11 li! '^i:?13DNVS0 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ALlF0/?4/ NIVER>V/ ^^> JS^ -I "^^Z M. 9. (3) Long on Sales, 109. (4) Glover V. Ilunncwcll, 6 Picl<. 222. Sect. VI.] CONSTRUCTION OF SALES. 31 11. A contracts with B to build a ship for him. B, immedi- ately afterwards, agrees with C that he shall own one quarter of her. Held, notwithstanding a subsequent instrument, which transferred to B the materials in A's ship-yard, to be used in building the ship ; C had no title to any timber which was not actually put into the vessel.(l) 12. Agreement between A and B for the joint purchase of twenty thousand mats, afterwards to be stored by B. May 6, a new contract was made between them, substantially as follows — " A bought of B twenty thousand Russia mats at ten cents each — $2000. A to pay $4 per month storage from this date, and interest on the mats till paid for. A not to pay for the mats more than the amount indorsed on this bill, till the same are sold." Upon this contract, of the same date, was an in- dorsement of the receipt of $1,104,50 in cash and notes. May 8, B procured the mats, not paid for, to be attached for one of his creditors. May 13, A was summoned as trustee of B. June 5, A brings an action. of trespass against the officer, and recovers judgment for the value of the property, which was paid to A. Immediately afterwards, A was again summoned as trus- tee of B in the present suit. Held, the sale of May 6 passed a title to A ; that the attachment, being tortious, had no effect upon the sale ; and that A was chargeable in the first suit for the residue of the mats not paid for, and consequently was not chargeable in the present action. That the mats were not to be paid for till sold by the trustee, made no difference in the case. It was " debitum in pra;senti ;" and there was a limita- tion merely of the time of payment. Nor was it material that the trustee had merely a constructive possession, the sale being complete, and the title vested. This fact might be important, if the trustee were attempted to be charged as holding propc7-ti/ in trust, (as in Andrews v. Ludlow, 5 Pick. 28) ; but the only around for charging him here must be as a debtor, for the price. The attachment could not operate to rescind the sale. (2) 13. A sold to B a boat, B paying part of the price, gloving his (1 ) Glover v. Hurinewell, 6 Pick. 222. (2) Stone v. Hodges, 14 Pick. 81. 32 GENERAL PRINCIPLES OF SALE, &.C. [Chap. I. note for the balance, and taking a bill of sale. Being unable to pay the note, B gave up the bill of sale to A, who agreed, upon payment of the balance due, to re-convey or restore the boat, and, having no convenient place for keeping it, left it with B, with authority to sell it, subject to the lien of A. Held, the transaction was either a re-sale of the property and payment of the note, with the privilege reserved to B of re-purchasing ; or a mortgage to secure the balance due ; and that A might main- tain replevin against an officer, who attached the boat as the property of B. Under the circumstances, A could no longer have sustained a suit upon the note, although not given up to B And, on the other hand, if B had converted the boat to his own use, A might bring trover against him. The facts showed a sufficient consideration, not executory but executed, for a re- sale.(l) 14. The defendant contracted with one A to sell him two hundred hogsheads of sugar, which contract A assigned to the plaintiff. The plaintiff inquired of the defendant whether he had in his possession this number of hogsheads, belonging to A, which he would deliver to the plaintiff, and the defendant re- plied in the affirmative. Payment was made, according to the contract. Held, an action of trover did not lie, because the transaction was a mere contract, not an actual sale, and the fif- ty hogsheads were not in esse. (2) 15. The defendant agreed with one A to sell him at so much per ton a pile of slate, to be sold, and paid for, as parcels of it should from time to time be taken away. After paying for fourteen tons, A sold this quantity to the plaintiff, giving him an order therefor upon the defendant. A then made a settle- ment with the defendant before notice of the transfer, giving his note for the balance due upon the contract, and taking a memorandum, that when paid, the rest of the slate should be de- livered. Afterwards the plaintiff presented the order to the defendant, but he refused to accept it. Held, the plaintiff by the above transactions had gained no title to the fourteen tons, and (1) Gleason v. Drew, 9 Giccnl. 79. (2) Austen v. Craven, 4 Taun. 644. Sect. VI.] CONSTRUCTION OF SALF.S. 33 could not maintain trover. The contract between A and the defendant was merely executory, and remained so at the time of the transfer to the plainlilT. It only entitled A to claim that the stipulated quantity of slate should be weighed and separat- ed for his use, but, until this was done, gave him no title. Hence A transferred to the plaintiff a mere chose in action, by which transfer the defendant could not be prejudiced without receiving notice. The defendant and A had the right of re- scinding their bargain, although A thereby committed a fraud upon the plaintiff. The defendant was entitled to retain the slate as secutity for the note given him by A. The defendant telied upon the property, and the plaintiff upon the personal se- curity (1) 16. A and B owning a brig and her cargo, which were bound upon a voyage, C advanced to them $600, and took back an in- strument acknowledging receipt of the money, " being the amount of .his (C's) adventure on board said brig, to be receiv- ed from the proceeds of said brig's cargo, whenever her voyage may end," and concluding thus, "we promise to pay C or or- der his proportion of the proceeds of the cargo, according to said investment of $600, reckoning the cargo at a fair cash price and the necessary charges, including duties and insurance. In case of loss, the above amount to draw a proportion of the in- surance recovered." Invoices and bills of lading were made in the names of A and B. During the absence of the vessel, A and B indorsed the bills of lading, and assigned the cargo, bona fide, to E and F, who had signed and indorsed notes for A and B, by way of indemnity for such liabilities, the balance of the proceeds to be paid to the order of the assignors. After the assignment, and before notice of the agreement with C, the as- signees accepted an order drawn by the assignor for an amount equal to the whole surplus. E and F having received and sold the cargo, C brings assumpsit for money had and received against them. Held, by the contract with C he did not become a part-owner of the cargo, but acquired only a personal claim against A and B ; and therefore the action could not be sus- (1) Young V. Austin, 6 Pi. k. 280. .5 34 GENERAL PRINCIPLES OF SALE, SlC. [Cllap. I. tained. The property might have been attached by creditors of A and B, and therefore was assignable to one ignorant of C's interest. (1) 17. Contract, in New York, for the sale of five hundred bales of cotton, to be delivered upon its arrival at New York from New Orleans, any time between the date of the contract and the first of June following. Payment in cash on delivery. The cotton to be weighed, and two per cent, tare allowed. Held, this was a mere executory contract, which did not pass tlie pro- perty, and that the proposed vendor was not bound to deliver the cotton, unless it arrived in New York at the time appoint- ed. The specification as to time, merely fixed the period to which the liability of each party was to be limited; but did not constitute an agreement to deliver the cotton at all events. The cotton was to be brought to New York, weighed there, and paid for by the vendee, after making the stipulated deduc- tion. The vendor might retain it for the purpose of weighing, and until it should be paid for. Had the property been lost be- tween New Orleans and New York, or at the latter place before weighing, the vendor must have borne the loss. Upon these grounds, held, assumpsit for non-delivery ^of the cotton did not lie against the vendor. (2) 18. A, the consignee of 20,000 mats, sold them to himself and the plaintiff at ten cents each, upon a credit of six months. Both parties to be equally interested ; A to store the mats six months gratis ; the plaintiff to pay one half the expense of put- ting them in A's loft ; and, as fast as they were re-sold, the pro- ceeds to be paid to A, who was to pay interest for the six months. During this time, some of the mats were sold, and, at the expiration of it, A, to prevent an attachment by his credi- tors, gave a bill of sale of the whole to the plaintiff, who was ignorant of the fraudulent intent, with the agreement that the plaintiff should pay him storage afterwards, and interest till pay- ment. The plaintiff was not to pay more than -$1,104,50, which was paid in cash and noies, till he should have opportunity to sell, when he was to pay cash for those sold ; in the mean time, (1) Gallop V. Newman, 7 Pick. 282. (2) Russell V. Nicoll, 3 Wend. 112. Sect. VI.] CONSTRUeTlON OF SALES. 35 A to keep possession. The mats having been attached by a creditor of A, tlic plaintiff brings trespass against the officer. Held, by the first sale, the plaintiff became a tenant in common of the property ; that A's possession was his, and the second sale valid without a new delivery ; that trespass might be maintained, A's lien, if he had any, not being an attachable in- terest, and no defence to this suit. By parting with the posses- sion, A lost his lien, and he had no right of action against the offi- cer, because the attachment was made with his procurement.(l) 19. Agreement in writing between A and B, that A should carry on the farm of B, and receive one half the produce in payment for his services. B to furnish all necessary seeds, and A to pay for one half of the seeds sown or return one half of them after harvest, at his option. B to supply A with grain till he could harvest the crops, and to receive the same quantity at harvest, or the value in cash. B accordingly furnished A with rye and oats, a part of which was sown, and the rest used by A ; also with a quantity of hay. A raised oats and sold them. B brings indeh. assump. against A, the contract still remaining in force. Held, he could not recover for the rye and the first par- cel of oats, because these were included in the contract, and A had the right to pay for them in kind. But he might recov- er for the hay, which was not included in the contract, and for one half the last parcel of oats, because by the sale, A had dis- abled himself from delivering them in kind. (2) 20. Agreement, made in August, to deliver certain property between October 1, and December 1, to be paid for on delivery at a certain place, with liberty to the vendee to have the quanti- ty increased on reasonable notice. Held, the vendee was bound to give such notice before October 1, and to prove a readiness to pay for the increased quantity. (3) 21. A and B, living in Maine, made a written agreement, by which A was to deliver, and B to receive, at Philadelphia, from one thousand to three thousand bushels of potatoes. Held, A might elect to deliver any quantity between the two quantities (1) Kitlrcdge V. Siiniiur, 11 Pick. 50. (2) Shearer v. Jewett, M Pick. 232. (3) Topping r. Root, 6 Cow. 404. 36 GENERAL PRINCIPLES OF SALE, &C. [Chap. I, named, and was not bound to make an election till arrival of the potatoes at the place of delivery, although requested by B to do so after the shipment.(l) 22. The plaintiff, having a quantity of apples, agreed in writ- in£f to sell the defendant his cider, at so much per hogshead, to be delivered at T, at a future time ; also to lend the defendant his empty casks for the cider, to be manufactured on the plaintiff's premises, and paid for before removal. The plaintiff pounded the apples and delivered the juice to a servant of the defendant, who proceeded to manufacture the cider. Before the process was completed, the cider and casks, some of which belonged to the plaintiff, were seized by the officers of excise, for being in an unentered place, and condemned in the Exchequer as the property of the defendant. In Devonshire, where the parties lived, cider was proved to mean the juice of the apples as ex- pressed therefrom. The plaintiff sues for the price of the cider and casks. Held, the true construction of the agreement was for the sale of the juice, not of manufactured cider, and the delivery to the servant of the defendant vested a property in the latter. The defendant was bound by the agreement to enter th§^' premises of the plaintiff. As he neglected to do this, the plain- tiff was necessarily prevented, and therefore excused, from de- livering cider at T, and he might recover either as for goods sold and delivered, or bargained and sold. (2) 23. A, being the owner of certain land, sold to B by deed all the timber trees standing thereon, allowing him two years for the purpose of taking them away. Held, this was a sale of only so much timber as B might take from the land within the two years, and that a subsequent entry by him was a trespass. It was further held, that the fact of a sale of the land to C near- ly four years after the expiration of the period above specified, reserving the right of B, gave no new operation to the original contract, nor constituted any new license to B to enter upon ihe land. (3) 24. A conveyed to B " four clapboard machines and two (1) Small V. Qiiincy, 4 Greeiil.497. (2) Siudfly V. Suuuders, 8 D. &. R. 403. (3) Pease v. Gibson, 6 Giccnl. 81. Howard v. Lincoln, I Sliepl. \%%. Sect, VI.] CONSTRUCTION OF SALES. 37 shingle machines," then being at a certain place in L ; " and likewise the patent right for L and J, during the term of the pa- tent, which is fourteen years from September 3, 1813." Held, this was a conveyance of the patent right to use both the clap- board and shingle machines ; that A, having no patent to the former, was bound to refund such part of the consideration as B had paid therefor ; and that, inasmuch as no interest had pass- ed in this respect, there was nothing for B to return, in order to maintain an action for the above amount. (1) 25. A contracted with B in writing as follows — " bought the brig T, with stores, boats, and forty tons of iron Mntlagc (a species of ballast) for ,£1000." Afterwards, a bill of sale was given, as follows — "A, in consideration of =£1500, sells the brig T with all her stores, tackle, apparel, &c." Held, the latter writing was decisive as to the contract between the parties ; that the kintlagc was not included in the sale, and that B could maintain no action for non-delivery of it. (2) 26. A sold to B all the hemp that might be shipped in certain vessels at Riga, not exceeding three hundred tons, by C "the agent of the concern." C shipped in these vessels only seven- ty-one tons on A's account; but more than three hundred tons on account of other persons. Held, the contract must be lim- ited to such hemp as was shipped by C, as the agent of A ; and the latter was obligated to deliver no more than the seventy-one tons. It could not be supposed that A meant to sell property which did not belong to him, but to others. (3) 27. Agreement to deliver from seven hundred to one thou- sand barrels of meal, at so much per barrel. Seven hundred were delivered, and then three hundred more were tendered. Held, the vendor might elect to deliver any number of barrels from seven hundred to one thousand, and that B was bound to pay for those tendered. (4) 28. A aorreed to purchase of B " about three hundred quar- ters, more or less," of foreign rye, shipped in the ship C at (1) Judkins v. Earl, 7 Greenl. 9. (2) Lano v. Neale, 2 Star. 106- (3) Hayward v. Scougall, 2 Camp. 56. (4) Disborough v. Neilson, 3 John. Cas. 81. 38 GENERAL PRINCIPLES OF SALE, &-C. [Chap. I. Hamburgh, at a certain price, subject to the safe arrival of the C with the goods, and being unsold at Hamburgh. The C ar- rived, bringing three hundred and fifty quarters of rye ; but B refused to deliver any par't of it, unless A would take the whole: A thereupon abandoned the contract, and brought an action to recover the money paid for the three hundred quarters. Held, the agreement did not contemplate an excess of fifty quarters over the three hundred expressly mentioned ; that if the con- struction of the contract was doubtful, the burden of proof was on the defendant, and the defence not made out. The agree- ment might mean all the rye that could be brought by the ship C, or all that the correspondent of B could send by her, there being other goods on board ; or the remainder of the cargo, af- ter sale of a part. Whether the terms " about" and " more or less" could be explained by the testimony of merchants, qu.(l) 29. The plaintiff" agreed to buy from the defendant, and the defendant to sell the plaintiff", all the naphtha that the defendant might make for two years, say from one thousand to twelve hun- dred gallons per month. Upon demurrer to the defendant's pleas, a question arose as to the sufficiency of the declaration, which alleged no construction by usage of the word say, used in this contract. Held, in the absence of any proof of fraud, the declaration did not allege a sufficient breach of the con- tract ; the true meaning of which was, that the quantity of naphtha made by the defendant would probably amount to one thousand or twelve hundred, and that the plaintiff should have all that he might make. (2) 30. Agreement, to have a boat ready for the spring trade on the first of March ensuing; otherwise, to pay ten dollars dam- ages for every day after that time, till the boat should be ready. Held, this was a covenant that the boat should be ready on the first of March for the spring trade, and that the promisee should recover damages for a breach, though it could not have been then used for that purpose. (3) 31. Contract for the sale of tobacco on board a vessel bound (1) Cross V. Eglin, 2 Barn. & Aclol. 106. (2) Gwillim V. Darnell, 2 Croinp. IM. & R. 61. (3) Young V. White, b Walls, 460. Sect. VI.] CONSTRUCTION OF SALES. 39 from A to B. " One fifth of the price to be paid in cash on a certain day ; for the other four fifths the vendor to look to his correspondent abroad, the consignee of the goods." There was a further understanding, that interest should be allowed, as if the sale had been at two and three months from final delivery. The vendee to have the benefit of the vendor's policy in case of average. One fifth of the price was paid in cash. The property was sold at B, at a loss of two fifths of the computed value. Held, the vendee was responsible to the vendor for such loss. Any other" construction would make the vendor liable to loss, but give him no chance of profit. The foreign arrangement was a mode of payment, provided merely for the accommodation of the vendee. The consignee not being able to make up the price, the vendee was bound to do it.(l) 32. Agreement by A to furnish straw to B, to be delivered at the premises of the latter ; three loads per fortnight, for a spe- cified time. B agreed to pay a certain sum per load for each load so delivered on his premises during the time. The straw having been sent for some time according to agreement, B refused to pay for the last load, claiming the right of always keeping one load unpaid for. Held, by the terms of the agreement, each load was to be 'paid for on delivery ; and therefore A was not bound to furnish any more loads, after B's refusal and claim as above-mentioned. Perhaps it might have been otherwise had B merely neglected to pay according to agreement. (2) 33. Sale of merchandize by written agreement, at so much per load, to be taken by dock account, and paid for in cash, allow- ing two and one half per cent, discount, within fourteen days from date ; to be taken on board, and the duty deducted. The duty to be paid by the vendee. Held, the discount was to be made on the sum paid the vendor only, without the duty. (3) 34. Goods shipped from abroad to a merchant in England, are to be paid for on a demand of freight, by net weight at the king's landing-scales, not by the weight specified in the bill of lading, unless there is an agreement to the contrary. And (1) Hoffman v. Heyraan, 2 D. & R. 74. (2) Withers v. Reynolds, 2 Barn & Ad. 882. (3) Smith V. Blandy, Ryan & M. 260. 46 nKNKnAr, prin* ipi.f.h or sali:, SiC. [Chnp. 1. where a vendee paid frei;^lit according to tlie weiirlit in tlic mar- gin of the hill of lading, which was signed by the captain with llie reservation *' weights unknown ;" held, the mistake was of fact, not of law, and therefore the account was not concluded, and that the excess paid might be recovered back. IWii^/it was held to mean tut iniirht. The jury found a usage in favor of the above coi)slruction.( I ) 35. The defendant agreed to purchase from the plaintitT a large quantity of Campeachy logwood at so much per ton, to be of real merchantable r|ua!ily. Such j)art thereof as impartial judges should pronounce otherwise, to be rejected. Sixteen tons out of three hundred proved to be of an inferior quality to that mentioned in the agreement. In a suit brought by the vendor against the vendee for non-performance of the acTrec* ment, held, the latter was bound to take such part of the log- wood as corresj)onded with the contract, at the stipulated price ; and that such price was the measure of damages, and not the amount of difference between the price and what the logwood would have brought, when the true quintily of Campeachy was ascertained. ("i) 36. Agreement to deliver a quantity of iron, made at A, for a sound price. Iron was delivered which was made at A, and which the vendor believed good, but on trial it proved positive- ly bad. Held, this was a fulfilment of the contract. (3) 37. The correct construction of a contract is often determin- ed by facts or declarations not contained in the agreement it- self, as, for instance, by a certain notice or usage. 38. At a repository for horses, certain rules were posted up, regulating private sales. Held, such regulations were binding upon parties contracting there, and having notice of them. (4) 39. A ordered from B, .with whom he had previously dealt, more of a certain article, to be sent by a particular coach. At the office of this coach a notice was posted up, that the proprie- tors would be liable only to the amount of .£5, unless the goods (1) Gei-aldes V. Donison, Holi, 346. (2) Gruliam v. Jackson, 14 E. 498. (3) Kirk V. Nice, 2 Walts, 367, (4) Bywatei- v. Richardson, 2 Nev. & M.iti. 748. 1 Ad. & El. 508. Sect. VI.] I ONSTRUCTION OF SALES. 41 were insured. The goods ordered by A e.xceeded this amount, were sent by this coach, and not insured ; but there had been no insurance on goods sent in previous cases. The goods be- ing lost, held, B might maintain an action for the price.(l) 40. Though a usoqc of trade cannot be set up in contraven- tion of an express contract, yet, to explain an ambiguity, the general understanding of a particular trade may be shown. ('2) 41. Certain mill-logs were sold, for so much per thousand, according to the quantity of lumber they should be estimated to make. A table or scale of estimation was so generally used, thai the jury found ihe parties referred to it, in order to compute the quantity of lumber. Held, they were bound by such table, though somewhat erroneous. (3) 42. Agreement to doJiver Salina salt in barrels. Held, the barrels must be such as were prescribed by the statute. (4) 43. A promise to pay a sum of money in wares of a certain trade, means articles which are entire, and of a kind and fa.sh- ion in common use ; not antiquated and unsaleable. (5) (1) Cothay T. Tule, 3 Camp. 129. (2) Powell V. Horton, 3 Scott, 110. (3) H«ald V. Cooper, 8 Grconl. 3'.'. (4) Clark v. Pinney, 7 Cow. 681. (6) Dennett v. Short, 7 Grecnl. 150. CHAPTER II. PARTIES TO THE CONTRACT OF SALE. Section 1. — married women. 1. General principle as to the capacity of contracting. 2. Married women — general disability. 3. I /lability of the husband for goods sold to the wife. 11. Liability of the wife. Section II. — infants. 1. Their liability for necessaries. 4. Liability of the father. 1. Contract of an infant not void, but voidable. Section III. — idiots, lunatics, &.c. 1. Idiots, lunatics, S^c. 2. Duress. 3. Alien enemies. Section IV. — agents, factors, and brokers. 1. General rules ; the principal is the real party. Sect. I.] MARRIED WOMEN. 43 4. General and special agents. 5. Agency cannot be delegated. 6. Agent, how apiwinted ; express ami implied authority; ex- tent of authority. 20. Admissions, Sfc. of agent. 21. Revocation^ oj an agent's authority. 22. Principal, whether liable, if credit were given to the agent : agent's liability ; public agents ; ship-owner and master. 33. Suit by an agent against the principal, as purchaser. 35. Principal responsible for fraud of agent. 36. Sales, 4'c. by brokers. 41. Bought and sold notes. 45. Sale by wharfingers, Sfc. m. Proceeds oJ property sold by agent, belong to principal. 42. Sale by trustees, executors, Sfc 53. Under an order of Court, or legal process. 63. tSalcs by or to partners. Section I. — married women. 1. All persons are competent to buy or sell, unless laboring under some special disability, which incapacitates them for niak- inf^ any valid contract. 2. A married woman or feme covert is incapable, for the most part, of buying or selling personal property. The law vests all her chattels in her husband, and of course she cannot sell that to which she has herself no title; nor, except under special cir- cumstances, can she become a purchaser, so as to charge either herself or her husband with the price of the thing sold. 3. A husband is, under some circumstances, liable for neces- saries furnished to his wife. But, in order to charge him, the seller must prove either his express or implied authority for, or assent to the t»ale, or that the property was necessary and con- venient, and suitable to his actual condition and fortune, and 44 PARTIES TU SALCS. [Clla|J II. that the wife is unprovided fur, and has no adequate means of support. The circumstance of her liriiig with him is strong evidence of his assent to lier contracts, and Ijas been licld ^^;//fla facie evidence that the yoods were ordered by liis authority, un- less ihey were luxuries, or unsuitable to her station. Oilier acts of the husband may justify the satne inference. 4. The husband may prohibit any particular individual from trusting his wife ; and has, in general, the right of judging what is neces.sary for her use ; but he cannot prohibit all persons from supplying her with necessaries. And, it seems, even his express dissent will not exempt him from liability, where- the thing sold was absolutely necessary for her comfort- But if she has the means of support, though derived from her own re- sources, he is not liable. So, if it i.s clearly proved, that the credit was given to her. Her improper and lewd conduct, while he continues to live with lier, will not exempt him from the lia- bility to support her. And though they arc separated, yet if he has the control of the goods purchased by her, and fails to re- turn them, he is liable. If he turn her away, or without reason refuse to receive her, or treat her in such a way as justifies her leaving him, he is liable for necessaries, even to one whom he has expressly prohibited from trusting her. But if ^he leave him for any thing short of actual violence, or a reasonable fear of it, or a reasonable cause for refusing to cohabit with him, he is not liable. It is sufficient to charge a man, that he represents a woman as his wife, cohabits with her, or permits her to as- sume his name.(l) 5. If a wife purchase goods without tlie knowledge of the husband, and he, knowing of it, afterwards allow her to use or keep them, he is liable for the price. If, on being applied to for payment, he disavows any participation in her business, and denies that the goods were purchased in his behalf, the vendor (1) 3Barn.&,Cr.631. 63. 7 C. & P. 756. 3Esp.2o5. 3 C. & P. 16. 3 B. & R. 532. 3 Bing. 552, 3 Camp. 22. 4 Nev. & M. 589. 1 Camp. 120. Ld. Ray. 1006 Sid. 109. 2 New R. 157. 1 Salk. 118. 2 Star. 86. 6 Bing. 28. 5 Taun. 356- 1 Salk. H9. 6 Mod. 171. 3 Bing. 127. 5C. &P.200. I Y. & J. 501. 4 Burr 2177. 5 Bing. 28. Str. 1214. 3 Taun. 421. 2 Esp. 637. 1 Camp. 245. 4 Camp' 215. 9 B & C. 167. Sect. I.] MARRIED WOMEN. 45 may consider the agreement as rescinded, and retake or sue for the property.(l) 6. Where a wife elopes with an adulterer, tlie husband is no longer liable for any thing furnished her ; because tlie circum- stances are sutFicient to put all persons on their guard. Other- wise, where, after acts of adultery by the wife, the husband leaves her in liis house with children bearing his name, although she afterwards continue her criminal conduct; unless such con- duct be brought home to the knowledge of the creditor. (2) 7. A man is liable for necessaries supplied to a woman whom he has married and held out to the world as his wife, notwith- standing his previous marriage with another woman, unless he can clearly prove notice to the creditor of such marriage. (3) 8. Where the husband has himself brought to his house, and held criminal intercourse with, a woman not his wife; treated the wife with great cruelty and turned her away ; and afterwards the wife is guilty of adultery, but offers to return to her hus- band, who refuses to receive her; he is not liable for goods sup- plied to the wife. But if, after her criminal conduct, he receive her back, and again turn her away, he is liable for necessaries furnished her. (4) 9. If a wife elope, but not with an adulterer, and afterwards request the husband to receive her back, which he refuses to do ; it seems he is liable for her subsequent support.(5) 10. Where husband and wife live apart, upon an agreement for separate maintenance, he is not liable for necessaries fur- nished her, though nhe creditor were ignorant of such agree- ment, provided it was matter of general notoriety in the neighbor- hood. Otherwise, if the wife took up the goods immediately after leavincr the husband. The separate maintenance need not be secured by deed, in order to discharge the husband; but it must be proportionate to his means, and shown to be so by other proof than merely the wife's assent. If the separate niainte- (1) Mackinley v, M'Gregor, 3 Wliari. 369. (■2) Manby V. Scott, 1 Sid. 109. Morris v. Martin, Str. 647. 6 B. &. C. 200. 2 C. & P. 507. S M. i R. 121. 8 Wend. 344. 11 Wend. 33. 1 B. (k P. 236. (3) 1 Camp. 246. (4) 6T.R.603. 4Esp. 41. (i)3Eip. 256. SeeSir. 875. 1214,0. 1. 11 John. 2?1. 12, 293 46 I'AflTIES 10 SAELS. [Cliap. II. nance is secured through a trustee, and the husband f^iils to ful- fil his contract, llic trustee may maintain indcb. as'SMmp. against him for necessaries furnished the wife, though the agreement is under seal.(I) 11. A wife is not rendered liable upon her contracts, by an allowance of alimony made to her in a suit in the Ecclesiastical Court between licr arid the husband ;(2) nor by living apart from him under a contract for separate maintenance. This last point seems to have been finally settled as above stated, ',3) after some previous decisions to the contrary(4). But a creditor, in such case, may have relief in E(iuily.(5) Divorce « mensn does not make her liable.* Divorce a vinculo does.(C) 12. Where the husband has permanently left the realm, by abjuration or banishment for life ; or, it seems, where he has been transported, even if he remain abroad beyond the time as- signed to him ; the wife is liable. So, where the husband is by any means, for the time, civilitir mortuus, or the marriage contract is suspended or dissolved And it seems, though the authorities upon the subject are somewhat contradictory, that it makes no difference whether the husband is an alien or a native, but the question turns entirely upon the consideration, whether the absence is intended to be temporary or permanent. If the husband is an alien enemy, the wife is liable, because he cannot lawfully be in the country. (7) (1) 1 Ld. Ravm. 444. 4 Camp. TO. 2 New R. 148. 8 John. 27. (2) 5T.R.679. (3) 8T.R. 543. (4) 2 Kent. 159. (5) Long, 20. (6) 3 B. & C. 291. 3 Br. & B. 92. 2 B. & C. 547. (7) 1 Bos. &, P. 338. 2W. Bl. 1197. 4 Esp. 27. 2 B. & P. 232. 2 M. & W. 64. 1 Aik. 174. 15:Mass. 31. 6 Pick. 89. 4 M'Corcl, 148. 2 M. & W. 64. 6 C. & P. 419. 9 Bing. 292. 7 Bino. 762. Salk. 116. 646. I B. & P. 357. 2. 226. 2 Esp. 554. 587. 2 N. R. 380, 1. 80. 3 Camp. 123. 1 Ld. Ray. 147. 2 M. & W. 64. 3B. &C. 291. 2B. &.C.547. Gow. 10. * Otherwise in Massachusetts. 3 Pick. 461. Sect. II.] INFANTS. 4"'' Section II. — infants. 1. Infants constitute another class of persons, whom the law holds to be incapable of buying and selling, as well as entering mto other contracts. To this disability, however, there are some exceptions. Thus an infant may legally purchase and bind himself to pay for necessaries ; that is, for the food, cloth- ing, medical attendance, instruction, &^c., which are suitable to his condition. So also for necessaries furnished to his family. A sin^lc bill, promising to pay the precise sum due for necessa- ries, is binding ; but not a penal bond, negotiable instrument, or account stated. But notwithstanding these securities, an infant still remains liable to pay a reasonable sum for necessaries. If, after coming of age, he promise to pay a negotiable instrument given during infancy for necessaries, it seems, he is bound, pro- vided he does it voluntarily and with full notice of his rights. But mere part-pmjmcnt after coming of age will not bind him for the residue.*(l) 2. What articles the law will adjudge to be necessaries for an infant, depends upon his real, and not his ostensible rank and fortune. The law requires the parly who trusts, to make due inquiry. A captain in the army, under age, is bound to pay for a livery supplied to his servant ; but not for cockades fur- nished his soldiers. A lieutenant in the navy is not bound for a chronometer. But an infant member of a volunteer corps is liableto pay for regimentals. An infant is not bound to pay (l)CoLU.172a. Bull.N.P.155. 9 Wen.l. 238. S.r.l68. 8 E. 330. 1 Lev^ 86. 7 Car. & P. 52. 10 John. 33. 1 T. R. 40. 4C.&P.104. 1 Camp. 552. 3 M.&S.477. 6Yerg.20. Cro. Eliz. 533. 13 P.ck. 1. 4 Esp. 188. 3 B. & Aid. 902. 17 Wend. 419. 2 Esp. 628. 5. 102. ♦ Where the plaintiff sold ihc defendant goods wh.le the latter was a nimor, but be- fore receiving them she came of age ; held, inasmuch as the property would vest m her. If at all, upon delivery to the carrier, she was not bound for the price. Gr.ffin v. Langfield, 3 Camp. 254. 48 PARTIES TO SAT.ES. [Chap. II. money which is loaned him for tlie purchase of necessaries, un- less it be thus appropriated. But, in Equity, he is liable for money borrowed to pay a debt for necessaries. An infant can- not bind himself to pay for goods purchased to trade with, be- cause the law regards him as incapable of trading. 3. Where an infant lives with his father and is properly sup- ported by him, he is not liable even for necessaries. So if he has been supplied by his friends or by other tradesmen, the creditor is bound to inquire into the proper quantity as well as quality of the articles with which he may be trusted.(l) 4. On the other hand, to charge a father even for necessaries supplied to his child, the plaintiff' must prove a deliberate deser- tion of the latter by the former. Nor is the father liable, if he had reasonable ground to suppose that the child was supplied. And the general doctrine is laid down, that, to charge the parent, an express or implied authority must be shown, to supply the articles. (2) 5. But any fraud or misrepresentation by the father will ren- der him liable. 6. Sale of goods to an infant, on the false and fraudulent representation of his father, that he (the father) was about to relinquish his business in favor of the son. Held, an action might be maintained against the father as for goods sold and de- livered. If he was jointly interested with the son, he was liable for the whole, no plea in abatement having been filed ; and, if the son had no interest in the property, then the father appro- priated the fund from which creditors expected to receive pay- ment. (3) 7. It is to be understood, that the contracts of an infant are not in general, like those of a married woman, ahsolutdy void, but only voidable, or liable to be avoided at the election of the (1)8T.R. 678. Holt, 77. 5 Esp. 152. 28. 1 Salk. 336. 2 Esp. 472. 1 P. Wms. 554. 4 C. &. P. 526. 3. 114. 669. . 61 Esp. 211. Cro. Jac. 560. 2 W. Bl. 1325. 4 Watts 80. 6 Car. & P. 690. Str. 1083. Cro. Jac. 494. (2) 4 Ad. & El. 908. IC.&P. 1. 4Aci. &E1. 903. 6 C. & P. 2?«6. 2T. R. 161. (3) Biddlo V. Levy, 1 Stark. 20. Sect. 11] INFANTS. 49 infant liimself.* Consequently the promise of an infant is a good consideration for that of the oilier contracting party ; be- cause, at the time of the contract, it cannot be known that the former will fail to fulfil his agreement. 8. The plaintiff, an infant, having agreed to take all the po- tatoes growing upon certain land of the defendant, paid a part of the price, and dug and carried away a part of the potatoes; but the defendant would not permit him to take the remainder. Held, the plaintiff might sustain an action. (1) 9. The law, however, will not allow an infant to use his per- sonal privilege as an instrument of fraud upon those with whom he deals. This privilege is designed " for a shield, not for a siDorii:' Hence, where the infant exercises his right of disaf- firming a contract, the other party may reclaim the considera- tion which he has paid. 10. In December 181G, A and B commenced business as partners, and purchased their stock in trade of C, giving there- for their joint note for over $700. A was then au infant, but represented that he should be of age in a month or six weeks. In March 1817, the partnership was dissolved, and B relinquish- ed (to A) all his interest in the concern, who carried it on alone for a short time in his own name. The plaintiff then, in presence of B, agreed with A to buy of him all his stock, at cost, A to continue in the management of the business, receiv- ing one third of the profits, and bearing one third of the ex- penses ; and a certain notice to be given, before putting an end (1) Warwick v. Bruce,2 Maulu &. S. 20a. * It is said, a contract beneficial to an infant, (as in iho case of necessaries,) is bindin". One that is prfjudicial is void; while those neither absolutely beneficial nor prejudicial are voidable ai iiis election. Long on Sales (Am. Ed.) 13. Of course tliese distinctions must be piedicated upon the original tendency of the contract in question, or its general nature, not upon the actual results. The contract must bo valid, void or voidable at the time. It has been further remarked, that the doctrine that certain acts done by an infant are not even voidable, has been only applied to cases of land, which it is said arc necessarily required by law to be binding, other- wise the land would lie unoccupied. There is no case in which it is holden, that an executory contract by an infant, except for necessaries, is binding. Moses v. Ste. vens, 2 Pick. 336. 7 50 PARTIES TO SALES, [Chap. 11. to the contract. During the negotiation, the plaintiff inquired of A whether he was of age. A answered, in the presence of B, that he was. The plaintiff then gave his note to A and B for the stock, which they indorsed to C, and C thereupon discharg- ed B from the old note first above mentioned. In the autumn of 1817, the plaintiff sold the stock remaining on hand to A at cost, additions having been in the mean time made to it. The plaintiff brings an action against A for the price, and attaches the goods. A having died, his administrator pleads infancy, and prevails in the suit. The plaintiff then brings the present action of replevin agamst the administrator, to recover the goods sold by him. Held, the action might be sustained. The sale in March 1817 to the plaintiff was executed by A. He de- livered and received payment for the goods, and the law would not allow him to retain them, without restoring the money. The sale was valid, till rescinded, and A never expressed any dissat- isfaction. The plaintiff delivered the goods, in the autumn, be- cause A agreed to pay for them, and said he was of age. The basis of the contract had failed through the fault, if not the fraud of A, and the property either never passed, or had re- vested in the plaintiff.(l) 11. It is said, if an infant give or sell goods, and deliver them with his hand, he cannot maintain trespass against the other party. But if the latter take them by force of the gift or sale, he is liable to an action. Even in the former case, it seems the infant may avoid the sale during minority. (2) Section III. — idiots, lunatics, &c. — duress — alien ene- mies. 1. The contracts af sale, as well as other agreements, of idiots, lunatics, and persons of such defective understanding as dis- qualifies them to comprehend the nature of their own engage- (1) Badger V. Phinnoy, 15 Mass. 359. (2) Long on Sales (Am. Ed.) 14. 9 Cow. 026. 1 Mod. 137. 3 Burr. 1804. Sect. III.] IDIOTS, LUNATICS, &C. 51 ments, are of course void or voidable ; and it seems to be now well settled, though a contrary doctrine was once established, that they may allege their own incapacity in avoidance of their contracts. Mental incapacity to contract, consists in an essen- tial privation, at least for a time, of the reasoning faculties, which disqualifies one for acting in the ordinary affairs of life.(I) 2. Duress also may avoid a contract of sale ; and this con- sists in actual unlawful imprisonment, or fear of death, wound- ing or imprisonment ; but not, it seems, in fear of a battery or loss of property. And the threats must be of a nature to terri- fy persons of ordinary courage. (2) 3. It is the general rule of law, that an alien enemy can main- tain no action in the courts of the hostile nation ; but the ex- ceptions and nice distinctions relating to this subject have no particular connection with sales of personal property, and are therefore wholly omitted in the present work. Section IV. — agents, factors and brokers. 1. Contracts of sale are often entered into through the inter- vention of agents and factors,"^ acting for the vendor or pur- chaser, or for both. The general rule in relation to sales and purchases made in this mode, as well as other contracts, is, that the priiicijjal or party employing an agent is as much bound by, and entitled to avail himself of, the act of the latter, as he would be if it were his own. The legal maxim is, " qui facit per alium, facit per se."f (1) 2 Kent, 452. (2) 2 Inst. 483. 2 Kent, 453. * A factor has possession as well as the disposal of property belonging to others. A broker merely the latter. t It has been held in Pennsylvania, that although the above rule, that the sale of a factor is that of the principal, and the factor a mere instnment, is subject to certain qualifications ; there is nothing in the acts relating to auctioneers, to take them out of the general printiple. Tho auctioneer's exclusive right of scUincr at auction has not 52 PARTIES TO SALES. [Chap. II. 2. In case of sale by a factor, the contract is in fact between the owner and vendee, whether the factor is a del credere agent or not. Hence, after notice of the principal's title to the pro- perty, the vendee cannot be charged as trustee of the factor, ex- cept for the amount of the latter's commissions.(I) 3. A factor, acting under a del credere commission, sold goods in behalf of the plaintiff to the defendant, not disclosing the plaintiff's name, but known by the defendant to be a factor. The plaintiff, conformably to the usage between him and the factor, drew upon the latter for the amount of the sale. Before maturity of the draft, the factor stopped payment, and subse- quently became a bankrupt. At the time of his stopping pay- ment, there was a balance of account current between the fac- tor and the defendant, in favor of the factor, but at the time of suit brought by the plaintiff against the defendant for the price, a balance in favor of the factor. Held, this suit might be main- tained. (2) 4. An agent is either general or special. A general agent is one authorized to transact all business, or all of a particular kind. He can bind his employer only by acts within the scope of his employment, and within the usual course of dealing in that par- (1) Titcomb v. Seavcr, 4 Greenl. 542. (2) Hornby v. Lacy, 6 M. & S. 166. this effect ; for, inasmuch as the owner has no power to select his agent, he ought to have additional authority to call himself upon the purchaser. Nor does the fact, that auctioneers are under bonds to the stale, change the general principle ; for the amount of the bonds bears a very small proportion to the value of the properly sold ; and a private factor's giving security would not affect the right of the principal to call on the purchaser. So the auctioneer's receiving a commission does not vary the general rule. For, although this implies the general ri^ht of collecting from purchasers ; yet, the vendor may interpose and prevent it, and will thus make himself liable for the com- mission. As the auctioneer is bound to pay duties, and receives commissions, he has the right of collecting to this extent, and may so far retain the money and forbid payment to the principal ; and probably the vendee would be bound to take notice of this right- The case of Willing v. Rowland, (4 Dall. 106, n.) is said to favor the contrary doc- trine, that the owner of the goods cannot maintain an action against the purchaser, but the auctioneer is the proper party. But this is said to have been a hasty decision. The case of Lea v. Yard, (lb.) merely decides that the bond of an auctioneer is de- signed for the benefit of his private customers, as well as to secure payment of duties. Girard v. Taggarl, 6 S. & R. 19. Sect. IV.] AGENTS, FACTORS AND BROKERS. 53 ticular business. But no private order from the principal, un- known to the other party, will limit the agent's authority. Nor will it depend at all upon the question whether his acts are ad- vantageous or otherwise. A special agent is one appointed to do some specific act or acts, and in the doing of these alone can he bind his employer. A party dealing with him is bound to inquire into his authority. But an agent employed to effect a certain object, has authority to use all the usual and proper means for accomplishing it, unless these are excluded by express instructions.(l) 5. It is the general rule, that an agent must execute his au- thority in person ; he cannot delegate it to another, without the principal's consent, unless the business is of a nature which nat- urally or necessarily requires the employment of sub-agents.(2) 6. No particular form is requisite for the appointment of an agent to buy or sell personal property. A mere verbal authori- ty is sufficient; and in some cases the power maybe implied from other acts and dealings. Thus if a man send his servant with the money to buy goods, the servant cannot render him liable by purchasing on credit. But if a servant who usually buys for the master on credit, purchase certain articles without any order to do so, and if the vendor give credit to the master, he is liable for the price, more especially if the vendor has pre- viously dealt with him. A general agency cannot be implied from a single recognized dealing, but only from repeated in- stances.(3) 7. The plaintiff brings an action for hay and oats furnished the defendant's horses. It appeared, that the plaintiff had never dealt with the defendant, but always with his coachman, to whom the defendant had periodically supplied money for this object. The debt was incurred several years before commence- ment of suit, and no demand made upon the defendant. Held, he was not liable. (4) (1) Paley, 139.200. 207. 9. (2) Paley 175, 6, 7. (3) 1 Shower, 95. 10 Mod. 111. 3Keb.625. I S(r. 506. Peake,47. ILd.Ray. 224. R. & M. 227. 217. (4) Kendall v. Andrews, Long, 220. 54 PARTIES TO SALES. [Chap. II. 8. Wliere a master usually pays cash for a part of the goods supplied by a tradesman to his servant, this is sufficient notice, that he considers these only as furnished to his family, and the vendor is bound to ascertain the destination of the goods which he sells. Hence if he deliver them without payment or notice to the master, the latter is not liable, unless they come to his use.(l) 9. Ld. Ellenborough has thus stated the rule of law on this subject. The general rule is, that in order to bind one person by the act of another, the former must either antecedently au- thorize or subsequently adopt such act. If I authorize a man to obtain credit on my account, which he does, I am liable, un- less I have paid him. And so if, after the sale, the money was given to the servant to pay for the goods, it seems the master is liable, in case the servant does not pay for ihem, because he has authorized the servant to purchase on credit. (2) 10. The plaintiff delivered a quantity of hay and corn at the stables of the defendant, but had never seen, or received any orders or money from him. The defendant kept a book with his coachman, in which entries were made of the things bought by, and sums advanced to, the latter. The advances were made on general account, and not specifically appropriated to particu- lar items. The defendant gave the coachman money to pay the plaintiff's demand, but he applied it to his own use. Held, if the coachman was always in funds beforehand to pay for the goods, the defendant was not liable, never having authorized him to pledge his credit. But if he was not so in funds, he had aright to obtain credit, and the defendant was liable, notwith- standing the advance made to the coachman. A verdict was rendered for the plaintiff.