and meiisuring, 173, 303, 491, 527, 587, G89. 097, S45, 891. of goods, destruction by fire, 809, 813. ac(iuireU by l)oiia fide purchaser from sciler without title, 001. of ius.signee of fraudulent buyer, 249. of purchaser from fraudulent buyer, 27, 29, 33. of iKina fide purchaser of stolen goods, 821, 871. effect of judgment in trover, 203. TRANSFER OF TITLE, see "Title to Property." TROVER AND CONVERSION, see, also, "Remeflies." liability of carrier, delivery after notice of stoppage in transitu, 289. against assignee of banlcrupt buyer, 289. delivery by agent against instructions, 777. on fraud of buyer, 391. against bona fide purchaser of one having couditioual possession, 757. VENDOR'S LIEN, what constitutes, 7. when reco};nized, 143. delivery, effect on lien, 7, 221, 3C7. of part, rights of bona fide purchas- er, 013. how lost, tender of payment, 530. VENDOR'S LIE.N-Conlinucd. how lost, surrender of possession to vendee, 523. Insolvency of buyer, goods In possession of seller, 827. waiver, 7, 523. goods held by seller for lien, destruction by fire, liability of piu-chaser, 075. w. WAIVER. of breach of warranty. 293. of vendor's lien, delivery, 523. sale on credit, 7. WARRANTY, written and oral warranties, 83. express warranty, wliat constitutes, 141. evidence of. 371. agiiinst defects, knowledge of buyer, 849. as to condition of goods sold, 371. of quality, 251. 333. rea.souable adulleralion, 883. Implied warranty of title, 283, 3.';9, 605. ij2:{. after-acquired title, 701. knowledge of intended use, implied warranty of fitness, 709. of soundness, 559. of merchantability. 483. reliance on inspector's brand, 911. sales by sample. 77, 83, 389. sale for sound price, caveat emptor, 111. sale of provisions, soundness, 289, 34.J, 745, 911. sales by description, 303, 911. by manufacturer of fitness, 199, 051. remedies of buyer, assumpsit for breach, 785. breach as a defense, return of goods, 307. WEIGHING AND MEASURINO. when ncx-essary to tninsfer of title. 303, 491, ."127. TiSl. i'kS!!. 797. S4:,. Si)!. delivery to Imyer's agent, effect, 007. sale of chattels not specific, selection by vendor, 1 73. WX8T PUBLUBI.HO CO.. PRIXTKU tUB •TEKEOTTPIB", tT. PIDL. UlilX. \ ^. LAW LIBRARY ^ ^^ UNIVERSITY OF CALFFORNU % LOS ANGELES D 000 315 296 4 1^