(3) 11. Where a vendor brings an action and recovers judgment against his agent for the price of the goods, this is an affirma- tion of the sale, and the agent's right to sell cannot afterwards be disputed by him. Thus the defendant bona fide purchased goods from one A as the agent of the plaintiff, who brought an (1 ) Pcaicc V. Rogers, 3 Esp. 214. 2 M. &. W. 181. (2) 5 Esp. 76. (3) Rushy V. Scarlett, -5 Esp. 76". Sect. IV.] AGENTS, FACTORS AND BROKERS. 55 action and recovered judgment against A for the price. The plaintiff now seeks to disavow the agency, and brings replevin against the defendant for the goods. Held, the former record was conclusive evidence for the defendant. (1) 12. Where one assumes to act for another without authority, if the latter, with notice of all the facts, expressly ratify, or fail for a reasonable time, to dissent from, the act done ; he is bound as much as by a previous authority. i^2) 13. Where no special instructions are given, a general power to sell implies a power to sell in the usual way ; but not to bar- ter, pledge, or sell in an unusual manner, or for any thing but cash, or upon the ordinary term of credit. A factor may sell on credit, though not expressly authorized, because such is the constant usage. But, for the same reason (reversed) a broker cannot thus transfer stock. If a factor, contrary to usage, sell on credit, no title passes to the vendee, unless the sale were in market overt; nor even then, if the vendee knew that the ven- dor acted for another. (3) 14. A factor has no power to larter the goods of his princi- pal, even with one ignorant of his agency ; but the principal may maintain trover for property thus disposed of; unless it be done in market overt *{i) 15. One to whom goods are consigned for sale, is justified in incurring any expenses in eiTecting such sale, which a prudent man would find to be necessary in the discreet management of his own affairs. Thus, where the owner of a ship conveyed her to a creditor, to be sold by him to the best advantage, and after payment of his debt, the surplus to be returned to the debtor ; held, the expense, in the form of commissions, of selling the ves- sel through the medium of a ship broker was a reasonable charge upon the gross proceeds of sale, unless some local usage could be shown to the contrary. (5) (1) Marsh V. Pier, 4 Rawle, 273. (2) 2 Kent, 615. (3) Paley,26. 212. 12 Mod. 514. 1 Camp. 258. 3 B. & C 342. (4) Guerreiro v. Peile, 3 B. & Aid. 616. (5) CoUey v. Merrill, 6 Greenl. 50. * Aliter in England, by Sf. 6 Geo. 4, ch. 94. 56 PARTIES TO SALES. [Chap. II. 10. The following cases familiarly illustrate the distinction between a general and a special agent. If a livery-stable keep- er, having a horse for sale, directs his servant not to warrant the horse, but the servant disobeys the order ; the master is bound, because the servant did not transgress the genera Iscope of his authority, and a purchaser without notice could not be affected by any private instructions given to him. Otherwise, where the owner of a horse sends him by a servant to a fair for sale, with similar instructions. In such case, the servant alone is bound by the warranty.(l) 17. The plaintiffs, the E. I. company, sold a quantity of silks to the defendant, through a broker, whom the defendant had instructed to purchase the hcstBengalraw silk. In an action for the price of the silk, the defence was that it was not raw silk, nor of the best quality. Held, the broker was a special agent, and havinc deviated from his instructions, the defendant was not responsible for his acts, nor liable to the present action. (2) 18. It is held in an old case, that where one appoints a factor to purchase for him a certain kind of property, as for instance tin, and that only ; the factor may bind him to pay for an en- tirely different article, such as silk, {saics ;) " and for that, let the master take heed what factor he makes."(3) 19. Where a factor, having a general power to sell, is in- structed to sell for not less than a certain price, and does sell for less ; the principal is still bound, unless the vendee had no- tice of such instruction. On the other hand, though a special agent, with limited authority, cannot bind the principal if he exceed such authority, and, if he is expressly limited as to price, cannot go beyond such price ; yet, though a price be specified, if the agent is at liberty to exceed it, he is not a special agent, and the principal is bound, though he go beyond the price nam- ed.(4) 20. A principal is bound by the representations or admissions of his agent, relating to the business of the agency ; but not by (1) Fenn v. Harrison, 3 T. R. 760. 2 Cr. & M. 392. (2) E. I. Co. V. Hensley, 1 Esp. 112. (3) Petties v. Soani, Gouldsb. 138. (4) Ambl. 497, 8. Hicks v. Hankin, 4 Esp. 114. Sect. IV.] AGENTS, FACTORS AND BROKERS. 57 any others. Thus in a prosecution to recover a penalty for selling coals short of the legal measure ; the confession of the defendant's agent, employed to sell them, made previous to the sale, is admissible evidence; but not a confession relating to some former sale.(l) 21. A principal may always revoke a 6«rc or naked authority conferred upon an agent, and will no longer be bound by his acts, after notice of such revocation to the agent and the party with whom he deals. It seems, he is bound by any bona Jide acts of the agent, previous to receiving notice of the revoca- tion, which are to his disadvantage ; but may waive the benefit of those which are in his favor. He is also bound by any deal- ings of the agent with persons who have previously dealt with him, and who have not been notified of the revocation. Where a broker has verbally agreed to sell the goods of his principal, a revocation by the latter avoids the sale, it not being legally valid by the Statute of Frauds. If the agent has a "power cou- pled with an interest, as where he is authorized to sell goods and apply a part of the proceeds to his own debt ; the authority can be revoked only by the death of the principal. And even this is no revocation, where the power is of such a nature as may be executed in the name of the agent himself.(2) 22. It has been already intimated, that where one person pur- chases goods for another, but without disclosing his agency, the vendor may call upon the principal for payment, though he gave credit to the agent. So where the vendor merely knew that the nominal vendee was acting for another, but not the name of the principal. But if a vendor has notice who the principal is, and chooses to give credit to the agent, he can resort to the latter only. (3) And it is said, generally speaking, by the usage of trade, where an agent buys for a foreign house, the vendor can- not resort to the principal for payment.(4). And, on the other (1) Peto V. Hague, 5 Esp. 134. (2) 2 Kent, 644. Bac. Abr. Master, &c. k. 6 M. &. R, 613. 10 B. & C. 137. 2 Mas. 244. 7 Ves. 28. (3) 15 E. 62. 4 Taun. 674. 676, n. 9 B. & C. 78. 3 Doug. 410. 10 B. & C. 671. 6M. &S. 1. (4) Long (Rand'i El) 406, 7. 12. . 8 58 PARTIES TO SALES. [Chap. II. hand, if one sell for a foreign house, he may sue in his own name. 23. A bankrupt coachmaker, who continued the business for the benefit of the assignees, purchased varnish in his own name. Held, he was a mere agent, and the assignees were liable to the vendor. (1) 24. It is to be understood, however, that a principal unknown at the time of purchase will be held liable as the real vendee, only at the election of the vendor. The agent may still be re- sorted to for payment. Upon the same principle, where one person sells property in his own name but for another's benefit ; either the real or nominal vendor may bring an action for the price.(2) 25. Public agents are not personally liable, even under cir- . cumstances which would charge private agents in their individ- ual capacity. Thus, where the governor of Quebec pur- chased corn and grease for the use of the lieutenant governor, commanding a fort in his province ; he was held rot to be per- sonally liable. So a commissary is not liable for forage furnish- ed for the army upon his order. So the captain of a troop of horse, during his absence, and while it is actually commanded by another, who issues the orders for subsistence for the men ; is not liable to pay for such subsistence ; though still enti- tled to a profit upon the sums issued on that account, and still commanding the troop. And though present with the troop, he is not liable for forage furnished by the orders of a clerk of his appointment, but receiving his directions from any ofBcer who happened to command. But if the captain receive money from the paymaster of the regiment, to whom it is issued by government, and on whom the captain has the right of drawing for a certain sum, according to the returns of the preceding month; the party who furnishes the forage may recover the amount thus paid to the captain in an action for money had and received. (3) 26. It has been seen that an agent is always liable for goods (1) Kinder v. Howarth, 2 Stark. 354. (2) 7 Taun. 295. 10 B. & C. 671. 15 E. 272. 2 N. & M. 617. (3) 2 Kent, 632. Paley, 377, 8. 1 T. R. 172. 180. 8 Taun. 666. 3 B. & B. 275. Rice V. Chute, 1 K. 679. Sect. IV.] AGENTS, FACTOHS AND BROKERS. 69 purchased by him, where the vendor receives no notice that they are bought for the use of another ; because in such case credit is given to the agent alone. The same rule applies, where such notice is given, but the vendor refuses to deliver the goods on the credit of the principal ; for then he has no claim upon the latter. So, also, where the agent discloses that he is acting as such, but after delivery refuses to give the name of his employ- er. But if the agent notifies the vendor that he is buying for another, and gives the name of his principal, he is not liable for the price. (1) 27. Where one contracts in writing to deliver certain goods, not disclosing that he is a mere factor at the time ; he is per- sonally responsible for breach of the agreement, although, be- fore suit brought, the promisee is informed of his being an agent.(-^) 28. If an agent, purchasing goods, by the same writing acknow- ledges the receipt of them for his principal, and personally pro- mises to pay the price ; he is individually responsible for the debt. (3) 29. A purchased a cup from B. B inquired whether he should send it to the house of A, and A replied, " I have nothing to do with it — send it to the clerk of the course at Lichfield"— (meaning the race-course, the cup being designed for a pre- mium.) The clerk owed B on a prior account. The article was sent to the clerk, according to A's direction; and B after- wards wrote to him, successively sending him an account, made out to himself, and threatening him with suit, if not paid. The clerk had requested A to order a cup for the above purpose. Held, A was not liable for the price. As he ordered the arti- cle, it must have been presumed that the credit was given to him, unless proved to have been given to another ; but the cir- cumstances of the case, and more particularly the account made out to the clerk, showed that he was the person trusted. (4) 30. The relation between the master and the ownet of a ship (1) Owen V. Gooch, 2 E^p. 568. (2) Paley, 250. (S) Alford V. Eglisfield, Dyer, 230. (4) Storr v, Scott, 6 C. & P. 241. Seo 5 lb. 79. 60 PARTIES TO SALES. [Chap. II, constitutes a peculiar kind of agency, governed by principles somewhat different from the general rules of law above stated. Where a ship-master purchases necessaries for the ship, although he discloses the name of the owner at the time; both master and owner are liable to the vendor. On the other hand, a ship- owner is responsible, though he have let the vessel to the master for a limited time, covenanting that he shall have the sole man- agement of her, and employ her for his sole benefit, with a cove- nant by the master to repair the vessel, and though the owner was neither known to the vendor, nor knew of the sale. It might be otherwise, if facts distinctly showed, that the vendor gave credit wholly to the captain. But where goods were order- ed for a ship by the owners, before the appointment of a cap- tain, and some were delivered before, and others after, such ap- pointment ; held, the captain was not liable for any part, no credit having been given to him. Nor is he liable in any case, where it distinctly appears, that credit was given to the owners only.(l) 31. In order to charge an owner, the articles furnished to the captain must be such as were necessary or proper for the ship at that time, and such as any prudent owner might be expected to procure. The person attempted to be charged must be shown either to be legal owner, or to have so represented him- self; or else it must be proved that the articles were sold upon his credit. Hence, in the absence of the two last requisites, a person to whom a conveyance of a vessel was made, void under the registry law, cannot be charged for supplies furnished to such vessel. (2) 32. Where one part-owner of a ship purchases necessary sup- plies, the others are liable, unless the contrary is specially agreed. (3) 33. The question may arise, whether an agent can charge his principal- as purchaser from him, of goods bought by the agent of a third person. On this point it has been held, that where (1) Rich V. Coe, Cowp. 636. Farmer v. Davies, 1 T. R. i08. Cas. Temp. Haidw. 376. (2) Abbott, 102. 19, n. I. Harrington v. Fry, 2 Bing. 179. (3) Abbott, 76. Sect. IV.] AGENTS, FACTORS AND BROKERS. 61 one man employs another to purchase goods for him, and the agent buys and pays for them by a bill on time, the agent, it seems, cannot sue the principal for the price ; certainly not, be- fore maturity of the bill. 34. A, a foreign merchant, employed B to purchase goods for him on commission, which he did, from C. C, knowing the purchase to be made for A, made out the invoices to B, and took in payment his acceptances at six months. Held, the above facts did not constitute a contract of sale between A and B, or, if they did, no action could be brought by B against A for the price of the goods, until the expiration of six months. The commission to be paid B made him a factor or agent, and he became entitled to such commission upon the performance of his duty, that is, making payment for the goods. If A could be called upon immediately for the money, his object in employ- ing B was defeated, and he stood in a worse situation than he would, if dealing directly with the vendor. A was the real pur- chaser, and B merely an agent in procuring the goods, and pledging his own credit, not generally, as a broker, but special- ly, by guaranteeing payment. In relation to C, the vendor, B may have been the principal and the vendee of the goods, and yet as between him and A, a mere agent (1) 35. One who commits a fraud through a sale made by his agent is responsible to the vendee ; as where a goldsmith by his servant sells counterfeit plate, or a taverner corrupted wine. And the principal is responsible in such case, even though the fraud was committed wkhout authority from him, if done in his employment.* As where an agent sells counterfeit jewels for real and good ones, or diseased animals as healthy ; or where a factor beyond sea sells silk as of one kind, which proves to be of another. The principal is charged in such cases, upon the common rule, that where a loss must fall on one of two inno- (1) Seymour v. Pychlau, 1 B. & A. 14. ♦ An ancient auihoriiy (Bro. Abr., Action on the Case, pi. 8) seems to be contra, unless the act be done through the covin, or by command, of the master. 62 PARTIES TO BALES. [Chap. II. cent parties, it shall be borne by him who employed and trusted the deceiver. (1) 36. The preceding remarks are particularly applicable to the class"of agents commonly called factors. Brokers constitute another important class, sustaining the same general relation. In a late case, a distinction is taken between yac^o?-s and brokers, as to their respective power of binding their principals. Fac- tors are said to have possession of the goods, a lien upon them, usually, for advances, and the right of selling in their own names, neither of which is true of brokers. Hence the latter do not appear to the world clothed with the same authority as the former, and have not the same opportunity of deceiving those who deal with them. The principal is not bound by the contract of a broker, exceeding his authority, unless it can be shown, that the former by his conduct gave the latter the means of deceiving third persons, that they actually were deceived, and that they were not themselves guilty of negligence. (2) 37. From this statement it may be inferred, that the actual authority conferred upon a broker is not in all cases the measure of his power to bind the principal. Thus if property is so plac- ed in the broker's hands, as naturally to induce the belief on the part of third persons, that he is authorized to sell it ; a sale by him will bind the owner. 38. A, a broker, engaged in the business of buying and sell- ing hemp, purchased a quantity of hemp for B, who was in the habit of buying it at the London wharves. The hemp, at the time of purchase, was transferred in part into A's name, and the rest into the names of A or B. A afterwards sold the hemp to C. Held, B was bound by the sale. (3) 39. Certain brokers had been in the habit of purchasing and selling sugars on speculation, in their own names and at their own discretion, for their principal, and of paying and receiving the price. Sometimes, in a low state of the markets, they had unlimited authority as to quantity and price, at others, special instructions to purchase. They also received at intervals spe- ll) Paiey,30i. 3 Pet. 413. 13WenJ,518. 1 Salk. 289. 2. 441. 2 Molloy, 334. (2) Baring t. Curiie, 2 B. & A. 148. (S) Pickering V. Busk, 15 E. 3S. Sect. IV.] AGENTS, FACTOnS AND BROKERS. 63 cial instructions to sell, and were limited as to price, and advis- ed from time to time as to the prospects of the markets. They kept a general account with the principal of their payments to and receipts from him, not accounting separately for each lot purchased and resold. Having resold a particular parcel, which was bought and paid for in their own names, and lodged in their own warehouse, For a less price than was authorized by the prin- cipal ; held, the sale was valid, its validity depending upon the general course of dealing of the parties, and not upon the pri- vate instructions in this particular case.(l) 40. Possession of the muniments of title, accompanying that of the goods themselves, it seems, is sufficient evidence of a bro- ker's authority to sell. A, residing in London, having, as agent of B, imported certain goods, sent the invoice to B, but delivered the bill of lading to a warehouse-keeper, who entered the goods in his books as A's property. The bill of lading made the goods deliverable to the order of the shipper or his assigns, and was indorsed in blank. Five months afterwards, A, without author- ity, sold the goods, and B brings trover against C, the purchas- er. A verdict, having been rendered for the defendants, was set aside, and a new trial granted ; because itw as not left to the jury to say, whether B had enabled A to appear as owner. (2) 41. Where brokers effect sales or purchases of personal proper- ty, it is usually done by means o( bought and sold notes, so called. In reference to these, the following cases have been decided. 42. In an action brought by the vendee of goods upon a con- tract made through a broker, the plaintiff is bound only to pro- duce the bought note delivered him by the broker, and to prove that the latter was employed by the vendor. If the sold note va- ries from the bought note, the burden is upon the defendant to show this by producing the former. (3^ 43. Where a contract of sale is made through a broker, the bought and sold notes, not the broker's entry in his books, con- stitute such contract ; more especially if such is the established usage. (4) (1) Whitehead v. Tuckeit, 15 E. 400. (2) Dyer v. Pearson, 4 D. & R. 648. 3 B. & C. 38. (3) Hawes v. Forster, 1 Moo. & R. 368. (4) lb. 64 PARTIES TO BALES. [Chap. IF. 44. Where a sale is made through a broker, and the note of the barorain delivered by him to the vendee materially differs from that delivered to the vendor, there is no binding contract. The object of the note is, not merely to show that there was a bargain, but also the terms of such bargain ; or, at least, the extent and entirety of the consideration for the promise upon which suit is brought. Hence, where the vendee refuses to take the goods, the vendor cannot maintain against him either a spe- cial assumpsit, or a count for goods bargained and sold.(l) 45. A wharfinger, with whom goods are deposited until they shall be sold, cannot make a valid sale of them, though accus- tomed to sell property of the same description from the wharf. The same is true of icarehousemen, packers and carter s.[2) 46. Upon the general principle, that property entrusted for a special purpose by one man to another continues to belong to the former, notwithstanding any change of form ; where the goods of a principal are sold by his agent, or exchanged for others, any securities taken for the price, or property received in exchange, will be owned by the principal. From the peculiar nature of money, which has no ear-mark, it will be otherwise where the price is received in cash. In such case, the money belongs to the agent, leaving him accountable merely for the same amount. But if the money be kept by itself, or marked so as to distinguish it from any other; it is subject to the same rule with other kinds of personal property. (3) 47. All agents and factors are in a certain sense trustees, and subject to the general principles of the law of trusts. In this connection, however, it may be proper briefly to allude to the subject of sales made by trustees, technically so called ; that is, by persons to whom either the law, or the party interested in property, has committed it, to be managed or disposed of by them, without authority to bind the principal in any other way. 48. Where property is in the hands of a trustee for sale, the law demands of him great care to promote the best interests of (1) Peltier v. Collins, 3 Wend. 459. (2) Wilkinson v. King, 2 Camp. 335. Monk v. Whittenbury, 2 B. & Ad. 484. (3)|Long, 427,8, 9. Sect. IV.] EXECUTORS ^XI> ADMINISTRATORS. 65 his cesiuys, in making such sale, so far as is consistent with the rights of other parties concerned. He may sell either at public or private sale, unless specially restricted ; but is bound to use air proper exertions to obtain the best price; and, having done this, he will not be responsible for any unfortunate result of the sale.(l) 49. In general, neither a trustee, nor any agent or auctioneer employed by him, can either directly or indirectly become pur- chaser of the property sold : unless the relation of trustee and cestui has been dissolved, or the latter acts with full notice and waives all objections to the sale on this ground, and the trustee takes no advantage of his peculiar situation. But a sale origin- ally invalid may be ratified by the express confirmation of the ctstui, made with full notice of hisrights, and after all undue influence has ceased. (2) 50. Under this head, we may briefly refer to the subject of sales by executors and administrators. In general, an executor or administrator may absolutely dis- pose of the deceased person's personal property, and pass a title, free of all liens and claims, to the vendee. So also he may mortgage such property. And the purchaser or mortgagee will not be bound to see to the application of the purchase money. But if a sale be made at a sacrifice to one having notice that there are no debts ; if there be collusion between the vendor and vendee ; or if the latter aid the executor, &:c. in commit- ting tcaste or other breach of duty : he will share his responsi- bility to the full value of the property ; and creditors or legatees may within reasonable time follow it in his hands. An execu- tor, &:c. cannot sell or pledge the assets to pay or secure his own private debt. In general, it is no proof of collusion, that a party receives the property by way of sale or pledge, for a consideration advanced at the time, though such property is spe- cifically disposed of by the will or otherwise. Otherwise, where he receives the property on account of a subsisting debt. To (1) Lewin en Trusu, S6". 2 Rose, 66. 5 Madd. 440. 6 Sira 504 (2) Lewin. 876. 8 Cow. 362. 1 Pet. C. 364. Lewin, S90. 9 66 PARTIES TO SALES. [Chap. II, each of these rules, however, there may be exceptions, arising from peculiar circumstances.(l) 51. An executor may claim the price of goods belonging to the deceased, though sold without authority from him, and though the vendee have promised to pay another person. 52. An auctioneer, employed by a supposed executor, sold goods of the testator ; but, before payment, the lawful executor claimed the price from the purchaser, who had expressly agreed to pay the auctioneer, on being allowed to take away the pro- perty, which he did. Held, the purchaser was liable to the law- ful executor, and therefore the auctioneer could not sustain an action against him. (2) 63. Under the present title, also, may be considered the sub- ject of sales made by virtue of a judicial order or decree, or upon execution ; such sales being effected through the interven- tion of agents, appointed not by the party himself, but by the law. 54. Sales made under decretal orders of Chancery, are under the control of the Court, and may be rescinded or opened at any time previous to confirmation. But when confirmed, any error in the decree will not affect the title of the vendee. He has a right to presume, that a sale was properly ordered. But his title, it seems, is liable to be impeached by parties claiming the property, who were not properly brought before the Court. The Court will not protect him from a title not in issue, or af- fected by the decree ; more especially, vyhere he had notice of such title. And a sale is ineffectual, unless conformable to the decree. (3) 65. A sale on execution, conducted according to law, passes a good title, if the process be not absolutely void, though void- able for irregularity, or founded upon an erroneous judgment. Otherwise where the Court has no jurisdiction, or the execution (1) 2 Wms. 609. 10. 12. 13. 2 Story ;m Eq. 384. 1.544. 1 Aik. 403. 3. 237. 14 Vos. 358. (2) Dickenson v. Naul, 4 Barn. & Ad. 638. (3) 2 Sch. & Laf. 577. 3 Bligh. 188. 9 Vcs. jr. 37. Sect. IV.] OFFICERS OF THE LAW. 67 is void for irregularity, or the proceedings of the officer do not conform to the requisitions of the law.(l) 56. It v/as formerly held in Massachusetts, that, in general, an execution purchaser, receiving and paying for the goods, ac- quires a title to them, notwithstanding any irregularity in the officer's proceedings. If it were not so, both creditor and debtor must suffer loss, because no purchaser of the property could be found. But the officer's return ought to show a com- pliance with the law; otherwise the vendee would not hold his title. A different rule from the above applies to the sale of shares in a corporation. These are more like choses in ac- tion, or mere evidence of property, and, at common law, cannot be sold on execution. Hence, the Statutory requirements must be strictly pursued, to give a title. If certificates of shares were given to the vendee, this would be more like delivery of a chattel. But even in such case, unless the return showed a compliance with the requisitions of the law, the corporation might not be justified in giving certificates to the purchaser. (2) 57. But, in a very recent case in Massachusetts, it has been decided otherwise with respect to the return of the officer. In this case, A recovered an execution against B, upon which C, an officer, seized and sold a horse, but the return did not state where the notifications were posted*. B brings trover against A and C. Held, parol evidence was admissible of a legal no- tification, and that the officer might amend his return. The Court remarked, that a different rule would operate to the inju- ry of both creditor and debtor, because no purchaser would be found but at a very low price. Also, that the old rule was in- consistent with the principle, that a seizure of goods upon ex- ecution discharges the debtor, though the sheriff waste them or fail to return the execution. The case differs from a sale of land upon execution, for there, to give a perfect title, the pro- (1) 1 Cow. 734. Cro. EHz. 279. 1 M. & S. 425. 2 Conn. 700. 16 John. 537 8 Co. 141 b. 7 B. & C. 536. 10 Co. G3 b. 3 John. 523. Mctc. Yclv. 180 n. (2) Howe V. Starkweather, 17 ftLiss. 240. Davis v. MaynarJ, 9. 242. * It mcntioneJ merely " two public places" The amendnieut was saiJ not to con- tradict the re'urn, but only niaiie il more diitinct. 68 PARTIES TO SALES. [Chap. II. ceedings must all appear of record. (The action was remand- ed to the Court of Common Pleas, with instructions to the offi- cer to apply to the magistrate who issued the e.\ecution, for leave to amend. And the amount of the execution was deduct- ed from the value of the horse, in mitigation of damages.) (1) 58. The return upon an execution stated the advertisement of goods sold to have been made tiocnty-four hours before the sale. The debtor brings an action of trespass against the offi- cer. Held, the defendant could not be permitted to show by parol evidence, that the time was forti/-cigIit hours.(2) 59. A fraudulently purchases goods from B, and the goods are afterwards taken upon an execution against the latter. In an action by A against the officer, A cannot avail himself of any irregularity in the proceedings connected with the execu- tion sale. (3) 60. Where the purchaser of property at an execution sale refuses to receive and pay for it, the officer may sell it anew. (4) 61. A sheritr cannot legally purchase goods sold by himself. Such purchase is a conversion, which will justify an action of trover against him. But he may show the amount paid to the creditor in mitigation of damages. (5) 62. Where goods have been levied upon by execution, and the judgment debtor sells them with the sheriff's assent, such sale does not divest the title of a previous purchaser from the debtor, though the previous sale would be void against the execution. (6) 6S. In immediate connection with the subject of sales made by and to factors and agents, may properly be considered those made by or to partners. The right and power of one partner to bind his firm, depends in great measure upon the fact, that he is expressly or by implication their authorized agent, in re- lation to the partnership business.* (1) Richards v. Smith, S. J. C. Norfolk, Oct. 1839. (2) Purrington v. Loring, 7 Mass. 388. (See Law Reporter, Jan. 1840.) (3) Daggett v. Adams, 1 Greenl. 198. (4) Winslow V. Loring, 7 Mass. 392. (6) Pet-kins v. Thompson, 3 N. H. 144. (6) Frost V. Hill, 3 Wend. 386. * This power is; sometimes spoken of as resulting from the joint tenancy "f part- ners. Gow, 80. Sect. IV.] • PAUTNERS. 69 64. In general, a contract of sale made by one partner binds the firm. Each member is individually liable for the fulfilment of the entire agreement. But the rule applifes to such matters only as are within the scope of the partnership business, or arise out of its regular transactions. With this qualification, also, a sale to one partner binds the firm to pay the stipulated price, although the vendee purchased with a fraudulent intent, and has actually applied the property to his own use ; unless the vendor was privy to such intent.(l) 65. With regard to sales made by a partner of partnership property, the following distinction has been taken. Where the property is of such a nature, as shows that it is intended to be sold, and the profits of the concern to be derived from a sale ; a sale by one is not only sufticient to pass the title to a purchas- er, but, as between the partners themselves, is regarded as the joint act of all, and creates no liability on the part of the vendor to the other partners, except accounting for a share of the pro- fits. But where partnership property is from its nature proper- ly intended only /or use, as, for instance, in the case of tools and machinery ; although the sale by one may be considered as valid against all, so far as to pass a title, yet it is a wrongful act on the part of the vendor towards the other partners (2) In a case in Massachusetts, where one partner had undertaken to dispose of a sliip belonging to the firm, it was objected that the general rule did not apply to this species of property, on the grounds of its superior value, and its being usually transferred by sealed instruments. But the Court, recognizing the power of one partner to dispose of any other partnership effects, held that ships did not constitute an exception to the general rule.(3) 66. Partnership in a particular adventure, as well as in gene- ral trade, authorizes one member of the firm to sell the partner- (1) R.cov. Shute,5Bur>-.2613. 2 Cox, 312. 2 B. & A. 673. 1 Cr. & J. 500. I Sim. 376. 1 Camp. 185. 12 E. 317. 2 .B. & A. 795. 6 B. & C. 551. 9. 632. (2) Vickery V. Taft, Chip. (Verm.) 242. See 3 John. 70. 4. 277. Godb. 244, Gow, 79. 5B. &A.405. 2 B. & A. 678. (3) Lamb v. Durant, 12 Mas?, 54. 70 PARTIES TO SALES. [Chap. II. ship property. But one jjart-oiontr or tenant in common has not the same po\ver.(l) G7. A subsequent ratification by one partner of a sale made by another, binds the former as effectually as a previous au- thority. G3. A and B were jointly interested in a stock of oil. A con- tracted to sell it, without authority from or notice to B. B, on being notified, refused to be bound by the contract, but after- wards verbally assented. Samples were delivered to the pur- chaser. Held, the ratification was equivalent to a previous au- thority.(2) 69. Where there is a doubt, whether a party purchasing goods bought them for himself alone or for the benefit of others also, as partners ; to prove the latter point, evidence may be of- fered of acts subsequent to the delivery of the property. But such evidence will be insufficient to charge third persons, who afterwards become partners, if it is clearly shown that no part- nership existed at the time. If one partner purchases in his own name, but the property is delivered to all, the firm are bound. So, if several persons agree to share in goods to be purchased, and in pursuance of such agreement one of them makes the purchase, though without express authority from the rest, and as for himself only. But it is otherwise, where several persons, though jointly interested in the same general business, have dis- tributed it among themselves, each taking the exclusive manage- ment of a particular section. Thus, where several persons were jointly concerned in running a stage, and each supplied horses for a certain part of the route ; it was held, that one who fur- nished grain to one of the partners could not hold the others for the price. (3) 70. The warranty, misrepresentation or fraud of one partner in buying or selling, within the scope of the partnership busi- ness, binds the firm. (4) 71. After dissolution of a partnership by bankruptcy or (1) CoUycr, 218. 5 B. &. A. 395. (2) Soames v. Spencer, 1 Dow. & Ry. 32. (3) Savillc V. Robertson, 4 T, R. 720. Goulh'.vailt v. Duck>\orth, 12 E. 421. Bar- ton v. Hanson, 2 Taun. 49. (4) CuUycr, 241—252. Sect. IV.] PARTNEnS. "^i otherwise, one partner has no power to dispose of the partner- ship property. But a secret act of bankruptcy on the part of one will not prevent the other, being solvent, from selling the joint effects, if done without fraud, and for valuable considera- tion. (1) 72. One of four partners having died, and the partnership being thereby dissolved, one of the survivors took out adminis- tration upon the estate of the partner deceased. The three survivors then formed a new firm, and took the stock on hand, each giving his note, payable to the three, for one third of the appraised value. Held, the supposed sale was void, and the three survivors were jointly accountable to the funds of the old firm for the value of the stock. (2) 73. The following case turns upon the distinction between a sale made in construction of law to one really but not ostensi- bly connected with the nominal vendee, whereby he becomes party to the original purchase ; and a mere sub-sole to him by the former purchaser. 74. An indictment for selling a lottery ticket alleged that it was sold to A and B. The evidence showed, that A and B agreed to go shares in a ticket, and afterwards A, in presence of B, selected the ticket from a number produced by the defend- ant at A's suggestion. Both paid their respective shares of the price, B laying the money on the counter. A, with B's consent, kept the ticket till the drawing of the lottery. The ticket hav- ing drawn a prize, the defendant paid ihe whole to A, and A paid B his share. There was no communication between A and B, from the time of purchase till information was given of the prize, and the money paid. Held, the facts supported the in- dictment by shov.'ing a joint purchase. It was immaterial, whether the defendant was paid by the particular money advanc- ed by each of them, or otherwise. As there was no subsequent agreement, B must have been originally an owner, because he received a part of the prize. Even if B had advanced nothing, nor been present at the sale, the purchase according to a prior agreement would be a joint act and vest the title in both, B be- (1) Hague V. Ro!lesl<)n,4 Burr. 2174. Fox v. Hanbnry, Cowp. 445. (2) Washburn v, Goodman, 17 Pick. 619. 72 PARTIES TO SALES. [Chap. I F. coming indebted to A for the price. It was so far a partner- ship, that one might act for both, contract for the purchase, re- ceive a delivery, and in case of credit bind both for the price. The fact that the defendant was ignorant of B's interest, made no difference. There was no sub-sale, as in the case of Young V. Hunter, 4 Taun. 581.(1) 75. A sale may take place as well between partners or joint owners, as from or to them, to or by a third person. The gen- eral principle is, that where two parties are jointly interested in the same property, each stands to some extent in the relation of trustee to the other, and is subject to the restrictions and liabil- ities, in baying and selling the common property, which that re- lation involves. But in a recent case in Massachusetts it has been held, that where two tenants in common of a ship are not jointly engaged in buying or building ships for sale, they are not placed in such a relation of mutual trust and confidence with respect to the sale of the vessel, that each is bound in dealing with the other to communicate all the facts known to him, which may affect the price or value ; but they may deal with each other as distinct owners. Thus one of them, in bargaining for a purchase from the other of his share, is not bound to inform him that a third person had previously agreed to pay him (the vendee) a larger price for the whole. But any studied eflbrt at concealment, or even slight fraudulent suggestion or represen- tation, would avoid the sale ; if such suggestion was any part of the vendor's inducement to sell, though not the predominant motive. In an action brought by one part-owner against another for such fraudulent representation, it was held, that the defend- ant might show, for the purpose of disproving fraud, and upon the question of damages, that he paid the full value of the ves- sel ; but that the price agreed to be paid the defendant by the third person was strong, though not conclusive evidence of the value.(2) (1) Commonwealth V. Lang, 14 Pick. 76. (2) Matthews v. Bliss, 22 Pick. 48. CHAPTER III. DELIVERY AND ACCEPTANCE. Section I. — general principles and exceptions thereto. 1. Delivery, in what points of view material — general princi- ples. 2. Formal delivery unnecessary, when. 4. Constructive delivery ; ponderous articles. 10. Marking the vendee's name. 14. Sale by a tenant in common. 15. The vendee's dealing with the property as his own. 16. Sale of goods under attachment. 20. Sale before attachment, without delivery. 24. Order upon a depositary. 32. Transjer in the dock-books. 33. Delivery of store-keeper's receipt. , 34. Of an invoice. 36. Of a key. 38. Lease of the building in which goods are kept. 40. Sale to one already in possession. 46. Indorsement, Sfc. of bill of lading. 54. Notice to a third person, having possession. 59. Sale by one tenant in common to another. 61. Property borrowed by the vendor, Sfc. 63. Constructive delivery, where the vendor retains possession. 74. Part delivery. 10 74 DEI-IVERY AND ACCEPTANCE. [Chap. III. 84. Delivery of a sample. 8G. Conditional delivery ; tnhen a condition of the sale is waived hy delivery, Sfc. 98. Conditional sale, and delivery for an intermediate purpose. 1 00. Delivery to a carrier, Sfc. Section II. — necessity of delivery in relation to CREDITORS, &/C. ] . General doctrine. 3. Distinction betiveen absolute and conditional sales, Sfc. 4. Decided cases. 19. Sale of goods not in the vendor's possession. 20. Change of possession, 7ohat is. 23. Evidence to rebut fraud. 24. Possession taken after the sale. 25. Execution sales. 26. Purchase with another' s funds , Sfc. 30. Successive conveyances to two creditors. 31. Notice to a particular creditor. 32. Property incapable of delivery. 33. Fraud, whether a question of law or fact. Section III. — effect of a sale, where any thing re- mains TO BE done to the THING SOLD BY THE VENDOR. 1. General principle and decided cases. 15. Delivery, rcith a conditional agreement to take back. 17. Exceptions to the general rule. Section IV. — delivery to one of two purchasers from THE same vendor. Section V. — sale of ships at sea, &c. Section VI. — delivery obtained by fraud. Section VII. — time and place op delivery. 1. Agreement to deliver at a certain time and place. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &:.C. 75 3. Agreement to deliver ivithout specifying time and place. 4. Time of delivery. 10. Place of delivery. Section VIII. — acceptance. Section I. — general principles and exceptions thereto. 1. By the common law, a sale of chattels, as between vendor and vendee, passes the title without delivery. (1) But there are two points of view, in which the question of delivery becomes highly important, and which have given rise to very numerous decisions upon the subject. One arises from a provision of the Statute of Frauds, making delivery an equivalent or substitute for a written agreement, and effectual to bind the bargain, which, under that statute, would otherwise be void. The other has re- lation to the rights of third persons, who are connected with, or claim under the vendor, by attachment, execution, subse- quent conveyance, or otherwise; and involves the very impor- tant and voluminous law of fraudulent conveyances. In regard to the latter point, it is said to be the general rule, that delivery of possession is necessary, in the conveyance of personal chat- tels, as against every one but the vendor. (2) 2. But where a sale is bona fide and for valuable considera- tion, slight evidence of delivery is sufficient. And it is enough for the vendee to take possession with consent of the vendor, though there be no formal delivery. (3) 3. The terms of a sale being settled, the vendor accepted the vendee's promise to pay the agreed price to a third person, not making actual payment a condition of sale. Held, tlie vendee gained a title to the property with the actual possession, by con- (1) See Hob, 41. Holt, 20. n. (2) Lanfaar v. Sumner, 17 Mass. 113. Ricker v. Cross, b N. H. o71. (3) Shumway v. RuUer, 8 Pick. 443. 76 DELIVERY AND ACCEPTANCE. [Chap. III. sent of the vendor, express or implied ; this being equivalent to formal delivery.(l) 4. The law recognizes a constructive, as well as actual de- livery; and it is upon the question what constitutes such con- structive delivery, that most of the cases in the books have arisen. 5. A sale, without delivery or possession taken by the ven- dee, passes the title, if the property is of such a nature, and so situated, that his possession would be impracticable or incon- venient. And where the thing sold is not present, even a sym- bolical delivery is perhaps unnecessary. Thus where goods are ponderous and incapable of being handed over from one to another, there need not be an actual delivery, but only that which is tantamount, such as the delivery of the key of a ware- house, in which the goods are lodged, or of other indicia of property, or some act of the vendee from which possession and ownership may be inferred. *(2) 6. A purchased from B the boards which should be manufac- tured from a certain quantity of logs in B's possession, to be paid for at so much per hundred feet, when sawed. The logs were sawed and piled, and A notified thereof Held, this was a sufficient delivery of cumbersome articles, to pass the proper- ty to the vendee.(3) 7. A agreed with the managers of a lottery, to take 2500 tickets, giving approved security for the price upon delivery. The tickets were specified in a schedule, and deposited in books of a hundred each, thirteen of which were received and paid for, and the remaining twelve superscribed with the name (1) Bucknam v. Nash, 3 Fairf. 474. (2) Jewell V. Warren, 12 Mass. 300 . Badlam v. Tucker, 1 Pick. 389. Ricker v. Cross, 5 N. H. 571, 2. Parsons v. Dickinson, 11 Pick. 334. Chaplin v. Rogers, 1 E. 194,5. Rice V. Auslin, 17 Mass. 197. Howe v. Starkweather, lb. 240. (3) Bates V. Conkling, 10 Wend. 389. * By the civil law, there are various ways of taking possession of property sold, corresponding to the ceremonies in our law, of the acknowledgment and registration of deeds, delivery of keys, or giving a bill of lading of goods at sea. But the property in goods does not pass without actual or legal delivery. Laiifear v. Sumner, 17 Mass. 114. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &C. 77 of A by himself, and indorsed by the agent of the mana- gers, thus — " purchased and to be taken by A," with a further indorsement upon the envelope covering the whole — " A, twelve books." At the second day's drawing, one of the last designat- ed tickets drew a prize of $20,000. Between the third and fourth days' drawing, A tendered sufficient security, and de- manded the remaining 1200 tickets, but the managers refused to deliver the prize ticket. Held, the property of the tickets passed to A when the selection was made and agreed to, and they remained in possession of the vendors only as security. Hence A might recover the prize. The contract was an en- tire one, and not divisible. The article, though bought in gen- eral terms from a large number of the same description, yet be- ing afterwards selected and set apart with the assent of parties as the thing purchased, was as much identified and sold, as if selected before sale, and specified in the contract.(l) 8. Sale of logs lying in a boom. The vendor went in sight of the logs with the vendee, and showed them to him, but the latter placed no person in keeping, allowing them to lie as they were, till he should have occasion to use them. The transfer was made by a bill of parcels, attested by a witness, valuing the pro- perty at $1602, and acknowledging payment received " by in- dorsing for me at the Kennebunk bank for $1350." The ven- dee was at the time a surety for the vendor to this amount. The day after the transaction, the vendor died, and his admin- istrator took charge of the logs, which were otherwise in dan- ger of being lost. Held, the vendee might maintain ti'over against the administrator, there having been a sufficient delivery to pass the property. The fact of the defendant's taking care of the logs made no difference, as they were pledged for less than their value, and he had therefore a valuable interest to pro- tect. Nor could it be objected, that the sale was an absolute one ; for the very form showed it was not, and this must have been known to the witness. Neither was there any want of consideration, because the transfer was a pledge, and the mort- gagee might be compelled to pay the debt. For this reason, the (1) Tlionipson r. GiaVj 1 Wheat 75. 78 DELIVERY AND ACCEPTANCE. [Chap. III. excess in value of the property over the debt was immaterial and the case showed no fraud.(l) 9. Where one person contracts absolutely with another to sell him ponderous articles, which are left upon lauH purchased by the latter, and in his possession, and have ever since remain- ed there, in his power ; held, this is a sufficient delivery of the articles. (2) 10. Marking the name of the vendee upon the articles pur- chased, has been held to some extent a constructive delivery. 11. A went into the cellar of B, and selected several pipes of wine, agreeing to pay a certain price for them. The spills were then cut off, and B's clerk marked A's initials on the casks, in presence of B, and A took the gauge numbers. Held, these acts amounted to a delivery; but as the delivery was merely incipient, A might maintain an action against B for non-delivery of the wine,(3) 12. But under some circumstances, this act does not amount to a delivery. 13. The plaintiff sold to the defendant certain casks of wine lying in the London docks, and marked them with the defend- ant's initials, at his request and in his presence ; but the terms of payment were agreed upon, not at the time, but in a subse- quent conversation, being a credit of two months. Held, the contract was not complete at the time of marking the wine, and the facts did not constitute a sufficient delivery lo take the case out of the Statute of Frauds ; that the defendant could not have maintained trover for the goods, if not delivered, for the seller would have had a lien upon them for the price ; and consequent- ly that this action, for goods sold, did not lie.(4) 14. A being a surety for B, a minor, upon a note which A af- terwards paid, B conveyed to him by a bill of parcels, one third of a machine owned in common with C ; the bill having a memorandum attached to it, that the transfer was to be void on payment of the debt by B. The agent of B went to the mill (1) Jewett V. Warren, 12 Mass. 30O. (2) De Ridder v. M'Knight, 13 John. 294. (3) Anderson v. Scot, 1 Camp. 235, n. (4) Proutor v. Jones, 2 Cavr. & P. 532. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &C. 70 where the machine was, and delivered the property to A, show- ing him the machine, and declaring that he made delivery of B's third part of it. At and after the time of delivery, one D improved the machine under a parol lease from E one of the owners, who acted for the rest, and accounted to them for the rent. A claimed uo rent, and E agreed to indemnify D from any such claim. Afterwards, E claimed the whole property. The machine was suhsequently seized upon an execution against the joint owners, and sold by the sheriff, notwithstanding a no- tice of A's title, and a prohibition of the sale, one of the other owners, however, denying the title of B. In an action brought by A against the officer, held, there was an effectual transfer of B's title, there having been all the delivery whicii under the circumstances was possible.(l) 15. "A had agreed to sell live oak timber to the United States. The plaintiff advanced funds to him, to be invested in this kind of timber in Florida, the timber to be procured, cut and trans- ported at A's expense, but on account and at the risk of the plaintiff, to the navy yards. A to have one half the profits, and the plaintiff the other half, besides having the principal sum advanced, repaid. A consigned a quantity of timber to the plaintiff; the latter had the bill of lading, and indorsed his or- ders upon it, directing the ship-master, who was appointed by A, to proceed to the navy-yard, and deliver the timber. While he was doing it, a creditor of A caused the timber to be attach- ed as A's property. The plaintiff did not go on board after ar- rival of the ship, and before the attachment. Held, under the circumstances, the plaintiff had an authority, coupled with an interest, in the disposal and proceeds of the property ; that pos- session was to be inferred from his dealing with it as his own by indorsing the bill of lading; and therefore that he had a lien for his advances, and might maintain an action against the attach- ing officer. (2) 16. Upon a similar principle, where goods are wrongfully at- tached, they may be sold by the owner, and no delivery is ue- (1) Haskell v. Greely, 3 Greeril. 425 (2) Rice V. Austin, 17 Mas?. 197, 80 DELIVERY AND ACCEPTANCE. [Chap. III. cessary to vest an interest in the vendee. But as only a chose in action passes, the vendor may bring an action against the officer in his own name, though for the vendee's benefit. 17. The property of A was attached in a suit against B. While under attachment, A sold it to C. Held, an action might be brought (in the name of A) against the officer for C's benefit, and that C, having purchased merely a chose in ac- tion, could not sue in his own name.(l) 18. And under some circumstances, the attaching officer him- self may make a valid delivery, as the agent of the vendor. 19. A gave a bill of sale of a vessel without consideration to B, and B, with A's consent, conveyed her to C, a creditor of A, After the transfer to C, an officer who had before attached the vessel on behalf of other creditors, discharged the keeper, and delivered the vessel, lying at A's wharf, to C. Held, a valid delivery, if made with the consent and on account of A. (2) 20. On the other hand, where property sold is incapable of delivery at the time, and a creditor of the vendor attaches it be- fore the vendee obtains possession, the sale shall prevail over the attachment, and the vendee may maintain trespass. 21. A assigned to B among other things a chaise and harness, •which were then at a distance, in possession of C. Before B could obtain possession, the property was attached by A's cred- itors. Held, B might recover against the officer. (3) 22. A sold goods to the plaintiff on Saturday night, and the latter used due diligence to obtain possession on Sunday ; but on the latter day, a creditor of A obtained possession and se- creted the property, and on Monday caused it to be attached. Held, the plaintiff might maintain trespass both against the offi- cer and the attaching creditor. (4) 23. One A sold to the plaintiff" a mare, then being in the liv- ery-stable of B, who had a lien upon her for the keeping. Up- on the day of sale, both A and the plaintiff" by letters, duly receiv- ed, informed B of the sale, and requested him to keep the mare (1) Holly V. Huggeford, 8 Pick. 73. (S) Boyd V. Brown, 17 Pick. 433. (3) Ricker v. Cross, 5 N. H. 570. (4) Parsons v. Dickinson, 11 Pick. 33-2. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &-C. 81 for the plaintiff. Soon afterwards, the mare was attached as A's property, B not having then written to A or the plaintiff, but being ready to make delivery to the latter. B required pay- ment of the sum due him, before he would allow the officer to make an attachment. In an action of trover by the plaintiff against the officer, held, the above transaction passed the pro- perty, boih as between the parties and in relation to creditors ; that the action was therefore sustained, and, in estimating the damages, the sum paid by the officer was not to be deducted, be- itig a claim of the defendant against A.(l) 24. An order drawn by the vendor of goods upon the deposi- tary of them, and delivered to the vendee, is sufficient to pass the property under the Statute of Frauds, more especially if accompanied by a bill of parcels.(2) 25. Where goods sold lie at a wharf, lodging with the whar- finger a delivery order, with a power of sale, passes the proper- ty, without re-weighing or re-housing them. Upon the bank- ruptcy of the vendor, his assignees cannot maintain trover against a purchaser from the first vendee, as for goods " in the order and disposition" of the bankrupt.(3) 26. The vendor of malt sent an order to the warehouseman having possession of it, to hold it on account of the vendee. The warehouseman gave an acknowledgment in writing that he thus held the malt. In an action of trover brought by the ven- dee against the warehouseman, held, it was no defence, that ac- cording to the established usage, malt must be re-measured before it is sold ; and that prior to such re-measurement, the vendee had failed. The warehouseman by his acknowledgment attorn- ed to the vendee. (4) 27. A sold goods to B, taking his note at sixty days for the price. B sold the same goods to C and gave him an order upon A for delivery, which however was not immediately presented, nor A informed of the sale. B having become insolverlt, A de- (1) Tuxworth V. Moore, 9 Pick. 347. (2) Searle v. Keeves, 2 Esp. 598. Hollingsworth v. Napier, 8 Cainep, 182. Plea- sants V. Pendleton, 6 Rand. 473. (3) Tucker v. Ruston, 2 C. & P. 86. (4) Stonard r. Diinkin, 2 Camp. 344. 11 83 DELIVERY AND ACCEPTANCE. [Chap. IIL posited his note, together with the goods, in the hands of D, as security for a debt due to D from A. C having demanded pos- session from A, who refused to deliver it, on account of B's bankruptcy and non-payment of the note ; held, C might main- tain trover against D.(l) 28. By a usage of trade in Liverpool, the vendor of goods was bound to pay warehouse rent for two months from the time of sale, if they remained so long in his possession. The ven- dor's agent, within this period after the sale, gave the usual de- livery order to the vendee, who paid the price. During the two months, the goods were distrained for rent, and the agent of the vendee, having paid the rent to redeem them, brings assumpsit, for money paid, against the vendor. Held, the property of the goods had vested in the vendee, and he must bear the loss, in the same way as if they had been destroyed by fire. Hence, this action could not be maintained. (2) 29. A sold to B, for an agreed price, 1 19 barrels of flour, lying in a certain warehouse, and having upon them the brand of eight different mills. B gave a check for the whole amount, and A gave B a bill of parcels, stating the number of barrels of each brand, an order on the warehouseman, and a receipt for the price. Held, this was an executed contract, which passed the property to B ; that the warehouse, flour and check hav- ing all been destroyed by fire before delivery of the flour, the loss must fall upon B; and that A might sue for the price. (3) 30. A, a manufacturer, deposited goods with B, a wharfinger at Stockton, to be shipped to C's wharf in London, taking re- ceipts therefor. Upon these receipts, A indorsed orders upon C to deliver the goods, when they should arrive, to D, who had advanced money upon them. D sent the receipts and delivery orders to C, and demanded the goods. C answered, that the goods had not arrived, but when they did arrive, they should be forwarded to D. Held, D might bring trover against C for the goods, who by his reply to D's application assented to his title. Nor did it make any difference, that at the time of such assent (1) Hunt! V. Rownp, 2 Caincs, 38. (2) Greaves v. Hepke, 2 B. & A. 131. (S) Plea«anta v. Pendleton, 6 Rantl. 473, Sect. I.] GENEUAf, PJU.NCIPLES, BXCEPTIONS, &C. 83 the goods had not arrived. There was an attornment to D, though prospective ; like a promise by a tenant to attorn, made before he has entered upon the premises. It seems, a wharfin- ger's receipt passes the property in the goods by indorsement, like a bill of lading. (1) 31. Upon the same principle, where usage requires a delivery order to vest a title in the vendee, the property will not vest with- out such order, notwithstanding other symbolical acts of owner- ship on the part of the purchaser. Thus, A purchased of B forty-six puncheons of rum in B's warehouse at Liverpool, and re-sold them to C, a clerk of B, doing business on his own ac- count. A gave C an invoice, mentioning the marks and num- bers of each puncheon, and took his acceptances for the price. The rum and the samples taken remained in B's warehouse. It was proved to be an invariable usage in Liverpool, upon the sale of goods lying in a warehouse, for the vendor to give the purchaser a delivery order. C demanded such orders from A in the present case, but A refused them for all but two or three puncheons, which C received. The casks were marked, coop- ered and gauged by C. Before maturity of the bills, C sold twenty-six puncheons to D, who paid for them, and, by permis- sion of C, but without the knowledge of A, gauged and cooper- ed the casks in the warehouse, and marked them with his ini- tials. C gave an invoice to B, mentioning the marks and num- bers of the casks, and by whom the rum was branded. Before maturity of the bills, C also sold eighteen puncheons to two other persons, and gave them similar invoices and samples. These persons afterwards obtained such puncheons, upon a de- livery order signed by themselves, but not by A. They also paid C for the whole. C's bills, given in payment for forty-four puncheons, were dishonored. Held, under these circumstances, C never had actual possession, upon the dishonor of his ac- ceptances A had a lien for the price, and the parties who re-pur- chased from C could not claim as against A the rum which re- mained undelivered. With respect to the acts relied on to show a change of property ; the coopering might have been done for (1) Holl V. Griffin, 3 Moo. & S«oit, 73*. 84 DELIVERY ANO ACCEPTANCE. [Chap. 111. the purpose of ascertaining whether the casks were in order ; and the marking could have no peculiar effect, because C knew that he had no delivery order. He was the clerk of B, had the management of his cellar, and could therefore mark and gauge at pleasure. These acts might have vested the property in him, if B had approved of them, knowing that C had purchased from A. The delivery of one part was in this case no legal delivery of the whole, because accompanied with an express refusal to part with the whole. Nor was C's taking samples a construc- tive delivery of the whole, as they constituted no part of the bulk. He took two puncheons, for the purpose of separating them from the rest. A'slien was suspended while the bills con- tinued to run, but revived upon their being dishonored. The case was said to turn upon two points. 1. Where the goods remain in possession of the vendor, unpaid for, he may retain till payment; if in possession of his agent, whether warehouse- man or carrier, he may stop them in ircmsitii. 2. The second vendee could be in no better situation than the first. (1) 32. Where goods lying in a dock are sold, it seems, a trans- fer in the dock books is a sufficient symbolical delivery. (2) 33. Delivery of a receipt given hy the store-keeper who has the custody of the goods, is sufficient to pass a title ; this being the proper documentary evidence. (3) 34. In case of any sale of goods, the common course is for the vendor to deliver the vendee an invoice, but that does not vest the actual possession. (4) 35. But where goods which have been shipped and are at sea are sold, delivery of an invoice, with an assignment of the goods indorsed upon it, is sufficient to pass property. (5) 36. Delivery to a vendee of the key of a warehouse where the goods lie, is a sufficient delivery under the Statute.(6) 37. A sold goods to B and made delivery of a part of them, agreeing also to deliver the key of the shop which contained (I) Dixon V. Yates, 5 Barn. & Ad. 313. (*) Proctor V. Jot.es, 2 Carr. & P. 535. (3) Wilkes V. Ferris, 3 John. 335. (4) Di.Ton V. Yates, 5 Barn. & Ad. 338. (5) Gardner v. Rowland, 2 Pick. 699. (6) Wilkes V. Ferris, 5 John. 335. Sect. I.] UKNERAL PRINClPLliS, EXCEPTIONS, &-C. 85 the rest to C, which was accordingly done, for the use of B, A afterwards sold the part which remained in the shop, to D, who obtained possession of them by borrowing the key from C. Held, B might maintain trespass against D, there having been a constructive delivery of the whole property to B.(l) 38. So, taking a lease of the house in which the goods lie, is a sufficient delivery, though the vendor afterwards remove them to another building. 39. A quantity of furniture, being in a tavern, was sold ; and the vendee took a lease of the house, went there to live, and used it in common with the vendor, who had occupied under a previous lease, and continued to do so and to keep the tavern. The vendor afterwards removed to another house, carrying the furniture with him, and continued to use it as his own. Held, there was a sufficient delivery, and the property could not be at- tached as the vendor's. (2) 40. Where a vendee is in possession, no delivery is necessa- ry.*(3) 41. The lessee of a brick-yard and the brick-maker were joint owners of the bricks made in the yard. The lessee transferred his interest in the yard and bricks, and delivered possession to as- signees, who appointed the maker their agent to sell the property. He accepted and acted under the agency, and then sold to the as- signees all his interest in the bricks that remained. Held, no delivery was necessary, because the assignees were already in possession. (4) 42. Upon the same principle, where property lying in a yard is sold, facts showing a constructive possession of the premises (1) Chappel V. Marvin, 2 Aik. 79. (2) Shumway v. Rutter, 8 Pick. 443. (3) Chapman v. Searle, 3 Pick. 38. Manton v. Moore, 7 T. R. 6?. (4) Macombcr v. Parker, 13 Pick. 175. * This is also iho doctrine of the civil law. " Interdum etiain sine tradilione nuda voluntas domini sufficit ad rem transferendam]; veluti si rem (|uam tibi aliquis commo- daverit aut locaverit aut apud te deposiierit, postea aut vendiderit tibi aiit donaverit aut dotis nomine dederit. Quamvis enim ex ea causa tibi earn non tradiderit, eo ta- men ipso quod patitur tuum esse, statui tibi ncqiiiritur proprielaF, perinde ac si eo no- mine tibi tradita fuissel." Just. Inst, hb, 2, tit. 1, s. 43. 86 DELIVERY AND ACCEPTANCE. [Chap. III. by the vendee, are sufficient to vest the property in him without actual removal of it, even as against creditors of the vendor. 43. Buna Jide sale of bricks lying in a yard, with a lease of the yard to the vendee, the plaintiff, till a sale and removal of them, and a private agreement that the vendor might re-purchase and sell them on his own account, or sell them on condition of first paying or securing to the vendee the amount of his claim, or the value of what were sold. The bricks were not removed. There was no proof of the yard's being used after the sale, in making other bricks, or for any purpose, except keeping the bricks of the vendee and vendor. Possession was duly deliver- ed before witnesses. The nature of bricks is such, that they cannot be moved without expense and loss; and it is an unusual proceeding to remove them before a sale, or to place them in a warehouse for sale, on account of the expense and damage like- ly to be incurred. Held, the sale was valid against creditors of the vendor. The yard was not like a house or warehouse, which might be constantly occupied, or the key of it kept, I)y the vendee or his agent. The vendor gained no false credit by the transac- tion, because the vendee's possession was visible and notorious. The vendor's authority to sell, under the agreement, was not inconsistent with the vendee's title, for it involved no right in the former to interrupt the possession or divest the property of the latter. The bricks were not delivered to the vendor to sell, but the agreement was merely for a re-purchase, by which no creditor or purchaser could be deceived, because the vendor had no possession. In order to ascertain the terms of the vendor's agency, the vendee or his agent must be applied to.(l) 44. One A married the daughter of the plaintiff, being a widow, went to live in her house, and assumed the management of her family. A, becoming insolvent, broke up the establishment, sold the carriage, discharged the servants, &c., and surrendered the management of the household to the plaintiff, who afterwards exercised the exclusive control, and paid all the expenses, of the family. The furniture still continued in use, except the plate, ivhich was boxed up. The plaintiff lent to A his notes to a large (I) Alien V. Siniih, 10 Mass. 308. Sect. I.J GENERAL PRINCIPLES, EXCEPTIONS, &.C. 87 amount, payable at different periods, A covenanting to pay them at maturity ; in consideration of which A gave the plaintiff a bill of sale of his furniture and plate, the value of which did not equal the amount of the debt. Held, the facts showed a transfer of possession, which rendered the sale valid against creditors of A.(l) 45. Upon the same principle, where an agent of the vendee is in possession, no delivery is necessary. Thus, A, a commission merchant, sold goods of B to C, and the same day bought them back from C at a reduced price on his own account. Discover- ing that they were not of the quality warranted by B, A charged them back to B, with his previous consent. Held, the property vested in B without delivery. The possession of the factor was that of the principal. (2) 46. Bona fide indorsement and delivery of a bill of lading pass the property in the goods, if so intended by the parties; like a delivery of the goods themselves. (3) 47. Mere indorsment of a bill of lading, without delivery of it to the assignee or some third person for his use and with his assent, does not pass a title. But, it is said, delivery without in- dorsement, if the cargo is by its terms to be delivered to a certain person, constitutes a valid transfer, subject to the vendor's right of reclaiming the goods, upon non-payment, before actual pos- session by the vendee. (4) 48. It seems, the mere putting of a bill of lading into the Post Office, directed to the vendee at a distant port, is a suffi- cient delivery to take precedence of a subsequent attachment. (5) 49. The plaintiff, a trader in London, made the following agreement with the defendant. " October, 11, 1833. Sold to G &L Son, for account of A &, Co., two hundred firkins of M & Go's. Sligo butter, at 71s. 6d. per cwt ; free on board. Payment, a bill at two months from the date of landing. To be shipped this month," &c. The butters were not shipped un- (1) Ludlov/ V. Hurd, 19 John. 218. (2) Holly V. Huggeford, 8 Pick. 73. (3) Newsom v. Thornton, 6 E. 41. (4) Buffington v. Curtis, 15 Mass. 528. Walter v. Ross, 2 Wash. C. C. 28S. (5) Buffington v. Curtis, 16 Mass. 628. 88 DELIVERY AND ACCEPTANCE. [Chap. III. til the following month, but the defendant waived this condition; and accepted, the invoice and bill of lading, indorsed to him. The property was lost upon the voyage, and the plaintiff brings an action for goods bargained and sold, long after the property in the ordinary course would have been landed, and the two months' credit expired. Held, the action might be maintained. The invoice and bill of lading passed the property to the de- fendant. The condition of the contract was waived, and there- fore was as if it had never existed. The provision for making payment by a bill at two months from the landing merely spe- cified the date of payment, but did not render the landing a condition precedent of the defendant's liability. Nothing being left to complete the contract, this action would lie, and, it seems, even an action for goods sold and delivered. Nor was it neces- sary to set out the contract as conditional, as it would have been if made by deed.(l) 60. A, residing at Providence, being indebted to B at New York, and B having demanded payment, A informed him that he (A) had ordered a balance of funds in the West Indies to bd sent to B, and directed B to give him credit therefor. A's agent shipped the funds, consisting of doubloons, in a general ship, Consigned to B, and forwarded to B a bill of lading, stating them to be on the account and at the risk of A. Before arri- val of the doubloons, A became insolvent, and assigned all his property to trustees for the benefit of other creditors. Upon arrival of the doubloons, they were claimed both by the assign- ees and by B. The ship-master files a bill of interpleaded Held, B had a specific lien^ not affected by the assignment.(2) 51. A, residing at Boston, having ordered certain goods from B at Liverpool, B shipped them in a general freighting vessel, which was consigned to B and designated by A. A bill of lad- ing was obtained by B, by which the goods were to be delivered to A. B having withheld the bill of lading from A, and after- wards enclosed it with an invoice in a letter to his, B's agent, with directions to deliver it to A only on condition of his pay- (1) Alexander v. Gardner, 1 Scott, 630. 1 Bing. N. R. 671. (2) Clark v. Maiirnn, 3 Paige, 373. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &.C. 80 ing for the goods; held, that after the above facts, which seem- ed to constitute a sale and constructive delivery, B had no pow- er thus to make the delivery a conditional one and deprive A of liis title.(l) 52. A shipped goods to B, according to the order of the lat- ter ; sent a bill of lading indorsed, making the goods delivera- ble to order or assigns ; and drew a bill on B for the price. The bill was not accepted, and the captain of the ship refused to deliver the goods. B brought an action o{ trover against the captain, and recovered a judgment against him. Held, A might sustain an action against B for goods sold and delivered. The delivery was complete, as between A and B, when the goods were put on board the ship. The transaction was in principle the same, as if, after delivery into the warehouse of the vendee, the vendor had retaken the goods. He would ht liable for a tort, but might still maintain a suit for the price. So in this case, the detention by the captain, even though done by collu- sion with A, was no defence to this suit. B had claimed the goods in his suit against the captain, as his property ; and re- covered their value, as well as damages for detention ; which claim could be sustained only upon the ground that the property passed when the goods were shipped. (2) 53. Where a bill of lading is signed before the goods speci- fied therein are either shipped or purchased, and goods are af- terwards shipped, before the vessel sails upon the intended voy- age, as and for the goods referred to ; as against the shipper and master, the bill of lading operates by relation nad estoppel; and the consignee, who receives it and accepts drafts upon the consignment, gains a good title. (3) 54. Where property sold is in possession of a third person, giving notice to the latter of the sale is a sufficient delivery, more especially if followed by some act on his part indicating a recognition of the transfer. Thus, A purchased sheop in the possession and keeping of B. He notified B of the purchase, and requested hira to act for himself (A) in selecting the sheep, (1) Stanton v. Eager, 16 Pick. 467. (2) Groning v. Mendiiam, 5 M. & S. 189. (S) Rowley V. Bigelow, 12 Pick. 307. 12 90 DELIVERY AND ACCEPr.VNCE. [Chap. III. and to receive and keep them for him, to which B assented. Soon afterwards, the selection was made, the vendor delivered the sheep to B, who marked them with the name of A, and kept them as before, till attached by a creditor of the vendor. Held, they were not liable to attachment.(l) 55. A gave to B, as security, an absolute bill of sale of a chaise in possession of C, and of other property in possession of A himself. There was no change of possession, but notice of the sale was given to C, who agreed to keep the chaise for B. Held, there was a sufficient delivery of the chaise, as against A's creditors ; and that the sale was valid in regard to this, though it should not be in regatd to the rest of the property, unless fraud in fact was proved, which was a question for the jury. (2) 56. In case of a sale of chattels, which are in custody of a third person, for valuable consideration, with an order upon the latter and notice thereof; the title passes, whether he obeys the order and delivers the property, or claims to hold it by some ti- tle or lien. (3) 57. But merely leaving goods with a third person, to be call- ed for by the vendee, is not of itself a delivery. 58. The plaintiff left certain goods with A, requesting him to deliver them to the defendant, when called for. They were not called for, but remained in A's possession. Held, there was no delivery of the goods,. and an action for goods sold and deliver- ed did not lie.(4) 59. Where the vendor and vendee are tenants in common, no delivery is necessary ; the possession of the former being that of the latter also. 60. The plaintiff advanced to one A the materials for con- structing two carding-machines, A agreeing that the plaintiff should own a share in them proportioned to such advance. Af- terwards, having sold one of the machines, A gives the plaintiffa writing to secure him in the property and possession of the other, authorizing him to sell it, re-pay himself for his advance, and (1) Barney v. Brown, 2 Verm. 074. (2) Spaulding v. Austin, 2 Verm. 555. (S) Plvmouth Bank v. Bank of Norfolk, 10 Pick. 453. (4) Hart t. Tyler, 15 Pick. 171. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &.C. 9! account with A for the surplus. The plaintiff thereupon gaTe A a receipt in full for his advance. The machine was in the house of one B, whence it could not be removed without being taken in pieces and injured, and no formal delivery was made of it. B, having a claim against A, attaches the machine as his. Held, the plaintiff and A under the original agreement were tenants in common, and no delivery was necessary to transfer the share of the latter to the former.(l) 61. The mere act of extending his hand over the propertv by the vendee, followed by the vendor's borrowing it for a particu- lar use, and immediately taking it away, has been held not to be a delivery. 6Q. A, having negotiated with B to purchase of him a yoke of oxen, extended his arm over one of them in the act of mea- suring, and said he would pay the price demanded. B replied that he might have them, but at the same time borrowed them for the purpose of hauling a load of timber, with the agreement to use them in no other way. Held, there was no lesral delive- ry, neither earnest being paid, nor a memorandum signed, and that no title had vested in A. There was nothing in the cir- cumstances of the case, to show any departure from the gene- ral rule, that payment must precede delivery. The application made by B, was merely an intimation that he was not then readj to part with the cattle ; and though his asking to borrow them seemed to imply that they were considered as belonging to A, yet this inference must be qualified by the accompanying acts and declarations. The true import of what passed between the parlies was, that B knew the offer of A was no engagement to receive the cattle at any future time, and a request that the bar- gain might not be defeated by his using them, bui that A would accept them afterwards. There was nothing to show any inten- tion of giving credit. If the property had passed, B might main- tain an action for the price ; the cattle would have been in his hands at the risk of A, and upon A's death have vested in hia administrator : which clearly was not the ca5e.(2) 63. Under some circumstances, there may be a legal delivery, (1 ) Beaumont r. Crane, 14 Alas?. 40'1 S) Phillipi T. Hunn^well 4 G'eer. . ,^:?. 93 DELIVERY AND ACCEPTANCE. [Chap. III. though the vendor retain possession as before the sale, and merely by some writing or otherwise recognize its existence and validity. 64. Thus, where the vendee of goods gives his note for the price, and the vendor agrees that they may remain on his premi- ses, and afterwards affirms the sale ; this constitutes a sale and delivery, and the vendee may maintain trover for the goods. (1) 65. So if a man bargains for the purchase of goods, and de- sires the vendor to keep them in his possession for an especial purpose for the vendee, and the vendor accepts the order, this is a sufficient delivery. (2) 66. More especially is this the law, where the vendee subse- quently obtains possession, though without notice to the vendor. 67. Sale of cattle ; no earnest paid, nor memorandum signed ; the cattle to remain with the vendor at the risk of the vendee till called for. The vendee having taken them away without notice to the vendor, held, this was a sufficient delivery under the Statute of Frauds, being an act of ownership on the part of the vendee in confirmation of the bargain. (3) 68. The plaintiflf, who kept a livery-stable and dealt in horses, asked from the defendant 180 guineas for two. The defendant offered a smaller sum, which was refused, but afterwards sent word that the horses were his, but as he had no servant nor sta- ble, the plaintiff must keep them at livery for him. The plain- tiff removed the horses to another stable. Held, this last cir- cumstance was immaterial, but without it there was a complete delivery to the defendant, and an action for goods sold and de- livered would lie against him. (4) 69. Goods were sold, to be paid for in thirty days, and if not taken away at the end of that time, warehouse rent to be paid (1) Aikinsoa v. Barnes, Lofft, 326. (2) Elmore v. Stone, 1 Taun. 458. (3) Vincent v. Gerniond, 11 John. 283. (4) Elmore v. Stone, 1 Taun. 457.* * Of this case it has been said, that it goes as far as any case ought to go, and I think we ought not to go one step beyond it. I must say, that I doubt the authority of that decision. Per Bayley, J., Howe v. Palmer, 3 B . £i Aid. 321 . Sect. I.] GENEUAL PRINCIPLES, EXCEPTIONS, &C. 93 by the vendee. Held, the property vested in the latter immedi- ately upon the sale, the provision for stowage being solely for his benefit. (1) 70. The plaintiff advanced money to one A, who, as security, gave an order upon the defendant for a quantity of malt, and the defendant acknowledged in writing that he held the property for the plaintiff. Held, the defendant was estopped to deny, that the malt belonged to the plaintiff.(2) 71. An upholsterer sold household goods, but still had a ser- vant in the house where they were sent, and the purchaser had not taken actual possession. Whether there was a complete de- livery, qn.(3) 72. A certificate given by the vendor that he holds the goods in storage is so fully equivalent to actual delivery, thai he has no greater right of lien, nor is the sale any more subject to be rescinded, as against purchasers from the vendee; than if the property had come into the manual possession of the latter. Thus, the defendant gave one A, the vendee, such certificate, together with a bill of parcels, receipted, A giving his negotia- ble note for the price. A offered to cancel the contract, if the defendant would return the note, and the latter agreed so to do. The note was then in a bank, having been discounted for the defendant. Some days afterwards, the defendant tendered it to A and requested him to cancel the contract. A in the mean time had assigned the goods to the plaintiffs, his creditors, with iiotice of the conversation as to the cancelling of the agreement. The plaintiffs bring trover for the goods. Held, the defendant Avas estopped to deny that he had the goods, and could not offer parol evidence to the contrary ; that the property had vested in A, subject to no lien by the defendant for the price; that the cofntract was not rescinded, having been executed ; that there was no re-sale to the defendant, but at most, a mere conditional agreement to re-convey, which was void by the Statute of Frauds. The facts, without the aid of parol evidence, showed a sale and delivery by the defendant to A, and an assignment by A to the (1) Phillimore v. Barry, 1 Camp. 313. (2) Stonard v. Dunkin, 2 Camp. 344. (3) Hunt V. Stevens, 3 Taun. 1 13. 94 DELIVERV AND ACCEPTANCE. [Chap. III. plaintiffs. If the plaintiffs rights had not intervened, A might have re-sold to the defendant unconditionally, taking an indem- nity against the note; and the property would thereby have re- vested without delivery, being already in the defendant's posses- sion. (1) 73. Contrary to the general tenor of the above cases, it has been held in New York, that an agreement with the vendor re- specting storage, and delivery by him of the export entry to an agent of the vendee, do not amount to constructive delivery, or afford an indicium of ownership. *(2) 74. The general principle is, that a delivery of any part of property sold under an entire contract, is a virtual delivery of the whole, and binds the bargain under the Statute of Frauds, unless there be an agreement or understanding to separate a part. (3) 75. In case of an entire contract to deliver a number of ar- ticles at a certain time and place, the vendee is not bound to re- ceive a part of them only, nor to pay for a part, though deliver- ed, if willing to accept and pay for the whole. But if he accept a part, this is a disaffirmance of the entirety of the contract, and he is bound to pay for such part.t(4) 76. Agreement for the sale of one hundred sacks of flour. A part of them were delivered, and payment was tendered for the whole. Held, the vendor could not maintain an action for the price of those which were delivered. (5) 77. Where there is an entire contract to deliver a large quan- (1 ) Chapman v. Searle, 3 Pick. 33. (2) Bailey v. Ogden, 3 John. 399. (3) Parks v. Hall, 2 Pick. 206. (4) Roberts v. Beatty, 2 Penns. 63. (5) Walker V. Dixon, 2 Star. 281. * Where a vendee, after an executed sale, leaves the goods with ihe vendor, he is 'iable by an implied assumpsit to pay the expense of keeping. Roe v. Martin, 2 Cow 417. t Where several chattels are sold together for one entire price, which is paid, and a part of them are delivered to and retained by the vendee, but the vendor refuses to deliver the rest ; the vendee cannot recover any part of the price as money paid or money had and received, but must cue upon the contract. Miner v. Bradley, 2? Pick. 457, Sect. I.] GENERAL PRINCIPLES, tXCEPTIONS, Scc. 95 tity of goods, consisting of distinct parcels, within a specified time, and the seller delivers a part of them, he cannot before the expiration of the time sue for the price of such part, because the vendee has the right of returning them in case the contract is not fully complied with. But if the vendee retains the part delivered after the expiration of the specified time, he is liable to an action therefor, though the remainder be not delivered. (1) 73. Where the vendee accepts a part of the property sold, but not within reasonable time, or certainly within the time agreed upon for taking the whole, such acceptance does not take the case out of the Statute of Frauds.(2) 79. Where the purchaser of several articles at the time of sale, writes his name upon one of them, intending to denote his having purchased it, and appropriate it to his own use, this is equivalent to delivery of that article, but not of the others. (3) 80. Under a contract which was void by the Statute of Frauds, the defendant was to have from the plaintiff 12,000 bricks at the rate of four dollars per thousand, to be received at the plaintiff's kiln within one month. After the expiration of the month, the defendant received 800 of the bricks, informing the agent of the plaintiff, who delivered them, that he would take the remainder on the following week, to which the agent assent- ed. The defendant did not call for the rest of the bricks, nor did the plaintiff separate the requisite number from the kiln. Held, the plaintilf might still maintain an action for the price of the 12,000 ; the new agreement being made certain by reference to the former one, as to quantity and price, and not within the Statute of Frauds. The bargain and sale was complete by de- livery of a part of the property. The vendor was to do no fur- ther act, till the vendee should call upon him. Hence, the pro- perty had vested in the latter. The case is the same in princi- ple, as if the plaintiflf had sold, from a kiln of 100,000 bricks, 10,000 to one person, the same number to a second, and the same to a third, and delivered one brick to each in tok'en of the (1) Oxendale v. Wetherell, 9 B. & C. 387, 8. Waddington v. Oliver, 2 N. R. 61. (2) Damon v. Osborn, 1 Pick. 476. (S) Hodggon r. Le Bret, 1 Camp. 2S3. 96 DELIVERY AND ACCEPTANCE. [Chap. III. whole ; in wliich case, the whole would undoubtedly pass to the respective vendees. (1) 81. A takes an assignment of property from B, to secure a debt; agreeing to sell the property, and, after paying himself, to pay over the surplus to B. Having been paid in money and securities, A verbally agrees to give up the goods, and accord- ingly does give them up, excepting a quantity of wine and vin- egar. The wine was in a loft held by A under a lease from B. A agrees to come and surrender the lease and give up the key, but fails to do it ; and B takes possession of the loft and the wine, without A's knowledge. Before the lease and key are delivered up, apart of the securities fail. Held, the facts show- ed a re-sale to B, and A had no lien upon the wine and vinegar, .because all the goods had been constructively delivered, and the actual possession taken of the wine was authorized by the con- tract. No demand of the key was necessary, because A had agreed to deliver it ; and he could not be allowed to take advantage of his own wrong.(2) 82. The rule above stated, that delivery of a part is a con- structive delivery of the whole, applies, although the goods are taken a few hours subsequent to the sale. Thus the plaintiff, in the forenoon, sold to the defendant a lot of logs lying together at- the distance of a mile. In the afternoon, the defendant sent and converted to his own use a part of the logs. There was no other delivery, nor any payment. Held, the plaintiff might re- cover the price of the whole quantity sold. (3) 83. Where one contracts for the sale and delivery of a large quantity of goods upon their arrival at a certain port, and apart of them only arrive; he is not bound to deliver such part. The vendee is not bound to receive a part, and the obligation of the parties must be reciprocal. (4) 84. Under this head may properly be considered the legal ef- fect of delivering a sample of the goods sold. The general rule upon this subject is, that delivery of a sample, which is no part (1) Damon v. Osborn, 1 Pick 476. (2) Parks V. Hall, 2 Pick. 206. (3) Davis V. Moore, 1 Shepl. 424. (4) Russel V. Nicoll, 3 Wend. 112. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &.C. 97 of the commodity itself, is not sufficient to take a case out of the Statute. If it is a part of the commodity, this is held an execution of the bargain, and dispenses with any writing. The distinction is, tliat in the latter case the sample is taken for the vendee's own use, as part of the bulk, not merely to guide his judgment, but to give him possession of the thing itself. It is a part deliver ij.{\) 85. The delivery of a sample, part of the commodity itself, is sufficient, though made in part olio intuitu. (2) 86. Delivery of goods sold may be conditional as well as ab- solute. Actual delivery does not per sc transfer the actual pro- perty in goods. There must be a consummation of the con- traci.{2) 87. Where a sale is made on condition of payment upon de- livery, and the vendor allows the vendee to take a part of the goods without payment, this is not an entire waiver of the con- dition. Hence, the vendee can maintain no action for non-de- livery of the rest. (4) 88. Upon a cash sale of goods, the vendor may refuse to de- liver till payment. But delivery without payment is a waiver of this condition, the property passes, and trover cannot be sus- tained by the vendor, though payment be not made afterwards. Otherwise, it seems, where the goods have been obtained by fraudulent contrivance of the vendee.(.5) 89. So where a vendee has agreed to give notes for the price, but the vendor delivers the goods without requiring such notes or annexing any condition to the delivery ; this is a waiver of the above agreement, and the property passes. (6) 90. But, it is said, where there is a conditional bargain for the sale of goods, and an immediate delivery, under the expecta- tion that the stipulated security will be produced, or payment soon made, but no declaration that the delivery is conditional ; the sale will not be held absolute, because there is ah under- (1) Talver v. Wesi, Holt, 178.' Klinitz v. Surry, 5 Esp. 267. (2) Hinde v. Whitehouse, 7 E. 670. (3) Mason v. LicUbarrow, 1 H. B!. 362. 17 Masr. 611. (4) Payne v. Sliadbolt, 1 Camp. 427. (5) Chapman v. Lathrop, 6 Cow. 110 S Fuiif. 476. (6) Lupin V. Marie, 6 Wend. 77. 13 98 DELIVERY AND ACCEPTANCE. [Chap. III. Standing that the vendee will act honestly, and furnish tjie secu- rity, as soon as he can have opportunity to procure it. If this rule were not adopted, auction and other sales must be much embarrassed. Moreover, no one is wronged by it, unless the vendee obtain credit upon the strength of the goods, or sell them to an ignorant purchaser, in which case, the vendor would be supposed to have delivered them for the purpose of trading.(l) 91. It will be seen from the following cases, that the authori- ties upon this subject are somewhat contradictory. They all agree, however, in making a distinction between the right of the vendor to avoid the sale for breach of condition, as against the vendee himself, or those creditors of the vendee whose claims arose before the sale ; and creditors who trusted him after the sale, and upon the credit of the goods sold. 92. A ordered from the plaintiff a piano-forte, for exportation, to be delivered at the house of the defendant, a packer, and paid for in ready money. The plaintiff's servant delivered the piano-forte at the defendant's house, and demanded the money. The answer was, that A had given no orders for that purpose, and that the defendant was from home. The servant stated, that payment was to be made before delivery, and, upon that under- standing, left the instrument. The defendant afterwards refused to restore it, and shipped it for A without payment. In trover by the plaintiff, held, the delivery to the defendant was only con- ditional ; he remained a trustee for the plaintiff, had no right to deliver the instrument to A till payment, and was liable to this action. (2) 93. November 22, A applied to the plaintiff to purchase goods. Before delivery, a memorandum was made in the plain- tiff's book, that $150 must be paid down, and the balance of the price in the following spring. The same day, in the after- noon, a part of the goods were sent to the wharf appointed, and on the day following, the rest, marked with the name of A. On the 23d, in the forenoon, A called for a bill of the goods, and paid $75. The clerk thereupon referred him to the plaintiff, to know whether the whole 8150 would be claimed. The plain. (1) Smith v.Dennie, 6 Pick. 266. 2 Kent, 491. (2) Loeschman v. Williams, 4 Camp. 181. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &C. 99 tiff then came in, and, during the conversation, notice was given that the property had been attached by a creditor of A, whose debt was incurred before the sale. The plaintiff thereupon re- marked that it was no sale, because the agreement had not been complied with. A said, he did not know that it was a sale. He also said, afterwards, that the attachment was invalid, be- cause the goods had been previously sold to a third person. Upon this representation, the plaintiff commenced an action of assumpsit against A for the price of the goods, and caused them to be attached as his. This suit was not prosecuted, and sub- sequently, two and a half months after the sale, the plaintiff brings the present action of replevin against the attaching offi- cer. The jury, in their verdict for the plaintiff, found a condi- tional delivery. Held, this was a right verdict, no bill of par- cels having been made out ; that the long delay in bringing this action, and the commencement of the suit for the price, furnish- ed strong evidence of a waiver of the condition, and would have justified a verdict for the defendant, but were not conclusive; that, as the contract was at the first conditional, the plaintiff was not bound to show any rescission of it, or to return the $75, and that a new trial should not be granted.(l) 94. Sale on credit, the vendee agreeing to give certain bills for the price. The goods were shipped by his order, and no ob- jection made by the vendor, that the condition was not complied with. Held, the property was liable to attachment by the ven- dee's creditors. (2) 95. The plaintiff sold goods to A, on condition of his furnish- ing a surety for the price. The captain of A's vessel, in which the goods were to be carried, afterwards called on the plaintiff, and inquired whether he had goods to be forwarded to A. The plaintiff replied that he had, and they would be ready when sent for. They were accordingly delivered to the vendee's order, nothing being said respecting security, either to the captain or the drayman. While the goods were at the wharf, a part having been put on board the vessel, the plaintiff went to the wharf, and told the captain that the goods should not be laden till security (1) Marslonv, Baldwin, 17 Mas*. 60G. (2) Carleton v. Sumner, 4 Pick. 516. ^ 100 DKIJVERY AMD ACCEPTANC'K. [Cliap. III. was furnished, and that until then he should consider them as his property. Held, the captain was the agent of the vendee, who was therefore bound by his receiving the goods, and there- by assenting to the plaintiff's declarations at the time ; and that the plaintiff should hold the property, against creditors whose claims accrued before the vendee came into possession. It would be otherwise with regard to creditors who became such after his possession, and in consequence of a false credit there- by gained ; or bona fide, purchasers for valuable consideration from the vendee.(l) 96. Goods were sold, on condition of the vendee's giving a note with a sufficient indorser for the price. The property was taken by the vendee, without objection from the plaintiff, the vendor, the clerk of the latter telling him, ihat if the indorser nam- ed were not satisfactory, another one must be procured. The per- son named was rejected, and no other obtained. Held, the ven- dee gained no title to the goods; that no express declaration of conditional delivery was necessary, provided such appeared to be the understanding of the parlies.* (2) 97. The plaintiff sold personal property, on condition of the vendee's giving an indorsed note for the price. Delivery was made without express reference to the condition ; the vendee kept the goods eight days, and they were then attached by his credi- tors, (whether they were creditors prior or subsequent to his ob- taining the property, qu.) the plaintiff, in the mean time, having claimed neither the note nor the property, a neglect, of which (1) Husscy V. Thornton, 4 Mass. 405. (2) Whitwell V. Vincent, 4 Pick. 449. * In the same case it appeared, that the vendee sold the goods to one C, taking C's negotiable note for the price, and transferred this note by way of security to the defend- ant, a creditor, who had notice of the facts. The creditor, upon demand of the plain- tiff, refused to deliver him the note. Held, while the note remained unpaid in the creditor's hands, the plaintifi' could not maintain assumpt^it against him for the amount, because by bringing the action ho affirmed tlie original sale. The first vendee having re-sold the goods, taking a negotiable note, the plaintiff might waive the tort and bring assumpsit against liim for the proceeds. But the creditor had no concern with the sale by the first purchaser. Ho only took the note as security. No action would lie against hnn without a demand, and, after demand, none buter. If he had sold the note, an J if the note belonged to the plaintiff, assumpsit would lie. lb. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &C. 101 no explanation was given upon the trial. Held, these facts showed a waiver of the condition ; that the attachment must prevail ; and a verdict to the contrary be set aside as against evidence. The vendor might have insisted upon the condition one day after the sale, or two days, or any greater number, if the delay were satisfactorily explained ; and the question of rea- sonable time is for the jury. (I) 98. Where there is a contract for a sale in futiiro or on per- formance of a condition, and a further stipulation that in the mean time the vendee shall have possession for a particular pur- pose, and he takes possession accordingly ; the sale is not exe- cuted, nor the property changed, till the act is done, or the con- dition performed. 99. Thus the plaintiff, in the month of May, agreed in writ- ing to sell to one A, on or before September 1, a brick-pressing machine for i<200, to be paid on delivery, and that A might use it till that time. A agreed to pay the plaintiff $200 on or be- fore the time mentioned; and, in consideration of the making and delivery of the machine, gave the plaintiff his negotiable note, of even date with the agreement, for |200, payable on or before September 1, with interest from date, unless paid at the time. Each party bound himself to performance under a penal- ty. A possessed and used the machine from a time previous to September 1, till the following February, when it was attached by one of his creditors, the note having been only in part paid. Held, no title had vested in A. The giving of the note was on- ly prima facie evidence of payment, liable to be rebutted by con- trary proofs, which were furnished by the facts of the case. The note was given for the money ; and the money was to be paid on delivery of the machine ; of course the note was to be paid upon such delivery. Nor did it make any difference, that the contract provided for no return of the article ; because it was expected that the note would be paid, and, if not, the title would re-vest by operation of law.*(2) (1 ) Smitli V. Dennie, 6 Pick. 262. (2) Reed v. Upton, 10 Pick. 324. (See 9 lb. 156.) * Sale and delivery of a wagon, on coiidilion that the vendee shall take and use it, 102 DELIVERY AND ACCEPTANCE, [Chap. III. 100. When goods sold are to be delivered at a distance from the vendor, and no charge is made by him for the transporta- tion ; they become the property of the purchaser, as soon as for- warded by tlie vendor.(l) 101. In case of an order to send goods by a carrier, without naming any particular one, delivery to a carrier is in law deliv- ery to the vendee. He only can sue for any injury to the goods, and they are at his risk. The only remaining right of the ven- dor is that of stoppage in transitu. [2) 102. It seems, a delivery, by the order of a purchaser, to a particular stage-coach, to be sent direct, or left till called for, is a delivery to the party. So where there is a general order for carriage of the goods to a certain place, and the conveyance adopted is the only one existing, or the usual one ; or that by which other goods have been previously sent by the same ven- dor ; or where the vendee assents to the mode adopted, upon being informed of it. In all these cases, the goods are at the risk of the vendee during the passage, and an action lies for goods sold and delivered. The carrier is the vendee's agent to receive and accept the goods. (3) 103. Where a merchant in the city is authorized by his cor- respondence and course of dealing with one in the country to send him goods without a special order, delivery to a carrier, though others are delivered at the same time, for which a spe- cial order was sent, vests the property in the consignee; and, it seems, the vendor cannot maintain an action against the carrier for losing the goods. (4) (1) Fragano v. Long, 4 B. &. C. 223. (2) Dutton V. Solomonson, 3 B. & P. 682. (3) Whiting v. Fanand, 1 Conn. 60. Per Ganow, B. Anderson v. Hodgson, 3 Price, 635. Valo v. Bayle, Cowp. 29 1. Hart v. Sattley, 3 Camp. 628. (4) Morberger v. Hifkenberg, 13 S. & R. 26. and become the owner of it upon payment of the price ; and, in case he docs not make such payment, then to pay for the use of the wagon. Held, the vendee stood as lessee of the property, till the vendor demanded cither the wagon or the price. Hence the ven- dor could not, without a previous demand, bring trover against an officer who had at- tached and sold the wagon as the vendee's properly. Fairbank v. Phelps, 22 Pick. 535. In the same case, the vendor having after the sale detnanded payment, but sub- sequently received a part of the price; held, ho thus impliedly waived his demand for further payment at ihe limL', and confirmed the sale .subject to the condition. lb. Sect. I.] GENERAT. PRINCIPLES, EXCEPTIONS, &C. 103 104. A, residing in Wales, ordered goods from the traveler of B, residing in London. No method of transportation was prescribed. Held, it should be presumed that they were to be sent in the most usual and convenient way, and therefore, upon delivery to a carrier in London, a cause of action for the price arose there. (1) 105. Where goods are purchased, selected, boxed, the name and residence of the vendee marked upon them, and put on board a vessel appointed by the vendee, and at his expense and risk, to be forwarded to him ; the property in the goods passes to the vendee, although an invoice be not delivered, nor securi- ty given for the price, and though the receipt given by the mas- ter of the vessel to the vendor still remain in his hands ; no agreement having been made that ihe goods should be retained till security was given, and the receipt being a mere voucher showing that the goods have been forwarded according to order, o to o ' and being given after delivery, consequently not capable of con- trolling its efrect.(2) 106. A, a merchant at Naples, gave an order to B at Birming- ham, to send him certain goods upon insurance being effected ; the terms, three months' credit from the time of arrival. B marked the goods with A's initials, sent them by canal to Liver- pool, and effected insurance upon them, declaring the interest to be in A. At Liverpool, the goods were delivered to the owner of a ship bound to Naples, and were damaged through his neg- ligence. Held, the property in the goods vested in A, when they were forwarded from Birmingham, and that their arrival at Naples was not a condition of his liability to pay. Hence, in an action brought by A against the ship-owner, judgment was rendered for the plaintiff. (3) 107. In June and July 1830, A ordered a quantity of corn from B in Russia, directing him to draw on C for the price. A chartered a ship from C, to transport the cargo. July 28, A countermanded his order. August 8, B informed A, that he had purchased a cargo for the ship, and would send it as soon (1) Copcland v. Lewis, 2 Star. 33. (2) People V. Haynes, 14 Wend. 546. (3) Fragano v. Long, 4 B. & C. 219. 104 DELIVERY AND ACCEPTANCE, [Chap. III. as possible, directed to the care of C, hoping he would approve this course notwithstanding his having countermanded the order. The corn was shipped, and a letter written, informing A of it, and that B had sent an indorsed bill of lading to C, and had drawn upon C for a part of the price, and on A for the balance. B enclosed an unindorsed bill of lading to A, together with an invoice, representing the corn as bought for his (A's) order and on his account. The bills of exchange enclosed in this letter were dishonored. B's agent then delivered the indorsed bill of lading to C. Oct. 2, A renewed his countermand of the order. November 24, the agent of B notified the agent of A, that he should retain the whole cargo for B. A afterwards applied for the corn, and the captain delivered it to his order, instead of de- livering it to C, conformably to the bill of lading. For this act of the captain, B brings a suit against D, the ship owner. Held, the property vested in A, upon shipment of the goods, condi- tioned upon acceptance of the bills of exchange, which not be- ing accepted, the property never vested, and that B should re- cover, not mere nominal damages, but the value of the cargo, at the time of delivery to A.(l) 108. A consigned goods to B abroad, ordered a return cargo, and sent his own ship to bring it back. The return cargo was delivered to the captain of A's vessel, B stating it to be on A's account, as if his own property, and ordering that it be deliver- ed to him. The return cargo exceeding in value that sent by A, B drew upon him for the balance, sent the bills to his agent, with a blank bill of lading, and requested the agent, in case of non-acceptance by A, to indorse the bill of lading to C. The bills not being accepted, the agent accordingly indorsed the bill of lading to C. Upon arrival of the ship, C demanded the car- go from the captain, but he delivered it to A, who deposited it with D. B gave notice to D to hold the goods for him, and D consequently refused to re-deliver them to A. A brings an ac- tion of trover against D. Held, though the delivery of the car- go to the captain might have been conditional upon the accep- , tance of the bills of exchange, it was in fact absolute, and vest- (1) Brandt V. Bowlby, 2 Barn. &. Ad. 932. Sect. I.] GENERAL PRINCIPLES, EXCEPTIONS, &C. 105 ed the property in A ; but that A, having got possession under a claim of property in the goods, could not have retained thera for payment of freight. Judgment for the plaintiff.(l) 109. One B agreed to sell the plaintiff, by bought and sold notes, from 500 to 700 barrels of oats, to be shipped by one J at Y and delivered at P. Soon afterwards, B wrote to the plain- tiff, that room had been engaged in the G Packet for about 600 barrels on the defendant's account. The next day, the plaintiff sent instructions to his agent in London, to effect insurance for c£400, upon oats sent per the G packet from Y to Southampton and P. J shipped 4i^G barrels in compliance with the above agreement, in the G packet for Southampton, and sent a bill of lading with a general indorsement to J's agent. The plain- tiff insisting upon the vessel's going round to P, B sold the oats to C. The G packet having been lost, and the policy subse- quently transferred hy the plaintiff to B ; held, the plaintiff at the time of effecting the policy had an interest in the oats shipped on board the G packet, and therefore the insurers were liable, though the ownership was subsequently changed. No specific parcel of oats passed by the bought and sold notes, but B's let- ter to the plaintiff was an unequivocal appropriation of the oats shipped in the packet, and the instructions for insurance given by the plaintiff amounted to an adoption on his part of such ap- propriation. Concealment of the fact, that the packet was not bound to P, could not divest the plaintiff's property. He had the right to demand of B, either that the packet should come to P, or the oats be sent in some other way. The plain- tiff insisted upon having these particular oats, and thereby ac- quired a legal interest in them. (2) 110. A ordered certain goods from the plaintiff, to be sent to a particular quay and left till called for, but named no particular carrier. It was not proved that A had received and accepted the goods, though they were sent according to order. A agreed to pay for the carriage. In an action for goods sold and deliv- ered, the plaintiff having been nonsuited, held there was no suf- ficient evidence in his favor to justify the Court in taking off (1) Ogla V. Atkinson, 5 Taun. 759. 1 Maisli. 323. (2) Sparkcs v. JMarshall, 3 Scott, 172. 14 106 DELIVERY AND ACCEPTANCE. [Chap. III. the nonsuit. A's agreement to pay for the carriage was held to be merely a part of the consideration and price of the goods.(l) Section II. — necessity of delivery in relation to CREDITORS, &-C. 1. The general subject o^ fraudulent sales will be considered hereafter, in treating of the circumstances which render a sale of personal property void or voidable. It is proposed in the present connection, merely to speak of the necessity of delivery ^ or the effect of non-delivery, in relation to creditors of the ven- dor. The general rule of law is, as was stated in the first chap- ter, (pages 1, 2), that delivery is not necessary to complete the contract of sale, as bctzvcen the parties ; but that it is necessary to avoid the effect of a subsequent sale by the vendee, or seizure by his creditors. The reason of the rule is, as stated in a very early and leading case, (2) that where the donor continues in possession and uses the goods as his own ; by reason thereof he trades and trafficks with others, and defrauds and deceives them ; and further, that such possession is evidence of a trust for the benefit of the donor, and " fraud is always apparelled and clad with a trust, and a trust is the covert of fraud." In another case it is said, the retaining possession of property sold indi- cates a fictitious transaction ; 1. Because it is inconsistent to buy and not take possession of an article ; 2. Because the ven- dor hereby gains a false credit. (3)* (1) Anderson v. Hodgson, 5 Price, 630. (2) Twyne's case, 3 Co. 80. (I Burr. 482.) (3) Ludlow V. Kurd, 19 Juhn. 218. * Although the general principles of the common law avoid all fraudulent contracts, the law oi fraudulent conveyance is founded chiefly upon an early English Statute — 13 Eliz. ch. 5, which will be more particularly referred to hereafter. The provision in another important English Statute, (that of James), that where the "order and dispo- sition" of property sold remains with the vendor, he shall be regarded as still the own- er, is a part cithe bankrupt system, and not applied to other cases, even in England ; nor, in any case in Massachusetts, (or probably other states.) Shumway v. Ruttcr, S Pick. 447. Sect. II.] NECESSITY OF DELIVERY, &.C. 107 2. The consiruction given to this doctrine in some cases has been, that continued possession by the vendor is per se fraudu- lent, or conclusive evidence of fraud, against creditors. But it seems to be now well settled in England, and for the most part in this country, that such possession is a mere badge of fraud, or a circumstance tending to show mala fides, the effect of which may be rebutted by other evidence. 3. The cases upon this subject to be found in the books are very numerous, but, as they all tend to one and the same point, with few variations or modifications arising from specific cir- cumstances, a few only will be cited at length. Some relate to absolute, and others to conditional, sales; and in general it is to be observed, that while in regard to the former, the form of the instrument implies an immediate taking of possession by the vendee, and the law therefore requires some extrinsic explana- tion of his failure to do so ; a mere mortgage or conditional sale* imports, prima facie, that the vendor may keep possession till breach of condition, and consequently his continued posses- sion raises no presumption of fraud. Upon the same principle, where there is an express agreement in the instrument, whether absolute or conditional, that the vendor shall keep possession, or a lease to him from the vendee ; as such possession thereby be- comes consistent with the terms of the contract, the law does not consider it fraudulent. 4. A, being indebted to both the plaintiff and the defendant, March 27, offered the defendant a bill of sale of his personal property, including furniture and stock in trade, as security. The defendant consenting to accept such transfer, only on con- dition that he might take possession and make sale of the pro- perty, after fourteen days, in case of non-payment ; A agreed to * In Massachusetts, no mortgage of personal property is valid, except as between the parlies themselves, unless the mortgagee lake and retain poEsession,'or the mort- gage be recorded by the clerk of the town where the mortgagor resides at the time of making it. A similar provision was made in North Carolina in 1830. So in New- York, the like rule prevails. Also in Kentucky (1831), New Hampshire (1332), Geor- gia, (1827), Maryland, and probably other states. Mass. Rev. St. ch. 74, s 5 2 N- Y. Rev. St. 136, s. 5. 108 DELIVERY AND ACCEPTANCE. [Chap. III. this proposal, made a bill of sale, and delivered a corkscrew in token of possession of the whole property, but continued in pos- session as before, April 17th, A died intestate, and the next day the defendant took possession of the goods and sold them. No letters of administration were taken out by any one. The plaintiff brings an action against the defendant as executor dc son tort, and the question thereupon arose whether the bill of sale was valid. Held, inasmuch as it was to take effect immedi- ately and not infuttiro, the possession was inconsistent with the writing, and the latter therefore void.(l) 5. Certain household goods were conveyed to the trustees of a marriage settlement, but the settler remained in possession. Held, such possession was consistent with the nature and pur- pose of the deed, and did not therefore avoid it as against a creditor. (2) 6. A sold furniture to B, which was contained in a house oc- cupied by A. B took a lease of the house from the owner, but received no possession of the furniture, and made no agreement that A should continue to use it. A afterwards removed to another place, took the furniture with him, and made additions to it of new articles. The consideration of the sale was, that B paid the debt due from A to a creditor who attached the fur- niture. Held, the transfer was void against A's creditors for want of delivery. (3) 7. A consigned to B a quantity of tobacco, to be sold, and the proceeds applied in payment of a debt due B. After arri- (1) Edwards v. Harben * 2 T. R. 587. 594 n. (6 E. 257. 5 Taun. 212>) (2) Cadogan v. Kennet, Cowp. 432. (3 T. R. 618. 620 ii.) (3) Shumway v. Rutler, 7 Pick. 66. * It is said, that the case of Edwards v. Harben has been frequently referred to, and acted upon as good law in subsequent cases; but in a very late case, Lord Chief Justice Dallas staled, that it had buen often dissented from ; and Mr. Justice Park said, that doubts liad arisen with respect to the extent of the doctrine there laid down. On the other hand, the case is corroborated by the assent and support of Mr. Justice Lawrence. And it is said to have established the principle, never having been ques- tioned, that if a conveyance of chattels is conditional, or provides that the vendor may retain possession, such possession is not fraudulent against creditors. Long on Sales, 112. 7 Ring. 583. 1 Brod. & B. 511. 1 Taun. 382 Sect. II.] NECESSITY OF DELIVERY, &C, 109 val at the port of destination, but before any possession taken by B, the creditors of A seized the property. Held, by the House of Lords, (reversing the judgment of the Lord Ordinary and Court of Sessions,) that the title of B should prevail over that of A's creditors. (1) 8. A leased to B a farm and cattle, under the agreement that B should deliver him one half the produce and one half the in- crease of the cattle, and, at the end of the term, cattle of equiv- alent value. B remained on the farm several years, became a debtor to A, and in payment of the debt sold A all his interest in the cattle, and agreed to manage the farm as A's servant. This last sale was a secret transaction, B remaining as he was before, in order to prevent any alarm on the part of his credi- tors. Held, as to them the sale was void. (2) 9. A, having in the spring rented a farm from B for the en- suing season, let the growing grass to C, to cut and make hay, allowing him one half for his labor. C, having deposited most of the hay in a barn upon the land, purchased A's half of it, but left it in the barn. The farm was afterwards hired by D, who moved into the house in the ensuing autumn. A remained on the premises till the next spring, keeping a cow in the barn through the winter. In January, the hay was taken and sold on an^execution against A, and C brings an action to recover damages for this taking. Held, he could not recover, the sale being°void against creditors, for want of a change of posses- sion. (3) 10. A, occupying a farm of the plaintiff under a lease, gave the plaintiff a bill of sale of certain cattle, and delivered them upon the farm, in payment of a part of the preceding, and the whole of the following year's rent. A to have possession of a part of the cattle, use them for working on the farm, and sup- port them, allowing the plaintiff also to use them, whenever he (A) had no occasion for their services. The rest of the cattle (1) Hastie v. Arthur, 2 Bell's Comm. 199, n. 1. (2) Trask v. Bowers, 4 N. H. 309. (3) Beattie V. Robin, 2 Verm. 181. 110 DELIVERV AND ACCEPTANCE. [Chap. IIF. were to be pastured by A for the plaintiff, at the customary price. The cattle being attached by a creditor of A, the plain- tiff brings an action against the officer. Held, possession by the vendor was only evidence of fraud, strong, but not conclu- sive ; and, under the circumstances of this case, the plaintiff was entitled to recover.(l) 11. The plaintiff, having loaned money to A, sent his son to A to procure a bill of sale of his property, which was accord- ingly given. The son took possession of the property. The lease, however, of A's house, was not assigned, though the son remained in possession; but A still continued to occupy it and to act as master, and no notice of the transfer was given to the laborers employed, who were hired by the son, but received or- ders in A's name. In an action by the plaintiff against creditors of A for seizing the property ; the jury found a verdict for the plaintiff, which the Court refused to set aside. (2) 12. Assignment of the furniture and other personal property in a tavern, as security for a debt, with a proviso that the gran- tee should take possession on failure of payment of any instal- ment, sell the property, &c., till which time the vendor might keep possession. Held, good against creditors.(3) 13. A vendee took from the vendor the following writing " A bought of B," &-C. (enumerating the articles and prices.) " Re- ceived payment. B." The property was delivered, but return- ed to the vendor and afterwards attached as his. Held, the pos- session of the vendor was not conclusive evidence of fraud, and that, after a suggestion of fraud, parol evidence was admissible to prove the transaction a mortgage. The above instrument was not a hill of sale, but a hill of parcels, not stating the terms of the contract, but resembling a receipt, although, unexplain- ed, it would be sufficient to pass the property. (4) 14. A gives a bill of sale to B, and becomes bankrupt, before (1) Brooks V. Powers, 15 Mass. 244. (2) Benton v. Thornhill, 7 Taun. 149. (3) Martindalo v. Booth, 3 B. & Aid. 505. (4) Fletcher v. Willard, 14 Pick. 464. Sect. II.] NECESSITY OF DELIVERY, &C. Ill possession taken by the latter. Held, the assignees of A might recover for the property against the assignees of B. (1) 15. A gave a bill of sale to B, but retained and used the pro- perty till B's bankruptcy. Six months after the sale, and with all practicable expedition, the assignees took possession. After- wards, A also became bankrupt. Held, the assignees of A could not recover on account of the property ; that although, by the terms of a conveyance, the vendee may take possession imme- diately, and yet delays for six months; such conveyance is still valid against third persons, unless their claims intervene be- tween.the sale and possession taken. (2) IG. A father gave to his daughter, who lived with him, and was of age, a female calf whose dam was dead, on condition of her bringing it up. She accordingly brought it up by hand. It was fed on the father's farm, and after it had grown up, its milk vvas used in his family, he making no charge for the daughter's board or the keeping of the cow, and she making none for her labor or for the milk. Held, there was a valid gift and delivery, as against creditors of the father (3) 17. A mortgaged to B a horse, as security for a debt and fu- ture advances, and made a formal delivery, but remained in pos- session, and used the horse as his own ; and the transfer was not known to persons in the neighborhood. A afterwards sold to C, bona fide, for valuable consideration, and without notice. Held, B might reclaim the property ; that continued possession was consistent with the nature of a mortgage, until a breach, though not with that of a pledge. (4) 18. Where goods are sold, not being in possession of the ven- dor, but of a third person, who, being notified of the sale, con- sents to keep the property for the vendee, the sale is not fraudu- lent, though not accompanied by change of possession. Nor is it any proof of fraud, that the vendor, having authority from the ( 1 ) Mair v. Glennie, 4 M. & S. 240. (2) Robinson v. Mc'Donnell, 2 B. & Al. 134. (3) Martrick v. Linfield, 21 Pick. 325. (4) Lunt V. Whitaker, 1 Fairf. 310. 112 DELIVERY AND ACCEPTANCE. [Chap. III. vendee to sell or let the property, sold a part, let the rest, and received payment therefor.(l) 19. A change of possession, to render the sale valid against creditors, must be bona fide and substantial, not merely colora- ble. 20. A publican, becoming insolvent, assigned his furniture and stock in trade to his creditors. A servant of the assignees was put in possession, but the debtor and his wife carried on the business several weeks as before, having access to the till in which the servant deposited the money which he took from cus- tomers. Held, the sale was void against creditors. (2) 21. But where, after a sale, the vendor and vendee have joint possession of the property, the transaction is not fraudulent against creditors, unless they have also joint control of it. Thus, where one merely works about the shop in which the goods are, as an under-workman, this does not give him legal possession. The question is, who is at the head of the establishment. If a difficult one to settle, the possession is joint. (3) 22. Upon a sale of cattle, it is not conclusive evidence against the presumption of fraud, arising from the vendor's continued possession, that the purchaser had himself no farm or forage for them. (4) 23. Where a vendee takes possession at a time subsequent to the sale, but before the rights of creditors accrue by attachment or otherwise, he shall hold against creditors. Thus, A gave a bill of sale of a ship to B, who agreed in writing to reconvey on payment of a certain note. B took possession eight months after the sale, after which a creditor of A attached the ship. Held, B's title should prevail over the attachment. (5) 24. Where goods are sold on execution, continued possession by the debtor is not fraudulent against creditors, because the transaction is in its nature notorious, and the purchase bona fide. The rule, being founded on these reasons, does not apply ( 1 ) Harding v. Janes, 4 Verm, 462. (2) Wordall v. Smith, 1 Camp. 332. 1 Esp. 205. But sec Ry. & M. 312. (3) Allen V. Edgcrton, 3 Verm. 442. (4) Jennings v. Carter, 2 Wend. 446. (5) Barllelt v. Williams, 1 Pick. 288. Sect. Il.j NECESSITT OF DELIVERY, Scc. Il3 to an auction sale made by a Bheriff by agreement of parties, , without advertisement, or any legal precept to warrant it.(l) 26. The question of fraud sometimes arises, where the vendor of goods is enabled to purchase them by the aid of the vendee, giving the latter a claim on them as security, or where the vendee himself is the nominal purchaser,but with the funds of the vendor. 527. A loaned money to B to purchase goods, taking a bill of sale of the goods as security ; but B remained in possession. Held, such possession was not fraudulent against creditors.(2) 28. A, having purchased a public house, but being unable to procure a license, put B,|an insolvent person, into the house, as his servant. B obtained a license, and A furnished the money to pay for it. Held, by a majority of the judges, that the goods in the house, furnished by A, were not liable to be taken by B's creditors. (3) 29. But where one sells goods, taking a mortgage back, it has been held, that the mortgagor's continuing in possession is frau- dulent against creditors. Thus, A sold to B, taking notes and a mortgage as security, but B took and retained possession of the property. Held, the mortgage was void as against the creditors of B. The transaction could not be treated as a sale from A to B, which was not to be perfected or completed till performance of a condition. A's title accrued by the mortgage, and was in no way aided by his prior ownership. In Vermont, it has been always held, according to the common law, that a sale without change of possession is void against creditors of the vendor ; and this principle applies to a mortgage given back to the vendor at the time of sale.(4) 30. Where a man conveys the same goods successively to two creditors, delivering possession to neither, and the subsequent grantee afterwards obtains possession, which the former takes from him ; the latter grantee cannot maintain trespass, because, (1) 4 Venn. 465. 2 Bos. & P. 69. 4 Taun. 823. 1 Star. 36T. 8 Taun. 838. 4 B. & C 652. Baichelder v. Carter, 2 Verm. 168. (2) Bull. N. P. 258. 1 Ld. Raj . 286. (3) Dawion T. Wood, 3 Taun. 256. (4) Woodward v. Gates. 9 Verm. 359 15 114 DELIVERY AND ACCEPTANCE. [Chap. III. though both transfers are void against creditors, yet they both bind the vendor, and the former grantee has the elder title.(l) 31. It seems, a creditor, with whose knowledge and consent a bill of sale is given, cannot avoid it on the ground of the ven- dor's retaining possession (2) 32. Where the property sold is of a nature which does not easily admit of a change of possession, the rule more especially applies, that the retaining of possession by the vendor is not a fraud upon creditors. Thus A mortgaged land, having upon it a windmill, which was not a fixture, a bargain and sale of the latter being inserted in the mortgage. Held, a change of pos- session was not necessary to protect the mill from creditors of A.(3) 33. A statute of New York provides, that in all cases arising tinder the statute, the question of a fraudulent intent shall be one of fact, not of law. Notwithstanding this provision, how- ever, where there is no immediate delivery, upon a sale of per- sonal property, nor any actual and continued change of posses- sion, or satisfactory explanation of the want of it ; the Court is bound to direct a verdict for the creditor who disputes the valid- ity of the conveyance, and the jury are not authorized to pass upon the question of intention. Their only authority to do this, is where fraud is alleged, notwithstanding a change of posses- sion.* (4) (1) BaUer v. Lloyd, Bull. N. P. 258. (2) Steel V. Brown, 1 Taun. 381 . (3) Steward v. Lombe, I Bred. & B. 506. (4) Stevens V. Whitinore, 19 Wend. 181. * On the subject of this section, see, in addition to the authorities cited, 8 Taun. 675. SB. &C.368. 2 Dana, 204. 3 Cow. 166. S Conn. 160. 5 Greenl. 96. 2 South. 738. 5Rand. 211. 3 Dev. 146. 3 Yerg. 475. 2 N. H. 13. 1 Bai. 538. 4 Leigh, 635. 1 Cranch, 309. 3 Munf. 1. 17 S. & R. 17. 1 Wash. C. 38. 1 Halst. 55. 6Aik. 158. 6 Verm. 621. 4 Mas. 321. 9 Wend. 198. 4 Binn. 258. 1 Penn. 57. 8 Greenl. 326. 5 Const. S, C. 125. Sect. III.] EFFECT OF A SALE, &C. 115 Sf.CTION III. EFFECT OF A SALE, WHERE ANY THING RE- MAINS TO BE nONE TO THE THING SOLD, BY THE VENDOR. 1. Where any thing remains to be done by the seller of goods, as between him and the purchaser, before delivery ; the latter acquires no complete, present right of property, and cannot sus- tain irove7-.{l) 2. Bargain and sale of twenty tons of oil from a stock con- sisting of several large quantities in different vessels and at dif- ferent places. The quantity sold was not separated from the rest. The vendee contracted to pay a certain rent to the ven- dor for storage, after the sale. Held, notwithstanding this last circumstance, the property did not pass. It was remarked, that the difficulty of regarding any specific part of property in bulk as transferred to the vendee, without an actual separation, is greater in the case oUiquids than o^ solids, because the particles which compose the former are constantly changing their relative position. (2) 3. A, having a quantity of hemp in the hands of B, sold a part of it to C, payable by C's acceptance at a certain time, and fourteen days allowed for delivery. A gave C an order on B, to weigh and deliver the specified quantity to C. Within the four- teen days, A notified B not to deliver the hemp to C, it not hav- ing been weighed, and no acceptance given in payment ; but B did deliver to C. A usage was shown, for the holder of an or- der to indorse it to his vendee, and he again to another purchas- er, and so on, without any weighing of the hemp till actually taken. Held, this usage could give the indorsee no greater rights over the goods, than the indorser himself had ; that the sale to C was incomplete, and A might maintain trover against him. (3) 4. A quantity of turpentine was sold in casks, at auction, at (1) Hanson v. Meyer, 6 E. 627. Dole v. Siimpson, 21 Pick. 384. (2) White V. Wilks, 5 Taun. 176. (3) Shepley v. Davi?:, 5 Taun. 617. Il6 DELIVERY AND ACCEPTANCE. [Chap. III. BO much per hundred weight ; the casks to be taken at a certain marked quantity, excepting the two last, from which the vendor was to fill up the rest before delivery, and which, consequently, were themselves to be sold at uncertain quantities. The pur- chasers to pay a deposit at the time, and the balance within thirty days, upon delivery ; and to have the privilege of keeping the property in the warehouse of the vendor for thirty days, free of charge, afterwards paying rent. The vendee employed the warehouseman, as his agent in relation to the turpentine. The warehouseman filled some of the casks from the two last, but left the bungs out, to give the custom-house officer an op- portunity of gauging them. Before he could fill the rest, and within the thirty days, the turpentine was destroyed by an acci- dental fire. Held, those of the casks which had been filled had become the property of the vendee. Nothing remained to be done to them by the vendor ; but the vendee was merely to have them gauged, as necessary to a removal. The leaving out of the bungs for the purpose of gauging was done by the ware- houseman as agent for the vendee, the gauging being his duty^ and not the vendor's. But, on the other hand, the casks not filled still remained the property of the vendor. The contracts must be regarded as distinct, in relation to the distinct lots pur- chased. The action, being for money had and received, to re- cover the deposit, was sustained as to the casks last mention- ed.(l) 5. A vendee agreed to purchase all the vendor's starch, lying at a certain warehouse, at so much per hundred weight, to be paid for by a bill at two months. The starch was done up in papers, and the weight not ascertained, but to be determined af- terwards, and fourteen days allowed for delivery. The vendor gave the vendee a note addressed to the warehouseman, request- ing him to weigh and deliver all the starch. The vendee hav- ing become bankrupt, held, that portion of the starch which had not been weighed did not pass to the vendee, but the vendor might reclaim it. Two things were necessary to the vesting of the property ; viz, payment of the price, and the weighing of (1) Rugg V. Minett, 11 E. 210. Sect. III.] EFEECT OF A SALE, &C 117 the article, upon which the amount to be paid depended. Whether, if the former only of these acts remained unperform- ed, delivery of part would vest the wliole, might be questiona- ble. The warehouseman had no authority to deliver the starch till it was weighed; much less had the vendee or his assignees authority to take it without consent of the former.(l) G. Contract to sell a stack of bark at so much per ton. The vendee agreed to take and pay for it on a certain day. After- wards, a part of the bark was weighed and delivered. Held, the portion unweighed did not pass, because the weighing must determine the sum to be paid. And even if it did pass, an action for goods sold and delivered could not be sustained, nor, it seems, an action for goods bargained and sold.* Although the subject-matter of the contract was ascertained at the time of sale, — viz. all the bark, yet it was to be purchased at so much per ton. The concurrence of the vendor was necessary in the act of weighing, and he was not bound to deliver, till this had been done. lie might have discharged himself from any liabil- ity in case of accidental loss, by giving notice to the vendee that at a certain time he should weigh the bark. If the declaration had been framed upon the special contract, there must have been an allegation and proof of a sale at so much per ton, that the bark weighed so much, and the price amounted to a certain sum,(2) 7. Agreement for the sale of an ark-load of lumber. A part of the lumber was landed, but the landing of the rest was post- pored for the purpose of having a measurement by the inspec- tor. The vendor, having waited a day or two for the inspector, re-loaded the portion which had been landed, and went away with the entire load. In an action of trover brought by the vendee, held, the suit could not be sustained upon these facts. Something remained to be done between the vendor and ven- dee, and consequently the property had not passed. The lum- (1) Hanson v. Meyer, 6 E. 614. (2) Simmons v. Swift, 5 B. & C. 857. * Littledale, J., thought the property might have passed, but still no action would lie for the price. 118 DI-.UVERY AND ACCEPTANCE, [Chap. III. ber was to be assorted and measured, in order to ascertain the quantity. The loads contained different qualities, and at dif- ferent prices. The contract was for a sale of the whole, and neither party was under any obligation to deliver less on the one hand or to receive less on the other. No evidence was offered, except the bringing of the present action, that the vendee was willing to accept and pay for that portion which had been un- loaded, without having the rest. Nor was there any evidence that the vendor was willing to sell this portion alone. On the contrary, both parties intended to goon and complete the whole contract. Although the measuring and landing of a portion was part of the process of delivery ; yet till measurement of the whole, the vendor had not completely surrendered his dominion. A part-delivery passes to the vendee a property in the portion delivered, only where there is an actual change of possession, control or dominion. In the present case, the vendor did not quit possession. Moreover, the vendee neither paid nor tender- ed the price, an act which he was bound to do without any de- mand by the vendor.(l) 8. A had sixty-nine bales of cotton, marked G, at the store of B, and thirty of the same mark, at the store of C, both in Brooklyn, N. Y. He sold sixty-six bales, marked G, to one D, giving him the following pro forma bill of parcels—" 66 bales, say 19,800 lbs., $12,00 per cvvt., 1 per cent, off"." D paid at the time $1800, in part payment for the whole. The cotton lying at the store of C was afterwards destroyed by fire. D de- manded of A an order for sixty-six bales, but A refused it and gave an order for only thirty-six, which were weighed by A, and another bill of parcels delivered to D, including the thirty-six according to the weigh-master's bill, and thirty bales at a cer- tain weight each, accompanied with this clause, " deduct for sup- posed loss 150." Thirty-six bales were delivered at the weigh- ing. A brings an action against D for the price of the thirty bales. Held, the suit could not be sustained, as these bales never became the property of D. They not being identified in the agreement, nor specifically sold, the contract might have (1) Fitch V. Beach, 15 Wend. 221. Sect. III.] EFFECT OF A SALE, &C. 119 been fulfilled by delivering this number of bales, having the mark named, from any other place besides Brooklyn, or any other store in that city. So, if the agreement was construed as an engagement to sell the thirty bales at the warehouse of C, yet not being weighed, the property did not pass. The delive- ry of the thirty-six bales after the loss by fire was no recogni- tion of D's claim to the rest. The only effect of such delivery and acceptance was to exonerate the vendor from his liability pro tanto, leaving the question open as to the rest of the pro- perty.(l) 9. The defendant agreed to purchase from the plaintiff a quantity of fish, at the rate of nineteen shillings per barrel ; to pay for inspection; and, if the plaintiff would deliver the fish upon a certain dock on Long Island, that he (the plaintiff) should not be bound to make up the wantage upon inspection and re-packing, estimated at three per cent. On the other hand, if the delivery were on a dock in New York, the wantage was to be made up by the plaintiff. The parties agreed upon an in- spector, and the plaintiff made his election to deliver the fish on Long Island. He put them upon the dock, but no one was ready to receive them, and they were not received. Held, under these circumstances, the plaintiff could not main- tain assumpsit for goods sold and delivered. The parties in- tended, that the inspection should precede a complete delivery. Till such inspection took place, the quantity was uncertain. Moreover, the contract said nothing of the quality of the fish, and contained no warranty ; till the inspection, therefore, it could not be known whether those furnished were such as the defendant was bound to receive. The act of unlading could not be considered a delivery. If the property were afterwards destroyed, the plaintiff could sustain no suit for the price, because the quality was left undetermined. It was further held, that if the contract had been in writing, an action in tJiis form would not lie, but there must be a special declaration. (2) 10. The plaintiff sold to the defendant 289 bales of skins, (1) Chapman v. Lailirop, 6 Cow. 110. (2) Oiitwater v. Dodge, 7 Cow. 85. 120 DELIVERY AND ACCEPTANCE. [Chap. III. stated to contain five dozen each, at bo much per dozen. Ac- cording to a usage of trade, it was ,the duty of the vendor to ascertain the number of skins by counting. Before this was done, the property was destroyed by fire. Held, the loss must fall on the plaintiff, and he could maintain no action for the val- ue of the skins, either as for goods bargained and sold, or up- on a count for not accepting bills of exchange according to agreement. The enumeration required was for the benefit of the vendor. (1) 11. A agreed with B to burn a kiln of bricks, for which he was to receive, when burnt, 10,000 bricks, not to be taken by himself, but delivered to him by B. Held, this was not a sale of a certain number of bricks, but a mere contract to sell them ; and that, there having been no actual or constructive de- livery to A, he had no attachable interest in the property. It would have been otherwise, it seems, if A had before such at- tachment demanded the stipulated number of bricks, and been directed by B to take them, or if B had in any way assented to his taking them. (2) 12. The defendant offered the plaintiff a certain sum for a steam-engine, payment to be made, partly when taken, which was to be in two or three weeks, and the balance by a note. The plaintiff accepted the offer, and said to the defendant, "you consider the engine to be "yours, as it is " The defendant an- swered " yes." The boiler was set in bricks in the shop of the plaintiff, and could not be removed till the bricks were taken away, which the plaintiff was to do. The following week, he accordingly removed them. The defendant was proved to have said that he had purchased the engine, and to have inquired what would be the cost of getting it carried to a certain place. The contract was not in writing, nor was any part of the price paid or secured. The defendant did not take the engine. Held, there had been no legal delivery, and the contract was void by the Statute of Frauds. An act remained to be done by (1) Zagury v. Funiell, 2 Camp. 240. (2) Brewer v. Smiih, 3 Greenl. 44. Sect. III.] EFFECT OF A SALE, &C. 121 the plaintiff, before the property was to be delivered, and there- fore the title had not passed.(l) 13. A quantity of hay was purchased by bill of parcels and paid for, to be weighed out of the mow, at pleasure of the ven- dee. Held, before weighing, the vendee could not maintain tro- ver for any part of the hay. The bill of parcels was merely a contract to deliver the stipulated quantity of hay. (2) 14. A assigns to B, as security, nine arches of bricks in a kiln containing a larger number, but these arches were not separated or specifically designated from the rest. A afterwards sold enough of the arches to leave less than nine, and the re- maining number were attached by his creditors. Held, B could not maintain trespass against the officer. (3) 15. The same rule is applied, where an article manufactured by the vendor is delivered to the vendee, but on condition to be taken back if it proves unsatisfactory ; more especially if any thing still remains to be done to it by the vendor. 16. The plaintiffs, machinists in Connecticut, agreed to fur- nish one A with a ponderous machine, weighing about eight tons, to be carted by them and put up in A's mill in Worcester. If it should work to A's satisfaction, he was to pay for it, oth- erwise it was to be taken away. The machine was accordingly placed in a new mill, which had been prepared to match it; but before being fully set up, or all the material parts furnished, it was put in operation for trial. A was not satisfied with the ex- periment. The same day, it was attached as his property. Held, the property had not passed to A, and the plaintiffs might maintain trespass against theofiicer. Under the circumstances, the plaintiffs could not have offered the article as complete ac- cording to contract ; nor, had they refused to complete it, could A have maintained trover against them, but he must have sued upon his contract. And the plaintiffs were sufficiently in possession to luaintaiu trespass. By the contract, they had the right of going to the building to complete the work, without being trespassers. It is as if a watchmaker should put up a (1) Dole V. Stimpson, 21 Pick. 384. (2) Davis V.Hill, 3 N.H. 382. (3) Merrill v. Hunncwell, 13 Pick. 213. 16 15<2 DELIVERY AND ACCEPTANCE. [Chap. III. clock with an agreement that if it should keep good time, the owner of the house would buy it. In such case, the former might maintain trespass against any one interfering with the property before a trial. (1) 17. The rule, that where anything remains to be done to goods sold, by the vendor, the property does not pass, applies only where there is a mere constructive delivery and possession, not where there is an actual one. In this case, the materials and labor subsequently expended by him pass to the vendee hy accession. (2) 18. Thus, where a quantity of goods, agreed to be sold at a certain rate, is delivered, the sale is complete, though they are still to be counted, weighed or measured, in order to determine the sum to be paid for them. The act of delivery shows that it is thereby intended to complete the sale. The measuring, &c. constitutes no part of the contract of sale. These principles were applied in a case, where the vendor was part-owner of a quantity of bricks estimated at 370,000, and sold his share in the whole. (3) 19. The rule above stated has been further qualified by a late decision in Massachusetts, as follows. 20. Where any act remains to be done to goods contracted to be sold — as, for instance, weighing or measuring, — and there is there no proof of the parties' intention that the property should pass; the title is not changed. But it is otherwise, where payment is not a condition precedent, and where the in- tention is that the sale should be complete. (4) 21. A, owning a quantity of timber lying in a pond at the end of a canal, in charge of the canal superintendent, agreed to sell it to B, B giving him the following instrument — " received of A four shots white oak plank, &lc. for which I promise to pay him 826 per thousand, board measure. The above timber delivered in the mill-pond," 6lc. A gave B a writing as follows " Received of B $200 in part pay for timber." The remain- (1) Phelps V. Willard, 16 Pick. 29. (2) Sumner v. Hamlet, 12 Pick. 82. Everelt v. Tindall, 5 Esp. 163. (3) Macomber v. Parker, 13 Pick. 175. (4) Riddle V. Varnum, 20 Pick. 280. Sect. III.] EFFECT OF A SALE, &C. 123 der to be paid in ninety days from surveying. Cancellage to be paid by B, when lie takes the plank, &c. from the pond." A further agreed that B might have a measurement made by the superintendent, and that he would abide by it. Before any measurement, B became insolvent, and the property was attach- by his creditors. A brings an action against the officer. Held, if there was a delivery, and if the parties intended to make the sale complete before ascertaining the measure ; the property had passed to B, and the action could not be maintained.(l) 22. Where a quantity of bacon was sold for a fixed price, and the weighing of it was to take place merely for the satisfaction of the vendee ; this act was held to be no ingredient in the con- tract, though important as an unequivocal act of possession and ownership as to the whole property ; and the whole therefore passed to the vendee. (2) 23. The plaintiff purchased certain timber growing upon land of A, felled it, and sold it to B for so much per cubit foot ; B to have liberty to convert the timber on the land. B marked and measured the trees, and the number of feet in each was as- certained, but the whole contents were not added. B having taken some of the trees, the plaintiff requested the servant of B not to remove any more timber, till he knew who was to pay for it. Held, the whole property passed to B, and the plaintiff had no lien for the price. The plaintiff parted with his right to go on A's land, which became, in reference to the timber, the ware- house of B. It might be doubted whether the plaintiff had pos- session, as he had no interest in the land. The circumstance of B's removing a part of the timber showed a license from the plaintiff. Nothing remained to be done by the latter to com- plete the sale. (3) 24. The following cases seem to contradict the first of the exceptions above stated. 25. Where goods, agreed to be sold, are delivered to the ven- dee, to be put in marketable condition, and paid for by weight, which is to be subsequently ascertained, this is a conditional de- (1) Riddle V. Varnum, 20 Pick. 280 (2) Hammond v. Anderson, 1 N. R. 69. 2 H. Bl. 504, ac;c. (3) Tansley v. Turner, 2 Scott, 238. 124 DELIVERY AND ACCEPTANCE. [Chap. III. livery, and does not pnss the property. Thus A contracted to sell B a pair of fat cattle, at so much per quarter, B to take them, prepare them for slaughtering and slaughter them, take the quarters to market, weigh them, and pay for the cattle the sum that the whole would amount to at $7,50 per cwt. Imme- diately after coming into B's possession, the cattle were seized on execution by a previous creditor of B. Held, they were not liable to be thus taken- The vendor was not bound to deliver the property without payment, and this could not be made till the price should be ascertained by weighing. If B should have refused to slaughter the cattle, and put them to work instead, A might have retaken them. So also, if he had refused to pay after weighing ; as the property did not pass till payment or a waiver thereof, and there could be no waiver till the price was known. It was wholly immaterial whether the remaining act was to be done by the vendor or vendee. The delivery was made for a special purpose and rather as if to a bailee than a purchaser. It was sufficient that the vendor had an interest in the act to be done, and a right to be present at the doing of it.(l) 26. A agreed with B, who kept a carpet store, upon certain false pretences, to buy a quantity of carpeting and pay cash therefor. According to usage, the carpeting was sent to his house in the roll, with the understanding that the required quan- tity should be cut off, and the remainder returned, with pay- ment for the part retained. The carpets were made, and put down in A's house, and there remained three weeks before the rest was sent back. In the mean time A pawned the carpets to C, an auctioneer, who was employed to sell the furniture, and hona fide made advances upon the carpets. A then absconded. Held, B might reclaim the carpets from C. As the number of yards was to be determined before payment, no legal delivery had taken place. And even if the facts had shown such delive- ry, inasmuch as the statute of New York, providing for the punishment of the offence of obtaining goods by false pretences by imprisonment in the state prison, constitutes the act a felony ; (1) Ward V. Shaw, 7 Wend. 404. Sect. III.] EFFECT OF A SALE, &C. 125 B might, on this ground, regain his property, thus fraudulently obtained.(l) Section IV. — delivery to one of two purchasers from THE SAME VENDOR. 1. Where the same thing is sold to two persons by transfers otherwise equally valid, he who first acquires possession, be- comes entitled to the property.* Thus, the plaintiff, residing at Boston, and being a creditor of one A, A at Philadelphia July 2, 1819, assigned to him by a written instrument, for value re- ceived, a quantity of teas. No money was paid, nor any dis- charge given. The instrument was sent by mail, and reached Boston, where the teas were, July 5. Two hours and a half af- ter the making of the assignment, the defendant, an officer, at- tached the property, and took possession of it as belonging to A. The teas had been consigned to the attaching creditor, on the account, at the risk, and for the use of A ; and the former had no notice of the assignment to the plaintiff. Held, the at- taching creditor stood in the position of a purchaser for valua- ble consideration, and his title should prevail over the plaintiff's, because he first came into possession of the property. There was nothing in this case equivalent to a delivery to the plaintiff. Both he and A supposed that the goods were at sea, but A had no bill of lading or other document to deliver. If the property had been consigned to A, and he had received a bill of lading after his agreement with the plaintiff, and a third person had bought from A for valuable consideration without notice, and (1) Andrews V.Dietrich, 14 Wend. 31. * The same is ;the doctrine of the civil law. « Manifesti juris est, eum, cui priori tradilum est, in detinendo domino, esse potionem." Cod. 3,32. 15. " Ad vindicationem rei duobus separatim diverso tempore distractoe non is cui pri- ori vendila, sed cui, pretio soluto, vol fide do eo liabita, prius est tradita, admiltendus est." Voet. ad Pand. lib. 6, tit. 1, s. 20. 126 DELIVERY AND ACCEl'TANCE. [Chap. III. received the bill of lading indorsed, such purchaser would have had a title against the p!aintiff.(l) 2. A and B were general partners and part-owners with others of a brig. On February 21, the brig was at St. Croix, A being on board, and the consignee of the ship. A creditor of the firm at that place pressing for payment of his demand, one C, by request of A, purchased the ship from him, and paid the debt. The brig was delivered lo C, who sent her to sea as his property, and caused her to be documented in his name. Eighteen days before the sale by A, B sold the brig at home to D. Held, C's title should prevail over D's, because he first obtained pos- session, and the effect of the transaction was the same, as if A had made a mortgage directly to the creditor, which would un- doubtedly have had precedence of D's title. (2) 3. More especially will the title of the party who first obtains possession prevail, where the other transfer is to some extent executory ; and where there are technical objections to its tak- ing effect either as an absolute or conditional sale. 4. The joint owners of a ship agreed in writing to pledge it to one A as security for advances, and that he might buy any part of it at a certain rate, but made no delivery. One of the owners afterwards made a bona fide transfer of his share. Held, such transfer should prevail over the claim of A. The agree- ment with A did not pass an absolute title, because made ex- pressly as security, and containing a provision for future pur- chase. Nor was it a mortgage, because there was no delivery, and the contract was executory, and the vessel was not in ex- istence at the time. Nor was it a pledge, for want of delivery and continued possession. The contract more nearly resem- bled hottomry, but could not take effect in this form, because the thing did not exist at the time, and the facts would not jus- tify such a construction. (3) (1) Lanfear V. Sumner,* 17 Mass. 110. Fletcher v. Howard, 2 Aik. 115. Ricker v.Cross,5N. H. 572, 3. (2) Lamb v. Durant, 12 Mass. 54. (3) Bonsey v. Amie,8 Pick. 236. * It has been said (Ricker v. Cross, 5 N. H. 572, 3) that Lanfear v. Sumner is a case by|itself; not reconcileable with Putnam v. Dutch, Portland Bank v. Stacey, and oilier cases relating to ships, &.c. Sect, v.] SALE OF snips at sea, &c. 127 Section V. — sale of ships at sea, &c. 1. It has been already somewhat considered, (p. 31) how far the general rule of delivery is dispensed with, where property sold is of such a nature or so situated, that it cannot well be delivered at the time of sale. There is a certain species of property, however, to which this exception is applied more fre- quently and with greater propriety than any other, and therefore deserving of special notice ; to wit, ships (and other property) at sea. 2. A transfer of a ship at sea is effectual by delivery of a bill of sale, subject to be set aside by creditors on the ground of fraud in case the mortgagee (or vendee) neglecls to take possession upon her return, in reasonable time, or, as it is sometimes said, with all possible expedition. He however takes a title subject to any incumbrances incurred before notice of the sale ; as, for instance, that of hypothecation. The question whether posses- sion was taken in reasonable time, is for the jury. If the ship ar- rive at another port than that where the sale takes place, a no- tice forwarded by the vendee to the captain, is equivalent, it seems, to taking actual possession.(l) 3. Upon the same subject, the following remarks have been made by the Court in Massachusetts. 4. Personal property passes by grant upon execution of a deed, and at common law actual delivery is unnecessary. By the English Statute, 21 Jac. c. 19, a grant, without possession taken, does not protect the grantee as against the assignee of the grantor in case of bankruptcy. But the English bankrupt laws were never in force in Massachusetts. By the construction of the above act, the sale of a ship and cargo abroad is good, though no immediate possession be taken if the evidence of title is delivered, and possession taken, as soon as the property comes within reach of the vendee. In Massachusetts, neglect of delivery may be a fact from which fraud is inferred. There (1) Badlam v. Tucker, 1 Pick, S96. Joy v. Sears, 9 Pick. 4. Brinlcy v. .Spring, 7Greenl. 241. 6 Conn. 284. 128 DELIVERY AND ACCEPTANCE. [Chap. III. is no distinction between the effect of a grand hill of sale in England and the common bill of sale in use with us.(l) 5. The Court in Connecticut have also remarked, that ships at sea are commonly delivered by indorsement and delivery of the bill of sale and other documents, evidential of right and ownership. So, indorsement and delivery of a bill of lading are a sufficient delivery of a cargo afloat. But neither is good against creditors, unless actual possession be taken with all pos- sible expedition. *(2) 6. Delivery is not necessary to the sale of a share in a ship. The case is similar to that of a ship at sea, in which delivery is impracticable. (3) 7. A and B being part owners of a ship, which lay at the port of Manchester, A at his house in Salem, a neighborinor town, gives a mortgage to B of his share, by way of indemnity for B's liabilities on his account. One hour after this transfer was made, the ship was attached by creditors of A. Immediately upon her arrival at Salem, the port where she belonged, B went on board and attempted to take possession, but afterwards allow- ed the officer to retain possession for several days. Held, the sale was valid to pass the property without delivery, which was impossible as the vessel was situated at that time, that the pos- session of the attaching officer was wrongful in its inception, and there was no laches on the part of B sufficient to make it lawful, the law requiring strong circumstances to mature a wrong by sufferance into a right. Whether, if A had continued to have possession jointly with B, the sale would be void, qu.(4) 8. A ship at sea, bound to a port in Massachusetts, was mort- gaged in another state, the mortgagor to have possession till de- fault in paying certain notes. After her arrival in port, the ship was attached in a suit against the mortgagor and another part- owner. Subsequently to the attachment, and in reasonable time (1) Portland Bank v. Stacey, 4 Mass. 663. (2) Ingraham v. Wheeler, 6 Conn. 284. Wendover v. Hogebooni, 7 John. 308. (3) Addis V. Baker, 1 Anst. 222. (4) Putnam v. Dutch, 8 Mass. 287. *A ship passes by delivery only without any bill of sale. The law of the United States, requiring a register to be inserted in the bill of sale, affects the vessel only as an American ship, with certain privileges resulting from its national character. Sect, v.] SALE or ships at sea, &c. 129 after the mortgagee's right to take possession accrued, his agent ai the port of arrival gave notice of his claim at the custom- house, by a memorandum on the certificate of enrolment, the ship being then in possession of the attaching officer. Held, the mortgagee had a good tide; that a mortgagee is not bound to follow the vessel from port to port, but may lawfully await her return to the port where she belongs, and where the transfer was made ; and that notice at the custom-house was equivalent to a demand, as an actual demand would be useless, because the ship was then in the officer's hands. The clause in tlie instru- ment, authorizing the mortgagor to keep possession, was not fraudulent, being consistent with the expressed trust, and giving him no false credit.(l) 9. On the 1 1th of August, one eighth of a vessel at sea, be- longing to the port of Hyannis, was sold to a purchaser at Nan- tucket. On the 22d she arrived at IT, but without the vendee's knowledge, and on the 29th sailed on a new voyage. Septem- ber 16th, she returned to H, and was attached the next day by creditors of the vendor. The vendee came from Nantucket by the first packet after hearing of the arrival of the vessel, reach- ed H September 23d, and replevied her in the present suit. Held, judgment should be rendered for the plaintiff. The law did not require him to have an agent at H to take possession ; and as the sale was only of a share in the vessel, possession was comparatively unimportant, as negativing fraud. (2) 10. The plaintitr agreed to take a conveyance of a ship from one A, if he should conclude to execute such conveyance, and that the bill of sale should be left with B for the plaintifl''s use. On the 16th day of the month, a bill of sale was accordingly made, and delivered to B, and on the 19ih the bill of sale and the ship were taken possession of by the plaintiff, as soon as practicable after the arrival of the latter at his place of residence. On the 18th, the ship was attached by creditors of A.' Held, the plaintiff had a title which should prevail over the attach- ment. (3) (1) Badlam v. Tucker, 1 Pick. 389. (2) Joy V. Scars, 9 Pick. 4. (3) Buffingtoi) V. Curtis, 15 iMass. 528. 17 130 DELIVERY AND ACCEPTANCE. [Chap. III. 11. Where a ship at sea is sold by the owner at home, and also by the master under an authority carried out by him ; the purchaser on shore is entitled to the proceeds in the master's hands. So in case of similar sales of goods, the master becomes an agent of the vendee, upon receiving notice of the sa]e.(l) 12. It has been contended that this rule (as to the sale of ships at sea) applies to ships only, being, with regard to them, a rule o^ necessity, inasmuch as they are usually at sea. But it is now settled, that the same principle applies to a cargo as to a vessel, and to all cases of sale, whether the property be on land or wa- ter, where delivery is at the time of sale impracticable.(2) Section VI. — delivery obtained by fraud. 1. A fraudulent vendee gains no property against the vendor. But, as possession is prima facie evidence of property, if the vendor has delivered possession, with the intent that the proper- ty shall pass as well as the possession ; a bona fide purchaser from the first vendee shall hold the goods. The principle is, that the vendor has reposed confidence in the first vendee, and thus enabled him to commit a fraud ; and therefore the equity of the second purchaser is the best. (3) 2. After delivery of goods sold, although there was fraud on the part of the vendee, the vendor cannot forbid their being tak- en away, or maintain trespass against the party taking them. (4) Section VII. — time and place of delivery. 1. Where a purchaser of goods agrees to pay for them upon delivery at a certain time and place ; in order to maintain an ac- (1) Gardner v. Howland, 2 Pick. 601, 2. (2) Gardnerv. Howland, 2 Pick. 602. 2 T. R. 485. Ricker v. Cross, 5N.H. 571, 2. (3) Per Savage, Ch. J., Andrews v. Dieterich, 14 Wend. 34. (4) McCarty v. Vickery, 12 John. 348. Sect. VII.j TIME AND PLACE OP DELIVERY. 131 tion for the price, the whole must be delivered or tendered ac- cordingly. Part-delivery and acceptance, of some before and some after the time, are insufficient.(l) 2. But where one agrees to deliver property at a certain time and place, and delivers it at another time and place without objection from the vendee; the latter is held to have waived aU objection on this ground. (2) 3. Where a written contract for the sale of goods specifies no time for delivery, in an action for not delivering them, the seller cannot show a parol agreement that they should be taken away immediately, or a usage that where the delivery is to be future, the contract must so specify. (3) 4. Where no time is fixed for delivery of goods sold, the law allows a reasonable time. If, upon demand by the vendee, no objection is made as to time, and no question asked, by the vendor, his refusal to deliver is a breach of contract. (4) 5. A purchased three quarters of a vessel ; two quarters for himself, and the other quarter for B by virtue of a prior agree- ment with him, and took a bill of sale of the whole to himself, agreeing to convey to B his share. B demanded a bill of sale, but A refused to give one. A made out but did not tender a bill of sale, but his executrix, the plaintiflT, after his death, and more than two years after the purchase, tendered it. Held, an action did not lie against B for the price.(5) 6. The defendant, having contracted with one A to build for him certain machinery, and deliver it at a stipulated time, ac- cordingly contracted with the plaintiff to build the machinery and deliver it to A, and to pay him therefor a certain price. The property was delivered by the plaintiff to A after the time agreed on, the delay having taken place at the request of A. Held, the defendant was liable for the price, if he assented to (1) Davenport v. Wheeler, 7 Cow. 231. (2) Baldwin v. Farnsworth, 1 Fairf. 414. (3) Greaves v. Aslilin, 3 Camp. 4-6. (4) Blydenburgh r. Welsli, Bal 1. 331. (5) Higgins V, Chessman, 9 Pick. 7. 132 DELIVERY AND ACCEPTANCE. [Chap. III. this delay, or, knowing of A's request, did not expressly dis- sent.(I)* 7. A, having contracted with B to deliver him pheasants on the 12ih of October, sent them to the coach-office on that day, but they did not reach B till afterwards. Held, a compliance with the contract. (2) 8. An agreement for the sale of flax provided that it should be sent from St. Petersburgh, not later than the thirty-first day of July, either for Hull or London. Before this day arrived, the flax was sent from Petersburgh in lighters, and put on board a ship at Cronstadt ; but the ship did not sail till after the day. Held, a sufficient compliance with the contract. (3) 9. Agreement to sell certain produce, and deliver it at the house of the vendee within a fao days. In an action brought by the vendee for non-delivery, held, he must prove a demand upon the vendor, before commencement of suit, or at least, that he was ready and willing to pay for the property at the place agreed. (4) 10. A sold to B a quantity of fish, to be delivered at one of two places, at the option of the vendor. The fish were left at one of the places named, but no notice given to B, and conse- quently they remained there till they were spoiled. Held, the loss must fall upon the vendor, who was bound to have notified the vendee of the place of delivery. (5) 11. Sale of a quantity of barley, with an agreement to de- li) Flagg V. Dryden, 7 Pick. 62. (2) Honeywood v. Stone, 1 Chit. 142. (3) Busk V. Siience, 4 Camp. 329. (4) Stone v. Case, 13 Wend. 283. (5) Rogers v. Van Hoespn, 12 John. 221. * The plaintiff gave a bill of parcels of the machinery to a creditor, as security, but -without delivery. Held, no title passed to the creditor, and therefore the transac- tion was no bar to the present action. Nor was it any defence to the action, that after delivery to A, the machinery was taken upon execution against the plaintiff; for A might bring^trespass against the officer, the officer call upon the creditors for indem- nity, and they, in turn, sue out writs of scire facias upon their judgments against the plaintiff. It was further held, that a mortgage made by A before delivery of the whole machinery, was no evidence of acceptance, being only a declaration of his, bu! not proof of a fact. Flagg v. Dryden, 7 Pick. 52. Sect. VII.] TIME AND PLACE OF DELIVERY. 133 liver it alongside a sloop or warehouse at G or K at the option of the vendee, in all April or sooner. April 29, the barley was brought into the dock at G. Four days after this were neces- sary to unload and deliver it to the vendee. Held, the contract was broken.(l) 12. The plaintiff agreed with the defendant to purchase from him a ship then in course of building in Maine, to be " com- pleted and delivered as soon as possible at F village or B, either of these places, at the option of the purchaser." Held, this contract bound the defendant to notify the plaintiff when the vessel was completed, that he might make his election as to the place of delivery ; and that having, without such notice, sold the vessel to a third person, the defendant was liable to an action for damages. The law required him to give notice, because he had the best means of knowledge on the subject. Nor was the plaintiff bound to employ an agent to observe the progress of the vessel. It was further held, the agreement having been made in December 1832, the vessel launched in April or the first of May 1833, and the suit commenced in July, that the plaintiff had not waived any right by delay. He was not bound to make an election at the time of the contract, but when the ship was finished. (2) 13. A agrees to sell B 50 hogsheads of sugar, double loaves, at 100 shillings per cwt., to be delivered, free from charge, on board a certain ship. B sells to C by the same description, A assenting to the sale. The sugar was not delivered or re- weighed. Held, C could not maintain trover against A. 14. A contract for the sale of sugar provided that it should be " free on board a foreign ship." Held, the vendor was not thereby bound to deliver it into the hands of the vendee, or to transfer it to his name in the books of the warehouse where it lay ; but only to put it on board a foreign ship, to be named by the vendee. (3) 15. Where a contract provides that goods sold shall be upon (1) Cox V. Todd, 7 D. & R. 131. (2) Spooner v. Baxter, 16 Pick. 409. (3) VVackerbaiih v. Maoson, 3 Camp. 270. 134 DELIVERY AND ACCEPTANCE. [Chap. III. interest after a certain time from sJiipmenf, this is conclusire evidence that they are to be sent by water. (I) 16. A, at one port, ordered goods from B, at another, to be sent by a common sea-carrier. The goods exceeded in value 5/., and the carrier's liability was notoriously limited to this amount. B deposited the goods at the receiving house of the carrier, with directions to forward them to their place of desti- nation ; but they were not specifically entered and paid for ac- cordingly. Held, B had implied authority and it was his duty thus to enter them, and to pay any extra charge requisite for securing the carrier's responsibility ; and, not having done so, and ihe goods being lost, he could not recover the price of A.(2) 17. A contract was made in London to sell a quantity of tallow, then at sea; but unless it should arrive in a certain time, the contract to be void. Held, this meant, unless it should ar- rive at London.{3) 18. Contract for the sale of goods on arrival per Fanny, &c. Held, this meant the arrival of the goods expected by this ves- sel ; and that if the vessel arrived without the goods, and through no fault of the vendor, the latter was not liable on the contract. The parties did not intend to enter into a wager. And the ex- pression in the agreement, sale, meant merely a contract for a sale. (4) 19. An agreement for the sale of goods provided, that as soon as the vendor knew the name of the ship by which they were to be forwarded, he should inform the vendee of it. The vendor, residing in London, was informed of the name on the twelfth, but did not communicate it to the vendee, residing at Hull till the twentieth, of the month. Held, the condi- tion of the contract was broken, and the vendee not bound by it, though he had suffered no damage from want of the above information. (5) (1) Whiting V, Fairand, 1 Conn. 60. (2) Clarke v. Hutchins, 14 E. 475. (3) Idle V. Thornton, 3 Camp. 274. (4) Bo>d V. Siffkin,2 Camp. 3-26,327 n. (5) Busk V. Spence, 4 Camp. 329, Sect. VII.] TIME AND PLACE OF DELIVERY. 135 20. A agreed to sell B fifty tons of St. Petersburgh sound, clear hemp, at .£59 per ton, to be shipped from St. Petersburgh in June or July following, and information to be given of the name of the vessel, as soon as known. If the vessel did not arrive by December 31, the contract to be void. September 5, A gave notice that fifty tons had been shipped in the Lively. On the 20th of the same month, A claimed the right (which however was denied by B) of making up the deficiency, if any, from another ship. September 20, the Lively arrived, bringing forty-four tons, twenty tons of which were delivered to B, the rest being shipped at St. Petersburgh to other persons. Octo- ber 4, the remaining thirty tons arrived in another ship. Held, the only material parts of this contract, were the quantity, qua- lity, price, time and place of shipment and delivery, but it did not require that the hemp should be sent in one ship; that as the notice of Sept. 5 was founded on a mistake, A might sup- ply the deficiency in the quantity first sent, by another vessel ; and that he was bound to deliver B from the Lively only so much as was ascribed to the latter.(I) Section VIII. — acceptance. 1. Formerly, a delivery of goods by the seller was sufficient to take the contract out of the statute of frauds. But it is now clearly settled, that in order to satisfy the statute, there must be a delivery of the goods by the vendor, with an intention of vest- ing the right of possession in the vendee ; and there must be an actual receiving and acceptance by the latter, with an intention of taking the possession as owner. The word accepted, in the act, imports that each party do something to bind the bargain. It lies upon the plaintiff to make out that there was such deli- very and acceptance. And it must be an ultimate acceptance, such as completely affirms the contract. It is necessary that (1) Thornton v. Simpson, 2 Marsh, 267. 6 Taun. 556. 136 DELIVERY AND ACCEPTANCE, [Chap. III. the vendee should no longer have it in his power to object to the quantum ox quality of the goods. (1)* 2. But, it seems, if the buyer take away the goods without the seller's assent, the buyer himself would be bound by the bar- gain.(2) 3. Where one agrees for the purchase of goods abroad, and they are put on board a ship chartered by him, but he refuses to accept them ; this does not constitute a delivery and accep- tance. (3) 4. There can be no acceptance or actual receipt by a pur- chaser, unless there is a change of possession ; and unless the seller divests himself of the possession, though but for a moment, the property remains in him. (4) 5. It is said, where a vendor of goods has ascertained and ap- propriated them, and the vendee has assented to such appropri- ation ; the property passes to the latter. There is no case con- tradictory to this principle. (5) 6. In Elmore v. Stone(6), the buyer directed expense to be incurred j which was held to be evidence of acceptance, 7. In Chaplin v. Rogers, (7) the purchaser of hay dealt with it as his own ; which the jury thought was sufficient evidence of acceptance, 8. Where a vendor declares against the vendee for non accep- tance of the goods sold, it seems the question of acceptance does not arise. (8) 9. A agreed with B to make certain pew pannels for the lat- (1) Baldey v. Parker, 2 B. & C. 44. Phillips v. Bistolli, 2 lb. 613. Tempest V. Fitzgerald, 3 B. & A. 680. Per Heath, J., Kent v. Huskinson, 3 B. & P. 235- Hanson v. Annitage, 5 B. &• A. 559. Acebal v. Levy, 10 Bing. 384. (2) Tempest v. Fitzgerald, 3 B. & A. 680, (3) Acebal v. Levy, 10 Bing. 376. (4) Carter v. Toussaint, 5 B & A. 859. (5) Alexander v. Gardner, 1 Scott, 640. (6) ITaun. 458. (7) 1 E. 192. (8) Acebal v. Levy, 10 Bing. 384. * The naked possession of goods for a short time, and acts of ownership in rela- tion to them, such as loaning and offering to sell, do not authorize a verdict of a trans- fer, unless accompanied by some acquiescence or recognition on the part of the own- er. Tompkins v. Haile, 3 Wend. 406. Sect. VIII.] ACCEPTANCE. 137 ter, to be paid for on delivery. The pannels were brought to the meeting-house, while B was absent from town. The build- ing committee made objections to them, but they were left at the ^meeting-house, and piled separately from other lumber. Held, there was no legal delivery.(l) 10. By the conditions of an auction sale, the purchaser was to pay 30 per cent, upon the price, on being declared the high- est bidder, and the residue before the goods were removed. A lot was knocked down to A and immediately delivered. He kept it three or four minutes, then stated that he had mistaken the price, and refused to retain it. No part of the price was paid. Held, it was a question for the jury, whether the seller had delivered and the buyer actually accepted the goods, with the mutual intention of transferring the right of possession. (2)* 11. Goods of the value of £iiA were made to order, and re- mained in the possession of the vendor, at the request of the vendee, with the exception of a small part, which the vendee took away. Held, there was no sufficient acceptance of the re- sidue of the goods, (3) 12. A purchased of B, a trader, several articles, at distinct prices, each under i^lO, but the whole amounting to .£70. A marked with a pencil some of the articles, saw others measur- ed, and helped to cut off others. He then requested that an account of the goods might be sent to him, which was done, tocrether with the goods, but he refused to accept them. Held, the contract was an entire one and within the Statute of Frauds, and that there was no delivery and acceptance to take the case out of the statute, and sustain an action for goods sold. It was remarked by Bayley, J., upon the question what interval of time must elapse between the purchase of different articles in order to make the contract separate, that if the pur- (1) Woodbury v. Lang, 8 Pick. 543. (2) Phillips V. BistoUi, 2 Barn. & Cr. 511. (3) Thompson v. Macaroni, 3 B. & C. 1. * It was said by the Court, that the evidence of delivery and acceptance was very slight. The deposit not having been paid, the seller probably had not intended to part with all control over the goods. And the short interval for which the seller kept possession was the only fact showing an actual acceptance. 18 138 DELIVERY AND ACCEPTANCE. [Chap. III. chaser went away after purchasing one, and returned soon enough to warrant the supposition that the wliole was intended to be one transaction, it would be held one entire contract. Holroyd, J. remarked that the statute applies, where the con- tract, either at the commencement or conclusion, amounts to ^IO.(I) 13. A bargained and sold to B in A's farm-yard a stack of hay there standing, and B afterwards sold part of it to C, who took it away without the knowledge and against the direction of B. Held, these facts authorized the jury to presume a delivery to B and an acceptance by him, which took the case out of the Statute of Frauds, and sustained an action by A for goods sold and delivered. (2) 14. The plaintiff sold a horse to the defendant. No time was fixed for payment. The horse was fixed in the presence and with the approbation of the defendant, but was to remain with the plaintiff twenty days, and be no charge to the defendant. At the expiration of this time, he was sent to grass by order of the de- fendant, but entered as belonging to the plaintiff. Held, there was no acceptance, and an action for the price did not lie. (3) 15. A, residing in the country, ordered from B in the city certain plough-castings, to be forwarded by canal. A portion of them only were sent, and those by land conveyance, at a greater expense than would have been incurred in the mode agreed on. Held, B could not recover the price of those sent, without proving an acceptance by A, and that this was a ques- tion for the jury. Clear evidence that the goods came to the hands of A, would be sufficient proof of acceptance, unless re- butted by showing a refusal and notice thereof. On the con- trary, it was proved, that the property never came to A's pos- session. So if a bill of the goods had been sent and received, this would sustain the action, unless A had given express notice of non-acceptance. (4) 16. A, a purchaser, verbally agreed at a public market with (1) Baldey v. Parker, 2 Barn. & C. 37. (2) Chaplin v Rogers, 1 E. 192. (3) Carter v. Toussaint, 5 B. & A. 856. (4) Corning v. Colt, 6 Wend. 253. Sect. VIII.] ACCEPTANCE. 139 the agent of B, the seller, to purchase twelve bushels of tares, then in B's posseasion, being part of a larger quantity in bulk, to remain in B's possession till called for, A sample was offer- ed to A, but he declined accepting it, having seen the tares upon B's land. The agent, upon returning home, measured the twelve bushels, and set them apart for A, to be delivered to him on demand. Held, if A had once accepted, he could not ob- ject, though the goods should not conform to the sample; but he might make any objection at the time when they were ten- dered to him for acceptance; and that in this case there had been no acceptance, and the action did not lie. It was further held, that the measuring of the goods did not constitute an ac- ceptance, whether done by the seller as part of the contract or by his agent, in compliance with a request from A ; for this would authorize the agent only to measure the goods, not to accept them.(l) 17. A ordered from B a ruling-machine, to be manufactured by B, without any agreement as to the price. Upon completion of the machine, A paid money on account, admitted it was made to order, and requested B to send it home to him, but refused to pay the price demanded. B refused to deliver the machine without payment in full of this price, and gave orders for the commencement of a suit to recover it. A agreed to make a settlement, if time were allowed him. Held, these facts showed an acceptance of the machine, and sustained a suit for goods bargained and sold. (2) 18. A agreed to buy a horse from B for cnsh, and take him away within a certain time. About the end of this period, A rode the horse, and gave directions as to his treatment, but re- quested B to keep him longer, saying that he would at the end of this time take and pay for the horse. B assented to this pro- position. Before the horse was taken or paid for, he died. Held, there was no acceptance, and no action would lie for the price. The delivery and payment in this case were to be con- current acts. Hence the bargain was at first a mere contract, (1) Ilow.-i V. Palmor, S B. & A. 321. (2) Elliott T. Pybus, 10 Bing. 512. 140 DELIVERY AND ACCEPTANCE. [Chap. III. and if A had rode away the horse without payment, B might have had trailer against him.(l) 19. The agent of A, a drysalter in London, called on B, a carpet-manufacturer at Kidderminster, for orders in his busi- ness. B ordered a quantity of cream of tartar, and offered to lake a quantity of lac-dye at a certain price. The agent said that this was too low, but he would write to A on the subject, and if B did not hear from him in one or two days, his (B's) offer should be considered as accepted. A did not write to B, but sent both the cream of tartar and the lac-dye. Held, the contract for the lac-dye was not complete, till the expiration of the time allowed to A for deliberating upon B's proposition ■ hence the order for the two articles could not be considered as a joint one, and acceptance of part was not an acceptance of the whole. (2!) 20. To an action for the price of a fire-engine sold by the plaintiff to the defendant, the latter pleaded the Statute of Frauds. The plaintiff replied, an acceptance of the engine. The evidence was, that after the sale the defendant took a third person to look at the engine, and mentioned who would be likely to purchase it ; that he said to another person^ " I know what I am going to do with it;" and to another, " I have a concern in the engine." Held, it was a question for the jury, whether the defendant had treated and dealt with the article as his ; and if so, judgment must be for the plaintiff.(3) 21. Action by A against B for the price of a quantity of cider. B verbally contracted for the cider at his (B's) house. It was of good quality, and was sent by wagon to B's house, but he refused to take it in, and deposited it in the neighboring warehouse of a third person. B never notified A of his refus- al to receive the cider, nor did he send it back. Held, the ac- tion did not lie, for want of an unequivocal acceptance or a contract in writing. (4) 22. A, residing in Yorkshire^ ordered two chests of tea froin (1) Tempest v. Fitzgerald, 3 B. & A. 680. (2) Price v. Lea, 1 B. & C. 166. (3) Baines v. Jevons, 7 C. & P. 288. (4) Nicholle v. Plume, \ Carr. & P. 275. Sect. VIII.] ACCEPTANCE. 141 B ill London. The teas were forwarded to a certain wharf, to be sent by sea. Goods, previously sold by B to A, had been received for A at this wharf The vessel carrying the teas was lost, and no invoice was sent, till after the loss had been heard of It was not proved, whether the bargain was parol or writ- ten. Held, A was not bound by a mere constructive accep- tance.(l) 23. A verbally agreed to sell B twenty hogsheads of sugar, from a larger quantity which he had in bulk. Four hogsheads were filled, delivered and accepted. A then filled sixteen more, and requested B to take them away, which he promised to do. Held, the acceptance of the four hogsheads was an ac- ceptance of a part of the whole twenty ; that the property in the remaining sixteen passed, subject to a lien for the price, so that any loss would fall upon the vendee ; and that A might re- cover in an action for goods bargained and sold. (2) 24. A verbally ordered from B a bale of sponge, at lis. per lb. The sponge was sent, but A returned it, writing that he had examined the article, that it was worth only 6s., and he had therefore sent it back. Held, this letter was no acceptance of the sponge, unless refusal to accept could be so construed ; that it was merely an affirmance of some order for some sponge, and the article was returned as soon as received and examined, as not being the kind wanted ; and, so far as appeared from the letter, it might have been sent only on speculation. (3) 25. A contracted with B to deliver him certain manufactur- ed articles of a particular description, at a particular time and place. Articles corresponding to the specified quantity and de- scription, but not to the quality agreed for, were delivered at the time and place named. The vendee used a part of the goods, and paid a part of the price without objection, till a question was raised concerning payment. Held, the facts amounted to an ac- ceptance, and a waiver of any claim for damages or a reduction of the price, on account of open and apparent defects. (4) (1) Hanson v. Armiiage, 1 Carr. & P. 273 n. 5 B. &. A. 567. (2) Rohde V. Thwaites, 6 B. & C. 388. (3) Kent v. Huskinson, 3 B. & P. 233. (4) VVilkins v. Stevens, 8 Verm 214. 142 DELIVERY AND ACCEPTANCE. [Chap. III. 2G. A built a wagon for B. B employed a smith to affix the iron-work, who assisted A's men in doing it, and charged B for his services. B also employed a tilt-maker to tilt the wagon. The wagon remained in possession of A during these operations, and was left with A to be finished after they were completed. Held, these facts did not show any acceptance of the wagon. By St. 9 Geo. 4, ch. 14, the 17th section of the Statute of Frauds, requiring acceptance in defijult of a written agreement, is extend- ed to executory contracts, or those relating to goods not yet in existence. In this case, B procured the work to be done upon the wagon, while it was in progress, and incapable of delivery. Had A's work upon it been done, and the workmen employed by B merely finished the wagon, the case might have been dif- ferent. But, under the circumstances, A retained a lien upon it, and there was no evidence of any intention to deliver or accept. Held, A could not sustain an action for the price. (1) 27. A agreed to purchase of B one hundred sacks of good English seconds flour, at 45s. per sack. Twenty-two sacks were delivered, and A then gave notice that the flour was un- saleable and bad, and- that the vendor should take it away im- mediately ; but did not return it. Whether there was an ac- ceptance, qu.(2) 28. A, a horse-dealer, contracted with the servant of B at a fair, to purchase a horse for =£45, to be delivered to A in about one hour. This time having elapsed, the servant called on A at his stables, to know whether he was ready to receive the horse. A said he should have a vacant stall in about an hour, and would then take the horse, but, before the expiration of that time, refused to do it. On the next day, the horse was return- ed to B. B sent him back to A, who refused to receive him. No money was paid at the sale of the horse, but A offered a shilling to the servant, which was not accepted. A told C that he had bought the horse, that he would suit him, and that he (A) would take<£5 for buying him. After the sale, and during the time fixed for delivery at the stables, A took the horse from (1) Maherly v. Slieppard, 3 Moo. &. Scott, 436. (2) Jackson v. Lowe, 7 Moo. 219. Sect. VIII.] ACCEPTANCE. 143 the stables, when C discovered a defect in him, and refused to purchase. Held, it was a question for the jury, whether these facts constituted a delivery to, and acceptance by A, so as to take the case out of the Statute of Frauds ; whether any thing remained to be done by the seller, or whether what he had done through his servant, constituted a delivery. (1) (1) Blenkinsop v. Clayton, 1 Moo. 328. CHAPTER IV. THE PRICt: OF GOODS SOLD, AND PAYMENT THEREOF. 1. Price necessary to a sale — how it may he fixed — reasonable price. 6. Payment — hy negotiahle securities, which are dishonored ; whether the vendor may sue for the price, or reclaim the goods, Sfc. 19. Payment by other securities. 21. Sale from debtor to creditor. 23. Agreement to pay by hill, S^c. — how construed. 1. A. price is one of the essential elements of the contract of sale. And the price must be certain or capable of being made certain. If left to be fixed by the vendor or vendee, the sale is void. But it may be left to be settled by arbitration. (1)* 2. It is to be understood, however, that where an agreement for the sale of goods mentions no price, and the vendee accepts them, the law implies a reasonable price and sustains the bar- (1) Ayliffe's Civ. Law, p. 4, tit. 4. 4 Pick. 189. Shep. Touch. 224. * " Pretium autem constitui oporlet, nam nulla eraptio sine pretio esse potest." But " id certum est, quod certum reddi potest." " Quoties sic composita sit venditio, quanti ille aestimaverit, sub hac conditione staret contractus, et stet siquidem ille, qui nomina'.'js est, pretium definierit, tunc omnimodo secundum ejus Eestimationem et pre- tium persolvatur, et res tradatur, et venditio ad effectuni perducatur. — Just. 3, 24. I. Chap. IV.] THE PRICE OF GOODS SOLD, &C. 145 gain ; for otherwise the vendee might keep the goods without payment. Whether the same principle applies, where the con- tract is still executory, and the goods remain in the possession or under the control of the vendor, qu.(l) 3. A memorandum for the sale of goods is legally valid not- withstanding the Statute of Frauds, though no price be named, if none were agreed upon. But if a written contract of sale mentions no price, and it is proved by parol evidence that a price was agreed on, the writing cannot be used as evidence of the agreement between the parties. The law requires a note in writing of ihc bargain, that is, of the wlioh bargain. (2) 4. So, where it is proved by parol evidence, that there was an agreement for a sale of goods at a specified price, the ven- dor cannot recover upon a quantum valebant count, by offering in evidence a writing which contains no provision as to the price.(3) 5. A count, alleging a sale " at the then shipping price at G in Spain," is not sustained by a written agreement, which is silent as to the price. From such a writing the law would infer a reasonable price, by which is meant such an one as the jury would judge to be fair, but which may greatly differ from the current price. (4) G. With regard to the payment for goods purchased, a very common method is by giving bills of exchange or other nego- tiable securities for the price. Upon the effect of such pay- ment, many cases are to be found in the books. 7. The purchaser of goods gave bills of exchange in pay- ment, which the vendor negotiated, but they afterwards came back into his hands. In an action brought by the vendor for the price, it appeared that the bills protested were in possession of his agent. Held, the plaintiff might recover without deliver- ing up the bills. The defendant might have relief in Equity, (1) Acebal v. Levy, 4 M. & Scott, 217. 10 Bing. 382. See Webber v. Tivill, 2 Saun. 121,11.2. (2) Hoadly v. Maclaine, 4 Moo. &. Scott, 340. Elmore v. Kingscote, 5 B. & C 583. (3) Cooper V. Smith, Id E. 103. (4) Acebal r. Levy, 10 Bing. 382. 3. 19 .KicE OF GOODS SOLD, &c. [Chap. IV. ^ amount of the verdict into court, and move a stay of ^ution, till the bills sliould be delivered up.(l) 8. Goods were sold, to be paid for by a bill drawn upon the agent of the vendee. At the maturity of the bill, the agent having no funds, it was renewed without notice to the vendee. Held, this was no discharge of the latter, but he was still liable for the price of the goods. The agent stood in nature of a surety, and it was for the benefit of the vendee himself to have the bill renewed. (2) 9. The vendee of goods accepted a bill of exchange for the price, which was negotiated by the vendor. The indorsee of ths bill recovered judgment against the purchaser, but did not take out execution. The vendor himself took up the bill, and received a mortgage from the vendee as security, but derived no money therefrom. Held, these facts did not constitute ^ pay- ment io t'le vendor, showing merely a judgment, without satisfac- tion. (3) 10. Goods sold were paid for by a bill of exchange at one monh (rom sight, given by the banker of the vendee for an amount exceeding the price of the goods, the vendor paying the difference in cash. The bill being dishonored, held, the vendor might recover the agreed price. (4) 11. A broker sold to the defendant three hundred barrels of flour, on account ( f the plaintiff, at 88 per barrel, which was a fair price. The flour had not arrived at the time of sale, but was daily expected. The plaintiff, having been absent, upon his return, offered to deliver the flour, but the defendant declin- ed receiving it. He however said afterwards that he would take and pay for it, and gave orders that it be sent to his store. The flour was placed on the dock and ready for delivery. The de- fendant directed tie plaintiff to send it to his store, saying, that he would draw his check in payment ; but the plaintiff refused to have the flour removed without payment in cash. Accord- ingly, it was neither delivered nor paid for, and was re-sold by another broker for $6,50 per ban el, the price having fallen (1) Hadwcn v. Mendisabal, 2 C. & P. 20. 10 Moore, 477. (2) Clarke v. Noel, 3 Camp. 411. {%) Tarleton v. Allhusen, 2 Ad. &- El. 32, (4) Fry v. Hil', 7 Taun. 397. Chap. IV.] THE PRICE OF GOODS SOLD, &.C. 147 since the former contract. In an action for refusing to receive the flour and to recover the difference between the two prices ; held, under the circumstances, the delivery and payment were to be simultaneous acts ; that the check of the vendee could no more be considered as payment than his note, inasmuch as he might have no funds, or the bank miirht have good reason for dishonoring the draft ; and therefore that the action might be sustained. ( I) 12. The traveler of A, residing in London, called upon B, a debtor of A, in the country, for payment ; and, being unable to obtain money from him, consented, upon the request of B, to take his acceptance for the amount. The traveler accordingly wrote an entire bill, except the name of A, the drawer, and for- warded it, accepted, to A, telling B at the same time that he thought it would not be satisfactory to A. A retained the bill, but did not s'gn it as drawer. The traveler had no authority to sign bills for A, bin was in the habit of transmitting them in this way, to avoid the risk of loss. Before maturity of the bill, A brings an action upon the original debt, to which B pleaded specially the drawing and acceptance of a bill. Held, the above facts did not amount to the drawing of a bill, or sustam the defendant's plea. The traveler, having no authority to sign, consequently had none to make, the bill ; and unless adopted by A, it could not be regarded as drawn by him. (2) 13. To an action for goods sold and delivered the defendant pleaded, that as to £9, part of the debt, he, the defendant, ac- cepted a stamped bill for £'20 ; that there was no drawer to the bill; that he accepted it in part for the debt in question, and in part for the accommodation of the plainiiff; that he deliver- ed it to the plaintiff, who received it in payment of the debt; and that the bill was not due at the commencement of this suit. The plaintiff replied, that the bill still remained in his hands, not having been negotiated or paid, and without any drawer. Held, the plea was good, and the replication no answer to it. Whether the plea would be good on demurrer, qu.(3) (1) Clarkson v. Caritr, 3 Cow. 84 (2) Vyse v. Clarke, 6 C. & P. 403 (S) Simon v. Lloyd, 3 Dowl.P. C. S13. 148 THE PRICE OP GOODS SOLD, &c. [Chap. IV. 14. Where the vendee of goods agrees to pay for them on delivery, and gives a check, vvliich he has no reason to expect will be paid, and which is accordingly dishonored ; this is a fraud, and no property passes.(l) 15. By agreement, the vendee of goods was to pay for them in cash, but he obtained possession from the servant of the ven- dor by means of a check, which he represented as equivalent to money, but which was dishonored, he having overdrawn ma- ny months. On the day of sale, the vendee gave to a prior creditor a warrant of attorney for a judgment against himself, upon which the goods were seized in execution. Held, it seems, that the vendor might regain his goods even by stratagem, no property having passed ; but that it was a question for the jury, as determining this right, whether the vendee at the time of sale intended not to pay for them. (2) 16. Where a person has given a bill or check for a deposit at an auction sale, he may set up in defence to a suit thereupon the same facts upon which he might recover it back, if paid in cash.(3) 17. But where a vendor receives a check in payment and procures the money upon it, he is estopped to deny that the check was given in full satisfaction, and to make any further claim for the price. 18. A was indebted to B for goods, the price of which was not liquidated by agreement. A paid a part of the debt, and finally stated an account, drew a check for the balance, and sent it to B, who objected to the messenger that the balance was too small, but received the check and procured the money. In a suit brought by B several months afterwards, held, he was es- topped as to the amount of the goods, and could not maintain the action. The above proceeding was equivalent to an insi' mul computassent, or a compromise. The complaint made by the plaintiff to the messenger could have no effect, as it never was communicated to the defendant. In order to sustain any further claim, the check should have been rejected, or notice (1) Hawse V. Crowe, Ryan & M. 414. (2) Bristol V. Wilsmore, 1 B. & C. 514. 2 D. & R. 755. (3) Mills V. Oddy, 6 C. & P. 728. Chap. IV.] THE PRICE OF COOPS SOLD, &c. 149 given, that it was received only as part payment. A being con- cluded, B must be so also.fl) 19. Payment is sometimes made by other obligations than negotiable securities, as in the following cases, by mortgage or recognizance. To an action for the price of a chattel sold to the defendant, he pleaded, that upon the sale the vendor took a mortgage back, and upon forfeiture took possession of the ar- ticle for the purpose of disposing of it, and that he might have done so and retained the amount due. Held, a good plea. Taking possession of property mortgaged is a satisfaction of the debt, if the former is equal in value to the latter. If fairly sold, and for a sum less than the debt, an action lies for the balance. The case is like that of a sale by the mortgagee of land, under a power ; if the price equals the debt, this is there- by paid ; if less than the debt, an action lies for the balance ; if more, the surplus belongs to the mortgagor. A re-entry alone, without any sale, is payment, if the property is of suffi- cient value. In case of a chattel, the mortgagee gains an ab- solute title upon breach of condition. (2) 20. A applied to B to purchase good?, and offered in pay- ment a recognizance of debt entered into by C, who was at the time in doubtful credit, paying only such debts as he chose to, B hesitated to take the recognizance, but finally consented to do it, if C or his wife so desired. Thereupon A went away, and returned the next day, with the false statement that C's wife wished B to take the recognizance. A few days after- wards, B, discovering the fraud, wrote to A that he would have nothing to do with the recognizance, but that he (A) must come and pay for the goods or be sued ; but there was no proof how this letter was sent, or whether it ever reached A. In the course of the same month, A sent for a part of the property purchased, which had not been previously taken, but B refused to deliver it, and sent back word, which A received, that he had been deceived, and should bring a suit for the part already delivered, unless A came and paid for it. Eleven months after the sale, B brings an action for goods sold and delivered, send- (1) Davenport v. Wheeler, 7 Cow. 231. (2) Case v. Boughton, 11 Wend. 106. 150 THE PRICE OF GOODS SOLD, &,C. [Chap. IV ing back the recognizance by the officer who served the writ. Held, the action did not lie. It seems, the fact that the writ was made, and the suit therefore commenced before giving up the recognizance, would be a sufficient bar.(l) 21. Where a creditor purchases goods from his debtor, to be paid for in cash, he may still claim to offset his demand to a suit for the price of the goods. The prior debt is treated as a virtual payment of the price.(2) 22. A ordered goods from B, to be paid for in cash ; but in payment he returned to the agent of B an acceptance of B, which had been previously dishonored. The agent at first refused the acceptance, but afterwards took it to B, who retained it in his possession. B having become bankrupt, his assignees bring an action for the price of the goods against A. Held, the above facts were equivalent to payment, or a good ground for set-off, there being no fraud ; and that the action would not Jie.(3) 23. Where a bought and sold note states that payment is to be made by bill, generally, the vendor cannot be allowed to show that this means bi/ approved bill. And if this construc- tion is adopted, the expression must mean a bill to which there is no reasonable objection. Otherwise, the vendor might reject it according to his interest or caprice, while the vendee would be absolutely bound. (4) 24. By the terms of an auction sale, the vendee was to give approved indorsed notes at six months. It seems, the vendor may disapprove and reject the notes offered, unless he knows or has evidence furnished him, that they are good, and such as a prudent and discreet man would accept under the circum- stances of the case. (5) (1) Norton V. Young, 3 Greenl. 30. (2) Eland v. Karr, 1 E. 375. See Fair v. M'lver, 16 E. 130. <3) Mayer v. Nias, 8 Moore, 275. 1 Bing. 311. <4) Hodgson V. Davies, 2 Camp. 530. Guier v. Page, 4 S. p. 5. (3) Heron v. Granger, 5 E^p. 269. (4) Brooke v White, 1 N. R.330. Marshal! v. P..olc, 13 E. 98. (5) Lee v. Ri^don, 2 Maro spoke of " a substantial brick building" on the premises, and represented the property as estimated to rent at =£35. It was proved that the above plot could not be found, that there was no substantial brick building, and that the property would not rent for one half of .£35. Held, as a substantial part of the property did not exist or could not be found, and as the representations in regard to it were malajidc and greatly exaggerated ; the clause provid- ing for compensation did not apply, but the sale was void, and the vendee might maintain an action to recover his deposit. (1) 3. The particulars of an auction sale stated the property as held under the C estate upon three lives, and one of the condi- tions was, that a misdescription or misstatement should not viti- ate the sale, but merely be a ground for compensation. In an action to recover a deposit, it appeared that one life had drop- ped before the sale, and that the property was not held directly under the C estate. Held, the defendant could not prove, in bar of the action, a declaration made by the auctioneer, before the sale, that this life had dropped ; but he might prove, that the plaintiff before the sale had read the original lease. (2) 4. Auction sale of a public house. The particulars described the premises, as held for an unexpired term at .£55 rent, and, among other things, embracing a yard. By the conditions, the contract was to be completed on June 25th, and any error of description was to be a matter of compensation, to be settled by the award of arbitrators. In point of fact, the yard was not held under a lease, but by tenancy from year to year, at a farther rent of .£10. The vendor obtained a lease of the yard for the same term with the other premises, at the farther rent of .£8, dated June 23, but executed long after June 25. The yard was proved necessary to the enjoyment of the premises. Held, the provision for a compensation was inapplicable to the above vari- ation from the contract, and that it authorized the vendee to (1) Robinson v. Musgrove, 2 Moo. & R.92. Dykes v. Blake, 6 Scott, 320, ace. (2) Bradshaw v. Bennett, 5 C. & P. 48. Sect. IV.] WHAT AVOIDS an auction SAL'S. 169 rescind the sale, although there was no proof that the defect was known to the vendor.(l) 5. In an action against an auction purchaser for not complet- ing the sale, the printed conditions of sale cannot be contradict- ed by the verbal declarations of the auctioneer at the time, in order to disprove the charge of misrepresentation. 6. Thus, where the conditions were, that the property was " free from all incumbrances," when in fact there was a charge upon it of <£17 per annum, which the auctioneer declared, but not to the vendee individually; held no action would lie against the latter for not completing his purchase.(2) 7. The plaintiff brings an action for the price of certain growing crops sold to the defendant. The plaintiff purchased these crops at auction. The auctioneer sold, according to a printed paper, lot No. 6, being " ten acres of spring wheat," «Stc. Also lot No. 15, " the keep of George's field until old Michael- mas day next." There was a memorandum at the bottom of the paper, as follows — •" the keep of all the fields, «Si-c. will be sold with the crops, except George's field," The auctioneer made a verbal declaration, with respect to lot No. 6, that it was not spring wheat, and the keep was not to be sold. The lot was knocked down to the plaintiff, and his name written as the purchaser. The plaintiff then retired from the room with the defendant, and on his return gave notice that the defendant had purchased the lot, and the defendant, in presence of the plain- tiff, requested to have his name substituted for the plaintiff's which was accordingly done. In an action against the defend- ant for not completing his bargain with the plaintiff, held, the written memorandum could not be controlled by the verbal dec- larations of the auctioneer, and, as the former was not fulfilled, the action could not be sustained. (3) 8. The most common ground of objection to auction sales, is the circumstance of the vendor's secretly employing some one (1) Dobell V. Hutchinson, 5 Nov. & JVI. 251. 3 Ad. Si El. 356. (2) Gunnis v. Erhart, 1 H. Bl. 289. (Soo Powoll v. E linaiids, 12 E. 6. Slark v. Highgate, &.c. 5 Taun. 792.) (3) Shelion v. Levius, 2 Cionip. & J. 411. 22 170 SALES AT AUCTION. [Chap. VI. 10 bid oil liis own account, for the purpose of enhancing the price of the property. This is commonly called puffing. 9. The prevailing doctrine on this subject is, that a sale at auction is avoided by the owner's employing a bidder. The leading case in which this principle is established is the follow- ing, decided by Lord Mansfield.(l) 10. The owner of a horse, sold at auction, directed the auc- tioneer not to sell it under a certain sum. Held, no action could be maintained against the auctioneer for violating this di- rection, because it would be illegal to obey it. It would be oth- erwise, if the direction were not to put up the horse under a certain sum. In this leading and often controverted case, Ld. Mansfield remarked, upon the practice of employing bidders for the owner, that the frequency of such practice was no argument in its favor, for the same might be said of gaming, stock-jobbing and swindling. The auctioneer may bid for a third person, but not for the. owner. (2) 11. In another case, the same principle is thus stated. Where all the bidders at an auction, except the purchaser, bid for the vendor without notice, and the vendee is thereby induced to give for the property more than its value ; the sale is void in law and Equity. (3) 12. In another case, the same rule is stated with slight qual- ification. 13. Where the owner of property, sold at auction, employs only a single person (it seems) to bid for him, up to a certain specified sum ; this avoids the sale, unless it was publicly an- nounced at the time. If two persons are employed, the sale is certainly void. (4) 14. Upon this subject, Ld. Kenyon uses very strong language. He says " the whole transaction is bottomed in fraud — it is fraud from beginning to end." " The whole of Ld. Mansfield's rea- soning (in Bexwell v. Christie, Covvp. 395,) is founded on the { 1 ) Crowdcr v. Austin, 3 Biiig. 368. 6 T. R. 642 (2) Bexwell v. Christie, Cowp. 396. (3) Bramley v. Alt, 3 Ves. Jun. 624. (4) Wheeler v. Collier, M & M. 125 J Sect. IV.] WHAT AVOIDS AN AUCTION SALE. 171 noblest principles of morality and justice, and calculated to pre- serve honesty between man and man." He further remarks, that if this had been the first case, perhaps he should have hesi- tated ; but " Ld. Mansfield's comprehensive mind saw it in its true colors," &c.(l) 15. The plaintiff and B were appointed by the will of C, trus- tees to make sale of his lands. They were accordingly sold at auction after public notice. D, the counsel of the plaintiff, bid ^1750, and the defendant ^1751. D was a by-bidder, who declared that he did not want the land, and advised the defend- ant to purchase it. Held, if D was employed by the trustees as a by-bidder, and the defendant was ignorant of it before mak- ing the purchase, and if D bid in order to enhance the price for the benefit of the trustees, the sale was void. (2) 16. At an execution sale, the debtor employed two persons to bid up to close 82000. The defendant became the purchaser, but refused to take the properly, and it was sold again at his risk and at a loss of about 6400. In an action against the defend- ant to recover the amount of this loss, held, the sale was void. (But the jury found for the plaintiff 840.) (3) 17. Property was seized under an e.\tent by an agent of the crown, to whom a bid was reserved by the conditions of sale. A puffer was employed at the sale. On application by the Crown to enforce the contract, it was contended that the vendee could not object to the sale on this ground, because he did not come into Court toith clean hands, it being proved that he had collud- ed with the tenant who claimed the property, and had bid, not for the purpose of purchasing, but in order to obtain an abstract of title. Held, the employment of a puffer still avoided the sale. The plaintiff did not want the aid of Equity, but only that the rules of law should be applied to his case. The mis- conduct of the vendee did not preclude him from availjng him- self of the provisions of the law against puffing.(4) (1) Howard v. Cast'.e,6 T. R. 642. (2) Moncrieff V. GoWsboroiigh, 4 Har. & M'Hnri. 281. (3) Donaldson v. Mc'Roy, 1 Browne, 346. (4) Rex V. Marsh, 3 Younge & J. 331. 172 SALES AT AUCTION. [Chop. VI. 18. There are other cases, however, which do not recognize the rule above stated in its full extent. 19. In the case of Twining v. Morrice, Kenyon, M. R. saya, " I do not say the doctrine in Bexwdl v. Christie is wrong ; but every body knows that such persons are constantly employ- ed."(l) 20. A bill in Chancery alleged, that persons were employed to, and did bid for the owner, in order fraudulently to advance the price above the real value of the property ; but did not al- lege that there was no real bidder. The Ld. Chancellor re- marked, that Berwell v. Christie turned upon the fact that there was no real bidder, and that the purchaser refused instantly to complete the contract. It was a trap-auction. " The reason- ing goes large and does not convince one. It would reduce every thing to a Dutch auction, a bidding downwards. I feel vast difficulty to compass the reasoning, that one man does not follow his own judgment, because others bid," &c. The acts of parliament, which make certain exceptions from the auction tax, suppose that the owner may himself bid. They require on- ly a private notice to the auctioneer. The Ld. Chancellor goes on to speak of the doctrines of the civil law and the schools of philosophy upon this subject. He farther remarks, that it is always taken for granted, unless the contrary appears, that there is some person to bid for the vendor. And this practice is ben- eficial to the public. If it did not prevail, many articles would be sold, such as scarce and valuable books, which three or four persons only would divide among them, and obtain for much less than their real value. (2) 21. At an auction sale, a person bid privately for the vendor, to prevent a sacrifice. The vendor was assignee of a bankrupt. The vendee was not present, but a third person acted for him without previous authority, and the vendee afterwards ratified the purchase. The bid for the vendor immediately preceded that for the vendee. The former bidder was enjoined against exceeding the sum named, upon the ground that if he went be- (1) 2 Bro. 331. (2) Conolly v. Parsons, 3 Ves. jun. 625 n. Sect. IV.] WHAT AVOIDS AN AUCTION 8ALE. 173 yond this amount, he would be required to take the property. Under these circumstances, a specific performance was decreed against the vendee. Not being present at the sale, he could not have been influenced by competition to bid more than the value. He stood in the situation of an assignee of the purchaser, and in this view it must be a strong case of fraud to avail him against the vendor.(l) 22- In one case. Sir Wm. Grant questions Bezwell v. Chris- tie, and regards the opinion as too broad for the facts of the case. He further remarks, that Howard v. Castle proceeded upon the ground of fraud. There was no real bidder, and there were several bidders for the vendor. In ConoUy v. Parsons, (3 Ves. 625) Ld. Rosslyn doubts, whether there can be a fraud of this nature. Sir Wm. Grant is of opinion, that if bidders are employed, not in defence, to prevent an under-sale, but to take advantage of the eagerness of bidders, to screw up the price ; a Court of Equity would not justify the transaction. So also, where there are several bidders for the vendor.(2) 23. At an auction sale of land, a person bid for the vendor ^75 per acre, upon private notice to the auctioneer. After a contest with bona fide bidders, the property was sold for over ^101, and some days afterwards the vendee paid the duty. He was decreed to perform his contract, with costs.(3) 24. On an action of assumpsit for failure to complete the pur- chase of a horse, the defendant cannot under the general issue give evidence of an auction sale, and that the vendor employed puffers. There should be a special plea.(4) 25. It has been held in South Carolina, that the employment of a bidder for the vendor is not illegal, although no notice be given, and the price be thereby very much enhanced. Thus, at a sale of land there were bona fide bidders up to $18 or $20 per acre, after which the bidding was confined to the puffer and the defendant, who purchased the land at 844. The vendee (1) Smith V. Clarke, 12 Ves. jun. 477. (2) lb. (3) Bramley v. Alt, 3 Ves. jun. 620. (4) Icely V. Grew, 6 C &. P. 671. 174 SALES AT AUCTION. [Chap. VI. was a good judge of the land, lived in the neighborhood, and was acquainted with the premises, while the by-bidder enjoyed none of these advantages. The latter also communicated openly with the owner. The property was an old family seat, which was sold with reluctance, and merely for the purpose of effecting a division, and for which therefore the owner was jus- tified in securing a large price. Specific performance of the contract was decreed against the defendant, (1) 26. While the law, in favor of a vendee, avoids a sale on the ground of secret measures used to enhance the price, it equally aims to protect the vendor, by discountenancing any unfair at- tempt to obtain the thing sold for less than a fair price. 27. Certain brokers mutually agreed, before an auction sale, that only one of them should bid for each article sold, and that all the articles purchased should afterwards be sold among them at a fair price, and the difference between this and the auction price equally divided. Held, this was an indictable conspira- cy.(2) 28. At an auction sale of a barge upon execution, the exe- cution creditor stated publicly, that he built it for the execution debtor, who had never paid him. The creditor bid for the barge, and no one bid against him. The auctioneer declining to knock it down to him at the first bid, a friend of the creditor bid upon it, and the creditor then advanced one shilling, upon which the barge was knocked down to him, and he paid a de- posit, as part of the price. The article was worth .£150, and put up at .£50, and the creditor's first bid was c€52. The cre- ditor brings trover for the barge, the auctioneer having refused to deliver it, and afterwards re-sold it for one hundred guineas. Held, under the circumstances, the plaintiff gained no property in the barge, and a verdict in his favor was set aside by the Court.(3) 29. The owner of an execution, upon which property was to be sold, agreed with other persons to prevent the usual compe- tition at sales of this description, in order to leave a balance (1) Jenkins v. Hogg, 2 Const. S. C. 821. (2) Levi V.Levi, 6 Car. & P. 239. 3 John. Cas. 29. 13 John. 112. 6. 194. 8. 444. (3) Fuller v. Abrahams, 6 Moore, 316. Sect. IV.] WHAT AVOIDS AN AUCTION SALE. 175 due upon the execution, and that he might thus seize other lands. Tlie sale was consequently made for a mere nominal price. Held, it was void.(l) 80, At an auction sale, the agent of the vendor bid for the vendee. He was known to be the vendor's agent, began to bid early, and was the only real bidder, except the purchaser. Held , a bill for specific performance could not be sustained by the vendee. The circumstance above mentioned chilled the sale, and prevented the vendor from obtaining so high a price as he otherwise would. Nor did it make any difference, that the per- sons in attendance regarded the agent as doing what the law would not allow ; because, though illegal, the practice was known to be a common one. But, on the other hand, the Court refused to set aside the contract, upon a cross bill by the ven- dor, leaving the purchaser to his action at law. (2) (1) Troup V. Wood, 4 John. Cha. 228. (2) Twining v, Morrice, 2 Bro.326, CHAPTER VII LIEN. 1. General principle ; distinction between sales of chattels and of land ; lien depends on possession ; when lost, notwith- standing possession ; whether the right continues against a second purchaser. 21. Effect of part-delivery upon the right of lien. 24. Sale on credit. 27. Waiver of a lien. 29. Lien between part-owners. 1. When a contract of sale is completed by any of the methods enumerated in the first chapter, the vendee acquires an absolute right of property, and a right of possession also, sub- ject only to the lien of the vendor for the price, if this has not been paid. If the vendee tender the price, and the vendor re- fuse it, the former may then seize the goods, or have an action against the latter for detaining them. It has been very justly observed, in relation to the acts necessary to constitute a trans- fer of chattels, that what is sufficient as an acceptance, to take the case out of the Statute of Frauds, is not always sufficient to constitute a delivery of the possession. And what is sufficient to vest the property in the vendee, is not always sufficient to deprive the vendor of his lien for the price. (1)* (1) Long on Sales, (Am. Ed.) 266. * A lien IS said to be neither juc- in re nor juf ad rem, but a aimplo right of re- Chap. VII.] LIEN. ' 177 2. The vendor of goods has no lien upon them for the price, corresponding (o that of the vendor of land. The lien of the latter, is a doctrine not found in the ancient common law, but belonging to equity, and transplanted from the civil law. There is no case, in law or equity, either in Great Britain or the Unit- ed States, which holds that after a sale of goods and absolute de- livery to the vendee in person, the vendor can reclaim them for non-payment of the price.(l) 3. The right of lien cannot exist without possession, notwith- standing an equity in favor of the party claiming it. It has been doubted, whether a mere constructive delivery is sufficient to destroy this right ; and perhaps it is too much to say, that in every possible case it would. But, in general, it is immaterial, whether the delivery be actual or constructive. And a party having a lien does not lose it by parting with the possession for a particular purpose, the delivery must be with notice of such lien, and of an intention to retain it.(2) 4. Where there has been a delivery at the time of sale, and security given for the price, but with an agreement that the vendor shall have a claim upon the property till actual payment; his lien is lost, and does not revive by his coming again into possession under the administrator of the vendee. (1 ) Lupin V. Marie, 6 Wend. 77. (2) Parks v. Hall, 2 Pick. 212. Clemson v. Davidson, 5, Binn. 398. 8 Pick. 73. Heywood v. Waring, 4 Cafflp. 291. 3 Price, 547. I Glyn. & J. 116. Hall v. Jackson, 20 Pick. 198. tainer. The right depends on contract, express or implied. And no such contract can be implied, where a parly acts adversely to those fur whom he makes a payment. Meany v. Head, 1 Mas. 319 Allen v. Ogdcn, 1 Wash. 174. See 2 Camp. 679. 5 Lit. 98. Lit. Sel. Cas. 280. 2 Meri. 404. 4 Taun. 807. 5 M. & S 180. Lien'ia a tie, hold or security upon things which a party has in custody, till payment of his debt. There can be no lien, where the thing is annihilated, or possession given up voluntarily and without fraud, or where articles are furnished under a particular agree- ment. So a party cannot claim a lien against ihe government, because not subject to suit, nor strictly a debtor. Thus an inn-keeper cannot detain horses used in carry- ing the mail. U. S. v. Barney, 2 Hall's Law Jour. 128. A lien is a personal right, and not assignable. DauUigny v. Duval, 5 T. R. 604. It is the same at law and in Equity. Oxenham v. Esdail.', 2 Y. & Jer. 493. 2 Mer. 404. It cannot arise from a wrongful act. 2 Selw. 1358. 1 Camp. 12. 23 178 I'EN. [Chap. VII. 5. It was agreed between the vendor and vendee of a coach, that the former should have a claim upon it, if not duly paid for. Four bills of exchange on time were given for the price, and the coach was delivered. The vendee having died, and the bills being unpaid, his administrator sent the coach to the ven- dor to be repaired, and the latter refused to re-deliver it with- out payment. The administrator brings trover against him. Held, the agreement amounted to a mere license from the ven- dee to the vendor, which was personal to the former, and did not bind his representative. Hypothecation is unknown in England. Had the coach been taken from the vendee himself, the contract would have been a bar to any action by him.(l)* 6. A distinction is to be observed, however, between the mere lien of a vendor, which is destroyed by delivery, and a condition of payment annexed to the sale, which may continue in force, even against subsequent purchasers from the vendee, although recognized by the parties under the name of a lien. It is said, the doctrine that the lien of a vendor until payment depends on possession, is applicable only to absolute sales.(2) 7. A sold to B a yoke of oxen for a certain price, to be paid at a future time ; A to hold them till payment. A allowed the oxen to go into possession of B, who sold to C, and C to D, for a valuable consideration, and without notice of the lien of A. Held, this lien still continued in force, and that A might maintain trover against D, even before the period of credit ex- pired. (3) (See Conditional Sale and Conditional Delivery.) 8. But a somewhat different doctrine seems to be recognized by another case in the same state. A authorized B, as his agent, to sell logs belonging to A; the logs in every event to (1) See Harrison's Digest. (2) Barrett v. Pritchard/a Pick. 515. (3) Tibbetts^v. Towle, SFairf. 341. * Where a policy-broker, having a general lien on the^ policy of insurance, parted with it, but afterwards came into possession of it again, held, his lien was thereby revived. Whitehead v. Vaughn Co. Bt. Laws, 442, Long, 263. See 1 Star. 408. One having a lien upon property, delivered it to a carrier on account and at the risk of his principal, though this was unknown to the carrier. Held, he could not stop in transitu and obtain a re-delivery to him, under a bill of lading from the carrier giv- en during the voyage. Sweet v. Pyni, 1 E. 4. Chap. VII.] LIEN. 179 remain A's property till the price should be paid or amply se- cured. B sold the logs, and allowed the vendee to take pos- session without payment ; the latter agreeing that the lien of A should continue till payment be made. Held, this sale was not binding upon A, because it varied from the authority given to B, inasmuch as a lien without possession constituted at best an imperfect security, and probably none at all.(l) 9. The following cases, though not all strictly relating to sales of personal propertij , may properly be cited as bearing upon the point of possession, above considered. 10. In the autumn of 1825, C contracted with A and B, that they should cut all the pine timber on his land, fit for boards, which any prudent person would cut ; carry one quarter part of the logs to D, for C's share, and the other three quarters to the same place, to be sawed and delivered to C, who should remain own- er of the whole, till satisfied that his quarter was of the average quality of the whole, and till paid his entire debt by A and B. If they should fail to take the timber the next winter and spring, they were to pay the value of a quarter of what was left ; the timber to remain pledged for this part also. A and B did not cut the timber till 1827. Before reaching the place appointed, they sold it to E, being largely in debt to C at the time, C brings replevin. Held, C's lieu embraced logs cut after the winter and out of the bounds mentioned ; that A and B were special bailees, and had no power to sell, and the sale put an end to their title.(2) 11. A sent a ship for repairs to the yard of B, B agreeing to find timber therefor, which he did, to the amount of =£200. The ship being advertised for sale, B forbade the sale until he should be paid. The agent of A assented to this requisition, promised payment from the purchase-money of the vessel, and gave au- thority to the auctioneer accordingly. C purchased the ship ; B immediately demanded payment from him ; and he agreed to pay the auctioneer by a certain day. Held, until payment, he could not have trover for the vessel. (3) 12. Lease of land from A to B. A to have a hold or lien on (1) Cowan V. Adams, 1 Fairf. 374. (2) Emerson v. Fisk, 6 Greenl. 200. (3) Norris v. Williams, 1 C. & M. 842. 180 LIEN. [Chap. VII. the crops till payment of the rent. Held, this agreement was merely executory, and gave A no general or qualified property in the crops, till raised and delivered to him.(l)* 13. A had two pipes of wine in a bonded warehouse, in the name of B, who had secured the duties. A sold to C, giving him a delivery order, and C agreeing to pay the duties. B paid them, carried the wine to his cellar, and was repaid by A. C never requested a transfer to his name, but took one pipe, and paid rent to B. Held, B, by request of A, might retain the other for the duties. (2) 14. The lien of the vendor will cease, notwithstanding his actual possession, where he neglects to take the step for obtain- ing payment, which was provided for in the contract, omits to claim a lien in reasonable time, and delivers a part of the pro- perty. 15. A, at Bristol, sold goods to B, to be paid for by B's ac- ceptance of A's draft. The goods were weighed and an in- voice furnished, but they were left in possession of A. A neg- lected to draw a bill. B sold portions of the goods, and gave orders upon A to the purchasers, upon which A delivered them the quantities sold. Afterwards, B sold a specific portion to C in London, receiving payment therefor, and giving C an order upon A to deliver the goods, which C transmitted to A. On the fourth day from A's receiving the order, B became bank- rupt. A then first refused to deliver to C, claiming a lien upon (1) Brainard v. Burton, 3 Versa. 97. (2) Winks V. Hassall, 9 B. & C. 372. * Agreement between A, the owner of a saw- mill, and B, that A should have a lien on all boards sawed for B, for the charges of sawing ; the boards to be removed a short distance from the mill, but the lien to hold till payment. Held, the lien was as effectual as if A had actual possession. Wheeler v.M'Farland, 10 Wend. 318. See Mount V. Williams, 11 Wend. 77. Sumner v. Hamlet, 12 Pick. 76. A purchased floods of B, which by consent remained in B's store. While there, A borrowed mo- ney of C, giving him an order on B for the goods, which were removed to C's store, but afterwards, by A's order, carried back to B's store, where they were attached by B and other creditors of A. C brings an action against the officer, and recovers judgment, the facts showing a lien in his favor upon the goods. Jones v. Baldwin, 12 Pick. 316. As to the maritime lien upon a ship, for supplies furnished her, which does not depend at all upon possession, see 7 Cow. 670. 4 ^Mass. 92. 11.72. 3 C ranch, 140. Chap. VII.] LIEN. 181 the goods for the price. Held, C might maintain trover against A; that A was bound to give immediate notice of his refusal to deliver the goods ; and (it seems) that after neglecting to draw a bill, delivering samples to sell by, and answering other orders, there would be no lien, even though he had given im- mediate notice. After the sale, the warehouse of A became that of B.(l) IG. But where A agreed to sell goods to B, who paid a sum of money to bind the bargain ; and the goods were packed in cloths furnished by B, and deposited in a building of A's til! B should send for them, A declaring at the same time that they should not be carried away without payment ; held, though the property in the goods passed to B, A still retained a lien for the price. (2) 17. So where constructive acts of delivery have taken place, but not the particular act which usage has established for trans- ferring a title, the vendor may still retain a lien even against a purchaser from the vendee.* 18. A sold to B a quantity of rum, lying in the warehouse of C at L, and delivered him a marked and numbered invoice. B accepted A's draft for the price, and sold and received pay- ment for the rum from D. There was a usage at L, for the vendor to give the vendee delivery-orders, addressed to the warehouseman, who accepted such orders. But no order was given in the present case by A to B, except for a small portion of the rum, which B received. By permission of B, but with- out the knowledge of A, D gauged and coopered the casks in the warehouse, and marked them with his initials. B's accep- tance of the draft having been dishonored, held, under the cir- cumstances, A had a lien on the rum for the price. (3) (1) Green v. Haythorne, 1 Star. 447. (2) Goodall V. Skelton, 2 H- Bl. 316. (1 Cr. & M. 333. 5 N. & Man.' 608.) (3) DLxon V. Yates, 2 Nev. & M. 177. * Supplies furnished to West India estates have been held to give a lien upon the produce of such estates, by virtue of a usage of the parties. Simond v. Hibberl, 1 Russ. & My. 719. 18- LIEN. [Chap VII. 19. Ill Maine it is held, that the usual contract lien upon timber, for the price o^ stumpagc, attaches to the proceeds in the hands of a bona fide purchaser for valuable consideration, hav- ing notice of the lien. (I) 20. Where a vendee assigns the goods, not in the usual course of trade, but by way of indemnity against liabilities incurred for him ; the vendor has the same lien against the assignee, which he would have against the vendee himself(2) 21. The effect of Vi part-delivery upon the vendor's right of lien has been already incidentally noticed ;* but the books fur- nish some cases, which have been decided chiefly or exclusively upon this particular point. It seems to be now settled, though for- merly somewhatdoubtful, that the seller's allowing the purchaser to take away a part of the goods without payment is not an en- tire waiver of the lien, if there be an intention to retain the rest. But it is otherwise, where delivery of a part of the goods is made in the progress of, or with a view to, the delivery of the whole. (3)t 22. The plaintiff sold to one A a raft of lumber, to be deliv- ered at Albany, and paid for on delivery. A agreed with the defendant to deliver the lumber to him, to be sold on commis- sion. The plaintiff, having brought the raft to Albany, fasten- ed it to the dock of the defendant, and informed the workmen employed there that it had been purchased by A. The men thereupon began to pile the lumber upon the dock. The plain- tiff went away, and, upon his return, some hours afterwards, found nearly the whole quantity had been piled. Having learn- ed, while absent, that A had absconded, he forbade the piling of any more, upon this ground. During the piling, the defend- ant advanced money and goods to A on account of the lumber. (1) Warren v. Bartlett, Maine, Law Repor. May, 1839, p. 14. (2) Lupin V. Marie, 6 Wend. 77. (3) Long on_Sales, (Am. EJ.) 264. * Sue Part-Delivery. t Part-payment of ihe price destroys the vendor's lien, only pro ersonaI confidence, and which the assignee could not execute. Tliere was no assignment of tlie bill of lading, except to enable the factor to receive the goods, and carry them to the account of the principal. The plaintitV did all in his power to slop the goods, and enough to sustain this action.(l) 7S. The defendant, a commission agent, purchased goods of the plainiiiVs at Manchester for one A, informing the ]>laintills that they were to be sent to I.isbon. A had no warehouse at Manchester, ami the goods were delivered to the defendant, to be forwartleil as above-mentioned. A having failed, held, the plaintilfs might stop the goods in the hands of the defendant, because they were in (runsitu till their arrival at Lisbon. (2) 70. The plaintitV claimed certain goods, as the seller of them, from the defendants, to whom the goods were delivered to be forwarded to the defendants' correspondent, A, of Lisle. Upon the insolvency of A, the defendant witlulrew the goods from the hands of B of Ostend, to whom they had sent them in a course of conveyance towards and for A at Lisle. The defendants in- sisted, as against the plaintitls, that upon the delivery of the gooils to them for 15, the property was vested in B, in whose right, but for their own benefit ^in account with B, they claim- ed todetain the gooils. Held, the transitus was not at an end, anil the plaintitV recovered (li) 80. It is said, that a bill of lading indorsed, and remaining in the hands of the original consignee, cannot interfere with the vendor's right to stop the goods before they arris e into the possession or under the control of the consignee, if he become bankrupt or insolvent. (4) Upon this point, however, there (I) I'cKloii V. 'rUoiiipson, 6 M. &i S. al'.l. (i) I'oalos V. Knilum, 6 U. & ('. 4^.\ (3) Slokfd ui Buliiliii^k v. liiglis,) 3 E. ■iSl- ^4) Tuckiti' V, Iluiupluov, 4 Itii^,. ^Zl. 212 STOPPAGE IN TRANSITU. [Chap. VIII. seems to be some conflict of authorities, the decision in each case being modifted by its own peculiar circumstances.(l) 81. Where goods are shipped upon credit in a foreign port, in a vessel belopging to the consignee, and the master signs a bill of lading to deliver them to the consignee; the transitus is at an end, and there is no right of stoppage. (2)* 82. So a vendor may regain possession of the goods sold, by taking a bill of lading from the captain to whom they have been delivered. Thus, goods purchased by A from B were deliver- ed, on board a ship chartered by A, in Russia. By a Russian ordinance, where goods had been delivered in this way, the ven- dor raio-ht regain possession of them by legal process upon the bankruptcy of the vendee, and retain them till payment of the price. B learning that A was insolvent, applied to the captain to sign bills of lading to his (B'sJ order, which was done, with- out issuing any legal process. Held, this proceeding was a sub- stantial compliance with the Russian law, and that the captain was bound to deliver the goods in England to tlie order of B, not to the assignees of A. (3) 83. A consignor of goods advised his principal of his inten- tion to make a consignment, put them on board a general ship, and delivered a bill of lading to the master, to be sent to tlic consignee. Held, the property hereby vested in the latter, so that he had no right to countermand the goods, though the ves- sel had not left her port of lading. (4) 84. Goods were sold free on board the vessel. Upon ship- ment, the agent of the vendor tendered a receipt, which the Tiiate, in the captain's absence, refused to sign, and the next day (1) Sec Waller v. Ross, 2 Wasli. C. C. 283. 1 Pet. 386. (2) Boiiii V. Hiiffnas'e, 1 Havvic, 9. (Huston and Smith, Js. dissented.) (3) Inglis V. Asherwood, 1 E. 515. (^ Sammemili v. Elder, 1 Bin. 106. * It was remarked in this case, that the master was a special agent of the vendee, delivery to whom was such to the latter ; not a carrier or mid.lle-man. He was under the control of the vendee, and might bo dismissed by him. The vendor had no control over the (loods after delivery to the master, and no connexion with him. On the other hand, the master could have no claim against the vendor, and in this respect differed 'rom a carrier, who may claun freight from the vendor, if the vendee fails, or refusci to receive the good.-. The circumstances showed an actual deliver}'. Chap. VIII.] STOPPAGE IN TRANSITU. 213 signed a bill of lading to the vendee. Held, the right of stop- ping in transitu continued. (1) 85. A quantity of flour, purchased by the plaintiff was load- ed in a general ship, and the master signed three bills of lad- ing for delivery to the plaintiff or his assigns, but the bill ex- pressed that the shipment was on account and at the risk of the shippers. A day or two after the shipment, and before the in- voice, bill of lading, or letter of advice was sent to the con- signee, the shipper, finding himself on the verge of insolvency, re-sold the flour to the defendant, of whom he purchased it on credit. The shipper was indebted to the consignee, and in- tended that the latter should apply the net proceeds of the pro- perty on account ; but this intention was never communicat- ed to him, nor the consignment made at his request. Held, the vendee had acquired no vested interest in the flour, and the owner might countermand it at any time before actual delivery to the plaintiff.(2) 86. After assignment of the bill of lading for valuable con- sideration, the vendor's right of stoppage is at an end ; such as- signment being equivalent to a transfer of the goods them- selves. (3)* 87. Indorsement and delivery of a bill of lading have the ef- fect of passing the goods to the indorsee, if done bonajidc, for consideration, and without collusion ; althougli the indorsee know that the original vendor has received payment only in fu- ( 1 ) Buck V. Halfield.. 5 B. & A. 132. (2) Walter v. Ross, 2 Wash. C. C. 283. (3) Lickbairow v. Ma^on, 4 Bro.P. C. 57. Riddle v. Varnutn, 20 Pick. 280. Warren V. Sproul, 2 Marsh. 535. 6 T. R. 367. 6. 131. 2. 63. 3H. B1.211. * A bill of lading given before the goods are put on board is fraudulent, and even a bona fide indorsee of itgains no title to the property. Osey v. Gardner, Hull, 405. So, indorsement of a bill of laduig without consideration passes no title lo the goods, Warin 34 266 REsciNriNG OF SALES. [Chap. X. ter, and about 9 o'clock P. M. showed it to A, who said he was ready to receive back the goods On that and the next day, the goods were attached as B's. Having demanded them from the defendant, A brings trover against him. Held, the sale was rescinded, and the action would lie.(l)* 14. A shipped goods from Newcastle to London to the order of B. Before arrival of the goods, B sent word to A that he was in failing circumstances, and would not claim the property when it should arrive. A replied, without particularly mention- ing the goods, ''if I find you an honest man, you shall have every indulgence from me ;" and immediately proceeded to London, and applied for the goods, tendering the freight and charges, at the wharf of C, where they had arrived, being the usual landing for B's goods^ and at which they usually re- mained till called fcH*. C refused to deliver the goods,, except on condition of A's paying him a general balance due from B for p^t wharfage. Held, these facts showed a rescinding of Ihfr contract before the goods reached their destination, and, as there was no proof of their not coming into the hands of C as A's property, C had no right to retain them against A, although by virtue of a usage he might have done it against B. C's only claim must be under B, but A's title was paramount to B's. C had a bare authority to receive the goods, dated before B was suspected of insolvency, and which could not avail against A's subsequent claim. (2) 15. Where a vendor receives property in part payment, with the agreement, that, unless the balance be paid, he may retain such property and also receive back the thing sold ; a subse- quent promise to restore the property is not conclusive against him of a rescinding of the bargain. 16. A purchased a horse from B, and delivered him a note (1) Saltev. Field, ST. R. 211. See 6 T. R. 80. Cowp, 123. 2E. 117 (2) Richardson v. Goss, 3 B. & P. 119. * Another creditor of B, receiving the same information given to A, declined taking back the goods sold, under the belief that C had no aiiihority to return lliem ; and at- tached them in the packer's hands. Held, he thereby affirmed the sale, and could not claim the goods. Smith v. Field, 5 T. R. 402. Sect. I.] RESCINDINU BY MUTUAL AGREEMENT, &C. 267 signed by C in part payment. It was agreed between the par- ties to the sale, that, unless A should within a certain time give security for the balance, he should restore the horse and B should become owner of the note. A did not give such secu- rity, but returned the horse and demanded the note. B declin- ed delivering up the note at that time, but afterwards said that A might have it if he would come for it, but that he (B) should sue him for damages. A again demanded the note, B refused to give it up, and A brings assumpsit for the amount of it. Held, by the above contract, the note had become the property of B ; that the subsequent agreement to re-deliver was without consideration, and therefore void as a promise, and not conclu- sive evidence of a rescinding of the bargain. (1)* 17. A sale may be rescinded in part, or in relation to some only of its terms ; and such rescinding need not be in writing, though the original agreement is a written one. 18. A agreed in writing to purchase from B three hundred hogs of bacon, to be delivered at certain times and in speci- 6ed quantities. A part having been delivered, A requested B not to press the delivery of the rest, the sale being then dull ; to which B assented. Held, this was only a parol dispensation of performance in regard to the times of delivery, and there- fore not invalid, either by the statute of frauds, or the rule ex- cluding parol evidence to control written instruments ; and therefore, that A was liable for not accepting the remainder of the property in a reasonable lime after the above parol con- tract. (2) 19. So, where there is an agreement for the sale of goods, to be manufactured, and alterations or additions are afterwards provided for, it is not necessary that the latter should be sepa- rately agreed upon in writing. But, under some circumstan- ^1) Larabee v. Ovit, 4 Verm. 45. (2) Cuffv, Penn, 1 M. & S.21. * It was furthei- held, that the contract was not void as a. gambling transaction. There was no deposit of the note ; subject to any fuluie casualty or event. A had possession of the hoise, and might either use or sell him, while B, bein^ out of posses- sion, could do neither. Hence tlie contract was a fair one. 268 RESCINDING OF SALES. [Chap. X. ces, flie same acts are necessary to rescind, as to make, the bar- gain. Thus it has been held, that a re-exchange of personal property has all the qualities of a sale, to which payment or delivery is an essential circumstance. Without this, the trans- action is a mere executory agreement and passes no proper- ty-(i) 20. A and B made an exchange of horses, the former re- ceiving the horse of the latter. The same day, B, thinking himself cheated in the bargain, made complaint to A according- ly, and they thereupon agreed to rescind, upon B's giving A three bushels of wheat ; but there was no re-delivery, and A sold B's horse to C. B was previously informed where posses- sion of his horse was to be had, but made no attempt to obtain possession or to perform his own agreement for several • weeks ; whereas C took the horse a day or two after the bargain was rescinded. B, having tendered the wheat and demanded his horse from C, brings replevin against him. Held, the action did not lie. The re-exchange was not effectual, it seems, even between the parties themselves. It was not to put them in statu quo, because the wheat made a new ingredient in the contract. Hence delivery, at least on one side, was necessary. (2) Section H. — rescinding by the vendor. 1. It is said, that if a buyer does not carry away the goods in reasonable time, the seller may charge him for storage, or bring an action against him for not removing them, if he is thereby injured ; but that he cannot on this ground put an end to the contract and re-sell the goods to others,(3) But, in case of a sale in a market or shop, where it is unusual to give credit ; if no credit be given nor delivery made, and the vendee go away without paying ; the vendor may rescind the sale, and sell the (1) Hi.adly V. Maclaine, 4 M. & Scott, 340. i'i) Hazard v. Hamlin, 5 Watts, 201, (3) Gieaves v. Aslilm, 3 Camp 426. Sect, II. j RESCINDING BY THE VENDOR. 269 goods anew. And it is further held, that if the contract is com- pleted, but the vendee refuses to take and pay for the goods, the vendor may re-sell them, and c;ill upon the other to make up the loss thereby sustained. (1) 2. In case of the sale of goods by a broker in London, to be paid for by a bill of exchange ; the vendor, if he doubts the sol- vency of the vendee, may annul the contract in reasonable time ; that is, so soon as he can inquire into the vendee's circumstan- ces. Five days were held to be an unreasonvible delay. The question turned upon usage. (2) 3. A having agreed to deliver goods to B, B afterwards made a composition with his creditors. Held, a sufficient defence to an action for non-delivery, if the plaintiff, B, was in such a sit- uation that he would be unable to pay. (3) , 4. If a vendor, in case of fraud, after full knowledge of ma- terial facts, affirms the sale, he cannot afterwards disaffirm and avoid it. Otherwise, if he affirms it before discovery of the fraud, or of its full e.xtent and character. The fact of his bring- ing suits upon other and similar contracts is no estoppel. The question is for the jury. (4) 5. There is no case, where one party can rescind a sale so as to divest the property from the other, except where he discovers fraud in the agreement, and can restore what he has received in as good plight as it was originally.(5) 6. A vendor may rescind the sale for fraud, though the rep- resentations were made at a time previous to such sale, if it was founded upon this inducement. The case is diffijrent from that of a warranty, which must make part of the contract of sale.(G)* (1) Long, 241. Brod. Sup. to Stair, 853—7. Maclean v. Dunn, 1 M. & P. 761. (2) Hodgson v. Davies, 2 Camp. 530 (3) Reader v. Knatchbull, 5 T. R. 218 u, (4) Mackinley v. McGregor, 3 Wliart. 369, (5) Allen v. EJgerton, 3 Verm. 445. (6) Seavor v. Dingley, 4 Greenl, 306. * So, where a vendor brings an action upon the vendee's bond given for the price, the defendant may offer evidence of the plaintiff's oral declarations prior lo tlie writ- ten agreement, for the purpose of showing fraud. It would be otherwise with respect 270 RESCINDING OF SALES. fChap. X. 7. It is said, that where goods are obtained by fraud, the ven- dor may treat the sale as a nullity, and reclaim them, though the term of credit has not expired ; and even from a hona fide second purchaser without notice of the fraud. (1) (But see s. 10. See also chap. XI. s. 1.) 8. A vendor, after delivery, cannot rescind the sale on the ground of fraud, without proving deceptive assertions and false representations fraudulently made, to induce him to part with the property. The insolvency of the vendee, and immediate li- ability of the goods to attachment, though known to him and concealed from the vendor, furnish no sufficient cause to re- scind. It seems, there must be an indictable fraud, or at least sufficient foundation for the action of deceit, and for the recov- ery of damages, in case the vendor should not rescind. It is certain that there must be all the evidence of fraud, which would be necessary to sustain an action against any third person, who had induced the vendor to give credit to the vendee. (2) 9. Where goods are obtained by fraudulent pretences, the vendee sells them to one having notice of the fraud, and the ven- dor replevies them from him ; it is no defence to this suit, that the second purchaser has been summoned as trustee of the first, in an action still pending : because, if the plaintiff in replevin prevails, the party summoned as trustee may disclose the judg- ment against him, as a bar to his liability in the trustee pro- cess. (3) 10. Where goods are obtained by means of fraudulent repre- sentations of the vendee, and afterwards attached by a creditor of the latter, whose claim accrued after the sale; the vendor cannot maintain replevin against the attaching officer. If apart of the debt was incurred before, and a part after the sale, the attachment shall prevail over the vendor's claim, only to the (1) Seaver v. Dingley, 4 Greenl. 306. (2) Gross V. Peters, 1 Greenl. 378. (3) Seaver v. Dingley, 4 Green]. 306. to warranty. Such declarations are immaterial, tinless relied on by the vendee. But he is presumed to have relied on tliein, if the contrary be not shown. Ilolbrook v. Burt, 22 Pick. 546. Sect. II.] RESCINDING BY THE VENDOR. 271 amount of the latter portion, and the costs. But, as the proper- ty is indivisible, the attachment is a bar to the replevin suit, for the tchole ; and, if the officer afterwards sells more than enough of the property, to satisfy that portion of the debt incurred after the sale, the plaintiff will have another remedy.(l) 11. In case of an exchange between A and B, if A elects to rescind, upon the ground of fraud on the part of B, he cannot maintain an action, merely by notifying B to come and receive back his goods ; but must actually return them. (2) 12. In case of sale, with the privilege, allowed to the vendor, of rescinding within a certain time, if he does not rescind with- in that time, the sale is absolute. Thus, A mortgaged certain personal property to B, but retained possession of it, and after- wards made a second sale, for valuable consideration, accompa- nied by delivery, to C, who was ignorant of the mortgage. It was agreed that C should make payment, a part in six, the rest in nine months ; and, if he should fail in making the first pay- ment, when due, A was to have the right of taking back the pro- perty. After ten months, C died insolvent, and A, without per- mission from any one, took possession of the goods, and D, the- defendant, a constable, afterwards seized them under a process against A. Held, B could not maintain trespass against D.(3) 13. Besides the right of rescinding the contract, the vendor may under some circumstances resume the ownership of the property sold, not under his own former title, but as agent for the vendee. This principle has been stated as follows. 14. After the property in goods sold has vested in the vendee by virtue of the contract and part-delivery, if he refuses to re- ceive the remainder upon their being tendered, with notice that the vendor intends to sell them, in case of his default, and hold him responsible for the deficiency ; the vendor has a right to abandon the property, or to dispose of it bona fide, as agent of the vendee, to the best advantage, by a sale at auction, and to- call upon the vendee for the amount of difference betwfeen the (1) Gilbert v. Hudson, 4 Greenl. 345. (2) Norlon v. Young, 3 Greenl. 30. Rutter v. Blake, 2 Har. & J. 353. Ellis v. Hamlen, 3 Taun. 52. Cash v. Giles, 3 C. & P. 407. Okell v. Smith, 1 Stark. 107. (3) Patten v. Smith, 5 Conn. 196. 272 RESCINDING OF SALES. [Chap. X. proceeds of sale and llic price stipulated in the contract. The vendor becomes agent or trustee of the vendee, for managing the property ; and must necessarily either abandon or sell it. The case is like that of abandonn)ent of a vessel insured, which the insurer refuses to accept. The party in possession then be- comes agent for the other, and by exercising the right to sell docs not waive any claim upon the contract.(l) 1.5. The vendor's requesting the vendee to sell the goods on his (the vendor's) account, is a rescinding of the sale, and bars a suit for the price. 16. The vendee of goods refusing 10 accept them, the vendor requested him to sell them on his (the vendor's) account ; to which the vendee assented, if he should be able to do it. Not having sold the goods, the vendor sues him for the price. Held, the above request was in law a waiver of the sale, and it was not to be left to the jury to inquire, whether the request was made under an ignorance of the law, and an impression that the plaintiff's remedy was gone. (2) 17. Where a vendee desires to rescind the sale, but the ven- dor refuses to do it, and sues for the price ; this is conclusive against his right to bring trover afterwards for the goods. 18. A vendor of goods sued for the price of them, in the sheriff's court, by attachment, but the proceedings were stayed by injunction from Chancery. The vendee had previously de- sired to rescind the sale, but the vendor would not consent to do it, and, after notice of the vendee's bankruptcy, claimed the price. The vendor then brings (rover. Held, the action would not lie. The only question was, whether the sale had been re- scinded, and the facts conclusively showed it had not. (3) 19. After receiving a part of the consideration without ob- jection, the vendor cannot rescind without some default in the vendee. 20. A contracted with B to work in a factory, in considera- tion of which B sold to him certain property. The contract (1) Sands v. Taylor, 5 .lohn. 395. <2) Gomciy v. Bond, 3 M. & S.378. (3) Smith V. Fic-l.l, 5 T. R. 102, Sect. II.] UF.SCINDING BY THE VENDOR. 273 continued to run, and the stipulated labor was performed by A, for several weeks. Held, B could not, after this, rescind the bar- gain and divest the property from A, more especially if the cir- cumstances would not allow his being put in statu qiio.{l) 21. In connexion with the right of a vendor to rescind the sale, may be considered the question, what circumstances will justify non-delivery of the goods. 22. The vendor of goods contracted to ship them at St. Pe- tersburg on a certain day in particular vessels. The goods, while on board of lighters which were taking them to the ships, were seized by the Russian government, and the ships cut their cables and put to sea, to avoid an embargo. Held, these facts were no defence to an action for not delivering the goods.(2) 23. A contract was made in London, for the sale of tallow from a certain ship on her arrival, to be taken from the king's landing-scale; and, in case the property did not arrive on or be- fore a given day, the contract to be void. The vessel contain- ing the tallow was wrecked on the coast of Scotland, but the cargo was saved, and might have been forwarded by the appoint- ed day; but the vendor disposed of it at the place where the shipwreck took place. The vendee did not offer indemnity for bringing the tallow to London. Held, he could not maintain aa action for its non-delivery.(3j Section III. — rescinding by the vendets. 1. Where one sells a different interest from that wnich he pretends, especially if the contract is founded in ignorance and fraud, the vendee may return the chattel to the vendor immedi- ately after a discovery, and thus rescind the bargain ; and, under these circumstances, no action will lie for the price. Thus the owner of a slave in New- York, by the laws of which there might (1) Allen V. Edgcrton, 3 Verm. 442. (2) Splidt V. Health, 2 Camp. 57 n, ^3) Idle V. Thornton, 3 Camp. 274. 35 274 RESCINDING OF SALES. [Chap. X. be a written but not a verbal manumission, having agreed in writing to manumit him at a certain lime, deposited the agree- ment with a third person^ and sold the slave absolutely, for his full value, without notice of the written agreement, although the ven- dee was informed that the slave had been promised his freedom in eight years. The vendor brings an action for the price of the slave. Held, it could not be sustained. (1) So where arti- cles are ordered, of a certain quality or description, or for a par- ticular purpose, and prove to vary essentially from the order ; the vendee, after a reasonable time for inspection and trial, may return them, and Recover back the price.(2) 2. Where there is a parol order for goods, which are deliver- ed, subject jo the vendee's approval, he is bound to take them, unless he refuse to accept in reasonable time, or unless the arti- cles are unfit for use, in which case the order would not be com- plied with. (3) 3. It is said, when there is any objection to an article of sale, eommon justice and honesty require that it should be returned at the earliest period, and before it is so changed as to render it impossible to ascertain by proper tests, whether the article is of the quality agreed for. (4) 4. Where a vendee reserves the right to rescind the sale, if he shall be unable to sell the property or sick of his bargain ; the question what is a reasonable time for rescinding is a ques- tion of law for the Court. Two months have been held to be more than a reasonable time. (5) 5. So, where goods delivered do not conform to the order given for them, the vendee is still bound to pay the stipulated price, if he fail to return them in reasonable time, and use them as his own. As where the plaintiff was to supply a complete chandelier, sufficient to light a certain room, and the defendant kept it, though wholly insufficient for this purpose, six months.(6) 6. The plaintiff purchased of the defendant a chaise and bar- (1) Ketletas v. Fleet, 7 John. 324. (2) Siiecl V. Blay, 2 B. & Ad. 460. Gomportz v. Denton, 1 Cr. & M. 207. (3) Coleman v. Gibson, 1 Mood. & R. 168. 1 T. R. 136. 1 Camp. 190. (4) Per Li. Ellenborough, Hopkins v. Appleby, 1 Stark. 479. (6) Kingsley v. Wallis, 2 Shepl. 57. (6) Milner v. Tucker, I C. & P. 15. Sect. III.] KESCINDING liY THE VENOEE. , 275 ness, on condition that he might return them, in case his wife did not approve of them, paying a certain sum per day for their use. The wife not approving of the articles, the plaintiff return- ed them after three days, tendering the stipulated sum for the use of them; but the plaintiff refused to accept them or restore the price paid. Held, by the plaintiff's offer the contract was ended, and he might sue in money had and received for the price.(l) 7. The defendant ordered from the plaintiff a threshing-ma- chine. The machine delivered was unfit for use, but the de- fendant kept it several years, though he used it only twice, and never notified the vendor to take it back. Held, this was a waiver of any objection to the quality, and the defendant was li- able for the price. (2) 8. Where a vendee allows the article purchased to remain on his premises for two months without examination ; its unfitness for use is no defence to a suit for the price, unless some deceit was practised ; more especially if after the end of the two months he has promised payment. (3) 9. The plaintiff sold to the defendant a quantity of barilla, warranting it to be of a certain quality. The defendant used the barilla in eight successive boilings, consuming the whole quantity sold, and made no complaint in regard to it. Held, as it was no longer possible for the plaintiff to apply tests for the purpose of ascertaining the quality, the whole havisig been used, or to obtain the opinion of intelligent men, which he might have done, if the defendant had given him notice ; the Htter was bound to pay the stipulated price, notwithstanding any inferiority in the quality of the article. (4) 10. In June 1791, A agreed to sell B, for a certain price, all his cord wood. It was the custom, in such case, for the vendor to cut off the boughs and trunks, and cord the wood, then for the vendee to re-cord it, whereupon it became the property of the latter. A cut 60 cords, corded ten, and B re-corded half a (1) Somers v. Barrett, 1 T. R. 133. See Doug. 23. I N. R. 351. (2) Cash V. Giles, 3 C. & P. 407. (3) Percival v. Blake, 2 C. &. P. 514. (4) Hopkins v. Appleby, 1 Stark. 477. 276 RESCINDING OF SALKS. [Chap. X. cord and measured the rest. In March 1792, a part of the price was paid, but A corded no more of the wood. B brings an ac- tion to recover back the money paid. Held, the acts of B did not amount to a part execution of the contract; that it had fail- ed of complete fulfilment through the fault of A, and therefore the action was sustained. (1) 11. The plaintiff agreed with the defendant, to manufacture for him certain utensils of trade at a specified price, and that they should be sound and made of the best materials. The ar- ticles having been delivered, in an action for the price, the de- fendant contended that they were unfit for the intended use. Held, it was a question for the jury, whether the defendant had used them longer than was necessary to make a fair trial of their quality. If he had not, and if the utensils were unfit for the use proposed, the vendor, upon notice, would be bound to take them away, and they would remain at his risk. But if the ven- dee retain them, without notice to the vendor, he is liable for the value of the materials. (2) 12. An article sold by sample did not correspond with the sample exhibited. The vendee, after seeing fresh samples infe- rior in quality to that by which he purchased, put up the article for sale at an auction of the East India Company, as the vendor had agreed he might do, at a limited price. No bid being ob- tained for this amount, the vendee bought in the article, but in the name of the vendor, to avoid payment of a duty. Held, by these proceedings the vendee had lost the right to repudiate the contract, on the ground of variance from the sample, so far as it furnished any defence to a suit for the price, though he might have a remedy over against the vendor. The vendee chose to take the chance of makingfa profit on the re-sale. The contract was not wholly void, and he affirmed, by acting on it. Nor did it make any difference, that the goods were never transferred into his name. (3) 13. Where goods are sold to order and afterwards returned, the vendor, in a suit for the price, must prove that they are <1) Giles V. Edwards, 7 T. R. 181. 2 Y. &, J. "263, 4. See Hunt v. Silk, 5 E. 449. (2) Okell V. Smith, I Stark. 107. (3) Partner v. Palmer, 4 B. & A. 386. Sect. III.] RESCINDINU J5Y THE VENUEE. 277 made conformably to (he order. The burden of proof is on him, and not on the defendant to show the contrary. As where a riding-habit was made, and returned upon the ground that it did notfit.(l) 14. Where the goods delivered are of the general kind order- ed, though bad and unfit for use, the vendee, having paid the price, cannot recover it in an action for money had and receiv- ed, as upon a total failure of consideration. As where fish were sold, though they proved to be worm-eaten and putrid. The remedy must be a special action. It was said, that if saw-dust had been delivered instead of fish, the former action might be sustained. (2) 15. Where a party who has contracted to make and sell an article within a certain time violates his contract, the proposed vendee may rescind the bargain, and, if he does, he acquires no title to the property, and by taking it subjects himself to an ac- tion. 16. The plaintiff's intestate agreed to make a wagon for the defendant, to be delivered in the spring of 1827 and paid for in mutton, which was accordingly supplied. The defendant se- lected wheels at the shop of the intestate, and marked them with his name, but there was no evidence of their being used for the wagon. The intestate died in May 1828. Before his death, the wagon was set up in the yard of his dwelling-house, and, once before and again after his death, painted by his son, who trans- acted business for him during his last sickness. A few days be- fore his death, the intestate gave notice to the defendant, that the wagon was ready whenever he should choose to take it. In November 1827, the defendant gave his account for mutton to an attorney for collection, directing him to receive the wagon, which he accordingly demanded ; but, not being delivered, he brought an action upon the account, agreeing however to dis^ continue upon delivery of the wagon. The intestate's estate was insolvent. In November 1828, the attorney, without di- rections from the defendant, and ignorant that he had taken the wagon, which he really had, presented the account to the com- (1) Hayden v. Hayward, 1 Camp. 180. (2) Fortune v. Liiigham, 2 Camp. 416, 278 RESCINDING OF SALES. [Chap. X. missioners of insolvency, who allowed it. The attorney said, if the plaintiff would give up his claim to the wagon, he would not present the account, but the plaintiff declined doing so. In 1829, the suit was discontinued. The plaintiff brings trover for the wagon. Held, the action should be sustained. The de- fendant had acquired no title to the wagon. He was bound by the doings of his attorney. He lawfully might, and did, rescind the contract. The agreement, which v/as merely executory, was broken by the intestate's neglect to build the wagon within the stipulated time ; and for this breach the defendant had his rem- edy by action. He might waive his right of action and accept the wagon, but had no right to take it without the plaintiff's con- sent. The taking therefore was tortious. (I) 17. One party to a contract cannot rescind it, if circumstan- ces have so changed, that it is impossible for both parties to lie reinstated in their situation at the time the contract was made. Thus, if the title-deeds of a ship have been delivered to the ven- dee, and he has pledged them to a third person, and taken pos- session of the vessel ; he cannot rescind the sale and recover back the price which he has paid, though the vendor refused to give a bill of sale or refund the money. So the vendee of a pa- tent, which proves to be void, if he has used it to his advantage, cannot recover back the price. (2) 18. A bidder at auction may recall his bid at any time before the hammer is knocked down. (3) 19. Where a vendee agrees to pay the vendor by selling him other property, and violates the agreement, this is a rescinding of the bargain by ilie vendee, and authorizes the vendor to bring an action for the price. 20. A purchased of B two ploughs, the value of which was allowed B on settlement of accounts. B afterwards refused to deliver the ploughs and converted them to his own use. Held, A miglit treat the agreement as rescinded, and recover back the stipulated price in an action for money had and received ; upon (1) Bennett V. Piatt, 9 Pick. 558. (2) 5 E. 449. Bood v. Blandford, 2 Y. & J, 284. Brindloy v. Tibbcts, 7 Green!. 70. Taylor v. Hare, I N. R. 260. (3) Payne v. Cave, 3 T. R. 148. lb. 653. Sect. III.] RESCINDING BY THE VENDEE. 279 the ground that B had received monei/'s wortJi to the amount claimed. (1) 21. In case of sale with warranty, on an agreement that the purchaser may return the article, (if dissatisfied), a mere offer to return, whether accepted or not, rescinds the bargain, and is ei- ther a defence to a suit for the price, or enables the vendee to recover it, if paid. The same rule applies to an absolute sale, if the vendor consents to take back the thing sold, uncondition- ally. But without such consent the contract remains open, and the vendee can maintain an action only upon the warranty, un- less the vendor knew the article to be unsound, and the vendee offered to return it in reasonable time.(2) 22. Where a party exercises the right of rescinding a sale, he must rescind in toto, if at all. He will not be allowed to reclaim the property, and also recover damages for breach of contract. Thus, A exchanged with B oxen previously mortgaged by the former, though not delivered to the mortgagee ; not disclosing the mortgage. B gave $10 as hoot, which he did not return or of- fer to return, but claimed to retain, because the oxen which he received had risen in value by good treatment, while the others had been hardly worked. Held, B might treat the exchange as fraudulent; but that it was merely voidable, not void, and he could not both reclaim the oxen and recover damages. (3) Section IV. — effect op the rescinding of a. sale. 1. Goods sold can be taken on execution by a creditor of the purchaser, only when the contract between vendor and vendee is complete. Even a suspension of the contract will be a bar to seizure on execution; much more an entire rescinding of it. (4) 2. A agreed to sell B certain goods. Before any bill of par- (1 ) Danforth v.^Dewey, 3 N. H. 79. (2) Thornton v. Wynn, 12 Wheat. 183. (3) Junkins V. Simpson, 2 Shepl. 364. (4) Bartram v. Farebrother, 4 Bing. 582. 280 RESCINDING OF SALES, [Chap. X. eels made out or payment made, B removed the goods to the store of C, a commission merchant and a creditor of B. i^fter- wards the contract between A and B was rescimied, of which C had notice, but sold to D, taking his note for the price. Held, by the rescinding, the property re-vested in A, subject to no lien, and the sale to D was void. If D had paid his note, he might recover back the amount of it from C.(l) 3. After sale of a horse, it was agreed that the vendee might in reasonable time return it and receive back the price, if the horse should be in as good condition as when delivered. The vendee accordingly rescinded the bargain, and returned the horse to the vendor, who received it without objection and re- stored the price. Held, the vendor was estopped from suing the vendee on account of a deterioration of the horse in his hands, arising from a secret injury. The sale was under the circumstances unconditionally rescinded. Otherwise, the ven- dee might have chosen to retain the horse. (2) 4. The plaintiff agreed to sell, and the defendant to buy of him, a certain ship, which should be fitted like another one, named. Before the fittings were completed, the defendant repudiated the bargain, and refused to take the ship. Previous to such refusal, however, the plaintiflf performed certain extra work upon the vessel, at the defendant's request. After the re- fusal, the plaintiff suspended his work, sold the ship, and brought an action against the defendant for the loss upon the sale. The declaration alleged, that the ship was fitted accord- ing to the form and effect of the agreement, and ready for de- livery at the proper time. There was also a count for work and labor. Held, the plaintiff could not recover on the former count, because performance of the contract was a condition precedent; nor on the latter, for the extra work, because he had sold the ship.(3j 5. Where the vendor of a horse rescinds the sale, he is liable to the vendee for the expense of his keeping, from the day of the contract. (4) (1) Spring V. Coffin, 10 Mass. 31. (2) Lord V. Kenny, 13 John. 219. (3) Parmeter v. Burrell, 3 C. & P. 144. (4) King V. Price, 2 Chit. 416. CHAPTER XI. WHAT AVOIDS A SALE. Section I. — fraud — between the parties. 1. General principles. 4. Misrepresentation by a vendee as to his circumstances, pur- chase tcithmit an intention vf paying, S(^c. 15. Cheating, what. 16. Miscellaneous examples of fraud. Section II. — fraud against creditors, d6c. 1. General principles-Statute of Elizabeth — Twyne's case. 5. Secret trust, evidence of fraud. Distinction bettoeen trans- fers of real and personal estate, absolute and conditional sales. 10. Conveyance to a creditor of property exceeding his debt; distinction between actual and constructive /r«2ot maintain an action j but v.'hen the work is completed and accepted, the parly employed may have an action for goods sold and delivered, or, in case of non-acceptance, a special action on the case. But he cannot have an «rtjon for work and labor, because it was dou9 ujion his own materials and for him- |elf> not for his employer. Sect. IV.] ACTION FOR MONEY HAD AND RECEIVED. 325 tice that he is doing wrong, and disposing of that to which he has no title, he is liable to an action for money had and receiv- ed.(l) 3. A loriiously took a quantity of coal from the land of B, Bold it, received the money, and afterwards died. Held, B might maintain an action for money had and received against the administrator, though no direct evidence was offered of the sum that had been received, if the jury believed the fact of a sale. The judgment was founded upon the consideration, that the estate of A was increased to the amount of the value of the coal taken. (2)* 4. A sale of goods, procured by fraud, does not change the property in them. Hence, where the defendant fraudulently col- luded with A, an insolvent, to procure wines from the plaintiff, the proceeds of which finally came to the defendant's hands, for a prior debt due him from A; held, the plaintiff might maintain an action for money had and received against the defendant. A knew that the defendant would ultimately have the proceeds of the wines, and stood as the defendant's agent. And it was held to make no difference whether the property was actually converted into money or not. (3) 5. A, having obtained possession of goods entrusted to B, to (1) Hardacre v. Stewart, 5 Esp. 103. (2) Powell V. Ree?, 7 Adol. & E1.426. (3) Abbotts V. Barry, 6 Moo. 98. * It lias been held in Massachusetts, that where trees are unlawfully cut and car. ried away, the owner cannot waive the tort and sue as for goods sold and delivered, unless the defendant has sold the trees. Jones v. Hoar, 5 Pick. 285. But where one tenant in common sells trees from the land, the other may have an action 'or money had and received, whether payment was made in land, by note, or otherwise. Miller V, Miller, 7. 133. So where A without authority sells the goods of B, taking a ne- gotiable note for the price ; B may have this action against him, Whitwell v. Vin- cent 4. 449. One disseised cannot, during the disseisin, maintain assumpsit for ihe proceeds of trees cut upon the land and sold. Bigelow v. JoneF, 10. 161. Where one wrongfully takes the chattel of another, manufactures it into a new form, sells and receives the price for it ; he is liable to the owner as for money had and received, Gilmore v. Wilbur, 12 Pick, 120. In New Hampshire, it has been held, that wherp one took the goods of another, and converted them to his own use, without the owner's hcense ; upon an agreed statement of facts, the tort might be waived, and assumpsit supported for the price, though it was agr«ed there was no contract. Hill v. D.jvi . 5 N. H. 384. 326 REMEDIES IN CASE OF SALE, &C. [Chap. XII. be sold at a certain price, refused to re-deliver them or pay the price at the time appointed. B, under threat of a suit by the owner, paid him for the goods. Held, B might recover against A in an action for money had and received, a sale of the goods by A being presumed.(l) 6. Where two persons make a valid agreement to join in the purchase of goods for the purpose of selling them again ; if one of them take and appropriate to himself the whole of the property ; the other may bring an action for money had and re- ceived for his share of the profits. (2)* Section V. — forms of declaring, in actions upon the CONTRACT of SALE. {See Sect. I.) 1. In an action for non-delivery of goods sold, the declara- tion need set forth only that part of the contract, a breach of which is complained of.(3)t (1) Longcliamp V. Kenny, 5 Moore, 104. (2) Stiles V. Campbell, 11 Mass. 321. (3) Squiei- V. Hunt, 3 Price, 68. * The follewing misceflaneous cases may be .■ ilcd, in which money had and re- ceived v/\\\ lie after a sale of goods. A buys goods of B, the agent of C, but not having authority to sell. B applies the proceeds to C's benafit, but C afterwards disaffirms the sale and recovers the goods. A may maintain an action against C for the money paid B. Peters v. Ballistier, 3 Pick. 495. Where a vendee gives his negotiable note for the price, and either the goods are overcharged or the note given for loo large a sum ; he may recover the excess before paying the note, or even though he paid it after discovering the error. Whitcomb v. Williams, 4 Pick. 228. Whore an agent, not authorized to sell on credit, takes a note payable to himself, or unreasonably de- lays collecting such note, the principal may maintain an action for money had, &.c. Hemenway V. Hemenway, 5 Pick. 389. See 7. 214. ■f In Massachusetts, upon the ground of immemorial usage, (and probably other states,) indeb. assump. lies for goods sold and delivered, as described in a schedule annexed to the writ. Nor need the writ state even generally, what (he schedule contains. 2 Mass. 398. 13. 284. In the same state it is hold, that where a suit is brought upon a special contract, still remaining executory, the declaration should state the whole contract. But it is otherwise, where the terms of a special agreement have been performed, and nothing remains to be done but the payment of money. Felton Sect, v.] FORMS OF DECLARING, &C. 827 2. In an action on the case against a vendor, for falsely af- firming that the property sold belonged to him, whereby the plaintiff was induced to buy it, and afterwards evicted by the rightful owner ; the declaration need not allege either a con- tract, consideration or price. In such case, a recovery by the true owner is conclusive against the present defendant; and, if the declaration alleges, that the vendor testified, in the former suit between the true owner and the vendee, that he did not own the property ; this is equivalent to an averment of notice to the vendor of the pendency of the former suit.(l) 3. Where the declaration contains one count upon a special agreement, and another inindeb, assump., if the evidence sustains the latter, the plaintiff will recover, though he unsuccessfully attempt to sustain the former. (2) 4. The law in many cases requires, that the plaintiff, suing upon a contract of sale, should allege the performance of some act or condition on his own part. . 5. Agreement, that A should furnish B a certam quantity of goods, for which B was to pay $200 at a future time. A brings an action for the price, alleging delivery of the kinds of articles agreed for to the amount of $200, which B had received in full satisfaction of the agreement, but not the particular quantity delivered. Held, this was a sufficient averment of performance of the condition precedent, or of what was equivalent to per- formance, by way of accord and satisfaction. (3) 6. Action for non-delivery of goods according to agreement, after a demand. The declaration alleged, that the plaintiff was ready and willing to accept and pay for the goods. Held, this allegation need not be specifically proved, the demand being sufficient evidence of it. (4) (1) Bainey V. Dewey, 13 John. 224. (2) Keyes v. Stone, 5 Mass. 391. (3) Richards v. Carl, 1 Blac. 313. (4) Wilks V. Atkinson, 1 Marsh. 412. V. Dickinson, 10 Mass. 287. In Kentucky, the declaration may be general for goods, &c. sold and delivered, without specifying the particular description. Snodgrass v. Broadwell, 2 Lilt. 355. The price of lottery tickets, if the sale be not illegal, may be recovered in a count for goods, wares and merchandize sold and delivered. Yohe v. Robertson, 2 Whart. 155. !^28 REMEDIES IN CASE OF SALE, &,C. [Chap. XII. 7. The defendant agreed to deliver to the plaintiff" a quantity of malt at a certain price. In a suit for non-delivery, held, the plaintiff need not allege a tender of the price, but only a request to deliver, and that he was ready and willing to receive and pay for the malt according to agreement, but the defendant re- fused to deliver. More especially is this sufficient after ver- dict. (1) 8. Declaration, that in consideration the plaintiff" had paid the defendant a certain sum, he agreed to deliver the plaintiff", at R sixty quarters of wheat in certain proportions, and for a certain price, to be paid immediately after delivery ; but the defendant, though often requested to deliver it, and though the plaintiff" at the said several times when the wheat should have been deliver- ed, was ready at R to receive it, and pay the defendant the sums which he ought to pay, immediately after receipt of it ; yet the defendant had not delivered the wheat. Held good. (2) 9. In an action by A against B, the declaration alleged, thatB was possessed of certain land on which hops were growing, and agreed to sell to A all the hops then growing, at ,£10 per hun- dred weight, to be paid by A to B ; the hops to be delivered in packets by B to A at W in R ; that in consideration of A's un- dertaking to accept and pay for the hops, B promised to deliver them at said place and in said manner, in a reasonable time af- ter they were picked and gathered ; that hops had been picked and gathered, amounting to two hundred weight, and though a reasonable time for delivery had elapsed, and though during and since that time A was ready and willing to accept and pay for them at the rates and in the manner, &:c. ; yet B had not de- livered them. But the declaration alleged no request or notice to deliver at any particular time, and no tender of the price. Held, as the first act was to be done by the defendant, no such allegation was necessary, and the declaration was good. (3) 10. Action for non-delivery of a quantity of corn, which the defendant, in consideration of the plaintiff"'s purchasing it of him at a fixed price : undertook to deliver at S within one (1) Rawson V.Johnson, 1 E. 203. (2) Norwood V. Norwuod, Plowd. 180. (5) Bristow V. Waddingion, 2 N. R. 356. Sect. V.j FORMS OF DECLARING, &-C. 329 month from the time of sale. Held, the declaration must al- lege a tender of the price or some act equivalent thereto. The delivery and payment were to be concurrent acts. It was re- marked by the court, that the case did not depend on technical niceties of pleading, but on the true construction of the agree- ment.(l) 11. Declaration, in consideration that the plaintiff had sold a certain horse to the defendant, at and for a certain quantity of certain oil, to be delivered within a certain time, which had elaps- ed before commencement of suit, the defendant promised to de- liver said oil accordingly. The value of the horse was not stat- ed, nor the value, quantity or quality of the oil. Held good, af- ter verdict. Ld. Eldon was at first of a contrary opinion, but at length concurred with the other judges.(2) 12. Declaration in case, that whereas the plaintiff had agreed to buy, and the defendant to sell and deliver, at a certain rate or price per pound, to be paid in the manner then stipulated, forty bags of wool, to be delivered by the defendant to the plaintiff at a time which, before the making of the defendant's promise, after-mentioned, had elapsed, but which wool had not then been delivered ; and thereupon, in consideration of the premises, and that the plaintiff would still receive and pay for the wool at the rate or price, and in the manner, last aforesaid, upon delivery within reasonable time, the defendant promised the plaintiff to deliver the wool within a reasonable time. And though the plaintiff, for a reasonable time after the defendant's promise, was ready and willing to receive and pay for the wool at the rale or price and in the manner last aforesaid, the defendant w ould not deliver it, &c. Held this declaration was too general, and bad on special demurrer ; as it mentioned no price and manner of payment in the first bargain, which nevertheless were referred to, incorporated with, and made part of the consideration of the new promise, upon which this action was founded. Hence no- thing was presented to the jury, which could serve as the mea- sure of damages for non-delivery. (3) (1) Morton v. Lamb, 7 T. R. 125. (2) Ward V. Harris, 2 B. & P. 265. (3) Andrews v. Whitehead, 13 E. 102. 42 330 REMEDIES IN CASE OF SALE, &C. [Chap. XII. Section VI. — variance between averments and proofs. 1. Nice questions often occur, whether the declaration upon a contract of sale is supported by the evidence, or whether there is a variance between the allegations and the proofs. 2. In an action for goods sold and delivered, the declaration alleged that the goods were the property of the plaintiff; but the evidence proved that they belonged to him and another. Held a variance. (1) 3. The plaintiff, in his declaration, alleged a promise by the defendant, made in consideration that the plaintiff would deliver certain goods to a third person. The evidence proved that the plaintiff was to deliver them to the defendant himself. Held a variance. (2) 4. Declaration, that the defendant agreed to deliver goods for the plaintiff. A special agreement was proved, to deliver them to the bearer of a receipt given for them at delivery. Held, the evidence disproved the declaration. (3) 5. In assumpsit, the declaration set forth a written agreement between the plaintiff and defendant, by which the latter was to sell and deliver to the former all the wool that he (the defend- ant), should cut, annually, for five years, from his sheep, and also vv'hat should be cut from those of his two sons. The plain- tiff offered in evidence a written contract, signed by the plain- tiff, the defendant and his sons ; by which the defendant con- tracted as above alleged, and the sons agreed to iniprove their flocks in a certain manner, to retain the increase, and that the plaintiff should have the fleeces of such increase. The plaintiff to pay the defendant so much per pound. Held, there was no variance, because the agreement was the sole contract of the defendant ; or, if the sons were parties, the promise declared on was that of the defendant alone. (4)* (1) Ditchburn v. Spracklin, 5 Esp. 31. (2) Leery v. Goodson, 4 T. R. 687. (3) Samuel v. Darch, 2 Stark. 60. (4) Stearns v. Foote, 20 Pick. 432. * It being proved, that one of the sons owned in common with one A, who howev- Sect. VI. J VARIANCE BETWIiEiN AVERMENTS, iSiC. 331 G. Contract to deliver rough gum Senegal. Declaration, as on a contract to deliver gum Senegal, generally. Proof, that all gum Senegal, on arriving in England, is rough. Held, the dec- laration was sustained.(l) 7. Agreement, to take in a certain specified quantity of goods. The declaration alleged an agreement to take in a full cargo. Held, a variance, though the quantity named was a full cargo.(2) 8. Agreement, to purchase a parcel of hemp, ahout eight tons. Declaration, an agreement to purchase a parcel of hemp, to 7oit, eight tons ; this being the exact quantity in the parcel sold. Held sufficient, though it might have been better to state the facts precisely as they were.(3j 9. Agreement, to purchase all the head matter and sperm oil, per the Wildman. Declaration, that the plaintiff bargained and sold, and the defendant agreed to buy, a large quantity of head matter and sperm oil at a certain price per ton, which was af- terwards ascertained to be a given quantity. Held to be no va- riance. The plaintiff had proved all his declaration, and some- thing moi'e. There was no proof of any qualification or condi- tion to the bargain. Objection could be tak^n, if at all, only by demurrer or in arrest of judgment. (4) 10. The plaintiff declared, that in consideration that he had sold to the defendant 276 hides of leather, and agreed to deliver them, the defendant agreed to accept and pay for them, the weight to be determined by inspection. It was proved, that the defendant agreed to buy a lot of leather then in the vats, and to take what should be stamped good by the inspector. Held, a fatal variance. (5) 11. Sale of manufactured goods, with a warranty that they were equal to any manufactured in America. Declaration, as (1) Silver v. Heseltine, 1 Chit. 39. (2) Harrison v. Wilson, 2 Esp. 708. (3) Gladstone V. Neale, 13 E. 410. (4) Wildman v. Glossop, 1 B. & A. 9. (5) Hart v. Tyler, 15 Pich. 171. er let liis share to such son, so that the whole of the wool sheared was sheared by and belonged to the son ; hold, tlio defendant'is contract included the whole of the wool. An agreement that a third person siiall convey certain properly is binding, although the parly may be unable to fulfil it. lb. 333 REMEDIES IN CASE OF SALE, &LC. [Chap. XII. upon a warranty that they were good and merchantable. Held a variance. (1) 12. Sale of spruce timber. Declaration, as upon a sale of pfnc timber. Held a variance. (2) 13. Agreement for three hundred and eight chests and thirty half chests of China oranges, and twenty chests of lemons — no price being specified. The plaintiff alleged in his decla- ration, that he had agreed to sell, and the defendant to buy, cer- tain gnods and merchandize, to wit, three hundred and twenty- eight chests and thirty half chests of oranges and lemons, at and for a certain price, to wit, =£'623, 3s. Held, no variance. (3) 14. A agreed to furnish B with saddles at " 24s. 26s." B brings an action upon this agreement, declaring upon it as a contract to furnish saddles at a reasonable price. Held, this was no variance. The legal construction of the agreement was to sell at a price 7iear about the sums named. (4) 15. The declaration alleged, that the goods were to be paid for by a bill at two months ; but the evidence was, that they were to be paid for by a bill at two months, on receiving the invoice or delivery of the property. Held, this was not a fatal variance. In this case, a special assumpsit was held the proper form of ac- tion.(5) 16. A declaration, alleging that the plaintiff was ready and willing to perform his part of the agreement between him and the defendant, is sustained by proving a demand made by his servant in his absence. (6) 17. A contract in the alternative must be so stated in the declaration ; otherwise, the case shows a variance ; although facts occurring subsequently to the contract have rendered it absolute. 18. Agreement to purchase one hundred bags of wheat ; for' ty or fifty of them to be delivered on one market-day, the re- mainder on the market-day next following. Forty bags were (1) Goulding V. Skinner, 1 Pick. 162. (2) Robbins v. Otis, 1 Pick. 368. (3) Crispin v. Williamson, 1 Moore, 647. (4) Laing v. Fidgcon, 6 Taun. 108. (6) Squier v. Hunt, 3 Price, 68. (6) lb. Sect. VI.] VARIANCE BETWEEN AVERMENTS, &.C. 333 delivered on the first market-day. In an action for non-deliv- ery of the rest, held, the declaration must allege the agreement, as above-stated, in the alternative — -forty or fifty — not forty alone. (I) 19. Contract, to deliver certain goods, within fourteen days, or on arrival of a certain ship. The ship arrived after the time mentioned. In an action for non-delivery, one count in the declaration alleged a promise to deliver within fourteen days, and another on the arrival of the ship ; but there was no allegation in the alternative. Held insufficient. (2) 20. A contract for the sale of tallow warranted it to be ready for delivery, before a certain day, from the ship or warehouse. The declaration alleged, that it was to be ready for delivery, generally, before the day mentioned. Held, there was no vari- ance. The option as to the place of delivery was given to the vendor, not to the vendee. If a contract enumerate all possible places of delivery, and at the same time give the vendor his op- tion among them, the legal construction is the same, as if such option were given generally. The contract in this case was, to deliver from one or the other of the only places where the goods could possibly be. (3) 21. Agreement, to deliver soil. The declaration alleged an agreement to deliver soil or breeze. Held, a fatal variance, as soil and breeze are distinct articles. (4) 22. Agreement by the defendant to deliver the plaintiff all his tallow at four shillings per stone, and so much more as the plain- tiff had to pay to any other person. The declaration alleged that the defendant promised to deliver it absolutely, at four shil- lings per stone. Held, this was a fatal variance. The contract was not an alternative one, in which the party has his option to do one thing or another ; but it was a contract to pay a larger or smaller sum, according to the happening or not happening of a future, contingent event. (5) (1) Penny v. Porter,2 E. 2. (See Lent v. Padolfurd, 10 Mass. 230.) (2) Shiphani v. Saunders, 2 E. 4 n. (3) Thornton v. Jones, 6 Taun. 581. (4) Clark v. Manstone, 5 Esp. 239. 1 Chit. 60 a. (5) Churchill v. VVilkins, 1 T. R. 447. 334 REMEDIES IN CASE OF SALE, &C. [Chap. XII. Section VII. — defences. 1. It is a general rule, that in an action for the price of a chattel, the vendee may prove in defence deceit on the part of the plaintiff, and that the article is of no value ; or he may show a partial unsoundness in mitigation of damages. As where the plaintiff sold a mare to the defendant, and represent- ed her to be sound, and she proved to be sick.(l)* 2. So where a vendee gives his note for the price of the thing sold, upon which the vendor brings an action, the former may prove deceit in the sale as a defence. Fraudulent repre- sentation renders the note void. As where a shearing-machine was sold and represented to be of great value, but proved to be entirely useless. (2) 3. Plaintiff sold to the defendant a quantity of Leghorn hats, of certain specified qualities and for a certain price, and agreed to deliver extra crowns to match the hats which were delivered, free of charge. The crowns which were sent did not thus match, of which the vendee gave immediate notice, and in con- sequence of which he suffered a loss. In a suit for the price, held, this was not a case of rescinding the contract, but the {\) Beecker v. Vrooman, 13 John. 302. (2) Sill V. Rood, 15 John. 230. * It was fni-merly held, in Massachusetts, that a vendee of manufactured goods who has accepted them without objection, cannot defend aj^ainst a suit for the price on the ground of bid workmanship. (Everett v. Gray, 1 Mass. 101.) This decision, however, has been questioned in a later case, and seems to bo inconsistent with the general current of authorities. See Fisher v. Sumada, 1 Camp. 190. Lewis v. Cos- grave, 2 Taun. 2. Jones V. Scrivcn, 8 John. 453. Grant v. Button, 14. 377. Beeck- er v. Vrooman, 13 John. 302. Payne v. Cutler, 13 Wend. 605. Miller v. Smith, 1 Mass. 437. In Kentucky, if the thing is received and used, and of any value, the bad quality is no defence. Allison v. Noble, 1 Litt. 279. In Now York, if a note were given, c\cn fraud is no defence, unless the vendee, on discovering it, re'.urns the thing, or it is of no value. 3 Wend. 236. If the vendee gave notice to the vendor, he may offer proof to reduce the damages, whether there were warranty or fraud. 13 Wend. 605. 10. 512 4. 483. 8. 109. Sect. VII.] DEFENCES. 335 vendee might reduce the damages, by showing these facts, in proportion as the articles were of less value to him than they would otherwise have been. (I) 4. An omission to return articles sold does not preclude a dispute as to the price, except in case of conditional sales, where the property is taken on trial, with the liberty of return- ing it, if the party is dissatisfied, within a limited time. (2) 5. Where a vendee gives a bond for the consideration of the sale, upon w-hich the vendor brings an action, the defendant cannot plead in discharge a false representation or warranty. As where a slave was represented to be lionest, sober, 6lc. A specialty can be invalidated only for illegality of consideration, which avoids ah initio. Even a breach of written warranty would be no discharge ; and still less parol representations, al- though false and fraudulent and constituting the inducement to purchase. Whether the vendee, in order to avail himself of these facts, must resort to a Court of Equity, or may sue at law, qu.(3) G. A vendee gave his note for the price of the goods, secured by a pledge of them. Upon non-payment of the note, the ven- dor re-sold the goods at a loss, and then brought an action for the balance due upon the note. Held, it was no defence to this action, that the loss in the sale was caused by the plaintiflf's misconduct, but for this the vendee must resort to an action on the case. The pledgee stood as di factor of the defendant, and was bound to exercise skill, diligence and fairness, and account- able for the want of those qualities. But the judgment in this action would be no bar to another suit. (4) 7. In England, in an action for goods sold and delivered, if the defendant plead the general issue, under the new rules of pleading he may prove that the goods vary from the contract, though there was a special agreement to pay a certain price. In such case, the plaintiff will recover only a quantum valebant. If the declaration had set out a special contract, under the general (1) King V. Paddock, 18 John. 141. (2) King V. Paddock, 18 John. 143, 4. (3) Vrocman v. Phelps, 2 John. C. 177. (4) Jones v. Kennedy, 11 Pick. 125 336 REMEDIES IN CASE OF SALE, &C. [Chap, XII. issue the defendant could only have denied the contract z/j/flc/. But he may deny a part of the implied contract alleged in the declaration ; viz. that the same goods which had been contract- ed for were actually delivered.(l) (See Warranty.) 8. In an action for goods sold and delivered, the defendant may prove, in defence, that they were delivered in payment for his services, rendered the plaintiff. He need not file an account in off-set.(2) 9. Assumpsit for the price of a pew sold at auction. Held, the plaintiff should recover, without proving a title to the pew.(3) So the defendant, in this action, cannot set up as a defence, that the goods sold belonged to a stranger. (4) Section VIII. — amount of damages. 1. In an action for goods sold and delivered, it was proved that the defendant said he owed the debt, that the plaintiff had demanded payment, and he should pay it as soon as he was able ; but mentioned no sum. Held, the plaintiff was entitled to a verdict for nominal damages.(5) 2. In an action by a vendee against the vendor for non-deliv- ery of the thing sold ; the measure of damages is not the agreed price, but the value at the time of breach, not after- wards. And this is the measure, although the vendor withhold the property with a view to his own profit. But if there is no fixed price, but the price ranges between different rates ; the jury may adopt the highest, lowest or an intermediate rate, ac- cording to the conduct of the defendant.(6)* (1) Cousins V. Paddon, 2 Cromp. Mees. &, R. 547. (But see Roftey v. Smilh, 6 C. & P. 662. (2) Wilbey v. Han is, 13 Mass. 496. (3) Stoddert v. Vestry, 2 Gill. & J. 227. (4) Wright V. Sharp, 1 Browne, 344. (5) Dixon V. Deveridge, 2 C. & P. 109. (6) Hopkins v. Lee, 6 Wheat. 109 Sheperd v. Hampton, 3 Wheat. 200. Bly- denburgh v. Welsh, 1 Bald. 331. * In case of sale without specifying the price, the seller can recover only the value Sect. VIII.] A:\rouNT of damages. 337 3. Where there is an agreement to deliver goods at a certain time and place, and a breach thereof; the measure of damages is the difference between the price agreed on, and tlie market value at the specified time and place. If clear evidence of such value is offered, evidence is not admissible of the value at other neighboring places. But in the absence of the former evidence, the latter is admissible, as raising a presumption in relation to the point at issue (1) 4. In the month of September, the defendant agreed to deliv- er tallow to the plaintifT in all the ensuing December, at so much per hundred weight. In October, the defendant told the plaintiff he had sold the tallow, and could not perform his agreement ; but the plaintiff did not consent to rescind the bar- gain. After the making of the agreement, tallow rose in price. Held, the plaintiff should recover as damages the difference be- tween the agreed and the market rate on December 31, the last day on which the contract would authorize the defendant to de- liver the tallow. Had the article fallen in price, the plaintiff would still have been bound to take it at the agreed rate. He was not bound to purchase other tallow at a lower price, though he might have done it. The defendant might have purchased for a louver price, as well as the plaintiff (2) 5. Where goods are sold and delivered upon a credit, and the vendee has violated the contract only in one particular, the damages will be commensurate only with the actual breach. But where the contract is wholly rejected, the damages are not the price of the thing sold, but a compensation for the disaffirm- ance ; and the difference of price upon re-sale is merely the measure of damages actually sustained. (3) (1) Gregory v. M'Dowell, 8 Wer.d. 435. Gainsford v. CanoII, 2 B. & C. 624. (2) Leigh v. Patterson, 2 Moore, 588. (3) Girard v.Taggart, 5 S. & R. 34. Per Gibson, Ch. J. at the time of sale ; thoagh the value may have subsequently increased. Kill v. Hill, Coxe, 261. So it has been held, that in an action for breach of contract to make pay- ment in tobacco, the plaintiff shall recover the value of the tobacco on the day ap- pointed for payment. Lyle V, Lylc, 6 Har. & J. 273. 43 CHAPTER XIII. SALE OR ASSIGNMENT OF CHOSES IN ACTION. Section I. — what may be assigned. 1. General principles. What assignable, 4. Policy of insurance. 5. Shares in corporations. 9. Judgment and execution. 16. Miscellaneous cases. Section II. — form op assignment ; whether in writing, BY delivery, &c. Section III. — effect of an assignbient upon the rights of the parties — notice, off-set, &c. 1. Notice to the debtor, form and effect of. 9. Debtor's right of set-off^. Section IV. — remedies in case of assignment — suits at LAW and in equity DEFENCES, &:.C. Section I. — what may be assigned. I. The law relating to sales of personal property contemplates Sect. I.] WHAT MAY BE ASSIGNED. 339 for the most part personal property in possession ; that is, the property commonly known as chattels, which have an absolute, and present, and not a mere representative or future value. The other division of personal property consists of cJtoses in action, which are mere securities, promises or debts. The most com- mon and important kind of securities, that is, negotiable paper, or hills and notes, and, in some of the United States, bonds, is the subject of a distinct branch of commercial law, and does not fall within the plan of the present work. But it seems not inappropriate, to consider briefly the sale or assignment, as it is usually termed, of choses in action not negotiable.* 2. The subject of the assignment of choses in action has been often under the consideration of the Courts in England, as well as the United States ; and it seems clear at this day, that the assignee is to be considered, in law as well as equity, the party beneficially interested ; subject indeed to any legal claim of the debtor, but free from any claim of the assignor, his executors or administrators.(l) 3. All choses in action may be assigned in equity, and the assignee thereby acquires an equitable title, which may be en- forced at law in the name of the assignor, and which cannot be (1) Cutts V. Perkins, 12 Mass. 211. * At common \a.w. choses in action are not assignable. 2 John. 1. 15 Mass. 388. See 1 Cranch, 367 — 166. Appx. A note or bond, payable wholly or partly in personal services, is not assignable. 3 Mis. 82. 4 Litt. 9. 1 J. J. Marsh. 454. 2 Pen. 965. Nor a license to cut timber on land. Emerson v Fisk, 6 Grcenl. 200. Pease v. Gibson, lb. S3. A written acknowledgment by A that he had bought goods of B, wliich lie was to settle with B's creditors, is not negotiable. Nor a written ac- knowledgment of a settlement and balance due. Nor a covenant to deliver boards or do any collateral act, though made payable to order. Headly v. Vanness, 2 Pen. 722. Lacey v. Collins, 2 South. 489. Bell v. Curtis, 1 Pen. 142. Breen v. Ingram, 1 Bay, 173. Nor a guardianship bond, under the S. C. statute of 1798. Cobb v. Williams, 1 Hill, 375. A right of action for a tort is not assignable. Thus a claim to personal property, adversely held by another, cannot be sold, so as to give the purchaser aright of action in his own name. It is said, that, generally, mere personal torts, which die with the party, are not assignable. Otherwise with vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to pro- perty. Gardner v. Adams, 12 Wend. 297. See 3 Litt. 41. Stogdell v. Fugate, 2 Marsh. 136. Comegys v. Vasse, 1 Pet. 193. Shares of seamen in prizes, captured by private armed vessels, are not assignable, so as to admit a suit against (he agent in the assignee's name. Fshcr v. De Wolfe, 13 Mass. 290. 340 SALE, &.C. OF CllOSES IN ACTION. [Chap. XIII. affected by his release or bankruptcy. A debt due for goods sold and delivered, and proveable by book account, may be as- signed.* So an unliquidated balance of accounts ; and if the debtor promise payment to the assignee, he may sue in his own name for the amount due, when ascertained. So a contingent debt is assignable. (I) 4. It has been held, that the assignment of h policy of insur- ance gives the assignee an equitable interest, though the under- writer be not notified. But in another case it is said, that the assignee cannot avail himself of the policy, unless the assign- ment were made bonajide, for valuable consideration, and with notice to, and the express or implied assent of the underwriter. In case of such assent, either express or implied, or founded on usage, the assignee may claim under the policy from the com- mencement of the voyage ; the assignor is discharged from the premium, and the assignee bound to pay it. But every set-off between insurer and insured, prior to the assignment, is good against the assignees. (2) 5. Shares in corporations constitute an important class of choses in action, which in commercial intercourse are often as- signed, and the forms and occasions of assigning which are gene- rally regulated by express statute. Some cases have arisen, upon the question how far such regulations must be literally c&mplied with, in order to pass a title to the assignee. The further question is sometimes involved, whether such shares can be assigned so as to defeat a lien of the corporation for its dues. Q. An act of incorporation provided, that no transfer of (1) Dix V. Ccbb, 4Mass. 608. Gould v. Newman, 8. 239. Parker v. Grout, 11. 157. Graves v. Brown, 11. 334. Wood v. Partridge, 11. 488. Usher v. Dc Wolfe, 13. 290. Crocker v. Whitney, 10. 316. Mowry v. Todd, 12. 481. Allen v. Holden, 9. 133. Brown V. Maine Bank, 11.153. Dunn v. Snell, 15. 481. Norris v. Douglass, 2 South. 817. Black V. Everett, 5 Stew. & P. 60. Garland v. Raheson, 4 Rand. 266. Lyon v. Summers, 7 Conn. 399. Wadsvvorth v. Griswold, Harper, 17. Sloan V. Sommers, 2 Green. 510. Woodbridge v. Perkins, 3 Day, 364. (2) Wakefield v. Martin, 3 Mass. 558. Carroll v. Boston M. I. Co., 8. 615. Cleveland v. Clap, 5. 201. Gourdon v. Ins. Co., &c.,3 Yeates, 327. 1 Bir.n. 429. Spring V. South Carolina, &-c., 8 Wheat. 268. * In Souih Carolina, the assignment of an open account merely gives an authority to receive the money and settle tiie account. Hence, even after notice, a recei|4 from the assignor will be a good discharge. Browu v. Rees, 2 Const. 498. I Brock 458. Sect. I.j WHAT MAY BE ASSIGNED. 341 shares should be valid, till the whole capital slock were paid in. Held, a corporator might still transfer to his creditor, by way of security, his equitable interest in the corporation, before having paid his whole subscription; and that the assignee was entitled to a certificate on paying the balance due.(l) 7. The charter of a bank provided, that the stock should be retained by the subscribers for one year from the date of such charter, and a by-law made all shares liable, as security for debts due from the persons owning them to the bank. Within the year. A, a stockholder, assigned his shares to B, who notified the bank, and paid the last instalment due upon them. The bank, having afterwards made a loan to A, claimed to hold the shares as security therefor. Held, it could not thus hold them against B, the transfer to him, though not entitling him to a certificate in his own name, being an equitable assignment, which bound the bank after notice. ;2) 8. The by-laws of an insurance company provided, that the certificates of stock should be transferred only at the office of the company, by the holder or his attorney; that transfers should be authenticated by the president, and attested by the secretary, and that it should be the duty of the former to attend at the office during business hours. An assignment of certain shares was made to A and B, partners, with a power to them to transfer the shares upon the books. A called at the office dur- ing business hours, and, in the absence of the president, exhi- bited to the secretary the assignment and power, and demanded that the shares should be transferred on the books, and certifi- cates issued to himself and B ; but the secretary refused, say- ing it was the business of the president. Held, the company were bound to make the transfers and issue certificates, though they held notes of the assignors for premiums, one of which was then due. (3) 9. The equitable interest in a judgment may be assigned, by (1) Quinerv. Marbleliead, &c., 10 Mass. 476. AlvorJ v. Smith, 5 Pick. 232. (2) Nesmiih v. Washington, &c., 6 Pick. 324. (3) Sargent v. Frankli'i, &c., 8 Pick. 90. 342 SALE, &c. OF cuosEs IN ACTION. [Chap. XIII. delivery of the execution. And where a judgment and ex- ecution are bona fide assigned for valuable consideration ; the assignee may cause the execution to be levied upon lands of the debtor ; and, if the assignor afterwards release his right to the assignee, the latter will have a good title against creditors of the assignor, having notice of the assignment, though they at- tach the property before such release. But the assignment of an execution does not enable the assignee to sue, in his own name the officer who fails to collect and pay over the money. Nor does the assignment of a judgment transfer the assignor's right to recover against the sheriff" for previous neglect of du- ty, respecting executions issued on such judgment. Nor does the assignment extinguish such right. (I) (See infra, 12.) 10. The assignor of a judgment cannot discharge it, either by receiving the money, or agreeing to off'-set a claim held by the debtor against himself (2) 11. If the assignor of a judgment enters up satisfaction on the record, after notice to the debtor ; the Court, on motion, will vacate such entry. (3) 12. An assignee, having recovered a judgment in the as- signor's name, handed an execution to the sheriff", notifying him at the same time of the assignment. The sheriff" suff"ered the debtor to escape, after arrest. Held, he was liable to an ac- tion by the assignee in the assignor's name, and that the latter could not defeat such action by a release. (4) (See supra, 9.) 13. The assignment of a judgment carries the damages af- terwards given upon the dissolution of an injunction, and upon appeal, «fcc.(5) 14. The assignee of a judgment, recovered in another state (1) Dunn V. Snell, 15 Mass. 481. Brown v. Maine Bank, 11 Mass. 153. Pearson V. Talbot, 4 Litt. 435. Patterson v. Wilkinson, Wright, 501. Governor v. Griffin, 2 Dev. 352. Jones v. Com., 2 Litt. 357. Com. v. Fuqua, SLitt. 41 (2) Sampson v. Fletcher, 1 Verm. 168. (3) Warden v. Eden, 2 John. Cas. 121. 258. 1 John. 531. (4) Martin v. Hawks, 15 John. 405. (5) Marshall v. Craig, 3_Bibb. 291. Sect. I.] WHAT MAY BE ASSIGNED. 343 against a citizen of Kentucky, may use the name of the assign- or to enforce payment ; but if the assignor be dead, and there be no administrator in Kentucky, the assignee may apply to Chancery in his own name, and will not be compelled to ad- minister.(J) 15. A decree in Chancery is not assignable at law, but may be assigned, for valuable consideration, in Equity. (2) 16. The bid of a purchaser at sheriff's sale is assignable, and the assignee, by a bill of sale from the officer, gains a valid title.(3) 17. A bond with penalty, conditioned to convey land to the obligee or his appointee, is assignable after forfeiture. (4) 18. The trustees of an academy may assign to a college, which is authorized to receive funds in their hands, notes included in such funds. (5) 19. In Kentucky, by Statute, a covenant to pay a certain sum in promissory notes is assignable. (G) 20. The assignment of a bill of sale of chattels passes a title,^ so that the assignee may bring trover against a subsequent pur- chaser. (7) 21. A town, liable for the support of a pauper, and making provision therefor, may validly assign his services to one who will contract to furnish such support. But a servant bound by indenture is not a proper subject of assignment, the trust of the master being strictly personal. (8) 22. A contract was made between a town and one A, by which the latter was to support certain relatives while they liv- ed, and the town to give him the use and occupation of a farm (1) Cobb V. Thompson, 1 Marsh. 508. (2) Coates v. Muse, 1 Brock. 552. (3) Blount V. Davis, 2 Dev. 19. (4) Ensign v. Kellogg, 4 Pick. 1. (5) Amherst, &c. v. Cowls, 6 Pick. 427. (6) Sirlott V. Tandy, 3 Damon, 142. (7) Southworth v. Sebring, 2 Hill, 587. (8) Wilson V. Church, I Pick. 23. Hall v. Gardner, 1 Mass. 172. Davis v. Co- burn, 8, 299. 344 SALE, &c. OF cnosES IN ACTION. [Chap. XIII. during the lives of his parents, and afterwards give him a deed of it. Held, not an assignable contract. (1) Section II. — form of assignment, whether in writ- ing, BY DELIVERY, &C. 1. It was once held, that the assignment of an instrument must be of as high a nature as the instrument itself.* So, it seems, that any instrument, not negotiable, could be assigned only by deed. It was afterwards said to be doubtful, whether a manual delivery would be sufficient. But later cases have decided, that such delivery is a sufficient assignment of a note, bill, judgment, execution, or other chose in action. (2) 2. Thus, in New York, an obligation or covenant may be as- signed by an unsealed instrument. (3) 3. So a judgment may be assigned by parol, or by an unsealed writing. (4) 4. If an assignment be written upon the back of an instru- ment, but not signed, and the instrument delivered to the as- signee for valuable consideration; this is a valid transfer. (5) 5. But a verbal agreement, which contemplates a further assignment, will not be held to be itself an assignment, more especially where the rights of creditors have intervened by the bankruptcy of both parties. 6. A, being assignee of a bankrupt, had a demand for collec- (1) Clinton v. Fly, 1 Fairf. 292. (2) Perkins V. Parker, 1 Mass. 117. Wood v. Partridge, 11. 488. Cutts v. Per- kins, 12. 206. Willis v. Twambly, 13. 204. Jones v. Witter, 13. 304. Dunn v. Snell, 15. 481. Quiner v. Marblehead, &c., 10 Mass. 476. Titconib v. Thomas, 5 Greenl. 282. Clark v. Rogers, 2. 147. Briggs v. Dorr, 19 John. 95, 17. 284. 3 Greenl. 349, 2. 322. 1 Har. & J. 114. (3) Dawson v. Coles, 16 Johns 51. Howell v. Bulkley, 1 N. & M. 250. (4) Ford V. Smart, 19 Johns. 342. (6) Mowry v. Todd, 12 Mass. 281. * It has been held in North Carolina, that a written contract can be assigned only by a writing upon the paper which contains it. Estes v. Hairston, 1 Dev. 354. Sect. II.] FORM OF ASSIGNMENT, &C. • 345 lion against B, a creditor of the bankrupt, who had proved his claim. A being ordered to attach B's property, an attachment was issued and delivered to an officer, who was about to serve it when it was agreed between A and B that A should retain the monies which should come to his hands, as assignee, on account of this claim ; and that B should assign, for benefit of creditors, his claims on the bankrupt's estate. The attachment was not served. B afterwards became bankrupt, and his assignees sued to recover from A the money received by him as assignee. Held, notwithstanding the above agreement, the action would lie, the parties having never made the proposed assignment, nor signed any writing at the time, and it being against public policy, to give effect to loose bargains in cases of bankruptcy. (1) 7. A letter of attorney, irrevocable, to receive money to the attorney's own use, is prima fticie an assignment ; but may be controlled by extrinsic evidence. (2) S. Agreement by A to assign to B part of a judgment, re- covered by C against D. Held, no execution of such agreement, to send B a copy of the judgment, with an assignment by C to A.(3) 9. Where a bill of exchange is assigned by delivery to several persons, one of them may assign his share of it to the rest, by delivery to them, and payment to him of the consideration. (4) 10. An oral agreement between a plaintiff and a third person, that the latter shall receive the money sued for, is not an assign- ment. (5) 11. The secretary of a corporation received an order for money, payable to himself personally, the money, when paid, to be applied in payment of a debt due the corporation from the drawer. The secretary afterwards passed it over to the treasur- er for that purpose, with notice to the acceptor. Held, a good assignment, and that the secretary could not discharge the ac- ceptor. (6) (1) Foster v. Lowell, 4 Mass. 308. (2) Gerrish v. Sweetser, 4 Pick. 374. (3) Harris v. Eaile, 4 Har. & J. 274. (4) Titcomb v. Thomas, 6 Green). 282. (5) Seaver v. Bradley, 6 Greenl. 60. (6) Twett V. Green, 4 Greenl. 384. 44 346 SALE, &c. OF cHosEs IN ACTION. [Chap. XIII. 12. A acknowledged in writing, that he had settled his ac- count with B, and found a certain balance due B. B, at the bottom of this instrument, wrote as follows — "tie above ac- knowledgment of A is to be understood due to C, being for transactions by me on his account. B." It seems, this is an assignment to C, which authorizes him to bring an action of debt, describing both writings in the declaration, and not stat- ing the one signed by B, as an assignment for pecuniary conside- ration. (1) 13. A bond having been given to the acting partner of a late firm, he afterwards conveyed all his real and personal estate in trust for the payment of his debts and those of the firm ; not mentioning those due to the firm. Held, this assignment did not include the bond above named. (2) 14. A, holding a bond of B, put it into C's bunds, to collect when due, and, if not paid, to hand it to an attorney for collec- tion, which was done. A then, by letter, stated to C, that he owed D $200 out of the money B owed him, and desired C, when he should collect it, if he (A) were not present, to pay the whole to D. D presented the letter to C, who merely told D, that B's bond was in the hands of an attorney. A owed D less than the amount of the bond. Held, A's letter was neither an equitable assignment to D of any part of B's debt, nor a se- curity for D's debt. (3) 15. A note in the hands of a depositary was assigned by a separate writing, with power to sue. The depositary having refused to deliver it to the vendee ; held, the latter might main- tain trover against him in the name of the vendor. (4) 16. A, holding a note against B, receives from B another note, to be collected, and the proceeds applied in payment of the former one. Held, an equitable assignment, which vested a power coupled with an interest in A, who therefore was not lia- ble in trover for refusing to return the assigned note. (5) (1) Cunningham V. Herndon, 2 Call. 447. (2) Anderson v. Bullock, 4 Munf. 442. (3) Clayton v. Fawcelt, 2 Leigh. 19. (4) Day v. Whitney, 1 Pick. 603. (5) Canfield V. Mongei-, 12 John. S46. , Sect. II.] FORM OF ASSroNMENT, &c. 347 17. An order, bill or draft, drawn for the whole of a particu- lar fund, is an equitable assignment thereof, after notice to the drawee. Otherwise, where it is for only part of a fund.* And an order is prima facie a good assignment, though not express- ed as for value. (1) 18. A ship-master drew a bill of exchange upon the con- signee of goods for the money which might become due to him for freight, upon delivery of the goods. Before the payee came in possession of the bill, the drawer died; but it was afterwards accepted and paid by the drawee. Held, the bill, though in- valid as such, was a legal assignment of the drawer's claim for freight when it should fall due ; and that the administrator of the drawer therefore could not recover this claim from the con- signee. (2) 19. A gave to B an order on C, his agent, to pay B a certain sum from such debts of A as should be received by C, which order C accepted. Held, an assignment of the funds to the amount of the order. (3) 20. But where an order is in its terras general, and includes the proceeds of other securities than the one in question, and is accepted subject to certain conditions ; it is not an assign- ment of the note referred to. 21. A, holding the note of B, left it, with other demands, with C, an attorney, for collection. A afterwards drew an or- der upon C, to pay D what he should receive upon the above de- mands, which order C accepted as follows — " I will pay such sums as I receive, after getting my due, to the person presenting this order." Held, not to be an assignment of the note, and that C was justified in paying it to A. (4) (1) Mandeville V. Welch, 5 Wheat. 285. Robbins v. Bacon, S Greenl. 346, Cor- ser V. Craig, 1 Wash. 424. Adams v. Robinson, 1 Pick.5462. Harrington v. Rich, 6 Verm. 666. (2) Cutts V. Perluns, 12 Mass. 206. (3) Peyton v. Hallett, 1 Caine3,363. 3 John. 72. , (4) Thayer v. Havener, 6 Greenl. 212. • An assignment will be protected, though not absolute, or of the whole subject matter; if it passes a power with an interest. Wheeler 7. Wheeler, 9 Cow. 34. 348 SALE, ^c. OF cHosEs IN ACTION. [Chap. XIIL Section III. — effect of an assignment upon the rights OF TH^ PARTIES NOTICE, OFF-SET, &C. 1. It has been already intimated, and is indeed a necessary inference from the respective rights of giving and taking an assignment of clioses in action ; that, after the assignment, the liability of the debtor being transferred from assignor to assign- ee, payment is to be made to the latter instead of the former. This, however, is subject to the equitable qualification, that the debtor has received notice of the assignment. What kind or degree of notice is necessary, to impose the nevi' obligation up- on him, has been a point of somewhat conflicting decisions. 2. In New York, it is said, something equivalent to direct and positive notice of the assignment is necessary, to charge the debtpr with a fraudulent payment to the assignor. But in the same state, as well as others, it seems to be held, that an as- signment will bind any party who has such knowledge of facts and circumstances as ought to put him on inquiry. Special notice is unnecessary, nor need the assignee exhibit to the debt- or the instrument itself, or any other evidence.(l) 3. Thus the holder of a due-bill assigned it by indorsement in blank. The assignee demanded payment, but did not show the due-bill, nor expressly state that it had been assigned ; and the debtor promised to settle it the next week in New York. He afterwards paid it in New York to the assignor. Held, the assignee could not maintain an action in the assignor's name. (2) 4. In Connecticut, the assignment of a note or book-debt is not complete till notice to the debtor ; but the property remains liable to creditors of the assignor. Otherwise in Massachu- setts, Pennsylvania and Kentucky ; where the assignment itself passes an equitable title, subject only to the duty of notifying (1) Meghan v. Mills, 9 Johns. 64. Anderson v. Van Men, 12 John. 343. U. S. V. Sturges, Paine, 525. lb. 629. Kellogg v. Kiauser, 14 S. & K. 137. Davenport V. Woodbridge, 8 Greenl. 17. (2) lb. Sect. III.l EFFECT OF AN ASSIGNMENT, &C. 349 the debtor, in season to enable him to resist a claim made by a creditor of the assignor.(l) 5. In the same state, an assignment is good between the parties, without notice ; and one having knowledge of it is not a bona fide creditor, who can take the property for his debt. (2) 6. In Maine, notice is sufficient, without producing the in- strument assigned, or any evidence of the assignment. (3) 7. Where the assignment of a chose in action is lawfully re- scinded, notice to the debtor will complete the effect of such rescinding, and restore to the assignor the ownership and con- trol of the debt. 8. An infant assigned a cJiose in action in payment for goods, and afterwards offered to return the goods, and take back the cliose. The debtor received notice that the contract was thus rescinded. Held, the chose thereby ceased to be the property of the assignee, and the infant might validly discharge it. (4) 9. The right of an assignee is subject to the further qualifi- cation, that the debtor may offset any claim, in a suit by the assignee, which he might have done, had it been brought by the assignor ; unless he promise, without exception, to make payment to the assignee. (5) 10. The debtor may offset a demand against the assignee, though the suit is in the assignor's name. (6) 11. The debtor cannot ofTset a demand held by him at the time of assignment, if he had notice from the assignee or his agent that it was about to be made, and did not disclose such demand. (7) 12. Nor where his conduct is such as in equity to deprive him of the right of set-oflf.(8) 13. A gave B a receipt for lumber to a certain amount, to be (1) Woodbridge v. Perkins, 3 Day, 364 5. 534. Dlx v. Cobb, 4 Mass. 512. Ste- vens V. Sievens, 1 Aslmi. 190. Stockton v. Hall, Hard. 160. (2) Bishop V. Holcomb, 10 Conn. 444. (3) Davenport v. Woodbridge, 8 Greenl. 17. (4) Willis V. Tvvambly, 13 Mass. 204. (5) 12 Mass. 193. 195. 281. 14.291. 1 Paige, 319. 1 Root, 349. 20 John. 144. 5 Mass. 215. 3 Monr. 510. 3 Hayw. 199. (6) Corser v. Craig, 1 Wash. C. 424. (7) King V. Fowler, 16 Mass. 397. (8) Kemp v. M'Pherson, 7 Har. & J. 320. 350 SALE, &c. OF cHosEs IN ACTION. [Chap. XIII. applied in payment of a debt due from B to A. B assigned the receipt to C, who notified A thereof, and then brought an ac- tion against him in B's name for goods sold and delivered. Held, although the receipt was not at first assignable, being ap- propriated to payment of B's debt, yet, as the parties had chang- ed this application, and A had disabled himself to make it; the action would lie, notwithstanding a settlement between A and B.(l) 14. A, having a claim for goods sold, against B, became sure- ty in a note given to B by C, which, not being negotiable, was afterwards assigned, by delivery, to D. D demanded payment of A, who referred him to C as the principal, but was silent as to his own claim against B. Held, A hereby waived his right to offset such claim against the note in the hands of D.(2) 15. A, having given a bond to B, took an assignment ©f a bond for the same amount, made by B. A offered to offset his claim against the other, but B refused, on the ground that he had an equitable counter-claim against the assignors. A after- wards re-assigned to C, for valuable consideration and without notice. Held, B by his conduct had not waived his right of discount, but might offset a judgment recovered upon the bond of A against a suit upon his own bond. (3) 16. A gives a bond to B, who assigns it to C, there being at the time of assignment a running account between A and B. After commencement of a suit upon the bond, A and B made a settlement, and B promised at the foot of the account to pay the balance found due in three years. Held, this balance could not be set-off against the bond. (4) 17. An assigned bond is a good discount against another. But if the plaintiff can show by a receipt that the former has been paid, such receipt will not be barred by the statute of lim- itations, and a set-off will not be allowed. (5) 18. The assignee of a contract is concluded in Equity by a (1) Eels V. Finch, 5 John. 193. (2) Merrill v. Merrill, 3 Green). 46S. (3) Picket V. Morris, 2 Wash. 255. (4) ScoU V. Jones, 1 Brock. 244. {*) Comply V. Aiken, 2 Bay. 481. Sect. IV,] REMEDIES IN CASE OF ASSIGNMENT, &C. 351 judgment at law against the assignor, if he had notice of the siiit.(l) Section IV. — remedies in case of assignment — suits at I-AW AND IN EQUITY, DEFENCES, &C. 1. The assignee of an instrument not negotiable cannot sue upon it in his own name, though expressly made payable to as- signs.* But judgment will not be arrested for this cause. If the assignor is insolvent, and a suit is pending in his name for the assignee's benefit, the Court will allow the defendant to suggest on the docket for whose use the suit is brought, and will rule the assignee to respond costs. (^2) "2. Where one who holds a contract obtains the money due upon it, he is entitled to retain the money, if he has an equita- ble right to it, though there has been no assignment in writing. But unless the debtor agrees to pay him, an action must be brought in the name of the assignor. (3) 3. If the assignor of a chose in action die, the assignee may sue in the name of his executor, &c. On the other hand, if an executor promise an assignee of a claim against the testator, to pay such claim, in consideration of the assignment and of assets ; he is personally liable. (4) 4. The assignee of a chose in action may sue in Chancery in his own name, though the assignment were without considera- tion. But the assignee of an insolvent debtor cannot sue in the U. S. court, unless his assignor might have done the same. Nor can an assignee bring a suit in Equity, merely on the ground (1) Curtis r. Cisna, 1 Ham. 429. 3 Greenl. 362. 1 Paige, 41. (2) 1 M'Cord, 219. Gould v. Newman, 6 Mass. 259. Porter v. Millet, 9. 101. Skinner v. Somes, 14. 107. Canby v. Ridgway, 1 Binn. 496. (3) Mowry v. Todd, 12 Mass. 281. (4) Dawes t. Boylston, 9 Mass. 337. 12. 206. 1 Verm. 67. * The assignment of a claim passes with it all the remedies tor its recovery; lhougl«. not specially mentioned. MehaffV v. Share. 2 Penns. 361. 352 SALE, &C. OF CH0SF.3 Ii\ ACTION. [Cliap XIII. that Imo does not allow him to sue in his own name ; unless the assignor prevents him from using his name, or would him- self have had the right to sue in Equity. (1) 5. In England, the king may sue in his own name upon a chose in action assigned to him. And the same principle would apply to the United States. But they would be barred by the statute of limitations, if the assignor were thus barred. (2) 6. In Mississippi, the assignee of a chose in action may sue in his own name. Hence, where an executor, having proved the will in Kentucky, assigned a note due the estate from a citizen of Mississippi, held, the assignee might sue, without proving the will in that state. (3) 7. Where one of several joint promisees is also promisor, neither the assignee of the other nor of all the promisees can sue at law, but only in equity. (4) 8. An assignment of a chose in action, founded on illegality, though made without notice, does not preclude the defendant from setting up such illegality in defence. (5) 9. Chancery will set aside an assignment void at law, and ne- cessarily leading to fraud and corruption. Thus D assigned all his claim and right of action against A for a quantity of wine, to S, in trust for the creditors of D. P, an attorney, having learned the grounds of the claim from D and S, purchased the right of action from S, who supposed it desperate, for a small sum, and then prosecuted the suit for his own benefit, and ob- tained a judgment for the whole amount. Held, the agreement and assignment were void for champerty ; and on condition that S should refund to P the sum paid, a perpetual injunction was awarded. (6) 10. Payment to the assignor is a good defence, if the assign- ment was without consideration. Even though the debtor has (1) Ensign V. Kellogg, 4 Pick. 1. Sere v. Pilot, 6 Cranch, 335. Moseley v. Boush, 4 Rand. 392. (2) U. S. V. Buford, 3 Pet. 13. (3) Harper v. Butler, 2 Pet. 239. See Walker, 69. (4) Gatewood V. Lyle, 5 Monr. 7. Ramsey v. Johnson, Minor, 418. Justices v. Armstrong, 3 Dev. 288. (5) Falea v. Mayberry, 2 Galli. 560. (6) Arden v. Patterson, 5 John. Cha 44. Sect. IV.] REMEDIES IN CASE OF ASSIGNMENT, &C. 353 previously been summoned as trustee of the assignor, and dis- charged upon disclosing the mere fact of an assignment.(I) 11. An assignee cannot hold the assignor liable, on account of an off-set set up against the assigned demand, unless he have given him notice thereof.(2) 12. If the defendant in a suit upon an assigned demand pre- vail, he cannot bring an action against the assignee, who sued in the assignor's name, for the costs. (3) 13. To a plea of former recovery, the assignee may reply the assignment and notice to the debtor ; alleging also that the for- mer action was not prosecuted by authority and for the benefit of the assignee. (4) 14. After assignment, a plaintiff cannot discontinue his action upon the assigned demand. Nor bar a future action, by collu- sively dismissing the present one. (5) 15. One entitled to a distributive share in an estate, assigned it, but afterwards collected and used the amount due. Held, the assignee could not recover the money from him in a suit at law. (6) i6. Where the debtor, after notice of an assignment, pays the assignor and takes a discharge in writing, and the assignee then brings an action against the assignor and recovers the conside- ration paid ; the assignee may still recover from the promisor the balance due, after deducting the amount of such considera- tion. (7) 17. The assignment of a chose in action imposes on the debt- or an equitable and moral obligation to pay the assignee ; which, though constituting an implied assumpsit, is a good considera- tion for an express promise, that will authorize a suit in the as- signee's own name. (8) (1) Dunning v. Sayward, 1 Greenl. 366. ^2) Drayton v. Thompson, 1 Bay. 265. (3) Bennet v.M'Fall,2Rep. Con. Ct.l98. 2 Con. R. 769. (4) Dawson v. Coles, 16 John. 51. (5) M'Cullum V. Coxe, 1 Dall. 139. Welch v. Mandeville, 1 Wheat. 236. (6) Smith V. Gray, 1 Dev. & Bat. 42. (7) Willis V. Twarably, 13 Mass. 204. Dix v Cobb, 4. 508. Jones v. Witter, 13. 304. (8) 10 Mass. 316. 12. 281. 13. 290, 304. 14. 107. 15. 387. 7 Har. & J. 213. 3N. H 82. 7 Verm. 195. 1 M'Cord, 219. 4 Cow 13. 2 Fairf. 385. 45 CHAPTER XIV, STATUTE OF FRAUDS. Section I. — objects and mode op construction of the • statute. Section II. — to what contracts the statute is appli- cable. Section III.— requisites of a writing under the statute. 1. Consideration. 2. Defendant onli/ need sign the writing. 4. Names and price must he mentioned. 5. Several memorandums may be coupled together. 14. What is a signing. 19. Contracts made by agents, brokers, S^c. 37. An admission must he taJcen all together. Section I. — objects and mode of construction of the statute. 1. The Statute of Frauds has been often incidentally refer- red to in previous chapters of this work. Indeed its provisions so far modify the law of sales of personal property, that an ex- press or tacit reference to them becomes necessary, in treating of almost every title of that law. It remains to consider brief- ly a few points more directly and exclusively applicable to the act in question. Sect. I.] CONSTRUCTION OF THE STATUTE, &C. 355 2. It may be useful to present in a connected form some of the opinions of eminent judges, in relation to the purposes and rules of construction of this very important statute. 3. Mr. Chief Justice Best remarks, that " the Statute of Frauds and the statute t>f limitations were both so much object- ed to when they were passed, that the judges appeared anxious to get them off the statute book. But in later times they have become desirous to give them their full effect. I think the Statute of Frauds is a good and wholesome statute. In other countries, contracts are made in writing."(l) 4. Mr. Justice Bayley remarks, that the Statute of Frauds is a remedial law, and that the Court ought not to endeavor to strain words to take a case out of it.(2) 5. The Statute of Frauds was made for wise and beneficial purposes, and ought to be construed according to the plain meaning of the Legislature. It is a highly beneficial and reme^ dial statute. (3) 6. Best, J., says " so far from being disposed to restrain the provisions of this statute, I should be inclined to extend them." ** It is better to adhere to the words of the statute, unless we plainly see that the words used do not express the meaning of the Legislature." (4) 7. It is of great consequence to preserve unimpaired the sev- eral provisions of the Statute of Frauds, which is one of the wisest laws in our statute book. (5) 8. The Statute of Frauds is a very beneficial act ; and its objects are best secured by adhering strictly to its provi- sions, unless in cases which clearly do not fall within the mean- ing.(6) 9. The Statute of Frauds, and the rule excluding parol evi- dence in relation to written contracts, are subjects quite dis- tinct in their nature. (7) ( 1 ) Proctor V. Jones, 2 C. & P. 534. (2) 5 B. & A. 669. (3) Per Abbott, Ch. J., 3 B. & A. 323. 683. 2 B. & C. 40, (4) 3 B. & A. 326. (5) Per Ld. Kenyon, Chaplin v. Rogers, 1 E. 194. (6) Phillips V. Hunnewell, 4 Greenl. 379. (7) Per Ld. Ellenborough, 1 M. & S. 26. 356 STATUTE OF FRAUDS [Chap. XIV. 10. The principal design of the Statute of Frauds was, that parties should not have imposed upon thera burdensome con- tracts which they never made, and be fixed with goods which they never contemplated to purchase.'!) Section IT. — to what co.vtracts the statute is appuca- BLE. 1. Executory contracts are generally void, unless the Statute of Frauds is complied with. Whether the Statute is applicable to an executed agreement, seems to be somewhat doubtful. But the weight of authority is, that it is not thus applicable. (2) 2. Where a thing is in esse, though in an imperfect state and unfit for use, and the parties evidently contemplate what is sub- stantially a sale, the Statute of Frauds applies — as in case of flour, which is not prepared, and unground.(3) 3. An agreement to sell oil, not yet expressed from seed in the possession of the vendor, or to supply a house with pipes, to be laid in a certain way, is an agreement for the sale of goods within the Statute of Frauds. So a sale of growing trees, to be taken within a certain time. (4) 4. It is held in New York, that an agreement to sell a boat- load of wheat, to be delivered at a future time, is within the Statute of Frauds, if none is delivered at the time, no earnest paid, or note given. But in Maryland it has been decided, that an agreement to deliver wheat at a future time, which is not yet threshed, is not within the Statute of Frauds. The same case, however, holds, that the Statute of Frauds applies, where work (1) Per Ld. EUenborough, I M. & S. 26. (2) Eichelberger v. M'Cauley, 5 Har. & J. 213. Rondeau v. VVyatt, 2 H. Bl. 63. Cooper V. Elston, 7 T. R. 14. Brown v. Bellows, 4 Pick. 189. Bucknam v. Nash, 3 Fairf. 474. (3) Garbutt v. Walson, 5 B. & Aid. 613. (4) WUks V. Atkinson, 6 Taun. 11. West Middlesex, &c. v. Suwerkrop, Moo. & M 408. Putney v. Day, 6 N. H. 430. Sect. II ] TO "WHAT CONTRACTS THE STATUTE APPLICABLE. 357 is to be done ufK)n the goods before delivery, unless such work is itself a part of the contract. (I) 5. The defendant went to the shop of the plaintiff and select- ed a lining for a carriage, the plaintiff having on hand, at the time, the body of a carriage nearly completed, but not lined. After a conversation between the parties, it was understood that the plaintiff should finish a carriage for the defendant in a fort- night. The one on hand was accordingly completed, and the defendant notified, and requested to take it Held, this was not a contract of sale, within the Statute of Frauds, but the agree- ment of a workman to manufacture an article for his employer ; and therefore that it was valid, though not in writing. The car- riage intended to be sold did not exist at the time, as the mate- rials, though partly wrought, had not been put together. It would be otherwise with a contract of sale, either of a thing ex- isting at the time, or of articles which the vendor usually has in his business, though to be executed in future. But in this case, there must be an actual or constructive delivery and acceptance, to justify an action for the price. But the plaintiff, having de- clared originally for a carriage sold and delivered, and for labor and materials, was allowed to amend by adding a count upon an agreement to take and pay for a carriage to be built by his or- der. (2) 6. It has oeen a disputed point, whether the Statute of Frauds is applicable to a contract concerning the sale of shares or stock In one case, all the judges of England were equally divided up- on this question. In Massachusetts it is held, that shares in a corporation are within the provision of the Statute of Frauds, relating to the sale of goods. The term used in the Statute, " goods," from the Latin, bona, is almost as extensive in its im- port as personal property. The term merchandise, also, includes all subjects of traffic, which shares undoubtedly are. (3) 7. A parol contract for the sale of both real and personal pro- perty, if entire and founded on one consideration, being void as (1) Jackson r. Covert, 5 Wend. 139. Eicheiberger v. M'Canley, 3 Ha.'. <5c J. £13. (2) Miser v. Howarih.. 21 Pick. 205. (3) Pickering v. Appleby, 1 Com. R. 5*1. 2 Eqj. Cas. Abr. SO. pi. il. I P Wms. 305 Tiidale v. Hams, 30 Pick. 9. 358 STATUTE OF FRAUDS. [Chap. XIV. to the former, is void for the whole. So held, in case of the sale of wood or timber composing a broken down mill, in con- nexion with the mill-site, ^timrt/VKit^c, ,^>:x: vV> %/ \lLiBRARY-6 Hvyan-^-' ,.:^ -f.' JMIVERS; .kIQS-AHGEL^^X -n <3 •i7i30NVSOV ""^a^A! 's\Vv- i-iDiir>ii iilliiiiiiilili 1 '!!!*!iH!Ht!!HH?in!m!limfi!S!t5V tili: UllliHlitllilffll'ij;!; "•!'■ •■•'■ ^^mm 9m '"1; :^S5iili,r,iai,: ii» liill !;i iiiiii' ''b\ ili, , . .liiiilW liH ,1' 111 iiliiil li iiiSliiiiil ■lift ilijili: iiiiiiiiii ii!^